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12
Court of Criminal Appeal 19 March 2001

R v Klein, Lucy Pearl

[2001] NSWCCA 120

Also reported as 121 A Crim R 90
Drugs
SENTENCE DRUG IMPORTATION CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Klein, Lucy Pearl [2001] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 19 March 2001
Judge(s): Giles JA; Wood CJ at CL; Simpson J

Background

The respondent, a South African national, was arrested at an Australian airport on 7 June 2000 after an ion scan detected cocaine among her belongings. She admitted to carrying narcotics concealed on her body and in her shoes. The total cocaine recovered weighed 960.3 grams gross, with a pure weight of 513.7 grams and an estimated street value of between $296,000 and $370,000.

The respondent pleaded guilty to importing cocaine contrary to section 233B of the Customs Act 1901. She claimed she believed she was carrying marijuana, not cocaine, and said she agreed to act as a courier to help pay personal debts. She offered to participate in a controlled delivery and provided names and contact details to police, though this information ultimately did not advance any police investigation.

In the District Court, Solomon DCJ sentenced the respondent to three years and nine months imprisonment with a non-parole period of two years and six months. The Crown appealed, arguing the sentence was manifestly inadequate.

  • Whether a starting figure of six years imprisonment (before any discount) was within the appropriate sentencing range for this offence and offender
  • Whether the sentencing judge erred in the extent of the discount applied for the respondent's offer to assist police, particularly where the controlled delivery offer was not taken up and the information provided did not independently corroborate or advance investigations
  • Whether the sentence of three years and nine months, taken as a whole, was manifestly inadequate

Decision

The Court divided on the question of manifest inadequacy. Giles JA, the presiding judge, considered the starting figure of six years to be on the low side but not appellably inadequate in itself. His Honour accepted that the sentencing judge was entitled to give significant weight to the respondent's offer to participate in a controlled delivery, even though police did not take up the offer. However, Giles JA regarded the resulting reduction from six years to three years and nine months as a very substantial discount, and expressed concern that the final sentence was towards the lower end of what could be justified.

Wood CJ at CL dissented on the outcome, though he agreed with the applicable principles. He concluded that the sentencing judge had been unduly diverted by the respondent's subjective circumstances, including her South African background and the effects of apartheid, finding that the evidence did not establish those matters had a particular impact on the respondent individually. His Honour would have allowed the Crown appeal, finding the sentence manifestly inadequate.

Simpson J agreed with the dismissal of the appeal and with the summary of sentencing principles stated by Wood CJ at CL. However, Simpson J disagreed with Wood CJ at CL's conclusion on manifest inadequacy, finding that while the sentence was lenient and the discount generous, the combination remained within the range of leniency available to the sentencing judge.

By majority (Giles JA and Simpson J), the appeal was dismissed. Wood CJ at CL, though willing to join in the dismissal solely by reason of the residual discretion applicable to Crown appeals, maintained that in his view the sentence was manifestly inadequate.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • By majority, the Court of Criminal Appeal confirmed that a sentence of three years and nine months for importing approximately 513 grams of pure cocaine, while lenient, was not so inadequate as to require intervention on a Crown appeal.
  • An offer to participate in a controlled delivery can attract significant sentencing leniency even where police do not take up the offer, provided the failure to proceed was not the offender's fault.
  • Where information provided by an offender is not independently corroborated and does not advance any investigation, it carries reduced weight as a mitigating factor compared to actual assistance rendered.
  • Subjective circumstances such as a difficult upbringing under apartheid or the absence of satisfactory personal relationships may not justify leniency where the evidence does not establish a specific causal connection between those circumstances and the offending conduct.
  • In dismissing the appeal, the majority applied the established principle that Crown appeals attract a residual discretion: even where individual judges might have imposed a heavier sentence, that alone does not compel the appellate court to intervene.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B
- Crimes Act 1914 (Cth), s 16A

Cases Cited
- R v Wong (1999) 48 NSWLR 340 (guideline judgment on cocaine importation sentencing)
- R v Cartwright (1989) 17 NSWLR 243 (leniency for assistance to authorities)
- R v Behar (NSW CCA, 14 October 1998)
- R v Benais (1999) NSW CCA 236
- R v Budiman (NSW CCA, 8 September 1998)
- R v Chu (NSW CCA, 16 October 1998)
- R v Dodd (1991) 57 A Crim R 349
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Gallagher (1991) 23 NSWLR 220
- R v Laurentiu and Becheru (NSW CCA, 1 October 1992)
- R v Lawson, Wu and Thapa (NSW CCA, 12 December 1997)
- R v Leroy (1984) 2 NSWLR 441
- R v Stead 99 NSW CCA 4
- R v Zayat (NSW CCA, 22 November 1996)