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 (dissenting), Hoeben J
Background
The appellant was a young Hong Kong woman who arrived at Sydney Airport carrying 1,582 grams of pure heroin strapped to her body. Her partner, the co-accused, carried 1,222.8 grams. Both had been subjected to threats and physical violence by a criminal creditor who forced them into carrying the drugs. The sentencing judge found that the offences were brought about by threats and actual violence falling short of a legal defence of duress.
The appellant's path to sentence was protracted. She initially pleaded guilty in December 2002, then reversed her plea and participated in seven separate trials over several years, six of which aborted for various reasons. The one completed trial ended with a hung jury. She ultimately re-entered her guilty plea. She had also given birth to her son in custody during this period.
The sentencing judge in the District Court imposed eight years imprisonment with a four-year non-parole period. The co-accused, convicted of the lesser offence of importing a trafficable quantity (rather than a commercial quantity), received the same eight-year head sentence but a longer non-parole period of five and a half years. The appellant sought leave to appeal on the grounds of manifest excess and justifiable grievance arising from the co-accused's sentence.
Legal Issues
- Whether the sentence of eight years imprisonment with a four-year non-parole period was manifestly excessive, having regard to:
- The objective seriousness of the offence and the appellant's role as a coerced courier
- The credit due for the guilty plea
- Hardship caused by the lengthy delay and multiple aborted trials
- The hardship to the appellant of separation from her infant son
- The hardship caused to the child by the imprisonment of both parents
- Whether the appellant had a justifiable sense of grievance when her sentence was compared to that imposed on the co-accused
Decision
Ground 1(a): Objective seriousness and the appellant's role
The sentencing judge accepted that the offences arose from threats and actual violence, and that both offenders were couriers. The majority found the sentencing judge had carefully assessed these factors. McClellan CJ at CL noted that the offence carried a maximum of life imprisonment and required a significant term regardless of individual circumstances, given the legislature's clear intention to deter drug importation. Adams J strongly disagreed, finding the appellant's true moral culpability was "almost as low as it could get" and that the sentencing judge had erred by anchoring the sentence to the statistical range for couriers motivated by financial gain, rather than assessing the appellant's actual criminality on its own terms.
Ground 1(b): Plea of guilty
The majority accepted the sentencing judge had treated the plea as indicating remorse and a willingness to facilitate justice. The court noted, however, that the discount warranted was at the lower end of the available range, because the appellant had maintained a not-guilty plea through multiple trial attempts before ultimately pleading guilty. The failure to expressly identify the discount, while inconsistent with the guidance in R v Thomson and Houlton, was accepted by the appellant as not itself constituting error.
Ground 1(c): Delay and multiple trials
The sentencing judge acknowledged the unusual history of aborted trials and the resulting uncertainty and distress. The majority found these matters were taken into account at first instance. McClellan CJ at CL noted that the delays were substantially attributable to the appellant's own decision to contest the charges, which limited the weight that hardship from delay could carry.
Ground 1(d): Hardship of separation from her son
The appellant suffered serious depression during imprisonment, aggravated by fears for her infant son's welfare. The child was removed from her within hours of birth and initially placed with foster parents before she was admitted to a mothers and children's residential program. The majority found the sentencing judge had considered these matters and reflected them in a reduced non-parole period. Adams J, in dissent, described the appellant's experience in purgatorial terms and found that the subjective circumstances required a far greater downward adjustment than was applied.
Ground 1(e): Hardship to the child
The court acknowledged that hardship to third parties is not generally relevant to sentence, but that exceptions exist where both parents are imprisoned simultaneously or where a child is effectively deprived of parental care. The majority found the sentencing judge had addressed this factor. Adams J considered the child's circumstances, including the disruption to cultural identity caused by placement with non-Chinese foster carers, to be an additional compelling reason for a substantially lower sentence.
Ground 2: Justifiable sense of grievance compared to the co-accused
The appellant argued her culpability was meaningfully lower than the co-accused's, even though she carried a greater quantity of heroin, because the difference in quantity was a matter of chance (82 grams over the commercial threshold), she stood to gain nothing financially, she was younger, psychologically submissive, pregnant, and drawn into the situation by the co-accused's own gambling debts. The majority found the sentencing judge had addressed this by imposing the same head sentence while reducing the non-parole period, so the appellant would serve 18 months less in custody than the co-accused. The majority held this adequately reflected both the different statutory maximum applicable to the appellant's offence (life imprisonment, versus 25 years for the co-accused) and the role that chance played in the quantity differential.
Adams J again dissented emphatically. In his view, the appellant's substantially lesser culpability required a substantially lower head sentence, and the failure to impose one gave the appellant a justifiable sense of grievance. He characterised the outcome as "gravely unjust" when compared to the co-accused's sentence, and proposed substituting a fixed term of two years.
Orders Made
- Leave to appeal granted
- Appeal dismissed (by majority of McClellan CJ at CL and Hoeben J, with Adams J dissenting)
Key Takeaways
- In dismissing the sentence appeal by majority, the Court of Criminal Appeal confirmed that importation of a commercial quantity of heroin, even by a coerced courier with compelling personal circumstances, will almost invariably attract a substantial term of imprisonment given the legislature's clear intention to deter such offending.
- A finding that an offence was brought about by threats and violence falling short of a legal duress defence can reduce objective gravity, but the majority held that reduction need not displace the sentence from the established statistical range for commercial quantity importation.
- Where a co-accused committed a lesser statutory offence carrying a lower maximum penalty, the sentencing court was entitled to impose the same head sentence on both offenders while differentiating the non-parole period to reflect differences in culpability and personal circumstances.
- Under the principle in R v Postiglione, a sentencing disparity producing a justifiable sense of grievance may constitute error, but the majority found no such grievance arose here where the different non-parole periods reflected the material differences between the two offenders.
- Adams J's dissent articulated a principle that moral culpability assessed against the realistic responses of ordinary people, rather than against the statistical range for a category of offending, should drive the sentencing exercise in truly exceptional cases, though this view did not prevail.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated