Citation: Viera v Regina; Teehan v Regina [2006] NSWCCA 401
Court: NSW Court of Criminal Appeal
Date: 12 December 2006
Judge(s): Spigelman CJ, Simpson J, Bell J
Background
Two men, referred to here as the first applicant and the second applicant, each pleaded guilty in the District Court to conspiring to import cocaine into Australia in contravention of federal customs and criminal code legislation. The offending involved a sophisticated scheme in which cocaine was posted from Santiago, Chile, in envelopes addressed to fictitious names at post office boxes on Sydney's Northern Beaches. Australian Customs intercepted 131 envelopes in total, containing over 1,600 grams of cocaine in bulk.
The first applicant became involved in the conspiracy in October 2003, travelling to Chile to investigate why cocaine shipments had slowed. His involvement related to three seizures amounting to approximately 747 grams bulk, yielding around 381 grams of pure cocaine with an estimated street value of $152,360. The second applicant was involved over a longer period, from late 2002, and his role extended to maintaining post office boxes used to receive the drugs. He also pleaded guilty to a cannabis supply offence under NSW law and had additional possession offences taken into account on sentence.
Both applicants were sentenced by Nield DCJ in the District Court in January 2006. Each sought leave to appeal against the severity of their sentences in the Court of Criminal Appeal.
Legal Issues
- Whether the sentences imposed on each applicant were manifestly excessive
- Whether the sentencing judge gave adequate weight to mitigating factors, including cooperation with authorities, guilty pleas, and good character
- Whether, in the second applicant's case, his history of drug use warranted greater mitigation, on the basis that the offending was connected to his addiction
Decision
The Court of Criminal Appeal granted leave to appeal in both cases but dismissed both appeals. Bell J delivered the leading judgment, with Spigelman CJ and Simpson J agreeing.
In relation to the first applicant, the Court considered his guilty plea, his entry into a cooperation undertaking, and his evidence given for the Crown at the second applicant's sentence hearing. The Court accepted these were significant mitigating factors and that the sentencing judge had recognised them. The resulting sentence of six years and eleven months with a non-parole period of four years and six months was found to be within the proper exercise of the sentencing discretion, notwithstanding that it was a substantial term.
For the second applicant, the Court examined a ground that the sentencing judge had failed to give sufficient weight to his drug use history. The Court distinguished the present case from decisions where drug addiction had been treated as a mitigating factor linked directly to offending motivated by a craving for drugs. Here, the sentencing judge found that the second applicant had joined the conspiracy willingly, with full awareness, and in expectation of substantial financial gain. That factual finding meant the drug use history did not qualify for the same kind of mitigating treatment as offending driven by an immediate need to satisfy an addiction.
The Court noted, citing the High Court's decision in Markarian, that the sentences might be thought severe but that general deterrence had been given prominent weight by the sentencing judge, and that this approach was consistent with established principle for offences of this kind. No error in the exercise of the sentencing discretion was established in either case.
Orders Made
- Leave to appeal against the severity of sentence granted in both cases
- Both appeals dismissed
Key Takeaways
- In dismissing both appeals, the Court of Criminal Appeal confirmed that prominent weight given to general deterrence in serious drug importation conspiracies does not, of itself, constitute an error in sentencing.
- A history of drug use does not automatically operate as a mitigating factor in sentencing: the connection must be established between the addiction and the commission of the offence, such as offending motivated by an immediate need to satisfy a craving rather than financial gain.
- Cooperation with authorities, including giving evidence for the Crown against co-offenders, was recognised as a significant mitigating factor, but did not render the sentences in this case manifestly excessive.
- The principle from Markarian was applied: even a sentence that might appear severe on its face will not be disturbed on appeal where it falls within the proper range of the sentencing discretion.
- Sentences reflecting both the scale of the importation conspiracy and the professional organisation involved, including use of post office boxes under fictitious names and an international supply chain, were treated as consistent with the objective seriousness of the offending.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth), s 11.5(1)
- Customs Act 1901 (Cth), s 233B(1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases:
- Markarian v The Queen [2005] HCA 25; 79 ALJR 1048
- R v El Hani [2004] NSWCCA 162
- R v Haidar [2004] NSWCCA 350
- R v Lowe (1984) 154 CLR 606
- R v Sukkar [2006] NSWCCA 92
- R v Tulloh (unreported), Court of Criminal Appeal, 16 September 1993
- R v Wong and Leung (1999) 48 NSWLR 340
- R v Z [2006] NSWCCA 342