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Court of Criminal Appeal 27 June 2007

CALDERWOOD v R

[2007] NSWCCA 180

Also reported as (2007) 172 A Crim R 208
Drugs
CRIMINAL LAW CONVICTION AND SENTENCE APPEALS IMPORTATION OF MDMA CIRCUMSTANTIAL CASE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Calderwood v R [2007] NSWCCA 180
Court: Court of Criminal Appeal, New South Wales
Date: 27 June 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant was convicted by a jury in the District Court of importing not less than a trafficable quantity of MDMA, contrary to section 233B(1)(b) of the Customs Act 1901 (Cth). The offence carried a maximum penalty of 25 years imprisonment and/or a $550,000 fine. The drugs involved were 258.1 grams of MDMA containing 99.1 grams of pure substance, representing 180 times the trafficable quantity.

The Crown case rested on the interception of a 14-kilogram package from Hong Kong, which concealed 1,000 MDMA tablets inside DVD cases. Lawfully intercepted telephone calls formed the core of the circumstantial case. Those calls indicated the appellant had organised the consignment and made repeated attempts to take possession of it after its arrival at Sydney International Airport in April 2004.

The appellant was arrested on 12 May 2004 and sentenced to 6 years and 5 months imprisonment with a non-parole period of 4 years, commencing 27 January 2005. He appeared unrepresented on the conviction appeal and was represented by senior counsel on the sentence appeal.

The court was asked to resolve the following questions:

  • Whether the Crown had proved all elements of the importation offence, including the "fault" element of knowledge, and whether sufficient evidence supported conviction in a circumstantial case
  • Whether the trial judge's direction on the meaning of "importing" (particularly the relevant time at which knowledge must be established) was legally correct
  • Whether portions of the record of interview that were blanked out should have led to the entire interview being excluded
  • Whether the Crown's address and the trial judge's summing up were distorted and prejudicially unfair
  • Whether the trial judge's answer to a jury question contained error
  • Whether the sentence imposed was manifestly excessive

Decision

Conviction grounds: The Court of Criminal Appeal upheld the conviction. The Crown case was acknowledged to be circumstantial, and the trial judge gave appropriate directions to the jury on the standard required to reach a guilty verdict in such a case. The central issue at trial was whether the appellant knew, or was aware of a real or significant likelihood, that he was importing narcotics. The jury was directed that a reasonable possibility of ignorance required an acquittal.

The "material time" direction: The appellant argued that knowledge of the narcotics had to be established at the precise moment the goods physically arrived in Australia. The trial judge directed the jury that importation is a continuing process, extending until the importer gains possession of the goods. The Court of Criminal Appeal found no error in that direction. Evidence of the appellant's ongoing attempts to retrieve the consignment, including conversations with freight agents after customs placed a hold on the package, was consistent with his continued involvement in the importation.

Record of interview and procedural grounds: The Court rejected the argument that blanking out irrelevant portions of the record of interview required the entire interview to be excluded. The remaining grounds, including complaints about the Crown address, the summing up, the answer to the jury question, and the appellant's absence on the first day of trial, were also dismissed. The Court found no distortion or prejudice of the kind alleged.

Sentence appeal: Leave to appeal against sentence was granted, but the appeal was dismissed. The Court confirmed that, while the weight of the narcotic is a relevant sentencing factor, an offender's state of knowledge about the importation and any financial reward may carry greater significance in assessing criminality. The appellant was found to be a principal whose role was essential: he arranged the freight, set up the infrastructure for collecting the drugs, and was to manage customs clearance payments. Comparison with other cases referred to by the appellant did not establish that the sentence was outside the available range. The Judicial Commission statistics confirmed the sentence, though above the median, remained within range.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted, but the sentence appeal dismissed.

Key Takeaways

  • Importation of narcotics under section 233B(1)(b) of the Customs Act 1901 is a continuing process; an accused who actively seeks to take possession of intercepted goods after their physical arrival can still be found to have been engaged in the importation during that ongoing period.
  • In a circumstantial case, the fault element of knowledge (awareness of a real or significant likelihood that the goods contained narcotics) may be inferred from intercepted telephone calls and conduct after the goods' arrival, provided appropriate jury directions are given.
  • Blanking out irrelevant portions of a record of interview does not automatically require exclusion of the entire record; the remaining admissible content may still be tendered.
  • Under the approach confirmed in Wong v The Queen (2001) 207 CLR 584 and Markarian v The Queen [2005] HCA 25, weight of narcotic alone is not the chief sentencing factor; an offender's actual knowledge of the nature and scale of the importation and the reward received are significant considerations in assessing criminality.
  • A sentence above the median for a category of offence is not necessarily manifestly excessive where it remains within the range established by comparable cases and Judicial Commission statistics.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Crimes Act 1914 (Cth)

Cases:
- Harriman v R (1989) 167 CLR 590
- M v R (1994) 181 CLR 487
- Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048
- Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
- R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
- R v Lam (1990) 46 A Crim R 402
- R v Leff (1996) 86 A Crim R 212
- R v McGregor (2000) 120 A Crim R 24
- R v Meloh (2001) 10 NSWCCA 211
- R v Muradian [2002] NSWCCA 371
- R v Nai Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284
- R v Schofield (2003) 138 A Crim R 19
- R v Sukkar [2005] NSWCCA 54