In R v Wong; R v Leung [1999] NSWCCA 420 the Court of Criminal Appeal promulgated a guideline sentences for importation offences. The guideline was to apply to couriers and persons low in the hierarchy of the importing organisation. Whist the setting of a guideline judgment was held to be beyond power of the Court of Criminal Appeal – the range of sentences therein suggested still have utility as noted by James J in R v CHEA, Chhengly [2008] NSWCCA 78 (21 April 2008):
37 In Wong the Court of Criminal Appeal promulgated guidelines for sentences for offences under s 233B of the Customs Act (since repealed) which included importing into Australia prohibited drugs. The guidelines stated in Wong were to apply to couriers and persons low in the hierarchy of the importing organisation and included the following guidelines:-
Quantity Sentence:
Low level trafficable quantity (2 grams – 200 grams) 5-7 years
Mid level trafficable quantity (200 grams – 1 kilogram) 6-9 years
38 The guidelines promulgated in Wong made no assumption one way or the other about whether there was a plea of guilty R v Karacic [2001] NSWCCA 12; (2001) 121 A Crim R 7 at 16 (50) per Spigelman CJ.
39 In Wong v The Queen the High Court, on an appeal from the decision of the Court of Criminal Appeal, held that the guidelines promulgated by the Court of Criminal Appeal went beyond the jurisdiction conferred on the Court of Criminal Appeal by the Criminal Appeal Act and hence had no validity as guidelines.
40 Notwithstanding the decision of the High Court in Wong, it has been held by this Court that the range of sentences suggested by the Court of Criminal Appeal in Wong have continuing utility, because they were based on the patterns of actual sentences for offences under s 233B of the Customs Act. R v Rivadavia [2004] NSWCCA 284; (2004) 61 NSWLR 63 at 67-68 (65).
However, whilst the ranges proposed within Wong still have utility – there are a number of cautions that must apply when considering the range proposed, including the repeal of s16G of the Crimes Act 1914 (Cth). These cautions are noted by Simpson J in in TYN v R [2009] NSWCCA 146:
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.
Some of the penalties imposed for this offence include:
District Court:
- R v Bun, Soeun [2008] NSWDC 138 (1 February 2008) – 120.1 grams of pure heroin. Head Sentence of 5 years 6 months with a non-parole period of 3 years 3 months.
- R v Trung Ta Pham Nicholson DCJ 110 grams, five years-head sentence, non parole period three years
NSW Court of Criminal Appeal:
- R v Kwok Hung NG [2001] NSWCCA 305 (12 July 2001) 69 Kg of heroin, life imprisonment with a non parole period of 18 ½ years.
- R v Hendricks [2001] NSWCCA 396; (2001) 125 A Crim R 303 162 grams of cocain, six years six months non parole four years three months.
- R v Le [2006] NSWCCA 136 seven years six months, non parole five years for 117 grams of Heroin.
- NP v R [2008] NSWCCA 205 (24 September 2008), 170 grams of MDMA (ecstasy) 11 years non parole period of 7 years.
