AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 28 July 2004

R v Quoc Phong Dang

[2004] NSWCCA 265

Drugs
TRAFFICABLE QUANTITY OF HEROIN WHETHER HEAD SENTENCE AND NON PAROLE PERIOD MANIFESTLY EXCESSIVE.

Citation: Quoc Phong Dang v R [2004] NSWCCA 265
Court: New South Wales Court of Criminal Appeal
Date: 28 July 2004
Judge(s): Spigelman CJ, Hidden J, Buddin J

Background

The appellant was a Vietnamese national who had come to Australia on a student visa in 1996. In September 2001, Customs officers intercepted a package sent to him from Vietnam containing approximately 92 grams of pure heroin concealed inside hardcover books. The package was reconstructed with an inert substitute and delivered to his home unit in September 2002, where police found it had been opened, the bags removed, electronic scales discarded from the balcony, and $10,500 in cash in a wardrobe.

The appellant pleaded guilty in the District Court to attempting to possess prohibited imports, namely a trafficable quantity of heroin, an offence under the Customs Act 1901 (Cth) carrying a maximum of 25 years' imprisonment. Judge Dodd DCJ sentenced him to seven and a half years' imprisonment with a non-parole period of five years. The sentencing judge applied a 25 per cent discount for the early guilty plea and noted the appellant's remorse, his difficult custodial circumstances due to limited English, and his conduct in custody.

The appellant sought leave to appeal on the ground that both the head sentence and the non-parole period were manifestly excessive.

  • Whether the head sentence of seven and a half years was manifestly excessive for an offence of attempting to possess a trafficable quantity of heroin
  • Whether the non-parole period of five years was manifestly excessive
  • Whether the Court should revisit its recent decisions holding that pre-repeal sentencing patterns under s 16G of the Crimes Act 1914 (Cth) could no longer be relied upon without adjustment
  • Whether the established practice of setting non-parole periods at approximately two-thirds of the head sentence required reconsideration following the abolition of s 16G

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. Hidden J, with whom Spigelman CJ and Buddin J agreed, declined to treat this case as a vehicle for reconsidering the recent decisions in Studenikin and Kevenaar, both of which held that pre-amendment sentencing patterns could no longer be applied without appropriate adjustment following the repeal of s 16G.

Critically, the Court found it unnecessary to resolve that broader question, because even applying the pre-amendment tariff the sentence could not be characterised as manifestly excessive. The guideline established in R v Wong and Leung (1999) specified a range of five to seven years for couriers and those low in the importing hierarchy dealing with low-level trafficable quantities. However, the sentencing judge had placed the appellant significantly above that level, finding that his role was not readily distinguishable from that of a dealer. That finding elevated the applicable sentencing range beyond the guideline's lower band.

On the non-parole period, the Court accepted that the two-thirds proportion is only a starting point and that each case must be assessed on its own circumstances. Nonetheless, given the sentencing judge's findings about the appellant's role, his prior relevant conviction for failing to report excess currency committed only a month before this offence, and the need for the non-parole period to reflect retribution and deterrence, the Court was not persuaded that intervention was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the sentencing guideline in R v Wong and Leung for trafficable quantities of heroin is expressed to apply to couriers and those low in the importing hierarchy; where a sentencing judge finds a higher level of criminality, the guideline range does not govern without adjustment.
  • Sufficient grounds existed to distinguish the appellant from a mere courier, based on the cash found, the discarded scales, and the sentencing judge's finding that his role resembled that of a dealer.
  • In dismissing the appeal, the Court left open the question of whether the post-repeal decisions in Studenikin and Kevenaar should be reconsidered, finding it unnecessary to resolve that issue on the facts.
  • A non-parole period of approximately two-thirds of the head sentence is no more than a prima facie starting point; the appropriate proportion depends on the individual circumstances of each case, including the nature of the offending and considerations of retribution and deterrence.
  • A prior conviction for failing to report excess currency, committed shortly before the principal offending, was treated as a relevant aggravating factor in assessing the proportionality of the non-parole period.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(c)
- Crimes Act 1914 (Cth), s 16G (since repealed)
- Financial Transaction Reports Act 1988 (Cth)

Cases:
- R v Wong and Leung (1999) 48 NSWLR 340
- R v Studenikin [2004] NSWCCA 164
- R v Kevenaar & Ors [2004] NSWCCA 210
- Bugmy v The Queen (1990) 169 CLR 505