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Court of Criminal Appeal 5 March 1999

Regina v Adorjany [1999] NSWCCA 37 revised - 12

[1999] NSWCCA 37

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE DRUG TRAFFICKING RANK AND ROLE OF OFFENDER

Citation: Regina v Adorjany [1999] NSWCCA 37 revised - 12/03/99
Court: NSW Court of Criminal Appeal
Date: 5 March 1999
Judge(s): Grove J (with Dunford J and Greg James J agreeing)

Background

The applicant pleaded guilty in the Sydney District Court to possessing a traffickable quantity of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901. The Crown accepted that plea in full discharge of an indictment that had also charged the more serious offence of attempted possession of a commercial quantity. A co-offender, Whitney, had couriered approximately 2,796 grams of pure cocaine into Australia from Colombia via Tahiti and was cooperating with police under a controlled delivery arrangement.

The applicant travelled from the Southern Highlands to Sydney via Canberra, using a false name on the flight. He met Whitney at a hotel, received a briefcase (which police had filled largely with an inert substance), paid Whitney $1,000 of his own money, and took the briefcase to a short-term rental flat. He was arrested shortly before midnight when he left the flat.

At sentence, the applicant claimed he was merely holding the substance for a third party, Juan Diaz. The sentencing judge, Karpin DCJ, rejected his credibility. The applicant was sentenced to ten years imprisonment with a non-parole period of six years and three months. He sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by treating the applicant as occupying a higher rank in the drug trafficking operation than the courier, without precisely identifying the nature of his involvement.
  • Whether the sentencing judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383 by effectively punishing the applicant for the more serious offence (commercial quantity) rather than the offence to which he pleaded guilty (traffickable quantity).
  • Whether the sentence of ten years with a non-parole period of six years and three months was manifestly excessive.

Decision

Role and ranking of the applicant. The Court of Criminal Appeal found no error in the sentencing judge's conclusion that the applicant occupied a higher rank than the courier, even though the precise terms of his involvement could not be determined. Grove J reasoned that participants in organised drug trafficking routinely conceal their roles, and a sentencing tribunal can properly determine an offender's rank on the appropriate standard of proof without necessarily establishing every detail of their activity. Deceit, his Honour observed, should not attract sentencing advantage.

The De Simoni principle. The applicant contended that the sentencing judge had impermissibly taken into account the commercial quantity imported by Whitney, thereby aggravating the sentence by reference to a more serious offence. The Court acknowledged the importance of the principle but found that the sentencing judge had expressly stated she was sentencing the applicant only for the offence to which he pleaded guilty. References to the broader importation provided necessary context rather than constituting punishment for a more serious offence. To omit that background entirely would have created, in Grove J's words, "extreme artificiality."

Manifest excess. The Court rejected the submission that the sentence was manifestly excessive. The sentencing judge was entitled to weigh the totality of criminality, including the applicant's use of a false name, the long journey undertaken to receive the drugs, the payment of $1,000 to the courier, the repackaging of the drugs at a short-term flat, and his higher rank in the operation. No departure from applicable sentencing principles was identified.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court can properly find that an offender occupied a higher rank in a drug trafficking operation than a courier, even where the precise nature of that involvement cannot be fully determined, provided the finding is reached on the appropriate standard of proof.
  • The principle in De Simoni prohibits sentencing for a more serious offence than that charged, but a sentencing court may still place an offence in its factual context, including referencing a larger drug importation, without necessarily breaching that principle.
  • Where an offender has deliberately concealed their role in criminal activity, that concealment does not operate to their sentencing advantage simply because it limits the evidence available about their precise function.
  • In dismissing the appeal, the Court confirmed that the degree of criminality reflected in the applicant's conduct, including the coordinated travel, false identity, financial payment to the courier, and repackaging of drugs, supported an appropriately severe penalty.
  • No error was established from the sentencing judge's remarks taken as a whole, notwithstanding some ambiguity in the description of the applicant's level of involvement.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(b)

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- R v Raz, NSW CCA, unreported, 17 December 1992
- R v Olbrich, NSW CCA, unreported, 6 July 1998
- R v Derbas, NSW CCA, unreported, 7 October 1983
- R v Lawless, NSW CCA, unreported, 24 June 1994
- R v Laurentiu & Becheru (1992) 63 A Crim R 402