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Court of Criminal Appeal 14 June 2002

Regina v LE

[2002] NSWCCA 232

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Regina v LE [2002] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 14 June 2002
Judge(s): Adams J; Blanch AJ

Background

The appellant was convicted in the District Court of knowingly taking part in the supply of a large commercial quantity of heroin, an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985. The offending occurred on 13 April 2000 as part of a sophisticated, well-organised drug trafficking operation involving three co-offenders and an unidentified ringleader known as "Uncle." The transaction involved 2,103.5 grams of heroin (893 grams pure), with an estimated street value of $2.1 million.

The appellant's role on the day included accompanying an undercover operative from her apartment to a nearby street, where the operative was then driven by another person to collect the heroin packages. District Court Judge Payne sentenced the appellant to nine and a half years imprisonment commencing 13 April 2000, with a non-parole period of five years and four months.

The appellant sought leave to appeal against the sentence, arguing primarily that it was disproportionate compared to the sentence imposed on co-offender Nguyen, who received seven and a half years with a four-year non-parole period after entering a guilty plea.

  • Whether the sentence was infected by impermissible disparity when compared with the sentence imposed on co-offender Nguyen
  • Whether the sentencing judge correctly assessed the appellant's role and the objective seriousness of the offending
  • Whether the overall sentence, taking into account subjective circumstances, was manifestly excessive

Decision

The Court rejected the disparity argument. Nguyen received a lesser sentence primarily because he entered a guilty plea, while the appellant proceeded to trial. That distinction, combined with legitimate differences in how a sentencing judge may assess individual culpability, provided a sufficient basis to explain the sentencing differential. No impermissible disparity was established.

Blanch AJ, with whom Adams J agreed, found that the sentencing judge had made a careful and thorough analysis of both the objective features of the offence and the appellant's personal circumstances. The judge had accepted that the appellant's involvement was confined to 13 April 2000 and that her participation was an isolated event. Nonetheless, her role was assessed as active, critical, and important within a sophisticated wholesale drug supply operation.

The Court noted that trafficking in a large commercial quantity of drugs within a sophisticated operation is an offence demanding condign sentences for the purposes of punishment and both specific and general deterrence, citing the earlier Court of Criminal Appeal decision in the co-offender Pham's appeal. The sentence of nine and a half years was considered appropriate for the appellant's level of participation.

Adams J added observations about the broader social harms associated with large-scale drug trafficking, including the corruption and violence that accompany such operations and the burden placed on the general public through drug-related acquisitive crime. These considerations, his Honour noted, justify and require substantial sentences for those who deliberately seek to profit from such conduct.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A difference in sentence between co-offenders does not constitute impermissible disparity where it is explicable by reference to legitimate sentencing factors, such as a guilty plea entered by one offender but not another.
  • Trafficking in a large commercial quantity of heroin within a sophisticated, organised operation attracts condign sentences in NSW, reflecting the imperatives of punishment and both specific and general deterrence.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that a participant's role being limited in time or geographic scope does not necessarily reduce the seriousness of that participation where the role was active and critical to the operation's execution.
  • Subjective circumstances, including family responsibilities and difficulties faced in custody due to limited English, were considered by the sentencing judge but did not outweigh the objective gravity of the offending.
  • Under the Olbrich v The Queen principles, a sentencing judge assessing the relative roles of co-offenders in a complex drug operation is not required to make precise findings where the evidence does not permit them, provided the assessment is otherwise soundly based.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- R v Pham [2001] NSWCCA 307
- Olbrich v The Queen (1999) 73 ALJR 1550
- Lowe v The Queen (1984) 154 CLR 606
- R v Pilley (1991) 56 A Crim R 202
- R v Chan [1999] NSWCCA 103