By Paul Gregoire and Ugur Nedim
In a 1999 Crown appeal hearing against the leniency of sentences imposed upon Nelson Tak Fat Wong and Jackie Kai Chu Leung in relation to import/possess a prohibited item, namely heroin, under since repealed section 233B of the Customs Act 1901 (Cth), the Commonwealth Director of Public Prosecutions requested the court issue a guideline judgment in respect of this offence.
Then NSW Chief Justice James Spigelman announced that the NSW Court of Criminal Appeal (NSWCCA) would commence issuing guideline judgments in mid-1998, with the main objective being to ensure consistency in sentencing in regard to specific offences where it is lacking.
Since revoked section 235 of the Customs Act had contained the corresponding penalties for the offence of drug importation, with the maximum set at life imprisonment for an offence involving not less than a commercial quantity of drugs, while a conviction over a quantity of an illicit drug not less than a traffickable amount, could see someone sentenced to up to 25 years gaol time.
Whereas less than a traffickable quantity of an imported drug carried up to 2 years imprisonment, and lesser penalties applied to the importation of cannabis across the board.
Both defendants had been sentenced to 12 years imprisonment, with non-parole set at 7 years, for the importation of a substantial commercial quantity of the drug, that being 9.356 kilograms of pure heroin, in December 1998.
The NSWCCA determined that it would be appropriate to issue a quantitative guideline for the offence, which meant a sentencing guide based on amounts of an illegal drug seized, so that the larger the quantity, the longer the corresponding sentence. And this was based in part on an existing quantitative authority judgment handed down in the 1991 NSWCCA case R versus Ferrer-Esis.
However, in granting special leave to appeal the determination of the NSWCCA in 1999, the High Court of Australia found in November 2001, that not only did the NSW appeals court not have the power to hand down such a guidance in relation to a Commonwealth offence, but it was in error in finding drug weight to be the chief sentencing concern.
Drug importation guideline
Besides the Ferrer-Esis authority, the NSWCCA found two more reasons that a guideline judgment on drug importation was warranted. The first was that the provision of a guidance would result in less appeals of sentences imposed for drug importation and the setting out of specific sentences relating to different quantities would act as a general deterrence against drug importation.
“The quantity of drugs involved is an exceptionally important aspect of the objective seriousness of the crime,” their Honours explained. “However, it is not determinative of the appropriate sentence. Other aspects of the crime, including objective and subjective considerations, remain relevant in the exercise of the sentencing discretion.”
And the panel further set out that these other factors that are also relevant when promulgating a sentence result in the sentencing ranges that the court has imposed for specific weights necessarily overlapping.
The following sentencing ranges were issued by the court: low level traffickable quantity, or between 2 and 200 grams of a drug warranting 5 to 7 years imprisonment, midlevel traffickable quantity, or 200 grams to 1 kilogram corresponding to 6 to 9 years, a high range traffickable quantity, 1 to 1.5 kilograms of heroin or 1 to 2 kilograms of cocaine, warranting 7 to 10 years inside, low range commercial quantity, or 1.5 to 3.5 kilograms of heroin or 2 to 3 kilograms of cocaine, with 8 to 12 years being recommended, as well as a substantial commercial quantity coming in at 3.5 to 10 kilograms of either heroin or cocaine, with a recommended sentence of between 10 and 15 years imprisonment.
The NSWCCA justices further outlined that the guideline was intended to “apply to couriers and persons low in the hierarchy of the importing organisation”, and it was not “intended to apply to a person high in the hierarchy, to whom an increment should be applied”.
Then NSW Chief Justice Spigelman, along with then NSWCCA Justices Keith Mason, Caroyln Simpson, Harold Sperling and Graham Barr resentenced Wong and Leung to 14 years, with non-parole set at 9 years, as they found that the original sentenced handed down was “lower than the least sentence that could properly be imposed in each case”.
However, Justice Simpson dissented against the overall judgment in terms of whether the case involving Wong and Leung was appropriate as “a foundation for a guideline for couriers and persons low in the hierarchy”, as the defendants allegedly held higher positions in the criminal organisation and as well, there was no apparent statistical need for such a guidance to be handed down.
Guideline judgment struck down
Wong and Leung applied for special leave to appeal the NSWCCA finding that the original sentences handed down by the NSW District Court were manifestly inadequate to the High Court. And much of the appeal focused on whether the determining of the non-binding guideline by the appeals court was beyond its powers.
Then High Court Chief Justice Murray Gleeson noted that the challenge to the guideline was not based on factual error but that it was “too detailed and inflexible” and that, in particular, it attached “too much importance to one particular factor”. However, it wasn’t being said that it was “inherently harsh”. In fact, the prosecution had thought the guidance was light, if anything.
His Honour then identified an issue with the guideline judgment, which involved constraining “the exercise of sentencing discretion”, as it focused solely upon quantity, which he considered risky as the federal statute already contained a guidance on what matters should be focused upon when sentencing over a federal offence, under section 16A of the Crimes Act 1914 (Cth).
The High Court further found that the guideline judgment did not pertain to Wong and Leung, as they were higherups in the criminal organisation. Therefore, the guidance was created to inform future sentencing. However, while section 68 of the Judiciary Act 1903 (Cth) provides the NSWCCA jurisdiction to determine matters before it, it has no powers to influence future matters.
Justice Gleeson dismissed the appeal, which was the same determination that then Justice Ian Callinan came to. However, the pair were in the minority on the six justice High Court bench.
Then Justices Mary Gaudron, William Gummow and Kenneth Hayne identified another issue with the guideline judgment, as they raised the point that drug couriers or persons low in a criminal network are not necessarily privy to the weight of drugs being imported and more importantly, they’re often not aware of the purity of the drugs that are being received.
And the three High Court justices determined that as the guideline judgment was flawed in its focus on weight and it neglected the rest of the factors set out in section 16A of the Crimes Act, the appeal to the court was upheld, and the NSWCCA ruling was overturned, which included voiding the guideline judgment and Wong and Leung’s cases were remitted to the lower court.
High Court Justice Michael Kirby agreed with the joint ruling of his three colleagues making the decision to uphold the appeal, which further ensured the determination was in the majority.
The offence of drug importation
The offence of drug importation is no longer contained in the Customs Act, as the passing of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005, resulted in the repeal of sections 233B and 235 of the Customs Act, and it further saw drug importation laws inserted into new subdivision A division 307 of the Criminal Code Act 1995 (Cth).
The offences under this division now include importing commercial quantity, which carries life in prison, along with the importation of a marketable quantity, carrying up to 25 years, and importing a quantity of an illicit substance less than a marketable amount can see a person sentenced to up to 10 years behind bars.
Then attorney general Philip Ruddock said during his second reading on the bill, that the new legislative scheme was an attempt to standardise drug offences across jurisdictions, and while the old federal law had a focus mainly upon the importation of illicit substances, the new laws also focused on internal drug dealings and were designed to work alongside state laws.
