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24
Court of Criminal Appeal 4 December 2003

R v STANBOULI

[2003] NSWCCA 355

Also reported as (2003) 141 A Crim R 531
Drugs

Citation: R v Stanbouli [2003] NSWCCA 355
Court: NSW Court of Criminal Appeal
Date: 4 December 2003
Judge(s): Spigelman CJ, Hulme J, Carruthers AJ

Background

The respondent, a licensed customs broker and freight forwarding employee, pleaded guilty to conspiring with others to import a commercial quantity of heroin into Australia between July 1998 and April 2000. His position gave him unique access to information about shipments passing through customs, which he used to facilitate the scheme and shield co-conspirators from detection. He received approximately $200,000 for his participation, with the total quantity of pure heroin imported estimated by police at around 375 kilograms across at least 23 consignments.

The respondent had provided induced statements to police following the arrest of co-conspirators, but those statements were a mixture of lies and truths. He also gave untruthful evidence at committal proceedings. Although his misleading statements ultimately contributed to co-conspirators pleading guilty, the sentencing judge found the respondent's plea lacked genuine contrition and was not made at the earliest opportunity.

In the District Court, Judge Shadbolt sentenced the respondent to 13 years and 6 months imprisonment, including a non-parole period of 10 years. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the head sentence of 13 years and 6 months was manifestly inadequate for a conspiracy to import approximately 375 kilograms of heroin
  • The appropriate discounts to apply for the guilty plea and the respondent's assistance to authorities
  • The appropriate non-parole period, having regard to subjective factors including the likelihood of the respondent serving the entire sentence in protective custody
  • Whether life imprisonment should be treated as the norm for those who provide important assistance in large-scale heroin importations, or whether that standard should be reserved for those at the very top of the importation hierarchy

Decision

The Court of Criminal Appeal unanimously allowed the Crown appeal and quashed the sentences imposed in the District Court. All three judges agreed that the appropriate starting point, before applying any discount, was a head sentence of 27 years after adjustment under section 16G of the Crimes Act (Cth), which reduces federal sentences to account for the absence of remissions. The trial judge had also used 27 years as a starting point but arrived at a substantially lower outcome through the discounts he applied.

Hulme J, with whose general reasoning the other judges agreed, concluded that the 25 percent discount allowed by the sentencing judge was too generous in all the circumstances, given the respondent's lack of genuine contrition, his untruthful statements, and his conduct at sentencing. The appropriate discount was assessed at 30 percent, including 15 percent for the plea and 15 percent for assistance, producing a head sentence of 19 years.

On the non-parole period, Carruthers AJ proposed a period of 12 years, one year less than the 13 years proposed by Hulme J. That shorter period was preferred by Spigelman CJ. The relevant subjective factors included the respondent's age, good work history, rehabilitation prospects, and the significant likelihood that he would serve the entirety of his sentence in protective custody, which courts have recognised as a materially harsher custodial experience.

All three judges agreed that life imprisonment should be reserved as the norm for offenders at the very top of the importation hierarchy, not simply for those who provide important assistance. Hulme J's draft judgment had suggested otherwise, and both Spigelman CJ and Carruthers AJ expressly clarified the position on this point.

Orders Made

  • Crown appeal allowed
  • Sentences imposed by Shadbolt DCJ quashed
  • In lieu thereof, the respondent sentenced to imprisonment for 19 years, commencing 27 July 2001 and expiring 26 July 2020, with a non-parole period of 12 years commencing 27 July 2001 and expiring 26 July 2013
  • The respondent's solicitor directed to explain the sentence and the purpose and consequences of the non-parole period, as required by section 16F of the Crimes Act (Cth)

Key Takeaways

  • A sentence of 13 years and 6 months for a significant role in importing approximately 375 kilograms of heroin was found to be manifestly inadequate, warranting intervention by the Court of Criminal Appeal.
  • Life imprisonment as a sentencing norm applies to offenders at the apex of an importation hierarchy; it does not automatically extend to those who play an important but subordinate supporting role.
  • Where an offender is likely to serve the entirety of a sentence in protective custody, that circumstance is a relevant and significant factor in setting the non-parole period, with appellate authority recognising protective custody as a substantially harsher form of imprisonment.
  • Induced statements that contain a mixture of lies and truths, and that are accompanied by untruthful evidence at committal, attract only limited weight as assistance to authorities when determining sentence discounts.
  • Under section 16G of the Crimes Act (Cth), federal sentences are adjusted downward to account for the absence of remissions available under state regimes, a step that must be taken before applying any further discount for plea or co-operation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16F, 16G

Cases
- R v Pang (1999) 105 A Crim R 474
- Davies and Gorman (1978) 69 Cr App R 319
- R v Cartwright (1989) 17 NSWLR 243
- R v Astill (No 2) 64 A Crim R 289
- AB v The Queen (1999) 198 CLR 111