Citation: [2002] NSWCCA 169; (2002) 127 A Crim R 243
Court: NSW Court of Criminal Appeal
Date: 15 May 2002
Judge(s): Wood CJ at CL, Sully J, Greg James J
Background
Two respondents were convicted of serious drug offences arising from a large heroin importation in late 1997. The drugs, approximately 13.5 kilograms of heroin concealed in marble pedestals, were transported from Adelaide to Sydney following detection by Australian Federal Police. The respondents were found breaking up the pedestals in a suburban garage before discovering the drugs had been replaced with an inert substance.
The Commonwealth Director of Public Prosecutions brought Crown appeals against sentences imposed in the District Court. This Court had previously dealt with those appeals and simultaneously issued a guideline judgment on sentencing for offences under section 233B of the Customs Act 1901 (Cth). The respondents then successfully appealed to the High Court of Australia, which remitted the matters back to this Court for re-determination.
The High Court's majority had found that guideline judgments could not lawfully be set in connection with Commonwealth offences, and had also disapproved of the "two-stage" or "two-tier" sentencing methodology that the earlier Court of Criminal Appeal decision had applied.
Legal Issues
- Whether the sentences imposed in the District Court were manifestly inadequate, following remittal from the High Court
- What sentencing methodology was required in light of the High Court's rejection of the "two-stage" approach and its endorsement of "instinctive synthesis"
- What weight should be given to triple jeopardy (the respondents having faced sentencing on three separate occasions) and to changes in the respondents' personal circumstances during the intervening period
Decision
The Court applied the principles endorsed by the High Court majority, particularly the joint judgment of Gaudron, Gummow and Hayne JJ in Wong & Leung v The Queen. That judgment held that sentencing must involve an "instinctive synthesis" of all relevant factors, producing a single result that reflects the full range of competing and contradictory considerations. Assigning specific numerical or proportionate weight to individual factors in a sequential or mathematical way was confirmed to be wrong in principle.
Sully J, with whom Wood CJ at CL and Greg James J agreed, found that the District Court sentences were manifestly inadequate given the seriousness of the offending. The respondents occupied a significant role in a sophisticated commercial heroin importation, and the Courts had long emphasised the need for severe deterrent sentences in such cases. A head sentence of 14 years was considered appropriate.
The Court also addressed the respondents' position with care. Having been brought before a sentencing court for a third time through no fault of their own, and after approximately three years and nine months had elapsed since first sentenced, the respondents were entitled to some allowance for triple jeopardy. Both respondents had also made reasonable progress in custody as good prisoners. These factors were taken into account not by reducing the head sentence, but by moderating the increase to the non-parole period, which was fixed at 8 years rather than the 9 years that might otherwise have applied.
Orders Made
- In each case, the Crown appeal was allowed and the sentence passed in the District Court was quashed.
- Each respondent was sentenced to imprisonment for 14 years, commencing 8 November 1997 and expiring 7 November 2011.
- A non-parole period of 8 years was set, commencing 8 November 1997 and expiring 7 November 2005.
Key Takeaways
- The Court of Criminal Appeal confirmed, applying the High Court's decision in Wong & Leung v The Queen, that a "two-stage" or "two-tier" approach to sentencing Commonwealth offences is wrong in principle and must not be adopted.
- Sentencing requires an "instinctive synthesis": the sentencer must weigh all relevant factors together and arrive at a single sentence, rather than assigning discrete numerical weight to individual considerations in sequence.
- Guideline judgments issued by intermediate appellate courts cannot lawfully govern sentencing for Commonwealth offences, following the High Court's majority ruling.
- Where a respondent faces resentencing for a third time through no fault of their own, and a significant period has elapsed since first sentenced, the principle of triple jeopardy warrants some reduction in the severity of the revised sentence, even where the original sentence was inadequate.
- In cases involving large-scale commercial heroin importation, the imperative of general deterrence carries significant weight, and the head sentence should reflect that purpose firmly.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), section 233B
Cases:
- Wong & Leung v The Queen (2001) 185 ALR 233 (High Court of Australia)
- R v Thomson (referenced in the High Court's joint judgment, cited in the decision text)
- AB v R (referenced in the High Court's joint judgment)
- R v Gallagher (referenced in the High Court's joint judgment)