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Court of Criminal Appeal 21 May 2001

R v Meloh

[2001] NSWCCA 211

Drugs

Citation: R v Meloh [2001] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 21 May 2001
Judge(s): Spigelman CJ, Hulme J, Howie J

Background

The applicant, a 35-year-old man who had arrived in Australia from Sierra Leone as a refugee in 1999, pleaded guilty in the District Court to being knowingly concerned in the importation of 5,300 ecstasy (MDMA) tablets, an offence under s 233B(1)(d) of the Customs Act 1901. The sentencing judge accepted that the applicant had become involved in the importation to help obtain a passport for his sister to leave war-torn Somalia, and that he was a low-level operative in a hierarchically organised criminal network.

Judge Goldring of the District Court sentenced the applicant to six years imprisonment with a non-parole period of four and a half years, both commencing 22 March 2000. The non-parole period represented 75 per cent of the head sentence.

The applicant sought leave to appeal against sentence on the narrow ground that the non-parole period was excessive. He did not challenge the six-year head sentence. The Crown conceded that the non-parole period was too high given the head sentence and the particular facts.

  • Whether the non-parole period of four and a half years (75 per cent of the head sentence) was excessive for a federal drug importation offence in the circumstances.
  • Whether the accepted range of 60 to 66 and two-thirds per cent of the head sentence for non-parole periods in federal drug offences was correct in principle.
  • What the appropriate non-parole period was for this applicant, having regard to his role, personal circumstances, and conduct in custody.

Decision

The majority, through Howie J, accepted that the non-parole period was excessive in all the circumstances. A non-parole period of 75 per cent of the head sentence may be appropriate for state offences under the Crimes (Sentencing) Procedure Act 1999, but prior authority established that such a proportion for federal offences is reserved for more serious cases where prospects of rehabilitation are poor. Neither condition applied here: the applicant was a low-level participant, had pleaded guilty at the first opportunity, expressed genuine remorse, and demonstrated positive conduct in custody.

The Court granted leave to appeal and substituted a non-parole period of three years and seven months, commencing 22 March 2000 and expiring 21 October 2003. This brought the proportion more closely into line with the accepted range of 60 to 66 and two-thirds per cent that prior decisions of the Court had indicated as appropriate for federal drug matters.

Hulme J delivered a notable dissent on the underlying principle. His Honour challenged the appropriateness of that 60 to 66 and two-thirds per cent range, arguing it was inconsistent with statements in earlier authority calling for flexibility rather than formulaic ratios, and that prior authority did not straightforwardly support such a narrow band. His Honour took the view that the Crown's concession of error should not have been made and that, if anything, the head sentence was too low and should have been higher. Because there was no Crown appeal, however, the head sentence could not be increased. Hulme J would have dismissed the appeal.

Notably, Hulme J included a correction within his own judgment, acknowledging that a passage relying on the approach of Hunt J in R v Paull was erroneous in light of the Court's subsequent decision in DPP v El Karhani, which had established that the non-parole period is to be determined by reference to the head sentence after any s 16G adjustment.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed and the non-parole period imposed by the District Court quashed.
  • In lieu, a non-parole period of three years and seven months specified, commencing 22 March 2000 and expiring 21 October 2003.

Key Takeaways

  • A non-parole period of 75 per cent of the head sentence is generally not appropriate for federal drug importation offences; the Court of Criminal Appeal confirmed that such a proportion is reserved for more serious cases where prospects of rehabilitation are poor.
  • Prior decisions of the Court of Criminal Appeal had indicated that the normal range for non-parole periods in federal drug matters falls between 60 and 66 and two-thirds per cent of the head sentence, though this range was expressly questioned by Hulme J in this decision.
  • Hulme J's dissent raises a live tension between that accepted proportional range and earlier statements in the case law calling for flexibility rather than rigid formulas when fixing non-parole periods.
  • Where a sentencing judge imposes a non-parole period outside the accepted range without identifying any feature of the offence, the offender's role, or personal circumstances that would justify the departure, this constitutes an error that may warrant appellate intervention.
  • Positive conduct in custody, including employment and participation in education programs, is a relevant consideration when a court is required to re-sentence an applicant on appeal.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes (Sentencing) Procedure Act 1999 (NSW), s 44(2)
- Crimes Act 1914 (Cth), s 16G

Cases:
- Wong and Leung (1999) 108 A Crim R 531
- Bernier (1998) 102 A Crim R 44
- R v Behar (CCA, unreported, 14 October 1998)
- R v Acosta [1999] NSWCCA 334
- Spiteri [1999] NSWCCA 3
- R v Benais [1999] NSWCCA 236
- R v Colin [2000] NSWCCA 236
- Krakouer (1999) A Crim R 408
- Budiman (1998) 102 A Crim R 411
- Stitt (1998) 102 A Crim R 428
- R v Paull (1990) 20 NSWLR 427
- DPP v El Karhani (1990) 21 NSWLR 370