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Court of Criminal Appeal 21 August 2020

Melville v R

[2020] NSWCCA 210

Drugs
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE SELF REPRESENTED LITIGANT SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Melville v R [2020] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 21 August 2020
Judges: Johnson J, Price J, Wright J (Wright J delivering the leading judgment)

Background

The appellant, an Australian citizen, was intercepted at Sydney Airport after arriving from Peru in January 2017. Border Force officers detected cocaine concealed internally. He had ingested 78 pellets of cocaine, which he had personally sourced, weighed, packaged and swallowed in Peru over a five-day period before boarding a flight to Australia.

The appellant pleaded guilty in the Local Court to one count of importing a marketable quantity of a border controlled drug, namely 274.9 grams of pure cocaine, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 25 years imprisonment. He was committed to the District Court for sentencing.

On 13 June 2019, Huggett DCJ sentenced the appellant to five years imprisonment with a non-parole period of three years. He then sought leave to appeal against that sentence, representing himself before the Court of Criminal Appeal.

  • Whether the sentence of five years imprisonment was "unreasonably long" or manifestly excessive in all the circumstances
  • Whether the sentencing judge properly took into account the appellant's subjective circumstances, including his early guilty plea, cooperation with authorities, remorse, lack of prior criminal history, and role as a courier
  • Whether the sentencing judge correctly applied a 25% discount for the utilitarian value of the early guilty plea

Decision

Wright J (with Johnson and Price JJ agreeing) identified that, while the appellant framed his application across eight grounds, his substantive complaint was captured in ground 1: that the sentence was unreasonably long or manifestly excessive. The court treated grounds 2 through 8 as particularising the factors said to support that contention.

The Court of Criminal Appeal found that the sentencing judge had properly considered the appellant's subjective circumstances. These included his deprived childhood, a history of substance abuse, his remorse, cooperation with police, employment during the period on bail, and the absence of prior convictions. The sentencing judge had also correctly identified the objective seriousness of the offending, noting that the appellant had planned the importation over five days, had sourced and personally packaged the drugs, and had intended to resell the cocaine upon returning to Sydney. His role was described as "crucial" rather than peripheral.

On the question of the guilty plea discount, the court was satisfied that the sentencing judge had applied a 25% reduction for the early guilty plea, consistent with submissions made by both parties. Although the sentencing judge did not address the discount in explicit detail during oral submissions, her remarks on sentence clearly recorded that a 25% discount had been applied, and her formal statement before announcing the sentence confirmed that the plea had been taken into account. No error was established on this ground.

The court concluded that the sentence was not manifestly excessive. Having regard to the maximum penalty of 25 years, the quantity of cocaine involved, and the planning and deliberateness of the offending, the sentence of five years with a three-year non-parole period fell within the range open to the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of five years imprisonment with a three-year non-parole period for importing 274.9 grams of pure cocaine was within the available range and not manifestly excessive.
  • A self-represented appellant's multiple grounds of appeal will be construed by reference to their substantive content; where several grounds particularise a single complaint of excessive sentence, the court will address them collectively under that head.
  • Where both parties' written submissions to the sentencing court explicitly referred to a 25% guilty plea discount, and the remarks on sentence recorded that discount, the Court of Criminal Appeal was satisfied the utilitarian value of the plea had been properly taken into account even in the absence of detailed oral submissions on the point.
  • Objective seriousness was assessed not merely by reference to the quantity of drugs (well above the marketable quantity of 2 grams but below the commercial quantity of 2 kilograms) but also by the degree of planning, the appellant's personal involvement in sourcing and packaging the drugs, and his deliberate and voluntary participation for financial gain.
  • Subjective factors, including an absence of prior convictions, early guilty plea, cooperation with authorities, and remorse, do not automatically render a sentence excessive where the objective gravity of the offending is significant.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.2(1)
- Crimes Act 1914 (Cth), Pt 1B
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Regulations 2002 (Cth), Sch 4, item 41

Cases
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Markarian v The Queen (2005) 228 CLR 357
- Obeid v R (2017) 96 NSWLR 155
- R v Birks (1990) 19 NSWLR 677
- R v Sutton [2013] QCA 151
- TKWJ v The Queen (2002) 212 CLR 124
- Tyn v R [2009] NSWCCA 146
- Wong v The Queen (2001) 207 CLR 584
- Xiao v R (2018) 96 NSWLR 1
- Yi Hong Puan v R [2009] NSWCCA 194