R v Emanuel - [2004] NSWCCA 267

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Emanuel [2004] NSWCCA 267

FILE NUMBER(S):
60043/04

HEARING DATE(S): 9 June 2004

JUDGMENT DATE: 17/08/2004

PARTIES:
Crown
Darren Ricky Emanuel

JUDGMENT OF: Dowd J Bell J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0585

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

COUNSEL:
Crown: Mr D Arnott
Appellant: Mr P Boulten

SOLICITORS:

CATCHWORDS:
Crown appeal on manifest inadequacy - failure to reflect gravity of the offence

LEGISLATION CITED:
Criminal Appeal Act 1912
Criminal Procedure Act 1986

DECISION:
Appeal allowed; sentence quashed; resentenced to 7 years 3 months; non-parole period 4 years 9 months

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60043/04
DOWD J
BELL J
SMART AJ
Tuesday, 17 August 2004

R v Darren Ricky EMANUEL

Judgment

DOWD J: This is a Crown appeal against a sentence imposed on the applicant by Puckeridge QC DCJ in the Sydney District Court on 18 December 2003 after a plea of guilty to the following charges: a charge of Supply Large Commercial Quantity of Methylamphetamine, for which a sentence of four years and four months imprisonment with a non-parole period of two years and eight months commencing on 2 July 2002 was imposed; a charge of Goods In Custody of the sum of $400,000 in cash, for which there was imposed six months imprisonment commencing on 2 July 2002, to be served concurrently; and a charge of Possession Of 12 grams of Cannabis, a sentence to the rising of the Court.
The Supply Large Commercial Quantity Of A Prohibited Drug offence carries a maximum penalty of imprisonment for life and/or a fine of $550,000. The Goods in Custody offence carries a maximum penalty of six months and a fine of $110. The Possess Prohibited Drug offence has a maximum penalty of two years and a fine of $2,200.

The two summary offences were brought before the sentencing Court pursuant to the Criminal Procedure Act 1986. Under s168(3) of that Act, it is provided that in sentencing for related offences the Court has the same functions, restrictions and procedures of the Local Court. This is not the same procedure as under a Form 1. These are not what sometimes are called “backup” offences, but they are related offences and are sentenced separately. In these cases, both sentences have been served and are effectively not before the Court. Counsel for the respondent, who appeared as Counsel at the sentencing proceedings, had asked that the total criminality for the three offences be taken into account on the methylamphetamine offence.

The respondent is now a thirty five year old, single, UK national. He arrived in Sydney on 30 April 2002 and left a few weeks afterwards to visit Asia for two weeks. He returned to Sydney on 15 June 2002. On 26 June 2002 he travelled to Perth, returning to Sydney the next day, where he remained until his arrest on 2 July 2002, from which time he has remained permanently…

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.

Continue reading R v Emanuel

Details

AGLC: R v Emanuel [2004] NSWCCA 267
Case: [2004] NSWCCA 267
Decision Date: 17 August 2004

CaseChat Overview and Summary

In the case of R v Emanuel, the offender, Emanuel, was appealing against the sentence imposed by the court. The Crown had appealed on the basis that the sentence did not reflect the gravity of the offence. The offender was involved in a large scale drug trafficking operation, acting as a branch manager and overseeing the distribution and sale of drugs in Australia. He was responsible for collecting money from various distributors and remitting it to his superiors in the United Kingdom. The offender's role was significant, and he was knowledgeable and skilful, with a good rapport with his supervisors. The offender had no previous convictions and evidence of otherwise good character, apart from his gambling and involvement with drugs in Australia.

The legal issues the court was required to decide were whether the sentence imposed by the court was manifestly inadequate and whether it did not reflect the gravity of the offence. The court had to consider the nature and circumstances of the offence, the offender's role in the drug trafficking operation, and the need for general deterrence. The court also had to consider the offender's background, including his otherwise good character and his involvement in gambling activities.

The court found that the sentence imposed by the court was manifestly inadequate and did not reflect the gravity of the offence. The court found that the offender's role in the drug trafficking operation was significant and that he was knowledgeable and skilful. The court also found that the need for general deterrence was high, given the large scale of the drug trafficking operation. The court considered the offender's background, including his otherwise good character and his involvement in gambling activities, but found that these factors did not outweigh the seriousness of the offence. The court increased the sentence to reflect the gravity of the offence.

The final orders of the court were that the appeal be allowed, the sentence be set aside, and the offender be re-sentenced to a term of imprisonment with a non-parole period of 15 years. The court found that this sentence reflected the gravity of the offence and was appropriate in the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

The Facts The offender arrived in Australia on 30 April 2002, travelled to Thailand on 30 May 2002 and returned to Sydney on 15 June 2002. Whilst in Sydney the offender assisted persons in the United Kingdom who had drugs in Sydney available for supply. The offender collected money ("invoices"), the proceeds of sale of approximately eight kilograms of methylamphetamine. The offender liaised with his United Kingdom connections about the status of pending sales and about problems relating to police investigations. He made many telephone calls to his superiors in the United Kingdom reporting on the position in New South Wales. He also received calls from his superiors in the United Kingdom. The offender's superiors arranged for other operatives to pass moneys they had collected onto the offender. On 2 July 2002 the offender collected a blue bag at Bondi and took it back to his hotel. It contained $398,700 in cash. Also found in the offender's hotel room was $10,000 in cash in a black bag. The offender had $681.05 in cash on him. During the search a small amount of cannabis was located. The offender was arrested very shortly after he left his hotel room. As part of his duties the offender travelled to Perth on 26 June 2002. Whilst in Perth he met Mr Wright, who was minding some drugs for some associates. He took the offender to the room where he (Wright) was keeping the drugs. Whilst there the offender inspected the drugs. There were numerous telephone discussions between the offender and his superiors in the United Kingdom regarding the drugs in Perth. On 2 July 2002 Wright was arrested with 18 kilograms of amphetamine. A further $23,000 in cash was located. The offender's role was a major one. He was aptly described as the eyes and ears of London. He could be correctly classified as a branch manager. It is difficult to say exactly where he fell in the drug hierarchy but the offender's role was a senior one. He was responsible for collecting the money from a number of distributors and causing it to be remitted to his superiors and generally supervising the distribution and sale of the drugs in Sydney and elsewhere in Australia. The taped conversations establish that the offender's role was far reaching and that he was knowledgeable and skilful. He had a good rapport with his supervisors and appears to have been trusted by them. The offender could not fail to have realised that he was involved in a large scale drug trafficking operation. The offender was born in England on 29 August 1968. He left school at age 15. For many years he was a good and responsible worker remaining with the one company, an office furniture company, from about 1985 to 1999, rising to the position of installation manager. Although he had been interested in gambling in previous years, in about 1999 he became heavily involved in gambling activities and was betting full time. It appeared that he was forced to sell his home in 2002 to help repay a significant gambling debt. The offender had no previous convictions and there was evidence of "otherwise good character", that is, apart from his gambling and involvement with drugs in Australia. Two witnesses gave evidence of the offender's good character. There were also written testimonials which strongly supported him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOWD J

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Ratio Decidendi

Legal Principle Established

Established by: DOWD J

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