LAWS3427/JURD7527 Drug Law and Policy Worksheet - Week 4 R v Pham [2010] VCC 0935 (23 July 2010); R v Tang [2009] VCC 1609 (27 November 2009) Pham G 36 Cocaine; 15 19 14 . "role in the Methamphet- 15(2) 15(2) enterprise was amine; Ecstasy signific both [Pham and Tang] played important and active role" (34] Tang G Cocaine: 15 . "role in the Methamphet- 15(2) importation amine; 15(2) was Ecstasy significant and undertaken for commercial motives" [11 R v Jain [2004] VSCA 20 (4 March 2004) Jain G Heroin 10 10 . Courier. - NPP Unaware of scale or reduced from 8 to 7 organisational . Sentence details of "within importation; range" was aware of quantity. R v Franco [2006] VSCA 302 (20 December 2006) Franco G 60 Cannabis 7 4 Recruited co-offenders 116) Co- G 51/2 51/2 3 accused Unpacked (x 4) container - "participation was at the lowest level of the enterprise [114). R v Ong (2007) 176 A Crim R 366 (28 September 2007) Ong Yes - 1% Heroin 15 15 10 . Planned the "extremely possess (conspiracy to comm- importation lenient" but ercial import) Crown appeal quantity dismissed of . offence heroin. committed on parole 6LAWS3427/JURD7527 Drug Law and Policy Worksheet - Week 4 19AF Non-parole period or pre-release periods not to exceed sentence (1) Where a court is required to fix a non-parole period or make a recognizance release order in respect of a federal sentence or sentences, the court must fix a non-parole period that ends, or make a recognizance release order such that the pre-release period ends, not later than the end of the sentence, or of the last to be served of the sentences. (2) This section does not restrict the length of the non-parole period or the pre-release period in respect of a life sentence or sentences that include such a sentence.LAWS3427/JURD7527 Drug Law and Policy Worksheet - Week 4 Schedule 2 Case Plea Priors Multiples of Drug Sentence on Sentence on TES NPP Role Comment Commercial importation session Quantity charge (yrs) charge (yrs) Ng v R [2010] NSWCCA 232 (14 October 2010) Ng G Yes, 1.6 Heroin 1114 714 Courier. Sentence but not Unaware of *within for scale or range" drugs organisational details of importation; was aware of quantity. Chan, Lo Nguyen v R [2010] NSWCCA 153 (22 October 2010) Chan G Methamphet- 1214 "middle Sentences amine man" within range- Lo G TV/2 71/2 41/2 "lower than courier" Nguyen G 10 "driver and lookout" R v Nguyen; R v Pham (2010) 205 A Crim R 106 (22 October 2010) Nguyen Cocaine 16 18 12 16(2) . "very . sentences Methamphet- important increased on amine role" (trial Crown judge quoted appeal at 132] . both [Nguyen and Pham] were "key organisers' (941. Pham G 13 Cocaine 15 15 10 "critical and extensive role" [86 . both [Nguyen and Pham] were "key organisers" 1941. . $ 16BA schedule offence involving 17 x CQ of methamphet- mine "taken into account". R v Cheung; R v Choi (2010) 203 A Crim R 398 (28 October 2010) Cheung G Methamphet- organised equivalent amine and carried Eth offence of out "manufacturing" manufacture Sentences Choi G probably Yes. inadequate but no but Crown drugs appeals dismissed because of delay. R v Lee [2007] NSWCCA 234 (3 August 2007) Lee NO 51 Heroin 28 28 1945 * organised sentence importation Increased on into Australia, Crown including appeal. delivery to warehouse and unpacking * "senior management role of critical significance" 5i '33 _ Schedule 1 Extracts from the Crimes Act I 914 (Cth) 16A Matters to which court to have regard when passing sentence etc.federal offences [1) In determining the sentence to be passed, or the order to be made; in respect of any person for a federal offence, a court must impose a sentence or make an order that is ofa severity appropriate in all the circumstances of the offence. Note: Minimum penalties apply for certain offencessee sections lMA, 16MB and lAAC. (2) In addition to any other matters; the court must take into account such ofthe following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (g) ifthe person has pleaded guilty to the charge in respect of the offence: (i) that fact; and {ii} the timing ofthe plea; and (iii) the degree to which that fact and the timing ofthe plea resulted in any benet to the community, or any victim of, or witness to; the offence; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation ofthe offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja} the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (in) the character, antecedents; age; means and physical or mental condition ofthe person; (11) the prospect of rehabilitation of the person... 19AB When court must x nun-parole period [1) Subject to subsection (3}; a court must fix a single non-parole period in respect ofa federal sentence or federal sentences if: (a) a person is convicted of a federal offence; or of2 or more federal offences at the same sitting; and (b) the court imposes the sentence or sentences on the person; and (c) either or both ofthe following subparagraphs apply: (i) any of the sentences is a federal life sentence; {ii} the sentences, in the aggregate, exceed 3 years; and (d) when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence. friend, who was a plumber, and his girlfriend, to help transport the drugs to Sydney by car. The three drove from Sydney to Melbourne, drove to the factory, and put the substancesI in the car. Barrow, who was a drug user himself, examined some of the powder from one of the bags, and realised they were fake. Almost immediately, Australian Federal Police raided the premises and arrested Barrow and Appleby, who were both present. Appleby and Barrow made full admissions as to their involvement. Submissions as to offenders' roles The Crown asserted that while Apple-by was not a principal, he provided integral assistance to one of the principals, Kung, who communicated with Applcby on every step in clearing the container through customs and delivering it to the factory. Defence counsel claimed Appleby to be \"a mere foot soldier\". Counsel for Applcby claimed that Appleby did not exercise any independent control or judgment over arrangements, rather he simply provided an avenue through which Kung could distance himself from the importation and intended subsequent distribution. The Crown asserted that Barrow played a significant and ongoing role in the enterprise. The Crown argued that Barrow had a fair degree of independence to achieve his role, namely to collect and transport the drugs from Melbourne to Sydney. Barrow paid for the hire car used to drive to Melbourne, and avoided registering the car in his name. Barrow also agreed to pay his plumber and his girlfriend for their assistance. Barrow also tested the drugs, and those involved could have escaped with the benet of Appleby's warning to them (had police not been present). Offenders\" personal eireumstanees Applcby did not act out of greed nor due to a drug habit, rather because ofthc debt he owed to Kung. Appleby is 34 years of age. He has sole responsibility for a young child, and the period he has been on remand awaiting sentence has been difficult for him due to this separation. Appleby has no prior convictions and he pleaded guilty at the earliest opportunity. Barrow is 25 years of age. When he was in his late teens, he began to use marijuana and ecstasy. He has convictions for armed robbery while a child (committed while under the inuence of drugs}, for which he received a suspended sentence of 15 months in the Children's Court in NSW. Barrow is also described as addicted to gambling and has significant gambling debts. Barrow also pleaded at the earliest opportunity. Sentencing guidelines The maximum penalty for the offences is life imprisonment or ?,500 penalty units, or both. Schedule 1 contains some relevant provisions of the Crimes Act t 9H (Cth). Schedule 2 contains a table of comparative sentences tendered by the Crown. 1 The container had been intercepted by authorities and the drugs replaced with inert powders. Sentencing Commonwealth Drug Offenders Task: Use the following facts (prepared for the purposes of sentencing) to reach appropriate sentences for each offender, Applehy and Barrow. Include a non-parole period and head sentence for each offender. In reaching an appropriate sentence, details about factors to consider {including non- parole periods and discounts for pleas of guilty) are included in the schedules to these instructions. You should use the set readings for this week on sentencing to guide you. You are not required to do any further research. Post your response using the submission link under the Week 4 tab on Maudie. You are not required to provide any detail other than the sentences. The offenders, Appleby and Barrow, each pleaded guilty to one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, pursuant to s 3015\"} with s 11.1 ofthe Criminal Code (Cth). The importation included methamphetamine, ecstasy (MDMA) and cocaine. The quantity of each drug [being 22 kg, 6.5 kg and 29 kg, respectively) involve many multiples of the relevant commercial quantity of the drug (being 29, 13 and 15 times the commercial quantity of each drug, respectively). The combined street value of the drugs was around $98m (highest retail value}. The drugs were concealed inside \"back massages\