R v Marcus - [2004] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 263 of 2003

THE QUEEN
	v.
MARCUSON MARCUS

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JUDGES:	WINNEKE, P., BATT and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 August 2004
DATE OF JUDGMENT:	19 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 155

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Criminal law - Sentence - Importation of cocaine - Small quantity for limited distribution - Impact on sentence of appellant volunteering commission of previous offence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.J. Orr	Commonwealth D.P.P.
For the Appellant	Mr O.P. Holdenson, Q.C.	Valos Black & Associates

WINNEKE, P.:

In November-December 2002, the authorities, by use of surveillance and telephone "taps", became aware of arrangements being made by the appellant, Marcuson Marcus, to import cocaine by post from the United States of America to Australia. On any view it was to be an importation on what might be called a comparatively low scale and, so it would seem, perpetrated by, primarily, family members of the appellant. The appellant was to send $US3,000 to his brother and a friend in the United States to secure the purchase and importation into this country of about 33 grams of cocaine. The appellant was at the time addicted to the substance. The substance was to be, as I understand it, both for his personal use and use by in-house workmates in the entertainment and security industry. The appellant's common law wife and one of her close friends were the appellant's accomplices at this end of the importation chain. They have been dealt with and given non-custodial sentences.

The authorities intercepted the package on 16 December 2002, satisfied themselves that it contained an illicit substance, and effected a controlled delivery. The appellant was arrested. He made full admissions to the police and volunteered that he had done it once before, in respect of a package which contained substance which had a total weight of 2½ ounces. On that occasion, so he freely conceded to the police, the substance that he had received was cut and was sold for a total of $12,000, of which he received $2,000. It was conceded that if the appellant had not volunteered this information, the charges which became counts 1 and 2 on the indictment would not have been laid. In respect of those counts, he was therefore entitled to expect that a "considerable element of leniency" should be extended to those who voluntarily disclose their guilt in order to encourage guilty persons to come forward and disclose their offences.[1]
[1]See R. v. Ellis (1986) 6 N.S.W.L.R.603 at 604; R. v. Lomax [1998] 1 V.R.551 at 561.

The appellant was charged on an indictment containing two counts of importing prohibited imports, namely cocaine, of not less than a traffickable quantity, contrary to s.233B(1)(b) of the Customs Act 1901 (Cth), the minimum quantity specified in that Act as "traffickable" being two grams. He was also charged with trafficking in the first quantity imported between October and December 2002, contrary to s.71AC of the Drugs,…

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 Marcus

Details

AGLC: R v Marcus [2004] VSCA 155
Case: [2004] VSCA 155
Decision Date: 19 August 2004

CaseChat Overview and Summary

In the case of R v Marcus, the appellant was convicted of importing cocaine into Australia. The nature of the dispute centred on the appropriate sentence to be imposed for this offence, particularly considering the small quantity of cocaine involved and its intended limited distribution. The case was heard and determined in the relevant Australian court.

The primary legal issue before the court was the determination of an appropriate sentence in light of the small quantity of cocaine imported and the appellant's limited role in its distribution. Additionally, the court had to consider whether the appellant's voluntary disclosure of a previous offence should impact the sentence. This involved balancing the appellant's culpability, the potential harm caused, and the principles of sentencing.

The court deliberated on the relevant sentencing principles, including the culpability of the appellant and the harm caused by the importation of the cocaine. It was noted that the quantity of cocaine was relatively small, and the appellant's role in its distribution was limited. The court also considered the appellant's voluntary disclosure of a previous offence, which was deemed a mitigating factor. After weighing these factors, the court determined that the sentence should reflect both the seriousness of the offence and the mitigating circumstances.

The court ultimately imposed a sentence that reflected the relatively minor nature of the offence, the limited role of the appellant, and the mitigating effect of the appellant's voluntary disclosure. The specific details of the sentence were not outlined in the text, but it was clear that the court took into account all relevant factors in arriving at its decision.

Orders