Citation: Regina v Blakeman [1999] NSWCCA 415 revised - 20/12/99
Court: Court of Criminal Appeal (New South Wales)
Date: 9 September 1999
Judge(s): Newman J, Simpson J, Hidden J
Background
The appellant was convicted by jury in October 1998 of conspiracy to import narcotic goods into Australia, specifically 296 ecstasy tablets containing 25.4 grams of pure MDMA. The offence occurred while he was travelling in Germany between June and August 1994, when he arranged for the drugs to be concealed in cassette tape parcels and sent to Australian post office boxes registered in false names.
The sentencing judge, Mitchelmore DCJ in the District Court, imposed three and a half years' imprisonment with a non-parole period of two years and three months. The appellant abandoned his conviction appeal and pursued only the sentence appeal before the Court of Criminal Appeal.
The appellant raised several grounds challenging the sentence, including alleged factual errors in the sentencing remarks, insufficient weight given to pre-trial delay, and a parity argument based on the sentence received by his co-conspirator, Anderson.
Legal Issues
- Whether minor errors in the sentencing judge's description of comparable cases (in particular the number of tablets and sentence in R v Behar) constituted errors warranting appellate intervention
- Whether the sentencing judge gave insufficient weight to the significant delay between the commission of the offence in 1994 and conviction in 1998
- Whether the principle of parity required a lesser sentence given that the co-conspirator Anderson received a comparable sentence despite arguably greater objective culpability
- Whether the sentencing judge adequately distinguished between the criminality of the appellant and that of Anderson when considering co-accused sentencing
Decision
The Court found that the two factual errors in the sentencing remarks were immaterial. The misstatement of tablet numbers from 296 to 300 represented a discrepancy of just 1.3 percent and had no effect on the sentencing exercise. The more significant misstatement concerning R v Behar (where both the tablet count and sentence were misstated) was also found to be immaterial, because the drug quantity in the appellant's case was only around two percent of that in Behar, and the sentencing judge showed no indication of placing significant weight on that case.
On the delay ground, the Court accepted that the period from arrest in September 1994 to conviction in October 1998 was lengthy and had caused the appellant stress and hardship. However, the Court found no error in the way the sentencing judge addressed this factor in the remarks on sentence.
The parity argument centred on the co-conspirator Anderson receiving a substantially similar sentence despite the sentencing judge observing that Anderson's involvement could be seen as slightly more active. The Court concluded that the sentencing judge's approach was explained by the significant age difference between the two men: Anderson was 22 at the time of the offence while the appellant was 37, which justified treating them comparably in terms of overall sentence. The Court also rejected the argument that Anderson bore greater culpability for the delay simply because it arose from his unrepresented status.
No error was established on any of the grounds advanced, and the Court unanimously dismissed the appeal.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Minor numerical errors in sentencing remarks do not warrant appellate intervention where they had no material bearing on the sentence ultimately imposed.
- A sentencing court's reference to a comparable case will not be treated as an error simply because it involves some factual misstatement, provided the case played no significant role in the sentencing exercise.
- Where co-offenders receive comparable sentences despite differences in objective culpability, a meaningful difference in age at the time of the offence may provide a sufficient explanation, satisfying the parity principle.
- Delay between the commission of an offence and trial is a recognised sentencing consideration, but the Court of Criminal Appeal will not intervene merely because the delay was lengthy if the sentencing judge addressed it appropriately.
- An unrepresented co-accused's contribution to procedural delay does not, without more, establish that they bore culpability for that delay for the purposes of differentiating the credit given on sentence.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B and Schedule VI
- Crimes Act 1900 (NSW)
- Crimes Act 1914 (Cth), s 16G
- Criminal Procedure Act (NSW)
Cases:
- R v Robinson (5 August 1998)
- R v Behar (unreported, NSW CCA, 14 October 1998)
- R v Fahda [1999] NSWCCA 267
- R v Benais [1999] NSWCCA 236