TYN v R

The application for leave to appeal against sentence 23 Only one ground of appeal was pleaded. It was: "The notional 'starting point' of the sentence [of 12 years] is manifestly excessive." 24 The applicant's submissions depended heavily upon two circumstances: the quantity of the drug actually involved (242.3 grams) as against the range that constitutes a marketable quantity (2.00 grams - 1.5 kilograms); and the pattern of sentencing that can be discerned from sentencing statistics and previous cases. 25 Counsel for the applicant drew attention to the range of sentences promulgated by this Court in the (as it then was) guideline decision in R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340. But three circumstances call for caution in the application of that decision. First, on appeal from that decision, (Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584) the High Court counselled against overemphasis on the quantity of the drug involved as the overriding or predominant consideration in sentencing; second, the cases considered in Wong & Leung, and Wong & Leung itself, were decided under the regime of drug control legislation of the Customs Act 1901 (where, for example, a trafficable quantity of heroin was 2.0 grams - 1.5 kilograms), and which has been overtaken by the regime laid down by the Criminal Code Act 1995; third, the decisions, and all the cases cited, pre-date the repeal of s 16G of the Crimes Act 1914 (Cth). 26 Prior to 16 January 2003, s 16G required a court sentencing a federal offender, in jurisdictions where sentences were not subject to remissions, to take that circumstance into account. New South Wales was such a jurisdiction. It became commonplace to reduce the sentence by about one third: see generally R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1. 27 S 16G was repealed with effect from 16 January 2003. Federal offenders thereafter were not entitled to that reduction. Inevitably, that resulted in an increase in the sentences imposed. 28 Although, as I have said, the High Court in Wong & Leung cautioned against overemphasis on the quantity of the drug involved, quantity remains a significant consideration. Here, the quantity was well above the minimum that constitutes a marketable quantity, and is not to be regarded as minimal. But it is also far below the point at which the quantity would become a commercial quantity (1.5 kilograms). For sentencing purposes, fitting the quantity involved in the specific offence into the range provided by the sentencing legislation is not unimportant. 29 It is, in my view, difficult to compare the decisions that relate to "trafficable" quantities under the Customs Act regime to decisions that relate to "marketable" quantities under the present regime of the Criminal Code Act. And the impact of the repeal of s 16G ought not be overlooked: see R v A [2004] NSWCCA 292. 30 This Court was provided with a list of sentences imposed in other cases. Without more, these reveal little. They do not disclose the quantity of the drug involved, the age or antecedents of the offenders, or the circumstances of the offences. Importantly, nor do they disclose whether a plea of guilty was entered. That is significant, because the starting point of 12 years, the subject of the present argument represents a notional starting point before the reduction allowed for the plea of guilty to which the applicant was plainly entitled. In cases where a plea of guilty was entered, to provide a proper basis for comparison, it would be necessary to know, and factor in, any reduction allowed in that respect. Undoubtedly, some of these sentences would have been imposed following pleas of guilty, meaning that the sentence imposed (as stated) is not reflective of the starting point. 31 The catalogue provided does identify those cases in which a reduction was allowed by reason of assistance to authorities, but does not disclose the nature of the assistance nor the quantification of the reduction. 32 Of more use are summaries of some other cases to which reference was made. These include some relevant circumstances (including the quantity involved, and a calculation of the sentencing starting point prior to the application of any reductions). In many cases, the quantity involved is roughly in the order of that involved in the present case. In only one of the cases cited on behalf of the applicant does the starting point reach 12 years: R v Pham [2005] NSWCCA 314. There, the quantity involved was 244.6 grams of pure heroin. At first instance, that involved a sentencing starting point of 12 years, reduced in recognition of a plea of guilty. This Court (Hall J, with whom Sully and Hidden JJ agreed) held that the starting point was manifestly excessive. However, this was in reliance upon the guideline (CCA) judgment in Wong & Leung, prior to the decision of the High Court. In an earlier case (R v Ogochukwu [2004] NSWCCA 473), in respect of an offence involving 217.9 grams of pure heroin, a stated starting point of 11 years was held to be "at the higher end of the range" but not manifestly excessive. 33 On behalf of the Crown it was argued that the sentence imposed was not manifestly excessive. Indeed it was not. But so to frame the question masks the proper approach to the inquiry. If (as is not challenged) the applicant was entitled to reductions of 25% and 33% attributable to her plea of guilty and her (considerable) assistance, then it may well be that a sentence which at first sight and unexplained by those considerations, appears to be within range and even lenient, is, in fact, not within range. The approach taken on behalf of the Crown risks undermining the function of sentence reductions in respect of those two important components. What it does is risk depriving an offender of the full benefit of reductions to which he or she is entitled. Here, the proper question is whether the starting point of 12 years would have been within or outside the appropriate range for this offender and this offence, absent the reduction for the plea of guilty and the assistance. 34 I am aware that in R v SZ [2007] NSWCCA 19, and in Rutkowskyj v R [2008] NSWCCA 10, this Court has held that the focus in a sentence appeal must be the sentence actually imposed, rather than the notional starting point. But in each of these cases, it was held that the reduction allowed was excessive. Here, where it was not contended that the reduction was excessive, justice demands that the focus be on the starting point. 35 The Crown was able to produce an alternative set of precedents, and these paint a different picture to that presented by those provided on behalf of the applicant. R v Dang [2004] NSWCCA 269 involved the importation of 218.6 grams of pure heroin. A starting point of 12 years was held to be within range. R v A [2004] NSWCCA 292 involved an importation of 316.9 grams of heroin and a reduction of "40 to 50%", giving a sentence of 7 years. The starting point may therefore be calculated to have been between 11 ½ years and 14 years; this was held not to be manifestly excessive. Interestingly enough, that applicant made a decision to travel to Vietnam to collect the drugs in return for reimbursement of travel expenses and a payment of $20,000. 36 In Mirza v R [2007] NSWCCA 257, involving 313.7 grams of pure heroin and a discount of 25%, a sentence of 9 years was held not to be excessive. The starting point can be calculated as 12 years. Again, that offender had left Australia with a specific intention of importing drugs on his return, and that was held to be a matter that significantly aggravated his criminality. 37 Counsel for the applicant also provided such statistics as there are in relation to offences against s 307.2(1) involving heroin. The longest head sentence imposed was of 9 years. However, the statistics to which this Court was specifically referred do not appear to differentiate between cases where there were pleas of guilty, cases where there were reductions for assistance, and do not disclose the quantity of drugs involved. If a 9 year sentence had built into it a reduction of 25%, then the starting point is 12 years. 38 These decisions persuade me that the starting point of 12 years, although towards or even at the top of the available range, was not outside the judge's sentencing discretion. 39 Accordingly, I would grant leave to appeal but dismiss the appeal.