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Court of Criminal Appeal 12 July 2001

Regina v Ng

[2001] NSWCCA 305

Drugs

Citation: Regina v Ng [2001] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 12 July 2001
Judge(s): Hodgson JA, Mathews AJA, Studdert J

Background

The appellant pleaded guilty in the District Court to a charge under s 233B(1)(c) of the Customs Act 1901 (Cth) of being knowingly concerned in the importation of a commercial quantity of heroin. The importation involved approximately 93.5 kilograms of total substance, containing just over 69 kilograms of pure heroin concealed within commercial baking ovens shipped from China. At the time of sentencing, it was the fourth largest known heroin importation into Australia, with an estimated street value of between $80 million and $95 million.

The appellant had arrived in Australia in late 1997 and was arrested on 17 July 1998 when police, alerted by two of his associates, placed him under surveillance. He was found with multiple false identification documents. He had two prior convictions, including one in the Netherlands for importing heroin.

In the District Court, Judge Kinchington sentenced the appellant to life imprisonment with a non-parole period of eighteen and a half years, finding that the appellant occupied a high-level and central role in a sophisticated importation syndicate and that his objective criminality was of the highest order, placing the offending in the worst case category. The appellant, who was unrepresented on appeal, sought a reduction on compassionate grounds, citing hardship to his children, wife, and elderly parents.

  • Whether the sentencing judge erred in principle in imposing a life sentence for the offence.
  • Whether the sentence was manifestly excessive having regard to all the circumstances, including the appellant's role, plea of guilty, and personal and family circumstances.
  • Whether compassionate grounds provided a basis for the Court of Criminal Appeal to intervene and reduce the sentence.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Mathews AJA, delivering the leading judgment with the agreement of Hodgson JA and Studdert J, found no error of principle in the sentencing judge's approach.

The sentencing judge's finding that the appellant was a high-level operative occupying a central role in the importation was available on the evidence before him. The appellant's submissions on appeal, which characterised his role as minor and passive, did not disclose any error in that factual finding.

The Court also rejected the compassionate grounds argument. The Crown had noted that the appellant had voluntarily absented himself from his family for many months while organising and executing the offence. The Court accepted that observation as relevant context, and found nothing in the appellant's personal circumstances that would justify intervention.

Given the extreme seriousness of the importation and the appellant's central role in it, the Court was satisfied that the sentence was not manifestly excessive. The maximum penalty of life imprisonment had been appropriately applied.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence of life imprisonment for a large-scale commercial heroin importation will not be disturbed on appeal where the sentencing judge's findings as to the offender's role and objective criminality were open on the evidence and disclose no error of principle.
  • The Court of Criminal Appeal confirmed that an appellate court will only intervene in a severity appeal where either an error of principle is established or the sentence is manifestly excessive; neither threshold was met here.
  • Family hardship and compassionate circumstances, while relevant to the sentencing exercise, do not of themselves provide grounds for appellate intervention where the sentencing court has already taken them into account in fixing the non-parole period.
  • No error was established by the appellant's bare assertion on appeal that his role had been minor and passive, where the sentencing judge had already considered and rejected that characterisation on the evidence.
  • Under s 233B(1)(c) of the Customs Act 1901 (Cth), the maximum penalty is life imprisonment, and the District Court's application of that maximum to offending described as falling within the worst case category was upheld by the Court of Criminal Appeal.

Legislation and Cases Referenced

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

Cases cited: No cases were cited in the provided text.