Citation: Lee v R [2017] NSWCCA 156
Court: Court of Criminal Appeal (NSW)
Date: 30 June 2017
Judges: Hoeben CJ at CL; R A Hulme J; Wilson J
Background
The applicant was convicted by jury of importing methamphetamine into Australia as a border controlled drug, contrary to s 307.3 of the Criminal Code 1995 (Cth). The charge related to a parcel sent from China containing approximately 3.2 kg of a substance that tested positive for methamphetamine. Critically, the substance was destroyed before purity testing could be completed, meaning the actual quantity of pure methamphetamine was never established.
The District Court sentenced the applicant to 6 years' imprisonment with a non-parole period of 3 years and 6 months. In her sentencing remarks, the judge found that the applicant "was aware that the item contained a substantial quantity of a border controlled drug," relying in part on the gross weight of the imported substance.
The applicant sought leave to appeal on the basis that the sentencing judge had wrongly relied on the gross weight and the "substantial quantity" finding, and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in reasoning from the gross weight of the seized substance (3.2 kg) that a substantial quantity of methamphetamine was present
- Whether the judge's finding that the applicant was aware of "a substantial quantity" breached the principle in The Queen v De Simoni by taking into account a circumstance that would have warranted conviction for a more serious offence
- Whether the total sentence was manifestly excessive
Decision
The Court of Criminal Appeal found no error in the judge's reasoning on Ground 1. R A Hulme J observed that it was inconceivable the actual quantity of pure methamphetamine was trivial, noting that even at a modest 10 per cent purity the substance would have yielded 320 grams. The applicant's conduct (such as offering his cousin $4,000 to receive the parcel) was consistent with a significant importation.
However, the Court identified a different error going to the De Simoni principle. Under the Commonwealth drug importation regime, separate offences apply depending on quantity: importing a marketable quantity of methamphetamine (2 grams or more) under s 307.2 carries a maximum of 25 years, while the unspecified quantity offence under s 307.3 carries a maximum of only 10 years. Because purity was never established, the charge was brought under s 307.3. The judge's finding that the applicant was aware he was importing a "substantial quantity" effectively treated the offending as equivalent to importing a marketable or commercial quantity, which would have grounded a conviction for a more serious offence.
The De Simoni principle prohibits a sentencing judge from taking into account circumstances of aggravation that would have warranted a conviction for a more serious offence. The Court found the sentencing judge had breached this principle by relying on the "substantial quantity" finding as an aggravating factor in circumstances where that finding was indistinguishable from the elements of a more serious charge. The error was not merely a finding about what the applicant intended to import; the judge had treated the actual quantity as an established aggravating fact.
On the question of manifest excess, the Court allowed the appeal and reduced the sentence. Taking into account the nature of the offence, the need for general deterrence, the applicant's personal circumstances (including family ties, employment history, and the risk of visa cancellation), and the corrected sentencing approach, the Court assessed a sentence of 3 years' imprisonment to be appropriate.
Orders Made
- Leave to appeal against sentence granted and appeal upheld.
- The sentence imposed in the District Court on 19 August 2016 was quashed.
- In lieu, a sentence of 3 years' imprisonment was imposed, dating from 31 March 2016.
- The applicant was to be released on recognizance on 30 December 2017 after serving 1 year and 9 months, upon giving security by recognizance in the sum of $100 without surety, to be of good behaviour for the balance of the term.
Key Takeaways
- The De Simoni principle prohibits a sentencing court from treating as an aggravating circumstance any fact that would have warranted conviction for a more serious offence than the one for which the offender was actually found guilty.
- Under the Commonwealth drug importation regime, importing a "marketable quantity" of methamphetamine (2 grams or more) is a distinct and more serious offence than importing an unspecified quantity. Where purity cannot be established and the offender is charged under the unspecified quantity provision, a finding that the offending involved a "substantial quantity" risks crossing the De Simoni line.
- Reasoning from the gross weight of a substance to the likely presence of a significant quantity of pure drug is not, of itself, erroneous. The error in this case arose from how that quantity finding was then used as an aggravating factor in the sentencing exercise.
- A sentencing judge's finding that an offender was "aware" of the substantial quantity does not avoid the De Simoni problem where the finding in practice operates as a finding about the quantity actually imported, not merely about the offender's subjective intention.
- General deterrence remains a significant consideration in drug importation sentencing, and personal circumstances such as immigration consequences and family ties are relevant but do not displace that principle.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), ss 307.1, 307.2, 307.3, 307.4, 312
- Criminal Code Regulations 2002 (Cth), Sch 4
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- Nguyen v The Queen [2016] HCA 17; 256 CLR 656
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
- R v Lee [2007] NSWCCA 234