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Court of Criminal Appeal 11 May 2004

Regina v Shi [2004] NSWCCA 135 revised - 21

[2004] NSWCCA 135

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST LENIENCY PLEA OF NOT GUILTY

Citation: Regina v Shi [2004] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 11 May 2004
Judge(s): Spigelman CJ, Wood CJ at CL, Simpson J

Background

The respondent, a 19-year-old man born in China who had moved to Australia at age 14, pleaded guilty in the District Court to supplying not less than a commercial quantity of methylamphetamine. Police stopped a taxi he had boarded and, after a short chase, recovered a shoulder bag he had tried to conceal. It contained 992.2 grams of methylamphetamine at 84.5% purity. A Form 1 offence of possessing a false NSW driver's licence was also taken into account on sentencing.

The respondent's evidence was that he acted as a courier as a favour for an older dealer, in exchange for clearing a drug debt and obtaining a smaller quantity for his own personal use. His background included parental separation shortly after his arrival in Australia, social isolation, and a significant dependence on illicit drugs including methylamphetamine.

The District Court sentenced the respondent to four years' imprisonment with a non-parole period of two years. The Crown appealed on the ground that this sentence was manifestly inadequate.

  • Whether the sentence of four years with a two-year non-parole period was manifestly inadequate for supplying not less than a commercial quantity of methylamphetamine.
  • Whether the sentencing judge gave appropriate weight to the objective seriousness of the offence, including the quantity and purity of the drug.
  • Whether the subjective circumstances of the respondent (youth, vulnerability, drug addiction, courier role, remorse, and rehabilitation prospects) justified a sentence below the standard non-parole period.
  • Whether the ratio between the non-parole period and the total term should be varied.

Decision

Wood CJ at CL (with whom Spigelman CJ and Simpson J agreed) found the sentence was inadequate and allowed the Crown appeal. Although the sentencing judge's factual findings were not challenged, the weight given to mitigating factors did not justify the degree of departure from the standard non-parole period that the original sentence represented.

The Court accepted that the respondent occupied the lowest rung of the supply hierarchy, acting as a runner or courier. It also accepted that he had been preyed upon by older men while vulnerable due to his age, cultural dislocation, and drug dependence. These factors, combined with his early guilty plea, absence of prior convictions, genuine remorse, and strong rehabilitation prospects, justified a sentence below the standard non-parole period. However, the original sentence was too low given the very substantial quantity and unusually high purity of the drug, and the fact that the offence formed part of organised criminal activity carried out without regard for public safety.

Applying the principles of double jeopardy applicable to Crown appeals, the Court imposed the least sentence it considered could properly have been imposed at first instance. The Court declined to interfere with the ratio between the non-parole period and the total sentence in the absence of a specific Crown submission on that point, and noted there was an arguable risk of double-counting if the ratio had been varied on the identified grounds.

Orders Made

  • Appeal allowed.
  • Sentence below quashed.
  • Respondent sentenced to a total term of six years' imprisonment with a non-parole period of three years, commencing 15 May 2003.
  • Non-parole period directed to expire on 14 May 2006, being the earliest date the respondent would be eligible for release on parole.

Key Takeaways

  • A courier or runner role at the bottom of a drug supply hierarchy can reduce objective seriousness below the mid-range, but does not of itself justify a substantial departure from standard non-parole periods where the quantity and purity of the drug are very high.
  • Youth, cultural vulnerability, drug dependence, and exploitation by older offenders are legitimate mitigating factors, but their combined weight must still be measured against the gravity of the offence.
  • On Crown appeals for manifest inadequacy, the Court of Criminal Appeal will substitute the least sentence it considers could properly have been imposed at first instance, in recognition of the double jeopardy principle.
  • Where no specific Crown submission is made regarding the ratio between the non-parole period and the total term, the Court of Criminal Appeal may decline to alter that ratio even where some increase to the overall sentence is warranted.
  • Genuine remorse, absence of prior convictions, an early guilty plea, and demonstrated engagement with rehabilitation programs in custody remain relevant mitigating considerations even in serious commercial drug supply matters.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(i), 21A(2)(n), 44(2)

Cases:
- Regina v Way [2004] NSWCCA 131
- R v Laurentio and Becheru (1962) 63 A Crim R 402
- R v Le Cerf (1975) 13 SASR 237