Citation: [2007] NSWCCA 225
Court: New South Wales Court of Criminal Appeal
Date: 2 August 2007
Judge(s): Tobias JA, Latham J, Mathews AJ
Background
The appellant was convicted in the District Court of knowingly taking part in the supply of 3.5 kilograms of heroin, a large commercial quantity, over a period between May and June 2000. The Crown's case rested primarily on a series of intercepted mobile telephone conversations between the appellant, who was based in Hong Kong, and an associate in Sydney. The Crown alleged these conversations involved coded negotiations over the quantity, price and payment arrangements for a heroin supply.
The heroin was physically delivered in Sydney on 24 June 2000, when Australian Federal Police observed a handover and arrested two individuals found with five packages of heroin in a backpack. The appellant was not present at the handover but was alleged to have acted as an intermediary between an unknown overseas principal and the Sydney wholesaler.
The appellant was sentenced to 11 years' imprisonment with a non-parole period of eight years and three months. He appealed against both his conviction and the severity of his sentence.
Legal Issues
- Whether the jury's guilty verdict was unreasonable or could not be supported by the evidence, having particular regard to the use of expert opinion evidence about allegedly coded language in telephone conversations
- Whether the sentencing judge erred in assessing the appellant's role as greater than that of his co-offender, Tony Micalizzi
- Whether the sentence of 11 years' imprisonment was manifestly excessive
Decision
Conviction appeal: The sole ground challenging the conviction was that the verdict was unsafe and unsatisfactory. The Crown's case depended heavily on the expert evidence of an Australian Federal Police agent, who gave opinion evidence that certain words and expressions in the intercepted calls "could be" coded references to drug quantities, types and prices. Before trial, that evidence had been amended from asserting that particular language "was" a coded drug reference to the softer formulation that it "could be." The appellant's trial counsel had accepted the evidence on that amended basis and did not maintain the objection to the officer's expertise. The defence case was that the conversations used ordinary language relating to innocent topics such as women, furniture, and a shared interest in gambling.
The Court of Criminal Appeal found that, viewed as a whole, the evidence was capable of supporting the verdict and that the jury was entitled to accept the Crown's interpretation of the conversations. The conviction appeal was dismissed.
Sentence appeal: The sentencing judge had placed the appellant's role above that of Micalizzi (characterised as a wholesaler), with the appellant acting as the interface between the overseas source of the heroin and the Sydney distribution chain. The Court of Criminal Appeal agreed that this assessment was entirely correct. The appellant had a prior conviction in 1987 for supplying heroin, for which he had received a substantial sentence after a successful Crown appeal, and that history warranted specific deterrence as an additional sentencing consideration.
The Court noted that Micalizzi's sentence of eight years with a six-year non-parole period had been regarded by the sentencing judge as "extremely lenient," and the Court of Criminal Appeal agreed with that characterisation. Nonetheless, the sentencing judge had taken Micalizzi's sentence into account to avoid the appellant having a justifiable sense of grievance. The Court found no error in the sentencing approach and dismissed the sentence appeal, while granting leave to appeal.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Expert opinion evidence about coded language in drug transactions may be admissible in a form that expresses possibility ("could be") rather than certainty ("was"), and a jury is entitled to accept such evidence when considering the totality of the Crown case.
- In dismissing the conviction appeal, the Court confirmed that where the Crown's case relies heavily on opinion evidence about coded conversations, the jury retains the function of assessing that evidence alongside the defence's alternative innocent explanation.
- An intermediary who operates between an overseas source and a local wholesaler in a large commercial drug supply may properly be assessed as bearing greater criminal responsibility than the wholesaler, particularly where the intermediary has prior convictions for relevantly similar offending.
- A co-offender's sentence that is regarded by the sentencing court as "extremely lenient" does not automatically cap the sentence of a more culpable offender, but a sentencing judge may still take that sentence into account to avoid a justifiable sense of grievance.
- Prior convictions for the same type of offence, particularly where the offender played a similar role, are a relevant factor that can justify emphasis on specific deterrence in sentencing.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW)
Cases:
- Jones v The Queen (1997) 191 CLR 439
- Keller v Regina [2006] NSWCCA 204
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487
- R v David & Gugea (unreported, NSW CCA, 10 October 1995)