Citation: Regina v Brigette Anne Van Den Akker [1999] NSWCCA 426
Court: New South Wales Court of Criminal Appeal
Date: 15 December 1999
Judge(s): Wood CJ at CL, Sully J, Simpson J
Background
The applicant pleaded guilty in the District Court to two charges of attempting to export prohibited drugs (ecstasy) from Australia. The two quantities involved were 324.8 grams and 18.8 grams respectively, discovered strapped to her body at Sydney Airport as she prepared to board a flight to Bali. Each charge carried a statutory maximum penalty of 25 years imprisonment.
The sentencing judge found that the applicant was more than a mere courier. Intercepted telephone conversations revealed she had an intimate knowledge of the drugs being transported, the monetary arrangements, and the broader criminal enterprise. She had been recruited and paid by a man known as Camus, who coordinated her travel from Melbourne to Sydney before she boarded the flight.
The sentencing judge imposed a total term of 7.5 years imprisonment with a non-parole period of 4.5 years. The applicant sought leave to appeal that sentence on two grounds.
Legal Issues
- Whether a sentence within the usual range for drug importation offences is nevertheless excessive when the offence charged is exportation (or attempted exportation) rather than importation, particularly where general deterrence may not be as strong.
- Whether the applicant's sentence was disproportionate compared to the sentence imposed on her co-offender, Camus, raising a parity argument.
Decision
Ground 1: Exportation versus importation
The applicant argued that offences involving drug exportation should attract less weight in sentencing, including as to general deterrence, than offences involving importation. The Court rejected this argument. The attempted exportations were part of an international criminal enterprise whose broader objective included introducing prohibited drugs into Australia. Participation in that enterprise, regardless of the specific direction of movement, was sufficient to warrant the sentence imposed.
Ground 2: Parity with the co-offender Camus
At the time the application was heard, Camus had been sentenced to 8 years with a non-parole period of 5 years for an offence involving 736.5 grams of ecstasy, an offence carrying a maximum of life imprisonment. The Court acknowledged that there was obvious merit in the parity argument while that sentence stood, a concession also made by the Crown.
However, on the same day as this appeal was heard, the Court allowed a Crown appeal against Camus's sentence and increased it to 10 years with a non-parole period of 6 years. The resulting 2.5-year difference between the two head sentences, in the Court's view, removed any justifiable sense of grievance the applicant could have felt, even accepting that her culpability was somewhat less than that of Camus.
The Court also reiterated the established principle that courts must give effect to Parliament's policy of firmly suppressing all forms of drug trafficking, without over-compensating for the personal circumstances of individual offenders, even where those circumstances carry genuine weight.
Orders Made
- Leave granted to appeal against sentence.
- Appeal against sentence dismissed.
Key Takeaways
- Attempted exportation of prohibited drugs, when carried out as part of an international drug trafficking enterprise, attracts the same sentencing considerations as importation offences, including general deterrence.
- A parity argument in sentencing can lose its force where the co-offender's sentence is adjusted on a Crown appeal heard concurrently, removing the disparity that grounded the complaint.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that courts must apply parliamentary policy on drug trafficking firmly, and that sympathetic subjective circumstances do not justify sentences that fall outside the appropriate range.
- Where an offender is found to have had more than a courier's role, including knowledge of the financial and operational dimensions of the enterprise, that finding is a weighty factor in assessing culpability at sentence.
- No error was established in the sentencing judge's exercise of discretion, and the sentence of 7.5 years with a 4.5-year non-parole period was upheld as appropriate.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated