(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Lovell)
9 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
The appellant pleaded guilty to the offences of importing a commercial quantity of methamphetamine; importing a marketable quantity of pseudoephedrine; trafficking in a large commercial quantity of cannabis and possessing prescribed equipment. The appellant was sentenced to a total of 19 years and three months imprisonment with a non-parole period of 10 years and eight months.
The appellant appealed the sentence imposed on the basis that it was manifestly excessive in that:
1. the individual sentences were excessive; and
2. the Judge failed to consider properly the principle of totality when imposing the final sentence.
Discussion of principle of totality - discussion of principle of proportionality relating to expression "crushing".
Held Lovell J (Stanley and Parker JJ agreeing):
1. The sentence was not manifestly excessive.
2. The Judge correctly applied the principle of totality.
Court of Criminal Appeal: Stanley, Parker and Lovell JJ
STANLEY J:
I would dismiss the appeal. I agree with the reasons of Lovell J.
PARKER J:
I would dismiss the appeal. I agree with the reasons of Lovell J.
LOVELL J:
Introduction
The appellant had been a methamphetamine addict for many years. His addiction led to significant health issues. In 2005 he was diagnosed as suffering serious coronary artery disease. This was largely caused by his abuse of methamphetamine. The appellant was told by those medical practitioners treating him that he needed to cease his abuse of methamphetamine to avoid recurrent cardiovascular events. The appellant was unsuccessful in his attempts to cease using methamphetamine. In 2015 his cardiologist advised him “in no uncertain terms” that he was getting close to “the end of the road” unless he were to cease his amphetamine abuse.
The appellant’s response, on receipt of the poor prognosis from his cardiologist, was to involve himself in serious drug trafficking in an effort to provide financially for his family. On 1 December 2015 on returning from a trip to Indonesia the appellant was caught with 1,394 pseudoephedrine tablets at the Adelaide Airport. During the course of that trip the appellant had arranged the importation of 60 kg of “mixed methamphetamine”…
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.
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Details
AGLC
R v Scott [2017] SASCFC 96
Case
[2017] SASCFC 96
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentence imposed on the appellant, who was the sole director of a company importing tiles from Indonesia. The appellant was convicted of drug importation offences, specifically involving pseudoephedrine and methamphetamine. The dispute before the Court of Appeal, constituted by Stanley, Parker and Lovell JJ, was whether the sentence of 19 years and three months imprisonment, with a non-parole period of 10 years and eight months, was manifestly excessive.
The legal issues before the court were whether the sentencing judge erred in their assessment of the relevant factors, particularly in relation to the totality of the offending, and whether the final sentence imposed was demonstrably too severe. The court was required to consider the principles of sentencing for serious drug importation offences and determine if the judge's application of these principles to the specific circumstances of the appellant's conduct was lawful.
The court found no error in the sentencing judge's approach. It reasoned that the appellant's involvement in the importation of significant quantities of dangerous drugs, including the arrangement of the importation and the subsequent concealment of a portion of the drugs, warranted the sentence imposed. The judge had properly considered the gravity of the offences, the appellant's role, and the need for general deterrence. The court concluded that the sentence was not manifestly excessive, having regard to the scale of the drug importation and the appellant's active participation.
The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.
Orders
Orders of the court
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Background
Background to the litigation
On 11 November 2016 the appellant was sentenced, for all of the offending, to a sentence of 19 years and three months imprisonment with a non-parole period of 10 years and eight months. The appellant complains that the final sentence is manifestly excessive.Background The appellant was the sole director of Volcanrock Pty Ltd (Volcanrock). Volcanrock sold stone pavers and imported tiles from Indonesia. On 23 November 2015 the appellant travelled to Bali. Prior to leaving he communicated with an Indonesian shipping contractor. Whilst in Indonesia he communicated with others regarding the importation of drugs. The appellant arranged for a shipping container to be imported to Australia. The appellant returned to Adelaide on 1 December 2015. During the course of a baggage examination, Australian Border Force officers located two containers that contained a number of tablets. The tablets tested presumptively for pseudoephedrine. In total there were 1,394 tablets weighing a total of 609.1g. Analysis showed the tablets contain 16.7 per cent pure pseudoephedrine. Thus the total weight of pure pseudoephedrine was 101.7g. A marketable quantity of pseudoephedrine is 3.2g. Unsurprisingly the authorities placed the appellant under surveillance and this included monitoring the shipping container that he was importing from Indonesia. His use of the telephone was also monitored. On 23 December 2015 the container arrived at Fremantle, Western Australia and was intercepted by officers from the Australian Federal Police. Examination of the shipping container revealed a number of wooden crates most of which contained stone tiles and pavers. One crate however contained four cardboard boxes within which there were 60 individual packages of powder containing methamphetamine, each weighing approximately 1kg. The powder was analysed and found to contain 59.47kg of methamphetamine at 80.3 per cent purity. A commercial quantity of methamphetamine is 0.75kg. The methamphetamine was substituted with an inert substance by Australian Federal Police (AFP) officers and listening and tracking devices were also inserted in the container. The container was restored to its original state and allowed to be processed normally. On 7 January 2016 the shipping container was delivered to his business at Royal Park. The appellant unloaded the entire contents of the container into his warehouse including unpacking the four boxes containing the substituted substance. He was later seen to leave the warehouse carrying a box containing substituted drugs and a tracking device. The appellant went to a rubbish pile at the rear of the premises and concealed the box amongst an area of rubbish. He then left the premises. At about 6 pm on that day AFP and South Australia police officers executed search warrants on his premises at Royal Park as well as his home and another storage facility. On searching the rubbish pile located at the rear of the premises police located eight packages, weighing 8kg cumulatively, containing the substituted substance. The 8kg was later stated by the appellant to be his share of the shipment for arranging the importation. The remaining 52 packets were located in a wheelie bin within the appellant’s warehouse.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
No error has been demonstrated in the approach of the Judge.Conclusion The sentence imposed is not manifestly excessive. I would dismiss the appeal.