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Court of Criminal Appeal 7 December 2010

Le v R (Cth)

[2010] NSWCCA 285

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES MONEY LAUNDERING CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE

Citation: Le v R (Cth) [2010] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 7 December 2010
Judge(s): Simpson J; Price J; Howie AJ

Background

The applicant pleaded guilty in the District Court to three Commonwealth charges arising from his involvement in a Sydney-based drug importation and distribution syndicate operating between late 2005 and mid-2006. The charges covered conspiracy to import a traffickable quantity of heroin, conspiracy to traffic a commercial quantity of heroin and methamphetamine, and conspiracy to launder over $1 million. The syndicate, known as the "Ken syndicate," moved drugs from Sydney to Melbourne and returned money through remittance businesses, handling over $4.7 million in total.

The applicant's role was active and trusted. He helped recruit an overseas drug courier, arranged the supply and transport of heroin and methamphetamine to Melbourne, travelled to Vietnam to organise further importations, and participated in overseeing the money laundering arrangements alongside the syndicate's principal. He was not, however, the principal: that role belonged to a co-offender who had recruited the applicant and exploited his drug dependency.

Berman DCJ sentenced the applicant to 13 years and 6 months on the trafficking count, with all sentences to run concurrently from 14 December 2006 and a single non-parole period of 9 years. The applicant sought an extension of time to appeal, arguing the sentences were manifestly excessive and that disparity with the co-offender's sentence gave rise to a legitimate sense of grievance.

  • Whether the sentences imposed were manifestly excessive having regard to the applicant's role, personal circumstances, and mitigating factors.
  • Whether the disparity between the applicant's sentence and the subsequently reduced sentence of the syndicate's principal gave rise to a legitimate sense of grievance warranting re-sentencing.

Decision

On the first ground, the Court of Criminal Appeal found no error in Berman DCJ's approach. The sentencing judge had properly assessed the applicant's role as significant and trusted, even if he was not the principal. His mitigating circumstances, including his guilty plea, drug dependency, personal background, and low-to-moderate risk of reoffending, had all been appropriately taken into account. The objective seriousness of the offending remained very high, and the Court rejected the submission that the sentences were manifestly excessive.

On the second ground, the court accepted that a legitimate sense of grievance arose from the disparity with the co-offender's sentence. The co-offender, as the syndicate's principal, was more culpable: he had been involved longer, had recruited the applicant, and had exploited the applicant's drug dependency. After a 40 percent discount, the co-offender had been sentenced to 18 years with an 11-year non-parole period, translating to a starting point of 30 years.

The court emphasised that the re-sentencing of the applicant did not reflect any error by Berman DCJ. Rather, the parity principle required an appropriate relativity between the sentences of co-offenders. Using a starting point of 25 years and applying a 50 percent discount for the applicant's significantly more favourable circumstances, the court reduced the sentence on count 2 to 12 years and 6 months with a non-parole period of 8 years and 3 months.

Orders Made

  • Extension of time to file the application granted.
  • Leave to appeal against each sentence granted.
  • Appeals against sentences on counts 1 and 3 dismissed.
  • Appeal against sentence on count 2 allowed; sentence quashed and applicant re-sentenced to imprisonment for 12 years and 6 months, with a non-parole period of 8 years and 3 months.
  • Earliest eligible parole date: 13 March 2015.

Key Takeaways

  • The parity principle in sentencing requires that co-offenders are not left with a legitimate sense of grievance arising from unjustifiable disparity, even where the original sentence was not itself in error.
  • A reduction on parity grounds does not necessarily indicate any fault in the original sentencing exercise: the Court of Criminal Appeal made clear that Berman DCJ had committed no error.
  • Where the syndicate principal received a reduced sentence on appeal after the applicant was sentenced, the Court of Criminal Appeal treated that subsequent reduction as the trigger for revisiting the applicant's sentence under the parity principle.
  • Mitigating factors including a guilty plea, drug dependency, favourable background, and low-to-moderate recidivism risk were all relevant to the discount applied, but did not overcome the high objective seriousness of large-scale drug importation and trafficking.
  • In re-sentencing, the Court maintained the same proportional relationship between head sentence and non-parole period (approximately 66 percent) that the original sentencing judge had applied.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 302.2(1) (trafficking commercial quantity) and 400.3(1) (money laundering)
- Customs Act 1901 (Cth), s 233B(1)(a)(iii) (importation offences)

Cases: No specific cases were cited in the portions of the judgment provided.