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Court of Criminal Appeal 6 August 2008

REGINA v ZENG

[2008] NSWCCA 183

Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL AGAINST SENTENCE PRACTICE AND PROCEDURE SENTENCE CUSTODY

Citation: Regina v Zeng [2008] NSWCCA 183
Court: New South Wales Court of Criminal Appeal
Date: 6 August 2008
Judge(s): Giles JA, Barr J, Hall J

Background

The respondent was convicted by jury of attempting to possess a commercial quantity of unlawfully imported MDMA (ecstasy), following a trial in the District Court. The offence involved over 74 kilograms of ecstasy, which had been expertly concealed in containers of ink imported into Australia. The respondent's role centred on allowing the drugs to be temporarily stored in his garage, with his involvement spanning less than a day.

Two co-offenders, who pleaded guilty to the same charge and cooperated with authorities, were sentenced separately. Johnson Au, who had recruited the respondent into the enterprise, received 14 years and six months imprisonment with a nine-year non-parole period. Minh Cheun, described as having a pivotal middle-management role, received 17 years and six months with an 11-year non-parole period.

On 5 October 2007, the District Court sentenced the respondent to 10 years imprisonment with a six-year non-parole period. The Commonwealth Director of Public Prosecutions appealed, arguing the sentence was manifestly inadequate and also identifying a technical error in the calculation of pre-sentence custody.

  • Whether the original 10-year sentence with a six-year non-parole period was manifestly inadequate for an offence involving over 74 kilograms of ecstasy.
  • Whether the sentencing judge made a technical error in backdating the sentence to account for pre-sentence custody, by including time the respondent spent on bail rather than restricting the backdate to actual time spent in custody.

Decision

The Court of Criminal Appeal rejected the Crown's primary submission that the sentence was manifestly inadequate. The sentencing judge had taken careful account of the respondent's comparatively limited role: he had been recruited somewhat unwittingly, his participation was brief and subservient, he had no prior involvement in the drug importation enterprise, and he did not plead guilty but presented a more favourable subjective case than his co-offenders. The Court was not persuaded that the original sentence fell outside the range available to the sentencing judge.

However, the Court identified a technical error in the application of pre-sentence custody. The preferred sentencing approach requires backdating a sentence by a period equal only to the time actually served in pre-sentence custody, not including periods the offender was on bail. The sentencing judge had, with respect, inadvertently backdated the sentence to account for both custodial periods and time on bail, which was incorrect.

To correct that error, the Court re-sentenced the respondent with the sentence commencing on 27 July 2006. This adjustment extended the non-parole period by 28 days, moving the parole eligibility date from 28 June 2012 to 26 July 2012. The total head sentence of 10 years and the six-year non-parole period remained otherwise unchanged.

Orders Made

  • Leave to appeal granted.
  • The appeal allowed, in part.
  • The respondent re-sentenced to 10 years imprisonment with a non-parole period of six years, commencing 27 July 2006 and expiring 26 July 2012, with the balance of term ending 26 July 2016.
  • First parole eligibility date: 26 July 2012.
  • Appeal otherwise dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence of 10 years with a six-year non-parole period was not manifestly inadequate for a respondent who played a brief and subservient role in a large-scale ecstasy importation, even where over 74 kilograms of the drug were involved.
  • A significant disparity between co-offenders' sentences does not automatically indicate error where their respective roles, guilty pleas, and subjective circumstances differ materially.
  • Where a defendant has had pre-sentence custody interrupted by periods on bail, the preferred sentencing approach is to backdate the sentence by a period equal only to actual time served in custody, not the combined total of custody and bail periods.
  • Erroneously including bail periods in a pre-sentence custody backdate constitutes a technical sentencing error requiring correction, even where the underlying head sentence is not disturbed.
  • In dismissing the main ground of the Crown appeal, the Court of Criminal Appeal reaffirmed that short-lived, recruited, and subservient participation in a drug importation enterprise is a relevant mitigating factor in fixing sentence, even for offences involving substantial commercial quantities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.5(1)

Cases:
- Assafiri v Regina [2007] NSWCCA 159
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- Regina v Kevenaar (2004) 148 A Crim R 155; [2004] NSWCCA 210
- Regina v Moore [2005] NSWCCA 212
- Regina v Newman (2004) 145 A Crim R 361; [2004] NSWCCA 102
- Regina v Nguyen, Pham, Vu & To (2005) 157 A Crim R 80; [2005] NSWCCA 362
- Regina v Schofield (2003) 138 A Crim R 119; [2003] NSWCCA 3
- Regina v Sukkar [2005] NSWCCA 54
- Regina v To (2007) 172 A Crim R 121; [2007] NSWCCA 200
- Wong v The Queen (2001) 207 CLR 584