Citation: Thomas Dale Marchando v R [2003] NSWCCA 71
Court: New South Wales Court of Criminal Appeal
Date: 25 March 2003
Judge(s): Spigelman CJ, Hulme J, Buddin J
Background
The appellant, a United States citizen, was arrested at Sydney Airport in February 1998 after arriving on a flight from Los Angeles. Two women were apprehended at the same time with quantities of methorphan and methylamphetamine strapped to their legs. The Crown case was that the appellant had recruited and coached those women in Los Angeles, instructing them on how to conceal the drugs, misleading them about the substances' nature and the consequences of detection, and checking on the security of the packages during the flight.
The appellant initially maintained a plea of not guilty, but changed his plea on 10 February 1999, following a ruling admitting certain prosecution evidence and advice from his legal representatives about his prospects at trial. He was sentenced in the District Court by Coleman DCJ on 10 July 2000 to 10 years' imprisonment with a non-parole period of 7 years, commencing from the date of his arrest. The maximum penalty for the offence under the Customs Act was 25 years' imprisonment and/or a fine of $100,000.
The matter had a protracted history, including two earlier failed applications in the District Court to withdraw the guilty plea and a prior Court of Criminal Appeal proceeding that dismissed challenges to those refusals. The present application concerned the severity of the sentence ultimately imposed.
Legal Issues
- Whether the sentence of 10 years' imprisonment with a 7-year non-parole period was manifestly excessive for the offence of being knowingly concerned in the importation of a trafficable quantity of methorphan and methylamphetamine.
- Whether further evidence should be received on the appeal.
- How the sentencing guidelines established in drug importation cases, including the High Court's decision in Wong and Leung v The Queen, applied to an offence involving substances for which no commercial quantity is prescribed under the Customs Act.
Decision
The Court refused to receive further evidence on the appeal, finding no basis to do so. The application for leave to appeal was granted, but the Court unanimously dismissed the appeal against the sentence.
Buddin J, with whom Spigelman CJ and Hulme J agreed, examined the appellant's role carefully. His Honour characterised the appellant as a major organiser in the enterprise, distinguishing his position from that of the two women couriers, who had received sentences of 3.5 years with 18-month non-parole periods in recognition of their early guilty pleas and substantial cooperation with authorities. A co-offender who had also pleaded guilty was sentenced to 9 years with a 6-year non-parole period.
On the application of the sentencing guidelines from Wong and Leung, the Court acknowledged that the Customs Act prescribed no commercial quantity for the substances involved, which complicated direct application of those guidelines. Buddin J noted that the guidelines from the Court of Criminal Appeal's earlier decision in that case remained useful as a reference point, reflecting the existing pattern of sentences at the time they were formulated, and that caution was required in transposing them to the present facts.
The Court found that the sentence fell at or towards the top of the available range but was not manifestly excessive, given the appellant's major organisational role and the seriousness of the enterprise. The sentencing judge had correctly focused on that role and had taken into account all relevant matters under s 16A of the Crimes Act 1914 (Cth). No appellable error was established.
Orders Made
- Leave to appeal granted.
- Appeal against sentence dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence at or towards the upper end of the available range is not, without more, manifestly excessive where the offender played a major organisational role in a drug importation enterprise.
- A significant sentencing distinction exists between principal organisers and couriers, even where all parties are convicted of the same offence; the women couriers in this case received substantially lower sentences reflecting their limited roles and their substantial cooperation with authorities.
- Where the Customs Act prescribes no commercial quantity for a particular prohibited substance, the weight of the substance still carries relevance to sentencing, but sentencing guidelines developed for offences involving commercial quantities must be applied with caution and cannot be transposed directly.
- The High Court's decision in Wong and Leung v The Queen did not render the Court of Criminal Appeal's earlier guidelines in that matter obsolete; those guidelines retained utility as a reflection of the existing pattern of sentences at the time they were issued.
- No error was established in the sentencing judge's approach, which correctly emphasised the appellant's role in the enterprise and considered all relevant statutory factors under s 16A of the Crimes Act 1914 (Cth).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), including s 16A and s 16G
- Criminal Appeal Act 1912 (NSW), s 5F
- Customs Act 1901 (Cth), including s 233B
Cases
- R v Abbott (1984) 17 A Crim R 355
- R v Bigic [2000] NSWCCA 9
- R v Cameron (2002) 187 ALR 65
- R v Cartwright (1989) 17 NSWLR 243
- R v Fordham (1997) 98 A Crim R 359
- R v Gallagher (1991) 23 NSWLR 220
- R v Goodwin (1990) 51 A Crim R 328
- R v Lanham [1970] 2 NSWR 217
- R v Marchando (2000) 110 A Crim R 337
- R v Olbrich [1999] 199 CLR 270
- R v Taru [2002] NSWCCA 391
- R v Wong & Leung (1999) 48 NSWLR 340
- R v Yenice (1994) 72 A Crim R 234
- Wong & Leung v The Queen (2001) 207 CLR 584