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Court of Criminal Appeal 25 October 2005

Regina v Liu

[2005] NSWCCA 378

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE OBJECTIVE SERIOUSNESS OF OFFENCE PLEA OF GUILTY DELAY HARDSHIP OF BEING SEPARATED FROM SON

Citation: Regina v Liu [2005] NSWCCA 378
Court: Court of Criminal Appeal, New South Wales
Date: 25 October 2005
Judges: McClellan CJ at CL, Adams J, Hoeben J

Background

The appellant was a young woman from Hong Kong who pleaded guilty to importing a commercial quantity of heroin (1,582 grams of pure heroin) into Australia, contrary to section 233B(1)(b) of the Customs Act 1901. The offence carries a maximum penalty of life imprisonment. Her co-offender, who imported a lesser quantity (1,222.8 grams), was convicted of importing a trafficable quantity, which carries a lower maximum penalty of 25 years.

The circumstances of the importation were notably unusual. Both offenders gave evidence that they were coerced into carrying the drugs through threats and physical violence by a creditor named "Ah Choy." The sentencing judge was satisfied, on the balance of probabilities, that the offence was brought about by threats and actual violence, though the conduct fell short of establishing a full defence of duress. The appellant was pregnant at the time of her arrest, gave birth in custody, and her young child Dylan was ultimately permitted to reside with her in a Mothers and Children's Residential Program.

The road to sentence was unusually protracted. The appellant initially pleaded guilty, later reversed that plea, and participated in seven joint trials with her co-offender, six of which aborted for various reasons and one of which ended in a hung jury. She ultimately re-entered her guilty plea. The District Court sentenced her to eight years' imprisonment with a non-parole period of four years.

  • Whether the sentence of eight years with a four-year non-parole period was manifestly excessive having regard to the objective seriousness of the offence and the appellant's subjective circumstances
  • Whether the appellant had a justifiable sense of grievance arising from the disparity between her sentence and the sentence imposed on her co-offender
  • Whether sufficient weight was given to the delay caused by the numerous failed trials and the impact of the appellant's imprisonment on her young child

Decision

The Court dismissed the appeal by majority, with McClellan CJ at CL and Hoeben J finding no error in the sentencing judge's exercise of discretion. Hoeben J accepted that the circumstances were unusual and sad, but concluded that the sentencing judge had fully considered and assessed them. McClellan CJ at CL noted the extenuating circumstances but agreed, after reviewing the objective gravity of the offence, that the sentence fell within the available range.

On the question of co-offender disparity, the majority found the appellant did not have a justifiable sense of grievance. The two offenders were charged under different provisions carrying substantially different maximum penalties. The appellant imported a greater quantity of heroin than her co-offender, and the differences in their respective charges reflected genuine distinctions in their criminal culpability as a matter of law.

Adams J dissented. His Honour took the view that the combination of extenuating objective circumstances (coercion falling short of duress) and the highly unusual subjective factors (particularly the impact of the appellant's continued imprisonment on her infant child's development and the appellant's own psychological fragility) required a much greater downward adjustment than the sentencing judge made. Adams J would have allowed the appeal, quashed the sentence, and substituted a fixed term of two years commencing 8 August 2003.

The majority ultimately upheld the original sentence, finding that the sentencing judge had given proper consideration to the special circumstances, including the delay, the effect on the child, and the appellant's personal hardship, and had reduced the sentence accordingly.

Orders Made

  • Appeal dismissed (by majority)

Key Takeaways

  • The Court of Criminal Appeal confirmed that a significant disparity between co-offender sentences does not automatically give rise to a justifiable sense of grievance where the two offenders were charged under different statutory provisions carrying materially different maximum penalties.
  • Where two offenders are charged under provisions with different maximum penalties reflecting genuinely different levels of criminal culpability, the sentencing court is entitled to impose sentences that appear disproportionate on their face without that disparity constituting error.
  • Unusual subjective circumstances, including the impact of a mother's imprisonment on an infant child residing in a prison program, and ongoing psychological disturbance, were accepted as relevant sentencing considerations by all members of the Court, though the majority and the dissent differed sharply on the weight those factors warranted.
  • Delay arising from multiple aborted trials, a reversed plea, and lengthy proceedings was recognised as a "special circumstance" capable of reducing a sentence, provided the sentencing court turns its mind to that delay and adjusts accordingly.
  • A finding that an offence was brought about by threats and violence falling short of a legal defence of duress remains a significant mitigating factor at sentence, even though it does not affect the legal verdict.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Crimes Act 1914 (Cth)

Cases:
- R v Boyle (1987) 34 A Crim R 202
- R v Edwards (1996) 90 A Crim R 510
- R v Postiglione (1996-97) 189 CLR 295
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Wirth (1976) 14 SASR 291
- Wong v The Queen (2001) 207 CLR 584