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13
Court of Criminal Appeal 2 February 2001

Regina v Karacic

[2001] NSWCCA 12

Also reported as 121 A Crim R 7
Drugs

Citation: Regina v Karacic [2001] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 2 February 2001
Judge(s): Spigelman CJ, Grove J, Whealy J

Background

The appellant was a courier company employee who pleaded guilty in the District Court to one count of attempting to obtain possession of heroin, contrary to section 233B(1)(c) of the Customs Act 1901 (Cth). The offence occurred on 1 April 1998, when he attempted to intercept a package arriving from Hong Kong by posing as a representative of a legitimate computer company. The package contained heroin with a net pure weight of 453.8 grams, carrying an estimated street value of approximately $900,000.

The appellant had created false "Digital Express" letterheads on his computer and dressed in business attire to appear credible to the courier. When the Federal Express driver sought identification, the appellant and a second man fled. A subsequent police search of the appellant's home uncovered the false documentation and connected him to the rental vehicle used on the day.

At sentence, the appellant gave evidence that he had been a heroin user at the time and that the organiser of the scheme was his drug supplier, known only as "James." He admitted he had withheld James's telephone number from police out of fear for his family's safety. The District Court sentenced him to ten years imprisonment with a non-parole period of seven years. He sought leave to appeal on the ground that the sentence was excessive.

  • Whether the sentence of ten years imprisonment with a seven-year non-parole period was manifestly excessive for the offence of attempted possession of heroin in a trafficable quantity under the Customs Act 1901 (Cth).
  • Whether the sentencing judge correctly applied the guideline judgment principles established in R v Wong; R v Leung and R v Thomson; R v Houlton when fixing the sentence.
  • What weight should be given to subjective factors, including the appellant's guilty plea, drug dependency, limited role, and personal circumstances.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding the original sentence was excessive. Whealy J, who delivered the leading judgment, conducted a detailed review of the applicable guideline judgments, particularly R v Thomson; R v Houlton and R v Wong; R v Leung, which provided indicative sentencing ranges for drug importation offences.

The Court found that, while the offending was serious, several subjective factors warranted a reduced sentence. These included the appellant's guilty plea, his drug dependency at the time of the offence, his relatively limited role as a courier-level participant, his co-operation at the sentence hearing, and other favourable material from the pre-sentence report and character witnesses.

Spigelman CJ added remarks clarifying the proper function of guideline judgments. His Honour emphasised that the guidelines are indicative only and should operate as a "sounding board" or "check" rather than as a rigid formula. The Court is required to take into account the sentencing ranges established in comparable cases while remaining attentive to the individual circumstances of the offence and offender.

The Court reduced the total sentence to eight years imprisonment and set a non-parole period of five years, dating from 31 March 2000. Whealy J noted that the sentence was fashioned having regard to the matters in section 16A of the Crimes Act 1914 (Cth) and the absence of remissions applicable to sentences served in NSW state prisons.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The appellant resentenced to a term of imprisonment of 8 years dating from 31 March 2000.
  • Non-parole period of 5 years set; the appellant eligible for release on parole on 30 March 2005.

Key Takeaways

  • Guideline judgments in NSW drug importation cases, including R v Thomson; R v Houlton and R v Wong; R v Leung, operate as indicative sentencing ranges rather than prescriptive rules, providing a reference point against which individual sentences are assessed.
  • A guilty plea, drug dependency, limited role in the offending, and co-operation during sentencing proceedings are each capable of reducing a sentence, even where the objective seriousness of the offence is high.
  • The Court of Criminal Appeal confirmed that sentencing courts must use guideline ranges as a "sounding board" to check the appropriateness of a proposed sentence, while still conducting a full assessment of the individual offender's circumstances.
  • Under section 16G of the Crimes Act 1914 (Cth), a sentencing court is required to take into account that a Commonwealth sentence served in a state prison will be served without remissions, and this factor must be reflected in the length of the sentence imposed.
  • Where an appellant withholds information from police but later makes admissions during sentence proceedings, the extent of co-operation and the reasons given for earlier non-disclosure remain relevant factors in assessing the appropriate discount for assistance.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(c)
- Crimes Act 1914 (Cth), ss 16A, 16F, 16G

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Wong; R v Leung (1999) 48 NSWLR 340
- R v Ngui and Tiong (2000) 111 A Crim R 593
- R v Jurisic (1998) 48 NSWLR 209
- R v Henry (1999) 46 NSWLR 346
- R v Olbrich (1999) 166 ALR 330