38 The guidelines promulgated in Wong made no assumption one way or the other about whether there was a plea of guilty R v Karacic (2001) 121 A Crim R 7 at 16 (50) per Spigelman CJ.
39 In Wong v The Queen the High Court, on an appeal from the decision of the Court of Criminal Appeal, held that the guidelines promulgated by the Court of Criminal Appeal went beyond the jurisdiction conferred on the Court of Criminal Appeal by the Criminal Appeal Act and hence had no validity as guidelines.
40 Notwithstanding the decision of the High Court in Wong, it has been held by this Court that the range of sentences suggested by the Court of Criminal Appeal in Wong have continuing utility, because they were based on the patterns of actual sentences for offences under s 233B of the Customs Act. R v Rivadavia (2004) 61 NSWLR 63 at 67-68 (65).
41 At the time of the decision of the Court of Criminal Appeal in Wong s 16G of the Commonwealth Crimes Act was in force. Section 16G provided that, if a sentence for a Federal offence was to be served in a State (like New South Wales) where sentences were not subject to remissions, that fact had to be taken into account in the sentencing of the offender. While s 16G was in force, it was common practice to reduce sentences by about a third to take into account the absence of remissions in New South Wales.
42 Section 16G was repealed with effect from 16 January 2003. It is clear that the repeal of s 16G would be likely to have the effect of increasing sentences for Federal offenders, because sentencing judges were no longer required, or authorised, to take into account a factor, the effect of which could only have been to reduce what sentencing judges otherwise considered to be appropriate sentences. However, although different views were sometimes expressed, it is now clearly established, as stated by Price J with the concurrence of the other members of the court in SC at [34], "the adjustment for the repeal of s 16G should not be made automatically by the use of a mathematical formula or a fixed percentage". See also R v Studenikin (2004) 60 NSWLR 1; R v Rivadavia. In SC this Court declined to accept a submission by the Crown that the effect of the repeal of s 16G was that the range of sentences for importing a low level trafficable quantity of a drug should be increased from 5-7 years to 7-10 years.
43 Accordingly, the ranges of sentences indicated by the Court of Criminal Appeal in Wong have no status as guidelines, although they do have continuing utility as indicating the general pattern of sentences before Wong; the ranges of sentences in Wong make no assumption as to whether there has been a plea of guilty, so that if there has been a plea of guilty an allowance can be made for the plea of guilty; and the ranges of sentences in Wong are not to be increased by any fixed percentage because of the repeal of s 16G of the Commonwealth Crimes Act.
44 In SC Price J said in par 35 of his judgment:-
"Statistics published by the Judicial Commission of New South Wales were put before the Judge. They show that between January 2003 and March 2006 sixty one sentences were imposed for importing the trafficable quantity of cocaine. The minimum head sentence was eighteen months and the maximum ten years. The minimum non-parole period or fixed term was twelve months and the maximum term seven years. All of the sentences in the published statistics were imposed after s 16G was repealed. Sixty four per cent of the sentences had a head sentence of between seven and nine years. A head sentence of ten years was imposed in only two per cent of cases. Eighty two per cent of the head sentences were, however, between six and nine years. These figures suggest that an appropriate range of sentences involving low level trafficable quantities of cocaine and heroin after the repeal of s 16G is a head sentence of between six and nine years imprisonment."
45 It is not clear to me how his Honour derived the last sentence in the paragraph. Earlier in the paragraph his Honour was considering the sentences for importing a "trafficable quantity" of cocaine. Under the Customs Act the trafficable quantity for cocaine was between 2 grams and 2 kilograms and had to be distinguished from the "low level trafficable quantity" identified in Wong of between 2 grams and 200 grams.
46 In the present case I do not consider that it was beyond his Honour's sentencing discretion to adopt a "starting point" of about 7 years for all the respondents. I infer that his Honour then made adjustments to arrive at the sentences he would have imposed but for the assistance provided, by giving some extra weight to the pleas of guilty and the subjective features of the respondents and by reducing the sentence when the quantity imported was less than 200 grams, so as to arrive at "a sentence but for assistance" of 6 years 6 months for the offenders who had imported more than 200 grams of heroin and "a sentence but for assistance" of 5 years 6 months for offenders who had imported less than 200 grams of heroin, apart from Srey who had imported a much smaller quantity of heroin than the other respondents. His Honour then applied the discount for assistance, which, it was conceded, his Honour could properly do. In my opinion, it has not been shown that the sentences imposed by his Honour were "definitely outside the appropriate range".
47 I do not consider that the small sample of sentences in other cases urged by the Crown as being comparable cases prevented his Honour from adopting this reasoning.
48 The submission by the Crown that the non-parole periods of the sentences imposed on Oum and Yin were disproportionate to the head sentences was largely undermined by the success of the appeals by those respondents.
49 In my opinion, the only ground of appeal, that the sentences imposed on the respondents were manifestly inadequate, should be rejected and the Crown appeal should be dismissed as against all respondents.
50 HOEBEN J: I agree with James J.
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