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Court of Criminal Appeal 10 May 2002

R v English-Russell

[2002] NSWCCA 179

Drugs

Citation: R v English-Russell [2002] NSWCCA 179
Court: New South Wales Court of Criminal Appeal
Date: 10 May 2002
Judges: Sheller JA, Levine J, Simpson J

Background

The applicant pleaded guilty in the District Court to two charges arising from her involvement in a group that imported and distributed ecstasy tablets into Australia over approximately two months in late 1999. The first charge, under the Customs Act 1901 (Cth), alleged knowing involvement in the importation of not less than the traffickable quantity of MDMA. The second charge, under the Drug Misuse and Trafficking Act 1985 (NSW), alleged supply of not less than the large commercial quantity of the same drug. A further offence of supplying methylamphetamine was taken into account on a Form 1 basis.

The applicant's role included recruiting another person to collect imported packages from post office boxes, arranging those pickups, and supplying tablets to customers. The sentencing judge characterised her as playing a "significant role" though not a co-principal, and found her criminality was somewhat less than that of her co-offender, Rodd. A significant aggravating feature was that she committed these offences while on bail for earlier drug supply charges.

On the Commonwealth charge the applicant received five years, seven months and thirteen days imprisonment (with a non-parole period of two years, seven months and thirteen days). On the State charge she received nine years imprisonment with a five-year non-parole period commencing from the expiry of an earlier non-parole period, making the sentences partially cumulative.

  • Whether the sentences imposed were manifestly excessive
  • Whether the sentencing judge made specific, identifiable errors in the sentencing process, including in factual findings relating to the quantity of drugs supplied
  • Whether the sentencing judge erred in finding the applicant had knowledge of the post office box arrangements
  • Whether there was an irreconcilable contradiction between the finding of some skilful planning and the adoption of a co-offender's sentencing remarks describing the operation as amateurish
  • Whether fresh evidence of post-sentencing assistance to authorities could be considered on the appeal

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing process.

On the disputed drug quantity, the Court accepted that the sentencing judge had substantially resolved the factual contest in the applicant's favour, finding the quantity she supplied fell in the low range for a large commercial quantity. No error arose from the judge's overall approach to this issue.

On the question of the applicant's knowledge of the post office box arrangements, the Court acknowledged a technical misstatement in the remarks on sentence but held it did not reveal any error in the sentencing process, given the evidence plainly established the applicant's awareness of and participation in those arrangements.

The Court rejected the argument that a contradiction existed between the finding of some limited skilful planning (in the selection and rental of mailboxes requiring no proof of identity) and the broader characterisation of the enterprise as amateurish and casual. These findings addressed distinct aspects of the operation and were not inconsistent. Regarding the fresh evidence of post-sentencing assistance to authorities, the Court confirmed that such post-sentencing events cannot be used to identify error in the sentencing process. The Court noted that the appropriate avenue for the applicant to pursue any benefit from that assistance was administrative rather than curial.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Post-sentencing events, including cooperation with authorities after sentence is imposed, cannot ground an error in the original sentencing process. The Court of Criminal Appeal confirmed the applicant's remedy in those circumstances lies in the administrative sphere, not before a court.
  • A limited finding of skill or planning in one aspect of a criminal enterprise is not necessarily inconsistent with a broader finding that the enterprise as a whole was amateurish and loosely organised. Courts can assess different features of an offence separately.
  • Committing serious drug offences while on bail for earlier drug supply charges was treated as a significant aggravating factor, influencing both the structure and length of the sentences imposed.
  • In dismissing the appeal, the Court applied the principle from R v Moreno that only errors present at the time of sentencing are relevant to identifying appellable error, not subsequent conduct.
  • Partial accumulation of sentences, achieved by commencing a later sentence from the expiry of an earlier non-parole period, was accepted as a legitimate sentencing structure in this matter.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Division 3
- Crimes Act 1914 (Cth), s 16E

Cases:
- R v Moreno, unreported, NSW Court of Criminal Appeal, 4 November 1994