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11
Court of Criminal Appeal 1 September 2004

Regina v Prasad

[2004] NSWCCA 293

Also reported as 147 A Crim R 385
Drugs
CRIMINAL LAW WHETHER SENTENCE INADEQUATE.

Citation: Regina v Prasad [2004] NSWCCA 293
Court: Court of Criminal Appeal, New South Wales
Date: 1 September 2004
Judge(s): Wood CJ at CL; Hidden J; Smart AJ

Background

The respondent was convicted at trial in the District Court of being knowingly concerned in the importation of a commercial quantity of ecstasy into Australia, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The offence carried a maximum penalty of life imprisonment and a fine of up to $750,000. The importation involved 480,000 ecstasy tablets hidden in freezer panels inside a shipping container that had arrived from Antwerp, with the pure ecstasy weighing 34.401 kilograms and the consignment valued at between $7.2 million and $12 million wholesale.

The respondent had agreed to participate in the scheme while his business was in serious financial difficulty. He stood to receive $50,000 and have a $100,000 debt to one of the organisers forgiven. His role included insulating co-offenders from direct contact with the consignment, ensuring its clearance through customs, engaging a business associate (Shepherd) to assist, and passing on relevant documents.

Acting Judge Andrew sentenced the respondent to 14 years imprisonment with a non-parole period of 8 years and 8 months. The Crown appealed, contending the sentence was inadequate. Two co-offenders provided comparative context: Shepherd had received 14 years with a non-parole period of 9 years (after a guilty plea and assistance were taken into account), while El-Hani, found to have had a central role, received 15 years with a non-parole period of 10 years.

  • Whether the sentence of 14 years imprisonment with a non-parole period of 8 years and 8 months was manifestly inadequate for the offence of importing a commercial quantity of ecstasy.
  • Whether the sentencing judge properly assessed the respondent's objective criminality, including his role relative to co-offenders.
  • Whether general deterrence and the available maximum penalty were adequately reflected in the sentence.
  • Whether, even if error were established, the Court of Criminal Appeal should exercise its discretion to dismiss the Crown appeal rather than resentence.

Decision

The Court accepted that the respondent had played an active and important role in the importation. That role included coordinating between other participants, preventing co-offenders from having direct contact with the consignment, engaging Shepherd, and ensuring customs clearance. While the Crown argued the respondent's role equalled or exceeded Shepherd's, the Court rejected that submission. Shepherd had performed substantial additional work, including forging entry documents and arranging collection, transfer, and storage of the container.

Wood CJ at CL found that the sentencing judge had carefully addressed the respondent's favourable subjective circumstances, including a low likelihood of reoffending, and had properly applied the relevant sentencing considerations under s 16A(2) of the Crimes Act 1914 (Cth). Nevertheless, taking into account the very large scale of the importation and the respondent's role, the starting point and resulting sentence fell outside a legitimate sentencing range and were unduly lenient. General deterrence had not been adequately reflected, nor had the significance of the maximum available penalty.

Wood CJ at CL considered that a proper sentence would have been in the order of 17 years imprisonment with a non-parole period of 11 years and 2 months. However, the Court applied the established principles governing Crown appeals: demonstrable error must be shown and, where the Court does intervene, it imposes the least sentence that could properly have been imposed at first instance. The Court also exercised the residual discretion that applies specifically to Crown appeals.

Despite finding manifest leniency amounting to error, the Court exercised its discretion to dismiss the appeal. Hidden J and Smart AJ agreed with Wood CJ at CL without adding separate reasons.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a finding of manifest leniency does not automatically result in resentencing; a separate discretion applies to Crown appeals, and courts will impose only the least sentence properly available if they do intervene.
  • A Crown appeal will only succeed where the sentence falls so far outside the permissible range of sentencing discretion as to demonstrate error, applying the standard in Cranssen v The Queen (1936) 55 CLR 509 and related authorities.
  • General deterrence carries particular weight in commercial drug importation cases, and sentencing courts must ensure that both the deterrence factor and the significance of the available maximum penalty are meaningfully reflected in the outcome.
  • Comparative sentences imposed on co-offenders are relevant context but are not determinative; the Court independently assessed the respondent's role against the full range of sentencing statistics and case law.
  • Where a co-offender performed substantial additional criminal work (here, forging documents and organising logistics), a sentencing court is entitled to distinguish between their respective roles even where both defendants sought financial gain from the enterprise.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Act 1914 (Cth), s 16A(2)

Cases:
- Cranssen v The Queen (1936) 55 CLR 509
- Olbrich v The Queen (1999) 199 CLR 270
- Wong and Leung v The Queen (2002) 185 ALR 233
- R v Wall [2002] NSWCCA 42
- R v Allpass (1994) 72 A Crim R 561
- R v Hayes (1987) 29 A Crim R 452
- R v Budiman (1998) 102 A Crim R 411
- R v Benais [1999] NSWCCA 236
- R v Bimahendali (1999) 109 A Crim R 355
- R v Simon [2003] NSWCCA 147
- R v Rose (NSWCCA, 23 May 1996)
- R v Howland [1999] NSWCCA 10
- R v Ceissman [2001] NSWCCA 73
- R v El-Hani [2004] NSWCCA 162
- R v Shepherd [2003] NSWCCA 287
- R v Studenikin [2004] NSWCCA 164
- R v Kevenaar [2004] NSWCCA 210
- R v Mas Rivadavia [2004] NSWCCA 284
- R v Dujeu [2004] NSWCCA 237
- R v Gutteriez [2004] NSWCCA 22
- R v Chan [2002] 128 A Crim R 119