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Court of Criminal Appeal 10 March 2000

Regina v Markar

[2000] NSWCCA 72

Drugs

Citation: Regina v Markar [2000] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 10 March 2000
Judges: Fitzgerald JA, Abadee J, Barr J

Background

The appellant pleaded guilty in the District Court to an attempt to obtain possession of a prohibited import, specifically a commercial quantity of cocaine, under the Customs Act 1901. The cocaine weighed 2.635 kilograms at 69 percent purity and carried an estimated street value of approximately $1.5 million. Judge Christie sentenced the appellant on 27 November 1998 to six years and six months imprisonment, with a non-parole period of four years and six months, commencing from 6 October 1998.

The appellant had spent approximately six months in pre-sentence custody by the time of sentencing. He sought leave to appeal out of time against the sentence imposed by the District Court.

  • Whether the overall sentence of six and a half years, with a four-and-a-half-year non-parole period, was manifestly excessive given the appellant's role and the circumstances of the offence
  • Whether the ratio between the non-parole period and the head sentence was itself an error warranting intervention
  • Whether the sentencing judge gave insufficient weight to the appellant's guilty plea
  • Whether the sentencing judge failed to correctly account for the six months of pre-sentence custody when calculating the non-parole period, resulting in a mathematical error

Decision

The Court of Criminal Appeal, with reasons delivered by Abadee J, granted leave to appeal out of time but dismissed the appeal on all grounds.

On the question of manifest excess, the Court found no error. The sentencing judge had characterised the appellant as operating at or around the level of a courier, but had also found that the appellant was fully aware of the nature of the enterprise. The cocaine involved was a very substantial commercial quantity, and significant financial gain was expected by all participants. The Court considered the sentence proportionate to those circumstances.

On the ratio between the non-parole period and the head sentence, the Court confirmed that no fixed or immutable ratio applies. The matter is a discretionary one, as the appellant's own counsel properly conceded. Similarly, the Court found that the sentencing judge had given due and appropriate weight to the guilty plea, and that there was no requirement to express any reduction as a discrete percentage.

The most substantive argument concerned an alleged mathematical error in accounting for the six months of pre-sentence custody. The Court accepted that there was some obscurity in the sentencing judge's language, and was prepared to assume for the purposes of argument that a mathematical error had occurred. However, the Court applied the principle from R v Astill [No 2] that demonstrating an error in sentencing reasons does not automatically require the appellate court to vary the sentence. Given the nature and scale of the offending, the Court was not satisfied that a lesser sentence was warranted even if the mathematical argument succeeded.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Demonstrating a mathematical or technical error in sentencing reasons does not automatically compel an appellate court to intervene and vary a sentence; the appellate court retains a discretion and will consider whether a more lenient sentence is actually warranted in the circumstances.
  • No fixed ratio exists between a non-parole period and the head sentence in NSW sentencing; the appropriate proportion remains a discretionary matter dependent on the facts of the case.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not required to express a guilty plea discount as a specific or discrete percentage adjustment, provided the plea is genuinely and clearly taken into account.
  • Where an offender is characterised as a courier but was fully aware of the nature and scale of a drug importation enterprise, the sentencing court may still treat that awareness as a significant aggravating consideration.
  • Under section 233B(1)(c) of the Customs Act 1901, the maximum penalty for importing a commercial quantity of narcotic goods is life imprisonment, which frames the upper boundary against which sentences for this category of offence are assessed.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(c)

Cases:
- R v Astill [No 2] (1994) 64 A Crim R 289