REGINA v YU [1999] NSWCCA 6 | Case summary

1 HULME J: The facts in this matter are recorded in the Judgment of Greg James J which I have had the advantage of reading and accordingly I can be brief. The Respondent's role may be conveniently summarised without injustice to him as that of an interstate courier of imported heroin, the pure quantity of which was a little over 1kg. As Barr J, the sentencing Judge, found the Respondent's intention was to take the drug to Melbourne for further distribution in the drug trade. 2 He pleaded guilty but this was on the last or second last day of the Crown case in a trial which had commenced more than 2 weeks previously and, understandably, His Honour did not regard this as any evidence of contrition, nor as having saved any significant hearing time. 3 The Respondent's subjective circumstances are also described by Greg James J and subject to two matters are unremarkable. The first of these was that Barr J accepted that the Respondent was experiencing "a major depressive episode and severe anxiety". Understandably, this condition was attributable in part to his trial and prospects on sentence, factors common to many offenders. In part, according to the report of the psychologist which His Honour accepted, it arose in consequence of separation from his wife and child but as this was self-inflicted when he left them in Hong Kong to come to Australia, and here chose to commit the offence, it is not obviously entitled to much weight - c.f. Bernier (unreported, CCA, 19 May 1998), Jelks (unreported, CCA, 1 December 1995). However, there were other matters referred to which were likely causes of the Respondent's mental state which could not be attributable to actions on his part and his Honour's acceptance of the psychologist's report as to the Respondent's condition entitled the Respondent to a lesser sentence than otherwise. 4 The second aspect of the Respondent's subjective circumstances is that in 1981 he was convicted in Hong Kong of possessing a dangerous drug for the purpose of trafficking and sentenced to 7 years imprisonment of which he served a period of somewhat less than 5 years. The offence for which he was sentenced by Barr J was thus a second one and demonstrated a persistent disregard for the harm unlawful drugs do and for the laws designed to discourage use of, and trade in, such substances. Absent offsetting circumstances, this fact required a sentence towards or above the top of the range for comparable offenders facing their first sentence. 5 The sentence imposed of imprisonment for 3 years and 11 months with a non-parole period of 2 years and 1 month was arrived at after His Honour gave credit for a period of just over 1 year and 5 months spent in custody prior to being granted bail. Thus effectively the sentence imposed was one of 5 years and 4 months with a non-parole period of 3½ years. His Honour's reasons for arriving at the head sentence are as follows:- 6 "The Court was referred to a number of cases which have dealt with the likely range of sentences for couriers dealing with amount varying from ½ kg to just short of 2kgs of heroin. They suggest that an appropriate head sentence for a case involving between 1.4 and 1.8kgs is 10 years or a little less. I think an appropriate head sentence in the present case is 8 years. 7 I deduct one-third to take account of the absence of remissions in New South Wales. That produces a head sentence of 5 years and 4 months." 8 Included in the appeal papers were the Crown submissions with which His Honour had been furnished. They include reference to El Karhani (1990) 97 ALR 373; (1990) 51 A Crim R 123, where the drug was 447 grams of heroin, the offender was a courier who pleaded guilty, and this Court said that the head sentence, but for the fact it was being imposed in a successful Crown appeal, should have been 7 years imprisonment, Muanchukingkan (1990) 52 A Crim R 354 (455 grams, heroin, courier, plea, 7½ years with a non-parole period of 5½ years), Lam (1991) 53 A Crim R 118, (1433 grams, heroin, plea, 7 years minimum and 2 years, 4 months additional term), Ferrer-Esis (1991) 55 A Crim R 231 (1819 grams cocaine, plea, successful Crown appeal, 9/5 years), and Lama (unreported, CCA, 4 August 1995) (1.5 kg heroin, plea after sentence indication, but for assistance sentence would have been 10/6½ years). 9 Although Ferrer-Esis was a case involving cocaine, the Crown submissions do not refer to any other case involving a quantity of about 1.8kgs and it may be that His Honour had in mind the last three cases mentioned in his remarks to the effect "that an appropriate head sentence for a case involving between 1.4 and 1.8kgs of heroin is 10 years or a little less." 10 Given the quantity with which the Respondent was involved was just over 1kg., and putting aside the fact it was his second offence, one can thus understand His Honour's statement that an appropriate head sentence in the case of the Respondent was 8 years. Indeed that figure lies at the upper end of the range referred to in El Karhani and just below the range referred to in Ferrer-Esis. In the former case this Court said that it agreed with a submission that "having regard to the 'tariff' for like cases, the severity appropriate in the circumstances of the offence lies somewhere between a (head) sentence of 7 to 12 years". The submission is recorded at page 133-4 of the report where the group under consideration were described as "small-time couriers". The sentence adopted in the circumstances of the particular case was 10 years, reduced to 7 to reflect the requirements of Section 16G (as, no doubt, the "7 to 12" range must be). 11 In Ferrer-Esis, Hunt J said (at p 237):- "The recognised pattern of sentencing of couriers of substantial quantities of heroin, prior to the commencement of the Sentencing Act 1989 (NSW) … produced head sentences of between 12 and 16 years …. Taking into account the adjustment required by Section 16G, the previous pattern translates into a head sentence of between eight and a half and eleven years." 12 As was said in Bernier (supra) commonly when this Court refers to ranges, these are referable to offenders who plead guilty and who have no prior convictions. 13 However, those ranges, and the sentences imposed or indicated prior to the taking account of factors not present in the instant case, in the decisions of Lam, Ferrer-Esis and Lama are after account was taken of the absence of remissions in New South Wales. It seems to me clear from the passage I have quoted that His Honour must have misunderstood that fact and that the Respondent has had the benefit of the Section 16G discount given for the absence of remissions, twice. His Honour gave no explanation otherwise why he arrived at the figure of 5 years and 4 months compared with the 10 and 8 year periods he had earlier mentioned. In that the Respondent received the discount twice, His Honour erred. 14 Furthermore, although His Honour referred to the Respondent's prior conviction, nowhere in that part of his Reasons which deal with the appropriate terms of punishment is there reference to that matter. The fact of that conviction is a matter which differentiates the Respondent from the offenders in El Karharni and Ferrer-Esis and from the class of offenders of whom the Courts in those two cases may be taken to have been speaking and His Honour's failure to refer to it in that part of his reasons where he was dealing with the determination of the appropriate sentence and which I have quoted makes me doubt that it was given any weight. It certainly should have been. 15 In a matter of Spiteri, judgment in which was delivered on the same day as the decision in this case, I canvassed at length the issue of sentences imposed on persons involved with imported drugs or the importation of them and it is unnecessary to repeat that analysis. Among the conclusions at which I arrived in that case was that the patterns indicated in El Karhani and in Ferrer-Esis indicate the appropriate range in the case of couriers importing trafficable quantities of heroin or cocaine. Of course, due allowance must be made for any difference in relevant factors. These include the fact that the quantity, a little over 1000 grams is significantly more than in the cases dealing with small time couriers but significantly less than it was in Ferrer-Esis and in the class of case there under consideration, the lateness of the Respondent's guilty plea, his lack of contrition and his prior conviction. 16 The circumstances of the offence, particularly the quantity, the lateness of the plea and the absence of contrition mean that the sentence could not properly be less than the top of the range of 8 years, after the Section 16G discount is made, discussed in El Karhani. The Respondent's mental condition leads me to the view that, had there been no prior conviction, his sentence should not have been more. However that conviction means that the sentence should have been considerably more. Against the range in El Karhani alone, a fortiori when the prior conviction is taken into account, the sentence on the Respondent of 5 years and 4 months (before allowance is made for pre-sentence custody) is manifestly inadequate. This also demonstrates error. 17 A comparison with the terms of the statute leads to the same conclusion. Once recognition is given to Section 16G of the Crimes Act, the maximum penalty prescribed by the Customs Act for the Respondent's offence is about 16 ½ or 17 years imprisonment. The quantity of just over 1 kilogram with which he was involved is about two thirds of the maximum trafficable quantity. Given these facts and that the Respondent stood for sentence for his second major drug offence, the imposition of a head sentence of 5 years and 4 months - less than one third of the maximum - with a non-parole period of 3½ years sends quite the wrong message to potential drug offenders. 18 Reference to the relevant parts of a summary table which forms an appendix to my Reasons in Spiteri also demonstrates the inadequacy of the sentence. In an extract from that appendix, which I have included in these Reasons, is contained a list of all cases in this Court involving trafficable quantities of heroin or cocaine up to 2000 grams which I have found. Putting aside cases where there has been discount for assistance to the authorities, one needs to go down to an importation of under 100 grams by a first offender to find a sentence as low as that imposed on the Respondent. 19 It must be acknowledged that in Bernier (supra) this Court said that the range of 8½ to 11 years referred to in the passage quoted from Ferrer-Esis should now be regarded as appropriate to cases where the importation is of a low commercial quantity rather than of a substantial trafficable quantity. However, since then and after considering Bernier, this Court has said in Robertson (unreported, CCA, 6 November 1998) that the range for couriers involved in the importation of substantial quantities of heroin or cocaine, i.e., at the upper end of the trafficable or at the lower end of the commercial range is as stated in Ferrer-Esis. Furthermore, as I foreshadowed during the course of argument I regard that opinion expressed in Bernier as wrong. As I have explained in Spiteri, it is inconsistent with a number of prior decisions of this Court to which in Bernier no reference was made or consideration given. 20 It has been suggested that, nevertheless this Court should not interfere and Everett v R (1994) 181 CLR 295 was referred to. That case was an appeal from the Court of Criminal Appeal in Tasmania which court had allowed an appeal from a sentence imposed at first instance. A number of the remarks of the High Court must be considered against the fact that in Tasmania the Crown needs leave to appeal to the Court of Criminal Appeal, whereas in the state the Crown has an appeal as of right, albeit this Court has a discretion not to interfere even if error be shown. However I do not need to rely on that difference. The majority of the Court quoted with approval a passage from the judgement of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310:- "an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". 21 The majority went on:- "The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle"." 22 McHugh J said:- "If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for a particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals." 23 The manifest inadequacy to which I have referred means that there is nothing in Everett v R which argues against allowing the Crown appeal here. 24 However this being a Crown Appeal, the sentence imposed may be less than should have been imposed at first instance. Taking that approach, I am of the view that, but for his pre-sentence custody, the Respondent should be sentenced to a term of imprisonment for 9 years. The circumstances argue for a non-parole period at or close to the top of the normal range and this period should be 6 years. 25 Allowance should be made for that period of just over 1 year and 5 months pre-sentence custody. In my view the Court should make the following orders:-

The appeal is allowed.
Quash the sentence imposed on the Respondent on 5 September 1997.
In lieu thereof, sentence the Respondent to imprisonment for a term of 7 years and 7 months, commencing on 23 April 1997, such sentence to include a non-parole period of 4 years and 7 months also to date from 23 April 1997. 26

GREG JAMES, J: 28 The Commonwealth Director of Public Prosecutions pursuant to s.5D of the Criminal Appeal Act 1912 seeks to appeal against the sentence imposed by his Honour Justice Graham Barr in the Supreme Court of New South Wales, on the respondent on a charge under s.233B of the Customs Act 1901 of, without reasonable excuse, attempting to obtain possession of prohibited imports to which that section applied, to wit, narcotic goods consisting of a quantity of heroin which had been imported into Australia in contravention of the said Act, being not less than the traffickable quantity of heroin. Section 235 of the Customs Act prescribes a maximum prison sentence of 25 years for such an offence and a maximum of life imprisonment for offences involving a commercial quantity. The traffickable quantity prescribed is two grams. The commercial quantity is 1.5 kilograms. The quantity involved in this offence was a little more than one kilogram. 29 The sole ground of appeal asserted in the notice of appeal is that the sentence is manifestly inadequate. 30 Should the appeal be allowed, s.5D gives to the court power in its discretion to vary the sentence and impose such sentence as to the court may seem proper. The general considerations appropriate to the determination of such appeal have been referred to in Griffiths v. R (1977) 137 CLR 293; Everett v. R (1994) 181 CLR 295; Regina v. Allpass (1993) 72 A. Crim. R. 561. 31 His Honour, the learned trial judge, sentenced the respondent to a head sentence of three years and 11 months with a non-parole period of two years and one month dating from 23 April 1997, on which date the respondent who had originally pleaded not guilty, changed the plea to guilty during his trial. The respondent had been in custody prior to that date for one year, five months and 12 days, thus the sentence equates to a head sentence of five years and four months with a non-parole of three years and six months. 32 His Honour came to deal with the respondent when dealing with two co-accused who had earlier pleaded guilty to charges under the Customs Act 1901 of conspiring to import not less than the commercial quantity of heroin. Their culpability was much greater than and their roles different to that of the respondent. Some discussion of the relevant facts in those matters is necessary to give the factual background to the respondent's sentence. 33 The co-accused had participated in a cunning conspiracy to import heroin from Bangkok to Sydney in five consignments of goods and to transmit more than $500,000 out of Sydney by way of individual sums of less than $10,000 to avoid reporting under the Financial Transaction Reports Act 1988. There were numerous people involved in the importations and his Honour held that the conspiracy and the circumstances of its implementation bespoke "meticulous care and planning". 34 The heroin imported was cleverly concealed wrapped in carbon paper, said to inhibit the powers of sniffer dogs, and packed behind the inner backing of glass pictures contained in crates. The earlier importations were successful. However in January 1995, the heroin was detected and a derivative of plaster of Paris substituted for it, the pictures re-constituted in their crates and a controlled delivery thereafter occurred. Some of the bags of heroin were delivered to a unit in the Waldorf Apartments and some to a room on the 17th floor of the Golden Gate Hotel on 13 January 1995. The respondent and another man came to Sydney from Melbourne that day with the intention of obtaining heroin from the conspirators. 35 His Honour held that the respondent had travelled to Sydney by arrangement with the co-accused Tam and obtained a room on the 17th floor of the Golden Gate Hotel almost opposite to the one to which the bags of plaster of Paris had been taken. Two bags were handed over to the respondent or someone on his behalf some time late in that day. The respondent believed that the bags contained heroin and they were concealed in a space in the bottom of a box of packets of noodles. The respondent was apprehended before an aircraft he had boarded bound for Melbourne took off and the bags then in his possession would have, had they contained the original heroin mixture, contained a little over one kilogram of pure heroin that the respondent would have possessed. 36 His Honour sentenced one of the conspirators to 24 years imprisonment with a non-parole period of 16 years holding that he was employed at the highest level in the Australian part of the organisation and reported to those who were in control and that although he was not a principal, his seniority and responsibility in an importation of such enormous amount of heroin places his criminality in the most serious class of cases. His Honour was of the view that the imposition of the maximum sentence of life imprisonment would be appropriate in those circumstances but taking into account the absence of remissions in New South Wales reduced the head sentence to that to which I have referred. His Honour accepted the submissions put by the Crown that the present respondent should be described "as a foot soldier". He was to transport the quantity of heroin he sough to obtain to Melbourne for further distribution. 37 In dealing with the part played by the respondent, his Honour held that his criminality for attempting to obtain the heroin, in that he succeeded in getting his hands on the bags delivered to him, believing and intending them to contain heroin from the consignment, was just as great as if he had succeeded. Nonetheless, he was liable to a lower maximum than the conspirators because the amount he had intended to obtain consisted of a traffickable quantity. Of course, the offence he intended to commit, whilst linked to the activities of the others, was distinct and within a much narrower compass. 38 His Honour accepted that the respondent was a heavy gambler with a string of convictions for illegal gambling activities in Hong Kong. The respondent gave an account of becoming involved in order to obtain money to meet gambling debts, asserted that his rewards would be comparatively small, that he knew something illegal was involved and not exactly what, that he had no idea exactly what he was supposed to collect and had finished up at the Golden Gate Hotel purely by chance. His Honour, not surprisingly, was of the view that this account was improbable and concluded that the story was fashioned to reduce to a minimum the respondent's culpability short of traversing his plea of guilty and to avoid saying anything of an inculpatory nature about the part played by the respondent's companions. His Honour concluded that the respondent came to Sydney by arrangement with Tam, that he met up with the conspirators or their representative as intended at the Golden Gate Hotel by appointment, that he knew he was collecting heroin and that he intended to take it to Melbourne for further distribution in the drug trade. 39 His Honour drew attention to the respondent's previous conviction in Hong Kong for possessing a dangerous drug for the purposes of trafficking which resulted in a sentence of seven years imprisonment of which the applicant served somewhat less than five years and from which he came when he travelled to Melbourne. His Honour accepted the respondent had an addiction to gambling and to heroin but was of the view that those vulnerabilities did not mitigate criminality. His Honour did not accept that there was any true contrition but accepted psychological evidence that the respondent was experiencing a major depressive episode and severe anxiety. 40 The learned judge accepted that the respondent should be treated on sentence as a courier but would not accept a distinction urged upon him between the criminality of a domestic courier and an international courier saying:- "Any courier is essential to the lawful distribution of drugs." 41 Regard was had to a limited number of cases to which his Honour was referred by the Director dealing with the likely range of sentences for couriers and it was submitted there was a pattern that an appropriate head sentence for a case involving between 1.4 and 1.8 kilograms was 10 years or a little less. 42 His Honour had regard to the matters set out in s.16A(2) of the Crimes Act and in particular to the respondent's mental state, the difficulties he will experience when serving his sentence and the absence of his family. His Honour was of the view that an appropriate head sentence in the present case was eight years. His Honour thereafter deducted one-third in compliance with s.16G of the Crimes Act 1914. He determined on a non-parole period of three years and six months, thereafter deducting from both head sentence and the non-parole period that period that the respondent had already spent in custody. 43 It is submitted on behalf of the Director that the sentence is manifestly inadequate, that is, so lenient that it is indicative of an error or departure from principle on the part of the sentencing judge. It is contended that his Honour fell into error in nominating a starting point so low as, so it is submitted, Regina v. Ferrer-Esis (1991) 55 A. Crim. R. 231 indicates a sentencing range of approximately eight and a half to 11 years after the adjustment for s.16G is made. 44 It is further contended that neither the particular circumstances of the respondent's commission of the offence nor his subjective circumstances justify the sentencing judge's departure from such a sentencing pattern and the court's attention has been drawn to an extensive summary of cases together with the submissions put by the Crown below seeking to analyse the cases to produce an appropriate "tariff" of the order of that asserted. Regrettably, I do not find the schedule of comparative sentences provided with the written submissions for the Director of any assistance. They do not appear to indicate a clear range of sentences such as would support the Director's submissions when their individual circumstances are considered. 45 Sentencing is an exercise of discretion in the instant individual case. It is an exercise of discretion within legal parameters. The range of sentences imposed for a given offence must be considered in the light of the circumstances in each individual case said to establish that range. It is possible, nonetheless, to detect a general range or tariff in the sentences actually passed and often in judgments such as Ferrer-Esis (supra) that is what is being referred to. But in an appeal by the Crown it is necessary to demonstrate an actual error of principle: Everett v. The Queen (1994) 181 CLR 295. It is particularly difficult for the appellant to succeed in this task unless it can be seen that the sentence actually passed is so far beyond the range that in the content of the reasons expressed by the trial judge the result is inexplicable or explained only by some exposed error. To my mind, for the reasons I shall give shortly, the Director has not demonstrated in this sentence any such error by way of the sentence being manifestly inadequate or revealed error of reasoning or principle such as would warrant the intervention of this court. I consider the sentence lenient but not legally erroneous on the bases advanced on the appeal. 46 This court had recently before the hearing of this appeal, after full argument, in a considered, unanimous decision, examined the range of sentences in respect of cocaine and heroin importation offences committed by couriers in Regina v. Bernier (CCA, unreported 19 May 1998) and in particular has had regard to the very range of sentences in respect of traffickable quantities on which reliance is here placed for the purpose of deciding what sentences should appropriately be imposed for lower range commercial quantities. Many of the cases to which the Crown adverts in its present appeal were considered. Regina v. Lawson & Ors (CCA, unreported 12 December 1997) was referred to as support for the proposition that since Ferrer-Esis the pattern of sentences which have been imposed on couriers in respect of substantial traffickable quantities of heroin and cocaine is less than that to which Ferrer-Esis had regard. Bernier holds the range is lower than that referred to in Ferrer-Esis and extends considerably lower than the point at which his Honour intended would be the appropriate starting point here. It is patent that differing judicial views in this court embrace a range of sentences which on decided authority well includes that determined by his Honour. In the present case his Honour plainly intended to impose a sentence the starting point for which would be set lower than the mid-point of the range as he considered it. In this case, as in Spiteri and Jiminez, judgments in both of which are delivered today, for the reasons I gave there, I am not prepared to depart from the then prevailing views as expressed in Bernier (supra) as presently advised. 47 In support of its submission that his Honour fell into error, the Crown contended that his Honour must have regarded the "10 year tariff" to which he referred as establishing a range to which the s.16G deduction had not already been applied and that this error was implicit in his Honour's reasoning. However, the written submissions of the Crown before his Honour made the matter expressly clear at p.9, lines 3-7 (Appeal Book, p.92 )and the relevant passage of his Honour's remarks refers to quantities substantially greater than involved here. His Honour deals with the matter in such a way as not to suggest to me any such error or that his Honour misinterpreted the Crown's submissions:- "The court was referred to a number of cases which have dealt with the likely range of sentences for couriers dealing with amounts varying from half a kilogram to just short of two kilograms of heroin. They suggest that an appropriate head sentence for a case involving between 1.4 and 1.8 kilograms is 10 years or a little less. I think that an appropriate head sentence in the present case is eight years. I deduct one-third to take account of the absence of remissions in New South Wales. That produces a head sentence of five years and four months." 48 For my part, I do not regard this Honour's assessment of the particular circumstances of the respondent's commission of this offence or his subjective circumstances as showing error such as would be shown by application of the principles in Regina v. House (1936) 55 CLR 499 and Regina v. Cranssen (1936) 55 CLR 509 and in particular I do not regard his Honour's treatment of the prior overseas conviction as erroneous in the light of this court's decision in Regina v. Postiglione (1991) 24 NSWLR 584. 49 Accepting what has now been held in Bernier (supra), I am not persuaded that in the result his Honour's sentence fell so far outside any such range as is asserted as to be reflective of an error of principle such as Everett (supra) would require for a Crown appeal to succeed. 50 Subsequent to this judgment being drafted, we have been referred by the Director to the recent decision of this court in Regina v. Robertson (unreported, 6 November 1998). I have also had the opportunity to read in draft the remarks of Hulme, J. in Regina v. Spiteri and Regina v. Jiminez and, with the greatest respect to the views his Honour advanced there and because of the matters I refer to in my remarks in Regina v. Spiteri, and in the joint judgment of Hidden, J. and myself in Regina v. Jiminez, I do not regard this case to be one in which it would be appropriate to reconsider what was held in Bernier (supra), particularly since what was held in Regina v. Lawson (CCA, unreported 4 December 1997) and Bernier has been referred to in Regina v. Wai Trung Chu (CCA, unreported 16 October 1998) without disapproval. I am further confirmed in my views by what has been said by Abadee, J., with whom Sheller, JA. agreed in his analysis of the cases in Regina v. BarrientoS [1999] NSWCCA 1 at paras.18-32. 51 In my opinion the appeal should be dismissed.

REGINA v YU

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