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23
Court of Criminal Appeal 26 October 2006

Regina v Z

[2006] NSWCCA 342

Also reported as (2006) 167 A Crim R 436
DrugsFraud & dishonesty
CRIMINAL LAW MONEY LAUNDERING MANIFEST INADEQUACY OF SENTENCE IMPORTANCE OF ROLE AS A FACILITATOR GENERAL DETERRENCE CRIMINAL LAW

Citation: Regina v Z [2006] NSWCCA 342
Court: New South Wales Court of Criminal Appeal
Date: 26 October 2006
Judges: Beazley JA, Adams J, Howie J

Background

The respondent, an Israeli national, travelled to Australia in June 2004 to assist an international crime syndicate in laundering the proceeds of crime. While in Australia, he took delivery of over 204,000 MDMA tablets containing approximately 16.86 kg of pure MDMA, nearly 33 times the prescribed commercial quantity. He claimed he did not know the precise nature of what was delivered, only that it was dangerous or illegal.

The respondent was arrested on 28 June 2004 and charged with conspiring to deal in money (the money laundering offence) and possessing not less than a commercial quantity of MDMA (the drug offence). He pleaded guilty to both charges.

In the District Court, Graham DCJ sentenced the respondent to a fixed term of two years for the money laundering offence and five years and two months with a non-parole period of two years and seven months for the drug offence, to be served concurrently. The Crown appealed, contending both sentences were manifestly inadequate.

  • Whether the sentences adequately reflected the criminality of the offending conduct
  • Whether the sentences adequately reflected the need for general deterrence
  • Whether undue weight was placed on the respondent's mental condition as a mitigating factor
  • Whether undue weight was placed on the respondent's assistance to authorities and his guilty plea
  • Whether concurrent sentences were appropriate where the two offences involved separate criminal conduct
  • How discounts for assistance to authorities and a guilty plea should be calculated and combined

Decision

The Court of Criminal Appeal (Beazley JA, with Howie J agreeing and Adams J agreeing on key points) held that the sentencing process miscarried on the drug offence and allowed the appeal in part. The sentencing judge had failed to give proper regard to the criminality of both offences. On the money laundering count, the respondent's role was pivotal rather than menial, and there was no evidence he lacked a full appreciation of the seriousness of what he was involved in. On the drug offence, the classification of MDMA as a "mid-range" drug was described as a description for legislative purposes only, and not a relevant basis for reducing the assessment of the offender's criminality.

The Court also held that the length of time an offender has possession of prohibited drugs is not always the most significant factor. In circumstances such as this, the role played in facilitating the transfer of drugs can be more important than mere duration of possession. The sentencing judge erred in treating the respondent's role as a minor one.

On mental illness, the Court confirmed that where a mental condition does not provide a defence, it remains relevant to sentencing but must be weighed in the complex interplay of all relevant factors. Mathematical or formulaic deductions from a sentence based on mental illness alone are inappropriate. The respondent's mental condition did not deprive him of understanding the seriousness of the offences, and general deterrence accordingly warranted considerable weight.

Regarding concurrency, the Court held that where two offences involve separate criminal conduct, concurrent sentences are generally inappropriate. The sentencing judge must fix an appropriate sentence for each offence before addressing accumulation, concurrence, and totality. On the question of discounts, the Court noted that discounts for assistance and a guilty plea may be combined, though this is not always appropriate, with the overall focus remaining on totality.

Orders Made

  • Appeal allowed in part
  • Sentence on Count 2 (the drug offence) set aside
  • On Count 2, the respondent sentenced to eight years imprisonment commencing 28 June 2005, with a non-parole period of four years commencing 28 June 2005 and expiring 27 June 2009

Key Takeaways

  • The Court of Criminal Appeal confirmed that the legislative classification of a drug (such as MDMA as "mid-range") is relevant to the statutory scheme but does not, of itself, reduce the assessment of an offender's criminality.
  • Where an offender plays a significant facilitative role in a drug importation, that role may be more important to the criminality assessment than the period during which the offender physically possessed the drugs.
  • Mental illness that does not constitute a defence remains a sentencing consideration, but courts should weigh it against all other relevant factors rather than applying formulaic deductions from the sentence.
  • Under the principle in Pearce v The Queen, separate sentences for distinct offences should generally not be made fully concurrent; a sentencing court must fix an appropriate sentence for each offence before addressing concurrence, accumulation, and totality.
  • Discounts for assistance to authorities and a guilty plea may be combined in the sentencing process, though the appropriateness of doing so depends on the circumstances, with the focus remaining on the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 21E
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Code 1995 (Cth), s 400.3(2)
- Customs Act 1901 (Cth), s 233B

Key Cases:
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Markarian v R (2005) 215 ALR 213; [2005] HCA 25
- Wong v R (2001) 207 CLR 584; [2001] HCA 64
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- R v Wiskich (2000) 207 LSJS 431; [2000] SASC 64
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Israil [2002] NSWCCA 255
- R v Klein (2001) 121 A Crim R 90; [2001] NSWCCA 120
- R v Budiman (1998) 102 A Crim R 411
- R v Harb [2001] NSWCCA 249
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Lauritsen v R (2000) 114 A Crim R 333; [2000] WASCA 203
- Channon v The Queen (1978) 33 FLR 433
- R v Engert (1995) 84 A Crim R 67
- R v Tsiaras [1996] 1 VR 398