Balloey v R

Case [2014] NSWCCA 165

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales
Case Title: Balloey v R
Medium Neutral Citation: [2014] NSWCCA 165
Hearing Date(s): 1 April 2014
Decision Date: 20 August 2014
Before: Hoeben CJ at CL at [1];
Adams J at [2];
Hall J at [41]
Decision:

1. Grant the extension of time for leave to appeal.

2. Grant leave to appeal.

3. Allow the appeal.

4. Quash the sentence imposed in the District Court and substitute a sentence as follows -

A term of imprisonment of 19 years, with a non-parole period of 13 years, commencing on 1 November 2003.

Catchwords: CRIMINAL LAW - sentence appeal - attempt to possess prohibited import - applicant also involved in importation - relevance - whether principal or courier - parity with co-offender responsible for distribution in Australia
Legislation Cited: Customs Act 1901 (Cth), s 233B(1)(c)
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208
The Queen v Olbrich (1999) 199 CLR 270; 108 A Crim R 464
R v Guiu [2002] NSWCCA 181; (2002) 129 A Crim R 387
Tu v R [2011] NSWCCA 31
Category: Principal judgment
Parties: Marnix Balloey (Appellant)
Regina (Respondent)
Representation
- Counsel: Counsel:
P Rosser QC (Appellant)
K Chapple SC (Respondent)
- Solicitors: Solicitors:
Wade Law (Appellant)
Director of Public Prosecutions (Cth) (Respondent)
File Number(s): 2007/5888
Decision Under Appeal
- Court / Tribunal: District Court
- Before: Woods DCJ
- Date of Decision:  13 December 2007
- Court File Number(s): 2004/15627

JUDGMENT

  1. HOEBEN CJ at CL: I agree with Adams J.

  2. ADAMS J:

    Introduction

  3. On 13 December 2007 the appellant (rather than the "applicant" as, for reasons which will become clear, I propose leave to appeal should be granted) was sentenced for the offence that on 31 October 2003 he attempted to possess 195 kilograms of MDMA (ecstasy, 87.44 kilograms pure), which was not less than the commercial quantity, contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). The commercial quantity for MDMA is 0.5 kg pure and the maximum penalty for the offence is life imprisonment. The appellant was sentenced to a term of 24 years of imprisonment with a non-parole period of 16 years, commencing 1 November 2003. This sentence resulted from applying to a starting point of 32 years a reduction of 15 per cent for his plea of guilty, given at the conclusion of the prosecution case, and an additional reduction of 10 per cent for "the mitigatory effect of the element of coercion".

  4. The appellant had been arraigned on 25 October 2004 with a co-accused, Joseph Breyne who was ultimately acquitted. The appellant's sentence proceedings was ultimately listed for sentence before Dodd DCJ on 16 June 2005 but, because his Honour retired, the proceedings were adjourned to 24 February 2006 and ultimately concluded on 13 December 2007 when the appellant was…

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AGLC
Balloey v The Queen [2014] NSWCCA 165
Case
[2014] NSWCCA 165
Decision Date

CaseChat Overview and Summary

In the case of Balloey v R, the appellant was involved in a drug importation scheme where MDMA was concealed in an agricultural irrigation machine and sent from Belgium to Australia. The appellant, along with others, was arrested and charged with attempting to possess a prohibited import. The District Court sentenced the appellant to a term of imprisonment, which was subsequently appealed. The appeal focused on the sentencing considerations and the role of the appellant in the importation scheme.

The primary legal issue was whether the sentencing judge appropriately considered the appellant's role in the importation scheme when determining his sentence. The appellant argued that he was coerced into participating in the importation and played a less significant role compared to others involved. The Crown submitted that the sentencing judge needed to consider the appellant's involvement in Europe to understand his role in Australia fully.

The court found that while the sentencing judge did consider the appellant's involvement in Europe, this was primarily to assess the appellant's claim of coercion rather than his role in Australia. The judge clearly stated that he was not sentencing the appellant for any other offence besides the attempted possession of the prohibited import in Australia. However, the court held that the sentencing judge's consideration of the appellant's overall role in the importation scheme was necessary to accurately assess his responsibility in Australia. The appeal was allowed, the original sentence was quashed, and a new sentence was substituted.

The court granted the extension of time for leave to appeal, allowed the appeal, and substituted a new sentence of 19 years imprisonment with a non-parole period of 13 years. The judges agreed on the outcome and the reasons provided.

Orders

Orders of the court

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Background

Background to the litigation

Rutten pleaded guilty in the Local Court to the same offence to which the appellant ultimately pleaded guilty and was sentenced on 11 June 2004 by Norrish QC DCJ to a term of imprisonment of 10 years with a non-parole period of 6 years, dating from 1 November 2003, when he was arrested. Facts The facts relied on by the Crown were not substantially in dispute, the appellant's case both at trial and on sentence being that he had been coerced into participation in the importation. Of course, his guilty plea necessarily implied that the defence of duress was not available but he gave evidence that he was subjected to threats which overcame his reluctance to participate. I will return to this matter in due course. The appellant's involvement became known to the Australian Federal Police in the course of conducting a joint investigation with Belgian police into a criminal group based in Belgium involved in the international movement of drugs concealed in agricultural machinery. The appellant had an agricultural machinery business which may well otherwise have been entirely legitimate. However, he packed a large quantity of MDMA in a hose attached to an irrigator to be sent from Belgium to arrive in Australia in the first week of October. Between June and July 2003 Rutten, a Dutch national, agreed with people in the Netherlands to travel to Australia to assist in the distribution of a large quantity of MDMA. A local customs broker, who was not criminally involved in any way, was engaged to arrange storage for the consignment. On 4 October 2003 the irrigator arrived in Sydney and was transferred to a facility for examination, when the drugs were discovered in the rubber hose attached to the irrigator. The ecstasy tablets were replaced with harmless product and the irrigator reconstructed. On 9 October Rutten flew into Sydney, hired a motor vehicle and checked into a serviced apartment in Sydney. Between 22 and 30 October he had a number of coded conversations with a person named Sam, then in Europe. Sam gave Rutten instructions about taking his vehicle to a hotel near the airport, parking it in the car park and collecting it once the ecstasy tablets had been placed in it and the vehicle returned to the hotel by an unidentified person. On 30 October Rutten left his car in the car park of the hotel and checked into a room. On the same day the irrigator was moved to storage premises arranged by the customs agent. On that day, the appellant (a Belgian national) arrived in Sydney and booked into a room at the airport hotel. On 31 October Breyne (the appellant's co-accused) also arrived in Sydney and travelled to the hotel where he met with the appellant. The two men then went to a local hardware store and purchased an angle grinder with discs, an extension lead and other tools, shortly after travelling in the vehicle which had been hired by Rutten to the storage premises where the irrigator had been placed. During the course of the day the appellant and Breyne, using the vehicle to tow and unreel the rubber hose in segments, cut the end of the unreeled hose with a circular saw and extracted bags of what they thought was ecstasy. The appellant knew how to do this because he had packed the drugs into the hose before the irrigator was sent to Sydney. The appellant and Breyne placed what they thought was the ecstasy into the vehicle and returned to the hotel, where it was left. Later that day Rutten saw the vehicle and the bags containing white tablets on the back seat, retrieved a set of keys from one of its rear tyres and drove the vehicle and its contents to the underground car park of the building in which he had rented his apartment. Later that night he removed all the bags from the vehicle and put them into various suitcases in his room, making an arrangement with a buyer who wanted to purchase some 200,000 of the 866,000 tablets. Shortly after this conversation the police intervened and Rutten was arrested.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ
The crucial differences between these offenders, though, are their differing roles and the cooperation with authorities. As to the former, the appellant was involved much more in the overall operation, though not in the proposed distribution which was Rutten's responsibility. It is, however, essential to focus on the character of the charge, which is concerned with the attempt to obtain possession of the MDMA in Australia. In this respect, it seems to me there is some merit in the contention of Mr Rosser for the appellant that, if anything, the involvement of the appellant was somewhat less than Rutten's was to be. If it were proved, say, that the appellant was to receive part of the proceeds of Rutten's sales, so that he would in that way be a participant in the distribution, that would be a very different matter. It was not suggested that he had any role in directing Rutten how to go about his job. There is no evidence as to any continuing role that the appellant expected to play once the MDMA had been located in Australia and passed to Rutten. Of course, the latter matter is very different, with the added advantage that it is quantified.Decision I would grant the extension of time for leave to appeal, grant leave to appeal, allow the appeal, quash the sentence imposed in the District Court and substitute a sentence as follows. Taking into account the sentence imposed on Rutten, I would commence with a term of 23 years and 6 months imprisonment and reduce it by 15 per cent, resulting in a (slightly rounded up) sentence of 19 years imprisonment commencing on 1 November 2003. I would set a non-parole period of 13 years. HALL J: I agree with Adams J.**********

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

It was submitted by the Crown, in substance, that it was necessary for the sentencing judge to refer extensively to what had occurred in Europe prior to the importation in order to deal with the appellant's case that he had been a reluctant but coerced participant. The Crown submitted, in effect, that his conclusion that the appellant was a principal concerned the appellant's role in Australia, which would not be understood unless his involvement with the entire transaction which ended with the Australian collection was considered. The prosecutor pointed to the following passage in the judge's reasons (immediately following the passage referring to the appellant's character set out above) - "Let me make it perfectly clear that I am not sentencing this man for any other offence than that for which [he] is specifically before this court. But the way that he has raised this matter of coercion and pressure leads me to conclude that he was, and had been for some time, moving in a milieu where criminality of some kind was occurring. I repeat, this is not to say that I am sentencing him for any other offence - merely that the kind of threats over alleged or disputed debts which are said to be behind the pressures and coercion in this case are a characteristic of drug dealing. This ties in with first point that I made a few moments ago - that the offender failed at any point to go to the police. I deduce that one of the reasons why he failed to go to the police was because in some senses he was a compromised character, though there is no specific evidence upon which I can definitely conclude that he himself was involved in any other particular criminal activity." [Emphasis added.]Consideration Were it not for the concluding passage set out above in [20], I would have accepted that the sentencing judge's consideration of the role played by the appellant in Europe was undertaken not only to assess the significance of his claimed coercion but also the extent of his role in Australia in relation to attempting to obtain possession of the large quantity of prohibited drugs. It would have been impossible to accurately assess his responsibility in that regard without understanding his overall role in the enterprise of which what he did in Australia was the culmination. However, the emphatic inclusion as incident of the offence for which the appellant was facing sentence of the fact that it "involved a massive importation" to my mind mandates the conclusion that, indeed, his Honour regarded the importation of the drugs as part and parcel of the criminality of the offence with which the appellant was charged and for which he was being sentenced. The passage relied on by the prosecutor which is set out in [23] is, when read in context, confined to the likelihood that the appellant had been involved in crimes in Belgium which rendered him susceptible to pressure and the desire by the judge to make it clear that he was not taking those possible offences into account. This is made clear by the context, which dealt specifically with evaluating the claim of coercion (as shown by the emphasised passage), and not at all with the appellant's role in the offence whether in Belgium or here.