Citation: Campos v R [1999] NSWCCA 339
Court: NSW Court of Criminal Appeal
Date: 22 October 1999
Judges: Meagher JA, James J, Kirby J
Background
The appellant was a young Chilean-born woman who, following a jury trial in the District Court, was convicted of two offences committed on 14 October 1997. The first was possession of 139.9 grams of pure heroin (a trafficable quantity) reasonably suspected of having been imported into Australia, contrary to the Customs Act (Cth). The second was possession of $6,000 reasonably suspected of being the proceeds of crime, contrary to the Proceeds of Crime Act (Cth). A further proceeds-of-crime offence was taken into account at sentencing.
The appellant had been a director and shareholder in a company whose ostensible business was selling mobile phones. She was in a sexual relationship with the company's other director, who was regarded by her family as exploitative. Between May and October 1997, she had participated in 31 overseas remittances totalling over $347,000, which the sentencing court found to be payments to overseas drug suppliers.
District Court Judge Rummery sentenced the appellant to six years and eight months imprisonment on the first count, with a non-parole period of four years and eight months (70 per cent of the head sentence), and a concurrent fixed term of 15 months on the second count. The appellant sought leave to appeal, arguing the starting point of 14 years was excessive and that the resulting sentence was too high.
Legal Issues
- Whether the sentencing judge adopted an appropriate starting point of 14 years before adjustment for the absence of remissions (under s 16G of the Crimes Act (Cth)) and for assistance provided to authorities
- Whether the appellant's criminality was properly characterised as extending beyond simple possession of a trafficable quantity of heroin by a mid-level distributor
- Whether the non-parole period, set at 70 per cent of the head sentence, was excessive given the appellant's prospects of rehabilitation
Decision
The Court of Criminal Appeal accepted that the Crown's concession, that the 14-year starting point was too high, was properly made. However, the Court rejected the appellant's competing argument that her criminality should be assessed as nothing more than that of a mid-level drug dealer in possession of 139 grams of heroin who had not herself been shown to be involved in any importation.
James J reasoned that the sentencing judge's remarks implicitly reflected a finding that the company's real business was drug importation. Given the appellant was a co-director and co-shareholder, and given her knowledge that the large sums she remitted overseas were proceeds of drug sales, the inference was available that she understood payments were being made to overseas drug suppliers. Her criminality was therefore more serious than simple possession.
Applying an adjusted starting point, and making appropriate deductions for both the s 16G adjustment and the discount for assistance provided to authorities, the Court arrived at a head sentence of five years as appropriate. The non-parole period was recalculated at 60 per cent of that head sentence, producing three years, which better reflected the appellant's strong rehabilitation prospects, lack of prior convictions, and family support.
Orders Made
- Leave to appeal granted
- Appeal against sentence allowed
- Sentences imposed by Judge Rummery on 12 November 1998 quashed
- On the first count: imprisonment for five years commencing 26 June 1998, with a non-parole period of three years commencing 26 June 1998 and expiring 25 June 2001
- On the second count: fixed term of 15 months commencing 26 June 1998, to be served concurrently with the sentence on the first count
Key Takeaways
- A sentencing court's characterisation of an offender's role in drug-related criminality can properly extend beyond the narrow facts of the charged offence where surrounding circumstances, including a related offence taken into account and the offender's corporate role, support a broader inference of involvement.
- The Court of Criminal Appeal confirmed that both the s 16G adjustment for the absence of remissions under Commonwealth law and a discount for assistance to authorities must each be applied in a principled and sequential manner when determining a head sentence for Commonwealth offences.
- Where a starting point adopted at first instance is found to be excessive, the appellate court will substitute its own assessment of an appropriate figure and work through the required adjustments afresh rather than simply varying the final sentence.
- A non-parole period set at 70 per cent of the head sentence was reduced to 60 per cent, reflecting the sentencing court's stated findings about the appellant's above-average rehabilitation prospects, youth, absence of prior convictions, and family support.
- The decision illustrates that proceeds-of-crime offending taken into account under s 16BA can elevate the assessed gravity of the principal offence, particularly where the offender's conduct reveals knowledge that remitted funds were derived from drug importation.
Legislation and Cases Referenced
Legislation:
- Customs Act (Cth), s 233B(1)(ca) (possession of narcotic goods reasonably suspected of having been imported)
- Proceeds of Crime Act (Cth), s 82(1) (possession of moneys reasonably suspected of being proceeds of crime)
- Crimes Act (Cth), s 16BA (offences taken into account in sentencing)
- Crimes Act (Cth), s 16G (adjustment for absence of remissions)
- Drug Misuse and Trafficking Act (NSW) (referred to in submissions on comparative sentencing)
Cases: None cited in the provided text.