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Court of Criminal Appeal 25 March 2003

R v BOUSEHJIN [2003] NSWCCA 86 revised - 3

[2003] NSWCCA 86

Also reported as 140 A Crim R 310
Drugs

Citation: R v Bousehjin [2003] NSWCCA 86; (2003) 140 A Crim R 310
Court: NSW Court of Criminal Appeal
Date: 25 March 2003
Judge(s): Spigelman CJ; Hulme J; Buddin J

Background

The appellant pleaded guilty in the District Court to possession of prohibited imports, specifically heroin that had been imported into Australia. The circumstances involved a controlled delivery operation by the Australian Federal Police, in which an importer ("K") was apprehended at the airport after travelling from Jakarta and agreed to cooperate with authorities. The heroin, totalling 999.5 grams (720 grams pure) with a street value of between $1 million and $1.5 million, was largely removed before K proceeded to a Parramatta motel.

The appellant made contact with K by telephone, attended the motel, handed over $20,000 in cash, and was arrested when he attempted to leave with K's briefcase. Evidence recovered from his car and home, together with telephone records, connected him directly to the transaction. The sentencing judge found the appellant occupied a role above that of a mere courier, describing him as "a trusted and significant player" in the importation.

Stewart ADCJ sentenced the appellant to eight years' imprisonment with a non-parole period of five years and four months. The sentence included a reduction of one-third for the federal statutory provisions under s 16G of the Crimes Act, and a 20 percent discount for assistance provided to authorities, though the sentencing judge characterised that assistance as being of little value.

  • Whether the sentencing judge erred in finding that the appellant had a role in the importation, given that the charge was one of possession of a prohibited import rather than importation itself.
  • Whether the sentence imposed on the appellant should be reduced on the basis of parity with the sentence imposed on K, the cooperating importer.
  • Whether the sentencing judge's reliance on the then-current decision in R v Wong and Leung, subsequently overruled by the High Court, constituted an error warranting appellate intervention.
  • Whether, even if error was established, a less severe sentence was warranted under s 6(3) of the Criminal Appeal Act.

Decision

The Court acknowledged that the sentencing judge had erred in his reasoning process by placing substantial reliance on R v Wong and Leung, which the High Court subsequently overruled in Wong v R (2001) 207 CLR 584. However, the Court of Criminal Appeal's power under s 6(3) of the Criminal Appeal Act only requires intervention where some other sentence is "warranted in law and should have been passed." The Court therefore turned to whether a lesser sentence was in fact warranted.

On the parity argument, the Court considered K's ultimately reduced sentence of five years with a non-parole period of three years. The Court examined the difference in culpability between K (treated as a courier) and the appellant (found to occupy a more elevated role in the importation hierarchy), and also noted the significant difference in the assistance each had provided. K had provided substantial cooperation; the appellant's assistance was of little value and his recorded interview was found to contain information that was largely unlikely to be true and designed to minimise his own involvement.

The submission that the sentencing judge was wrong to treat the appellant as having a role in the importation was rejected. The circumstantial evidence of his involvement was compelling, and the nature of the offence of possession of prohibited imports does not preclude a sentencing court from considering the context of that possession, including the role the offender played in the broader enterprise.

Having reviewed comparable cases from the Court of Criminal Appeal, including decisions involving couriers and more senior participants, the Court concluded that the sentence of eight years, with a non-parole period of five years and four months, was not outside the appropriate range. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's reliance on a decision that is subsequently overruled does not automatically warrant appellate intervention; under s 6(3) of the Criminal Appeal Act, the Court of Criminal Appeal will only substitute a different sentence where a different sentence is actually warranted in law and should have been passed.

  • Where an offender cooperated with authorities but that cooperation was found to be largely false, designed to minimise the offender's own role, and of little investigative value, the discount available for assistance will be substantially lower than that afforded to a genuinely cooperative participant.

  • A parity argument requires the court to assess not only the sentences imposed on co-offenders but also any material differences in culpability and the extent of assistance provided. The Court of Criminal Appeal found the differential between K's and the appellant's sentences was justified by those distinctions.

  • In sentencing for possession of prohibited imports, the sentencing court is not confined to the quantity physically in the offender's possession at arrest. It may draw inferences about the offender's actual intention and the full quantity involved in the transaction the offender sought to complete.

  • Subjective factors, including prior good character, a difficult migration history, chronic physical injury, and the particular hardship of imprisonment for a non-English-speaking person, were accepted as relevant mitigating considerations, though they did not bring the sentence below the appropriate range given the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16G (reduction of federal sentences for state and territory imprisonment alternatives)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Wong and Leung (1999) 48 NSWLR 340 (subsequently overruled)
- Wong v R (2001) 207 CLR 584 (High Court)
- Saisuwan (unreported, NSW Court of Criminal Appeal, 30 September 1994)
- Turner (unreported, NSW Court of Criminal Appeal, 21 May 1993)