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Court of Criminal Appeal 26 November 1999

REGINA v TAMOTSU [1999] NSWCCA 400 revised - 27

[1999] NSWCCA 400

Also reported as 109 A Crim R 193
Drugs
CRIMINAL LAW EVIDENCE EVIDENCE ACT 1995, S98 SENTENCE CUSTOMS ACT 1901, S233B APPROPRIATE SENTENCE

Citation: Regina v Tamotsu [1999] NSWCCA 400; (1999) 109 A Crim R 193
Court: NSW Court of Criminal Appeal
Date: 26 November 1999
Judge(s): Spigelman CJ, Dunford J, Hidden J

Background

The appellant was convicted in the District Court on two counts under s 233B of the Customs Act 1901 (Cth): conspiracy to import heroin (arising from a September 1996 trip to Australia) and the substantive importation of heroin (arising from his arrest in Sydney on 17 January 1997). On the day of his arrest, customs officers found him wearing a body pack containing eighteen packages of white powder, later confirmed as 1,481.5 grams of pure heroin, just below the commercial quantity threshold but at the very top of the trafficable quantity range.

During a police record of interview, the appellant admitted to a near-identical earlier trip in September 1996, in which he carried a similar body pack from Bangkok to Sydney under the direction of the same organiser. He claimed on both occasions he believed he was carrying contraceptive pills, not heroin, though the jury rejected that account.

The appellant appealed against both conviction and sentence. His co-offender, Watanabe, had previously appealed successfully and had his sentence reduced. The appellant argued his sentence was disproportionate by comparison.

  • Whether there was sufficient evidence to establish each element of the conspiracy count, including the nature and quantity of the substance imported on the first occasion
  • Whether coincidence evidence from the second importation (the subject of the substantive count) was admissible and properly used to prove the first count
  • Whether the sentencing judge erred in applying the s 16G deduction under the Crimes Act 1914 (Cth) for time already served in custody
  • Whether the appellant's sentence gave rise to a justifiable sense of grievance when compared with the reduced sentence imposed on co-offender Watanabe

Decision

Conviction appeal dismissed. The Court found no basis to grant leave on the insufficiency ground, noting that no application for a directed verdict had been made at trial. Even setting that aside, the Court held the jury was entitled to infer from the striking similarity between the two trips, including the identical modus operandi, packaging, weight, and payment amount, that the substance carried on the first occasion was also heroin in a trafficable quantity. The coincidence evidence from the January 1997 importation properly supported the conspiracy count.

Coincidence evidence under s 98 of the Evidence Act 1995. The Court accepted that the probative value of the evidence from the second importation outweighed any prejudicial effect, given the near-identical circumstances of both trips. The jury's rejection of the appellant's claim that he believed he was carrying contraceptive pills was also open on the evidence.

Sentence appeal allowed. The Court identified three errors in the sentencing below. First, the sentencing judge did not apply the customary one-third discount under s 16G of the Crimes Act 1914 (Cth) to the second count without giving any explanation for the departure. Second, the judge did not explicitly address the relevant sentencing factors for the second count beyond the s 16G deduction. Third, and significantly, the sentence was materially heavier than the reduced sentence eventually imposed on Watanabe after his successful appeal, in circumstances where no significant difference in the offenders' culpability or subjective circumstances justified the disparity. The Court applied the parity principle and substituted a lower sentence.

Orders Made

  • Leave to appeal against sentence granted
  • Sentence imposed by the trial judge quashed
  • On the first count: seven years' imprisonment commencing 17 January 1997
  • On the second count: ten years and three months' imprisonment commencing 17 January 1997
  • Non-parole period fixed at six years and three months
  • Appeal against conviction dismissed

Key Takeaways

  • Coincidence evidence under s 98 of the Evidence Act 1995 can properly support a conspiracy count where the circumstances of two separate importations are sufficiently similar that the jury is entitled to draw inferences about the nature and quantity of the substance involved in the earlier occasion.
  • A conviction for conspiracy to import a prohibited narcotic does not strictly require proof that the agreement was actually carried into effect; the essence of the offence is the agreement itself.
  • Where no application for a directed verdict was made at trial, leave is required under the Criminal Appeal Rules to raise a no-evidence ground on appeal, and the Court of Criminal Appeal will decline leave where the ground lacks substance.
  • Under the parity principle, a co-offender may have a justifiable sense of grievance where their sentence is materially heavier than that imposed on a comparable co-offender, even if the original sentences were similar, once the co-offender's sentence has been reduced on appeal.
  • A sentencing court applying the s 16G deduction under the Crimes Act 1914 (Cth) should either apply the customary reduction or give reasons for any departure, and should separately address all relevant sentencing factors for each count.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Crimes Act 1914 (Cth), s 16G
- Evidence Act 1995 (NSW/Cth), ss 98, 184
- Criminal Appeal Rules 1952 (NSW), r 4

Cases:
- R v Sugahara and Watanabe (NSWCCA, 16 October 1998, unreported)