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Court of Criminal Appeal 13 June 2002

Regina v James Gey-Houn Ra

[2002] NSWCCA 251

Also reported as (2002) 131 A Crim R 133
Drugs
SENTENCE APPEAL DRUG IMPORTATION HEROIN MORE THAN COMMERCIAL QUANTITY APPLICANT MORE THAN MERE COURIER PLEA OF GUILTY

Citation: Regina v James Gey-Houn Ra [2002] NSWCCA 251
Court: New South Wales Court of Criminal Appeal
Date: 13 June 2002
Judge(s): Spigelman CJ, O'Keefe J, Simpson J

Background

The applicant pleaded guilty in the District Court to knowingly being concerned in the importation of heroin into Australia. The importation involved a gross weight of ten kilograms, containing approximately 5.689 kilograms of pure heroin concealed inside ornamental stone columns shipped from Hong Kong, with a street value exceeding $11 million Australian. The commercial quantity threshold for heroin is 1.5 kilograms, meaning the amount imported exceeded that threshold by more than five times.

Judge Freeman of the District Court sentenced the applicant to fifteen years imprisonment with a non-parole period of ten years. The evidence, drawn from electronic surveillance and intercepted telephone calls, showed that the applicant had arranged the importation under a pseudonym, used code words, attempted to interpose intermediaries to distance himself from the delivery, and personally supervised the extraction of the drugs from the columns. When surveillance recordings captured him during the extraction process, he described the physical work as beneath him and a task for others.

The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence was manifestly excessive and that the sentencing judge had made errors in the process leading to it.

  • Whether the sentencing judge erred in finding the applicant fell outside the category of offender contemplated by the guideline judgment in R v Wong and Leung (1998)
  • Whether the applicant should have been treated as analogous to a mere courier, or something close to it
  • Whether insufficient weight was given to the utilitarian benefit of the applicant's guilty plea
  • Whether the sentence of fifteen years with a ten-year non-parole period was manifestly excessive

Decision

On the question of the applicant's role, the Court confirmed that the sentencing judge was correct to find the applicant was more than a mere courier. The surveillance evidence demonstrated that he had a supervisory or managerial function, used a pseudonym and code words, sought to interpose intermediaries between himself and the delivery, and regarded the physical extraction of drugs as work for subordinates. The Court held it was not necessary to identify the precise nature of the applicant's involvement in the criminal enterprise; what mattered was that his role was plainly beyond that of a simple courier.

On the guilty plea discount, the Court accepted that the degree of mitigation available for a plea of guilty may vary with the circumstances of a particular case, drawing on Siganto v The Queen (1998) 194 CLR 656. The one-third discount applied by the sentencing judge, which accounted for the absence of remissions under the Commonwealth sentencing regime, was found to be appropriate in the circumstances.

Regarding the comparison with Wong and Leung, the Court rejected the applicant's detailed side-by-side analysis of the two cases. It noted that the sentences in Wong and Leung had been imposed against a background of triple jeopardy, making direct comparison unhelpful. More broadly, the Court affirmed the principle drawn from R v Olbrich (1999) 199 CLR 270: a sentencing judge's task is to determine the sentence appropriate to the particular offender in the particular case, not to derive a result from detailed comparative analysis of different cases.

Having found no error in the sentencing process and no manifest excess, the Court dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that it is not necessary for a sentencing judge to identify the precise nature of an offender's role in a drug importation conspiracy; it is sufficient to find that the offender occupied a role beyond that of a mere courier.
  • Detailed, line-by-line comparison of a sentence under appeal with the sentences imposed in a different case is not an appropriate method of testing whether a sentence is manifestly excessive, particularly where the other case involved materially different sentencing circumstances such as triple jeopardy.
  • Under the Commonwealth sentencing regime, the utilitarian discount available for a plea of guilty is not fixed and may vary according to the circumstances in which the plea is entered, consistent with Siganto v The Queen (1998) 194 CLR 656.
  • A one-third sentencing adjustment under s 16G of the Crimes Act 1914 (Cth), applied because of the absence of remissions in the relevant prison system, was confirmed as appropriate in the circumstances of this case.
  • No error was established in the sentencing judge's approach, and a head sentence of fifteen years with a ten-year non-parole period for importation of heroin at more than five times the commercial quantity, by an offender with a supervisory role, was held not to be manifestly excessive.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16G

Cases
- Regina v Wong and Leung (1998) 48 NSWLR 340
- Regina v Wong and Leung [2000] NSWCCA 169
- Wong v The Queen; Leung v The Queen (2001) HCA 67; (2001) 76 ALJR 79
- Queen v Olbrich (1999) 199 CLR 270
- R v Gallagher (1991) 23 NSWLR 220
- Siganto v The Queen (1998) 194 CLR 656