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Court of Criminal Appeal 13 November 2019

Woodrum v R

[2019] NSWCCA 270

DrugsFraud & dishonesty
CRIME SENTENCE APPEAL PAROLE PERIOD OF 4 YEARS AND 6 MONTHS SENTENCE LINE SUITOR WHOM SHE HAD NOT MET SENTENCE QUASHED

Citation: Woodrum v R [2019] NSWCCA 270
Court: Court of Criminal Appeal, NSW
Date: 13 November 2019
Judge(s): Gleeson JA, Harrison J, Cavanagh J

Background

The appellant, an American citizen aged 50, pleaded guilty in the NSW District Court to importing a marketable quantity of cocaine into Australia on 4 August 2017, contrary to s 307.2(1) of the Criminal Code 1995 (Cth). The maximum penalty for that offence is 25 years imprisonment. She was sentenced to 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.

The cocaine was secreted in luggage the appellant carried from Suriname to Sydney. In the months before the offence, she had exchanged hundreds of romantic text messages with a person calling himself "Hendrik Cornelius," whom she had never met in person or spoken to by phone. The Crown and the sentencing judge agreed that the appellant was to be sentenced on the basis of recklessness rather than actual knowledge of the drugs.

The Crown conceded on appeal that the sentencing judge had made an error concerning the degree to which the quantity of cocaine exceeded the prescribed marketable threshold. Although that error had favoured the appellant, the Crown accepted that re-sentencing by the Court of Criminal Appeal was nonetheless required. The appeal therefore proceeded as a re-sentencing exercise.

  • Whether the sentencing judge's error regarding the quantity of cocaine above the marketable threshold warranted re-sentencing on appeal
  • Whether the appellant should be sentenced on the basis of actual knowledge or recklessness as to the presence of a border-controlled drug
  • Whether the online romantic deception practised on the appellant was a significant factor in her moral culpability and therefore relevant to the sentence
  • What sentence was warranted in light of all objective and subjective circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and confirmed that re-sentencing was appropriate given the Crown's concession about the sentencing error. Harrison J (with Gleeson JA and Cavanagh J agreeing) conducted the re-sentencing exercise in full.

On the question of the appellant's state of mind, the Court accepted the sentencing judge's finding that the appellant should be sentenced on the basis of recklessness, not actual knowledge, as to the presence of a border-controlled drug. The Court also accepted the sentencing judge's conclusions on the amount of cocaine and the absence of any finding that the appellant had control over the quantity or quality of the drug she was carrying.

The Court departed from the sentencing judge on one significant point: the role of the romantic deception in the appellant's motivation. The sentencing judge had declined to accept that the "Hendrik Cornelius" relationship substantially explained the appellant's conduct, in part because of doubts about the appellant's credibility. Harrison J disagreed, finding the deception to be clear and significant. His Honour reasoned that a person with the appellant's otherwise impeccable background and strong subjective circumstances would almost certainly not have engaged in serious criminal activity absent some expectation, however unrealistic, of a future romantic relationship with her online contact.

The Court also noted the appellant's first imprisonment was occurring in a foreign country far from family and friends, that she had excellent prospects of rehabilitation, and that specific deterrence carried little weight in the circumstances. These matters, combined with the significance of the romantic deception to her moral culpability, supported a substantially reduced sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence imposed by Wass DCJ on 6 September 2018 quashed
  • New sentence imposed: non-parole period of 3 years commencing 4 August 2017 and expiring 3 August 2020, with a balance of term of 2 years expiring 3 August 2022

Key Takeaways

  • A sentencing error that technically favours the offender may still warrant re-sentencing on appeal where the Crown concedes the error renders the sentence unreliable, consistent with Greentree v R [2018] NSWCCA 227.
  • Where a guilty plea admits recklessness only, sentencing an offender as if she had actual knowledge of the drugs risks infringing the Di Simoni principle; the Court confirmed the appropriate basis here was recklessness.
  • Romantic deception orchestrated through online fraud, though not a complete excuse, can substantially reduce an offender's moral culpability and justify a meaningfully lower sentence where the deception credibly explains conduct that would otherwise be out of character.
  • In dismissing the sentencing judge's scepticism about the "romance fraud" narrative, the Court of Criminal Appeal emphasised that the absence of any prior meeting between the appellant and her online contact supported rather than undermined the inference of deception.
  • Factors including first-time imprisonment in a foreign jurisdiction, strong subjective circumstances, and good rehabilitation prospects can, taken together, significantly reduce the weight given to specific deterrence in federal drug importation sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code 1995 (Cth), s 307.2(1)

Cases:
- Bertilone v R (2009) 231 FLR 383; [2009] WASCA 149
- Chang v R [2011] NSWCCA 182
- Di Tommaso v R [2010] VSCA 178
- Greentree v R [2018] NSWCCA 227
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- R v Sutton [2013] QCA 151