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Court of Criminal Appeal 6 April 2001

John Giang Dieu Kook v Regina

[2001] NSWCCA 122

Drugs
CRIMINAL LAW IMPORTATION OF PROHIBITED SUBSTANCE SENTENCING GUIDELINES PRINCIPLE OF PARITY APPLICATION DISMISSED.

Citation: John Giang Dieu Kook v Regina [2001] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 6 April 2001
Judge(s): Meagher JA, Hidden J, Howie J

Background

The appellant was convicted of being knowingly concerned in the importation of a commercial quantity of heroin, an offence under the Customs Act 1901. The importation involved nearly 2.5 kilograms of heroin concealed inside hollowed-out computer instruction books, which arrived in Sydney by air in April 1998.

The two principal organisers of the scheme were overseas. The appellant played an intermediary role: he provided his premises as the delivery address, handed keys to the courier (a Malaysian national referred to as Pang), transmitted instructions from the principals to Pang, acted as Pang's driver, and was responsible for distributing the heroin to end users. He pleaded guilty on 10 March 2000, almost two years after his arrest.

District Court Judge Latham sentenced the appellant to 12 years imprisonment with a non-parole period of 8 years. The appellant sought leave to appeal, arguing the sentence was excessive.

  • Whether the sentence fell outside the range established by sentencing guidelines for couriers and persons low in the importing hierarchy handling low-range commercial quantities of heroin.
  • Whether the principle of parity required the appellant to receive no greater sentence than that imposed on Pang (10 years, non-parole 7 years), absent any discount for assistance.
  • Whether the sentencing judge gave insufficient weight to the guilty plea.
  • Whether a greater discount should have been allowed for the appellant's claimed assistance to police.

Decision

Sentencing guidelines argument: The Court rejected the submission that the sentence was outside the range in R v Wong & Leung, which indicated sentences of 8 to 12 years for couriers and persons low in the hierarchy importing between 1.5 and 3.5 kilograms of heroin. Meagher JA observed that the sentencing exercise cannot be reduced to a mechanical mathematical formula. The sentence sat within the guideline range, and her Honour's decision to impose a sentence towards the top of that range reflected the appellant's substantial operational involvement, even though he occupied a relatively junior organisational position.

Parity argument: The Court found that the appellant's role was more intimately connected to the importation than Pang's role. The appellant controlled the delivery premises, co-ordinated Pang's activities, relayed instructions from the principals, and was responsible for ultimate distribution. Howie J noted, applying the High Court's caution in R v Olbrich, that labels such as "courier" or "person low in the hierarchy" must not obscure a close examination of what the offender actually did. The principle of parity was not offended.

Guilty plea: The Court found no error in the weight given to the plea. It was entered at the last moment, the Crown case was very strong, and the plea could not reasonably be treated as an expression of genuine contrition.

Police assistance: The appellant spoke to a police officer for approximately 90 minutes in March 2000, nearly two years after arrest. The officer gave evidence that the information provided nothing the police did not already know. Judge Latham was not satisfied the account was full and frank, particularly given that it appeared consistent with a self-serving version given to a psychologist shortly before sentencing, and was inconsistent with other accepted evidence. The Court held it was well within the sentencing judge's discretion to decline any discount for that claimed co-operation.

Orders Made

  • Application dismissed.

Key Takeaways

  • Sentencing guidelines expressed in terms of offender categories (such as "couriers" or "persons low in the hierarchy") do not operate as precise mathematical formulas. A sentence within the guideline range but towards its upper end is not made excessive merely because the quantity of drugs falls in the middle of the corresponding weight range.
  • Applying R v Olbrich, labels describing an offender's position in a drug importation hierarchy must not displace a careful assessment of what the offender actually did. The Court of Criminal Appeal confirmed that operational conduct, not organisational rank alone, drives the sentencing outcome.
  • The parity principle does not automatically require equal sentences for co-offenders bearing the same general label. Differences in operational involvement can justify a higher sentence, even where both offenders are described as "low in the hierarchy."
  • A last-minute guilty plea to a charge supported by very strong Crown evidence, and not genuinely reflecting contrition, attracts limited weight at sentencing.
  • To attract a sentencing discount for police assistance, the co-operation must be full and frank and must provide information of genuine assistance to authorities. Information already known to police does not meet that threshold.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)

Cases:
- R v Wong & Leung (1999) 48 NSWLR 340
- R v Olbrich (1999) 199 CLR 270
- R v Cartwright (1989) 17 NSWLR 243
- R v Henry (1999) 46 NSWLR 346
- R v Jurisic (1998) 45 NSWLR 209
- R v Thomson & Houlton (2000) 49 NSWLR 383