TYN v R

[2009] NSWCCA 146

New South Wales
Court of Criminal Appeal

CITATION:	TYN v R [2009] NSWCCA 146
HEARING DATE(S):	5 May 2009
JUDGMENT DATE:	15 May 2009
JUDGMENT OF:	Spigelman CJ at 1; James J at 2; Simpson J at 3
DECISION:	Leave to appeal granted, appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Particular offences - drug offences - importation of marketable quantity of border controlled drug - appeal against sentence - whether notional starting point of sentence manifestly excessive - leave to appeal granted, appeal dismissed
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Customs Act 1901 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Mirza v R [2007] NSWCCA 257 R v A [2004] NSWCCA 292 R v Dang [2004] NSWCCA 269 R v El Hani [2004] NSWCCA 162 R v Ogochukwu [2004] NSWCCA 473 R v Pham [2005] NSWCCA 314 R v Studenikin [2004] NSWCCA 164; (2004) 60 R v SZ [2007] NSWCCA 19 R v Wong & Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 Rutkowskyj v R [2008] NSWCCA 10 Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 NSWLR 1
PARTIES:	TYN (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/16377
COUNSEL:	M Dennis (Applicant) W Abraham QC (Respondent)
SOLICITORS:	Legal Aid Commission (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0113
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	5 October 2007

2007/16377

SPIGELMAN CJ
JAMES J
SIMPSON J

15 May 2009

TYN v R

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 JAMES J: I agree with Simpson J.

3 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon her in the District Court on 5 October 2007 following her plea of guilty to a charge that, on 10 December 2006, she imported a marketable quantity of a border controlled drug, contrary to s 307.2 of the Criminal Code Act 1995 (Cth). By s 307.2(1) of that Act, a maximum custodial penalty of imprisonment for 25 years is prescribed for the offence. Nield DCJ sentenced the applicant to imprisonment for 6 years with a non-parole period of 3 years and 9 months, commencing on 10 December 2006 (the date of the applicant’s offence and arrest). The non-parole period will expire on 9 September 2010.

The facts

4 The applicant is an Australian citizen. In November 2006 she was recruited by a person involved in drug trafficking, for the purpose of travelling to Vietnam and returning to Australia carrying a quantity of heroin. She was given an airline ticket and $3,000 for expenses in Vietnam. She flew to Vietnam, was met at the airport, given heroin for her own use, and taken to a hotel. There she remained for about ten days. On 9 December 2006 she swallowed 53 latex-encased packages containing heroin. As was later shown, the packages contained a total of 332 grams of white powder, which in turn contained 242.3 grams of pure heroin. The applicant flew from Vietnam to Australia the following day.

5 She was arrested at Sydney airport. Initially she agreed, then declined, then agreed again, to undergo an internal search. She was taken to the St George Hospital and underwent a CT scan, which revealed the presence of the packages. During the course of that and the following day the packages were naturally excreted from her body. The value assigned to the heroin was between $81,765 and $692,160 “depending upon how it was sold and its purity at sale.”

Personal circumstances

6 The applicant was born in Vietnam in June 1964, one of ten children. She was 42 years of age at the time of the offence. Her only criminal record consisted of a 2005 offence of possession of a prohibited drug for which she was fined $400; and, in 2004, offences of reckless driving and driving whilst there was present in her blood the prescribed concentration of alcohol (mid-range).

7 In 1997, whilst still living in Vietnam, the applicant met and married her husband. Shortly after their marriage her husband migrated to Australia, and made several applications to sponsor the applicant. These initially failed but were eventually successful. She came to Australia in 2000. The marriage failed in 2003 when her husband discovered that the applicant was homosexual.

8 The applicant’s homosexuality had been recognised before she left Vietnam, where it was unacceptable and regarded as shameful. It appears that that remains the case in the Vietnamese community in Australia.

9 Her mother and four of her siblings live in Australia. Her mother is 81 years of age. One brother suffers from liver cancer.

10 While the applicant retains the support of her mother, her siblings are said to have “turned their backs on her due to the shame she brought on the family”.

11 The applicant has had some employment in Vietnam and in Australia, but was most recently in receipt of unemployment benefits.

12 She told an officer of the Probation and Parole Service, who prepared a Pre-Sentence Report for sentencing purposes, that she was on medication for paranoia. Health records suggest that she is prescribed a drug to enable her to sleep.

13 The applicant began drinking alcohol at age 18. She began using illicit drugs after her entry into Australia, in about 2003. In the years that followed, she used methylamphetamine, heroin, opium, and other, unidentified, drugs. The drug use followed the breakdown of her marriage and her family relationship brought on by the disclosure of her homosexuality.

14 She told the Probation and Parole Service officer that she committed the offence because she owed money as a result of her drug use. She said that her family was threatened and she therefore felt compelled to go ahead with the offence. In evidence in the sentencing proceedings, she said that she owed $20,000, and was promised that, upon her return from Vietnam with the heroin, she would be given money to repay the debt.

15 The applicant said that she suffered from arthritis in both knees, one of which required her to wear a support bandage.

16 On 1 May 2007 the applicant was interviewed by police. She gave certain information. Later (28 September 2007) she signed an undertaking pursuant to s 21E of the Crimes Act 1914 (Cth) to assist the authorities in the prosecution of those who had recruited her, including by giving evidence, and therefore at considerable risk to herself.

17 As at the date of sentencing (and as at the date of the hearing of the application), she had not been called upon to discharge the obligations of this undertaking (although, on the day before the hearing of the application, a trial had been listed, in which it seems, the applicant was expected to be a witness. For reasons not disclosed to this Court, the trial did not proceed).

18 Evidence before the sentencing judge showed that the assistance given by the applicant was “truthful and valuable”, going further than merely confirming what police already knew, and providing previously unknown information, and identifying a person said to be a principal in a drug importing organisation.

The Remarks on Sentence

19 The sentencing judge recounted the circumstances of the offence, and the applicant’s subjective circumstances. He accepted that the plea of guilty was entered at the earliest appropriate opportunity, and allowed a reduction in sentence attributable thereto of 25%. He recognised that the applicant’s co-operation would have the result that the applicant would serve her sentence in “non-association” and at some risk. He further reduced the sentence for this reason by 33%.

20 He accepted that the applicant’s expressions of contrition were “real and genuine” and that there were reasonable prospects for her rehabilitation. (Up to a point, this was in the face of the Pre-Sentence Report, in which the author expressed concerns about the applicant’s recognition of and insight into the magnitude of her conduct. The author expressed concerns that the applicant had requested a shorter sentence to enable her to care for her mother, whilst failing to explain the impact her offence, if successful, would have had upon the community. It was also the opinion of the author that, should the applicant fail to address the outstanding issues of substance abuse, her risk of re-offending remains high.) Nevertheless, there is no basis on which this Court ought to depart from the findings of the sentencing judge, before whom the applicant gave evidence. These findings are not challenged on behalf of the Crown and must, therefore, be accepted.

21 His Honour found that the role of the applicant was as a courier. He accepted, as was uncontroversial, that the offence was serious, demanding a term of full-time imprisonment, and that general deterrence was an important sentencing consideration.

22 His Honour then concluded that the appropriate starting point for sentencing was a term of imprisonment for 12 years. In accordance with the decision of this Court in R v El Hani [2004] NSWCCA 162, he then reduced that sentence by 25% (3 years) in recognition of the plea of guilty, resulting in a sentence of 9 years, which he further reduced by 33% (another 3 years) in recognition of the co-operation. The resulting sentence was as I have set out above, of a non-parole period of 3 years and 9 months and a balance of term of 2 years and 3 months. His Honour divided the reduction of 3 years attributable to co-operation/assistance as to 1 year in respect of already provided assistance, and 2 years for what the applicant promised for the future.

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.

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