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Court of Criminal Appeal 22 July 2011

McCraw v R

[2011] NSWCCA 162

Drugs
CRIMINAL LAW OFFENDERS NO ERROR DEMONSTRATED LEAVE GRANTED APPEAL DISMISSED

Citation: McCraw v R [2011] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 22 July 2011
Judge(s): Allsop P, Simpson J, Buddin J

Background

The applicant was convicted by jury in the District Court of conspiracy to import not less than the commercial quantity of MDMA (ecstasy) under the Commonwealth Criminal Code. The conspiracy involved the importation of over 40 kilograms of material containing approximately 30.82 kilograms of pure MDMA, with an estimated Sydney street value of between $4.4 million and $18.5 million.

The applicant worked as a waterside worker and team leader at Patrick Stevedoring at Port Botany. His role in the conspiracy included manipulating his own work roster to be present when the vessel docked, recruiting another employee, arranging access for other conspirators, and physically carrying a bag containing half the total drug quantity from the terminal to a waiting vehicle.

A co-conspirator, Pasinovic, had sailed aboard the vessel as second mate from Antwerp to Sydney over 46 days, maintaining custody of the drugs throughout the voyage. He pleaded guilty mid-trial and also admitted a money laundering charge. The applicant, sentenced to 17 years' imprisonment with an 11-year and 2-month non-parole period, sought leave to appeal on the ground that his sentence was disproportion ately severe compared to that imposed on Pasinovic.

  • Whether a sentencing disparity existed between the applicant's sentence and those imposed on co-offenders, particularly Pasinovic, so as to constitute an error warranting appellate intervention
  • Whether the sentencing judge erred in characterising the applicant's role as being "on a par" with that of Pasinovic
  • Whether the physical duration of each participant's involvement in the conspiracy was a determinative factor in assessing their respective roles

Decision

Simpson J (with whom Allsop P and Buddin J agreed) found no error in the approach taken by Lakatos DCJ. The sentencing judge had described both the applicant and Pasinovic as each playing an "essential and crucial" role in the conspiracy, and had found their roles to be "on a par." The key difference in their sentences reflected only the ten percent reduction given to Pasinovic in recognition of his belated guilty plea and willingness to facilitate the cause of justice, as required by the High Court's decision in Cameron v The Queen.

The Court addressed the applicant's argument that Pasinovic's longer physical involvement, spanning the 46-day voyage, indicated a more significant role. Simpson J rejected the relevance of duration of physical contact with the drugs as a determinative factor. The evidence suggested the applicant was the Australian counterpart to Pasinovic: the person to whom Pasinovic handed over on arrival. The applicant organised and supervised the critical unloading phase, recruited others, and personally carried a substantial portion of the drugs from the terminal.

The Court also noted that a more senior participant, referred to only as "Alpha," had received a starting sentence of 26 years, reflecting a higher organisational role involving deliberate distance from the physical importation. The applicant's lack of contact with Alpha did not establish his role was less significant than Pasinovic's; rather, it was consistent with the structure of the conspiracy at that level. No submission was advanced that the sentence was manifestly excessive independently of the disparity argument, and any such submission was expressly disclaimed during argument.

Orders Made

  • Time to file a notice of appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In sentencing co-conspirators, the relevant comparison is not solely the duration or physical nature of each participant's involvement; the court must assess the nature of the conspiracy, the position occupied by each conspirator within the hierarchy, and the importance of each individual's role.
  • No error was established in the sentencing judge's finding that the applicant and Pasinovic were "on a par," even though their overt acts differed significantly in character and duration.
  • A sentence differential between co-offenders that reflects only a discount for a guilty plea and facilitation of justice does not constitute a sentencing disparity warranting appellate intervention.
  • The Court of Criminal Appeal confirmed that where family hardship arising from an offender's imprisonment is not "exceptional" within the meaning of R v Edwards, it does not warrant a reduction in an otherwise proper sentence.
  • Upholding the sentence, the Court noted that the applicant's claim to a lower status in the organisation was not supported by the evidence and was inconsistent with the functional role he performed as the apparent Australian operational counterpart to the vessel-based courier.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.5, 307.1 (conspiracy to import border controlled drug; maximum penalty of life imprisonment)
- Criminal Code (Cth), s 400.5 (money laundering offence; maximum 15 years' imprisonment)

Cases:
- Cameron v The Queen [2002] HCA 6; 202 CLR 321 (discount for facilitation of justice following guilty plea)
- R v Edwards (1996) 90 A Crim R 510 (exceptional circumstances required for family hardship to reduce sentence)
- Tyler v R; R v Chalmers [2007] NSWCCA 247 (assessment of individual roles in a conspiracy for sentencing purposes)