R v Schmakowski - [2001] NSWCCA 395

CITATION: R v Schmakowski [2001] NSWCCA 395

FILE NUMBER(S): CCA 60181/00

HEARING DATE(S): 28 September 2001

JUDGMENT DATE:
28 September 2001

PARTIES :

Regina
Reinhard Schmakowski

JUDGMENT OF: Heydon JA at 1; Wood CJ at CL at 2; Carruthers AJ at 33

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0465

LOWER COURT JUDICIAL
OFFICER : McGuire DCJ

COUNSEL : Crown: M. Allnutt
Applicant: P.Byrne SC

SOLICITORS: C'wealth DPP
D J Humprheys

CATCHWORDS: CRIMINAL LAW - appeals - appeal against sentence - importation of trafficable quantity of ecstasy - whether sentence manifestly excessive - whether failure to take into account utilitarian value of plea, assistance to authorities and contrition - whether starting point of sentence too high - consideration of objective and subjective circumstances - no error of law - appeal dismissed.

CASES CITED:
Customs Act 1901 s 233B(1)(b)

DECISION: Leave to appeal granted; Appeal dismissed

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60328/01

HEYDON JA

WOOD CJ AT CL

CARRUTHERS AJ

REGINA v REINHARD SCHMAKOWSKI

JUDGMENT

1 HEYDON JA: I ask Wood CJ at CL to give the first judgment.

2 WOOD CJ at CL: On 24 March 2000 the applicant was sentenced by his Honour Judge Maguire in the District Court for an offence of importing a trafficable quantity of MDMA or Ecstasy, contrary to s 233B(1)(b) of the Customs Act 1901. The sentence imposed was one of eight years with a non-parole period of four years and nine months.

3 The pure quantity of the drugs involved was 410 grams, that is 90 grams less than the commercial quantity applicable for this substance. The wholesale value of the importation was assessed to be in the order of $240,000. The applicant now seeks leave to appeal against the sentence.

4 The applicant was a German citizen, aged forty-three years, with no prior convictions, who was a resident in Indonesia. He was contacted by telephone and offered $5000 Australian to transport drugs to Australia. Upon agreeing to this arrangement an airline ticket was provided for him to fly to Amsterdam. After arriving there he was given a body pack fitted with three compartments, each of which held a plastic clip-sealed bag containing the drugs in tablet form. He left Amsterdam for Sydney on 21 May 1999 and arrived at Sydney Kingsford-Smith Airport the following day. After being selected for a frisk search, the body pack was found by members of the Australian Customs Service.

5 During a subsequent interview he disclosed that arrangements had been made for him to book into either the Hilton Hotel or the Nikko Hotel, where he was to await instructions for delivery of the drugs. Enquiry of these hotels found that a reservation had been made for him at the Nikko Hotel. Thereafter, under the supervision of the AFP, arrangements were made for him to assist in a controlled delivery.

6 Over the ensuing three days he remained at the hotel and assisted police in…

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 Schmakowski

Details

AGLC: R v Schmakowski [2001] NSWCCA 395
Case: [2001] NSWCCA 395
Decision Date: 28 September 2001

CaseChat Overview and Summary

In the case of R v Schmakowski, the appellant was convicted for importing a trafficable quantity of ecstasy and was sentenced to imprisonment. The appeal against the sentence was heard by the court, focusing on whether the sentence was manifestly excessive and if the court failed to consider the utilitarian value of the plea, assistance to authorities, and the appellant's contrition. Additionally, the appeal questioned whether the starting point of the sentence was too high and whether the court adequately considered both objective and subjective circumstances.

The legal issues that the court had to address were the adequacy of the sentence, the court's failure to account for the utilitarian value of the appellant's plea, assistance to authorities, and contrition, and whether the starting point for the sentence was appropriate. The court also needed to determine if there was an error of law in the sentencing process.

The court found that there was no error of law in the sentencing. It held that the sentence was not manifestly excessive and that the court had appropriately considered the utilitarian value of the plea, assistance to authorities, and the appellant's contrition. The court also found that the starting point for the sentence was not too high and that the objective and subjective circumstances were adequately taken into account. Consequently, the appeal was dismissed.

Orders