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20
Court of Criminal Appeal 3 August 2007

R v LEE

[2007] NSWCCA 234

Drugs
CRIMINAL LAW CROWN APPEAL CONVICTION AFTER TRIAL SIGNIFICANT ROLE PLAYED BY RESPONDENT LESSER ROLE PLAYED BY CO OFFENDER

Citation: R v LEE [2007] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 3 August 2007
Judge(s): McClellan CJ at CL; Howie J; Hall J

Background

The respondent was convicted after trial in the District Court of importing a commercial quantity of heroin into Australia, contrary to the Customs Act 1901. The drugs, totalling 76.3 kilograms of pure heroin (with a gross weight of 105.7 kilograms concealed in the structural framework of two shipping containers), had an estimated wholesale value of approximately $28.4 million and a street value of around $266 million after cutting.

The respondent travelled to Australia from Hong Kong and spent approximately 22 months here overseeing the importation. He established and controlled a company used to lease warehouse premises in New South Wales and South Australia, arranged for the containers to clear customs, and coordinated the logistics of the operation. He reported to a person in Hong Kong known as "Ah Keung," who provided funds and issued instructions.

The District Court sentenced the respondent to a total term of 17 years and 5 months (excluding time in Hong Kong custody), with a non-parole period of 10 years and 5 months, yielding an effective non-parole period of 11 years. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in finding that the respondent occupied only a "middle level" of responsibility within the importation hierarchy, rather than a senior or central role.
  • Whether the sentence imposed was manifestly inadequate having regard to the respondent's objective criminality, the quantity of heroin involved, and comparable sentences in similar cases.
  • The proper approach to the weight of drugs as a sentencing consideration in large-scale importation offences.
  • The appropriate sentencing range on a Crown appeal, where the Court substitutes a sentence at the lower end of the range that would have been available at first instance.

Decision

The Court of Criminal Appeal found that the sentencing judge had made a material error in characterising the respondent's role as "middle level." The evidence established that he had personally set up the corporate vehicle used for the importation, leased warehouse premises across two states, arranged customs clearance, and coordinated the movement of the containers over an extended period. While he reported to someone in Hong Kong and was not at the absolute apex of the organisation, the Court held that he played a senior and critical role, well above the mid-range of culpability.

The Court considered the relevance of drug quantity in sentencing, noting that the sheer volume of heroin, more than 50 times the commercial threshold, was a significant aggravating factor that warranted a sentence toward the top of the available range. Comparative cases were examined, and the Court noted that offenders in senior organisational roles in large importations had received head sentences exceeding 20 years, with many attracting life sentences. The fact that this respondent had no prior criminal history was acknowledged but treated as a factor of minimal weight given the gravity of the offending.

Because this was a Crown appeal, the Court applied the established principle that the sentence substituted should sit at the lower end of the range that would have been appropriate at first instance. The Court identified that, absent the Crown appeal, a non-parole period significantly exceeding 20 years would have been warranted. Applying the Crown appeal discount, a non-parole period of 19 years and 6 months was identified as the lower bound, reduced to 18 years and 11 months to account for the seven months the respondent spent in custody in Hong Kong awaiting extradition.

Orders Made

  • Appeal upheld.
  • Original sentence quashed.
  • Respondent sentenced to a non-parole period of 18 years and 11 months, commencing 2 December 2005 and expiring 1 November 2024, with an additional term of 8 years and 6 months expiring 1 May 2033.
  • Earliest eligibility for parole: 1 November 2024.

Key Takeaways

  • The Court of Criminal Appeal confirmed that characterising an offender's role as "middle level" will constitute a sentencing error where the evidence demonstrates the offender personally organised the corporate infrastructure, logistics, and customs arrangements for a large-scale importation over an extended period.
  • Drug quantity carries significant weight as an aggravating factor in importation sentencing; where the quantity far exceeds the commercial threshold, the sentencing court is expected to position the penalty toward the top of the available range.
  • On a Crown appeal, the Court of Criminal Appeal applies a restraint principle, substituting a sentence at the lower end of the range that would have been open at first instance, rather than the sentence the appellate court would itself have imposed without that constraint.
  • A conviction after trial, as opposed to a plea of guilty, removes a mitigating factor that had reduced sentences in many of the comparable cases reviewed by the Court.
  • Minimal criminal history carries little ameliorating weight when the objective criminality of a large-scale drug importation is sufficiently serious.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B, 235(2)(c)(i), Schedule 6
- Crimes Act 1900 (NSW), s 16G (since repealed)

Cases:
- Bick v R [2006] NSWCCA 408
- Law v R [2006] NSWCCA 100
- R v Kaldor (2004) 150 A Crim R 271
- R v MacDonnell (2002) 128 A Crim R 44
- R v Stanbouli (2003) 141 A Crim R 531
- R v Sweet [2001] NSWCCA 445
- R v To (2003) NSWCCA 362; 157 A Crim R 80
- R v Wall [2002] NSWCCA 42
- R v Wong & Leung (1999) 48 NSWLR 340
- The Queen v Olbrich (1999) 199 CLR 270
- Vinh Hai Truong [2006] NSWCCA 318
- Wong v The Queen (2001) 207 CLR 584