R v Cunningham
[2000] VSCA 144
•26 July 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 282 of 1999
| THE QUEEN |
| v |
| BENJAMIN DAVID CUNNINGHAM |
---
JUDGES: | ORMISTON, BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 July 2000 | |
DATE OF JUDGMENT: | 26 July 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 144 | |
---
CRIMINAL LAW - Sentencing - Importation of narcotic substance, MDMA (ecstasy) and cannabis resin - 433 grams swallowed in glove fingers and brought from India to Australia - Applicant not involved in organisation, and wished to sell drugs for himself - Total effective sentence of 5 years (non-parole period of 3½ years) - Judge took into account all relevant matters, including participation in rehabilitation programmes - Not manifestly excessive.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr B. Tchakerian | Solicitor to C'th DPP |
| For the Applicant | In person |
ORMISTON, J.A.:
This is an application relating to sentences handed down in the County Court last year, in which the applicant had been charged on an indictment which contained two counts. The first, the more serious of the two, was that he did import into Australia prohibited imports, namely, narcotic goods consisting of not less than a trafficable quantity of a narcotic substance, MDMA, or ecstasy. Secondly, there was a count that he imported prohibited imports which consisted of a quantity of a narcotic substance, cannabis resin. The latter count related to an amount of only some 4.6 grams, and as a result the sentence on that count was made wholly concurrent in the way in which that is effected under the Commonwealth Crimes Act and is of no particular consequence in the context of this application, although it is not to be disregarded. In relation to the first count the judge ordered that the applicant be sentenced to a term of five years' imprisonment and then, having sentenced the applicant to two months' imprisonment in respect of the count alleging the cannabis importation, he directed that each term commence on the day of the sentence. Therefore they were to be served concurrently, and he then fixed, as is within the power of the court under the Commonwealth legislation, a period of three years and six months as the period during which the applicant should not be eligible to be released on parole. It was declared that the applicant had served a period of 242 days under the sentence.
The circumstances of the importation are quite simple and it is not necessary to set them out in a great deal of detail. The applicant appears to have been in India when he met an individual who offered to supply him with a quantity of ecstasy which he might convey to Australia. The applicant, who comes from the United Kingdom, was apparently there on holiday, and what he did once he had acquired the drugs was to package them in the fingers of a number of surgical gloves which were cut off and into which the powder was inserted. It was then tied in a knot, wrapped in Gladwrap covered with beeswax and re-wrapped, and then the applicant swallowed what turned out to be some 266 pieces. He caught a flight through Bangkok to Australia and was apprehended on his arrival. In due course, and under supervision, he passed the 266 packages, which in total contained some 433 grams, of which it might be said that 364 consisted of pure ecstasy. He said that he paid some £2,000 Sterling for the drugs. He obviously expected to sell them for a substantial sum, and in the course of a record of interview he said that he hoped to make some $40,000 before leaving Australia, although forensic evidence showed that the drugs might be made into tablets with a street value of $291,000.
It is clear from the evidence that the applicant was going to participate in this selling of drugs only on his own behalf. In practical terms there was no suggestion that he might do so as part of some organisation. Precisely why he chose to do this need not be examined at this stage. It is dealt with comprehensively in the learned sentencing judge's remarks.
The applicant complains now of the sentences on a number of grounds. In the first place, he says that the sentence was manifestly excessive, and secondly he says, and in a sense in support of that, that the judge failed to give adequate weight to sentences imposed in analogous cases and therefore departed from the principle of consistency. There is a general complaint about failure to give adequate weight to matters set out in s.16A of the Crimes Act, but having regard to the way in which the matter has been argued, I do not think that any of those were specifically relied upon before this Court, except to the extent that the other specific grounds were relied upon, namely that he had alleged that the judge failed to give adequate weight to the extent that he had shown contrition by taking part in the Remanded Young Offenders' Program, that he failed to give adequate weight to his involvement with courses of study and training at Port Phillip Prison which had increased his prospects of rehabilitation, and likewise he failed to give sufficient weight to the evidence of his good character as demonstrated by his conduct in that prison. Finally it was said that the judge gave undue weight to his interpretation of events leading to the commission of the offences.
Each of these matters has been discussed in submissions by the applicant in only the broadest terms, and one would not criticise him for the form in which his submissions were made because it is clear the applicant has no legal training. Nevertheless it should be said that the judge clearly recognised the extent to which the applicant had made very substantial efforts to rehabilitate himself. As I have said, he had spent something over 240 days in prison in any event, and the programs of rehabilitation had been embarked upon by him over that time. That was recognised, and recognised from materials that were put before the court, by the learned judge who reached the conclusion that he had been a model prisoner, that he had been drug free, and that he had participated in the rehabilitation programs in an effective way. No doubt that has continued, as the applicant has suggested, but it seems to me and to the Court that that was more than adequately taken into account by the judge in the context of the plea which was made on his behalf.
Complaint was also made that the sentence was manifestly excessive, largely, I think, because the applicant referred to a number of other cases involving the importation of ecstasy in which seemingly lesser sentences had been given, although sentences had been given which were, in two cases at least, in excess of the five years to which he was sentenced, but were said to be cases which involved a commercial quantity of the drug ecstasy. As counsel for the Crown has said, it is very difficult to draw satisfactory inferences from the brief summary of particular cases, and the examples given were ones which did not persuade me that there was any error displayed. There were, of course, some cases in which a lesser sentence was given, and some in which more was given, but this particular sentence did not in the end seem to be outside the range which was appropriate for a case of this kind.
More particularly, I think it must be said that the importation here involved, on the evidence, an importation by the applicant for his own benefit. It could not be said that he was merely a part of some wider scheme in which he formed only a minor link, or anything of that kind. It is clear that this quite substantial quantity, albeit only a trafficable quantity, of ecstasy was brought in so that he might sell it in this country and for his own profit. In those circumstances I cannot see that the sentences imposed for these counts were excessive.
Of the other matters referred to, I think each has been subsumed under other grounds, and in my opinion none of them indicate that there was any error in what the learned judge said, for it must be emphasised that what has to be shown on an application of this kind is that the judge erred in the decision he reached, not that the Court might, if it had to consider the evidence afresh and on hearing that evidence another time, not have reached a different conclusion. An applicant has to show that there was an error, and that of course had been pointed out to the applicant by the President when he rejected his application, and I agree with the matters set out in the President's reasons. But I would reiterate today that this Court can only set aside a sentence if there is error shown. None of the matters raised by him, whether directly or in the grounds of appeal, would appear to justify the setting aside of the sentence, and thus, in my opinion, it should be confirmed and the application dismissed.
BUCHANAN, J.A.:
I agree.
CHERNOV, J.A.:
I also agree.
ORMISTON, J.A.:
The order of the Court is that the application be dismissed.
- - -
0
0
0