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Court of Criminal Appeal 23 June 2010

Anderson v R

[2010] NSWCCA 130

Also reported as (2010) 202 A Crim R 68
Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION CRIMINAL LAW APPEAL AGAINST SENTENCE HEALTH

Citation: Anderson v R [2010] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 23 June 2010
Judges: McClellan CJ at CL, Buddin J, Hislop J

Background

The appellant was convicted in the District Court of conspiring with his son and others to import a commercial quantity of cocaine between June and October 2006. The scheme involved cocaine concealed in waterproof containers attached to the hulls of vessels, including the MV Tampa and the MV Taronga. Evidence showed the appellant and his son travelled to Perth with diving equipment and an inflatable dinghy, and were observed manoeuvring toward the Tampa's hull in Fremantle Harbour at night.

The appellant was sentenced to 18 years imprisonment with a non-parole period of 11 years, dating from 25 October 2006. He sought leave to appeal against both his conviction and his sentence, with an extension of time required for the sentence appeal.

  • Whether the trial judge erred in refusing to discharge the jury after inadmissible material was inadvertently provided to it
  • Whether the trial judge erred in refusing to discharge the jury following complaints about the Crown Prosecutor's closing address
  • Whether "fresh evidence" of the appellant's significant deterioration in health warranted a reduction in sentence

Decision

On the conviction appeal, the Court considered two grounds relating to the trial judge's refusal to discharge the jury. The first concerned inadmissible material that was accidentally placed before the jury. The Court found the trial judge's response to that irregularity was appropriate and that no miscarriage of justice resulted. The second ground related to the Crown Prosecutor's address to the jury, which the appellant contended was improper. The Court rejected this ground as well, finding no error in the trial judge's handling of the complaint.

On the sentence appeal, the appellant sought to rely on fresh evidence of serious ill-health, including a medical prognosis indicating his condition had significantly deteriorated since sentencing. The Court accepted that the evidence reflected a genuine and serious medical situation. However, Buddin J observed that the condition had deteriorated in a manner consistent with earlier medical opinion, meaning it was not truly "fresh" in the relevant sense.

The Court found the sentence imposed was at the lower end of the range for this type of offending. Even accepting the fresh medical evidence, no less severe sentence was "warranted in law and should have been passed" within the meaning of section 6(3) of the Criminal Appeal Act 1912. The Court noted that the appropriate avenue for relief in cases of serious illness was not the appellate court but the executive arm of government, consistent with a line of prior decisions of this Court.

Orders Made

  • Leave to appeal against conviction granted; appeal dismissed
  • Extension of time to seek leave to appeal against sentence granted
  • Leave to appeal against sentence granted; appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that inadmissible material inadvertently reaching a jury does not automatically require discharge; the question is whether the irregularity caused a miscarriage of justice.
  • Complaints about a Crown Prosecutor's closing address will not succeed on appeal where the trial judge addressed the matter appropriately and no resulting unfairness is demonstrated.
  • Fresh evidence of ill-health on a sentence appeal will not justify a reduction where the medical deterioration was foreseeable at the time of sentencing and the sentence was already at the lower end of the range for the offending.
  • In dismissing the sentence appeal, the Court reaffirmed that the executive arm of government, not the appellate court, is the appropriate avenue when a prisoner's deteriorating health raises concerns about the ongoing appropriateness of continued imprisonment.
  • A sentence at the lower end of the applicable range for serious drug importation conspiracy will not readily attract appellate intervention without a principled basis for doing so.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Anastasiou v R [2010] NSWCCA 100
- Barton v Regina [2009] NSWCCA 164
- Causevic v R [2008] NSWCCA 238
- Clark v R [2010] NSWCCA 94
- GDD v R; NJC v R [2010] NSWCCA 62
- Goebel-McGregor [2006] NSWCCA 390
- Holyoak v R (1995) 82 A Crim R 502
- Iglesias v R [2006] NSWCCA 26
- John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344
- Kanaan & Others v Regina [2006] NSWCCA 109
- R v Domican (No 3) (1990) 46 A Crim R 408
- R v Goodwin (1990) 51 A Crim R 328
- R v Munday (1981) 2 NSWLR 177
- R v Shaw (1917) 34 WN (NSW) 150
- R v Starke (1992) 13 Crim App R 548
- RNM v Regina [2006] NSWCCA 375
- Springer v The Queen (2007) 177 A Crim R 13
- The Queen v Gilbert (2000) 201 CLR 414