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24
Court of Criminal Appeal 18 August 2004

Regina v Mas Rivadavia; Regina v El Akkaoui; Regina v Aksu [2004] NSWCCA 284 revised - 18

[2004] NSWCCA 284

Also reported as 61 NSWLR 63
Drugs
CRIMINAL LAW CONSPIRACY TO IMPORT HEROIN SS 16G AND 19AG CRIMES ACT.

Citation: Regina v Mas Rivadavia; Regina v El Akkaoui; Regina v Aksu [2004] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 18 August 2004
Judge(s): Wood CJ at CL, Adams J, Smart AJ

Background

Three respondents were convicted in the District Court in connection with a planned importation of heroin from Hong Kong to Australia through the FedEx airfreight system. The group was under police surveillance during the operation. Two respondents, Mas Rivadavia and El Akkaoui, pleaded guilty on the day fixed for trial to conspiracy to import a prohibited import (708.5 grams of pure heroin), contrary to section 233B of the Customs Act 1901. The third respondent, Aksu, pleaded guilty on his trial date to attempting to have in his possession the same prohibited import.

At first instance, Nield DCJ sentenced Mas Rivadavia and El Akkaoui each to 6 years and 9 months imprisonment with non-parole periods of 4 years and 3 months. Aksu received 4 years and 3 months with a non-parole period of 2 years and 6 months. The Crown appealed all three sentences as manifestly inadequate.

  • Whether the sentences imposed on each respondent were manifestly lenient and warranted appellate intervention.
  • What approach sentencing courts should take to federal offence sentencing following the repeal of section 16G of the Crimes Act 1914 (Cth), which had previously required a one-third reduction in sentences for federal offenders to reflect the absence of remissions.
  • Whether the repeal of section 16G justified applying any mathematical formula to derive a new sentencing range.
  • Whether discretionary considerations arising from delays and custody conditions should prevent the Court from re-sentencing Aksu, even if his sentence was also found to be unduly lenient.

Decision

The Court of Criminal Appeal found that sentences for Mas Rivadavia and El Akkaoui were manifestly lenient. The sentencing judge had failed to give sufficient weight to the punitive, retributive, and deterrent purposes of sentencing, as well as to the objective seriousness of a well-planned and substantial importation operation. The respondents' favourable subjective circumstances did not justify the discount applied at first instance.

On the section 16G question, the Court confirmed the approach taken in R v Studenikin and R v Dujeu: the repeal of section 16G does not warrant mechanically increasing the existing range of sentences by applying a mathematical formula. Rather, the correct approach is to determine an appropriate sentence on proper sentencing principles, without reference to the former discount. Where pre-repeal sentencing patterns are considered, it must be understood that those sentences already incorporated a section 16G reduction that no longer applies.

Although the Court found Aksu's sentence was also unduly lenient, it declined to intervene in the exercise of its discretion. Aksu had experienced significant procedural delays, including an 18-month gap between arrest and plea due to the excision of his charge from a co-accused indictment, a further four months in maximum security awaiting sentence, and reclassification back to maximum security once the Crown appeal was lodged. The Court noted that its decision not to re-sentence Aksu was not to be taken as guidance on appropriate sentencing for couriers involved in heroin importations.

Orders Made

Mas Rivadavia:
- Crown appeal allowed
- Sentence below quashed; new sentence of 8 years and 3 months imprisonment, dating from 8 April 2002, expiring 7 July 2010
- Non-parole period of 5 years and 3 months, dating from 8 April 2002, expiring 7 July 2007

El Akkaoui:
- Crown appeal allowed
- Sentence below quashed; new sentence of 8 years and 3 months imprisonment, dating from 5 April 2002, expiring 4 July 2010
- Non-parole period of 5 years and 3 months, dating from 5 April 2002, expiring 4 July 2007

Aksu:
- Crown appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the repeal of section 16G of the Crimes Act 1914 (Cth) does not permit courts to manufacture a new sentencing range by applying a mathematical uplift to pre-repeal figures; the proper approach is to sentence afresh under correct sentencing principles, recognising that historical patterns were discounted under a provision that no longer exists.

  • Where a sentencing court reviews pre-existing patterns after the repeal of section 16G, it must bear in mind that those sentences were passed after a statutory discount that is no longer applicable.

  • Guideline decisions such as R v Wong and Leung establish general sentencing patterns but do not displace the discretion to account for the specific objective and subjective circumstances of individual cases.

  • In dismissing Aksu's Crown appeal, the Court exercised its discretion to decline re-sentencing despite finding the original sentence unduly lenient, because of prolonged procedural delays, extended time in maximum security, and the imminent proximity of his release date. The Court expressly noted this outcome provided no precedent for future sentencing of couriers in heroin importation cases.

  • Sufficient objective criminality in a well-organised, substantial drug importation scheme will warrant significant punishment even where respondents demonstrate favourable subjective circumstances.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Crimes Act 1914 (Cth), ss 16G, 19AG
- Crimes Legislation Amendment (People Smuggling, Firearms and Trafficking and Other Measures) Act 2002 (Cth), s 4
- Sentencing Act 1989 (NSW)

Cases:
- R v Studenikin [2004] NSWCCA 164
- R v Dujeu [2004] NSWCCA 237
- R v Wong and Leung (1999) 48 NSWLR 340
- R v Wong and Ng (1988) 39 A Crim R 1
- R v Saxon (1996) 86 A Crim R 353
- R v Karacic [2001] NSWCCA 12
- R v Whyte [2002] NSWCCA 343
- R v El Kaharni (1990) 51 A Crim R 123
- R v Chan (2002) 128 A Crim R 119
- R v Speer [2004] NSWCCA 118
- R v Schofield [2003] NSWCCA 3
- R v Kevenaar [2004] NSWCCA 210
- Radenkovic v The Queen (1990) 170 CLR 623
- Wong v The Queen (2001) 207 CLR 584
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- Olbrich v The Queen (1999) 199 CLR 270
- R v Tait and Bartley (1979) 24 ALR 473