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14
Court of Criminal Appeal 13 October 2004

Regina v Bezan

[2004] NSWCCA 342

Also reported as 147 A Crim R 430
Drugs
CRIMINAL LAW CROWN APPEAL IMPORT TRAFFICABLE QUANTITY OF HEROIN PLEA OF NOT GUILTY APPEAL ALLOWED.

Citation: Regina v Bezan [2004] NSWCCA 342
Court: NSW Court of Criminal Appeal
Date: 13 October 2004
Judge(s): Wood CJ at CL; Buddin J; Shaw J

Background

The respondent, an Australian citizen originally from Iran, arrived at Sydney Airport in August 2003 carrying a marble chessboard packed with approximately 490 grams of brown powder, later confirmed as heroin at 53% purity with a net pure weight of 260 grams. Customs officers detected the concealment after noticing cracks in the chessboard and a strong smell of glue. The respondent maintained at trial that he was unaware of the heroin, claiming the chessboard was a gift purchased in Pakistan and that any drugs must have been planted by Iranian authorities seeking to undermine his political activities.

A District Court jury rejected that defence and convicted the respondent after a four-day trial. Judge Hosking SC sentenced him to 5 years and 6 months imprisonment with a non-parole period of 3 years and 3 months, both commencing from the date he was first remanded in custody.

The Crown appealed on the ground of manifest inadequacy, arguing the sentence failed to account properly for the repeal of a federal sentencing provision and was objectively insufficient for a personal importation of a mid-range trafficable quantity of heroin.

  • Whether the sentencing judge gave proper effect to the repeal of section 16G of the Crimes Act 1914 (Cth), which had previously required a sentencing discount for federal offenders in states without remission systems.
  • Whether the sentence imposed was manifestly inadequate having regard to the objective seriousness of personally importing a trafficable quantity of heroin.
  • What weight should be given to comparable sentences in like cases and the role of general deterrence in this category of offence.

Decision

Section 16G of the Crimes Act 1914 (Cth) had required courts sentencing federal offenders in jurisdictions without remission systems (including NSW) to apply a discount so that effective time served was comparable to that in states with remissions. That provision was repealed in January 2003, several months before the offence was committed. The Court found the sentencing judge did not adequately account for the consequence of that repeal: the earlier sentencing statistics and case authorities the judge relied upon had all been decided when section 16G was still operative, meaning the referenced range was lower than the post-repeal range properly applicable.

On objective seriousness, the Court accepted the sentencing judge's characterisation of the offence as "very serious indeed." The quantity, while towards the lower end of the trafficable range, was well within it, and the potential street value was substantial. The respondent personally carried the drugs through customs, which placed him in a more serious category than a courier who merely facilitated importation at a distance.

The Court acknowledged several mitigating factors: the importation had an "amateurish" quality, the respondent had no prior criminal history, he was of good character, he had suffered genuine hardship in Iran because of his political beliefs, he faced separation from his son, and his limited English was likely to cause additional hardship in custody. These factors were taken into account in calibrating the substituted sentence to the least that could properly have been imposed at first instance.

Notwithstanding those mitigating circumstances, the Court concluded the original sentence fell well short of what was appropriate and that the sentencing judge had also failed to give adequate weight to general deterrence, which authorities confirm is a significant consideration in heroin importation cases.

Orders Made

  • Crown appeal allowed.
  • Sentence below set aside.
  • Respondent sentenced to imprisonment for 8 years, commencing 24 August 2003 and expiring 23 August 2011.
  • Non-parole period of 5 years set, commencing 24 August 2003 and expiring 23 August 2008, that date being the earliest parole release eligibility date.

Key Takeaways

  • The repeal of section 16G of the Crimes Act 1914 (Cth), effective January 2003, removed the sentencing discount previously applied to federal offenders in NSW. Sentences imposed after that date should not simply track pre-repeal statistics or case authorities without accounting for the higher applicable range.
  • Where a sentencing judge relies on statistics and precedents drawn entirely from the period when section 16G was operative, without adjusting for its repeal, that reliance can constitute error warranting appellate intervention.
  • General deterrence carries significant weight in heroin importation cases and must be reflected in the sentence, regardless of mitigating personal circumstances.
  • A respondent who personally carries narcotics through customs occupies a more serious role than one who facilitates importation indirectly, and that distinction affects the appropriate sentencing range.
  • In substituting a sentence on a Crown appeal, the Court of Criminal Appeal applies the principle that the substituted sentence should be the least that could properly have been imposed at first instance, not the sentence the appellate court would itself have imposed from scratch.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Crimes Act 1914 (Cth), s 16G (repealed)
- Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth)

Cases:
- Wong v The Queen (2001) 207 CLR 584
- Regina v Wong and Leung (1999) 48 NSWLR 340
- R v Wong and Ng (1988) 39 A Crim R 1
- R v Saxon (1996) 86 A Crim R 353
- R v Bavadra (2000) 115 A Crim R 152
- R v Pont (2000) 121 A Crim R 302
- R v El Karhani (1990) 51 A Crim R 123
- R v Whyte (2002) 55 NSWLR 252
- Everett v The Queen (1994) 181 CLR 295
- Olbrich v The Queen (1999) 73 ALJR 1550
- Griffiths v The Queen (1977) 137 CLR 293
- R v Dujeu [2004] NSWCCA 164
- R v Studenikin [2004] NSWCCA 164
- R v Kevenaar [2004] NSWCCA 210
- R v Mas Rivadavia [2004] NSWCCA 284
- R v Quoc Phang Dang [2004] NSWCCA 265
- R v Van Ich Dang [2004] NSWCCA 269
- R v Laurentiu and Becheru (1992) 63 A Crim R 402
- R v Maclay (1990) 19 NSWLR 112