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Court of Criminal Appeal 23 December 2019

Heng v R

[2019] NSWCCA 317

Drugs
CRIME SENTENCE ASSESSMENT OF OBJECTIVE GRAVITY WHETHER MANIFEST EXCESS APPEAL DISMISSED

Citation: Heng v R [2019] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 23 December 2019
Judge(s): Macfarlan JA (leading judgment, at [1]); Harrison J (agreeing, at [60]); Cavanagh J (agreeing, at [61])

Background

The appellant was convicted in the District Court of importing a commercial quantity of methylamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). He pleaded guilty and also asked the court to take into account an additional offence of aiding and abetting the manufacture of a commercial quantity of a border controlled drug. Both offences carried a maximum penalty of life imprisonment.

The operation involved a shipping container arriving at Port Botany from China, concealing approximately 73.80 kilograms of pure methylamphetamine within wax blocks hidden inside flat-pack furniture. The appellant played a significant organising role: he arranged the rental of a warehouse for delivery of the container's contents, coordinated transportation and logistics, sourced equipment used in the extraction process, and maintained close oversight through frequent communication with co-offenders. The methylamphetamine had an estimated street value of approximately $89.6 million.

The District Court sentenced the appellant to 23 years and 9 months imprisonment, with a non-parole period of 15 years and 9 months. He sought leave to appeal, arguing that the sentencing judge erred in characterising the offence as among the most serious of its kind and that the sentence was manifestly excessive. An extension of time was also required as the application was filed late.

  • Whether the sentencing judge erred in finding that the objective seriousness of the offence was "amongst the most serious" of its kind.
  • Whether the sentence of 23 years and 9 months (with a non-parole period of 15 years and 9 months) was manifestly excessive.

Decision

On objective seriousness: The appellant argued that the sentencing judge had impermissibly assessed the offence as sitting at the very uppermost end of the range. Macfarlan JA rejected this ground. On a proper reading of the sentencing remarks, the judge did not place the offence at the absolute pinnacle of seriousness. Rather, the judge found it to be objectively very serious, reflecting the large quantity of drug involved, the appellant's substantial organising role, the significant planning and sophistication of the operation, and the involvement of multiple co-offenders over an extended period.

On manifest excess: Macfarlan JA reviewed comparable sentences imposed in other cases involving large-scale drug importation by offenders in senior or organising roles. Those cases supported head sentences in a broadly similar range. The Court also noted that the appellant was on parole for a prior drug supply offence when he committed these offences, and that he used telecommunications services subscribed in false names and took active steps to cover his tracks after co-offenders were arrested.

The Court was satisfied that the sentence, while substantial, was within the range appropriate to the appellant's offending. Although the appellant was not the "mastermind" of the operation, he held a level of responsibility clearly above a middle-tier participant. In dismissing the appeal, Macfarlan JA confirmed that neither the sentence nor the non-parole period reflected any error warranting appellate intervention.

Orders Made

  • Extension of time granted for the filing of the application for leave to appeal.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A sentencing judge's characterisation of an offence as "amongst the most serious" of its kind does not necessarily mean the judge has placed it at the absolute upper limit of seriousness. The Court of Criminal Appeal will read sentencing remarks as a whole and in context.
  • In dismissing the appeal, the Court confirmed that an organising role in a large-scale drug importation, even one falling short of "mastermind" level, can properly attract a head sentence well in excess of 20 years.
  • Relevant aggravating features in this matter included the offending occurring while on parole, the use of false-name telecommunications services, and deliberate steps taken to conceal evidence after co-offenders were arrested.
  • Where a defendant seeks to establish manifest excess, a review of comparable cases must demonstrate that the sentence lies outside the available range. Here, comparison with sentences in Group 2 cases identified in DPP (Cth) v De La Rosa supported the outcome reached.
  • The Court applied established principles from Hili v The Queen and Barbaro v The Queen, reinforcing that consistency in federal drug sentencing is assessed by reference to the range of sentences imposed in comparable cases rather than by way of prosecution submissions as to a specific range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16BA, 16G
- Criminal Code (Cth), ss 11.2, 305.3, 307.1

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- R v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Xiao v The Queen (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270
- Lin v R; Ng v R [2016] NSWCCA 200
- Obiekwe v R [2018] NSWCCA 55
- R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- Chan v The Queen [2010] NSWCCA 153
- Yuan v The Queen [2015] NSWCCA 198
- R v Lee [2007] NSWCCA 234
- Teng, Lam, Tan and Wong (2009) 22 VR 706