De Bonde v The Queen
[2002] WASCA 251
•6 SEPTEMBER 2002
DE BONDE -v- THE QUEEN [2002] WASCA 251
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 251 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:56/2002 | 20 AUGUST 2002 | |
| Coram: | PARKER J HASLUCK J FITZGERALD AJ | 6/09/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| D | |||
| PDF Version |
| Parties: | DARREN SHANE DE BONDE THE QUEEN |
Catchwords: | Criminal law Sentencing Importing a quantity of "Ecstasy" in excess of the trafficable quantity Plea of guilty Quantity imported less than quantities imported by associates Parity Whether sufficient allowance made for lesser quantity A sentence of imprisonment for 5 years with a non-parole period of 2 years 6 months held to be not excessive |
Legislation: | Customs Act 1901, s 233B(1)(b), Sch 6, s 235 |
Case References: | Nil Bellissimo v The Queen (1996) 84 A Crim R 465 Boxtel v The Queen [1994] 2 VR 98 Cameron v The Queen (2002) 187 ALR 65 Darwell v The Queen (1997) 94 A Crim R 35 Grimwood v The Queen [2002] WASCA 135 Heryadi v The Queen (1998) 19 WAR 383 Little v The Queen [2001] WASCA 87 Lowe v The Queen (1984) 154 CLR 606 Miles v The Queen (1997) 17 WAR 518 Postiglione v The Queen (1997) 189 CLR 295 R v Diefenbach (1999) 108 A Crim R 19 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Foster & D'anna (1992) 59 A Crim R 14 R v King [1979] VR 399 R v Laurentiu & Becheru (1992) 63 A Crim R 402 R v Lewis (1984) 13 A Crim R 63 R v Nardozzi (1994) 74 A Crim R 319 R v Oancea (1990) 51 A Crim R 141 R v Olbrich (1999) 199 CLR 270 Radebe v The Queen (2001) 162 FLR 313 Siganto v The Queen (1998) 194 CLR 656 Verschuren v The Queen (1996) 17 WAR 467 Wale v The Queen [2001] WASCA 418 Wong v The Queen (2001) 185 ALR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DE BONDE -v- THE QUEEN [2002] WASCA 251 CORAM : PARKER J
- HASLUCK J
FITZGERALD AJ
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Importing a quantity of "Ecstasy" in excess of the trafficable quantity - Plea of guilty - Quantity imported less than quantities imported by associates - Parity - Whether sufficient allowance made for lesser quantity - A sentence of imprisonment for 5 years with a non-parole period of 2 years 6 months held to be not excessive
Legislation:
Customs Act 1901, s 233B(1)(b), Sch 6, s 235
(Page 2)
Result:
Application for leave to appeal refused
Category: D
Representation:
Counsel:
Applicant : Mr J McGrath
Respondent : Mr H G Dembo
Solicitors:
Applicant : Maughan & Leach
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bellissimo v The Queen (1996) 84 A Crim R 465
Boxtel v The Queen [1994] 2 VR 98
Cameron v The Queen (2002) 187 ALR 65
Darwell v The Queen (1997) 94 A Crim R 35
Grimwood v The Queen [2002] WASCA 135
Heryadi v The Queen (1998) 19 WAR 383
Little v The Queen [2001] WASCA 87
Lowe v The Queen (1984) 154 CLR 606
Miles v The Queen (1997) 17 WAR 518
Postiglione v The Queen (1997) 189 CLR 295
R v Diefenbach (1999) 108 A Crim R 19
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Foster & D'anna (1992) 59 A Crim R 14
R v King [1979] VR 399
R v Laurentiu & Becheru (1992) 63 A Crim R 402
R v Lewis (1984) 13 A Crim R 63
(Page 3)
R v Nardozzi (1994) 74 A Crim R 319
R v Oancea (1990) 51 A Crim R 141
R v Olbrich (1999) 199 CLR 270
Radebe v The Queen (2001) 162 FLR 313
Siganto v The Queen (1998) 194 CLR 656
Verschuren v The Queen (1996) 17 WAR 467
Wale v The Queen [2001] WASCA 418
Wong v The Queen (2001) 185 ALR 233
(Page 4)
1 PARKER J: I agree that the application for leave to appeal should be refused substantially for the reasons given by Fitzgerald AUJ.
2 HASLUCK J: I agree with the reasons for judgment of Fitzgerald AJ and the orders proposed. There is nothing I wish to add.
3 FITZGERALD AJ: On 24 October 2001, the applicant imported 37.8 grams of methylenedioxmethamphetamine ("ecstasy") with a purity of between 81.3 per cent and 81.9 per cent. The net pure weight was 30.7 grams. An x-ray taken when the applicant passed through customs on his return to Perth from Bali revealed foreign objects in his body. When police subsequently executed a search warrant at his home, he was in possession of a number of packages containing ecstasy, and others subsequently passed through his digestive system. He initialled denied, but, not surprisingly, later admitted, that he had imported the drug.
4 Associates of the applicant also imported quantities of ecstasy at that time. Dean imported a net pure weight of 575.2 grams, Ebert imported a net pure weight of 318 grams, Gillespie imported a net pure weight of 318 grams and Tormey imported a net pure weight of 185.84 grams. The applicant was not alleged to be involved in the importations by his associates.
5 Each of the applicant and his associates other than Dean pleaded guilty on the "fast-track system" to one count of importing a quantity of ecstasy in excess of the trafficable quantity contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). Under Sch 6 of the Customs Act, .5 gram is a trafficable quantity of ecstasy. Under s 235 of the Customs Act, the maximum penalty for the applicant's offence was a fine of $500,000 or imprisonment for a period not exceeding 25 years or both. Each of the applicant, Ebert, Gillespie and Tormey was sentenced in the District Court at Perth on 7 March 2002. Ebert, Gillespie and Tormey were sentenced to imprisonment for 6 years with a 3 year non-parole period. The applicant was sentenced to imprisonment for 5 years with a non-parole period of 2½ years. Dean, who pleaded guilty on the fast-track system to one count of importing a quantity of ecstasy in excess of a commercial quantity, was subsequently sentenced in this Court to imprisonment for 7 years with a 3½ year non-parole period.
6 The applicant has applied for leave to appeal against the sentence imposed upon him. Briefly summarised, his submissions were that his sentence is manifestly excessive, that he was entitled to a greater "discount" for his fast-track plea, his prior good character and antecedents,
(Page 5)
- his personal use of ecstasy and his unproven claim that he intended to use the ecstasy himself and perhaps share it with others for recreation but not sell it, and that the sentencing judge erred when he stated that the weight of ecstasy imported by the applicant was of only marginal significance. The applicant also submitted that, although the sentencing Judge recognised that the weight of ecstasy imported by the applicant was less than the amounts imported by his associates, the difference was not given sufficient weight in the applicant's sentence which fails to reflect his lower level of culpability, creates an appearance that justice has not been done and has left him with a legitimate sense of grievance.
7 The antecedent circumstances of the applicant and his associates and the circumstances of their respective offence were relevantly indistinguishable apart from the differences in the quantities of ecstasy they imported. After sentencing Ebert, Gillespie and Tormey, the sentencing Judge continued:
"I have considered the question of the offender De Bonde and the fact that the amount actually proven to have been imported by him is rather less than others. The appreciation of this is somewhat difficult but I consider it to be a consideration of marginal significance only and only relevant to the extent that the net result is that the sentence to be imposed on De Bonde is that of 5 years imprisonment with a 2 and a half year period before eligibility for parole… ."
8 His Honour seems to have meant that, while the applicant would receive a less severe sentence than his associates because he had imported a smaller quantity of ecstasy, the sentence appropriate for him in all the circumstances was not significantly lower than the sentence appropriate for his associates. That construction of his Honour's quoted remarks is consistent with the identical sentences imposed on the applicant's associates in the District Court despite the differences in the respective amounts each imported.
9 There was no necessary error of principle in that approach. It was not incumbent on the sentencing Judge to give each of the four offenders whom he sentenced a different sentence by reason of the different amounts which they imported provided that each sentence was related to the circumstances of the offender and his offence, including the quantity that he imported and the need to maintain an appropriate proportionality between the respective sentences having regard to the different amounts imported and any other differentiating circumstances. While it might have been preferable for the sentencing Judge to discuss this aspect of the
(Page 6)
- matter more fully, I am not persuaded that his Honour made an appealable error.
10 Further, the sentence imposed on the applicant was not excessive. The sentencing Judge's duty in sentencing the applicant was to impose a sentence of appropriate severity in all the circumstances, including any matters in mitigation and the sentences imposed on his associates. I would not favour a lower sentence if this Court were to resentence the applicant. Parliament plainly intends that importers of trafficable quantities of ecstasy be sentenced to substantial periods of imprisonment, and the sentence imposed on the applicant was appropriate.
11 The applicant's application for leave to appeal should be refused.
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