AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
13
Court of Criminal Appeal 5 July 2007

REGINA v TO Si Thanh

[2007] NSWCCA 200

Also reported as (2007) 172 A Crim R 121
Drugs

Citation: Regina v TO Si Thanh [2007] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 5 July 2007
Judge(s): Handley AJA; Hulme J; Hall J

Background

The respondent was convicted in the District Court on a charge of aiding, abetting, counselling or procuring the importation of methylamphetamine into Australia. The drugs, totalling 34.8 kilograms of pure methylamphetamine with a wholesale value of at least $5 million, were concealed in a speedboat shipped inside a 40-foot container.

The respondent played a principal managerial role in Australia in securing the release of the speedboat from customs and other authorities. His sole motivation was financial gain. The sentencing judge in the District Court imposed a term of 17 years imprisonment with a non-parole period of 10 years and 6 months.

The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentence of 17 years imposed by the District Court was manifestly inadequate for the offence
  • What head sentence was appropriate given the quantity of the drug, the respondent's role, and the relevant subjective factors
  • What non-parole period was appropriate, and what percentage of the head sentence that period should represent on a Crown appeal

Decision

The Court of Criminal Appeal unanimously agreed that the District Court sentence was manifestly inadequate. The pure quantity involved (34.8 kg) was nearly 50 times the minimum commercial quantity under the relevant legislation, and the respondent held a managerial role in the enterprise. His sole motivation was financial reward, and there was no mitigating factor arising from uncertainty about the nature of the drug, as he was at least recklessly indifferent to what it was.

All three judges agreed on a head sentence of 25 years, though they differed slightly on the appropriate non-parole period. Handley AJA and Hulme J favoured a non-parole period of 15 years (60% of the head sentence). Hall J proposed 13 years (approximately 52%), reasoning that the respondent's age and rehabilitation prospects, together with Crown appeal principles, justified a shorter parole-ineligibility period.

Handley AJA resolved the difference between his brethren by rejecting Hall J's approach on the grounds that it risked impermissible double-counting: the subjective factors had already been taken into account in setting the 25-year head sentence, and could not be used again to reduce the non-parole period. He noted that, as a matter of practice in comparable Commonwealth drug importation cases, the non-parole period had generally not been less than 60% of the head sentence.

The majority accordingly imposed a head sentence of 25 years with a non-parole period of 15 years.

Orders Made

  • Crown appeal allowed
  • Sentence imposed by the District Court on 2 February 2007 quashed
  • Respondent sentenced to imprisonment for 25 years, with a non-parole period of 15 years
  • Respondent's legal advisers directed to provide an explanation of the orders to the respondent in accordance with s 16F of the Crimes Act 1914 (Cth)

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence of 17 years for the managerial importation of 34.8 kg of methylamphetamine (nearly 50 times the commercial quantity threshold) was manifestly inadequate, and increased it to 25 years.
  • Uncertainty about the precise quantity or value of drugs imported does not operate as a mitigating factor where the offender either knew a large commercial quantity was involved or was recklessly indifferent to that fact.
  • Using subjective factors first to set the head sentence and then again to reduce the non-parole period constitutes impermissible double-counting.
  • As a matter of practice in Commonwealth drug importation offences, non-parole periods have generally fallen between 60% and 66% of the head sentence; 60% represents the bottom of that range and was regarded as appropriate where Crown appeal principles call for some restraint in resentencing.
  • The financial motivation of an offender who stood to profit from a large-scale importation is an aggravating consideration, not a neutral or mitigating one.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth)
- Customs Act 1901 (Cth), ss 233B, 235 and Schedule VI
- Customs Act Amendment Act 2004 (Cth)
- Crimes Act 1914 (Cth), s 16F
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Wong v The Queen (2001) 207 CLR 584
- Everett v The Queen (1994) 181 CLR 295
- R v Wall [2002] NSWCCA 42
- R v MD, BM, MA, JT [2005] NSWCCA 342
- R v Peel (1971) 1 NSWLR 247
- R v Kevenaar (2004) 148 A Crim R 155
- R v Kaldor [2004] NSWCCA 425
- R v Dang [2005] NSWCCA 430
- R v Nguyen (2005) 157 A Crim R 80
- R v Stanbouli (2003) 141 A Crim R 531
- R v Nai Poon (2003) 56 NSWLR 204
- R v El Hani [2004] NSWCCA 162
- R v Moore [2004] NSWCCA 162
- R v Sukkar [2005] NSWCCA 54
- R v Shepherd (2003) 142 A Crim R 101