SOLICITORS: Van Huyssteen & Botha, South Africa (Appl) Director of Public Prosecutions (Crown)
CATCHWORDS: CRIMINAL LAW Appeal against sentence supply of cocaine flooring enterprise disguising drug distribution whether sentencing judge erred in finding the applicant played a major role lacked remorse provided no assistance to authorities whether applicant acted out of fear whether sentence manifestly excessive whether discount given for early plea sufficient special circumstances justifying variation of the standard non-parol period impact of delay in sentencing adjustment allowed for additional days in custody
DECISION: 1. Leave to appeal granted 2. Appeal allowed and the sentence quashed 3. Sentence the applicant to a non-parole period of six years and nine months commencing on 21 January 2004 and expiring on 20 October 2010 and a total term of 9 years and 3 months expiring on 20 April 2013. The applicant is first eligible for parole on 21 October 2010
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2006/2066
McCLELLAN CJ at CL SIMPSON J HALL J
MONDAY 5 FEBRUARY 2007
COETZEE, Frans Johannes v REGINA
Judgment
McCLELLAN CJ at CL: The applicant pleaded guilty to an indictment charging that on 11 April 2001 at Hornsby in the State of New South Wales he supplied a prohibited drug, namely 24.4 kg of cocaine, being an amount not less than the large commercial quantity of that drug, contrary to s 33(3)(a) of the Drug Misuse and Trafficking Act1985. The maximum penalty for the offence is life imprisonment.
The applicant was sentenced to imprisonment comprising a non-parole period of six years nine months commencing on 30 January 2004 and a balance of term of two years six months. This amounts to an effective total sentence of nine years three months.
The facts
A statement of the relevant facts was tendered and adopted by the sentencing judge. It reads as follows:
"On 7 January 2001 a joint strike force led by the Drug Squad, State Crime Command with the AFP, commenced into the alleged large commercial quantity of cocaine within the Sydney area.
On 2 February, 2001, the defendant has arranged and paid for the formation of an Australian listed company called Impex Australia Pty Limited to facilitate the importation of a number of black…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Coetzee v R
Sign in free to access the full text
Details
AGLC
Coetzee v R [2007] NSWCCA 12
Case
[2007] NSWCCA 12
Decision Date
CaseChat Overview and Summary
The applicant, Coetzee, appealed against his sentence for the supply of cocaine, which was facilitated through a flooring enterprise intended to disguise drug distribution. The court had to decide whether the sentencing judge erred in determining that the applicant played a major role in the operation, whether the applicant lacked remorse, provided no assistance to the authorities, and whether he acted out of fear. Furthermore, the court had to assess if the sentence was manifestly excessive, if the discount for an early plea was sufficient, and whether special circumstances justified a variation of the standard non-parol period. The impact of the delay in sentencing and the adjustment for additional days in custody were also considered.
The court found that the applicant played a significant role in the operation, given his involvement in arranging the importation of the flooring, leasing storage facilities, and handling cash transactions. The court noted the applicant's lack of remorse, as he consistently denied any knowledge of the cocaine and did not cooperate with the authorities. The applicant's claim of acting out of fear was rejected, as there was insufficient evidence to support this contention. The court determined that the sentence, while severe, was not manifestly excessive given the nature and scale of the offence. The discount for the early plea was considered sufficient, and the special circumstances did not warrant a variation of the non-parol period. However, the court did allow an adjustment for the additional days in custody due to the delay in sentencing.
The court upheld the sentence, with an adjustment for the additional days in custody due to the delay in sentencing. The non-parole period remains six years nine months, with a balance of term of two years six months, resulting in an effective total sentence of nine years three months. The applicant's appeal was thus dismissed with the specified adjustment.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The applicant was sentenced to imprisonment comprising a non-parole period of six years nine months commencing on 30 January 2004 and a balance of term of two years six months. This amounts to an effective total sentence of nine years three months.The facts A statement of the relevant facts was tendered and adopted by the sentencing judge. It reads as follows:"On 7 January 2001 a joint strike force led by the Drug Squad, State Crime Command with the AFP, commenced into the alleged large commercial quantity of cocaine within the Sydney area.On 2 February, 2001, the defendant has arranged and paid for the formation of an Australian listed company called Impex Australia Pty Limited to facilitate the importation of a number of black plastic floor crates from South Africa.On 8 March 2001, approximately 580 single units of black modular flooring has entered the Botany terminal and under instructions of the defendant, other known persons have facilitated its transportation to shed 15, 8 Hargrave Street, TamworthThis being a storage shed leased by the defendant for the purpose of unpacking and storing the flooring.On 11 March 2001, two further known persons have entered Australia via Sydney and travelled to Tamworth where they were met by the defendant at Tamworth Airport.On 14 March 2001, the shipment of flooring has been delivered to the shed 15, 8 Hargrave Street, Tamworth, where it was unpacked by the defendant and the two known persons.On 17 March 2001, the defendant and two known persons have travelled from Tamworth to the Kennards self storage facility, 105 Pacific Highway, Hornsby. At the time the defendant has enquired about the lease of a storage shed.The defendant has completed the rental agreement and provided his details and South African driver's licence as identification.The defendant has paid cash for one month's rental and purchased a lock with two keys to the unit.The defendant has retained one of these keys and the pin number and supplied another key to the two known persons.The defendant and two known persons have then travelled back to Tamworth.On 23 March 2001, the two known persons have returned to the Kennards self storage facility, 105 Pacific Highway, Hornsby, and completed an authority to break lock for unit M 72.The two known persons have then with the assistance of staff removed the lock and after being left alone placed a new lock on to the storage unit. The two known defendants have then returned to the Tamworth area and returned the key for the Hargrave Street storage shed to a hotel for return to the defendantOn 30 March 2001, the two known persons have left Australia via Sydney.On 11 April 2001, the defendant has contacted one of the known persons in the US via his mobile phone.On 19 April 2001, the defendant has then contacted the Kennards self storage complex and advised them that he wished to pay for an additional month's rent for unit M 72 using his visa card and that he needed a new pin for access to the storage unit.The defendant was advised that a pin could not be sent but that the payment could be accepted.The defendant further stated that he had two agents coming over to the unit.On 23 April 2001, the defendant's mobile phone was subject to a lawfully obtained telephone interception.At 7.38am on 24 April 2001, the defendant contacted a known relative in which they stated, `Dennis (one of the known persons) is in any case, um apparently um there. He um signed over the facility and put another lock on and so on. So I don't know what's going on there.'The defendant stated, `No well I don't know about that, you know, so I’m going to arrive and just try my own key and if it doesn’t work, then say to the people, what now? You know.'At 3.16pm on Thursday 26 April 2001 the defendant's mobile phone has been subject to lawful interception in which the defendant had a further conversation with a known relative in relation to instructions for what the defendant should say and do in relation to the Hornsby storage shed.At the completion of the telephone call the defendant expresses his desire to not talk on the phone any further and that he will communicate via email.On 27 April 2001, police from the drug squad and APP have executed a search warrant on 79 Harrier Parade, Tamworth, the residence of the defendant. During this search during this time a search of the premises was conducted in the presence of the defendant and recorded on video. During this time a number of items were located including $32,800 in Australian currency.At 10am in company with the defendant a further search warrant was executed at shed 15 8 Hargrave Street, Tamworth in which a further 577 pieces of black modular flooring were located, a mop, a number of cleaning products and a sheet of plastic attached to the window with, grey electrical tape.At 1.18pm the defendant was cautioned and participated in an ERISP in which the defendant stated that he had commenced a business in Australia for the importation of the modular flooring for the purpose of selling for profit.The defendant further stated that due to his busy employment he had been unable to conduct any market research, but that he intended to do so.The defendant further stated that the two known persons had travelled from the USA to assist in the marketing of the flooring but had not completed in any such activity.The defendant stated that he was undertaking the business on behalf of the known relative.The defendant was then shown the authority to break padlock for unit M 72 in which he stated that he was unaware of the lock being broken and had no explanation for it.The defendant further stated that the $32,800 in cash was part of . $100,000 in cash brought into Australia by the unknown relative in January 2001, This being part payment for a previous debt.The defendant stated that the $32,800 was all that remained after purchasing a motor vehicle and other expenses.At 7.09pm a further lawfully intercepted telephone call was obtained in which the defendant contacted the known relative and informed them of the search warrant by police. During this conversation the defendant speaks to the known relative about the explanation given to police in relation to the money seized.At 9.18am on 28 April 2001 the defendant contacts one of the two known persons and informed them of the search warrant conducted by police.During this call the defendant is advised not to talk on the phone and call on a pay phone. The defendant agrees.On 3 May 2001 at gam a further search warrant is executed on 15 8 Hargrave Street, Tamworth where a number of scientific analyses were completed, and all items removed.On 3 May 2001 at 2.47pm the defendant again contacts the known relative and has a conversation in relation to the actions of police. The defendant specifically advises about the police removing all items including the wooden pallets. The known relative shows considerable concern about this, and states `But, but, clean wood, proper wood.' The defendant stated, `Yes hopefully.'The defendant had a further conversation in relation to changing his explanation about the source of the money seized, and coached as to his explanation to be offered to police on how the money was obtained.At 3.54pm the defendant participated in a second ERSP in which he stated that he bought the $60,000 into Australia himself as part of a pension pay out and that he was aware of his obligation to report such amounts entering Australia.The defendant again denied any knowledge of the cocaine located. On 15 January 2002 after further extensive enquiries by the drug squad, police attended the British Aerospace Section, Tamworth Airport, and at 1.06pm the defendant was informed of his arrest and conveyed to Tamworth Police Station.The defendant was cautioned and participated in an ERISP. He stated that approximately one to two weeks after receiving delivery of the modular flooring, he had it placed in the Tamworth self storage unit. He then began the lease for the storage shed at Hornsby. He then received a phone call from each of the both known persons, who informed him that a large amount of cocaine had been located in his storage shed. He was advised by one of the known persons to leave Australia. The defendant states that he was extremely concerned about these calls and immediately contacted his girlfriend and arranged for her to fly to Sydney where he would meet with her. The defendant states he discussed his concerns with his girlfriend about the calls and the apparent location of the drugs in the unit at Hornsby.The defendant further stated that although concerned enough to fly to Sydney, he did not feel concerned enough to travel to Hornsby, or contact the police, or make any enquiries to confirm the information.The defendant further stated, that although he was the only person in Australia with access to the storage shed at Hornsby, he made no attempt to do so.The defendant further stated that the reason he obtained the storage shed in Hornsby, was to allow for the showing of the modular flooring to prospective customers, although he had no knowledge of the brand, the cost price, the manufacturer, guarantee or warranty, import costs, competition or whether the flooring was even new or second hand. The defendant further stated that he had in fact made no sales, or contacted any persons in relation to the sale of the items.The defendant further stated that he had made no attempt to obtain contact details from the two known persons, although he believed them to be in Australia prior for the purpose of developing a market, and having been previously involved in the selling of the products.The defendant was questioned in relation to the expenses of establishing the business to which he replied that one of the known persons had attended Australia and handed him $10,000 in cash for expenses. This being something the defendant had not revealed in the two previous interviews.The defendant was questioned in relation to the lawfully obtained telephone intercept in which he was unable to provide answers for the inconsistencies in his previous interviews.The defendant was charged with the matters now before the Court."