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Court of Criminal Appeal 29 March 2019

Klomfar v R

[2019] NSWCCA 61

Drugs
CRIMINAL LAW OFFENCES APPEAL SENTENCE OFFENDER OFFENDER

Citation: Klomfar v R [2019] NSWCCA 61
Court: Court of Criminal Appeal, NSW
Date: 29 March 2019
Judge(s): Payne JA, Bellew J (principal judgment), Campbell J

Background

The appellant was a Czech national who travelled from Europe to Las Vegas, collected four suitcases concealing cocaine, and then flew to Sydney with a co-traveller in March 2016. On arrival, Australian Border Force officers discovered 28 blocks of cocaine hidden in the suitcases' linings. The pure cocaine attributable to the appellant weighed 4.653 kilograms, more than double the commercial quantity threshold of 2 kilograms, and carried an estimated wholesale value of between $1.39 million and $1.54 million.

The appellant pleaded guilty on the day his trial was due to begin to importing a border controlled drug in a commercial quantity, an offence under s 307.1(1) of the Criminal Code 1995 (Cth) carrying a maximum penalty of life imprisonment. Judge Zahra SC sentenced him to 7 years and 8 months' imprisonment commencing 2 March 2016, with a non-parole period of 5 years.

The appellant sought leave to appeal against that sentence on two grounds: first, that his sentence was unjustifiably disparate compared to that imposed on his co-offender; and second, that the sentence was manifestly excessive.

  • Whether the disparity between the appellant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance.
  • Whether the sentence of 7 years and 8 months with a 5-year non-parole period was manifestly excessive for this offending.

Decision

Disparity ground: The Court identified several clear distinctions between the appellant and his co-offender. The co-offender had pleaded guilty earlier, had better prospects of rehabilitation, demonstrated greater remorse, and provided more substantial assistance to authorities. These differences in both objective criminality and subjective circumstances justified the different sentences. Applying the principles from Postiglione v R and Green v R; Quinn v R, the Court found the appellant had no justifiable sense of grievance.

Manifest excess ground: The sentencing judge had placed the offending towards the lower end of the range for commercial quantity importations, recognising the appellant's role as a courier directed by others with no involvement in procurement or distribution. However, the Court emphasised that courier roles remain serious: drug importation networks depend on individuals willing to act as couriers, and this is a factor that calls for general deterrence. The quantity imported was substantially in excess of the commercial threshold and worth well over $1 million.

The Court found the sentencing judge had correctly weighed all relevant factors under s 16A(2) of the Crimes Act 1914 (Cth), including the appellant's assistance to authorities and the discount applied for that assistance. No error in the exercise of sentencing discretion was demonstrated, and the sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing disparity between co-offenders only becomes appellable where clear distinguishing features do not account for the difference; here, earlier plea, greater remorse, better rehabilitation prospects, and more substantial assistance to authorities sufficiently explained the differential outcome.
  • A courier role at the lower end of a drug importation hierarchy does not diminish the weight to be given to general deterrence, particularly where the quantity significantly exceeds the commercial threshold and the operation has commercial scale.
  • Where a sentencing judge has correctly identified and applied all relevant factors under s 16A(2) of the Crimes Act 1914 (Cth), including giving appropriate credit for assistance to authorities, an appellate court will not intervene merely because a different sentence could have been imposed.
  • No error was established in imposing a head sentence of 7 years and 8 months for importing 4.653 kilograms of pure cocaine with a wholesale value exceeding $1.39 million, even where the offender's role was limited to transporting the drugs as a courier.
  • In dismissing the appeal, the Court reiterated that persons at any level of the illicit drug trade should expect significant custodial sentences, particularly for importations substantially exceeding the commercial quantity.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 307.1(1)
- Crimes Act 1914 (Cth), s 16A(2)

Cases:
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- Lowe v R [1984] HCA 46; (1984) 145 CLR 606
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Xiao v R [2018] NSWCCA 4
- Vaiusu v R [2017] NSWCCA 71
- Budiman v R (1998) 102 A Crim R 411
- Lindsay v R [2012] NSWCCA 124
- R v Holland [2011] NSWCCA 65
- Le Cerf v R (1975) 13 SASR 237