Regina v Ghale [2000] NSWCCA 249

New South Wales Court of Criminal Appeal

CITATION : Regina v Ghale [2000] NSWCCA 249 FILE NUMBER(S) : CCA 60822/99 HEARING DATE(S) : 07/07/00 JUDGMENT DATE : 7 July 2000

PARTIES : Regina (Appellant) Nima Tsering Ghale (a.k.a. Ram Sharan Mahat) Respondent JUDGMENT OF : Fitzgerald JA at 1; Sperling J at 17; Whealy J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0185 LOWER COURT JUDICIAL Murrell DCJ OFFICER :

COUNSEL : W G Roser (Crown) M C Ramage (Respondent) SOLICITORS : Commonwealth Director of Public Prosecutions (Appellant) Jeffreys & Associates (Respondent) CATCHWORDS : Crown Appeal against sentence - one count of importation of commercial quantity of heroin - no grounds for disturbing original sentence LEGISLATION CITED : Customs Act 1901 (Cwth) DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60822/99 DC 98/11/0185 FITZGERALD JA SPERLING J WHEALY J

FRIDAY 7 JULY 2000

REGINA v GHALE

JUDGMENT

1 FITZGERALD JA: The respondent was convicted on his plea of guilty of an offence of being knowingly concerned in the importation into Australia of a commercial quantity of heroin, contrary to section 233B of the Customs Act 1901 Commonwealth. 2 The respondent's offence involved heroin with a gross weight of approximately 3.4 kilograms, and a net weight of approximately 2.4 kilograms, with a street value of $4m to $5m. 3 On 25 September 1999, the respondent was sentenced to seven years imprisonment, to commence on 28 November 1997, the date when he was taken into custody in relation to the offence, with a non-parole period of four years and three months. 4 The prosecution has appealed on the ground that the sentence imposed was manifestly inadequate. There is nothing to indicate any significant error in the approach adopted by the sentencing judge. However, the appellant has submitted that the sentence is so low as to establish appealable error. 5 The prosecution case accepted that the respondent was correctly sentenced as a courier who was low in the hierarchy of the importing organisation. In the circumstances there is little point in describing the operation by which the heroin was imported in detail. The respondent arrived in Australia with a Nepalese diplomatic passport in the name of a former member of the Nepalese Government. The passport had been falsified by the removal of the photograph of the legitimate passport holder and the substitution of the respondent's photograph which had been over-stamped with an apparently genuine Nepalese Government stamp. 6 The respondent had travelled on that passport from Nepal to Bangkok, where he had taken possession of a bag containing the heroin, which he then brought into Australia. After arriving at the international airport in Sydney, he travelled to the city and booked into a hotel. 7 Two days later the respondent was contacted by another participant in the illegal activity and later that day delivered part of the heroin to a third participant. Shortly after that the respondent was arrested, and the balance of the heroin, the false passport and other material was seized. 8 Initially the respondent maintained that he was the person referred to in the passport and he was imprisoned and committed for trial in that name. However, the indictment on which he was convicted was presented in his correct name. 9 The judge who sentenced the respondent also sentenced another participant, one Kesham Karki, who was sentenced to imprisonment for ten years with a non-parole period of six years. 10 The sentencing judge made a number of findings favourable to the respondent, namely, (a) that he was a courier at the bottom level who only acquired full knowledge of what he was doing late in the piece and was subordinate to Karki, whose main role was to organise and direct the respondent; (b) the respondent, aged 37, was of prior good character and a very simple man whose IQ is in the bottom 10 per cent range, very naive, with no English language skills prior to his incarceration; (c) the respondent was both remorseful and contrite, with good prospects of rehabilitation and unlikely to offend again; (d) because of his intellectual difficulty, cultural factors and lack of English language skills, imprisonment is for the respondent a period of great social isolation; (e) the respondent's imprisonment is also more difficult because of his inability to communicate easily with his family about whom he is concerned; and (f) the respondent came from a deprived background and was otherwise disadvantaged by reason of social and economic factors. 11 The submissions for the respondent also drew attention to the circumstance that the respondent has now completed in excess of two years seven months of his four year three months non-parole period. 12 The argument for the prosecution made reference to individual cases, especially Pang NSWCCA 4 of 1999, unreported 12 February 1999. Reference was also made to this court's decision in Wong and Leung v Law (1999) NSWCCA 420 in which guidelines were given for the sentence appropriate to couriers and other persons low in the hierarchy of an organisation importing heroin. 13 As the prosecution accepts, these guidelines suggest a head sentence of eight to 12 years for this offence for an offender such as the respondent. According to the prosecution, the respondent should have received a head sentence of ten years, similar to Pang. 14 In my opinion that submission should not be accepted. Not only was the judgment of this court in Wong and Leung v Law handed down after the respondent was sentenced, but the sentencing guidelines are indicative only. 15 The matter is further complicated because Karki has appealed against the sentence imposed upon him, which might be reduced, disturbing the existing relativity between the two sentences considered appropriate by the sentencing judge. Karki's appeal will be heard by a different court. In any event, there is no Crown appeal against Karki's sentence and any significant increase in the respondent's sentence would inevitably disturb the appropriate relativity. Conversely, unless a significant increase is warranted, this Court should not interfere. 16 Even if the respondent should have received a heavier sentence despite his personal circumstances, I consider that the sentence imposed upon him is not one which should be disturbed by this court, conformably with established principles applicable to prosecution appeals against sentences. I would dismiss the appeal. 17 SPERLING J: I agree. 18 WHEALY J: I agree. 19 FITZGERALD JA: The appeal is dismissed.