R v T H N

[2004] VSCA 7

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 20 of 2003

THE QUEEN

v.

T.H.N.

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JUDGES:	CHERNOV and EAMES, JJ.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 February 2004
DATE OF JUDGMENT:	4 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 7

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Criminal law – Sentencing – Importing a traffickable quantity of heroin – Sentence of five years and six months’ with minimum of three years’ imprisonment imposed – Fresh evidence of practical assistance to law enforcement agencies – Sentence of four years’ imprisonment with non-parole period of two years substituted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B.M. Young with Ms M. Tittenson	Solicitor for the Director of Public Prosecutions (Cth)
For the Appellant	Mr J. McLoughlin	Victoria Legal Aid

CHERNOV, J.A. (delivering the judgment of the Court):

1. This is an appeal against a sentence of imprisonment of five years and six months with a minimum of three years' before being released upon recognisance imposed on the appellant by a County Court judge on 31 January 2003 after the appellant pleaded guilty to one count of importing a traffickable quantity, which was a little under half a kilogram, of pure heroin, contrary to s.233B(1) of the Customs Act 1901 (Cth.) The maximum penalty prescribed for that offence is 25 years' imprisonment and/or a fine of $500,000. On 24 October 2003, a judge of this Court granted the appellant leave to appeal against the sentence pursuant to s.582 of the Crimes Act 1958. The circumstances surrounding the offence are sufficiently set out in the sentencing remarks of the learned sentencing judge and there is no need to repeat them here.

1. At the hearing before us, the appellant sought to introduce fresh evidence regarding her co-operation with law enforcement agencies in relation to offences.  The Crown conceded that such material constituted fresh evidence to which this Court could and should have regard and that on the basis of that material the sentencing discretion was re-opened, to be exercised by this Court.  Without going into detail, the new material clearly demonstrates, as was accepted by the Crown, that the appellant's co-operation with the authorities was of significant practical value and that this assistance resulted also in placing the appellant, and possibly the appellant's family, at considerable risk of physical harm and that it made the serving of the sentence considerably more burdensome.

1. We consider that, in the light of the material that was before his Honour and the fresh evidence, the appellant should be re-sentenced to a period of four years' imprisonment with a non-parole period of two years.

1. The formal orders of the Court are -

That the appeal be allowed.

The sentence imposed on the appellant in the court below is quashed and in

lieu thereof the appellant is sentenced to be imprisoned for a term of four years commencing this day.  The Court fixes a non-parole period of two years.

The Court declares that the period of 568 days is the period of pre-sentence detention already served by the appellant as part of that sentence and directs that the making of this declaration and its contents be entered in the records of the Court.

The Court also orders that the appellant's affidavit of 19 January 2004 and the sworn statements of Paul Frederick Hopkins sworn 17 January 2003 and 23 October 2003 be placed in a sealed envelope to be opened only on the order of a judge of the Supreme Court.

The Court notes that counsel for the appellant has given an undertaking, in accordance with s.16F(1) of the Crimes Act 1914 (Cth), to explain to the appellant the purpose and consequences of fixing the non-parole period.

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