Citation: [1999] NSWCCA 438
Court: NSW Court of Criminal Appeal
Date: 2 December 1999
Judge(s): Handley JA, Barr J, Greg James J
Background
The applicant pleaded guilty in the District Court to possessing a prohibited import under s 233B(1) of the Customs Act 1901 (Cth). He had agreed to receive a parcel sent by post from Colombia, which was intercepted and found to contain approximately 600 grams in bulk of cocaine (296.9 grams of pure cocaine). The applicant had no advance knowledge of the quantity or quality of cocaine in the parcel.
Gibson DCJ sentenced the applicant to 6.5 years' imprisonment with a non-parole period of 4.5 years, backdated to 4 February when the applicant was taken into custody. The offence carried a maximum penalty of 25 years' imprisonment.
The applicant sought leave to appeal against the sentence, contending it was excessive.
Legal Issues
- Whether the head sentence of 6.5 years was outside the appropriate range for a courier involved in cocaine importation
- Whether the non-parole period of 4.5 years (approximately 68% of the head sentence) was manifestly excessive relative to the head sentence
- Whether the quantity of cocaine involved in the offence was a relevant and weighty factor in sentencing
Decision
The Court of Criminal Appeal refused leave to appeal, with all three judges agreeing that no error in the exercise of sentencing discretion had been demonstrated.
On the head sentence, Handley JA acknowledged that the sentence was at the high end of the available range but was not persuaded it fell outside that range. Greg James J emphasised the breadth of the range legitimately open to a sentencing judge in such matters, noting that appellate intervention is warranted only where the sentence so far exceeds what is open as to disclose error.
On the non-parole period, the applicant argued that a ratio of approximately 68% of the head sentence exceeded the normal range of 60 to 66%. The Court was unpersuaded that a difference of approximately two percentage points constituted an error calling for appellate intervention.
On the relevance of quantity, the Court drew a distinction between quantity as a legal threshold under the Customs Act (which distinguishes between commercial quantity, trafficable quantity, and lesser amounts) and quantity as a measure of an offender's criminality. Because the applicant had agreed to receive a parcel sent by others and had no control over what was in it, the Court held it was inappropriate to place significant emphasis on the quantity involved. The Court noted, however, that quantity may be a more relevant factor in other cases.
Orders Made
- Leave to appeal refused
Key Takeaways
- Under s 233B(1) of the Customs Act 1901 (Cth), the quantity of a prohibited import is relevant as a legal threshold but does not necessarily correlate with the objective or subjective criminality of the offender.
- Where a defendant had no advance knowledge of, or control over, the quantity of drugs in a shipment they agreed to receive, placing significant weight on quantity in sentencing is inappropriate.
- Refusing leave to appeal, the Court of Criminal Appeal confirmed that a sentence at the high end of the available range does not, without more, constitute appellate error.
- A non-parole period representing approximately 68% of the head sentence, against a conventional range of 60 to 66%, was insufficient by itself to establish a sentencing error warranting intervention.
- The sentencing range for such offences is wide, and legitimate differences between sentences imposed by individual judges will not ordinarily ground appellate intervention.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B(1)
- Crimes Act 1914 (Cth)
- Sentencing Act 1989 (NSW)
Cases:
- R v Michael John Spiteri [1999] NSWCCA 3