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Court of Criminal Appeal 17 September 2004

R v Anderson

[2004] NSWCCA 317

Drugs
CRIMINAL LAW

Citation: R v Anderson [2004] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 17 September 2004
Judge(s): Sperling J, Kirby J, Newman AJ

Background

The appellant was convicted by a jury in the District Court of being knowingly concerned in the importation of cocaine in not less than a commercial quantity, contrary to s 233B(1)(d) of the Customs Act 1901. The drug evidence arose from a search of an international flight arriving in Sydney on Christmas Day 1996, which yielded approximately 9.868 kilograms gross weight of cocaine (7,549.1 grams pure) concealed in garbage receptacles. DNA and fingerprint evidence linked the appellant to packaging used to conceal the drugs.

Judge Sides of the District Court sentenced the appellant on 7 April 2000 to a head sentence of 14 years with a non-parole period of 8 years, backdated to the date of custody on 17 July 1998. At the time of sentencing, the trial judge was bound to apply the Court of Criminal Appeal's guideline judgment in R v Wong & Leung (1999) 48 NSWLR 340, which set a sentencing range of 10 to 15 years for offences of this type where the offender pleaded not guilty.

The appellant had already unsuccessfully appealed his conviction. He then sought leave to appeal his sentence, arguing it was manifestly excessive on three grounds.

  • Whether the trial judge placed excessive emphasis on objective criminality by following the Wong & Leung guideline judgment, to the exclusion of independent consideration of all relevant factors
  • Whether the trial judge placed too much weight on the total quantity of drugs rather than the appellant's individual role in the importation
  • Whether the trial judge gave insufficient weight to the appellant's subjective circumstances under s 16A of the Commonwealth Crimes Act 1914

Decision

On the first ground, the Court accepted that the trial judge erred by applying the Wong & Leung guideline, since the High Court subsequently held in Wong v Leung v The Queen (2001) 207 CLR 584 that guideline judgments could not lawfully be set for Commonwealth offences. However, the Court noted that the existence of an error in the sentencing judge's reasoning does not automatically warrant interference with the sentence. Applying s 6(3) of the Criminal Appeal Act 1912 and the principles from House v The King (1936) 55 CLR 499, the Court held that it may only substitute a different sentence if it is of the view that a more lenient sentence should have been imposed. Consistent with the approach taken in R v Boulghourgian and R v Mas Rivadavia, the Court found the sentence was not more severe than warranted, notwithstanding the error.

On the second ground, the Court addressed the argument that the appellant's physical involvement related to only two of the twenty packages discovered. The jury convicted the appellant of being knowingly concerned in the importation of the entire quantity, and the sentence was imposed for that offence as found. The Court held that the trial judge did not err in sentencing on the basis of the total drug weight, citing R v Olbrich (1999) 199 CLR 270.

On the third ground, the Court found that the trial judge did give proper weight to the appellant's subjective circumstances. The sentencing judge expressly acknowledged the appellant's personal difficulties and depression as matters warranting reflection in the sentence, and stated that he had considered the matters required by s 16A. The Court of Criminal Appeal declined to find otherwise, noting the trial judge's long experience in criminal law.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • An error in a sentencing judge's reasoning, including the erroneous application of a guideline judgment later overruled, does not automatically entitle an appellant to a different sentence. The Court of Criminal Appeal will only intervene if it concludes the sentence was more severe than warranted.
  • The High Court's decision in Wong v Leung v The Queen (2001) 207 CLR 584 rendered guideline judgments unlawful in the context of Commonwealth offences, but sentences imposed under those guidelines may still be upheld if they fall within an appropriate range on independent assessment.
  • A jury verdict of guilty to an offence of being knowingly concerned in the importation of a total drug quantity determines the scope of the offence for sentencing purposes, regardless of whether the physical evidence links an individual to only part of that quantity.
  • Where a sentencing judge of significant experience states that required statutory considerations have been applied, the Court of Criminal Appeal will be slow to conclude otherwise without clear contrary evidence.
  • In dismissing this appeal, the Court of Criminal Appeal reaffirmed the approach taken in R v Boulghourgian and R v Mas Rivadavia: the test under s 6(3) of the Criminal Appeal Act 1912 requires a positive finding that a lesser sentence ought to have been imposed before the appellate court is empowered to substitute its own sentence.

Legislation and Cases Referenced

Legislation
- Commonwealth Crimes Act 1914 (Cth), s 16A, s 16G
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Customs Act 1901 (Cth), s 233B(1)(d), s 235(2)(c)(i), Schedule VI

Cases
- R v Wong & Leung (1999) 48 NSWLR 340
- Wong v Leung v The Queen (2001) 207 CLR 584
- House v The King (1936) 55 CLR 499
- R v Olbrich (1999) 199 CLR 270
- R v Boulghourgian [2001] NSWCCA 460
- R v Mas Rivadavia & Ors [2004] NSWCCA 284
- R v Curello [2003] NSWCCA 201
- R v Astill (No 2) (1992) 64A Crim R
- R v Karacic [2001] NSWCCA 12
- R v Marchando [2003] NSWCCA 71
- R v Taru [2002] NSWCCA 391
- R v Whyte [2002] NSWCCA 343