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Court of Criminal Appeal 30 July 2004

Regina v Dang

[2004] NSWCCA 269

Drugs
REPEAL OF S16G CRIMES ACT (CTH)

Citation: Regina v Dang [2004] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 30 July 2004
Judge(s): Spigelman CJ, Hidden J, Buddin J

Background

The applicant, a Vietnamese-born Australian resident, was arrested in November 2002 upon returning to Sydney from Vietnam with approximately 218.6 grams of pure heroin concealed in his shoes. He pleaded guilty in the District Court to importing a trafficable quantity of heroin under s 233B(1)(b) of the Customs Act 1901 (Cth), an offence carrying a maximum of 25 years imprisonment.

The sentencing judge at first instance found the applicant had acted as a courier, accepted his explanation that the offence was motivated by a desire to fund medical treatment for a seriously ill nephew, and found him genuinely remorseful. Bell DCJ imposed a sentence of six and a half years imprisonment with a non-parole period of four years and four months.

The applicant sought leave to appeal, arguing that the sentencing judge had erred in the approach taken to calculating an appropriate starting point following the repeal of s 16G of the Crimes Act 1914 (Cth), a provision that had previously required federal sentences served in state prisons to be reduced to reflect the absence of remissions.

  • Whether the sentencing judge erred by adopting an impermissibly mathematical approach when adjusting the starting point to account for the repeal of s 16G of the Crimes Act 1914 (Cth)
  • Whether the method of translating a pre-repeal starting point of eight years to a post-repeal figure of twelve years (a 50% increase) was consistent with applicable authority
  • Whether the combined 50% discount applied for the guilty plea and assistance to authorities was appropriate
  • Whether the sentence of six and a half years was, in any event, excessive

Decision

The applicant's primary argument was that the sentencing judge had approached the s 16G adjustment in a mechanical, mathematical way rather than attending to the merits of the individual case. Hidden J, who delivered the leading judgment, rejected this submission. His Honour found nothing in the sentencing remarks to suggest the judge had applied a purely arithmetic exercise without regard to the circumstances, and the approach taken was consistent with the Court of Criminal Appeal's decisions in R v Studenikin and R v Kevenaar, which confirmed that an adjustment in the order of 50% would generally be appropriate.

Counsel for the applicant realistically conceded that this point was the foundation of the appeal and acknowledged that, even under the former s 16G regime, the sentence actually imposed could not be characterised as manifestly excessive. Hidden J observed that the combined 50% discount for both the guilty plea and the applicant's co-operation with authorities was, frankly, overly generous, noting some overlap between those two mitigating factors and referring to the approach recently discussed in The Queen v El-Hani.

Notwithstanding the generosity of the discount, the Court was not persuaded that any other sentence was warranted in law and ought to have been passed, applying s 6(3) of the Criminal Appeal Act 1912 (NSW). Leave to appeal was granted given the recency of the s 16G repeal, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, following the repeal of s 16G of the Crimes Act 1914 (Cth), a sentencing adjustment in the order of 50% from the pre-repeal starting point will generally be appropriate, consistent with the approach in R v Kevenaar and R v Studenikin.
  • No error was established simply because a sentencing judge arrived at an adjusted figure that happened to correspond to a 50% increase, provided the judge engaged with the merits of the case rather than applying a purely mechanical formula.
  • A combined discount of 50% for both a guilty plea and assistance to authorities was characterised as overly generous, particularly where there is overlap between those two mitigating considerations.
  • In dismissing the appeal, the Court applied s 6(3) of the Criminal Appeal Act 1912 (NSW), which requires the appellate court to be satisfied that a different sentence was warranted in law before intervening, even where an error in the sentencing process is identified.
  • Under s 233B(1)(b) of the Customs Act 1901 (Cth), a courier role, genuine remorse, a guilty plea, and co-operation with authorities can collectively attract substantial mitigation, but the overall sentence must still reflect the objective seriousness of importing a significant quantity of heroin.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16G (repealed)
- Customs Act 1901 (Cth), s 233B(1)(b)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Bernier (1998) 102 ACrimR 44
- R v Studenikin [2004] NSWCCA 164
- R v Kevenaar & Ors [2004] NSWCCA 210
- The Queen v El-Hani [2004] NSWCCA 162