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Lindsay v R

Lindsay v R

Case [2012] NSWCCA 124 14 June 2012

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Court of Criminal Appeal

New South Wales

Case Title: Lindsay v R

Medium Neutral Citation: [2012] NSWCCA 124

Hearing Date(s): 23 May 2012

Decision Date: 14 June 2012

Jurisdiction:

Before:
Allsop P at [1]
Davies J at [20]
Schmidt J at [21]

Decision:
1.Grant leave to appeal on the issues raised in the supplementary written submissions dated 23 May 2012, otherwise leave to appeal refused.
2.Appeal dismissed.

Catchwords:
CRIMINAL LAW - sentence - importing marketable quantity of border-controlled drug - duress - drug debt - threats to offender's family - reliability

Legislation Cited:
Criminal Code (Cth), s 307.2(1)

Cases Cited:
DPP (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
Tiknius v R [2011] NSWCCA 215

Texts Cited:

Category: Principal judgment

Parties:
Angus John Lindsay (Applicant)
Regina (Respondent)

Representation

- Counsel:
A Francis (Applicant)
G Farmer (Respondent)

- Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File number(s):
2010/261704

Decision Under Appeal

- Court / Tribunal:

- Before: Wells DCJ

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:

JUDGMENT

ALLSOP P: This is an application for leave to appeal against a sentence imposed by the District Court on 20 May 2011 in respect of the applicant's conviction in respect of an offence contrary to the Criminal Code (Cth), s 307.2(1) of importing a marketable quantity of a border controlled drug. The drug was cocaine. The applicant had over 400 grams (352.1 grams pure) of cocaine hidden on his person. He was stopped and questioned at Sydney airport after disembarking a flight from Bangkok on 6 August 2010. He pleaded guilty. A marketable quantity of cocaine for s 307.2(1) was two grams to two kilograms. The maximum penalty for the offence was 25 years imprisonment.
He was sentenced on 20 May 2011 to a term of imprisonment of a non-parole period of five years six months with a balance of term of three years.
The facts are set out in the applicant's written submissions at paragraphs 5 to 13. I will refer to them as necessary below.
The matter came before this Court on Monday 21 May 2012. Written submissions had been filed in support of the sole ground of appeal, that the sentence imposed was manifestly excessive. An application for an adjournment to Wednesday 23 May was granted on the basis of inconvenience to counsel due to family matters. New counsel appeared on 23 May with additional written submissions. Those submissions were directed to a specific point not referred to in the grounds of appeal: that a finding of duress, falling short of the legal defence of duress, should have been made and in the absence of such a finding no proper weight was given to this matter in the assessment of the criminality of the offence. No objection was taken by the Crown to the variation in argument based on the form of the grounds of appeal filed.
In my view, there are no real prospects of…

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 Lindsay v R

Details

AGLC: Lindsay v R [2012] NSWCCA 124
Case: [2012] NSWCCA 124
Decision Date: 14 June 2012

CaseChat Overview and Summary

In this case, the defendant, Lindsay, appealed against his conviction and sentence for importing a marketable quantity of a border-controlled drug. Lindsay argued that he was acting under duress when he made the importation, and that this should be taken into account in his sentencing. The duress arose from threats made to Lindsay's family by the person who owed him a drug debt. Lindsay was convicted and sentenced to imprisonment, and he now appeals against that sentence.

The court was required to determine whether Lindsay's actions were indeed coerced by the threats made to his family, and if so, whether this was a mitigating factor in his sentencing. The court also had to consider the reliability of Lindsay's evidence and whether the defence of duress was available to him in law.

The court found that Lindsay's evidence was reliable and that the threats made to his family were significant and credible. However, the court determined that duress was not available to Lindsay as a defence to the drug importation charge. The court held that the defence of duress was not applicable to offences involving the importation of a border-controlled drug. The court considered that the threat to Lindsay's family did not constitute a legal justification for his actions. The court further found that even if duress was available as a defence, it would not have been a mitigating factor in sentencing as the crime involved a significant quantity of drugs.

The appeal was dismissed, and the original sentence was upheld.

Orders