Citation: R v Pimentel [1999] NSWCCA 401; (1999) 110 A Crim R 30
Court: NSW Court of Criminal Appeal
Date: 10 December 1999
Judge(s): Spigelman CJ, Dunford J, Hidden J (Dunford J delivering the principal judgment)
Background
The appellant was a crew member aboard a vessel called the Hiddensee, which sailed from the Netherlands in late 1996 carrying several tonnes of cannabis resin collected from another vessel off the coast of Pakistan. The Hiddensee was intercepted off the New South Wales coast after waiting for eight days at a pre-arranged latitude to transfer the cargo to another boat. The appellant had been recruited as captain by a shipping broker and had assisted in loading the cannabis onto the vessel.
Following a jury trial in the District Court, the appellant was convicted of being knowingly concerned in the importation of narcotic goods (cannabis resin, not less than commercial quantity) contrary to s 233B(1)(d) of the Customs Act 1901. He was sentenced to six years imprisonment with a non-parole period of three years and nine months, the same sentence that had been imposed on the vessel's commander.
Two appeals came before the Court of Criminal Appeal: the appellant's appeal against conviction, and a Crown appeal against the adequacy of the sentence. Both were dismissed.
Legal Issues
- Whether the importation offence was complete at the time of the alleged conduct, specifically when the cannabis entered Australian waters or when it arrived at the nominated transfer point off the NSW coast.
- Whether the trial judge correctly directed the jury on the elements of the offence of being "knowingly concerned" in an importation.
- Whether the defence of duress was properly left to or excluded from the jury.
- Whether evidence obtained through illegally conducted surveillance or interception should have been excluded under s 138 of the Evidence Act 1995.
- Whether the sentence of six years was manifestly inadequate, given that the appellant did not plead guilty, did not assist authorities, and had three prior drug-related convictions overseas, while the co-offender Verheggen (who received the same sentence) had pleaded guilty and cooperated extensively.
Decision
The Court confirmed that the importation offence was complete once the vessel entered Australian waters with the cannabis on board, and the jury had been properly directed on what it meant to be "knowingly concerned" in that importation. No error was identified in the trial judge's directions on the elements of the offence.
On duress, the Court found that the trial judge had correctly declined to leave the defence to the jury (or had correctly directed against it). The circumstances relied upon by the appellant did not meet the legal threshold for duress. There was no sufficient threat of immediate death or grievous bodily harm that would have rendered a person of ordinary firmness unable to resist.
Regarding the s 138 discretion on illegally obtained evidence, the Court held that the trial judge had not erred in admitting the disputed material. The Court considered the relevant factors under s 138 of the Evidence Act 1995 and found the discretion had been properly exercised.
On the Crown appeal against sentence, the Court acknowledged that the sentence was at the lower end of the scale for an offence carrying a maximum of life imprisonment. However, the sentencing judge had applied parity principles by reference to the sentence imposed on Verheggen. While the appellant had not pleaded guilty and had prior convictions, those factors were counterbalanced by Verheggen's cooperation and guilty plea. Applying the principle of double jeopardy as it applies to Crown appeals (meaning an appellate court will not intervene unless the sentence is clearly inadequate), the Court was not satisfied that intervention was warranted.
Orders Made
- Appeal against conviction dismissed.
- Crown appeal against sentence dismissed.
- Conviction and sentence confirmed.
Key Takeaways
- The offence of being knowingly concerned in an importation under s 233B of the Customs Act 1901 is complete once the vessel carrying the prohibited goods enters Australian waters; further conduct within Australia can still form part of the relevant participation.
- A duress defence requires a threat of immediate death or serious harm of sufficient gravity to overbear the will of a person of reasonable firmness; a vague or uncertain threat will not suffice.
- Under s 138 of the Evidence Act 1995, the admission of illegally or improperly obtained evidence involves a discretionary balancing exercise; the mere fact that evidence was obtained unlawfully does not automatically require its exclusion.
- Parity in sentencing requires a court to compare an offender's sentence with that imposed on a co-offender, but it does not mandate identical outcomes where there are meaningful distinctions in culpability, pleas, and cooperation.
- In dismissing the Crown appeal, the Court of Criminal Appeal applied the double jeopardy principle applicable to such appeals, which requires a higher threshold of demonstrated inadequacy before an appellate court will intervene to increase a sentence.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), ss 233B, 235(2)(c)
- Evidence Act 1995 (NSW), s 138
Cases
- The Queen v Bull (1974) 131 CLR 203
- Ridgeway v The Queen (1995) 184 CLR 19
- He Kaw Teh v The Queen (1985) 157 CLR 523
- R v Abusafiah (1991) 24 NSWLR 531
- R v Williamson [1972] 2 NSWLR 281