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Court of Criminal Appeal 30 September 2005

Regina v Danson

[2005] NSWCCA 343

Drugs
SENTENCE NOT EXCESSIVE

Citation: Regina v Danson [2005] NSWCCA 343
Court: NSW Court of Criminal Appeal
Date: 30 September 2005
Judge(s): Windeyer J, Hislop J, Smart AJ

Background

The applicant pleaded guilty in the District Court to aiding and abetting the importation into Australia of 3.7 kilograms of cocaine, a quantity well above the commercial threshold of 2 kilograms under the Customs Act 1901. The cocaine was concealed in purpose-built hard-sided suitcases impregnated with the drug, part of a trans-national syndicate operating across Australia and several South American countries. The maximum penalty for the offence was life imprisonment.

The sentencing judge found that the applicant had acted as one of the financiers of the importation, funding its operations through a series of meetings and phone calls with the Australian principal, Vasquez. The applicant used a mobile phone registered to fictitious details and was kept informed of the operation's progress through coded conversations.

The applicant was sentenced to 12 years imprisonment with a non-parole period of 7 years 3 months for the Commonwealth offence, alongside concurrent sentences for two State drug supply offences. He sought leave to appeal against sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge erred in her assessment of the applicant's role in the importation, specifically by placing him too high in the offending hierarchy
  • Whether the resulting sentence of 12 years was manifestly excessive
  • Whether the applicant's role was, in fact, lesser than that of co-offenders Chee (the courier) and Baldwin (the gopher), who each received 10-year sentences

Decision

The Court of Criminal Appeal rejected the submission that the sentencing judge had incorrectly elevated the applicant's role. The evidence, including extensive telephone intercepts and records of meetings with Vasquez, supported a finding that the applicant was a financier of the importation. The court found the judge's assessment of his role was open on the evidence.

The court also rejected the comparison with co-offenders Chee and Baldwin. Although both received lesser sentences of 10 years, the court found the applicant was more culpable than either of them. The reduced sentence received by the principal, Vasquez, was attributable to the substantial assistance he had rendered to authorities, a significant discount that did not apply to the applicant.

Smart AJ, with whom the other judges agreed, observed that even on the applicant's own version of events (that his involvement extended no further than financing the courier, without full knowledge of the operation's sophistication), the sentence could not be characterised as excessive. The court noted the sentence was, if anything, a lenient one given the role the sentencing judge found the applicant had played.

Leave to appeal was granted given the length of the sentence and the need to examine the evidence, but the appeal itself was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's assessment of an offender's role in a drug importation will stand where it is reasonably open on the evidence, even where that assessment is disputed by the applicant.
  • Comparisons between co-offenders' sentences do not automatically support a finding of manifest excess: differences in culpability, and factors such as assistance to authorities, can legitimately explain sentencing disparities.
  • Acting as a financier of a commercial cocaine importation was treated as a serious role capable of attracting a head sentence of 12 years, even absent direct involvement in the physical logistics of the operation.
  • In dismissing the appeal, the court noted that the applicant's own conceded version of events (financing the courier) was itself sufficient to support a substantial custodial term for aiding and abetting the importation of a commercial quantity of cocaine.
  • Leave to appeal was granted not because the sentence was arguably excessive, but because the length of the sentence and the arguable points raised warranted the court's examination of the evidence.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 11.2(1)
- Customs Act 1901 (Cth), ss 233(1)(b), 235(2)

Cases:
- R v Romero-Cepeda [2000] NSWCCA 229 (cited for the proposition that the role of a chemist in a drug importation scheme represents a very high level of criminality)