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Court of Criminal Appeal 11 February 2005

Regina v J & H

[2005] NSWCCA 1

Also reported as 152 A Crim R 152
Drugs

Citation: Regina v J & H [2005] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 11 February 2005
Judge(s): Santow JA, Bell J, Howie J (Bell J delivering the principal judgment; Santow JA and Howie J agreeing)

Background

The Crown appealed against sentences imposed by Judge Charteris in the District Court on two respondents, identified by the pseudonyms J and H, following their convictions for attempting to possess prohibited imports under the Customs Act 1901 (Cth). The offence involved narcotic goods, specifically approximately 50.7 kilograms of MDMA (ecstasy) tablets yielding 16.5 kilograms of pure drug, with an estimated street value of over nine million dollars.

J and H had played a subordinate but significant role in the operation. They were tasked with collecting and transporting the consignment for storage, acting under the direction of more senior co-offenders. Both had prior convictions for serious drug importation offences dating from the 1980s.

J received seven years and six months with a four-year non-parole period. H received seven years with a non-parole period of three years and nine months. The Crown contended both sentences were manifestly inadequate given the gravity of the offending and the respondents' criminal histories.

  • Whether the sentences imposed by the District Court were manifestly inadequate for the offence of attempted possession of commercial quantity prohibited imports under the Customs Act 1901 (Cth)
  • What weight should be given to the respondents' prior convictions for serious drug offences, including the consequences under s 235(2)(c)(ii) of the Customs Act
  • How to assess the appropriate discount for a guilty plea entered on the day fixed for trial
  • Whether the non-parole periods reflected the conventional range and whether any departure was justified

Decision

Bell J, with whom Santow JA and Howie J agreed, found that both sentences were manifestly inadequate. The Court identified the serious objective gravity of the offence, involving a near-commercial scale importation of MDMA, as a primary consideration, alongside the respondents' significant prior histories of drug importation.

The Court accepted that J and H played subordinate roles compared to the principal co-offenders, did not have proprietary control over the drugs, and were engaged only to transport and store the consignment. J recruited H into the venture, and H only became aware the goods were prohibited drugs on the day of arrest. These factors were acknowledged as mitigating, but they did not justify the degree of leniency reflected in the original sentences.

Regarding guilty pleas entered on the day fixed for trial, Bell J accepted the District Court's discount of approximately eighteen percent as generous given the timing, but applied it consistently to both respondents. The Court also considered J's provision of assistance to authorities and evidence of rehabilitation, though it declined to extend the non-parole period below the conventional range of fifty-three to sixty-six percent of the head sentence.

The revised sentences were increased to nine years and six months for J and nine years for H, each with non-parole periods set at the lower end of the conventional range at approximately sixty percent of the sentence.

Orders Made

In the appeal of J:
- Appeal allowed
- Sentence imposed in the District Court quashed; J sentenced to nine years and six months imprisonment from 10 July 2002, expiring 9 January 2012
- Non-parole period of five years and nine months specified, expiring 9 April 2008

In the appeal of H:
- Appeal allowed
- Sentence imposed in the District Court quashed; H sentenced to nine years imprisonment from 11 August 2002, expiring 10 August 2011
- Non-parole period of five years and three months specified, expiring 10 November 2007

Key Takeaways

  • Subordinate roles in a drug importation enterprise can attract mitigation, but the objective gravity of a commercial-quantity offence and serious prior criminal history remained dominant sentencing considerations in this case.
  • Prior convictions for drug importation carried additional significance here because, under s 235(2)(c)(ii) of the Customs Act, both respondents were exposed to a maximum of life imprisonment even if the quantity had been below the commercial threshold.
  • A guilty plea entered on the day fixed for trial attracted a discount of approximately eighteen percent, which the Court of Criminal Appeal described as generous given its lateness, while still applying it consistently across both respondents.
  • Non-parole periods are ordinarily to fall within the conventional range of fifty-three to sixty-six percent of the head sentence; evidence of rehabilitation and cooperation with authorities did not, in these circumstances, justify departing below that range.
  • Crown appeals on grounds of manifest inadequacy succeeded where the original sentences failed to reflect adequately the combined weight of offence seriousness, drug quantity, and prior drug importation convictions.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B, 235(2)(c)(ii)
- Crimes Act 1914 (Cth), s 16A

Cases:
- Dinsdale v R (2000) 202 CLR 321
- Griffiths v The Queen (1977) 137 CLR 293
- Malvaso v The Queen (1989) 168 CLR 227
- Postiglione v R (1997) 189 CLR 295
- Wong v R [2001] 207 CLR
- R v Wong and Leung [1999] 48 NSWLR 340
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Gallagher (1991) 23 NSWLR 220
- R v Schofield [2003] NSWCCA 3
- R v Dujeu [2004] NSWCCA 237; 46 A Crim R 121
- R v Kevenaar [2004] NSWCCA 210
- R v Dang [2004] NSWCCA 269
- R v Mas Rivadavia [2004] NSWCCA 284
- R v Bezan [2004] NSWCCA 342
- R v Hughesman (unreported, Court of Criminal Appeal, 5 April 1995)