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Court of Criminal Appeal 24 June 2014

Webber v R

[2014] NSWCCA 111

Drugs
CRIMINAL LAW SENTENCE APPEAL S 166 CERTIFICATE OFFENCES GUILTY PLEA WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Webber v R [2014] NSWCCA 111
Court: Court of Criminal Appeal, NSW
Date: 24 June 2014
Judges: Hoeben CJ at CL, Fullerton J, Adamson J

Background

The applicant pleaded guilty in the Local Court to importing a commercial quantity of cocaine, contrary to s 307.1 of the Criminal Code Act 1995 (Cth), an offence carrying a maximum penalty of life imprisonment. The consignment, originating from Costa Rica and declared as containing a golf buggy engine, was intercepted by federal authorities in January 2010. The cocaine concealed within a motorcycle engine weighed 3,280.7 grams gross, with a pure weight of 2,219.3 grams, exceeding the commercial quantity threshold of 2 kilograms.

The applicant was the nominated consignee and worked as a golf instructor at the golf course listed as the delivery address. Following a controlled delivery operation, police intercepted phone calls in which the applicant coordinated arrangements for another person, Jones, to collect the package from a Sydney post office. A search of the applicant's home uncovered $93,400 in cash, electronic scales, a small quantity of cocaine, cannabis, and a diary containing notes about the telephone calls.

The District Court sentenced the applicant to 11 years imprisonment with a non-parole period of 7 years for the importation offence. The applicant sought leave to appeal, contending the sentencing judge gave insufficient weight to his subjective circumstances and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to give appropriate weight to the applicant's subjective case, including his good character and personal circumstances.
  • Whether the sentence of 11 years with a 7-year non-parole period was manifestly excessive, having regard to the applicant's role in the offending and comparable cases.

Decision

On the first ground, Fullerton J found no error in the sentencing judge's treatment of the subjective case. The applicant's testimonials and claimed good character were before the sentencing judge, who took them into account. The offer of assistance had been rated "low" by police due to the applicant's contradictory accounts, and no challenge was mounted to the decision to afford it no weight.

On the second ground, the applicant's central argument was that his role was subordinate to Jones, making him more akin to a courier, and that the sentence should have reflected that lower level of culpability. The Court rejected that characterisation. A fair reading of the agreed statement of facts showed that the applicant was closely familiar with the configuration of the consignment, capable of adapting to the controlled delivery operation in real time, and actively coordinating arrangements for collection. His conversations with both Jones and his own partner demonstrated a degree of knowledge and involvement at least consistent with a joint venture with Jones.

Fullerton J concluded that to characterise the applicant's role as being "at the lower end" of criminality would be to ignore the weight of the agreed facts. The sentence fell within the proper exercise of the sentencing discretion and could not be described as unreasonable or plainly unjust. Both Hoeben CJ at CL and Adamson J agreed with Fullerton J's reasons.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court's characterisation of an offender's role must be grounded in a fair reading of all agreed facts, not limited to the most favourable interpretation available to the offender.
  • Where an applicant's claimed assistance was rated "low" by police due to contradictory accounts, and that finding went unchallenged on appeal, the sentencing court's decision to afford it no weight was left undisturbed.
  • A sentence is manifestly excessive only where it exceeds the bounds of a proper sentencing discretion, not merely because it is severe, or because another court might have imposed a different penalty.
  • The presence of a more senior co-participant does not automatically establish that an offender played a minor or subordinate role; the agreed facts as a whole must support that characterisation.
  • Subjective factors such as good character and testimonials do not necessarily reduce a sentence to the extent argued by an applicant, particularly where the objective gravity of the offending is high and the subjective claims sit in tension with the broader factual picture.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.1
- Criminal Code Regulations 2002 (Cth), Schedule 4
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 23(1)(b)

Cases:
- Barbaro v R [2014] HCA 2
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Dyer v R [2011] NSWCCA 185
- Edwards v R [2009] NSWCCA 199
- Elturk v R [2014] NSWCCA 61
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Ng v R (Cth) [2010] NSWCCA 232
- R v Todoroski (District Court (NSW), Sorby DCJ, 14 August 2009, unrep)
- R v Tran; R v Tran and R v Nguyen [2013] NSWCCA 136
- Radi v R [2013] NSWCCA 278
- Zreika v R [2012] NSWCCA 44