AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 21 June 2023

Moreno v R; Gomez v R

[2023] NSWCCA 149

DrugsFraud & dishonesty

Citation: Moreno v R; Gomez v R [2023] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 21 June 2023
Judges: Ward P, Beech-Jones CJ at CL, Price J

Background

The two appellants, an uncle and his nephew, were Colombian nationals living in Australia. Both pleaded guilty to supplying not less than the commercial quantity of a prohibited drug, specifically what they represented to undercover police operatives to be 15 kilograms of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). In fact, they never possessed cocaine. What they delivered was sugar and wood disguised as cocaine.

By operation of s 40(1) of the Drug Misuse and Trafficking Act, the appellants were deemed to have agreed to supply a prohibited drug. The transaction had been negotiated over several months in 2020, culminating in a meeting at a shopping centre carpark where the fake cocaine and $1.5 million in cash were produced before police moved in and arrested the pair. A search of their apartment uncovered approximately $340,950 in cash and a small quantity of actual cocaine.

At first instance, Judge Hock sentenced the uncle (the principal) to 6 years and 9 months imprisonment with a non-parole period of 4 years and 4 months, and the nephew to 5 years and 3 months with a non-parole period of 3 years and 4 months. Both sought leave to appeal, arguing primarily that the sentencing judge failed to give adequate weight to their never having intended to supply real drugs and to the fact that their proposed buyers were undercover police.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences, given that the appellants supplied fake cocaine and the proposed purchasers were undercover operatives
  • Whether the sentencing judge failed to account for the more onerous prison conditions arising from COVID-19, beyond restrictions on personal visits
  • Whether the nephew's sentence was manifestly excessive

Decision

Objective seriousness. The Court rejected the argument that supplying fake drugs to undercover officers should be treated as analogous to fraud or as inherently less serious than a conventional drug supply. The appellants' criminality centred on their agreement to supply what they represented to be a prohibited drug, and the quantity they agreed to supply was a significant aspect of that criminality. The fact that the buyers turned out to be police did not reduce moral culpability, and deterring "drug rip-off" conduct serves the policy goal of preventing the drug trade from becoming a vehicle for fraudulent activity.

The Court found that the size and scope of the proposed transaction, the extended period of negotiation, and the elaborate steps taken to carry it out all supported the sentencing judge's assessments. The uncle's offending was placed at the mid-range of objective gravity and the nephew's just below mid-range. Those assessments were open to the sentencing judge and could not be characterised as unreasonable.

COVID-19 conditions. The sentencing judge had referred to the "current conditions for prisoners" in general terms, not merely to restrictions on personal visits. The Court was not satisfied that her Honour's consideration was as narrow as the appellants contended, and this ground was rejected for both appellants.

Manifest excess (nephew only). The nephew presented a strong subjective case, including that he had been drawn into the transaction by his uncle. Nevertheless, the Court held that the sentence was not manifestly excessive, having regard to the unimpeached finding of objective seriousness and the statutory markers for the offence, being a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

Orders Made

  • In each appeal: leave to appeal granted; appeal dismissed.

Key Takeaways

  • So-called "drug rip-off" supply offences, where fake drugs are substituted for real ones, are treated as objectively serious under the Drug Misuse and Trafficking Act and are not equated with fraud or conspiracy to defraud.
  • The moral culpability of an offender who supplies fake drugs is not diminished by the fact that the proposed purchasers were undercover police operatives; the rationale for deterrence remains intact.
  • A significant aspect of the criminality in deemed supply cases is the quantity of drug the offender agreed to supply, meaning the size and scope of the transaction remains highly relevant to objective seriousness.
  • In dismissing the COVID-19 ground, the Court confirmed that a sentencing judge's reference to difficult prison conditions generally is not limited to a single identified hardship such as visitation restrictions.
  • Where a sentencing judge's assessment of objective seriousness is open on the facts, the Court of Criminal Appeal will not interfere merely because a different assessment was available; the standard from House v The King continues to govern.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2), 33(3)(a), 40(1)
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32(1), s 53A(2)(b), Table to Pt 4 Div 1A Item 19
- Summary Offences Act 1988 (NSW), s 11C(1)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kada v The Queen [2017] VSCA 339; (2017) 270 A Crim R 197
- Khoury v R [2020] NSWCCA 190
- Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
- Mulato v R [2006] NSWCCA 282
- R v Kijurina [2017] NSWCCA 117
- R v Yaghi [2002] NSWCCA 396; (2002) 133 A Crim R 490
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39