McCraw v R

[2011] NSWCCA 162

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McCraw v R [2011] NSWCCA 162

Hearing dates:

18 July 2011

Decision date:

22 July 2011

Before:

Allsop P at 1; Simpson J at 2; Buddin J at 32

Decision:

1. Time to file a notice of appeal extended;

2. Leave to appeal granted;

3. Appeal dismissed.

Catchwords:

CRIMINAL LAW - application for leave to appeal against severity of sentence - conspiracy to import not less than the commercial quantity of a border controlled drug - disparity between sentences imposed on applicant and co-offenders - relevance of assessment of the role played by each participant - no error demonstrated - leave granted - appeal dismissed

Legislation Cited:

Criminal Code (Cth)

Cases Cited:

Cameron v The Queen [2002] HCA 6; 202 CLR 321
R v Edwards (1996) 90 A Crim R 510
Tyler v R; R v Chalmers [2007] NSWCCA 247

Category:

Principal judgment

Parties:

Terrence John McCraw (Applicant)
Regina (Respondent)

Representation:

Counsel:
P Boulten SC (Applicant)
C P O'Donnell (Respondent)
Solicitors:
John Carmody & Co (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2008/16015

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2009-04-09 00:00:00

Before:

Lakatos DCJ

File Number(s):

2008/11/1040

Judgment

1. ALLSOP P: I agree with Simpson J.

1. SIMPSON J: On 17 July 2009, following a jury trial in the District Court, the applicant was convicted of an offence of conspiracy to import not less than the commercial quantity of a border controlled drug (MDMA, commonly known as "ecstasy"). The offence was committed between 1 February 2007 and 9 August 2007. Pursuant to s 11.5 and s 307.1 of the Criminal Code , the applicant was thereby exposed to a maximum custodial penalty of imprisonment for life. On 9 April 2010, Lakatos DCJ sentenced him to imprisonment for 17 years, commencing on 16 June 2009, with a non-parole period of 11 years and 2 months. The applicant will be eligible for release on parole on 15 August 2020.

1. The applicant seeks an extension of time in which to file an application for leave to appeal against the severity of the sentence. He does not appeal against the conviction.

1. The applicant was jointly indicted with Dalibor Pasinovic and three others. At the conclusion of the Crown case, Pasinovic gave evidence. During the course of cross-examination by the Crown, he made certain admissions, as a result of which he was re-arraigned and entered a plea of guilty to the conspiracy charge. He also entered a plea of guilty to a charge of knowingly dealing with money (of $50,000 or more) that was the proceeds of crime ("money laundering"). That offence carries a maximum penalty of imprisonment for 15 years ( Criminal Code , s 400.5). On the same day as he sentenced the applicant, Lakatos DCJ sentenced Pasinovic. On the conspiracy charge he imposed a sentence of imprisonment for 15 years and 3 months, commencing on 9 August 2007, with a non-parole period of 10 years and 1 month. On the money laundering charge, he imposed a wholly concurrent sentence of imprisonment for 3 years. In selecting those sentences, his Honour reduced the terms he would otherwise have imposed by ten percent, reflecting Pasinovic's (belated) willingness to facilitate the cause of justice: Cameron v The Queen [2002] HCA 6; 202 CLR 321.

1. Earlier, on 19 February 2010, his Honour had sentenced another participant, code named only "Alpha". I will refer briefly to that sentence below.

The Facts

1. In June 2007 Pasinovic, who lived in Montenegro, signed on as second mate aboard the ship " Sophie "; on 25 June 2007, Sophie departed from Antwerp in Belgium for Sydney. On board Sophie was a little over 40 kilograms of a crystalline substance that contained 30.82 kilograms of pure MDMA, with an estimated street value in Sydney of between $4.4 million and $18.5 million. The large range in value is accounted for by variations in the manner of ultimate disposal.

1. Pasinovic had, effectively, the custody of the drug throughout the voyage, which took 46 days. During the course of the journey (as his Honour found, despite contentions to the contrary) Pasinovic communicated by mobile telephone with individuals in a number of European countries.

1. The applicant was employed by Patrick Stevedoring at Port Botany in Sydney, as a waterside worker and team leader. The applicant and various other employees of Patrick's were involved in the conspiracy. The applicant had held that employment for 13 years, but had worked, virtually all his adult life, on the waterfront. He had possession of two mobile telephones, one in his own name, and one in a fictitious name (Wilson). On 3 August 2007, the applicant, using the telephone in Wilson's name, telephoned the Sydney office of Sophie's shipping company to ascertain her arrival date. Thereafter he made enquiries of Patrick's personnel concerning the operation of security cameras at the Patrick carpark. When he learned that Sophie was to dock at the Patrick's terminal on 9 August 2007, he elected to work on that day, although it was, in fact, a rostered day off.

1. He further arranged to work at a time and place when he would be on-hand for the unloading of Sophie . He ensured that another employee (Stanley) who he had recruited into the conspiracy was available to assist with the removal of the drugs from the container terminal. He met with other conspirators, and enabled one to gain access to the employees' carpark. On 9 August and the days preceding, he communicated by telephone with various other participants. He and another conspirator each carried a bag containing half of the total amount of the drug from the terminal and loaded them into a utility. Shortly after, he and two others were arrested. Pasinovic had concealed in his clothing $21,500 in Australian currency, and 22,500 euros that had been handed to him earlier that day (a total value of about $50,000 Australian dollars).

The Personal Circumstances of the Applicant

1. Evidence was given in the sentencing proceedings by the applicant's wife, his daughter, and his sister. Also before the sentencing judge were a pre-sentence report and a psychiatric report prepared by Dr John Pickering concerning the applicant, and a psychiatric report prepared by Dr Patricia Jungfer, concerning the applicant's wife. These established the following relevant circumstances.

1. The applicant was born in October 1950, and was 58 years of age at the time of the offence. He left school at 15 and took up employment on the waterfront. He remained in such employment until the date of his arrest. He met his wife when they were teenagers, and they had, at sentencing, been married 37 years. The marriage is obviously a strong one, as is the wider family relationship. The oral evidence demonstrated that the applicant's offence has had a devastating effect upon members of his family, including his mother, who is 87 and disabled. It was not suggested that these circumstances were "exceptional" as is required before they can be taken into account in order to reduce an otherwise proper sentence: R v Edwards (1996) 90 A Crim R 510.

1. The applicant has no relevant criminal history. One circumstance relevant to sentence concerns statements made by him to the Probation and Parole officer who wrote the pre-sentence report, and to Dr Pickering. The applicant told each of these that he believed the contraband goods with which he was obviously involved were X-rated videos or DVD's. He told the Probation and Parole officer that he was to receive $500; he told Dr Pickering that there was "a drink in it for [me]", which Dr Pickering took to mean that he expected some unspecified financial reward.

1. Lakatos DCJ rejected this, and a number of Dr Pickering's opinions, which, he thought, were based upon false premises. No issue is taken with these findings.

1. Dr Pickering recorded a very bad reaction on the part of the applicant, initially, to his incarceration. He had been on bail, although dismissed from his employment, from 11 September 2007 (one month after his arrest) until a date which does not appear from the papers.

1. Dr Pickering first saw the applicant on 9 May 2008, at a time when he was on bail, and again, after conviction and remand in custody, on 19 November 2009, at which time he had been in custody at least since his conviction on 17 July.

1. Since then the applicant has made some recovery, and has occupied himself by working, in a trusted position, and by helping younger prisoners.

1. Dr Jungfer's report concerned the applicant's wife and disclosed, as I have mentioned, the serious impact the applicant's offence has had upon her. That is not, however, of sufficient magnitude to permit any reduction in the proper sentence.

The Remarks on Sentence

1. Lakatos DCJ sentenced Pasinovic first, and gave a lengthy account of the circumstances of the conspiracy. He found that Pasinovic played "an essential and crucial role" in the conspiracy. His Honour then sentenced the applicant. In doing so, he relied upon and substantially incorporated the historical matters he had recounted in sentencing Pasinovic. He used identical terminology to describe the role played by the applicant - "essential and crucial". He considered relevant factors in the determination of sentence to be the weight and quantity of the drug, and its considerable value. That is plainly correct. He described the conspiracy as "very significant ... involving millions of dollars worth of drugs". That is also plainly correct. He said of the applicant's role, not only that it was "essential and crucial" but also "significant and crucial". He considered the applicant's role to have been "on a par" with that of Pasinovic.

1. The sentence imposed on the applicant was, except for one thing, identical to that imposed on Pasinovic. The variation reflected Pasinovic's plea of guilty, and the ten percent reduction allowed in recognition of his willingness to facilitate the cause of justice.

1. When sentencing Alpha, Lakatos DCJ said that:

"[Alpha] held an important and key high level organisational role in this conspiracy, which was typified by his maintaining a distance from the physical process of importing the drug, and was marked by the sophistication of the offence and the high degree of planning."

1. He also took into account that Alpha was entrusted to pay Pasinovic a significant sum, in excess of $50,000 when the euros were converted.

1. Accordingly, the starting point for sentence in Alpha's case was a term of 26 years. That was significantly reduced for legitimate and uncontroversial reasons that need not here be explored.

The Grounds of the Application

1. Two grounds of the application were pleaded. They were framed as follows:

"Ground 1

There is an unjustifiable disparity between the sentence imposed upon the applicant and the sentence imposed upon his co-offender, Pasinovic.

Ground 2

His Honour erred by equating the applicant's role in the conspiracy with the role played by Pasinovic."

1. It seems to me that these are different aspects of a single contention. There was, in effect, no disparity, except for that created by the ten percent reduction of Pasinovic's sentence. The disparity argument can only succeed if the applicant can establish that his role was significantly less than that of Pasinovic.

1. During the course of argument, senior counsel who appeared for the applicant accepted that his argument depended upon challenging the finding of the sentencing judge that the applicant's role was "on a par" with that of Pasinovic. The challenge to this finding was based largely upon the contention that, where Pasinovic had custody of the drug from the commencement to the end of the voyage, a period of 46 days, the applicant's role was to ensure that the drug was unloaded from Sophie and given into the custody of others at the Australian end of the enterprise. In time terms, this is significantly less that the time during which Pasinovic was actively involved. Senior counsel also pointed to evidence suggesting that Pasinovic had had contact with more senior participants both in Europe and Australia, contrasting that with evidence that suggested that the applicant's communications were limited to Australian participants.

1. I am unable to accept that the distinctions drawn show that the assessment of Lakatos DCJ was wrong. The submission, it appears to me, oversimplifies the assessment of the roles of participants in a criminal conspiracy. It is not only their overt acts that are relevant; it is a more complex web, involving the nature of the conspiracy, the position in the hierarchy occupied by each conspirator, and the importance of the role played by each individual: see Tyler v R; R v Chalmers [2007] NSWCCA 247.

1. Here, the applicant played what was admittedly "an essential and crucial" role in supervising the unloading of the drugs from the ship and their transport to their first Australian destination. In order to do that, he manipulated his own work roster, and arranged for at least one other participant to work on Sophie ; he personally carried one bag of drugs from the ship to the waiting transport; earlier, he recruited one other employee into the organisation. It is, in my opinion, not to the point that his physical contact with the drugs was of substantially shorter duration than that of Pasinovic. Nor is it to the point (if it be the case) that the time over which he was actively involved (prior to unloading) was of substantially shorter duration than the 46 days during which Pasinovic was actively involved. The evidence suggests that the applicant was, in fact, the Australian counterpart of Pasinovic - the participant to whom Pasinovic handed over on his arrival in Australia.

1. Senior counsel also sought to establish the applicant's relatively lowly status from evidence that he never had contact with the most senior Australian participant, Alpha. That may be so, but the starting point of Alpha's sentence (26 years) reflected that. Pasinovic also was not the senior European member of the organisation. The finding by Lakatos DCJ that the two were "on a par" with one another was not only open to him, but plainly entirely accurate.

1. No submission was made that, absent a disparity between the roles played by Pasinovic and the applicant, the sentence was manifestly excessive (even on the assessment of his role advanced on behalf of the applicant) and any such submission was (correctly) expressly disclaimed during the course of argument.

1. Accordingly, I see no error in the approach taken by the sentencing judge. I would extend the time in which to file an application for leave to appeal, grant leave to appeal, but dismiss the appeal.

1. The orders I propose are:

1.   Extend the time in which to file a notice of appeal;

2.   grant leave to appeal;

3.   dismiss the appeal.

1. BUDDIN J: I agree with Simpson J.

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Decision last updated: 22 July 2011