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Court of Criminal Appeal 5 December 2007

Michel v R

[2007] NSWCCA 337

Drugs
CRIMINAL LAW SENTENCE CUSTOMS ACT 1901 (CTH) SECOND SERIOUS DRUG OFFENCE NO QUESTION OF PRINCIPLE

Citation: Michel v R [2007] NSWCCA 337
Court: New South Wales Court of Criminal Appeal
Date: 5 December 2007
Judge(s): Handley AJA, Hoeben J, Smart AJ

Background

The appellant had pleaded guilty in the District Court to conspiring to import a trafficable quantity of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The conspiracy ran for approximately 12 months and involved seven separate importations, totalling 601.6 grams of pure cocaine smuggled from Chile in 139 envelopes addressed to post office boxes under fictitious names. The total street value was approximately $240,000.

The appellant was the principal in the conspiracy, financing the acquisition of the cocaine in Chile and arranging for a co-offender to travel there to investigate supply delays. His two co-conspirators were characterised by the sentencing judge as "errand boys". He also pleaded guilty to supplying 4.519 kilograms of cannabis leaf and cultivating six cannabis plants under NSW law.

A critical aggravating feature was the appellant's prior conviction in 2001 for being knowingly concerned in the importation of cocaine. That earlier conviction triggered s 235(1)(c) of the Customs Act, lifting the maximum penalty for the current offence from 25 years to life imprisonment. The appellant had also entered the conspiracy while still on parole for the earlier drug offence.

  • Whether the sentencing judge's notional starting point of 17.5 years for the conspiracy offence was manifestly excessive
  • Whether the sentencing judge failed to allow an adequate or identifiable discount for the appellant's assistance to police
  • Whether the overall sentences infringed the totality principle (meaning the combined sentences were disproportionately harsh when viewed as a whole)
  • Whether the sentences infringed the parity principle, given that co-conspirators received substantially lower sentences

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error of fact or principle and no basis to characterise the sentences as manifestly excessive.

On the starting point, the Court accepted that the notional sentence of 17.5 years before the guilty plea discount was justified by the severity of the objective circumstances, including the ongoing nature of the conspiracy, the appellant's role as principal, his prior serious drug conviction, and his re-offending while on conditional liberty.

On the question of assistance, the Court noted that the sentencing judge had acknowledged the appellant's cooperation with police but found it to be of limited value because police were already aware of the relevant information. The Court confirmed, following R v Thompson (2000) 49 NSWLR 383, that the sentencing judge was not required to identify separately the discount applied for assistance.

On parity, the Court found the difference between the appellant's sentence and those of his co-conspirators was fully justified by his greater criminality. He was the financier and organiser of the conspiracy, while the co-conspirators played subordinate roles. One co-conspirator had no criminal record, and the other's prior record was unrelated to drug offences. These differences in culpability and subjective circumstances provided a principled basis for the disparity.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 235(1)(c) of the Customs Act 1901 (Cth), a prior conviction for a serious drug importation offence elevates the maximum penalty for a subsequent importation offence from 25 years to life imprisonment, and this significantly affects the sentencing range available to the court.
  • Re-offending while on parole or within a recognisance period constitutes a materially aggravating factor in sentencing for drug offences.
  • A sentencing court is not required to separately identify the discount applied for assistance to authorities, provided that discount is factored into the sentencing exercise: R v Thompson confirms this approach.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that differences in sentence between co-offenders are justified where there are genuine and material differences in their roles, culpability, and subjective circumstances.
  • No error is established merely because a principal in a conspiracy receives a substantially longer sentence than co-conspirators characterised as subordinates, particularly where the principal financed the operation and had a relevant prior conviction.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B(1)(b), 233B(1)(d), 235(1)(c)
- Crimes Act 1914 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1), 25(1)

Cases:
- R v Thompson (2000) 49 NSWLR 383