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6
Court of Criminal Appeal 26 July 1999

Regina v Benais

[1999] NSWCCA 236

Drugs
CRIMINAL LAW ECSTASY APPEAL DISMISSED.

Citation: Regina v Benais [1999] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 26 July 1999
Judge(s): Simpson J (primary judgment); Meagher JA; Sperling J

Background

The applicant, a French citizen of Israeli origin, was apprehended at an Australian airport on 5 April 1997 after importing 1,560 tablets containing 61 grams of pure MDMA or MDEA, commonly known as Ecstasy. Some tablets were concealed in his clothing and luggage; the remainder had been ingested and were recovered after he was hospitalised under surveillance. He had been recruited by an associate known as "Robert" to carry the drugs from Amsterdam to Sydney, for which he was to receive approximately AUD$7,000.

The applicant pleaded guilty in the Local Court in May 1997 and adhered to that plea when the matter was dealt with in the District Court in November 1997. The sentencing judge, Viney DCJ, accepted that the applicant was a first-time offender of previously good character, that he had acted as a courier rather than an organiser, and that his motivation was financial need rather than greed. The judge imposed a sentence of six years' imprisonment with a non-parole period of three years, adjusted down from a notional nine-year head sentence to account for the absence of remissions under Commonwealth sentencing law.

The applicant sought leave to appeal out of time, contending the sentence was manifestly excessive when all relevant circumstances were considered.

  • Whether the sentence of six years' imprisonment (reflecting a notional nine-year head sentence) was manifestly excessive for importing a trafficable quantity of Ecstasy.
  • Whether the sentencing judge gave adequate weight to: the quantity of drug involved (well below a commercial quantity); the applicant's early guilty plea and contrition; his role as a mere courier; and his personal circumstances, including his good character and financial support of his ailing mother.

Decision

Simpson J, with whom Meagher JA and Sperling J agreed, found that no error had been demonstrated in the sentence imposed by Viney DCJ. The sentencing judge had expressly considered each of the matters raised by the applicant, including the quantity of drugs, the early plea, the applicant's clear prior record, his courier role, and the sympathetic personal background. The issue on appeal was not whether those matters were addressed, but whether they had been given insufficient weight so as to render the sentence manifestly excessive.

The Court of Criminal Appeal declined to find that the notional starting point of nine years was excessive. Simpson J acknowledged the sympathetic features of the case but stated that sympathy for an offender cannot dictate the sentencing outcome. General deterrence was identified as a significant factor in drug importation cases, and the court emphasised that sentencing courts have a role in supporting the efforts of governments and law enforcement agencies to control drug importation.

The Court also noted that the quantity imported, 61 grams, though well above the trafficable threshold of half a gram, was substantially below the commercial quantity threshold of half a kilogram. This distinction was reflected in the sentence, but it did not bring the sentence below the range the sentencing judge had identified as appropriate. Reference was made to a comparable case, Regina v Dizel, in which a higher sentence had been imposed on an offender with a prior overseas drug offence and a smaller quantity of drugs, underlining the consistency of the approach here.

Sperling J added the observation that the non-parole period, set at fifty per cent of the head sentence, represented a liberal exercise of discretion by the sentencing judge in the applicant's favour, and that this feature was relevant to assessing the overall effect of the sentence.

Orders Made

  • Leave to appeal out of time: granted.
  • Leave to appeal against sentence: granted.
  • Appeal: dismissed.

Key Takeaways

  • General deterrence carries significant weight in sentencing for drug importation offences, and personal sympathy for an offender, while a relevant consideration, cannot override the need for an appropriate punitive response.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge who expressly addresses mitigating factors on the record has not erred simply because a higher court might have weighed those factors differently.
  • A notional nine-year head sentence for importing 61 grams of Ecstasy as a first-time offender acting as a courier was found not to be manifestly excessive in the circumstances presented.
  • Under section 16G of the Crimes Act 1914 (Cth), a NSW court sentencing for a Commonwealth offence must adjust the sentence to reflect the absence of remissions, which produced the reduction from nine years to six years in this case.
  • A non-parole period set at fifty per cent of the head sentence was characterised by Sperling J as a liberal exercise of discretion in the applicant's favour, relevant to the overall assessment of the sentence's severity.

Legislation and Cases Referenced

Legislation
- Customs Act (Cth), section 233B (offence of importing a trafficable quantity of prohibited imports)
- Crimes Act 1914 (Cth), section 16G (adjustment of sentences for absence of remissions)

Cases
- Regina v Michel Francois Dizel, unreported, NSW Court of Criminal Appeal, 23 August 1996