R v Anderson

[2004] NSWCCA 317

CITATION:	R v Anderson [2004] NSWCCA 317
HEARING DATE(S):	10/9/2004
JUDGMENT DATE:	17 September 2004
JUDGMENT OF:	Sperling J at 1; Kirby J at 2; Newman AJ at 3
DECISION:	Leave granted to appeal but appeal dismissed.
CATCHWORDS:	Criminal law - Knowingly concerned in the importation of cocaine - On sentence trial judge followed sentencing parameters in Wong & Leung 108 A Crim R 53 - While that decision overruled by High Court in that respect, sentence appropriate notwithstanding.
LEGISLATION CITED:	Commonwealth Crimes Act 1914 Criminal Appeal Act 1912 Customs Act 1901
CASES CITED:	R v Astill (No 2) (1992) 64A Crim R R v Boulghourgian (2001) NSWCCA 460 R v Curello [2003] NSWCCA 201 R v Karacic [2001] NSWCCA 12 House V The King (1936) 55 CLR499 R v Marchando [2003] NSWCCA 71 R v Mas Rivadavia & Ors [2004] NSWCCA 284 R v Olbrich (1999) 199 CLR 270 R v Taru [2002] NSWCCA 391 R v Whyte [2002] NSWCCA 343 R v Wong & Leung (1999) 48 NSWLR 340 Wong v Leung v The Queen (2001) 207 CLR 584
PARTIES :	Regina Raymond Peter Anderson
FILE NUMBER(S):	CCA 60196/00
COUNSEL:	Ms. M.Cinque (Crown) Mr. A. Haesler with Mr. P. Young (Applicant)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Horowitz & Bilinsky Solicitors (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	97/11/9839
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

60196/00

SPERLING J
KIRBY J
NEWMAN AJ

17 SEPTEMBER 2004

R V Raymond Peter ANDERSON

Judgment

1 SPERLING J: I agree with Newman AJ.

2 KIRBY J: I agree with Newman AJ.

3 NEWMAN AJ: This is an application for leave to appeal against a sentence imposed upon the applicant by his Honour Judge Sides in the District Court on Friday 7 April 2000.

4 His Honour imposed a head sentence of 14 years with a non-parole period of 8 years. In sentencing the applicant his Honour backdated the sentence to the date when the applicant went into custody, namely 17 July 1998.

5 His Honour’s sentence followed the conviction of the applicant, by a jury, of the offence of being knowingly concerned in the importation of a prohibited import, namely cocaine, in not less than a commercial quantity, contrary to the provisions of s233B(1)(d) of the Customs Act 1901. The quantity of cocaine involved was 9.868 grams gross weight, of which 7549.1 grams were pure. Under schedule VI of the Customs Act 1901 a commercial quantity of cocaine is 2 kilograms pure. The maximum penalty prescribed for this offence is imprisonment for life and or a fine of $750,000 (sub-paragraph 235(2)(c)(i)).

6 The applicant had earlier appealed against his conviction. That appeal was rejected. However there was no issue before this Court that the statement of the facts contained in the judgment of Kirby J in dismissing the appeal was other than correct. Kirby J found as follows :-

“5. The Crown Case : On 29 November 1996 Mr Anderson and Mr Stan Hokafonu attended a travel agency at Bondi. Airline tickets to Los Angles for four persons were eventually purchased. The cost of each airfare and hotel package was approximately $1,500. Mr Anderson said that he borrowed $3,000 from a friend and paid Mr Stan Hokafonu $1,500. The remainder was spending money.
6. On 6 December 1996 the group left Australia. They were scheduled to return on 16 December 1996. However, they extended their stay. They returned on 25 December 1996, on board United Airlines Flight UA.815 from Los Angles to Sydney.
7. Customs officers searched the aircraft upon its arrival in Sydney. Two garbage receptacles at the rear of the aircraft were found to contain 20 packages of white powder. The packages weighed almost 10 kilograms. Upon analysis they were found to contain 7.5 kilograms of cocaine. The Crown alleged that others were to collect the drugs from the garbage receptacles once the aircraft had reached Sydney.
8. Each of the 20 packages consisted of an inner and outer plastic bag. The inner bag contained the cocaine. It was placed inside a second plastic bag containing what appeared to be coffee beans. Each package had grey silver ducting tape adhering to it. Four pieces of that tape were found to have human hairs trapped in the adhesive. On one tape the hairs were mid brown in colour and identified as Caucasian body hair. They were subjected to DNA analysis, and were found to match the profile of Mr Anderson, such that he could not be excluded as the source. The remaining hairs, however, were not Caucasian. They were consistent with the body hair of a person of Tongan extraction. Mr Anderson was therefore excluded as the source. The others in the group were of Tongan extraction.
9. The Crown case invited the inference that Mr Anderson and his three Tongan companions had strapped cocaine to their bodies before boarding the aircraft. The packages had been removed once they were on the aeroplane, and had been placed in the garbage receptacles.
10. Mr Anderson’s fingerprints were also found on the adhesive tape attached to one of the packages. When the package was recovered, the tape was adhering to the outer plastic bag. The fingerprints of the right index finger and the left index finger of Mr Anderson were uncovered. They were on the adhesive side of the tape, that is, the side that had been stuck to the bag. No fingerprints were found on the non-adhesive side of the tape, or on the bag itself. Three rubber gloves were found in the aircraft, two in the toilet, and one near a seat occupied by one of the group.”

7 As Kirby J pointed out, an account given at the trial by the applicant consistent with his innocence was plainly enough rejected by the jury.

8 In support of the applicant’s contention that the sentence imposed by his Honour was manifestly excessive three grounds of appeal were raised, namely :-

i) His Honour placed too much emphasis on an assessment of objective criminality relying on R v Wong & Leung (1999) 48 NSWLR 340, to the exclusion of independent consideration of all relevant factors.

ii) His Honour placed too great an emphasis on the total weight of the drug imported rather than the actual role of the applicant in the importation.

iii) His Honour failed to give proper weight to subjective features (s.16A Commonwealth Crimes Act 1914 ).

9 I turn to those grounds of appeal seriatim.

10 It is entirely correct, as the applicant submitted, that, at the time when he passed sentence upon the applicant, his Honour was bound to apply the guideline judgment of the Court of Criminal Appeal in that case. Subsequently the High Court held that guideline judgments could not lawfully be set in connection with Commonwealth offences (see (2001) 207 CLR 584). His Honour in referring to R v Wong observed that, so far as the quantity of drugs in this case was concerned, the range referred to as a guideline in R v Wong was a sentence of between 10 and 15 years. His Honour noted that that range was available in cases where, as occurred here, an individual had pleaded not guilty. However his Honour, in setting the non-parole period which he did, having taken into account subjective matters raised on behalf of the applicant, set a proportion between the sentence and the non-parole period below that referred to in R v Wong. However the fact remains that, following the High Court’s decision, his Honour was in error in applying the guideline judgment of the Court of Criminal Appeal.

11 Having said that, it should be observed that, following the decision of the High Court, a similar matter came before this Court in R v Boulghourgian (2001) NSWCCA 460. There at [33]-[34] Spigelman CJ stated :-

“…it remains to consider whether the court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed. It is only if the court is of this view that the court is empowered to quash the sentence and pass another sentence in substitution for that imposed in the exercise of discretion by the trial judge: s6(3) of the Criminal Appeal Act 1912; House v The King (1936) 55 CLR 499 at 504.
Even though there is error detected in the reasoning process of a trial judge, s6(3) does not enable this court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed: Regina v Astill (No 2) (1992) 64 A Crim R 289 per Sully J at 303 and Lee AJ at 304.”

12 Similar observations were made in this Court by Hulme and Buddin JJ in R v Cerullo [2003] NSWCCA 201.

13 Furthermore in R v Mas Rivadavia & Ors [2004] NSWCCA 284 Wood CJ at CL (with whom Adams J and Smart AJ agreed) stated :-

“65 Notwithstanding the criticisms which were expressed by the High Court in Wong v The Queen (2001) 207 CLR 584 concerning the extent of the emphasis that had been given in the guideline to the weight of the narcotic involved, and concerning the need for greater attention to be given to the role played by the offender, the range of sentences which were suggested by the Court of Criminal Appeal continued to be regarded as providing a useful guide before the repeal of ss 16G and 19AG (which had made similar provisions in relation to non-parole periods: see for example R v Taru [2002] NSWCCA 391; R v Marchando [2003] NSWCCA 71 and R v Cerullo [2003] NSWCCAQ 201.
66 Guideline decisions have occupied an important role in this state in establishing general sentencing patterns which have emerged in offences of the kind to which they relate, and the decision in Wong and Leung is no exception. However, such judgments have never been intended to operate as straight jackets. Their role is to provide indicators of sentences that have been found to be appropriate, in the general run of cases, to which they are directed. They are, accordingly, expected to be taken into account by sentencing judges although without excluding the important discretion to take into consideration the differences, objectively and subjectively, which exist in the individual case before the court: R v Karacic [2001] NSWCCA 12 and R v Whyte [2002] NSWCCA 343.
67 They are sounding boards which provide an important final check once consideration is given to the objective and subjective circumstances, and to the need to ensure that the sentence meets the various requirements of punishment, retribution and deterrence. As such they also provide a useful reference point for this Court when it is asked to review a sentence for manifest leniency or inadequacy.”

14 In other words this Court will not interfere in a matter where, albeit a judge has fallen into error by following the guideline judgment in R v Wong, if the sentence passed is otherwise warranted. I turn then to the other matters raised as grounds of appeal by the applicant. Namely that his Honour placed too greater emphasis on the total weight of the drug imported rather than the actual role the applicant played in the importation and secondly that his Honour failed to give proper weight to the subjective features which s16A of the Commonwealth Crimes Act 1914 requires him to give.

15 In dealing with the first of those additional grounds it must be borne in mind that the jury convicted the applicant of being knowingly concerned in the importation of not less than a commercial quantity of cocaine contrary to s233B(1)(d) of the Customs Act 1901. The fact that the evidence adduced by the Crown (which the jury plainly enough accepted) implicated the applicant’s involvement in relation to only two of the twenty packages found, does not alter the fact that the jury found him guilty of the offence of being knowingly concerned in the importation of the total weight of the drugs discovered. It was for the offence for which the applicant was found guilty that his Honour imposed the sentence which he did. In so doing his Honour in my view did not fall into error (see R v Olbrich (1999) 199 CLR 270).

16 In support of the submission that his Honour had failed to properly apply the matters adverted to in s 16A of the Crimes Act 1901 it was put that his Honour did not give proper weight to the strong subjective case raised by the applicant.

17 In fact his Honour did say that he had considered the matters that he is required to consider under S16A of the Crimes Act and had applied the provisions of s 16G. That latter section has since been repealed. When a judge of his Honour’s long experience of the criminal law so states, this Court would be loath to find otherwise.

18 Indeed his Honour stated ” the tragic circumstances of his personal life that I have referred to and that are detailed in the evidence rouse the reasonable sympathy of the Court. This, plus his depression contributing to the explanation of his involvement in the crime, need to be reflected in the sentence”.

19 It follows that in my view his Honour did in fact give proper weight to the subjective features raised on behalf of the applicant and did in fact properly apply the provisions of s 16A and 16G (as it then stood) of the Crimes Act 1901.

20 While, as I have said, the applicant has demonstrated an error in his Honour’s remarks on sentence (in that he followed the guideline judgment in R v Wong) for the reasons I have given I am of the view that the sentence passed was not more severe than warranted. Due to the importance of the matter to the applicant and the matters of law properly raised on his behalf I am of the view that this Court ought to grant leave to appeal against the sentence, but for the reasons I have given, dismiss the appeal.

**********

Last Modified: 09/24/2004