Minall and Watkins v Regina - [2003] NSWCCA 311

CITATION: Minall and Watkins v Regina [2003] NSWCCA 311

HEARING DATE(S): 10/03/2003

JUDGMENT DATE:
11 November 2003

JUDGMENT OF: Meagher JA; Dowd J; Barr J

DECISION: In respect of each applicant, application granted; appeal dismissed.

LEGISLATION CITED: Crimes Act 1914
Customs Act 1901

CASES CITED: R v Olbrich (1999) 199 CLR 270
Wong and Leung v R (2001) 76 ALJR 79
Wong and Leung (1999) 108 A Crim R 531

PARTIES :
Benjamin Richard Minall (First Applicant)
Justin David Watkins (Second Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 60361/02; 60374/02

COUNSEL: S Odgers SC (First Applicant)
B Walker SC with G Bashir (Second Applicant)
G J Bellew (Respondent)

SOLICITORS: Watsons (First Applicant)
John D Weller & Associates (Second Applicant)
DPP (Commonwealth) (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0180
02/11/0189

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

60361/02
60374/02

MEAGHER JA
DOWD J
BARR J
Tuesday, 11 November 2003

REGINA v BENJAMIN MINALL

REGINA v JUSTIN DAVID WATKINS

Judgment

1 MEAGHER J: I agree with Dowd J.

2 DOWD J: These applications, which were heard together, were for leave to appeal against sentence imposed by Christie DCJ on 11 June 2002 from a sentence of seven and a half years for each applicant with a non-parole period of five years. Each applicant had the sentence backdated to accommodate pre-sentence custody.

3 The applicant, Minall, who was thirty four years of age at the time of sentence had been charged with, and pleaded guilty to, importing a trafficable quantity of cocaine contrary to s233B (1)(b) of the Customs Act 1901, he having no previous convictions.

4 The applicant, Watkins, who was thirty three years of age at the time of sentence also with no prior convictions was charged with the same offence and similarly pleaded guilty.

The Facts on Sentence

5 Both applicants arrived in Sydney on 17 August 2001, on a flight from Los Angeles travelling together, but approached Immigration clearance separately. In a conversation with a custom’s officer, Minall said that he was travelling alone, and gave the name of a person whom he said was a friend that he was to meet. Both declared they proposed to stay at the W Hotel in Woolloomooloo, that their intended length of stay was eight days and that the primary purpose was business.

6 Minall was, with his consent, frisk searched. A custom’s officer noticed the applicants waiting together at the taxi rank. Shortly thereafter, the Australian Federal Police entered a room occupied by the applicants at the W Hotel, and observed Watkins lying on the side of a double bed with pellets wrapped in white paper towelling on his side of the bed, and on the other side, where Minall had been lying, were pellets in a watch case. Further pellets were discovered in the room.

7 After arrest the applicants were conveyed to St Vincent’s Hospital where X-rays revealed other items internally. Under supervision, the remaining pellets were passed by Minall. Watkins, in hospital, also passed…

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.

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Details

Case: [2003] NSWCCA 311
Decision Date: 11 November 2003

CaseChat Overview and Summary

In Minall and Watkins v Regina, the applicants, Benjamin Richard Minall and Justin David Watkins, appealed against their sentences imposed by Christie DCJ on June 11, 2002, which were seven and a half years with a non-parole period of five years each. Both applicants had pleaded guilty to importing a trafficable quantity of cocaine under the Customs Act 1901. The primary legal issue before the Court of Criminal Appeal was whether the sentencing judge had erred in finding the applicants to be principal offenders rather than couriers, and whether the sentences imposed were appropriate.

The Court of Criminal Appeal considered the evidence presented, including the email communications, credit card usage, and the applicants' testimonies. The Court found that the sentencing judge was entitled to conclude that the applicants were principals based on the evidence. The Court further held that the sentences were within the appropriate range and that the sentencing judge had adequately considered the applicants' pleas of guilty and prospects of rehabilitation.

Ultimately, the Court of Criminal Appeal granted leave to appeal but dismissed the appeals, upholding the original sentences. The reasoning of the Court focused on the sentencing judge's discretion in assessing the criminality of the offenders and the evidence supporting the findings that the applicants were principals in the offence.

Orders