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Court of Criminal Appeal 28 May 2001

REGINA v. TAN

[2001] NSWCCA 219

Drugs
CRIMINAL LAW APPEAL SENTENCE DRUG COURIER RELEVANCE OF PERSONAL CIRCUMSTANCES NO QUESTION OF PRINCIPLE.

Citation: [2001] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 28 May 2001
Judges: Dowd J, Greg James J, Smart AJ

Background

The appellant, a 41-year-old Malaysian plumber, pleaded guilty in the District Court to importing a commercial quantity of MDMA (ecstasy) into Australia. He was apprehended at Sydney Airport after flying from Kuala Lumpur, with packages of drug tablets taped to his body and inside his thighs. His role, as found by the sentencing judge, was that of a bare courier recruited on a single occasion.

The appellant's stated motive was to earn money to fund medical treatment for his ill mother. He had prior good character, had entered an early guilty plea, and faced the additional hardship of serving time far from his family in Malaysia, including two teenage children in his mother's care.

Bellear DCJ sentenced the appellant to seven years' imprisonment with a non-parole period of four years and six months. The appellant, appearing in person, sought leave to appeal on the grounds that the sentence was manifestly excessive and that insufficient weight had been given to his personal circumstances.

  • Whether the sentencing judge gave adequate weight to the appellant's early guilty plea, prior good character, and personal hardship
  • Whether the sentence of seven years was manifestly excessive in all the circumstances
  • Whether a comparison with the sentence in Regina v Hauser (CCA, unreported, 11 December 1997) supported a reduction

Decision

Greg James J, with whom Dowd J and Smart AJ agreed, found that the sentencing judge had in fact taken all of the appellant's personal circumstances into account and given them substantial weight. Those circumstances included his early plea of guilty, contrition, prior good character, family situation, motive for offending, and the additional hardship of incarceration away from his culture and loved ones.

Despite those mitigating factors, the Court affirmed that the sentencing judge was correct to impose a full-time custodial sentence reflecting both general and personal deterrence. The Court noted the established sentencing pattern requiring that those who import drugs into Australia for financial gain be met with a consistently tough sentencing approach.

The appellant's reliance on Hauser was rejected. That case had involved a reduction based on the parity principle flowing from a co-accused's lenient sentence, and its circumstances were entirely different from the present matter. Neither that decision nor the sentencing statistics assisted the appellant.

The Court reiterated the applicable standard: it may only interfere with a sentencing discretion where the trial judge has erred and a lesser sentence is warranted in law. No such error was established here.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A conviction for importing a commercial quantity of MDMA, even where the offender is a bare courier acting on a single occasion, will attract a substantial full-time custodial sentence reflecting both general and personal deterrence.
  • Compelling personal circumstances, including prior good character, an early guilty plea, family hardship, and sympathetic motive, do not displace the sentencing policy requiring consistently tough penalties for those who import drugs into Australia for financial gain.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate interference with a sentencing discretion is only warranted where error is established and a lesser sentence is warranted in law. Mere disagreement with the weight given to mitigating factors is insufficient.
  • The Hauser decision, in which a sentence was reduced on parity grounds because of a co-accused's more lenient sentence, was distinguished as turning entirely on its own facts and inapplicable where no comparable co-accused circumstances existed.
  • Additional hardship arising from imprisonment in a foreign country, away from family and cultural connections, is a recognised sentencing consideration but does not necessarily produce a material reduction where deterrence considerations are paramount.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902 (NSW), s 51A
- Customs Act 1901 (Cth), ss 233B, 235
- Crimes Act 1900 (NSW), s 16G
- Financial Transaction Reports Act 1992 (Cth)

Cases:
- Regina v Hauser (NSW Court of Criminal Appeal, unreported, 11 December 1997)