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Court of Criminal Appeal 10 August 2001

Regina v Schluenz

[2001] NSWCCA 314

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE DRUG IMPORTATION BY POST NOT EXCEPTIONAL NO SPECIAL POINT OF PRINCIPLE

Citation: Regina v Schluenz [2001] NSWCCA 314
Court: New South Wales Court of Criminal Appeal
Date: 10 August 2001
Judges: Spigelman CJ, Grove J, Einfeld AJ

Background

The appellant was convicted in the District Court of attempting to obtain possession of a narcotic good, specifically more than the trafficable quantity of methylamphetamine. The drug, 83.2 grams of pure methylamphetamine, had been concealed inside a computer hard drive and sent by post from the Philippines to the appellant's home address in Monterey, NSW. The appellant had impersonated another person when dealing with the courier company and was found carrying the delivered package when intercepted by police approximately ten minutes after it was delivered.

The sentencing judge found the appellant had been substantially involved in the importation, placed her role as more than a courier but below the level of ultimate responsibility for distribution, and sentenced her to seven years imprisonment with a four-year non-parole period. The appellant had no prior convictions.

On appeal, the appellant sought a reduction in sentence. She tendered fresh evidence about the impact of her imprisonment on her teenage son, who was living without regular parental supervision, and also raised a legal argument that the sentencing judge had misapplied the statutory requirement to consider the effect of imprisonment on family members.

  • Whether the sentence of seven years (non-parole period of four years) was manifestly excessive, having regard to comparable sentencing decisions for methylamphetamine importation offences
  • Whether the sentencing judge erred in applying the family hardship provision under s 16A(2)(p) of the Crimes Act 1914 (Cth), specifically by limiting its relevance to the choice between custodial and non-custodial sentences
  • Whether fresh evidence concerning the welfare of the appellant's teenage son warranted intervention to reduce the sentence

Decision

Grove J, with Spigelman CJ and Einfeld AJ agreeing, reviewed a schedule of comparable decisions on methylamphetamine and mid-range narcotic importation offences. The Court accepted that the sentence was at the comparatively higher end of the range but found that finding alone was insufficient to justify intervention. The Court also noted that methylamphetamine is properly classified as a mid-range drug, distinct from higher-order drugs such as heroin and cocaine, and that raw weight comparisons with the 2 to 200 gram range under the guidelines in Wong and Leung were not particularly useful.

On the s 16A(2)(p) argument, Grove J found no error in the sentencing judge's remarks. The judge had not, on a fair reading of his reasons, confined the family hardship provision solely to the question of whether to impose a custodial sentence. His Honour had acknowledged the provision's broader operation, including its relevance to fixing the length of the sentence and the non-parole period.

The Court considered the fresh evidence about the appellant's son, including that the appellant's husband had since filed for divorce and was largely absent, and that the son was living with limited support. While the Court accepted this material for the purposes of the appeal, it found the circumstances fell short of being so exceptional as to require a reduction in sentence. The Court noted the son had not been in trouble, appeared to have some capacity for independent functioning, and that the needs described were immediate rather than tied to the remaining period of the sentence.

Spigelman CJ added that it was unnecessary to finally determine whether the additional evidence met the threshold for fresh evidence, because even if admitted, it made no difference to the outcome.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the effect of imprisonment on family members under s 16A(2)(p) of the Crimes Act 1914 (Cth) is a relevant consideration not confined to the choice between custodial and non-custodial sentences, but also applicable to the length of the sentence and the non-parole period.
  • A finding that a sentence sits at the higher end of the comparable range is not, by itself, sufficient to justify appellate intervention.
  • Where family hardship is raised as a mitigating factor, the circumstances must be exceptional before they will carry sufficient weight to reduce an otherwise appropriate sentence for a serious drug importation offence.
  • The hardship of a teenager left without a primary carer during a parent's imprisonment does not automatically constitute exceptional circumstances, particularly where the teenager has some capacity for independent functioning and has not come to the attention of authorities.
  • Methylamphetamine is properly treated as a mid-range narcotic for sentencing purposes, separate from higher-order drugs such as heroin and cocaine, and direct weight-based comparisons with guidelines developed for those drugs carry limited utility.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A(2)(p)

Cases
- Olbrich v The Queen (1999) 199 CLR 270
- R v Bimahendali (1999) 109 A Crim R 355
- R v Herrera NSWCCA (Unreported, 6 June 1997)
- R v Wong and Leung (1999) 48 NSWLR 340