New South Wales Court of Criminal Appeal CITATION : R v Auv [2002] NSWCCA 375 FILE NUMBER(S) : CCA 60827 of 2001 HEARING DATE(S) : 09/08/02 JUDGMENT DATE : 9 August 2002 Regina PARTIES : v Chapsaroun Auv JUDGMENT OF : Meagher JA at 1, 17; Simpson J at 12; Howie J at 14 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0997 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : Appellant: W Whitby & Ms B Rigg Crown: Ms T Krippner SOLICITORS : Appellant: Spencer Whitby & Co Crown: Commonwealth Director of Public Prosecutions CATCHWORDS : Importation of illegal substance - s 23B(1)(b) Customs Act 1901- whether the sentence was manifestly excessive - whether the non-parole period marks an excessive percentage of the total sentence - appeal allowed. LEGISLATION CITED : Customs Act 1901 CASES CITED: R v Stitt (1998) 102 A Crim R 428 R v Reuben Sweet [2001] NSW CCA 445 DECISION : 1. Leave to appeal granted; ; 2. In lieu of the sentence imposed in the Court below the applicant be sentenced to imprisonment for a period of seven and a half years with a non-parole period of five years. IN THE COURT OF CRIMINAL APPEAL CCA 60827 of 2001 MEAGHER JA SIMPSON J HOWIE J Friday, 9 August 2002 Regina v AUV Judgment 1 MEAGHER JA: The Court is now in a position to give judgment. The applicant Chapsaroun Auv pleaded guilty in the Local Court on 19 September 2001 to an offence of importing a traffickable quantity of heroin in powder form under s 23B(1)(b) of the Customs Act 1901. The Crown, with some magnanimity, accepts that he entered that plea at the earliest practical opportunity. 2 He was committed to the Sydney District Court for sentence and on 21 November 2001 appeared before his Honour the late Luland DCJ. His Honour sentenced him to imprisonment for 8½ years imprisonment with a non-parole period of 6 years, to date from 9 July 2001. 3 The pure quantity of the heroin was 242.2 grams, in excess of 120 times the trafficable quantity (2.0 grams) prescribed under the Customs Act 1901. The heroin imported had a purity rate of 71% and had a street value of $275,366. 4 He was aged 23. He was an Australian citizen. He had no prior convictions since he became an adult. 5 In August 2001 he provided confidential assistance to the Australian Police, that confidential assistance being information about the identity and behaviour of another person involved in the importation into Australia of heroin from Cambodia. It was accurate and reliable. 6 The first ground of appeal is that the sentence was manifestly excessive. In my view, it was not. It was a little on the heavy side perhaps, but within his Honour's non-appellable discretion. There is no relevance that it cannot be reconciled with other sentences in different cases (if that be the fact). 7 There being no evidence that Mr Auv was a mere courier, his Honour was justified in treating him as a principal. 8 All relevant matters were taken into account by his Honour, as is manifested by his judgment. 9 I cannot see that his Honour made any error, of fact or law. Nor is the result in any way suggestive of unreasonableness. 10 The second and third grounds of appeal are that the non-parole period marks an excessive percentage of the total sentence. This would be so if there were an immutable law, written in stone like the laws of the Medes and the Persians, that the non-parole period must be within the 60%-66?% range. But this is not so. A percentage as high as 75% has been found to be justifiable: R v Stitt (1998) 102 A Crim R 428 and R v Reuben Sweet [2001] NSW CCA 445. In my view his Honour's discretion has not been shown to have miscarried. 11 In my view the application for Crown should be granted but the appeal dismissed. 12 SIMPSON J: In my opinion the significant features in this case are the assistance provided by the applicant and the quantity of the drug involved. Taking those two factors into account together with the applicant's general previous good character I am of the view that the head sentence imposed in the Court below has been shown to be manifestly excessive. I am further of the opinion that the applicant has succeeded in establishing error in the fixing of the non-parole period at more than seventy per cent of the head sentence. 13 Accordingly I propose that leave to appeal be granted. The appeal be allowed and in lieu of the sentence imposed in the Court below the applicant be sentenced to imprisonment for a period of seven and a half years with a non-parole period of five years. 14 HOWIE J: I agree. I am persuaded that notwithstanding there is no apparent error in the remarks on sentence by his Honour of any fact or law, that the sentence was manifestly excessive having regard to the facts of this particular case and the circumstances of the importation. Further I am also satisfied that his Honour erred in fixing the non-parole period. There has either rightly or wrongly become established in this State a view that an appropriate non-parole period will generally become between two fixed percentages. That is merely a range but it is a range which is generally applied. Like all ranges in respect of sentencing, if a judge moves outside such an established range it would be expected that there would be an indication as to why such a step has been undertaken in a particular case. 15 I personally have some difficulty with the view that a range should have been established in respect of the non-parole period, which has been traditionally based upon a concern for a particular offender and the need for his or her rehabilitation or the absence of such a need. But as I have indicated, that range is now well and truly established in such a case as this. In my view his Honour seemed to place far too much weight on the prior offence that was recorded against the applicant as a juvenile, yet the Crown had introduced no evidence as to the nature of that offence other than that the offence had been committed and the sentence imposed upon the applicant. In my view his Honour ought not to have taken that matter into account in fixing a non-parole period so far outside the range. 16 Therefore it is necessary for this court for the reasons submitted on behalf of the applicant to fix a reasonable non-parole period. I agree with that proposed by Simpson J. 17 MEAGHER JA: The orders of the Court therefore are as proposed by Simpson J. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.