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Court of Criminal Appeal 13 June 2000

R v Solomons

[2000] NSWCCA 215

Also reported as 114 A Crim R 89
Drugs
CRIMINAL LAW SENTENCING LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: R v Solomons [2000] NSWCCA 215
Court: New South Wales Court of Criminal Appeal
Date: 13 June 2000
Judge(s): Mason P, Heydon JA, Smart AJ

Background

The applicant pleaded guilty to two counts of being knowingly concerned in the importation of prohibited imports, namely MDMA ("Ecstasy"), contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). In November 1997, Australian Federal Police intercepted two packages containing a combined total of 572.3 grams of Ecstasy (with a pure quantity of 146.5 grams) in a controlled delivery operation. Officers observed the applicant collect the packages and transport them to a storage facility, where police subsequently found the drugs, $115,000 in cash, cannabis, drug cultivation equipment, and weapons.

In the District Court, Judge Davidson QC sentenced the applicant to eight years imprisonment with a non-parole period of five years and six months for the Ecstasy importation offences. The applicant did not contest a concurrent nine-month fixed term for a cannabis supply charge.

The applicant sought leave to appeal against the Ecstasy sentence on the basis that it was excessive, challenging in particular the sentencing judge's characterisation of him as a "principal" in the importation enterprise.

  • Whether the sentencing judge erred in finding, beyond reasonable doubt, that the applicant was a principal engaged in the ultimate supply of Ecstasy to the public for profit, rather than a mere warehouseman or minder of the drugs
  • Whether the sentencing judge impermissibly sentenced the applicant for uncharged conduct beyond the act of importation, contrary to the principles in R v Olbrich (1999)
  • Whether the eight-year sentence was outside the proper range of the sentencing discretion having regard to comparable cases

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's characterisation of the applicant as a principal. The agreed facts supported the inference that the applicant was engaged in more than mere custody of the drugs. He had stored the packages in a facility registered in his own name, had $115,000 in cash on hand, and was found with cannabis, drug cultivation equipment, and weapons at the same site. The sentencing judge was entitled to draw the inference he did from those facts.

On the Olbrich ground, the Court accepted that the High Court majority had cautioned against sentencing an offender for uncharged crimes. However, the Court emphasised that the majority had also said that the principal/courier distinction would not always be irrelevant, and that the critical question was whether the sentencing judge had in fact sentenced the applicant for the crime charged. The Court was satisfied that the sentencing judge had done so, and that the surrounding circumstances were legitimately taken into account as part of assessing the applicant's role in the offence.

On the question of range, the Court reviewed several comparable decisions involving Ecstasy importation. It concluded that even if the sentencing judge had erred in characterising the applicant as a principal, an eight-year sentence remained within the proper range on the facts. The Court noted prior authority where eight-year sentences for similar quantities had not been disturbed, and that the applicant's circumstances were not meaningfully distinguishable from those cases.

On the third ground, concerning the applicant's favourable character evidence, the Court found no basis for concluding the sentencing judge had failed to take it into account.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principal/courier distinction remains a legitimate, if imperfect, analytical tool when assessing an offender's role in a drug importation, provided it does not obscure what the offender actually did.
  • Under the principles in R v Olbrich, sentencing for importation offences must focus on the act of importation; however, surrounding circumstances are not automatically excluded and may be considered where they bear directly on the nature and extent of the offender's participation in the charged offence.
  • A sentencing judge is entitled to draw inferences about an offender's role from the agreed facts, including the presence of cash, drug equipment, and other materials found alongside the imported drugs.
  • No error was established in an eight-year sentence with a five-and-a-half-year non-parole period for the importation of 146.5 grams of pure Ecstasy, where the offender's role was found to be that of a principal.
  • In dismissing the appeal, the Court reinforced that appellate intervention requires the sentence to fall outside the proper range of the sentencing discretion, not merely that a different characterisation of the offender's role might have been open.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(d)
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25 and 29
- Prohibited Weapons Act 1989 (NSW), s 5(1)(a)

Cases
- R v Olbrich (1999) 73 ALJR 1550
- R v Bourel (unreported, NSWCCA, 11 December 1998)
- R v Bigic [2000] NSWCCA 9
- R v Wong and Leung [1999] NSWCCA 420
- R v Dinic (1997) 149 ALR 488
- R v Sultana (1994) 74 A Crim R 27
- R v Bimahendali [1999] NSWCCA 409
- R v Dizel (unreported, NSWCCA, 23 August 1996)
- R v Osborne (unreported, NSWCCA, 6 November 1997)