Citation: Regina v Bigic [2000] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 11 February 2000
Judge(s): Wood CJ at CL, Sully J, Simpson J
Background
The applicant pleaded guilty in the District Court to being knowingly concerned in the importation of prohibited imports, specifically methorphan and methylamphetamine, into Australia. Two female couriers had flown from Los Angeles to Sydney with the drugs strapped to their legs, and the applicant had travelled separately from Los Angeles to Australia to coordinate their arrival. He was arrested at Melbourne airport on 3 March 1998 while attempting to depart for Los Angeles.
The District Court sentenced the applicant to nine years imprisonment with a non-parole period of six years, after adjusting for the relevant provisions of the Crimes Act 1914 (Cth). His two female co-offenders had each received head sentences of three and a half years with non-parole periods of eighteen months, substantially discounted for their immediate admissions and extensive co-operation with authorities.
The applicant sought leave to appeal that sentence on two grounds: that it was manifestly excessive, and that it was disproportionate compared to the sentences imposed on the female co-offenders.
Legal Issues
- Whether the nine-year sentence with a six-year non-parole period was manifestly excessive having regard to the nature of the drugs and the applicant's role in the importation.
- Whether the sentence was disproportionate to those imposed on the co-offenders, raising a parity argument under the principles in R v Lowe (1984) 154 CLR 606.
Decision
On the parity argument, Simpson J held that the correct starting point for comparison is the undiscounted sentence the co-offenders would have received but for their assistance to authorities, not the heavily reduced sentences that were actually imposed. Judge Morgan had stated that, absent co-operation, each woman would have received six years with a four-year non-parole period. The relevant differential between those undiscounted non-parole periods and the applicant's was therefore two years, not the much larger gap that appeared when comparing actual sentences.
The Court found that differential was plainly justified. The applicant was assessed as a mid-level participant, above the couriers in the hierarchy, and his plea was not entered until the morning of the trial, in contrast to the women who confessed and pleaded guilty at the first opportunity. The timing of the applicant's plea significantly limited any available discount for contrition or utilitarian value.
On manifest excess, Simpson J considered the guideline judgment in R v Wong and Leung, which had established sentence ranges for drug importation offenders at the lower end of the hierarchy. Although that guideline was directed at couriers and low-level participants, and was expressed primarily in relation to heroin and cocaine, the Court drew cautious guidance from it. Even applying appropriate adjustments downward for the lower-order drugs involved and upward for the applicant's greater organisational role, the sentence of nine years fell within the range the guideline indicated.
No other basis for interference with the sentence was argued or established.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- When evaluating a parity argument, the correct comparator is the sentence that would have been imposed on co-offenders absent any discount for assistance or co-operation, not the discounted sentence actually imposed.
- A mid-level participant in a drug importation operation, assessed as above a courier but below the principal organiser, is not entitled to be sentenced on the same basis as couriers, and a significant differential in sentence is warranted.
- The Court of Criminal Appeal applied the guideline judgment in R v Wong and Leung with caution where the drug type and the offender's level in the importing hierarchy differed from the circumstances directly addressed by that guideline.
- Late entry of a guilty plea, on the morning of trial, carries considerably less weight in mitigation than an early plea accompanied by genuine co-operation, and the timing of a plea is a material factor in sentence comparisons among co-offenders.
- In dismissing the appeal, the Court confirmed that a nine-year head sentence with a six-year non-parole period for a mid-level participant in a large-scale drug importation fell within the appropriate sentencing range.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 16G
- Customs Act 1901 (Cth), s 233B
Cases:
- R v Lowe (1984) 154 CLR 606
- R v Wong and Leung [1999] NSWCCA 420 (unreported)