Citation: [2002] NSWCCA 391
Court: NSW Court of Criminal Appeal
Date: 13 September 2002
Judge(s): Levine J, Hidden J, Howie J
Background
The offender pleaded guilty in the District Court to attempting to obtain possession of a trafficable quantity of cocaine reasonably suspected of having been imported, an offence under s 233B(1)(ca) of the Customs Act 1901 carrying a maximum penalty of 25 years imprisonment. The facts involved the offender arranging for a courier satchel containing approximately 148.8 grams of cocaine (101.8 grams at pure weight) to be delivered to a Campbelltown studio under the pretence that it would contain sheet music.
Customs officers intercepted the satchel, substituted most of the cocaine, and allowed the package to continue to its destination. The offender collected the satchel on 24 October 2000 and attempted to evade police surveillance by driving erratically before losing control of his vehicle and being arrested. Upon arrest, he voluntarily directed officers to where the package was located in his car.
The District Court sentenced the offender to four years and nine months imprisonment with a non-parole period of three years, applying a 25 percent discount for the utilitarian value of the guilty plea and genuine remorse. The offender sought leave to appeal, arguing the sentence was manifestly excessive given his limited role and favourable subjective circumstances.
Legal Issues
- Whether the sentence of four years and nine months was manifestly excessive in light of the offender's limited role as a collector or person low in the importing hierarchy
- Whether the sentencing judge gave adequate weight to the offender's favourable subjective circumstances, including youth, remorse, family support, and good employment history
Decision
The Court of Criminal Appeal accepted that the offender's role was properly analogised to that of a courier or a person low in the hierarchy of an importing organisation. However, Hidden J noted that the offender's role was not purely passive: it was the offender who had arranged the premises used to receive the package, which distinguished his conduct from a simple courier.
The Court considered the sentencing range established in R v Wong & Leung (1999) 48 NSWLR 340. Although that case was subsequently considered by the High Court, Hidden J held that the guidelines in Wong & Leung remained useful because they were grounded in the existing pattern of sentencing at the time. For low-level trafficable quantities involving couriers or offenders low in the importing hierarchy, the applicable range was identified as approximately five to seven years imprisonment.
Against that range, the Court found that a sentence of four years and nine months was not manifestly excessive. The Court acknowledged the sentence was not lenient, but concluded it fell within the range properly available to the sentencing judge in the exercise of her discretion, even after accounting for all of the favourable subjective factors raised on appeal.
All three judges agreed that leave to appeal should be granted but the appeal dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the sentencing guidelines in R v Wong & Leung for offences under s 233B of the Customs Act 1901 remained applicable notwithstanding subsequent High Court consideration of that decision, as those guidelines were based on the established pattern of sentencing.
- For low-level trafficable quantities of cocaine involving couriers or offenders at the lower end of an importing organisation's hierarchy, the sentencing range identified was approximately five to seven years imprisonment.
- A role characterised as "collecting" a drug package is not necessarily treated as minimal where the offender also arranged the premises used to receive the consignment; that additional involvement was a relevant consideration in assessing culpability.
- Favourable subjective factors, including youth, genuine remorse, family support, and a good employment history, did not render a sentence of four years nine months manifestly excessive when the objective seriousness of the offence was appropriately weighed.
- In dismissing the appeal, the Court reinforced the broad sentencing discretion available to a trial judge where a sentence, though not lenient, falls within an available range.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B(1)(ca)
Cases:
- R v Wong & Leung (1999) 48 NSWLR 340