Sentencing Bench Book — Particular offences

Commonwealth indictable and summary offences are defined respectively in ss 4G and 4H Crimes Act 1914 (Cth). Section 4J provides for indictable offences to be dealt with summarily if certain conditions are met. Unless there is provision to the contrary, offences with a maximum penalty of greater than 10 years are strictly indictable.

In Wong v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ held at [64] that the difficulty of detecting the offence of being knowingly concerned in the importation of heroin and the great social consequences flowing from its commission, suggest that deterrence is to be given chief weight in the sentencing task and that stern punishment will be warranted in almost every case. The majority identified other features of the offence at [64]:

The significance of general deterrence in the context of serious drug offences irrespective of an offender’s role and because of the pernicious nature of the drug trade has been repeatedly emphasised by appellate courts: R v Chen [2002] NSWCCA 174 at [286]; R v Riddell [2009] NSWCCA 96 at [57]–[58]; Nguyen v R (2011) VR 673 at [34]; DPP (Cth) v Bui (2011) 32 VR 149 at [38]–[39].

In very limited circumstances, such as when an offender comes forward to assist law enforcement authorities to frustrate the completion of a drug offence, deterrence may be of less significance: RCW v R (No 2) [2014] NSWCCA 190 at [74]. In such circumstances the offender should be sentenced “to provide an example of what might become of someone who has the good conscience to come forward and assist … in order to thwart serious criminal activity”.

Non-custodial sentences for drug importation must be restricted to truly exceptional cases: R v Wong and Leung (1999) 48 NSWLR 340 per Spigelman CJ at [104]; R v Fabian (unrep, 16/10/92, NSWCCA) per Sully J.

While Parliament distinguishes between the maximum sentence that may be imposed for both Commonwealth and State offences on the basis of quantity, for Commonwealth offences the relevant quantity refers to the pure weight of the narcotic: R v King (1978) 24 ALR 346.

The lists of applicable trafficable, marketable and commercial quantities for each type of border controlled, or controlled, drug are set out in the Criminal Code Regulations 2019 (Cth): see Pt 3, Div 1 and Schs 1 and 2. The amounts for Commonwealth drug offences are based on the pure amount of the drug.

In Wong v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ held that the Court of Criminal Appeal erred in offering a grid founded entirely on the gravity of the offence, as measured only by the weight of narcotic concerned and against which future sentences were to be judged: at [71]. The starting point given by the Court of Criminal Appeal was based on the false premise that the gravity of the offence can usually, or perhaps even always, be assessed by reference to the weight of the narcotic involved: at [73]; see also Kirby J at [135].

The matters properly taken into account in fixing a sentence include the quantity of the drug involved, the offender’s knowledge and role in the importation and the offender’s anticipated reward from participating. Weight is not the chief factor to be considered in fixing a sentence: Wong v The Queen at [67]ff.

Both Parliament and the courts have eschewed the approach that penalties should be proportional to quantity: R v Doan (unrep, 27/9/1996, NSWCCA); R v Postiglione (1991) 24 NSWLR 584; R v Schofield [2003] NSWCCA 3. In R v Vo [2000] NSWCCA 440, Wood CJ at CL said at [32]:

However, that there is some relationship between the quantity of drug involved in the offence and the sentence ultimately imposed is reflected by the statement of the majority in Wong v The Queen at [64]:

See also: Tyn v R [2009] NSWCCA 146 at [28]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [307]. In R v Nguyen [2005] NSWCCA 362 at [110], Howie J concluded that in an appropriate case the quantity involved might place an offence in the worst case category (as that concept was understood prior to The Queen v Kilic (2016) 259 CLR 256). His Honour’s approach was endorsed by the WA Court of Appeal in Sukkar v R (No 2) [2008] WASCA 2 at [46].

In Wong v The Queen at [68], the court recognised that not all offenders involved in importation of narcotics will know or even suspect how much pure narcotic is being imported but the size of an importation has increased significance when an offender does have some knowledge of the quantity involved.

In addition, as Greg James J observed in R v Soonius (unrep, 29/5/98, NSWCCA) in referring to reliance being placed upon quantity alone:

Whether importing more than one kind of border controlled drug on the same occasion significantly increases the overall criminality of the offending conduct depends on the facts of the particular case. Some degree of accumulation is not necessarily required where the importation of more than one type of drug is the subject of separate counts. The guiding principle is to ensure the total effective sentence properly reflects the overall criminality involved in all the offences: MEG v R [2017] WASCA 161 at [22].

Any attempt to rank the seriousness of narcotics either under the Customs Act 1901 (Cth) or the Criminal Code (Cth) is inappropriate. In Adams v The Queen (2008) 234 CLR 143, Gleeson CJ, Hayne, Heydon, Crennan and Kiefel JJ stated at [10]:

The High Court in Adams v The Queen rejected the appellant’s assertion that he should have been sentenced on the basis that MDMA was less harmful than heroin: at [9]–[10].

In R v Corbett [2008] NSWCCA 42 (decided before Adams v The Queen), the sentencing judge erred by concluding that “GBL is a drug of a lesser order than the so called ‘hard drugs’”: at [4]. The many border controlled drugs and quantities listed in s 314.4 Criminal Code (Cth) “are only connected by the common thread of legislative proscription”: at [45]. Harrison J stated at [47]:

Notwithstanding these statements of principle, past analysis of the sentences imposed for offences involving different types of drugs suggest that there is some difference of treatment, in terms of the sentence imposed, based on drug type. See “Ch 6 Sentencing patterns for the period 2008–2012” in particular at 6.3.11–6.3.12 in P Mizzi, Z Baghizadeh and P Poletti, Sentencing Commonwealth drug offenders, Research Monograph 38, Judicial Commission of NSW, Sydney, 2014. See also DPP (Cth) v Maxwell [2013] VSCA 50; R v Hill [2011] QCA 306.

In order to determine an offender’s culpability in an importation offence it is essential for the sentencer, if possible, to determine the offender’s role in the criminal enterprise: R v Laurentiu (unrep, 1/10/92, NSWCCA); R v Bimahendali [1999] NSWCCA 409. The shortcomings of attempting to categorise the role of the offender were recognised by the majority, Gleeson CJ, Gaudron, Hayne and Callinan JJ, in Olbrich v The Queen (1999) 199 CLR 270 at [14]:

Sometimes, the offender’s role is not known to the court. In such cases, the court is not obliged to find facts favourable to the offender or to accept his or her version of events: Olbrich v The Queen at [27]–[28]. In Giles-Adams v R [2023] NSWCCA 122, very little was known about the criminal enterprise responsible for the attempted importation and it was held the sentencing judge erred in finding the applicants had “intermediate-level” roles in the absence of evidence as to the identity/roles of others involved and other features of that enterprise: at [112]–[115].

It is accepted that the offender’s role and level of participation in the criminal enterprise are more important than the mere quantity of drugs, subject to the recognition that the gradation of seriousness is reflected in the increase in statutory maximum penalties as the quantity of drug increases: R v MacDonnell [2002] NSWCCA 34. The quantity of the drug remains material, given that the size of the profit and the harm inflicted are likely to be proportional to the weight of the drug: R v Stanbouli [2003] NSWCCA 355 at [102].

In R v Stanbouli, Spigelman CJ at [3], with whom Carruthers AJ agreed at [179], held that life imprisonment should be reserved as “the norm” for those at the top of the importation hierarchy, rather than those who “provide important assistance”, as Hulme J held at [113]. Note the schedule of cases assembled by Hulme J at [144]–[170], including several where sentences of life imprisonment were imposed on offenders described as “mid-level executives”. See Mandatory Life Sentences under s 61 at [8-600].

In R v Flavel [2001] NSWCCA 227, the court rejected a submission that the categorisation of the offender’s role as a mid-level manager in the importation of 117 kg of pure cocaine called for the imposition of less than the statutory maximum penalty. The court upheld a sentence of life with a non-parole period of 25 years as being within the sentencing judge’s discretion. Similarly, in R v Gonzales-Betes [2001] NSWCCA 226, the court upheld the sentence of life with a non-parole period of 22 years for a co-offender regarded as a “mid-level” executive, “not the ring leader, chief executive or chairman of the board” in the same importation.

In Olbrich v The Queen (1999) 199 CLR 270, the majority, Gleeson CJ, Gaudron, Hayne and Callinan JJ, recognised that a distinction between “couriers” and “principals” may usefully describe different kinds of participation in a single enterprise of importation. However, too much reliance should not be placed upon these terms when sentencing a particular offender. The majority said at [19]:

The importance of this principle and the difficulty of making an assessment of a particular offender’s role were reiterated in Kuo v R [2018] NSWCCA 270 at [118] and in Klomfar v R [2019] NSWCCA 61 at [40]. Drug syndicates, which by their nature are secretive, do not operate transparently and the “rank” of a drug offender within the criminal organisation is necessarily opaque and “more a matter of speculation than a process of rationally drawing inferences”: Kuo v R at [118], [123]. It remains important for a sentencer to focus on what the offender actually did: Kuo v R at [118]; see also Kook v R [2001] NSWCCA 122 at [15].

Couriers, and those low in the drug hierarchy, generally receive a lesser sentence than persons at a higher level: Tyler v R [2007] NSWCCA 247 at [79]; R v Chea [2008] NSWCCA 78 at [34]. Justice Simpson explained in Tyler v R at [79]–[80]:

Nonetheless, there is no inevitable correlation between an offender said to be in the lower echelon of a hierarchy, and the severity of the punishment they can expect to, and will, receive: Klomfar v R at [41].

Couriers involved in the same importation can be differentiated on the basis of their reward: Seng v R [2007] NSWCCA 335. At first instance, the applicant in Seng v R was sentenced by the same judge to an identical non-parole period as the co-offender, and a head sentence of only 6 months less. The couriers travelled on the same flight after ingesting pellets of heroin but the Court of Criminal Appeal found that their roles were materially different. The co-offender participated in the importation for significant financial reward, being promised a cash payment of $30,000 to $35,000, and he secured the applicant’s involvement, whereas the applicant acted out of a sense of obligation to a man higher in the enterprise: at [22]. The applicant’s financial gain amounted to payment of his expenses while he stayed in Cambodia for a month, and the airfare to Australia which would allow him to see his son.

The Court of Criminal Appeal in Tyler v R [2007] NSWCCA 247 confirmed that the relevance of the offender’s role in sentencing for drug conspiracies refers to the seniority of the offender whose sentence is under consideration: at [79]. The court found that the sentencing judge erred in assessing the role of one co-offender, Chalmers, who booked flights and obtained tickets for the courier (the other co-offender, Tyler), as being relatively minor in the overall operation. The judge also found that the role of Chalmers was diminished by his lack of involvement in travelling overseas to obtain the drugs. Ordinarily, those who carry the drugs are at the bottom of the hierarchy, while those in higher positions distance themselves from physical contact with the drugs: at [75]. To treat Tyler as more culpable because of his close physical connection to the drugs inverts the conventional approach to blameworthiness in drug conspiracies: at [76]. Justice Simpson stated at [83]–[84]:

There has been a debate about the extent to which a judge can take into account at sentence facts relating to an importation when an offender is charged with a possession offence (and attempted possession): El-Ghourani v R [2009] NSWCCA 140. The starting point is that there is no obligation to inquire about the course of events before or after an offence and it is wrong to sentence an offender for criminality for which they have not been charged: El Jamal v R [2021] NSWCCA 105 at [24], [26]; [64]; The Queen v Olbrich (1999) 199 CLR 270 at [18], [22]; The Queen v De Simoni (1981) 147 CLR 383 at 389.

However, some circumstances relating to the process of the drug’s importation may also be relevant to a charge of possession: El-Ghourani v R, per Spigelman CJ at [30]. His Honour said at [33] that:

Having regard to the broader circumstances or overall context of an offender’s involvement in a drug importation for a possession offence is not inconsistent with The Queen v Olbrich provided the sentencing judge focuses on the crime charged and does not treat complicity in the uncharged importation as an aggravating factor: El-Ghourani v R [2009] NSWCCA 140 at [30]; The Queen v Olbrich at [18] referring to The Queen v De Simoni. Prosecuting authorities have an obligation not to seek to rely on circumstances as aggravating the possession offence, where those circumstances constitute proof of a distinct charge: El Jamal v R at [64] per Garling J (Payne JA and Wright J agreeing).

It is not always easy to distinguish between permissible and impermissible evidence concerning an importation when an offender is only charged with possession: El Jamal v R at [32], referring to Balloey v R [2014] NSWCCA 165 at [24]. The judge must keep firmly in mind that the offender is not charged with importing the drugs and acknowledge that the evidence could not be used to impose a greater penalty on the offender: R v Guiu [2002] NSWCCA 181 at [2]–[3]; El-Ghourani v R at [6], [9], [32]. In El Jamal v R, the Court of Criminal Appeal found the sentencing judge erred by making frequent references to “the importation offence” and placing importance on the findings about the offender’s role in the uncharged importation: at [38]. Likewise, the judge in R v Bousehjin [2003] NSWCCA 86 erred by incorrectly focusing on the uncharged importation and failing to focus on the attempted possession offence: at [26]. By contrast, the judge in El-Ghourani v R stated that the offender “was acting as a principal in Australia in this importation” but correctly maintained the focus on the possession charge: at [35].

In sentencing federal offenders, ss 16A(2)(h) and 16AC (previously s 21E) Crimes Act 1914 (Cth) provide statutory obligations for an offender’s assistance to authorities to be taken into account.

Assistance to authorities takes on particular significance in importation offences because of the “notorious difficulties of detecting the crime of importation”: R v Wong and Leung (1999) 48 NSWLR 340. The fundamental importance of general deterrence in sentencing drug offenders, at whatever level in the hierarchy, gives way to the greater community interest in allowing a significant discount for assistance by couriers whose implication of principals contributes to the disruption of drug importation networks: R v Perrier (No 2) [1991] 1 VR 717 at 725.

However, as was said by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 232:

ZZ v R [2019] NSWCCA 286 is an importation case under s 307.2 of the Criminal Code (Cth), in which fresh evidence established that the applicant’s assistance to the authorities was of much greater value than was thought at the time of sentence: at [30]. Evidence of events post-sentencing is only admissible to determine whether to quash a sentence in confined circumstances. One exception is to show the true significance of facts in existence at the time of sentence: ZZ v R at [20]–[22]; R v Smith (1987) 44 SASR 587 at 588; Khoury v R [2011] NSWCCA 118 at [113]. In resentencing the applicant, the initial discount of 25% for the plea of guilty was increased 35% to also take account of the assistance: ZZ v R at [33].

See Power to Reduce Penalties for Assistance to Authorities for constraints on the application of the discount at [12-200]ff and Co-operation with law enforcement agencies: ss 16A(2)(h) and 16AC at [16-025] Section 16A(2) factors for a discussion of the relevant principles.

In R v A [2004] NSWCCA 292, Wood CJ at CL said at [25]:

While entitlement to a discount does not necessarily depend on the effectiveness of the information supplied, the value of the assistance is relevant to the evaluation of the discount. In R v Barrientos [1999] NSWCCA 1, Abadee J reviewed the authorities on assistance in Commonwealth offences, including R v Dinic (1997) 149 ALR 488 and R v Cartwright (1989) 17 NSWLR 243, and said at [47]:

Good character carries less weight in crimes involving drugs than for many other offences: R v Leroy [1984] 2 NSWLR 441 per Street CJ at 446–447. This principle is usually of particular relevance in relation to drug couriers involved in importation where persons with clear records are selected so as to not attract suspicion: R v Lopez-Alonso (unrep, 7/3/96, NSWCCA); R v Salgado-Silva [2001] NSWCCA 423.

In R v X [2002] NSWCCA 40, the court rejected a submission that, as good character has limited significance in crimes involving drugs, then having a previous conviction cannot be of major significance in determining an appropriate sentence. On the contrary, Smart AJ said at [57] that: