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Court of Criminal Appeal 20 October 2006

White v R

[2006] NSWCCA 340

Drugs
SENTENCING APPLICATION FOR EXTENSION OF TIME APPEAL AGAINST SEVERITY OF SENTENCE NO ERROR DEMONSTRATED

Citation: White v R [2006] NSWCCA 340
Court: NSW Court of Criminal Appeal
Date: 20 October 2006
Judge(s): Hidden J, Bell J, Johnson J

Background

The appellant was a 61-year-old male-to-female transsexual who pleaded guilty in the Sydney District Court to importing a trafficable quantity of MDMA (ecstasy) contrary to the Customs Act 1901 (Cth). The offence involved approximately 1,300 tablets hidden inside hollowed-out ski equipment consigned from Bangkok to Sydney, with a street value of around $65,000. The sentencing judge, Nield DCJ, rejected the appellant's claim that she had been coerced by a third party and found she had planned and executed the scheme alone for financial gain.

The appellant had a significant prior criminal history, including a 1985 Supreme Court conviction for importing a commercial quantity of cannabis resin, for which she received 13 years imprisonment. That prior conviction elevated the maximum penalty for the current offence to life imprisonment under the Customs Act. Nield DCJ sentenced the appellant to 10 years imprisonment with a non-parole period of six years, applying a 20 per cent discount for her guilty plea.

The appellant, who was unrepresented, sought an extension of time to file her application (the original application having been filed on 27 February 2006, nearly two years after sentence was imposed) and raised five grounds of appeal against the severity of her sentence.

  • Whether the extension of time for filing an application for leave to appeal should be granted
  • Whether the sentence of 10 years (non-parole period of six years) was manifestly excessive, having regard to the quantity of the drug
  • Whether the sentencing judge gave insufficient weight to mitigating circumstances, including the guilty plea and subjective factors
  • Whether a failure by former defence counsel to act on the appellant's instructions resulted in a misrepresentation of her defence
  • Whether the sentencing judge's findings on the period of the appellant's conditional liberty and her prospects of rehabilitation were erroneous
  • Whether the appellant's age, and the harsher impact of imprisonment on an older person, was inadequately taken into account

Decision

The Court of Criminal Appeal granted the extension of time, noting that the Crown did not oppose it given the appellant was unrepresented and in full-time custody. Leave to appeal was also granted, but the appeal was dismissed on all grounds.

On the question of manifest excess, the Court found no error. The offence was premeditated and well-planned, carried out for financial gain, and involved a quantity of MDMA approximately 200 times the applicable trafficable threshold. Against the backdrop of a maximum penalty of life imprisonment, the sentence was within the appropriate range.

The Court found no error in the sentencing judge's treatment of mitigating factors. Nield DCJ had applied a 20 per cent discount for the guilty plea and had considered the appellant's age, gender-identity issues, remorse, and the more onerous conditions she would face in custody. The Court also found that the remarks about rehabilitation prospects were not erroneous: they reflected the seriousness of the appellant having re-offended in the same way as her 1985 conviction, despite nearly 14 offence-free years in the interim.

On the ground relating to former defence counsel, the Court found no supporting evidence before it. On the ground concerning the appellant's age, the Court was satisfied that Nield DCJ had taken those circumstances into account alongside other personal factors that made imprisonment more burdensome.

Orders Made

  • Time for filing an application for leave to appeal against sentence extended to 27 February 2006
  • Leave to appeal granted but appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's approach, and the Court of Criminal Appeal confirmed that intervention requires demonstrated error at first instance, applying the principles in R v Vachalec and House v The King.
  • A prior conviction for a similar importation offence can elevate the statutory maximum penalty under the Customs Act 1901 (Cth) to life imprisonment, which in turn significantly affects the range of appropriate sentences available to a sentencing court.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal treated the premeditated nature of the offending, the volume of the drug relative to the trafficable threshold, and the prior related conviction as central considerations justifying a substantial sentence.
  • Subjective factors, including guilty plea discounts, age, and conditions of custody, were found to have been properly weighed by the sentencing judge even where the resulting sentence remained severe.
  • Appellate courts are bound by a sentencing judge's findings of fact unless they were not open on the evidence or disclose error in the House v The King sense, and an unparticularised claim of inadequate weight given to mitigating circumstances will not of itself ground a successful appeal.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), ss 233B(1)(b), 235(2)(c)(ii)
- Criminal Appeal Act 1912, s 6(3)

Cases
- R v Vachalec (1981) 1 NSWLR 351
- House v The King (1936) 55 CLR 499
- Kardoulias v The Queen (2005) 159 A Crim R 252
- R v Abbott (1984) 17 A Crim R 355
- R v McKenna (Court of Criminal Appeal, 16 October 1992, unreported)