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Court of Criminal Appeal 23 November 2018

Wong v R

[2018] NSWCCA 263

Drugs
CRIMINAL LAW METHAMPHETAMINE ORGANISED CRIMINAL ACTIVITY

Citation: Wong v R [2018] NSWCCA 263
Court: Court of Criminal Appeal, NSW
Date: 23 November 2018
Judge(s): Leeming JA, Walton J, Wilson J (all agreeing)

Background

The applicant, a Hong Kong citizen, was convicted of importing a commercial quantity of methamphetamine (787.8 grams pure weight) into Australia, contrary to s 307.1(1) of the Criminal Code (Cth). She had pleaded guilty in the Local Court. A further trafficking offence, involving 111.9 grams of pure methamphetamine found at her Ashfield premises, was taken into account at sentencing under s 16BA of the Crimes Act 1914 (Cth).

The applicant had come to Australia on a working holiday visa and had assisted her co-offender partner in facilitating the importation scheme. The sentencing judge, Judge Haesler SC, imposed a total sentence of 6 years and 9 months imprisonment, with a non-parole period of 3 years and 9 months, commencing 6 September 2016.

The applicant sought leave to appeal against that sentence, advancing seven grounds. The Court of Criminal Appeal granted leave but dismissed the appeal.

The court was asked to resolve whether the sentencing judge had erred by:

  • Failing to give adequate mitigation credit for the guilty plea
  • Incorrectly treating the s 16BA trafficking offence in assessing overall criminality
  • Finding the offence was aggravated by being committed without regard for public safety and by involving organised criminal activity
  • Placing undue emphasis on financial gain as an aggravating factor
  • Failing to take into account the applicant's character, age, and personal history
  • Failing to make a finding regarding the applicant's prospects of rehabilitation
  • Imposing a sentence that was manifestly excessive

Decision

Guilty plea mitigation: The court found that the sentencing judge had expressly and adequately reduced the sentence to reflect the guilty plea. There was no demonstrated failure to apply mitigation for the plea.

Section 16BA offence: The court accepted that a sentencing judge must not use a schedule offence (taken into account under s 16BA) to increase the sentence for the principal offence, but must instead allow it to produce a moderate increase in the overall sentence. The court found the sentencing judge had approached this correctly.

Aggravating factors: The court found no error in the sentencing judge's reliance on the absence of regard for public safety and the involvement of organised criminal activity. These were properly available as aggravating factors on the facts. Similarly, while financial gain is an element of many drug importation offences, the sentencing judge's reference to it was not shown to have produced a material sentencing error.

Subjective factors and rehabilitation: The court found that the sentencing judge had expressly considered the applicant's personal background, the psychological report, her letter, her remorse, and her prospects of rehabilitation. The applicant's age (26 at the time of offending), lack of prior relevant criminal history, and positive custodial conduct were all reflected in the non-parole period ratio, which was varied considerably in the applicant's favour. The court concluded the sentence was, in all the circumstances, a modest one and could not be characterised as manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may properly treat lack of regard for public safety and involvement in organised criminal activity as aggravating features in commercial drug importation cases, provided those findings are supported by the agreed facts.
  • A schedule offence taken into account under s 16BA of the Crimes Act 1914 (Cth) should produce only a moderate increase in overall sentence and must not be used to inflate the sentence for the principal offence; no error is established where the sentencing judge's approach is consistent with that principle.
  • Where a sentencing judge expressly addresses a guilty plea, personal background, remorse, and rehabilitation prospects in reasons, an appellate court will not readily conclude those factors were overlooked merely because the applicant contends greater weight should have been given to them.
  • Manifest excess requires more than showing the sentence is markedly different from others; it must be established that the sentence is so far outside the available range that an error of principle must have occurred, or that the sentence is plainly unjust.
  • Financial gain as a sentencing consideration in drug importation matters does not automatically constitute impermissible double-counting, but any reliance on it must not produce a material error in the sentence ultimately imposed.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 302.4(1), 307.1(1)
- Crimes Act 1914 (Cth), s 16BA
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Hughes v R [2018] NSWCCA 2
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- DPP (Cth) v Gow (2015) NSWCCA 208; 298 FLR 397
- Kassis v R [2013] NSWCCA 298
- Landner v R [2014] NSWCCA 198
- Lim v The Queen [2017] VSCA 246
- R v Barton (2001) 121 A Crim R 185; [2001] NSWCCA 63
- R v Dennison [2011] NSWCCA 114
- R v Lawrence [2005] NSWCCA 91
- R v Morgan (1993) 70 A Crim R 368
- DBW v R [2007] NSWCCA 236
- Van Can Ha v R [2008] NSWCCA 141
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180; [2002] NSWCCA 518