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Court of Criminal Appeal 29 June 2004

R v. COX, Ian Ormond [2004] NSWCCA 204 revised - 09

[2004] NSWCCA 204

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION UNREASONABLE VERDICT AND OTHER GROUNDS APPEAL AGAINST SENTENCE

Citation: R v Cox, Ian Ormond [2004] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 29 June 2004
Judge(s): Hodgson JA, Grove J, Howie J

Background

The appellant was convicted after trial in the District Court of conspiring to import a commercial quantity of cocaine into Australia between January and November 1997. The Crown case was that he used his wine importation business as a vehicle for the scheme, with cocaine to be concealed in a shipping container alongside cases of Chilean wine and furniture. He received 20 years' imprisonment with a 15-year non-parole period, commencing 21 November 1997.

Separately, the appellant pleaded guilty before a different District Court judge to a related charge of conspiring to import a commercial quantity of cannabis resin during an overlapping period in 1997. He was sentenced to 14 years' imprisonment with a five-year non-parole period, commencing at the expiry of the cocaine sentence. A subsequent correction by the Chief Judge produced a single combined non-parole period of 20 years from 21 November 1997.

The appellant challenged his conviction on the cocaine charge and sought leave to appeal against both sentences.

  • Whether the verdict on the cocaine conspiracy charge was unreasonable or otherwise infected by error
  • Whether the sentence for the cocaine offence was affected by error
  • Whether the sentence for the cannabis offence was affected by error in relation to parity with a co-conspirator, the discount allowed for the guilty plea and contrition, and the weight given to personal deterrence

Decision

Conviction appeal: The Court of Criminal Appeal dismissed the appeal against conviction. The Crown case rested substantially on intercepted conversations identifying the appellant as the "wine guy" connected to the scheme, documentary evidence of his wine business dealings in Chile, telephone records, and the evidence of a freight forwarder who placed the appellant in Santiago alongside the principal co-conspirator. The court found no basis to set aside the jury's verdict.

Cocaine sentence: The Court also dismissed the appeal against the sentence for the cocaine offence. No relevant error was identified in the sentencing judge's approach to that matter.

Cannabis sentence: The court allowed the appeal against the cannabis sentence. Hodgson JA concluded that the sentencing judge had adopted a starting point of approximately 17 years, which appeared high when compared with the sentence imposed on the co-conspirator in that matter (approximately 13 years and four months before minor personal deductions). The sentencing judge had justified the elevated sentence partly by reference to the appellant's other drug offences and the need for personal deterrence. However, the cocaine sentence had already been lengthened by approximately two years for the same reason, and Hodgson JA considered that the primary judge gave excessive weight to personal deterrence in the cannabis matter, or alternatively gave insufficient regard to parity and to the mitigating effect of the guilty plea and expressed contrition.

The Court assessed the appropriate starting point for the cannabis offence at 14 years and, applying a discount for the plea and contrition, arrived at a sentence of 12 years. That sentence was to commence at the expiry of the non-parole period on the cocaine sentence, producing a total non-parole period of 18 years from 21 November 1997. On parole eligibility, the Court noted the appellant could expect release on 21 November 2015, subject to good behaviour.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentences granted
  • Appeal against sentence for the cocaine offence dismissed
  • Appeal against sentence for the cannabis offence allowed; sentence set aside and replaced with 12 years' imprisonment commencing 21 November 2012, with a total non-parole period of 18 years commencing 21 November 1997

Key Takeaways

  • The Court of Criminal Appeal confirmed that circumstantial evidence, including intercepted conversations, travel records, documentary business dealings, and witness identification placing the appellant with a co-conspirator in Chile, was capable of supporting a guilty verdict on a serious drug importation conspiracy charge.
  • Where a sentencing judge has already increased one sentence to account for an offender's prior drug offences and personal deterrence, applying that same consideration again with significant weight in a related sentencing exercise may constitute error.
  • Parity between co-conspirators remains a live consideration on appeal: a substantial and unexplained departure from the sentence imposed on a co-conspirator will warrant scrutiny, even where the two matters were sentenced by different judges.
  • A guilty plea accompanied by expressed contrition must receive an identifiable and proportionate discount; failure to demonstrate that discount in the sentencing process can ground appellate intervention.
  • In restructuring the cannabis sentence, the Court of Criminal Appeal fixed a combined non-parole period across both matters, illustrating the court's capacity to take a whole-of-sentence view when correcting errors in one component of a cumulative sentencing structure.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B (prohibition on importation of narcotic goods)

Cases:
- Ridgeway v The Queen (1995) 184 CLR 19
- Yip Chiu-Cheun v The Queen [1995] 1 AC 111