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Court of Criminal Appeal 7 June 2002

Regina v Durant

[2002] NSWCCA 295

Drugs
CRIMINAL LAW DRUG IMPORTATION MDMA OR ECSTASY AND CANNABIS RESIN INVOLVEMENT IN IMPORTATION FOR MONEY NOT A MERE COURIER

Citation: Regina v Durant [2002] NSWCCA 295
Court: Court of Criminal Appeal, New South Wales
Date: 7 June 2002
Judge(s): O'Keefe J, Greg James J, Carruthers AJ

Background

The appellant, a 53-year-old British citizen, arrived at Sydney's Kingsford Smith Airport on Christmas Day 2000 after travelling from London via Rome and Taipei. A drug detection dog reacted to him in the immigration area. Examination of his luggage revealed over 1,800 ecstasy tablets (MDMA) concealed in the soles of women's platform sandals, and a further quantity of ecstasy tablets along with cannabis resin was recovered from a condom concealed in his rectum. In total, 2,213 ecstasy tablets containing 166 grams of pure MDMA (exceeding a trafficable quantity) and 10.9 grams of cannabis resin were seized, with a street value estimated between $45,000 and $100,000.

The appellant pleaded guilty in the District Court to two counts of importing a prohibited substance. Judge Freeman sentenced him to seven years imprisonment with a non-parole period of four years and three months for the ecstasy importation, and 18 months (to be served concurrently) for the cannabis resin importation. The appellant sought leave to appeal against the sentences, appearing before the Court of Criminal Appeal unrepresented.

Legal Issues

  • Whether the sentencing judge erred in rejecting the submission that the appellant was a "mere courier" and in assessing his level of culpability
  • Whether the discount given for the guilty plea was appropriate
  • Whether the sentences imposed were within the accepted range for mid-range drug importations
  • Whether an allegation of incompetence by the appellant's trial counsel had any merit or bearing on the appeal

Decision

Ground 1: Role in the offending and level of culpability

The sentencing judge rejected the submission that the appellant was a mere courier, and the Court of Criminal Appeal found that rejection was well supported by the evidence. The additional material before the appellate court revealed the appellant had actually purchased the drugs himself and was to receive further payment upon delivery to an unidentified contact in Australia. The Court noted that additional submissions by the appellant, if anything, placed him further up the chain of responsibility than the sentencing judge had found. The judge's characterisation of the appellant as someone "at least in part responsible for the organisation and performance of this importation" was upheld.

Ground 2: Guilty plea discount

The judge applied a discount of over 10 per cent for the guilty plea, despite the Crown case being extremely strong. The Court found no error in this approach. The appellant had provided no assistance to authorities beyond the plea itself, which was a relevant consideration under the applicable Commonwealth sentencing framework.

Ground 3: Sentences within range

The Court examined 32 comparable cases and confirmed that the sentences imposed fell within the range applied to mid-range drug importations. The judge had correctly taken into account the quantity and nature of the drugs, the absence of remissions in NSW prisons, the relative harm of the drugs compared to heroin, the absence of family ties in England, and the importance of general deterrence. No error in principle was identified.

Ground 4: Alleged incompetence of trial counsel

The appellant raised a claim of incompetent representation for the first time before the appellate court, and it did not appear in the notice of appeal. The Court found no evidence to support the allegation. The counsel named in the transcript was experienced, and nothing in the sentencing proceedings suggested the appellant's outcome would have differed with different representation.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An offender who purchases drugs and organises their importation for financial gain is not a "mere courier," even if others are involved at both ends of the transaction. The Court of Criminal Appeal upheld a finding of significant organisational responsibility on these facts.
  • A discount exceeding 10 per cent for a guilty plea was found to involve no error where the Crown case was overwhelming and the offender provided no other assistance to authorities.
  • Sentences for mid-range drug importations should be assessed against a range of comparable cases. Here, seven years with a non-parole period of four years and three months fell within that accepted range.
  • Claims of incompetent legal representation raised for the first time on appeal, without evidentiary support and outside the notice of appeal, will carry little weight before the Court of Criminal Appeal.
  • General deterrence remains a significant factor in sentencing for drug importation offences. The Court confirmed that firm sentences in such cases serve the purpose of discouraging others from participating in the drug importation trade.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated