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Court of Criminal Appeal 22 July 2005

R v Do

[2005] NSWCCA 258

Drugs
SENTENCE APPEAL AGAINST SEVERITY IMPORTATION OF HEROIN TRAFFICABLE QUANTITY SENTENCE AFTER RE TRIAL

Citation: R v Do [2005] NSWCCA 258
Court: Court of Criminal Appeal, New South Wales
Date: 22 July 2005
Judge(s): Buddin J, Brownie AJA, Latham J

Background

The applicant, a Vietnamese-born permanent resident of Australia, was convicted by a jury in the District Court of importing a trafficable quantity of heroin into Australia. Customs officers discovered 478.4 grams of pure heroin concealed within her shoes upon her arrival from Vietnam. The trafficable threshold for heroin is 2 grams, making the quantity involved substantially above the statutory minimum.

This was the applicant's second conviction for the same offence. Her first conviction had been quashed by the Court of Criminal Appeal and a retrial ordered. Following the retrial, the District Court imposed the identical sentence to that imposed at first instance: 8 years imprisonment with a non-parole period of 5 years. The maximum penalty for the offence is 25 years imprisonment.

The applicant was 49 years old, had no prior convictions, and had experienced significant personal hardship, including childhood trauma and the loss of her family in Vietnam. A psychologist described her as extremely vulnerable. The sentencing judge accepted she was remorseful but noted she had not pleaded guilty. It appeared likely she would be deported upon release from custody.

  • Whether the sentencing judge improperly regarded his sentencing discretion as fettered by the sentence imposed at the original trial, rather than exercising an independent discretion on the retrial.
  • Whether the prospect of deportation upon release constituted a form of extra-curial punishment (punishment outside the formal sentencing process) that should have reduced the sentence imposed.

Decision

On the first ground, the Court found no error in the sentencing judge's approach. The established principle, drawn from R v Gilmore (1979) and confirmed in R v MM (2002), is that an offender sentenced after a retrial should not ordinarily receive a longer sentence than that imposed at the first trial. This rule exists to ensure offenders are not deterred from seeking appellate remedies. The sentencing judge in this case correctly identified the principle, acknowledged that a discretion to depart remained, and then concluded that no significant subsequent circumstance justified any variation. The Court was satisfied the judge had exercised an independent discretion rather than treating himself as bound by the earlier sentence.

On the second ground, the applicant argued that the likely deportation she faced upon release was a punishing consequence of her offending that warranted a reduction in sentence. The Court examined its earlier decision in R v Kwon [2004] NSWCCA 456, where considerations of deportation and consequential loss had influenced sentencing. However, the Court distinguished Kwon on several bases: there was an evidentiary foundation for the conclusions in that case, the offender and his family faced concrete and specific losses, and dependants' hardship had played a role. In the present case, no comparable evidentiary basis was established and the relevant considerations did not arise with the same force.

The Court expressed a tentative view, without the benefit of full argument, that offenders convicted of Customs Act contraventions involving drug importation may stand in a very different policy position to the respondent in Kwon. Regardless, even if error had been established on this ground, the Court concluded that no lesser sentence was warranted in law under section 6(3) of the Criminal Appeal Act 1912. Both grounds of appeal were therefore rejected.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge presiding over a retrial is not fettered by the sentence imposed at the original trial, but should not ordinarily impose a longer sentence. The judge retains a full discretion to depart where significant subsequent circumstances exist.
  • A sentencing judge who acknowledges the prior sentence as a reference point, while expressly recognising a remaining discretion and finding no sufficient reason to vary, has not improperly fettered that discretion.
  • Probable deportation following release from custody may, in some circumstances, constitute a form of extra-curial punishment relevant to sentencing. However, the Court indicated that offenders convicted of drug importation under the Customs Act may, for policy reasons, stand in a different position to other offenders for whom such considerations have carried weight.
  • Where deportation is raised as a mitigating factor, an adequate evidentiary foundation for the consequences suffered by the offender and any dependants appears necessary before that factor will carry significant weight.
  • In dismissing the appeal, the Court applied section 6(3) of the Criminal Appeal Act 1912, which provides that even where error is established, an appeal will not succeed if no lesser sentence was warranted in law.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Customs Act 1901 (Cth)

Cases:
- R v Bedford (1986) 5 NSWLR 711
- R v Daetz (2003) 139 A Crim R 398
- R v Gilmore (1979) 1 A Crim R 416
- R v Klein [2001] NSWCCA 120
- R v Kwon [2004] NSWCCA 456
- R v Mas Rivadavia (2004) 61 NSWLR 63
- R v MM (2002) 135 A Crim R 216
- R v Pang (1998) 105 A Crim R 474
- R v Pham [2005] NSWCCA 94
- R v Wong and Leung (1999) 48 NSWLR 340
- The Queen v Olbrich (1999) 199 CLR 270