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Court of Criminal Appeal 5 March 1999

R v Power

[1999] NSWCCA 25

Drugs
SENTENCING DRUG IMPORTATION ECSTASY COMMERCIAL QUANTITY MIDDLEMAN

Citation: R v Power [1999] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 5 March 1999
Judge(s): Grove J, Dunford J, Greg James J

Background

The applicant pleaded guilty in the District Court to possessing a commercial quantity of a prohibited import, specifically approximately 16,000 MDMA (Ecstasy) tablets with a net weight of 1,056.5 grams and an estimated street value of $1.12 million. The charge arose from a controlled delivery operation by the Australian Federal Police at a Sydney hotel in April 1997, during which the applicant collected two suitcases of tablets from a Dutch courier who had been arrested on arrival at Sydney Airport.

District Court Judge Luland QC sentenced the applicant to nine years imprisonment with a non-parole period of five and a half years. The applicant sought leave to appeal, contending the sentence was excessive.

At sentencing, the applicant gave evidence that he had acted at the direction of a man named "John Jeffreys" and had been offered only $1,500 for his role. The sentencing judge rejected this account, finding the applicant had not been a mere courier but occupied a higher position in the importation enterprise, characterising him as a "middleman."

  • Whether the sentencing judge erred in characterising the applicant as a "middleman" rather than a lower-level participant such as a courier
  • Whether the sentence was manifestly excessive, particularly by comparison with the sentence received by the Dutch courier, van Hofwegan
  • Whether the sentencing judge gave adequate weight to the applicant's plea of guilty and failed to properly credit remorse or contrition

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was well within the proper exercise of the sentencing discretion.

On the middleman characterisation, the Court found the sentencing judge was fully entitled to reach that conclusion on the evidence. The applicant had the serial number of the currency note used to identify the courier, had knowledge of the contact in Holland, and had taken steps to resolve a problem with the courier's room number by telephoning Holland directly. The rejection of the applicant's account about "John Jeffreys" was justified, given the applicant could not produce a single witness to confirm Jeffreys' existence and gave no information that could assist authorities in identifying him.

On the disparity between the applicant's sentence and that received by the courier van Hofwegan, the Court found the gap was well justified. Van Hofwegan was a mere courier who had cooperated fully with police, participated in the controlled delivery, and offered future assistance to authorities both in Australia and in the Netherlands. The applicant, by contrast, had received no discount for assistance and was found to have occupied a more senior role.

On the plea of guilty and remorse, the Court accepted that a plea of guilty carries credit, but held that the discount was legitimately reduced given the applicant was caught red-handed. The Court also upheld the finding that genuine remorse had not been demonstrated. Saying sorry, primarily in the context of distress caused to family, did not satisfy the requirement. The Court observed that one means of demonstrating remorse is telling the truth about one's own involvement and the involvement of others, and the applicant had declined to do so.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is entitled to characterise a defendant's role on the basis of the overall conduct disclosed by the evidence, even where the defendant disputes that characterisation.
  • A defendant caught red-handed who pleads guilty is entitled to some credit for that plea, but the discount available is materially reduced compared with a plea that saves the Crown the burden of establishing guilt through contested proceedings.
  • A bare expression of sorrow, particularly one focused on the impact on family rather than the nature of the offending, does not necessarily constitute evidence of genuine remorse for sentencing purposes.
  • Significant disparity between co-offenders' sentences does not itself establish error where the disparity is explained by differences in role, level of participation, and extent of cooperation with authorities.
  • The commercial quantity threshold for MDMA under the Customs Act 1901 was 500 grams at the time; the quantity involved here (1,056.5 grams) was approximately double that threshold, and carried a maximum penalty of life imprisonment.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B(1)(c) and 235(2)(c)
- Crimes Act 1914 (Cth), s 16G

Cases:
- R v Bowers (NSW CCA, unreported, 20 June 1997)
- R v WHS (NSW CCA, unreported, 27 March 1995)
- R v Olbrich (NSW CCA, unreported, 6 July 1998)
- R v Kelly (1993) 30 NSWLR 64