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10
Court of Criminal Appeal 16 March 2001

R v Ceissman

[2001] NSWCCA 73

Drugs
CRIMINAL LAW APPEALS APPEAL AGAINST LENIENCY OF SENTENCE SENTENCE MANIFESTLY LENIENT

Citation: R v Ceissman [2001] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 16 March 2001
Judges: Wood CJ at CL, Ipp AJA, Simpson J (dissenting)

Background

The respondent pleaded guilty in the District Court to being knowingly concerned in the importation of a trafficable quantity of cocaine under the Customs Act 1901 (Cth). A package concealed within a teddy bear, containing 344.4 grams of cocaine with an estimated street value of up to $172,000, was intercepted at the Mascot mail handling facility and delivered to him by Australian Federal Police in a controlled operation.

The respondent admitted receiving the package, knowing it likely contained drugs. He acknowledged receiving similar packages on prior occasions, accepting $50 per delivery and remitting collected funds to the United States. The sentencing judge, Solomon DCJ, sentenced him to three years imprisonment with a non-parole period of eighteen months.

The Commonwealth Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentence was manifestly lenient and that the non-parole period had been incorrectly formulated.

  • Whether the sentencing judge adequately justified a departure from the guideline judgment in Wong and Leung (which addressed sentencing ranges for cocaine importation at mid-range trafficable quantities of 200 grams to one kilogram)
  • Whether the sentencing judge gave undue weight to the respondent's subjective circumstances, including his youth, good character, and the impact of imprisonment on his brother
  • Whether the principles from Fernando (concerning offenders of Aboriginal descent) were correctly applied
  • Whether the sentencing judge impermissibly gave a double allowance for mitigating factors by reducing both the head sentence and the non-parole period for the same subjective circumstances
  • Whether the non-parole period was incorrectly formulated as a fixed period rather than a recognisance release order under s 19AC of the Crimes Act 1914 (Cth)

Decision

The majority (Wood CJ at CL and Ipp AJA) allowed the appeal and quashed the sentence, with Simpson J dissenting.

On the guideline departure, the majority found the sentencing judge understated the effect of the guideline judgment in Wong and Leung by treating it as "merely a guideline." While such judgments are not binding in the strict sense and permit departure in appropriate circumstances, any departure must be articulated with precision and justified by reference to the specific subjective facts of the case. The sentencing judge also erred by characterising the respondent as being "at the very low end of the importation" without sufficiently examining what the respondent had actually done, contrary to the principle in Olbrich.

On the Fernando principles, the majority found the sentencing judge was at risk of misapplying them. Those principles are directed at circumstances referable to an offender's Aboriginality that explain or illuminate the particular offence or offender, especially in alcohol-related offending. They are not intended to create a special category of persons for whom leniency is extended as a matter of course, irrespective of the objective seriousness of the offence.

The majority further held that the sentencing judge gave undue weight to youth, prior good character, and the effect of imprisonment on the respondent's brother. While those factors are relevant, they carry less weight in drug trafficking and importation cases than in other offending contexts. The court also confirmed that where subjective factors reduce the head sentence, they should not then be used a second time to further reduce the non-parole period. Simpson J dissented, viewing the original sentence as a legitimate exercise of the sentencing judge's discretion in an exceptional individual case.

Orders Made

  • Appeal allowed
  • Original sentence quashed
  • Respondent sentenced to four and a half years imprisonment with a non-parole period of two years and nine months

Key Takeaways

  • Guideline judgments such as Wong and Leung are not binding precedents, but departures from them must be specifically justified by reference to the subjective facts of the individual case, not dismissed as merely advisory.
  • Characterising an offender's role in general terms without examining what they actually did risks appellable error, as confirmed by the Court's application of Olbrich.
  • The Fernando principles are directed at circumstances connected to an offender's Aboriginality that explain the specific offending, not at creating a general entitlement to leniency based on Aboriginality alone.
  • In drug trafficking and importation offences, subjective mitigating factors such as youth and prior good character carry less sentencing weight than in other types of offences, and objective seriousness must not be overtaken by those factors.
  • Double-counting mitigating circumstances, by reducing both the total term of imprisonment and the non-parole period for the same subjective factors, constitutes a sentencing error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth) ss 16(2)(p), 16G, 19AC
- Criminal Appeal Act 1912 (NSW) s 5D
- Customs Act 1901 (Cth) s 233B(1)(d)

Cases:
- Wong and Leung (1999) 108 A Crim R 531
- Jurisic (1998) 45 NSWLR 209
- R v Chua [2001] NSWCCA 50
- Olbrich (1999) 108 A Crim R 464
- R v Fernando (1992) 76 A Crim R 58
- Lawson, Wu and Thapa (1997) 98 A Crim R 463
- Rushby (1977) 1 NSWLR 594
- Readman (1990) 47 A Crim R 181
- Dodd (1991) 57 A Crim R 349
- Griffiths v R (1977) 137 CLR 293
- R v Tait and Bartley (1979) 46 FLR 386
- R v Osenkowski (1982) 30 SASR 212
- Thomson and Houlton [referenced in judgment text]
- R v Lattouf (unreported, CCA, 12 December 1996)