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 215Texts 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…
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- Lindsay v R [2012] NSWCCA 124
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- [2012] NSWCCA 124
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CaseChat Overview and Summary
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.
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