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Court of Criminal Appeal 19 February 2016

Bae v R

[2016] NSWCCA 11

Drugs
CRIMINAL LAW COURIER PARITY

Citation: Bae v R [2016] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 19 February 2016
Judges: Bathurst CJ, Hoeben CJ at CL, RS Hulme AJ

Background

The appellant was convicted after trial of recklessly importing a marketable quantity of methamphetamine into Australia, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). He had carried a suitcase into Australia containing approximately 409 grams of powder, with a pure methamphetamine component of 309 grams. The potential street value ranged from approximately $286,000 to $306,000.

The importation was organised by a co-participant, Mr Song, who carried a similar suitcase containing approximately 297.9 grams (pure) of methamphetamine on the same occasion. The sentencing judge found that Mr Song's role in the enterprise was significantly more substantial than the appellant's, and that the appellant had been reckless rather than possessing actual knowledge that he was importing drugs.

Mr Song pleaded guilty to importing the combined quantity from both suitcases (606.9 grams pure). He was sentenced to 7 years and 9 months imprisonment with a non-parole period of 5 years, after a 27.5% discount for his plea and assistance. The appellant was sentenced to 9 years with a non-parole period of 6 years. The appellant sought leave to appeal on parity and manifest excess grounds.

  • Whether the appellant suffered a justifiable sense of grievance when his sentence of 9 years was compared with Mr Song's sentence of 7 years 9 months, given differences in role, culpability, and mental state.
  • Whether the sentence of 9 years was manifestly excessive having regard to comparable cases involving couriers importing methamphetamine in similar quantities.

Decision

Ground 1: Parity

The Court accepted that parity principles applied. Although the jury acquitted the appellant of the joint importation charge relating to the combined 606.9 gram quantity, the appellant and Mr Song were plainly co-offenders in respect of the 309 grams the appellant personally imported. RS Hulme AJ identified three factors that supported the appellant's sentence being lower than Mr Song's: the appellant's quantity was just over half that attributed to Mr Song; Mr Song's participation was found to be significantly more substantial; and the appellant was reckless rather than knowingly importing drugs, as Mr Song was. These differences were not adequately reflected in the sentencing outcome. A starting point of 11 years for Mr Song but only a 9-year head sentence for the appellant was insufficient to account for the disparity in criminality.

Ground 2: Manifest Excess

The Court rejected the manifest excess ground. A survey of comparable cases involving couriers importing between 274 and 710 grams of methamphetamine showed that head sentences of 10 to 12 years (before discount) had been regarded as appropriate. The 9-year head sentence imposed on the appellant fell comfortably within that range, and RS Hulme AJ stated that, but for the parity issue, he would not have reduced the sentence at all.

Resentencing

Having found error on the parity ground, the Court was required to exercise the sentencing discretion afresh under the principles in Kentwell v R (2014) 252 CLR 601. The Court reduced the head sentence to 8 years and the non-parole period to 5 years and 4 months. RS Hulme AJ noted the appellant's productive use of time in custody, but observed that a shorter non-parole period would have been wholly inadequate.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Toner DCJ quashed.
  • Appellant re-sentenced to 8 years imprisonment, commencing 1 April 2013 and concluding 31 March 2021, with a non-parole period of 5 years and 4 months commencing 1 April 2013 and concluding 31 July 2018.

Key Takeaways

  • Parity principles applied even though the appellant was acquitted of a joint importation charge, because the parties remained co-offenders in respect of the quantity the appellant personally imported.
  • Differences in quantity, role, and mental state (recklessness versus actual knowledge) are each relevant factors that must be meaningfully reflected in the comparison between co-offender sentences.
  • A starting point that nominally favours the more culpable co-offender will not satisfy parity requirements if the resulting head sentence fails to adequately translate that difference in criminality into the final outcome.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that 9-year head sentences for methamphetamine couriers importing quantities in the range of 274 to 710 grams were consistent with comparable authority.
  • Where an error on parity grounds is established, the appellate court must resentence afresh under Kentwell v R, taking all relevant factors into account rather than simply adjusting the figure mechanically.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.1, 307.2(1), 307.3
- Criminal Code Regulations 2002 (Cth) (marketable quantity definitions)
- Crimes Act 1914 (Cth), s 16A

Cases
- Kentwell v R [2014] HCA 37; (2014) 252 CLR 601
- Huynh v R [2015] NSWCCA 167
- AB v R [2013] NSWCCA 333
- Thuong Nguyen v R [2012] NSWCCA 184
- Kuti v R [2012] NSWCCA 43
- Hoon Tiong Seah v R [2011] NSWCCA 269
- Lau v The Queen [2011] VSCA 24
- Youssef v R [2011] NSWCCA 104
- Tsen v The Queen [2010] WASCA 21
- Ho Yan Cheng v R (unreported, Queensland Supreme Court, 27 May 2014)