R v Constant (No 2)

The applicants, Constant and others, sought leave to appeal against their convictions for importing a commercial quantity of a border-controlled drug, contrary to s 302.2 of the *Criminal Code* (Cth). The Crown sought to appeal against the sentencing orders made by the trial judge, which involved recognisances under s 20 of the *Crimes (Sentencing Procedure) Act 1999* (NSW) without a custodial sentence. The matter was heard by Nicholson, Lovell and Hinton JJ in the Court of Criminal Appeal of New South Wales.

The primary legal issues before the Court were whether the trial judge erred in law by imposing non-custodial sentences, specifically recognisances, for the serious offence of importing a commercial quantity of a border-controlled drug, and whether the sentencing orders were manifestly excessive or inadequate. The Court also considered the principles of sentencing for such offences, particularly the interplay between the need for general deterrence and the potential for rehabilitation.

The Court held that the trial judge had erred in law by failing to impose a custodial sentence. Their Honours reasoned that the offence of importing a commercial quantity of a border-controlled drug is a serious offence that warrants a custodial sentence in all but the most exceptional circumstances. The Court emphasised the importance of general deterrence in sentencing for drug importation offences and found that the imposition of non-custodial recognisances was inconsistent with this principle. The Court also noted that while rehabilitation is a purpose of sentencing, it should not outweigh the need for general deterrence in cases of this gravity.

Consequently, the Court granted the Crown's application for leave to appeal, allowed the appeal, quashed the recognisance orders, and remitted the matters to the trial judge for resentencing according to law, with the strong indication that a custodial sentence would be imposed.