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7
Court of Criminal Appeal 28 November 2014

Lachlan Wilson v R

[2014] NSWCCA 266

Drugs
CRIMINAL APPEAL CONVICTION WHETHER VERDICT UNREASONABLE DRUG IN BOTH OFFENCES THE SAME APPEAL

Citation: Lachlan Wilson v R [2014] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 28 November 2014
Judge(s): Bathurst CJ; Fullerton J; Davies J

Background

The appellant was charged on a joint indictment with importing a commercial quantity of pseudoephedrine into Australia (a border controlled precursor under the Criminal Code Act 1995 (Cth)) and with knowingly taking part in the supply of that same drug in a commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). The charges arose from a shipment of over 2.6 million pseudoephedrine tablets concealed in a container consigned to a company the appellant controlled. The potential street value of the shipment, if converted to methamphetamine, was estimated at between $34.5 million and $55.5 million.

The appellant was tried alongside several co-accused before a judge and jury. The jury convicted him on the supply count but could not reach a unanimous verdict on the importation count. He was sentenced to a head sentence of 16 years and 2 months, with a non-parole period of 10 years and 6 months.

The appellant sought leave to appeal against both his conviction and his sentence.

  • Whether the conviction on the supply count was unreasonable in light of the jury's failure to reach a verdict on the importation count, given that both charges involved the same drug and the same mental element formed during the same period
  • Whether the appellant was charged with legally inconsistent counts, causing the trial to miscarry
  • Whether the sentencing judge impermissibly took into account conduct relating to the importation offence when sentencing for supply (the De Simoni principle)
  • Whether the sentence was manifestly excessive, having regard to the assessment of the appellant's role and criminal culpability within the drug syndicate
  • Whether the sentence was disproportionate to those imposed on co-offenders, giving rise to an unjustifiable sense of grievance (the parity principle)

Decision

Unreasonable verdict. The Court rejected the argument that an unresolved importation count necessarily rendered the supply conviction unreasonable. The two offences have different elements. A hung jury on the importation count did not compel an acquittal on supply: the jury may have been satisfied beyond reasonable doubt on all elements of the supply offence while remaining divided on the distinct elements required for importation. The Court found the supply conviction was supported by the evidence.

Inconsistent charges. The Court dismissed the second conviction ground. The two charges were not legally inconsistent. The elements of supplying a prohibited drug are not subsumed within the elements of importing a border controlled precursor, even where the substance is the same. The charges targeted distinct conduct and distinct fault elements, and it was lawful to present them on the same indictment.

De Simoni principle. The Court found no impermissible use of the importation conduct at sentencing. A sentencing court is permitted, and may indeed be required, to refer to the context and surrounding circumstances of the offending. Any references to the importation conduct were descriptions of relevant context rather than punishment for a separate uncharged or unproven offence.

Manifest excess and parity. The Court found no error in the sentencing judge's assessment of the appellant's role as a senior participant in the drug supply enterprise. On parity, the Court noted the trial judge was in an optimum position to assess relative culpability across co-offenders, including the appellant and a co-offender who had pleaded guilty. Any differences in sentences were explained by differences in roles and subjective circumstances. The discrepancy was not gross, marked, or glaring, and the appellant's sense of grievance was not objectively justified.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A hung jury on an importation count does not automatically render a conviction for supply of the same drug unreasonable: the offences carry distinct elements, and a jury may rationally be satisfied on one while divided on the other.
  • Charging an accused with importing a border controlled precursor and supplying the same substance as a prohibited drug is not legally inconsistent, because the elements of each offence are different and the charges address different conduct.
  • Under the De Simoni principle, a sentencing court does not err simply by referring to the broader context or surrounding circumstances of an offence, provided it does not punish the offender for conduct that was not the subject of the conviction.
  • Upholding the sentence, the Court of Criminal Appeal confirmed that appellate intervention on parity grounds requires a disparity that is "gross", "marked", or "glaring", and that a sentencing judge who was aware of co-offenders' sentences is well-placed to structure the sentence accordingly.
  • Where a sentencing judge was present throughout the trial and directly assessed each co-offender's role and subjective circumstances, the Court of Criminal Appeal will be slow to disturb the resulting relativities between sentences.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 3.1, 3.2, 307.11, 307.14
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 24A, 25, 33 and Sch 1
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
- Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
- Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
- Crystal Lee England v R [2009] NSWCCA 274
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Dungay v R; R v Dungay [2010] NSWCCA 82
- ES v R [2014] NSWCCA 268
- Gill v R [2010] NSWCCA 236
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Ibrahim Jidah v R [2014] NSWCCA 269
- Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400