Sentence Reduced Due to Unwarranted Disparity Between Offenders

The Court of Criminal Appeal reduced the sentence of nine years to eight years with a non-parole period of five years due to unwarranted disparity with a co-offender's sentence. The applicant was sentenced for attempting to possess a prohibited import, possessing a prohibited import, and supplying ecstasy.

Reported Decision : 120 A Crim R [ADDRESS] of Criminal Appeal

CITATION : R v [NAME] [2000] NSWCCA 552 FILE NUMBER(S) : CCA 60396/00 HEARING DATE(S) : Friday 8 December 2000 JUDGMENT DATE : 8 December 2000

PARTIES : Regina (respondent) [NAME] (applicant) JUDGMENT OF : Mason P at 16; Hidden J at 1; [NAME] at 17

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0117 LOWER COURT JUDICIAL Morgan DCJ OFFICER :

COUNSEL : [redacted] F Backman ([NAME]) SOLICITORS : [redacted] Commonwealth Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - Sentence - attempting to possess a prohibited import - supply ecstasy - parity with co-offender - sentence excessive in any event LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Proceeds of Crime Act 1987 (Cth) R v Bigic [2000] NSWCCA 9 R v Camus [1999] NSWCCA 425 CASES CITED: R v Bowers (1997) 97 ACrim R 461 R v Budiman (1998) 102 ACrim R 411 R v [NAME] (1999) 108 ACrim R 531

DECISION : Leave to appeal granted. Appeal allowed.

IN THE COURT OF CRIMINAL APPEAL 60396/00

MASON P HIDDEN J [NAME] 8 December 2000 Regina (Cth) v [NAME]

Judgment

1 HIDDEN J: The applicant, [NAME], was committed for sentence to the District Court upon four charges: firstly, attempting to possess a prohibited import, being a quantity of ecstasy in excess of the commercial quantity; secondly, possessing a prohibited import, again being ecstasy; thirdly, supplying ecstasy, relying upon the deeming provision in the Drug Misuse and Trafficking Act 1985 (NSW) and fourthly, possessing property, being a sum of money reasonably suspected of being the proceeds of crime, an offence under the Proceeds of Crime Act, 1987 (Cth). 2 On the first offence of attempting to possess a prohibited import, he was sentenced to imprisonment for nine years with a non-parole period of six years, to date from 21 October 1999. Sentences were passed in respect of the other three offences, but I need say no more about them because this application relates only to the sentence passed on that first charge. He seeks leave to appeal against that sentence. 3 The facts of all the offences are adequately summarised in the remarks of the learned sentencing judge as follows: On 21 October 1999 a German-national, [NAME], flew into Sydney on Qantas flight QF30 from Bali. On his arrival he was searched by Australian Customs Officers who located packages of ecstasy strapped to his thighs. The amount of ecstasy carried by [NAME] was some 8,000 tablets which, on analysis, amounted to a total of 2,306.9 grams which was equivalent to 657.3 grams of the pure drug. At the time of his arrest he offered his assistance to the police, and agreed to make a telephone call to his contact in Bali, and then to deliver the ecstasy to whoever was going to pick it up in Sydney. The Australian Federal Police substituted the ecstasy with an inert substance, and a controlled delivery sample of 20.2 grams was inserted into the substitution. The controlled delivery was conducted at the room occupied by [NAME] at the [COMPANY] at Surry Hills. About 6.54pm on that day, the prisoner, [NAME], attended [NAME]'s room at the [COMPANY] and collected a black bag containing the substituted ecstasy. He gave $1000 to [NAME] in exchange for the ecstasy, and said that he would arrange for the additional moneys to be paid to [NAME] the following day. The prisoner then left the [COMPANY] with the black bag containing the substituted ecstasy, entered a motor vehicle and travelled to the suburb of Mosman. Whilst the prisoner was driving his motor vehicle he was observed by following police to open and look into the bag which he had taken from [NAME]. About 7.15pm the police stopped the vehicle and arrested the prisoner. The police found the black bag containing the substituted ecstasy on the back seat, and on inspection of that bag observed that one of the bags containing the substituted ecstasy had been opened. The prisoner was taken back to the Australian Federal Police Sydney Headquarters, and following legal advice declined to participate in a record of interview. Some time later police searched the prisoner's motor vehicle and found a bag in the rear of the vehicle containing an amount of $67,750, and small amounts of narcotic substances, including ecstasy. On 23 October, the Australian Federal Police attended the prisoner's premises at [ADDRESS], Coogee, where a search of the premises was conducted. At that time the police found a red drink container containing thirty-two ecstasy tablets. The total weight of the ecstasy found in the later search of the vehicle, and the ecstasy tablets found at the flat, was 2.16 grams. 4 The pure ecstasy involved in the major offence was 657.3gm, the commercial quantity being 500gm. 5 Her Honour found that the applicant was motivated by financial gain and was not a user of the drug. She described his role as that of "a collector of the drugs illegally imported into Australia" and indicated that she would sentence him upon the principles applicable to couriers. 6 Her Honour took into account that the pleas of guilty to all offences were offered at the earliest opportunity. She noted that he was twenty-three years old at the time of the offences. He is now twenty-five. She noted also that he had no prior convictions and that he was able to produce an impressive body of character evidence. Her Honour's conclusion was that, apart from his involvement in these offences, he appeared to be a well respected member of the community. Her Honour noted also that, since being in custody, he had made significant efforts towards rehabilitation and she considered his prospects of rehabilitation to be good. 7 The application in relation to the sentence passed on the major charge is put on two bases. Firstly, it is said that the sentence is manifestly excessive. Secondly, it is said that there is unwarranted disparity with a sentence passed upon the man [NAME], such as to engender in the applicant a justifiable sense of grievance. In my view, there is substance in both of these complaints. 8 The [NAME] in this court has provided us with a helpful summary of a number of decisions of this Court dealing with the importation of ecstasy. I mention only a few of them: R v Camus [1999] NSWCCA 425; R v Bigic [2000] NSWCCA 9; R v Bowers (1997) 97 ACrim R 461; and R v Budiman (1998) 102 ACrim R 411. These were cases where sentences more or less of the order of that passed upon this applicant were passed, but in circumstances where the criminality of the persons concerned was greater. For example, in the cases of Camus and Bigic the offenders were seen as higher in the hierarchy of criminality than this present applicant. In Budiman a sentence was imposed somewhat less than that passed upon this applicant, but he did not have the benefit of a plea of guilty. 9 In any event, Mr [NAME] SC, who appears for the applicant, took us to the recent guideline judgment in R v [NAME] (1999) 108 ACrim R 531. That, of course, was a case dealing with patterns of sentence for the importation of heroin and cocaine, and in respect of low range commercial quantities of those drugs the range propounded was between eight and twelve years: see the judgment of the Chief Justice at par 142. That range encompassed sentences imposed both after pleas of guilty and pleas of not guilty. In addition, it was dealing with drugs of a different order from that with which we are here concerned. 10 There have been a number of decisions of this Court which have classified ecstasy as a middle range drug, in contrast to the higher range occupied by heroin and cocaine. It is sufficient to refer to a recent statement to that effect to be found in a judgment of Simpson J in Bigic at pars 14 and 16. 11 When one has regard to those matters, the sentence of nine years passed upon this applicant does appear to be excessive. However, his entitlement to intervention is put beyond doubt by the sentence passed upon the man [NAME]. [NAME] was sentenced by another District Court judge during the period when the judge in the present case had reserved her decision, and it does appear that the sentence passed upon [NAME] was not brought to her attention before she sentenced the present applicant. 12 [NAME] pleaded guilty to the present charge, together with another charge of the importation of ecstasy, itself quite a serious charge, almost of the order of the present charge. The learned sentencing judge in his case took the view that both charges on their face called for concurrent sentences of eight years with a non-parole period of four years and ten months. However, he reduced that term by fifty per cent because of the significant assistance to the authorities which [NAME] had undoubtedly afforded. 13 There are some distinctions between the two men. An obvious one is the fact that the applicant faced sentence for three other charges. [NAME] faced sentence for one other. However, when one looks at the relative seriousness of the other charges which the applicant faced and the other charge of importation which [NAME] faced, that does not appear to me to provide any proper basis for the distinction between them. Their subjective cases were broadly similar. 14 In my view, it is fair to say that the applicant would entertain a justifiable sense of grievance, being subject to a sentence greater than that which the other sentencing judge considered the appropriate starting point in respect of [NAME].

For these reasons I am satisfied that the Court should intervene. 15 The orders I propose are that leave to appeal be granted, the appeal be allowed, and that the applicant be re-sentenced on the major charge to imprisonment for eight years, to date from 21 October 1999, with a non-parole period of 5 years. 16 MASON P: I agree. 17 [NAME]: I agree. 18 MASON P: The order of the Court will be as indicated. **********

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