Citation: R v Leung [2002] NSWSC 858; (2002) 134 A Crim R 187
Court: Supreme Court of New South Wales, Common Law Division
Date: 18 September 2002
Judge(s): Wood CJ at CL
Background
The accused, a Hong Kong national, flew to Sydney from Canada in March 2001 and took steps to receive a shipping container of canned pineapple from China. Concealed inside 16 cartons within that container were 131.58 kg of MDMA (ecstasy) and 14.99 kg of heroin, with a combined estimated street value of between $8 million and $15 million. The narcotics were hidden inside modified cans, and the cartons containing them were distinguishable only by a minor typographical difference in the printed labelling.
Customs and AFP officers pre-selected the container for inspection, identified the concealed drugs, and proceeded to mount a controlled delivery operation. The accused was subsequently arrested in connection with receiving and handling the container. A co-accused was acquitted of related charges.
The accused was charged on two counts of being knowingly concerned in the importation of prohibited narcotic substances in quantities not less than the commercial quantity, contrary to the then-applicable section 233B(1)(d) of the Customs Act 1901 (Cth). Following a jury trial, he was convicted on both counts. This judgment dealt solely with sentencing.
Legal Issues
- What sentence was appropriate for two serious Commonwealth drug importation offences, involving quantities far exceeding the commercial threshold?
- How should the court treat the accused's role in the importation in the absence of full and truthful disclosure by him about that role?
- How should the principle of totality apply when imposing consecutive sentences for two separate offences?
- What weight should be given to the accused's personal circumstances, including his lack of prior criminal history and family situation?
Decision
Wood CJ at CL found the importation was plainly a commercial operation of very significant scale. The MDMA quantity was more than 100 times the applicable commercial quantity and described as one of the largest consignments of that substance ever intercepted in Australia. The heroin quantity was approximately seven times the commercial quantity. The court concluded the accused played the role of a middleman or courier, receiving the container on behalf of others, but the full extent of his involvement could not be determined precisely given his lack of candour.
The identities of those behind the importation, including a Canadian resident referred to as Peter Li and the Hong Kong contact who arranged local clearance, could not be established with sufficient certainty on the evidence available. The court expressly declined to make findings against those individuals, noting the absence of their evidence and the limited material before it.
In assessing comparable sentences, the court surveyed a range of Court of Criminal Appeal decisions involving similar quantities and offenders of comparable objective culpability. The court then applied the totality principle, structuring consecutive sentences so that the overall sentence reflected the combined criminality without being crushing.
The court gave some weight to the accused's personal circumstances but found those factors were substantially outweighed by the objective seriousness of the offending, his plea of not guilty (which carried no discount), and the need for general deterrence in cases of large-scale commercial drug importation.
Orders Made
- Count 1 (MDMA): Fixed term of imprisonment of 14 years, commencing 6 April 2001 and expiring 5 April 2015.
- Count 2 (heroin): Imprisonment for 18 years, commencing 6 April 2003 and expiring 5 April 2021.
- Non-parole period of 12 years set on Count 2, commencing 6 April 2003 and expiring 5 April 2015.
- Effective total sentence of 20 years, with a minimum actual custodial period of 14 years from 6 April 2001.
Key Takeaways
- Where a drug importation accused declines to give truthful disclosure about his role, a sentencing court will assess that role on the totality of available evidence, and the absence of candour does not attract any mitigation.
- The MDMA quantity of over 131 kg at commercial purity was characterised as among the largest ever intercepted in Australia, a factor that bore heavily on the sentence imposed.
- Totality principles applied to consecutive Commonwealth drug importation sentences require the overall sentence to reflect combined criminality without producing a result that is disproportionate or crushing.
- A plea of not guilty, resulting in a contested jury trial, carries no sentencing discount, and the absence of remorse or cooperation further limits the mitigating factors available to an offender.
- Sufficient uncertainty existed about the roles of overseas associates to prevent the court making adverse findings against them in the sentencing proceedings, illustrating the limits of fact-finding in sentencing hearings where third parties have not given evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth), s 233B(1)(d) (since repealed)
Cases:
- Olbrich v The Queen (1999) 199 CLR 270
- Pearce v The Queen (1999) 194 CLR 610
- Ryan v The Queen [2001] 75 ALJR 815
- Wong & Leung v The Queen (2001) 76 ALJR 79
- R v Bernier (1998) 102 A Crim R 44
- R v Bigic [2000] NSWCCA 9
- R v Bimahendali [1999] NSWCCA 409
- R v Bowers (NSWCCA, 20 June 1997)
- R v Budiman (1999) 102 A Crim R 411
- R v Camus [1999] NSWCCA 425
- R v Chen [2002] NSWCCA 174
- R v Chiap Nam Tam [2001] NSWCCA 438
- R v Cordero-Vidal [2002] NSWCCA 36
- R v El Kaharni (1990) 21 NSWLR 370
- R v Effendi [2001] NSWCCA 391
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Chi Wah Ho [1999] NSWCCA 67
- R v Klein (2001) 121 A Crim R 90
- R v Pereira (1991) 57 A Crim R 46
- R v Power [1999] NSWCCA 25
- R v Rocco [2001] NSWCCA 124
- R v Salgado-Silva [2001] NSWCCA 36
- R v Wong and Leung [2002] NSWCCA 169