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Court of Criminal Appeal 4 March 2011

Tu v R

[2011] NSWCCA 31

Also reported as 205 A Crim R 566
Drugs
CRIMINAL LAW SENTENCING POSSESSION OF METHYLAMPHETAMINE VERY LARGE QUANTITY OF DRUG OFFENDER

Citation: Tu v R [2011] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 4 March 2011
Judge(s): McClellan CJ at CL, Hall J, McCallum J

Background

The appellant was convicted of two offences under the Customs Act 1901 (Cth) relating to the attempted possession of very large quantities of crystal methylamphetamine. Count 1 involved approximately 212 kg (163 kg pure) and Count 2 involved approximately 107 kg (81 kg pure). Both quantities were many times greater than the prescribed trafficable threshold of 2 grams.

At first instance, the sentencing judge imposed the maximum penalty of 25 years imprisonment on Count 1, with an equal term on Count 2, both sentences to be served concurrently. The sentencing judge characterised both offences as falling within the "worst category" of their type and found the appellant's culpability to be higher than that of his co-offender, Ms Zhang, who received 20 years on her first count.

The appellant sought leave to appeal against sentence, contending that the evidence did not support either the "worst case" characterisation or the finding that he was more culpable than his co-offender.

  • Whether the sentencing judge had a sufficient evidentiary basis to categorise the offences under Counts 1 and 2 as being in the "worst category" of their type.
  • Whether the sentencing judge erred in finding that the appellant's culpability was greater than that of his co-offender, Ms Zhang.
  • What sentences were appropriate in light of any identified errors.

Decision

The Court of Criminal Appeal allowed the appeal on all three judges' agreement that the "worst case" finding was not supported by the evidence. While the sheer quantity of drugs required a finding of high-range offending, that alone was insufficient to place the offences in the worst category. For a possession charge, the Court confirmed that a wide range of moral culpability can attend the act of possession, and the circumstances of the offender's involvement and intended use of the drugs remain relevant. Critically, the sentencing judge himself acknowledged that he could not determine the precise role each offender played in the broader criminal organisation.

On the question of comparative culpability, the Court found the sentencing judge's reasoning was erroneous. The four matters identified by the sentencing judge to justify a finding that the appellant was more culpable than Ms Zhang did not withstand scrutiny. Some of those matters related to the separate Count 2 and were not directly relevant to Count 1. The inference drawn from the appellant's possession of a list of box numbers was not adequately explained as a basis for the conclusion that he was necessarily the more serious offender.

McCallum J, with whom McClellan CJ at CL and Hall J agreed on outcome, concluded that the conduct used to elevate the appellant's culpability above that of Ms Zhang was in fact conduct that was the subject of a distinct charge and therefore ought not to have been taken into account in that way. Once that conduct was excluded, what remained did not meet the threshold for the worst category.

The Court also noted a complication arising from the concurrent structure of the original sentences. The sentencing judge had treated both offences as aspects of a single large drug importing operation and imposed concurrent terms, meaning the appellant received no additional penalty for his separate offending. The Court observed there probably should have been some accumulation, but fashioned the resentence having regard to all the circumstances including the outcome of Ms Zhang's unaltered sentence.

Orders Made

  • The time for giving notice of the application for leave to appeal was extended to 17 June 2010.
  • Leave to appeal was granted.
  • The appeal was allowed.
  • The sentences imposed on 3 December 2004 were quashed. In lieu, the appellant was sentenced as follows:
  • Count 1: 18 years imprisonment commencing 14 May 2003, concluding 13 May 2021.
  • Count 2: 18 years imprisonment commencing 14 May 2005, concluding 13 May 2023.
  • A non-parole period of 13 years and 4 months was fixed for both sentences, commencing 14 May 2003 and concluding 13 September 2016.

Key Takeaways

  • For a drug possession offence, the quantity of the drug alone is insufficient to place an offence in the "worst category." The nature and degree of the offender's involvement, and what the offender intended to do with the drug, are also relevant to moral culpability.
  • A sentencing judge's own acknowledgment that the precise roles of co-offenders cannot be determined is inconsistent with a subsequent finding that one offender was more culpable than the other; such a finding requires a proper evidentiary foundation.
  • Under the principle in R v De Simoni (1981) 147 CLR 383, conduct that forms the basis of a distinct charge cannot be used to aggravate the sentence on a separate count.
  • Imposing concurrent sentences where offences could have attracted some accumulation may be an error, though the Court of Criminal Appeal here fashioned a practical remedy having regard to the co-offender's unaltered concurrent sentences.
  • The Court of Criminal Appeal reduced the maximum 25-year sentence on Count 1 to 18 years, reinforcing that maximum sentences are reserved for cases that genuinely meet the threshold for the worst category in both the quantity of drugs and the offender's role in the offending.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(c) and (ca)
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth)

Cases
- Adams v Regina [2008] HCA 15; 234 CLR 143
- Chen v Regina [2009] NSWCCA 157
- DPP v De La Rosa [2010] NSWCCA 194
- El-Ghourani v Regina [2009] NSWCCA 140; (2009) 195 A Crim R 208
- Hili v Regina; Jones v Regina [2010] HCA 45
- Ibbs v The Queen (1987) 163 CLR 447
- Regina v Bernier (1998) 102 A Crim R 44
- Regina v De Simoni (1981) 147 CLR 383
- Regina v Ferrer-Esis (1991) 55 A Crim R 231
- Regina v Guiu (2002) 129 A Crim R 387
- Regina v Holder & Johnstone (1983) 3 NSWLR 245
- Regina v Hutton [2004] NSWCCA 60
- Regina v Kevenaar [2004] NSWCCA 210
- Regina v Laurentiu (1992) 63 A Crim R 402
- Regina v Olbrich (1999) 199 CLR 270
- Regina v Schofield [2003] NSWCCA 3
- Regina v Skaf [2005] NSWCCA 297
- Regina v Veen (No 2) (1988) 164 CLR 465