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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: NSW Court of Criminal Appeal
Date: 7 June 2002
Judge(s): O'Keefe J, Greg James J, Carruthers AJ

Background

The appellant, a 53-year-old British citizen, was sentenced in the District Court after pleading guilty to two counts of importing prohibited substances into Australia. He arrived at Kingsford Smith Airport on Christmas Day 2000, travelling from London via Rome and Taipei with his partner. A drug detection dog reacted to him at immigration, leading to the discovery of 2,213 ecstasy (MDMA) tablets concealed in the soles of a pair of women's sandals and inside a condom secreted within his body, along with a quantity of cannabis resin.

The ecstasy tablets had a gross weight of slightly over half a kilogram, containing 166 grams of pure MDMA, which exceeded a trafficable quantity. The street value of both substances was estimated at between $45,000 and $100,000. The appellant told authorities he had been approached in a London bar and that his partner had no knowledge of the drugs.

Judge Freeman in the District Court sentenced the appellant to seven years imprisonment with a non-parole period of four years and three months for the ecstasy offence, and 18 months concurrent for the cannabis resin offence. The appellant sought leave to appeal that sentence, representing himself before the Court of Criminal Appeal.

  • Whether the sentencing judge erred in rejecting the appellant's submission that he should be treated as a mere courier rather than as a more culpable participant in the importation
  • Whether the sentences imposed were within the accepted range for mid-range drug importation offences
  • Whether the appellant's trial counsel had been incompetent in a way that affected the sentencing outcome
  • Whether material raised for the first time on appeal, including an unverified "Appeal Statement," warranted any reduction in the sentences

Decision

The Court of Criminal Appeal rejected the argument that trial counsel had been incompetent. The allegation had not been included in the notice of appeal, was unsupported by evidence, and was inconsistent with the experience of the counsel named in the transcript. There was also no indication that anything counsel did or omitted had altered the sentencing outcome.

On the question of the appellant's role, the court upheld the sentencing judge's finding that he was not a mere courier. Additional material before the Court of Criminal Appeal in fact revealed that the appellant had purchased the drugs himself, was to receive payment in Australia upon delivery, and had received approximately £10,000 for his involvement. The sentencing judge's finding that the appellant was "at least in part responsible for the organisation and performance of this importation" was supported by the evidence.

The court also noted inconsistencies in the appellant's account. His initial claim of a casual approach in a London bar was contradicted by his own later references before the Court of Criminal Appeal to a two-year association with the persons who supplied the drugs. The court allowed the unverified Appeal Statement to be considered, given the appellant was self-represented, but found it added nothing to reduce his culpability and, if anything, placed him higher in the chain of responsibility than the sentencing judge had found.

The court found the sentence was well within the range established by comparable cases. General deterrence was identified as a significant sentencing consideration for drug importation offences, and the 10 per cent discount applied for the guilty plea, entered against a very strong Crown case, was appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court is entitled to reject a "mere courier" characterisation where the evidence shows the offender purchased the drugs, organised aspects of the importation, and had arrangements for distribution at the Australian end.
  • A plea of guilty entered against an extremely strong Crown case may still attract a discount, though the weight given to that discount is reduced in such circumstances.
  • Allegations of trial counsel incompetence raised for the first time on appeal, without supporting evidence and outside the notice of appeal, are unlikely to succeed before the Court of Criminal Appeal.
  • Unverified self-serving statements in a probation report are properly treated with scepticism by a sentencing court, and an offender's failure to give evidence verifying such material weakens its weight.
  • General deterrence carries significant weight in sentencing for drug importation offences, and sentences that clearly signal the consequences of importation are consistent with sound sentencing principle in this category of case.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act 1914 (Cth), including s 16

Cases:
- No specific cases were cited by name in the portions of the judgment provided.