Legault v R

Case [2014] NSWCCA 271

Court of Criminal Appeal

New South Wales
Case Title: Legault v R
Medium Neutral Citation: [2014] NSWCCA 271
Hearing Date(s): 28 July 2014
Decision Date: 24 November 2014
Before: Bathurst CJ at [1];
Adams J at [6];
R A Hulme J at [29]
Decision:

(1)Leave to appeal granted.
(2)Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal - appeal against sentence - whether sentence imposed is manifestly excessive - no question of principle
Legislation Cited: Criminal Code Act 1995 (Cth) s 307.1(1)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
Hili v R; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
R v Basri [2009] NSWDC 398
R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525
Speer v R [2004] NSWCCA 118
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Daniel Junior Legault (Applicant)
Regina (Respondent)
Representation
- Counsel: Counsel:
S Corish (Applicant)
M England (Respondent)
- Solicitors: Solicitors:
Watsons Solicitors (Applicant)
Director of Public Prosecutions (Cth) (Respondent)
File Number(s): 2012/335049
Decision Under Appeal
- Court / Tribunal: District Court
- Before: Frearson SC DCJ
- Date of Decision:  16 August 2013
- Court File Number(s): 2012/335049

JUDGMENT

  1. BATHURST CJ: I have had the advantage of reading in draft the reasons of Adams J and R A Hulme J.

  2. By contending that the sentence was manifestly excessive the applicant was submitting that it was unreasonable and plainly unjust: Hili v R; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59].

  3. Because of the reliance placed on sentencing statistics in this case it must be emphasised that appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate is not justified simply because the result is materially different from sentences imposed in other cases: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]. Such statistics can do no more than provide a yardstick against which to examine a proposed sentence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [303]-[305].

  4. In the present case each of Adams J and R A Hulme J have set out the factors relevant to the objective seriousness of the offence and the applicant's subjective circumstances. Taking all those factors into account I agree that the sentence imposed was not manifestly excessive.

  5. I agree with the orders proposed by Adams J.

  6. ADAMS J:

    Introduction

  7. The applicant was convicted on his plea of guilty on 13 March 2013 on one count of importing a commercial quantity of methamphetamine on 26 October 2012 contrary to subsection 307.1(1) of the Criminal Code Act 1995 (Cth) and sentenced to a term of 9 years and 4 months with a non-parole period of 6 years to date from 26 October 2012. The learned sentencing judge applied a discount of 25…

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AGLC
Legault v R [2014] NSWCCA 271
Case
[2014] NSWCCA 271
Decision Date

CaseChat Overview and Summary

The case of Legault v R involved an appeal against the severity of a sentence imposed by the lower court. The applicant contested the sentence, arguing it was manifestly excessive. The key facts were that the applicant had transported a large quantity of methylamphetamine into Australia, specifically over 2,780 grams, which was nearly three times the stipulated commercial quantity of 750 grams. Despite not being directly involved in the preparation of the suitcase, the applicant admitted to transporting the drugs to repay a drug debt and avoid potential physical harm. The applicant had a prior criminal record involving theft, possession of substances for trafficking, and other offenses, which the sentencing judge noted precluded him from receiving leniency.

The legal issue at the heart of the appeal was whether the sentence imposed by the lower court was manifestly excessive, considering both the objective severity of the crime and the subjective circumstances of the applicant. The applicant argued that the crime was at the lower end of the range for such offenses and that his subjective circumstances, including his plea of guilty and physical and mental health issues, should have mitigated the sentence. The Crown prosecutor contended that the sentence was within the judge's discretion and that the statistics and cases cited by the applicant did not substantiate the claim of manifest excess.

The court's reasoning focused on the substantial nature of the crime, the significant amount of drugs imported, and the lack of significant mitigating factors. The sentencing judge had considered the applicant's early plea of guilty, granting a 25% discount, but also noted the absence of remorse and the applicant's criminal history, which precluded any leniency. The court concluded that while the sentence was severe and above the mean statistical range for such offenses, it did not demonstrate that the sentencing judge's discretion had miscarried. The appeal was ultimately dismissed, and leave to appeal was granted but the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The applicant appeals on the single ground that the sentence is manifestly excessive. Facts The applicant did not give evidence in the sentence proceedings. The facts surrounding the commission of the offence are set out in the reasons of the learned sentencing judge and were not controversial. The following is largely drawn from that account. On 26 October 2012 the applicant arrived at Mascot International Airport from Vancouver. On enquiry by a customs officer he said, in effect, he was travelling as a tourist. When his suitcase was x-rayed a false bottom was disclosed containing irregular packages which, on scanning, returned a positive result for methylamphetamine. The packages contained a white crystalline substance weighing just over 2,780 grams, the pure weight of amphetamine being 2,033.9 grams. The commercial quantity stipulated for this drug is 750 grams. The applicant was arrested just before 4pm and declined to take part in an interview which, as his Honour observed, was his right. The applicant's DNA was not found on the contents of the suitcase or on either of the packages concealed in it. Although it appeared that someone had, as the sentencing judge said, "gone to a lot of trouble preparing the suitcase and hiding the drugs and endeavouring to avoid detection. It does not appear that the [applicant] was involved in that process at least". The applicant was travelling with a person listed as his emergency contact who was also carrying packages of drugs concealed in a false bottom in her suitcase. The applicant's Canadian passport had been issued on 12 July 2012. This fact and that he was travelling with an accomplice also carrying drugs showed that there had been a substantial level of pre-planning and organisation in relation to the venture generally, although his Honour did not regard the applicant as responsible for this. The applicant told a psychologist whose report was tendered on his behalf that he had incurred debts for the purchase of drugs and feared reprisals if he did not repay the money, and accepted the opportunity offered to repay his debt by transporting the luggage to Australia. He said that he would have been beaten up had he not repaid his drug debt and feared that physical assault might have rendered him a paraplegic. The sentencing judge noted, in respect of the applicant's statement about his motivation for the offence, that it was basically a self-serving statement and thus one to which little weight could be attached. He accepted the applicant needed money for one reason or another.Prior criminal record The applicant, who was 29 years of age as at the date of the offence, had been convicted in the juvenile court in 1997 and 2000, receiving probation for assault with a weapon, theft of higher than an amount of $5,000, theft with breaking and entering and criminal harassment. Other entries included, in May 2003, theft in an amount less than $5,000 and damage in an amount less than $5,000 for which he was fined and placed on probation. In 2003 he also was placed on probation for the possession of substances with intent of trafficking and, in 2005, breaking and entering with intent. His Honour said of this record that it denied the applicant "leniency that would otherwise be available to a person who had an unblemished record". No issue was taken with this categorisation. Subjective features

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the sentencing judge's conclusion, which was open, that the applicant's mental condition did not contribute in a material way to the commission of the offence and the lack of any evidence that his physical condition did so, the submission that either reduced his moral culpability cannot be accepted. Even if it should have been given some weight, that would not have indicated, in my view, that the sentence was excessive.Conclusion Although I would agree that the sentence imposed on the applicant is severe and above the mean statistical range for importing a commercial quantity of methamphetamine, I am not satisfied that it was so severe as to demonstrate that the sentencing judge's discretion miscarried. Accordingly, I propose that leave to appeal be granted, but the appeal be dismissed. R A HULME J: I am grateful for the summary of all of the facts and circumstances of the case provided in the judgment of Adams J. As I understand the case for the applicant, it is contended that the sentence is manifestly excessive when regard is had to the criminality being at the "lower end of the range" for this type of offence and the applicant's subjective circumstances (physical and mental ill health, early plea of guilty, and more onerous custodial conditions). The reliance upon statistics and other cases was not said to establish the conclusion of manifest excess but to confirm it. This is a case involving the importation of almost three times the commercial quantity of methylamphetamine. I appreciate that the upper end of the commercial range is infinite but 2033.9 grams of the drug is not insignificant. The sentencing judge found that the planning and organisation that went into the venture "must have been quite substantial". He accepted that the offence was committed for "substantial financial gain". I do not accept the applicant's characterisation of such an offence as being at the "lower end of the range". The sentencing judge made a number of favourable findings as to the applicant's subjective circumstances. There is no contention of patent error. An allowance of 25 per cent was made for the early plea of guilty. However, there was no evidence of remorse and the applicant was disentitled to leniency on account of his criminal history. He was, however, found to have "fair" to "good" rehabilitation prospects. There was no assertion that the judge was in error in finding that general deterrence and the need to impose adequate punishment were significant considerations. Counsel accepted that the statistics and the cases to which reference was made do not, on their own, make good the contention that the sentence is manifestly excessive. I have come to the view that the applicant has failed at the first level of the argument which was put in terms that the sentence was "self-evidently excessive". I agree with orders proposed by Adams J.**********

Ratio Decidendi

Legal Principle Established

The Crown prosecutor submitted that the sentence was within the judge's discretion and cited, inter alia, R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525 (importation of 3025.5 grams of cocaine, 2136.8 grams pure cocaine - commercial quantity 2 kilograms - resulting in a sentence, after 25% discount, of 10 years 6 months, and a 7 years non-parole period). He contended that the statistics did not demonstrate that the sentence under appeal was outside the sentencing discretion. Consideration It is true that there are cases where the difference between the sentence imposed and the statistical range of a significant number of offences of the same kind is so marked as to at least raise the question whether the particular sentence is within the discretionary range or confirm a conclusion drawn otherwise that the sentence is excessive (or, for that matter, unjustifiably lenient). The statistics here are only capable of real (if limited) significance if Mr Corish made good his contention that the applicant's offence was objectively well within the lower end of criminality and there were significantly favourable subjective features. Certainly, he was no or little more than a courier but the quantity of drugs he carried into Australia was considerable, whilst his subjective features were only marginally favourable. Furthermore, the lack of information about the underlying cases at all events must give the statistics only very limited utility. Also, considerable care needs to be taken when comparing non-parole periods, since the reasons for determining non-parole periods will vary significantly and somewhat unpredictably from case to case. In the result, it seems to me that the statistics relied on by Mr Corish do not raise any question mark about the severity of the applicant's sentence. So far as Speer is concerned, it appears that the Court accepted that Speer was remorseful and his prospects of rehabilitation were good. It also needs to be borne in mind that a commercial quantity of heroin is stipulated at 1.5 kilograms so that Speer's importation was very much at the lower end of this category whilst the commercial quantity of methamphetamine is half this amount, namely 0.75 kilograms. The fourth category listed in McClellan CJ at CL's judgment in de la Rosa shows no more than there are cases in which sentences for importing commercial quantities of drugs are less than that imposed on this applicant. Given the sentencing judge's conclusion, which was open, that the applicant's mental condition did not contribute in a material way to the commission of the offence and the lack of any evidence that his physical condition did so, the submission that either reduced his moral culpability cannot be accepted. Even if it should have been given some weight, that would not have indicated, in my view, that the sentence was excessive.Conclusion Although I would agree that the sentence imposed on the applicant is severe and above the mean statistical range for importing a commercial quantity of methamphetamine, I am not satisfied that it was so severe as to demonstrate that the sentencing judge's discretion miscarried. Accordingly, I propose that leave to appeal be granted, but the appeal be dismissed.