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9
Court of Criminal Appeal 24 February 1999

REGINA v SPITERI

[1999] NSWCCA 3

Drugs
CRIMINAL LAW DRUGS IMPORTATION OF COCAINE 8.3KG PRINCIPAL SENTENCE

Citation: [1999] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 24 February 1999
Judge(s): Hulme J, Hidden J, Greg James J

Background

The respondent was convicted after a jury trial in the District Court of importing a commercial quantity of cocaine into Australia. The drugs, approximately 8.347 kg pure cocaine with an estimated street value of $4.7 million, were concealed within an over-engineered wooden platform shipped from Nicaragua inside a container. The respondent dispatched the goods and was present when they were delivered to premises outside Sydney.

The sentencing judge, Shadbolt DCJ, found the operation was entirely deliberate, committed solely for profit, and involved no duress or hardship. The respondent was found to be at least a partner in the financing of the enterprise and showed no contrition. He was of prior good character, approximately 49 years old, and had been in employment.

Shadbolt DCJ imposed a sentence of 14 years imprisonment with a non-parole period of 8 years. The Crown appealed, contending that sentence was manifestly inadequate.

  • Whether the sentence of 14 years imprisonment with an 8-year non-parole period was manifestly inadequate for the importation of 8.347 kg of pure cocaine as a principal in a commercial operation.
  • The proper sentencing principles applicable to offences involving commercial quantities of narcotics under the Customs Act, including the relevance of drug quantity to penalty.
  • Whether the Court of Criminal Appeal should intervene in the exercise of its discretion on a Crown appeal, given the limited basis on which the appeal was conducted.

Decision

Hulme J delivered the leading judgment and engaged in detailed analysis of sentencing principles under the Customs Act, including the graduated penalty structure that distinguishes trafficable from commercial quantities. His Honour reasoned that the scale of penalties implies that greater quantities should attract higher sentences, and that Parliament intended the quantity of drugs to be a meaningful factor in fixing penalties within each category, though not as a purely mathematical exercise.

Hidden J examined the sentence against the range established by comparable authorities, including the decision in Bernier, and assessed whether the head sentence and the non-parole period fell outside a defensible range. The Director of Public Prosecutions had conceded at the hearing that the head sentence fell at or just below the bottom of an appropriate range, and that the non-parole period was approximately three percent below the bottom of that range.

Greg James J, in agreeing with the dismissal, noted that the appeal had been conducted within parameters specifically set by the Director, who had declined to put the matter on a wider basis despite an opportunity to do so. His Honour considered that, in circumstances where the respondent's counsel had not been afforded a full opportunity to address broader issues, the case did not raise matters of principle or error sufficient to warrant a successful Crown appeal.

By majority, the Court dismissed the appeal. The concessions made by the Crown as to the proximity of the sentence to the acceptable range, combined with the constrained manner in which the appeal was argued, were critical to the outcome.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the graduated penalty structure in the Customs Act requires sentencing courts to treat drug quantity as an important, though not determinative, factor when fixing penalties for importation offences.
  • A conviction for importing a commercial quantity of narcotics must be assessed against the benchmarks applicable to trafficable quantities, with cases involving commercial quantities treated as more serious within the overall statutory framework.
  • The manner in which a Crown appeal is conducted may itself affect the outcome: where the prosecution confined its argument to narrow parameters and the respondent's counsel had no full opportunity to address wider issues, the Court declined to intervene on a broader basis.
  • Crown appeals against sentence involve a discretion to refuse relief even where some inadequacy is identified, particularly where the principles articulated in Griffiths v The Queen and Everett v The Queen are not clearly engaged.
  • Under the Customs Act, life imprisonment is reserved for the worst category of offences, and 25 years imprisonment represents an appropriate maximum for a first offender whose involvement and circumstances place them in the worst category for importing just under a commercial quantity of cocaine.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B, 235
- Crimes Act, s 16G

Cases cited in judgment:
- R v Peel (1971) 1 NSWLR 247
- Ibbs v R (1987) 163 CLR 447
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Perrier and Richardson (1990) 59 A Crim R 164
- Postiglione (1991) 57 A Crim R 301
- R v Allpass (1992) 72 A Crim R 621
- R v Doan (unreported, CCA, 27 September 1996)
- Zayat (unreported, CCA, 22 November 1996)
- Griffiths v The Queen (1977) 137 CLR 293
- Everett v The Queen (1994) 181 CLR 295
- Regina v Chu (unreported, CCA, 16 October 1998)
- Regina v Barrientos [1999] NSWCCA 1
- Bernier (cited throughout; full citation not provided in the text)