Citation: Youssef v R [2011] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 23 May 2011
Judges: Simpson & Davies JJ & Grove AJ
Background
The appellant, an Iraqi-born refugee, pleaded guilty in the District Court to importing a marketable quantity of heroin contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). On returning to Australia from Bangkok, he was stopped at Sydney Airport customs and voluntarily disclosed that he had drugs concealed in his shoes. The two packages contained a total bulk weight of 1,089.7 grams of heroin at approximately 52 per cent purity, representing a pure weight of 573.6 grams and an estimated street value of between $669,000 and $1,147,000.
The sentencing judge in the District Court found that the appellant had acted as a courier, recruited by people to whom he owed money after borrowing funds to bring his daughter to Australia. He also suffered from post-traumatic stress disorder arising from witnessing the killing of two friends by Iraqi police, a condition a psychologist concluded made him especially vulnerable to the threats used by his recruiters. The sentencing judge imposed a total term of 7 years and 8 months with a non-parole period of 4 years and 8 months, having applied a 30 per cent reduction to reflect the guilty plea and assistance provided.
The appellant sought leave to appeal against that sentence on the ground that it was manifestly excessive, focusing primarily on the notional starting point of approximately 11 years before the discount was applied.
Legal Issues
- Whether the notional starting point of approximately 11 years for a marketable quantity heroin importation offence was manifestly excessive.
- Whether the weight of the drug imported was properly treated as one of several relevant factors rather than the dominant consideration.
- Whether the guideline sentences from R v Wong and Leung [1999] NSWCCA 420 retain any continuing utility for sentencing under the relevant federal drug offence provisions, in light of the High Court's decision in Wong v The Queen (2001) 207 CLR 584.
Decision
Davies J, with whom Simpson J agreed, dismissed the appeal. His Honour held that the notional starting point of approximately 11 years was within the range of appropriate sentences, drawing on a comparison of comparable cases collected in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194. Cases including De La Rosa, Pham, Le, Teehan, and Tyn disclosed notional starting points ranging from 10 years to over 13 years for offences of similar seriousness, confirming the 11-year figure was not excessive.
On the weight-of-drug question, the Court confirmed that while drug quantity is not the principal sentencing factor, it is highly relevant to the objective seriousness of the offence. The sentencing judge had expressly acknowledged the principle that quantity was but one of many relevant factors, and there was no error in her approach.
Davies J also addressed a conflict between two differently constituted benches of the Court of Criminal Appeal. In R v Nguyen; R v Pham [2010] NSWCCA 238, the Court had maintained that Wong and Leung guideline sentences remain a useful guide. However, six days later in R v Cheung and Choi [2010] NSWCCA 244, a differently constituted bench concluded those guideline sentences could not withstand scrutiny in light of the High Court's criticism. Davies J expressed a preference for the approach in Cheung and Choi, favouring instead the case-comparison methodology from De La Rosa.
Grove AJ agreed with the orders proposed by Davies J but declined to express a preference between the two conflicting authorities on Wong and Leung. His Honour considered that the conflict did not need to be resolved to dispose of this appeal, and that any resolution should await a case where the point is squarely argued and the Court receives appropriate submissions.
Orders Made
- Leave to appeal granted.
- The appeal is dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a notional starting point of approximately 11 years for a marketable quantity heroin importation (573.6 grams pure weight) was within the available range of sentencing discretion.
- Drug quantity is a highly relevant factor in assessing the objective seriousness of an importation offence, particularly where the offender is aware of the amount involved, but it is not the sole determinative factor.
- A split emerged within the Court of Criminal Appeal in 2010 regarding whether the R v Wong and Leung guideline sentences retain utility after the High Court's decision in Wong v The Queen: R v Nguyen; R v Pham said yes; R v Cheung and Choi said no. Davies J preferred Cheung and Choi, while Grove AJ declined to resolve the conflict, treating it as better left for a case where it is directly argued.
- General deterrence carries significant weight in federal drug importation sentencing: involvement at any level in a drug importation offence must attract a substantial sentence to serve that interest.
- Prior good character carries reduced mitigating weight in drug importation cases, and the focus of a sentence appeal remains the sentence actually imposed rather than the intermediate notional starting point.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 307.1, 307.2(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Cases
- R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340
- Wong v The Queen (2001) 207 CLR 584
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v Cheung and Choi [2010] NSWCCA 244
- R v Pham [2005] NSWCCA 314
- Le v R [2006] NSWCCA 136
- Teehan v R [2006] NSWCCA 401
- Tyn v R [2009] NSWCCA 146
- SZ v Regina [2007] NSWCCA 19
- Rutkowskyj v R [2008] NSWCCA 10
- Mirza v R [2007] NSWCCA 257
- R v Huynh (2008) 180 A Crim R 517
- R v Mirzaee [2004] NSWCCA 315
- R v Jimson [2009] NSWCCA 183
- Regina v Nikolovska [2010] NSWCCA 169
- R v Mokoena [2009] QCA 36
- R v Tran [2007] QCA 221; (2007) 172 A Crim R 436
- Mohlasedi v R [2006] WASCA 267