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Court of Criminal Appeal 18 July 2006

Donnelly v Regina

[2006] NSWCCA 212

Drugs
CRIMINAL PRACTICE & PROCEDURE APPEAL ON SEVERITY OF SENTENCE CLAIM IMPORTED DRUGS FOR PERSONAL USE MDMA CIVIL ONUS ON ACCUSED REJECTED BY JUDGE

Citation: Donnelly v Regina [2006] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 18 July 2006
Judge(s): Handley JA, Hulme J, Kirby J (Kirby J delivered the principal judgment; Handley JA and Hulme J agreed)

Background

The appellant was a passenger on a flight from London who, upon returning to Australia in November 2004, had swallowed 77 pellets of drugs concealed in plastic and ducting tape. Two days after arrival he presented at a Sydney hospital with severe abdominal obstruction. Surgery was required to remove 65 pellets; the remaining 12 had already been regurgitated and were retrieved by police from his flat.

The pellets contained 278.69 grams of pure MDMA (ecstasy) and 3.9 grams of pure cocaine, both above the trafficable quantities prescribed by the Customs Act 1901 (Cth). The appellant pleaded guilty in the Local Court. The matter proceeded to the District Court for sentencing.

The central dispute at sentencing was whether the MDMA had been imported for personal use rather than for commercial dealing. That distinction carried significant consequences under the Customs Act: a finding of personal use attracted a maximum penalty of two years imprisonment or a $2,200 fine, while a commercial purpose attracted a maximum of 25 years imprisonment or a $550,000 fine (or both). The onus of establishing personal use rested on the offender on the civil standard.

  • Whether the sentencing judge gave adequate reasons for rejecting the appellant's claim that the MDMA was imported for personal use.
  • Whether the judge ought to have found that the personal use provision applied, capping the maximum penalty for each charge at two years imprisonment.
  • Whether the sentence imposed exceeded the available statutory maximum.
  • Whether, in the alternative, the sentence was manifestly excessive.

Decision

On adequacy of reasons: The Court of Criminal Appeal found that the sentencing judge had provided sufficient reasons. Judge Nield expressly doubted that the appellant used MDMA as heavily or as frequently as he claimed (up to one gram per day, almost every day). The judge also found that a regular and heavy drug user would have known the approximate purity of the drug purchased, casting doubt on aspects of the appellant's account. Against that finding, the appellant's claim that he had imported a year's supply for personal use, at considerable physical and legal risk, was described by the Court of Criminal Appeal as straining credulity.

On the personal use finding: Having rejected the core evidence about the level of the appellant's use, the sentencing judge was entitled to conclude that the supply represented more than a year's consumption, and was not satisfied on the civil standard that the drugs were imported for personal use. The judge pointed to the quantity imported and its wholesale and street value (between approximately $37,000 and $232,000 depending on the method of calculation) as supporting a commercial purpose. By contrast, the cocaine, with a street value of around $2,200 to $2,340, did satisfy the judge on the personal use issue.

On sentence: The alternative ground alleging manifest excess was not the subject of written or oral submissions. The Court found the sentence of six years and nine months (with a non-parole period of four years) for the MDMA offence was within the available range and not excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under the Customs Act 1901 (Cth) as it then stood, the onus of establishing that an importation was not for a commercial purpose rested on the offender to the civil standard; failure to discharge that onus exposed an offender to the much higher commercial penalty regime.
  • The Court of Criminal Appeal confirmed that a sentencing judge's reasons are adequate where they identify the evidence that was rejected and explain, even briefly, why the principal factual claim was not accepted.
  • In dismissing the appeal, the Court treated the claimed rate of personal consumption as a critical factual issue: once the judge rejected the appellant's evidence about daily use, the inference that the quantity exceeded personal needs followed naturally.
  • A stark contrast in the street value of the two drugs (the cocaine being valued at approximately $2,200 to $2,340 versus the MDMA at potentially over $200,000) was a relevant factor; it informed the judge's different conclusions on the personal use question for each substance.
  • No error was established in the sentencing discretion, and an alternative ground of manifest excess was rejected without extended analysis where the sentence fell within range.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B(1)(a)(vi), 235(2)(d)(i), 235(2)(e), 235(3) (note: the personal use provisions have since been repealed)

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