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Court of Criminal Appeal 26 October 2011

Zhang v R

[2011] NSWCCA 233

Drugs
CRIMINAL LAW NO LESSER SENTENCE WARRANTED IN LAW.

Citation: Zhang v R [2011] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 26 October 2011
Judge(s): Whealy JA, Latham J, Harrison J

Background

The applicant pleaded guilty in the Local Court to importing a commercial quantity of border controlled drugs, specifically heroin and methylamphetamine, contrary to s 307.1 of the Criminal Code Act 1995. The offence carries a maximum penalty of life imprisonment. The applicant collected a parcel from a post office box in Ultimo in February 2009 containing approximately 1.5 kg of pure heroin, and he also disclosed a further incoming shipment of methylamphetamine to police after his arrest.

Judge King SC of the District Court sentenced the applicant to 14 years imprisonment with a non-parole period of 9 years, applying a combined discount of approximately 30% for the early guilty plea and assistance provided to authorities. The applicant sought leave to appeal against that sentence on two grounds: that the sentencing judge failed to give proper weight to his demonstrated contrition, and that the sentence was manifestly excessive by reference to comparable cases.

At the time of the offence, the applicant was on parole for a similar offence. The agreed facts established that he had initiated and organised the importation, arranged a post office box in a false name, used a falsely subscribed mobile phone, and had discussed the pricing, purity, and cutting of the drugs with an associate in China.

  • Whether the sentencing judge failed to give proper regard to the applicant's demonstrated contrition, as required by s 16A(2)(f) of the Crimes Act (Cth) 1914
  • Whether the combined discount of approximately 30% for the guilty plea and assistance to authorities was appropriate
  • Whether the sentence of 14 years imprisonment was manifestly excessive having regard to comparable cases, particularly R v Holland

Decision

On the contrition ground, the Court found no error in the sentencing judge's approach. The Court confirmed the established principle that expressions of remorse made close to the time of sentencing carry only slight weight, particularly where the evidence of contrition is recent and untested. The judge had considered the applicant's testimony, his letter to the court, and his cooperation with police, and was entitled to treat the weight of that evidence as limited. The applicant's conduct during the importation, including recorded statements indicating an intention to continue drug distribution, was inconsistent with a strong finding of genuine remorse.

On the discount for plea and assistance, the Court accepted that the information provided by the applicant was of low value. The applicant had been caught committing the offence, and the intelligence he provided carried correspondingly limited utility. The Court found the combined discount of around 30% did not fall outside the appropriate range when assessed against these factors, and no error was established in the sentencing judge's exercise of discretion.

On manifest excess, the Court rejected the applicant's reliance on R v Holland as a comparable case. The offender in Holland had not initiated the importation and had been unaware of the precise nature and quantity of the drug concealed in machinery. By contrast, the applicant here had organised the entire scheme, arranged for delivery infrastructure, and negotiated pricing and purity with overseas contacts. The Court was satisfied that the specific and serious objective features of the applicant's conduct, combined with the fact that he was on parole for a like offence at the time, warranted a significant term of imprisonment. No lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Expressions of contrition made close to sentencing carry only slight weight under s 16A(2)(f) of the Crimes Act (Cth) 1914, particularly where the remorse is recent and the offender's conduct during the offence is inconsistent with genuine remorse.
  • A combined discount for plea and assistance will be assessed against the actual utility of the information provided; where an offender is caught in the act and provides low-value intelligence, a discount in the order of 30% may still fall within the appropriate range.
  • Comparable sentencing cases must be analysed carefully on their own facts. The Court of Criminal Appeal confirmed that importing commercial quantities of drugs as an organiser who initiates the scheme is materially different from the role of a middleman who is unaware of the drug's nature and quantity.
  • Committing a serious drug importation while on parole for a like offence is a significant aggravating factor that bears directly on the need for both specific and general deterrence.
  • In dismissing the appeal, the Court reiterated the caution expressed in DPP v De La Rosa against sentencing by mechanically identifying an offence "category" and applying the sentence associated with it, rather than evaluating the individual offender's objective and subjective circumstances.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.1
- Crimes Act 1914 (Cth), s 16A(2)(f)

Cases
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Sutton [2004] NSWCCA 225
- R v Ellis (1986) 6 NSWLR 603
- Tyler v R; R v Chalmers [2007] NSWCCA 247
- Danial v R [2008] NSWCCA 15
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- R v Barrientos [1999] NSWCCA 1
- DPP v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- R v Holland [2011] NSWCCA 65; 205 A Crim R 429