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Court of Criminal Appeal 19 November 2002

R v Tanudjaja

[2002] NSWCCA 467

Drugs
S 16A (M) OF THE CRIMES ACT 1914 LEAVE TO APPEAL ALLOWED APPEAL DISMISSED.

Citation: R v Tanudjaja [2002] NSWCCA 467
Court: NSW Court of Criminal Appeal
Date: 19 November 2002
Judge(s): Meagher JA; Wood CJ at CL; Greg James J

Background

The appellant was convicted of importing a prohibited substance under s 233B of the Customs Act 1901 after 489 grams of heroin (344 grams pure, with an estimated street value of $244,000) was found on her person at Sydney Airport upon her arrival from Indonesia on 24 September 2001. She pleaded guilty to the offence.

The sentencing judge in the District Court imposed a head sentence of six years' imprisonment, commencing on 24 September 2001, with a non-parole period of three years. The sentencing judge made several findings in the appellant's favour, including that she had been motivated by financial need ($2,300 in commercial benefit), demonstrated genuine remorse, was a model prisoner, and suffered from severe depression requiring psychiatric treatment.

The appellant sought leave to appeal against the head sentence, arguing it did not adequately reflect her subjective circumstances as required under s 16A(m) of the Crimes Act 1914 (Cth). Her counsel conceded, however, that the non-parole period itself was appropriately reflective of those circumstances.

  • Whether the head sentence of six years adequately reflected the appellant's subjective circumstances, including her depression, family background, cultural background, and personal history, as required by s 16A(m) of the Crimes Act 1914 (Cth).
  • Whether the sentencing judge erred by failing to give sufficient weight to the appellant's mental health condition when fixing the head sentence.

Decision

The Court of Criminal Appeal unanimously rejected the appeal. Meagher JA, delivering the leading judgment, found it impossible to follow the argument that the head sentence failed to account for s 16A(m) considerations. The sentencing judge had expressly made findings regarding the appellant's remorse, conduct in custody, financial motivation, and psychiatric condition, and had demonstrably taken all of these factors into account.

Meagher JA noted that the depression arose after the appellant's imprisonment and bore no causal connection to the commission of the offence. On that basis, its weight as a mitigating factor was limited. His Honour added that the sentencing judge's approach was, if anything, generous: the non-parole period represented fifty per cent of the head sentence, whereas a more typical ratio would be approximately sixty-five per cent.

The Court characterised the original sentence as one of "remarkable leniency," with the head sentence sitting in the middle of the applicable range and the non-parole period reflecting a substantial concession to the appellant's circumstances. No error in the exercise of the sentencing discretion was identified.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 16A(m) of the Crimes Act 1914 (Cth), a sentencing court must take into account matters such as the offender's character, cultural background, age, and physical or mental condition; the Court of Criminal Appeal confirmed that compliance with this provision is assessed by examining whether the sentencing judge actually turned their mind to the relevant factors, not by the mathematical weight assigned to each.
  • A mental health condition arising after the commission of the offence, and bearing no causal connection to it, carries limited mitigating weight when fixing a head sentence.
  • In dismissing the appeal, the Court observed that the non-parole period was set at fifty per cent of the head sentence, well below what Meagher JA described as a more typical sixty-five per cent, indicating that the appellant had already received a generous discount.
  • No error is established merely because an appellant's counsel concedes the non-parole period is appropriate but argues the head sentence is excessive: the appellant must point to a specific failure in the sentencing exercise.
  • Sufficient subjective circumstances, including remorse, good conduct in custody, financial motivation, and psychiatric condition, had all been expressly identified and weighed by the sentencing judge, leaving no viable ground for appellate intervention.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B (importation of prohibited substances)
- Crimes Act 1914 (Cth), s 16A (matters to be taken into account in sentencing for Commonwealth offences), particularly s 16A(m) (character, antecedents, cultural background, age, means, and physical or mental condition)

Cases cited: No cases were cited in the judgment.