Citation: Regina v Stead [1999] NSWCCA 41 revised - 19/03/99
Court: NSW Court of Criminal Appeal
Date: 12 March 1999
Judge(s): Spigelman CJ, Abadee J, Adams J
Background
The appellant was convicted in the District Court of conspiring to import a commercial quantity of cocaine into Australia, contrary to s 233(1)(cb) of the Customs Act 1901 (Cth). The conspiracy, involving the appellant and two co-offenders, concerned four kilograms of cocaine with an estimated street value of between $1.7 million and $2.3 million. Judge Viney QC sentenced the appellant to ten years imprisonment with a non-parole period of five years, commencing 25 June 1997.
The appellant's role involved leasing premises, banking and transporting large sums of cash, and travelling to Los Angeles. While overseas, he received payments and became aware the enterprise involved cocaine. He returned to Australia carrying a laptop computer and was subsequently arrested.
The two co-offenders were dealt with separately. One co-offender, Bonette, received a head sentence of eight years with a non-parole period of three years and six months. The third co-offender, Viana, had not yet been sentenced at the time of this appeal.
Legal Issues
- Whether the sentencing judge's starting point of fifteen years (before reductions under s 16G of the Crimes Act (Cth)) was excessive given the objective facts of the appellant's involvement.
- Whether the gap between the starting points applied to the appellant (fifteen years) and Bonette (eighteen years) failed to adequately reflect the difference in their respective roles.
- Whether the ultimate sentence of ten years was excessive when compared with Bonette's eight-year head sentence, giving rise to an impermissible sentencing disparity.
Decision
The Court rejected each of the appellant's grounds. Abadee J, delivering the principal judgment, found no discernible error in the sentencing judge's reasoning or in the differential applied between the appellant and Bonette. The three-year gap between their respective starting points (fifteen and eighteen years) was not shown to be inadequate given the findings made about each offender's involvement.
On the disparity argument, the Court found that the ultimate sentences, ten years for the appellant and eight years for Bonette, did not constitute an impermissible disparity warranting appellate intervention. The Court noted that sentencing co-conspirators separately creates inherent difficulties, including potential conflicting factual accounts, and that the sentencing judge had been alive to this.
A significant procedural consideration shaped the form of the orders. Because the third co-offender, Viana, remained to be sentenced, the Court declined to grant leave and dismiss the appeal, choosing instead to simply refuse leave. Spigelman CJ noted to the appellant that this distinction carries practical significance.
Adams J added observations on the broader seriousness of drug importation offences. He emphasised that the culpability involved is magnified by the associated consequences of corruption, violence, and secondary crime driven by addiction, and that heavy sentences for such offences are justly imposed on those seeking financial gain from unlawful drug supply.
Orders Made
- Leave to appeal the sentence is refused.
Key Takeaways
- No error was established in the sentencing judge's selection of a fifteen-year starting point for a conspiracy to import four kilograms of cocaine, notwithstanding the appellant's lesser role compared to a co-offender.
- A three-year differential in starting points between co-conspirators with different levels of involvement was not demonstrated to be insufficient to reflect their respective culpability.
- Where a co-offender remains to be sentenced, the Court of Criminal Appeal may refuse leave to appeal outright rather than granting leave and dismissing the appeal, to avoid prejudicing the outcome of the pending sentencing.
- Disparity between co-offender sentences does not automatically attract appellate intervention; the Court must identify an actual error in the sentencing below before interfering.
- Adams J articulated that the seriousness of drug importation offences extends beyond the supply of drugs itself, encompassing the corruption, violence, and addiction-driven crime that trafficking generates in the broader community.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233(1)(cb) and Schedule 6
- Crimes Act 1901 (Cth), s 16G
Cases:
- Postiglione v The Queen (1996-1997) 189 CLR 295 (Dawson and Gaudron JJ at 302 and 305)
- Regina v Watson (NSW Court of Criminal Appeal, 18 September 1998, unreported)