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12
Court of Criminal Appeal 14 June 2012

Lindsay v R

[2012] NSWCCA 124

Drugs
CRIMINAL LAW SENTENCE IMPORTING MARKETABLE QUANTITY OF BORDER CONTROLLED DRUG DURESS DRUG DEBT

Citation: Lindsay v R [2012] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 14 June 2012
Judges: Allsop P (with Davies J and Schmidt J agreeing)

Background

The appellant pleaded guilty in the District Court to importing a marketable quantity of cocaine, contrary to s 307.2(1) of the Criminal Code (Cth). He was intercepted at Sydney Airport after arriving on a flight from Bangkok, carrying over 400 grams of cocaine (352.1 grams pure) concealed on his person. The maximum penalty for the offence was 25 years imprisonment.

The District Court sentenced him to a non-parole period of five years and six months, with a balance of term of three years. The appellant was 44 years old at the time of sentencing and had a lengthy criminal history involving drugs, stealing, and dishonesty.

On appeal, the appellant argued first that the sentence was manifestly excessive by reference to sentencing categories set out in DPP (Cth) v De La Rosa. When new counsel appeared midway through the appeal hearing, a second argument was introduced: that the sentencing judge failed to make a finding, or give adequate weight to circumstances, of duress falling short of the legal defence of duress. The duress arose from alleged threats against the appellant and his family in England, connected to an unpaid drug debt of approximately £6,000.

  • Whether the sentence of eight and a half years (five years six months non-parole, three years balance) was manifestly excessive having regard to the De La Rosa sentencing categories for Commonwealth drug importation offences.
  • Whether the sentencing judge erred by failing to make a specific finding of duress (below the threshold of the legal defence) and by failing to give that circumstance proper weight in assessing the appellant's criminality.

Decision

On manifest excess: The Court found no real prospect of demonstrating manifest excess. Allsop P observed that, far from being a mere courier, the appellant had participated in planning the offence, including booking his own travel and accommodation. This placed him closer to the second De La Rosa category (head sentence range of six to nine years) than the third (lower quantities and mere courier role) on which original counsel had relied. The Court also cautioned that the De La Rosa categories are general guidance only and are not legally binding.

On the duress argument: The appellant's sister and mother had sworn affidavits, read without objection at sentencing, describing serious threats made to them in England before the importation. However, the sentencing judge noted significant inconsistencies in the appellant's own evidence. He had not disclosed threats to his family when speaking to police or to the social worker who prepared a pre-sentence report, and his first stated concern was avoiding being held in custody as an informer. The judge considered all relevant evidence but declined to make a firm finding that protection of his family was what truly motivated the appellant's conduct.

On the scope of the error alleged: Allsop P held that the sentencing judge was not required to make a more precise or favourable finding on the duress circumstances. The uncross-examined affidavit evidence from family members did not compel a finding about the appellant's internal motivation; that depended on the judge's assessment of the appellant's own evidence and his credibility. No reviewable error was established.

On general deterrence: The Court noted, drawing on Tiknius v R, that those behind drug importations commonly groom or pressure vulnerable individuals to carry out importations. This is an unremarkable feature of many such offences. Courts must remain alert to the risk that general deterrence is diluted by claims of threats or intimidation, while still examining the particular facts of each case.

Orders Made

  • Leave to appeal granted on the issues raised in the supplementary written submissions dated 23 May 2012; leave to appeal otherwise refused.
  • Appeal dismissed.

Key Takeaways

  • The De La Rosa sentencing categories for Commonwealth drug importation offences are general guidance only. The Court of Criminal Appeal reiterated that they are not binding and cannot be applied as if they were prescriptive ranges.
  • Where an appellant's role extends beyond mere courier to include participation in planning, a sentencing court is entitled to place the offending in a higher De La Rosa category, attracting a correspondingly greater sentence range.
  • Uncross-examined affidavit evidence from family members does not automatically compel a favourable finding about an offender's motivation. The sentencing court retains the task of assessing motivation through the lens of the offender's own evidence and credibility.
  • In dismissing the appeal, the Court confirmed that duress falling short of a legal defence must still be assessed on the particular evidence led, and a sentencing judge commits no error by declining to make a firm finding where the offender's own evidence is inconsistent or evasive.
  • General deterrence carries significant weight in drug importation sentencing. Pressure or grooming by those behind importation enterprises is a common feature of such offending, and courts are cautioned against allowing that circumstance to dilute the deterrent effect of sentences without careful scrutiny of the evidence.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 307.2(1) (importing a marketable quantity of a border-controlled drug)

Cases:
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- Tiknius v R [2011] NSWCCA 215