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Court of Criminal Appeal 28 June 2001

R v Keys

[2001] NSWCCA 232

Drugs
CROWN APPEAL WHETHER GUIDELINE JUDGMENT APPLICABLE INADEQUATE SENTENCE RESENTENCING AVOIDANCE OF DOUBLE PUNISHMENT RATIO BETWEEN NON

Citation: R v Keys [2001] NSWCCA 232
Court: New South Wales Court of Criminal Appeal
Date: 28 June 2001
Judge(s): Smart AJ, Badgery-Parker AJ, Newman AJ

Background

The respondent pleaded guilty in the Local Court to two charges of being knowingly concerned in the importation of a trafficable quantity of cocaine, contrary to s 233B(1)(d) of the Customs Act 1901. Each charge related to a separate importation organised through different couriers entering Australia at different ports. The two importations involved approximately 772 grams and 713 grams of pure cocaine respectively.

The respondent was not a courier. Telephone intercept evidence established that he acted as a key operational organiser for the principal, who directed proceedings from overseas. The respondent liaised with the couriers, briefed them on their roles, purchased and supplied the shoes used to conceal the cocaine, researched travel routes, and bought the couriers' plane tickets. He also made a personal trip overseas to meet with the principal before these activities began.

In the District Court, Judge Coorey sentenced the respondent to eight years' imprisonment with a non-parole period of three years and six months. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentencing judge erred by failing to make a precise finding about what the respondent actually did, as distinct from categorising him within a broad organisational hierarchy
  • Whether the guideline judgment in R v Wong and Leung applied to the respondent, and if so, whether sufficient allowance was made for his role above the courier level
  • Whether the non-parole period of three years and six months was manifestly inadequate relative to the objective gravity of the offending
  • Whether the Court of Criminal Appeal should exercise its discretion to refuse the Crown appeal, notwithstanding the finding of inadequacy
  • How to approach resentencing so as to avoid double punishment across two concurrent sentences of equal length, consistent with Pearce v The Queen
  • Whether the sentence imposed on the principal organiser should influence parity considerations on resentencing

Decision

The Court allowed the Crown appeal and found the sentence manifestly inadequate. Badgery-Parker AJ (with Smart AJ and Newman AJ agreeing) identified a central error in the sentencing judge's approach: rather than determining precisely what the respondent did, the judge became focused on locating him within a hierarchical classification. Following R v Olbrich, the Court confirmed that the proper task is to establish the offender's actual conduct, as this is fundamental to assessing the objective gravity of the offence.

The guideline in R v Wong and Leung was designed for couriers and persons low in the organisational hierarchy. The Court found that the respondent occupied a senior operational role, well above that of a courier, and that a substantial upward increment from any guideline starting point was warranted. The objective seriousness of the offending, combined with the need for general deterrence in serious drug importation cases, significantly outweighed the respondent's subjective circumstances.

On the question of parity, the principal organiser had received nine years' imprisonment with a non-parole period of five and a half years in the District Court. The Court noted that sentence also appeared, on its face, to be inadequate. In the absence of detailed information about the principal's charges and antecedents, and given that the principal's sentence had not itself been successfully appealed, the Court declined to moderate the respondent's new sentence downward by reference to it.

To avoid the double punishment error identified in Pearce v The Queen, the Court structured the new sentences as partially cumulative rather than wholly concurrent sentences of equal length. The result was a substantially longer effective sentence, with a non-parole period of five years.

Orders Made

  • Crown appeal allowed
  • Sentences imposed in the District Court quashed
  • The respondent resentenced as follows:
  • Count 2: 4 years and 6 months' imprisonment, commencing 5 March 1999 and expiring 4 September 2003
  • Count 1: 7 years' imprisonment, commencing 5 September 2003 and expiring 4 September 2009
  • A single non-parole period of 5 years fixed across both counts, commencing 5 March 1999 and expiring 4 March 2004

Key Takeaways

  • A sentencing court must make precise findings about what an offender actually did, rather than simply placing the offender into a hierarchical category such as "courier" or "organiser." This factual determination is essential to assessing the objective gravity of the offence, as confirmed by reference to R v Olbrich.
  • The guideline in R v Wong and Leung was designed for couriers and persons low in the importing hierarchy. Where an offender's role materially exceeds that level, a significant upward increment is required and the guideline does not cap the sentence.
  • In serious drug importation cases, general deterrence carries considerable weight and will ordinarily outweigh favourable subjective considerations in setting the appropriate penalty.
  • Where two concurrent sentences of equal length are imposed for two distinct offences, this may amount to impermissible double counting of the same conduct. The Court of Criminal Appeal addressed this by structuring the resentence as partially cumulative terms rather than purely concurrent ones, consistent with Pearce v The Queen.
  • A parity argument based on a co-offender's sentence will carry limited weight where that co-offender's sentence is itself, on its face, inadequate, and where insufficient information about the co-offender's precise offending and antecedents is before the appellate court.

Legislation and Cases Referenced

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

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Wong and Leung (1999) 108 A Crim R 531
- R v Olbrich (1999) 108 A Crim R 464
- R v Camilleri (CCA, unreported, 8 February 1990)
- Regina v Baker [2000] NSWCCA 85 (28 March 2000)
- Everett v The Queen (1994) 181 CLR 295
- Griffiths v The Queen (1977) 137 CLR 227
- R v Wilson (1981) 28 SASR 362
- R v Tait (1979) 24 ALR 473
- Regina v Holder (1983) 3 NSWLR 245
- R v Bang (NSWCCA, unreported, 1 September 1992)
- Regina v Todd (1982) 2 NSWLR 517
- Regina v Kukunoski (NSWCCA, unreported, 17 August 1989)
- Regina v Blanco (1999) 106 A Crim R 303
- Regina v Thompson & Houlton (2000) 49 NSWLR 383