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Court of Criminal Appeal 9 August 2002

R v Auv

[2002] NSWCCA 375

Drugs
IMPORTATION OF ILLEGAL SUBSTANCE S 23B(1)(B) CUSTOMS ACT 1901 WHETHER THE NON APPEAL ALLOWED.

Citation: R v Auv [2002] NSWCCA 375
Court: NSW Court of Criminal Appeal
Date: 9 August 2002
Judge(s): Meagher JA, Simpson J, Howie J

Background

The appellant pleaded guilty in the Local Court to importing a traffickable quantity of heroin under the Customs Act 1901, with the Crown acknowledging the plea was entered at the earliest practical opportunity. He was 23 years old, an Australian citizen, and had no adult criminal history. The heroin in question weighed 242.2 grams at 71% purity, with a street value of approximately $275,000, representing more than 120 times the trafficable quantity defined under the Act.

Following committal to the Sydney District Court for sentence, Luland DCJ sentenced the appellant to 8.5 years imprisonment with a non-parole period of 6 years. The appellant had also provided accurate and reliable confidential assistance to Australian Police in August 2001, identifying another person involved in heroin importation from Cambodia.

The appellant sought leave to appeal, arguing the head sentence was manifestly excessive and that the non-parole period represented an excessive proportion of the total sentence.

  • Whether the head sentence of 8.5 years was manifestly excessive in all the circumstances
  • Whether the non-parole period of 6 years (approximately 70.5% of the total sentence) fell outside the accepted range and thereby reflected error in the exercise of sentencing discretion

Decision

On the first ground, the judges divided. Meagher JA considered the head sentence was within the sentencing judge's discretion, describing it as perhaps a little heavy but not appealable. However, Simpson J and Howie J, forming the majority, found the head sentence was manifestly excessive when the appellant's confidential assistance, the specific circumstances of the importation, and his prior good character were weighed together.

On the second ground, a similar division emerged regarding the non-parole period. Meagher JA held there was no immutable rule requiring a non-parole period to fall within the 60 to 66.67 percent range of the head sentence, citing authority that percentages as high as 75% had been upheld. He found no miscarriage of discretion.

Howie J, joined by Simpson J, took a different view. While acknowledging the absence of any identifiable error of fact or law in the sentencing remarks, Howie J observed that an established sentencing practice in New South Wales treats the 60 to 66.67 percent band as the expected range for non-parole periods. Where a sentencing judge departs from that range, the judgment should explain why. In this case, the sentencing judge appeared to have given undue weight to a juvenile prior offence, about which the Crown had adduced no evidence of substance. That factor should not have supported a non-parole period so far outside the accepted range.

The majority (Simpson J and Howie J) allowed the appeal and re-sentenced the appellant to 7.5 years imprisonment with a non-parole period of 5 years, a ratio of exactly 66.67 percent.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • In lieu of the sentence imposed below, the appellant sentenced to imprisonment for 7.5 years with a non-parole period of 5 years

Key Takeaways

  • A majority of the Court of Criminal Appeal found that confidential assistance to police, combined with prior good character and the particular circumstances of the offence, can render an otherwise defensible head sentence manifestly excessive on appeal.
  • An established practice exists in New South Wales sentencing that non-parole periods generally fall within 60 to 66.67 percent of the total sentence; departures from that range are expected to be explained in the sentencing remarks.
  • No immutable legal rule fixes the non-parole period to that percentage band, and the Court confirmed prior authority that a ratio as high as 75% can be justified in appropriate cases.
  • Giving significant weight to a juvenile prior offence, without evidence of its nature before the sentencing court, was identified by Howie J as a contributing error in fixing an unduly long non-parole period.
  • The three judges divided on both grounds of appeal, with the majority view on each prevailing to reduce both the head sentence and the non-parole period.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 23B(1)(b)

Cases:
- R v Stitt (1998) 102 A Crim R 428
- R v Reuben Sweet [2001] NSWCCA 445