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Court of Criminal Appeal 20 April 2001

Regina v Junaedy Adwinata

[2001] NSWCCA 154

Drugs

Citation: Regina v Junaedy Adwinata [2001] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 20 April 2001
Judge(s): Wood CJ at CL; Sully J

Background

The applicant had pleaded guilty in the District Court to supplying heroin, an offence under the Drug (Misuse and Trafficking) Act 1985 (NSW) carrying a maximum penalty of 15 years imprisonment. Police had observed him in Hay Street, Sydney, and on search found multiple foil-wrapped packages of heroin in his jeans pocket and backpack, along with nearly $945 in cash. In an electronically recorded interview, he admitted selling heroin for four days and described himself as training as a drug trafficker, receiving $50 per night and free meals.

The sentencing Judge at the District Court imposed a three-year term of imprisonment with a non-parole period of 27 months. The applicant also asked the court to take into account a related goods-in-custody matter on a Form 1, concerning the cash and two pearl necklaces found in his backpack.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was infected by legal error and was manifestly excessive.

  • Whether the sentencing Judge wrongly applied the reasoning from Regina v Wong and Leung (1999) 48 NSWLR 340, a decision concerned with the Commonwealth sentencing regime and a different category of offence, in a way that fettered his sentencing discretion under the NSW State regime.
  • Whether statistical material placed before the sentencing Judge had been misapprehended, such that the resulting sentence was manifestly excessive and outside the range of a permissible sentencing discretion.

Decision

On the first ground, Sully J rejected the submission that the sentencing Judge had transposed the reasoning and result in Wong and Leung without proper regard for its different context. Reading the remarks on sentence as a whole, Sully J concluded the sentencing Judge had looked to Wong and Leung for general guidance rather than treating it as binding or constraining his approach to the facts before him.

On the second ground, Sully J held that the statistical material did not demonstrate the sentence was manifestly excessive. The applicant's own admissions placed his conduct squarely within willing participation as a street trafficker and courier of heroin quantities, conduct the Court of Criminal Appeal has consistently treated with considerable seriousness.

Sully J concluded that, taking into account both the objective gravity of the offence and the relevant subjective matters, the sentence could not be characterised as so obviously excessive as to warrant intervention. Even if a legal error had been established, which in his view it had not, a different sentence would not have been "warranted in law" within the meaning of the Criminal Appeal Act.

Wood CJ at CL agreed with Sully J's reasons and proposed orders.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's use of Wong and Leung does not constitute error where the judge draws on it for general guidance rather than treating it as controlling authority applicable without qualification to a different sentencing regime or offence category.
  • A sentence will only be disturbed on appeal as manifestly excessive if it is plainly outside the range of a permissible sentencing discretion; disagreement with a sentence's severity does not meet that threshold.
  • Street trafficking and couriering of heroin, even where the offender plays a relatively junior role, has consistently been treated by the Court of Criminal Appeal as objectively serious conduct warranting substantial sentences.
  • Under the Criminal Appeal Act, even where error by the sentencing court is established, a court of appeal must also be satisfied that a different sentence is "warranted in law" before intervening.
  • No error was established in the sentencing Judge's treatment of the statistical material, as the applicant's own admissions provided a sufficient and clear factual basis for the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(15)
- Criminal Appeal Act (NSW)

Cases:
- Regina v Wong and Leung (1999) 48 NSWLR 340