Citation: Regina v De Groot Van Embden [2003] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 16 June 2003
Judge(s): Spigelman CJ; Hulme J; Carruthers AJ
Background
The appellant was a Dutch citizen identified by the sentencing judge as the Australian principal of an international drug trafficking organisation based in the Netherlands. He was arrested in Sydney on 18 January 2000 after orchestrating an attempt to take possession of approximately 50 kilograms of ecstasy tablets (containing 16.5 kilograms of pure MDMA) shipped to Australia by a Dutch syndicate. The drugs had an estimated street value of approximately $9 million.
The appellant pleaded guilty in the District Court on 5 November 2001 to attempting to obtain possession of prohibited imports under s 233B(1)(c) of the Customs Act 1901. The offence carries a maximum penalty of life imprisonment. Judge Shillington QC sentenced the appellant to 12 years imprisonment with a non-parole period of eight years, both running from the date of arrest. Before applying discounts, the sentencing judge indicated the appropriate sentence would have been 24 years with a non-parole period of 17 years.
The sentencing judge allowed a 50% discount for substantial assistance provided to authorities in both Australia and the Netherlands, and a 15% discount for the guilty plea. The appellant sought leave to appeal on the grounds that both the head sentence and the non-parole period were manifestly excessive.
Legal Issues
- Whether the head sentence of 12 years was manifestly excessive given the discounts applied and the appellant's subjective circumstances
- Whether the non-parole period of eight years (representing two-thirds of the head sentence) was manifestly excessive
- Whether the sentencing judge erred by failing to give reasons for fixing the non-parole period at two-thirds of the head sentence rather than within the more usual range of approximately 60%
Decision
The Court unanimously granted leave to appeal and confirmed the 12-year head sentence. Carruthers AJ, with whom Spigelman CJ agreed, held that the head sentence properly reflected the extraordinary magnitude of the offending. The quantity of MDMA involved was 33 times the commercial quantity, and the appellant held a leading organisational role. The substantial discounts for assistance and guilty plea had already been applied to produce the final figure, and no error was made out in that component of the sentence.
On the non-parole period, Carruthers AJ found that the sentencing judge had committed appellable error by failing to explain why the non-parole period was fixed at two-thirds of the head sentence rather than the lower end of the customary range of approximately 60%. Carruthers AJ identified several subjective factors pointing toward a lower ratio, including good prospects for rehabilitation, steps taken to address drug and alcohol dependence, the particularly onerous conditions of the appellant's custody (including the need for protection and susceptibility to panic attacks), ongoing anxiety about the safety of his family in the Netherlands, and the absence of any support network in Australia. Carruthers AJ concluded that a non-parole period of seven years, representing approximately 60% of the head sentence, was appropriate.
Hulme J dissented on the non-parole period. While prepared to accept that the absence of reasons for the two-thirds ratio may have constituted appellable error, his Honour was not persuaded that the subjective factors warranted reduction. He noted that the appellant had previously declined opportunities to address his drug and alcohol issues before committing an offence involving a quantity of drugs far exceeding the commercial threshold. In Hulme J's view, the magnitude of the criminality required no less than eight years imprisonment even after all mitigating factors were weighed.
Orders Made
- Leave to appeal granted
- Head sentence of 12 years confirmed
- Non-parole period of eight years quashed; in lieu, a non-parole period of seven years fixed, dating from 18 January 2000 and expiring on 17 January 2007 (by majority: Spigelman CJ and Carruthers AJ; Hulme J dissenting)
Key Takeaways
- A head sentence of 12 years for attempting to obtain possession of 16.5 kilograms of pure MDMA, after discounts of 50% for assistance and 15% for a guilty plea, was not manifestly excessive where the appellant held a senior organisational role in an international drug syndicate.
- For Commonwealth offences, the concept of "special circumstances" does not apply to the determination of a non-parole period; instead, the court exercises a discretion based on the subjective circumstances of the offender and the benefits of the possibility of parole.
- Failure by a sentencing judge to provide reasons for fixing a non-parole period above the customary range constitutes appellable error, at least where the difference is of sufficient practical significance (here, one additional year in custody).
- The Court of Criminal Appeal confirmed that the customary range for a non-parole period in relation to a Commonwealth sentence sits at approximately 60% of the head sentence, and a departure upward from that range requires explanation.
- Rehabilitation prospects, onerous conditions of custody, separation from family, and the absence of a support network in Australia are subjective factors relevant to fixing a non-parole period at the lower end of the range, even where the objective gravity of the offending is very high.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B(1)(c) and s 235(2)
- Commonwealth Crimes Act 1914 (Cth), s 16G
Cases:
- R v Pang (1999) 105 A Crim R 474
- R v Schofield [2003] NSWCCA 3
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v X & Y (2002) 130 A Crim R 153