R v Solomons

[2000] NSWCCA 215

Reported Decision: 114 A Crim R 89

New South Wales

Court of Criminal Appeal

CITATION:	R v Solomons [2000] NSWCCA 215
FILE NUMBER(S):	CCA 60089/99
HEARING DATE(S):	18 May 2000
JUDGMENT DATE:	13 June 2000
PARTIES :	Regina v Gregory John Solomons
JUDGMENT OF:	Mason P at 1; Heydon JA at 2; Smart AJ at 33

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0237
LOWER COURT JUDICIAL OFFICER :	Davidson DCJ

COUNSEL :	R Sutherland - Crown P Byrne SC - Applicant
SOLICITORS:	Commonwealth Director of Public Prosecutions - Crown John Bettens & Co - Applicant
CATCHWORDS:	Criminal law - sentencing - distinction between principal and courier - no error by trial judge in finding that the applicant was a principal in the importation of a prohibited substance contrary to Customs Act s 233B(1)(d) - sentence found not to be outside the proper range of primary judge's sentencing discretion - leave to appeal granted - appeal dismissed
LEGISLATION CITED:	Customs Act 1901 (Cth) Drugs Misuse and Trafficking Act 1985 (NSW) Prohibited Weapons Act 1989 (NSW)
CASES CITED:	R v Olbrich (1999) 73 ALJR 1550 R v Bourel (unreported, NSWCCA, 11 December 1998) R v Bigic [2000] NSWCCA 9 R v Wong and Leung [1999] NSWCCA 420 R v Dinic (1997) 149 ALR 488 R v Sultana (1994) 74 A Crim R 27 R v Bimahendali [1999] NSWCCA 409 R v Dizel (unreported, NSWCCA, 23 August 1996) R v Osborne (unreported, NSWCCA, 6 November 1997)
DECISION:	Grant leave to apeal against sentence; dismiss the appeal

IN THE COURT OF
CRIMINAL APPEAL

60089/99

MASON P
HEYDON JA
SMART AJ

Tuesday, 13 June 2000


REGINA v Gregory John SOLOMONS
JUDGMENT

1    MASON P: I agree with Heydon JA.

2    HEYDON JA: The applicant pleaded guilty to two counts of being knowingly concerned in the importation of prohibited imports contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The prohibited imports were of the drug commonly known as “Ecstasy”. The maximum penalty is 25 years imprisonment. He was sentenced by Judge Davidson QC to eight years imprisonment with a non-parole period of five years and six months. He was also sentenced to a fixed term of nine months in respect of a charge of supplying cannabis contrary to the Drugs Misuse and Trafficking Act 1985 (NSW) ss 25 and 29. He does not appeal against that sentence. He asked that there be taken into consideration offences of possessing a flick knife and a knuckle duster contrary to the Prohibited Weapons Act 1989 (NSW), s 5(1)(a).

3    The background facts were described thus by the sentencing judge:

“On 11 November 1997 at Melbourne two packages, one addressed to a person at 4 Opal Place and another at 44 Daisy Street were intercepted in Melbourne. The preliminary investigations revealed a quantity of Ecstasy tablets, and there was a controlled delivery in respect of each of these packages arranged. One of them contained a gross quantity of 286 grams of the substance Ecstasy and the other 286.3 grams, making a total of 572.3 grams. The quantity of pure Ecstasy on analysis was determined at 146.5 grams.
Officers of the Australian Federal Police observed the delivery of the package to each of the two addresses. The package delivered to 4 Opal Place was delivered to one Stacey Carter, who I am told has not been charged, and that at 44 Daisy Street to one Rosa Aravina, who was charged but together with another person, Cecil Solomons, was acquitted.
The packages were delivered into your possession by a route which is unnecessary for me to trace in the statement of facts and your movements were further observed to take you to a place called Rent-a-Space Storage at Girraween. Subsequently, search warrants were obtained and executed in respect of those storage premises and also, as I understand it, at your own premises in Parramatta. At the Rent-a-Space Storage units there was found the controlled delivery of which I have spoken relating to Opal Place in one unit and in another there was found the controlled delivery to the other address. There was also found in a storage unit, number 258, to which you had access and which was registered in your name, $115,000 in cash, shopping bags containing cannabis, which is the subject matter of course of the State charge to which you have pleaded guilty, a flick knife and a knuckle duster, which are of course the subject matter of the matters which you have asked that I take into consideration, and there were also of course the material linked to the controlled delivery.
The search at your premises in Hurley Street, Parramatta, revealed a number of magazines relating to the cultivation of cannabis, a set of electronic scales, a Vac Seal heat-sealing machine, hydroponic equipment, including lamps, lights and fertiliser and other materials. The total quantity of cannabis located in the storage unit was 3,209 grams in the form of cannabis leaf. The evidence discloses that the quantity of Ecstasy recovered, if sold for $50 per tablet, would have brought $95,350 on the market and the quantity of cannabis if sold at $40 per gram $128,360.”

4    The quantity involved, 146.5 grams of pure Ecstasy, was well in excess of a trafficable quantity (0.5 gram).

The applicant’s arguments

5    The applicant contends that the sentence for Ecstasy importation is excessive on three grounds.

6    The first ground related to the following passage in the remarks of the sentencing judge:

“I am persuaded beyond reasonable doubt that your role was that of a principal in the sense that you were engaged in the ultimate supply to members of the public, if this matter had progressed that far, for profit.”

The complaint was that the sentencing judge erred in describing the applicant as a principal engaged in the ultimate supply of Ecstasy to the public for profit. It was argued that there was no, or inadequate, material in the agreed facts to establish that beyond reasonable doubt. The applicant submitted:

“The finding by the learned judge that the applicant was a principal and further that he was engaged in the supply of Ecstasy to the public for profit seems to run counter to the observations made in the joint judgment of the majority of the High Court in Olbrich regarding the extent to which it is permissible to take into account other conduct of an offender which may follow an act of importation but which may represent criminality of a different kind which, if it is to be taken into account for the purpose of sentence, should be the subject of separate and different charges.”

That is a reference to R v Olbrich (1999) 73 ALJR 1550 at 1553 para [18] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. That case was argued and decided well after the sentence hearing in this case. Those majority justices said:

“inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation. The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged.”

It is to be noted that the justices said the inquiry will not always be relevant. The question is whether the sentence was a sentence for the crime charged or a sentence for other crimes not charged.

7    The majority justices also said at 1554, para [19], that while distinguishing between couriers and principals may in some cases be a useful shorthand description of the different kinds of participation in a single enterprise, it will not always be so; and characterising the offender as a “courier” or as a “principal” must not obscure the assessment of what the offender did.

8    In R v Olbrich at 1554 para [22] the majority justices said:

“It would have been wrong for the primary judge to sentence the respondent on the basis that he was the mastermind (or even an important member) of some larger criminal enterprise. But the primary judge did not do so. He sentenced the respondent as if the respondent had told the police and the court nothing about the circumstances of the event at all.”

9    In oral argument counsel for the applicant submitted that the period for which the applicant was under observation was slightly less than twelve hours - from 2.23pm on 14 November 1997 to 1.45am on 15 November 1997. He submitted that nothing was done by the applicant to indicate that he was a “principal”. He submitted that the evidence was equally consistent with him being a “minder of the drug” or “warehouseman” - someone in charge of keeping the drugs in a safe place.

10    It was contended that the sentencing judge’s characterisation of the appellant as a principal stemmed from a Crown submission recorded thus:

“The Crown Prosecutor submitted that the prisoner should be viewed as a principal dealing in both substances not a mere courier.”

11    The applicant also referred to para [57] of Kirby J’s reasons for judgment:

“However, the failure of the respondent to prove that he was a ‘courier’ or ‘mere courier’ did not warrant the conclusion by the sentencing judge that he was therefore a ‘principal’. To so treat the appellant would be to treat, as proved, circumstances of serious aggravation of his offence. The onus of proving such circumstances of aggravation rested on the Crown. The standard of proof which it bore was proof beyond reasonable doubt.”

He then referred to parts of paras [60] and [61]:

“In the context of the authorities in which the legal dichotomy of ‘courier’ and ‘principal’ are used, the latter classification has a definite connotation as a matter of aggravation in sentencing drug importers. It means a person involved in an organisation of drug importation and distribution with significant responsibilities within a drug supplying or importing chain. A courier, on the other hand, is one ‘involved in a one-off operation’ who falls to be treated within a ‘recognised pattern’ and punished accordingly. …
[If] the Crown wishes to have an accused person sentenced for circumstances of aggravation which constitute another and different offence, it is obliged to charge and prove that separate offence. Similarly, for a single offence, where the Crown asserts that the case constitutes an aggravated example, it must prove beyond reasonable doubt the facts that demand that conclusion.”

12    Counsel for the applicant concluded:

“The finding here that this applicant was a principal and then the description of that finding meaning he was engaged in the ultimate supply to members of the public for profit effectively amounted [not to] a finding he was the mastermind but at least an important member and that is the way in which the term ‘principal’ has been traditionally used in cases of this kind and that is why the Crown sought the finding.”

13    The second ground advanced by the applicant merged into the first. The applicant submitted that by reason of the sentencing judge having dealt with the applicant as a principal, he had aggravated the penalty beyond what was appropriate. He referred to the cases collected in an Appendix to the reasons for judgment of Hulme J in R v Bourel (unreported, NSWCCA, 11 December 1998). Of eight of those cases he submitted:

“In all of those cases and in the case of … Bourel himself, the quantity of ecstasy involved is greater than that involved in the applicant’s case. However, in each one of those cases the sentence imposed on the offender is less than that imposed on the applicant.”

He referred to two other cases involving sentences slightly higher than those imposed on the applicant, but where the quantity was much greater. He also referred to R v Bigic [2000] NSWCCA 9. He submitted:

“That case involved a person who was actively engaged in the organisation of couriers to bring large quantities of ecstasy into Australia. There were two separate acts of importation involving a quantity of drugs said to have a street value estimated between $500,000 and slightly more than $1,000,000. The case therefore involved an offender who was actively engaged in the corruption of others. He received a sentence of 9 years. It is submitted that when the relevant facts for the purpose of sentence of the two cases are compared, then the sentence imposed on this applicant appears excessive compared to that imposed in Bigic .”

He also submitted that an eight year sentence was excessive having regard to the guideline judgment in R v Wong and Leung [1999] NSWCCA 420, “in a case where the quantity of drugs involved is in the lower trafficable range and the drug in question is ecstasy”.

14    Finally, counsel for the applicant drew attention to various items of evidence which:

“established that the applicant was a person who, notwithstanding the seriousness of his offences, had personal qualities which were likely to enhance his prospects of ultimate rehabilitation. He had also expressed significant contrition for his conduct.”
The applicant’s first argument considered

15    I would reject the applicant’s first argument. Even if the applicant could not be described as a “principal” his conduct was such that the sentence imposed was not too severe. But it does not seem erroneous to describe him in the manner the sentencing judge did.

16    So far as the sentencing judge was responding to the Crown Prosecutor’s submission, that submission only drew a distinction between a “mere courier” and the prisoner: the submission evidently characterised a person engaged in any level of activity above that of “mere courier” as a “principal”.

17    The sentencing judge used the word “principal” in a somewhat different sense. He described the applicant not as “the” principal”, but as “a” principal. He used that expression in a particular sense - a person “engaged in the ultimate supply to members of the public … for profit”. It seems that the sentencing judge, in describing the applicant as “a” principal, intended to treat him as more than “a middleman” which, as the sentencing judge pointed out, was how the accused was described in R v Dinic (1997) 149 ALR 488 at 490. In that case Dinic accepted the drugs from the addressee of the parcel, conceded he had had dealings with the forwarder of the parcel and was heard to complain of the low quantity of drugs in the parcel, but there was apparently no evidence comparable to that which the police found in the storage unit, cash box and residence of the applicant.

18    It cannot be said here that the sentencing judge sentenced the applicant on the basis that he was the mastermind, or an important member, of a larger criminal enterprise. But equally it cannot be said that the evidence showed the applicant to be only a “courier” in the sense of being a messenger or minion or runner, and indeed this was conceded. R v Olbrich warns of the need to assess what the accused has done and who the accused was and of the need to ensure that this assessment is not obscured by characterisation of the offender as “courier” or “principal”. In my opinion, the sentencing judge did not, by referring to the applicant as a principal, obscure his assessment of the circumstances. The key circumstances revealed by Exhibit A are the driving by the applicant of his vehicle to 4 Opal Place, Greystanes; his unexplained access to the next door premises at 6 Opal Place (which was not his residence); the placing of the package obtained from 4 Opal Place into his car; his driving to a rendezvous with the recipient of the second package addressed to 44 Daisy Street, Greystanes; his taking possession of a package from that person; placement by him of the substitute tablets from both consignments and the packaging from Opal Place and its legitimate contents into a storage unit to which he held the key; his nexus with the prohibited weapons (the flick knife and knuckle duster) in the storage unit rented in his own name, it having been rented to him for nearly four months; his nexus with the address 6 Opal Place; the large quantity of cash - $115,000 - in a cash box in the storage unit to which he had the key; his possession at his residence of a substantial quantity of cannabis deemed to be for the purpose of supply, together with numerous items relating to the cultivation and supply of that drug and a butterfly knife; and the location in his storage unit of a package containing a child’s toy previously received and addressed in the same name to 4 Opal Place, Greystanes. These circumstances, unexplained, point to the conclusion that the applicant was occupying a relatively senior role in the operation which had brought the Ecstasy from overseas on its journey to the Australian consuming public (the applicant’s counsel accepted that the Ecstasy was not for consumption by the applicant himself). Counsel for the applicant did not submit that any of these circumstances were irrelevant or that the sentencing judge ought not to have regard to them. They were characteristic of a person who was not only more than a mere courier, but also more than a mere minder or warehouseman. A mere minder or warehouseman, for example, would not possess weapons which would be useful to a dealer in drugs. See R v Sultana (1994) 74 A Crim R 27 at 29-30 and 37. The applicant did not offer either to the police or the court any material which might explain and render innocent, or relatively innocent, any of these circumstances. The sentencing judge’s characterisation of the applicant’s conduct and position was not unsound. The fact that the material which he relied on in seeking to identify the role played by the applicant also tended to indicate that the applicant had committed or intended to commit other crimes did not mean that the sentencing judge was punishing the applicant for those crimes.

19    The applicant submitted that there was no evidence that the cash ($115,000) was owned by the applicant, and that the applicant could equally well be minding it for some other person. That and the other circumstances, however, point against the applicant being a mere runner or courier or minder or warehouseman and point towards him being involved for financial gain significantly greater than that which might apply to a runner or courier or minder or warehouseman.

20    The applicant’s reliance on Kirby J’s distinction between “couriers” (persons involved in a one-off operation) and “principals” (persons involved in an organisation of drug importation and distribution with significant responsibilities within a drug supplying or importing chain) does not assist the applicant. The materials and documents with which he was connected pointed to his having “significant responsibilities within a drug supplying or importing chain”, even if they did not point to him being a mastermind.

21    It could be inferred from all the circumstances that the applicant was engaged in professional activity involving a distancing of himself from persons who first received the drugs from abroad, and that if he was not at the most senior level of the enterprise in which he was working, he was not merely an agent acting on behalf of another as a minder or warehouseman.

22    Accordingly, the applicant’s first argument fails.

The applicant’s second argument considered

23    There are difficulties in applying R v Wong and Leung in the present case. One is that that case deals with heroin and cocaine, not Ecstasy. The sentence indicated for dealing in 146.5 grams of heroin or cocaine is 5-7 years. Further, the indicated sentence “is intended to apply to couriers and persons low in the hierarchy of the importing organisation”: para [142]. In oral argument counsel for the applicant accepted that “the evidence is surely consistent with the conclusion that he was something more than a courier”. The evidence also pointed against him being low in the hierarchy: he was above Stacey Carter and Rose Aravina. As to the difference between Ecstasy and heroin/cocaine, the Crown submitted:

“It is noted that MDMA (ecstasy) has a defined ‘ trafficable quantity ’ pursuant to Schedule 6 to the Customs Act 1901 of .5 of a gram. The requisite quantity of heroin classified as a ‘trafficable’ quantity is 2 grams.
The commercial quantity of MDMA (ecstasy), being the level at which the maximum sentence is increased from 25 years to life imprisonment, is 500 grams. …
As observed above, the trafficable quantity for [Ecstasy] is .5 grams, or one-quarter of the amount of heroin required to invoke a maximum penalty of 25 years. In relation to the quantity of drug at which the legislature has increased the available maximum penalty from 25 years to life imprisonment (i.e. the ‘ commercial ’ quantity), the amount of ecstasy required is one-third of the amount of heroin specified as ‘ commercial ’ (500 grams for ecstasy; 1.5 kilograms for heroin).”

24    In R v Bimahendali [1999] NSWCCA 409 at para [17], Wood CJ at CL said:

“Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ.”

25    The potential sentence structures created by the definitions of trafficable quantity and commercial quantity for Ecstasy and heroin point strongly against treating R v Wong and Leung as being directly applicable so as to lead to the conclusion that because 8 years for Ecstasy was greater than a range of 5-7 years for heroin/cocaine, the 8 year sentence was wrong. Indeed, the applicant submitted no more than that the table set out in R v Wong and Leung was something to be borne in mind in assessing the correctness of an 8 year sentence. In my judgment it has little useful role to play in this case.

26    So far as the applicant relied on R v Bigic, though it is true that the accused in that case was involved in the recruitment of others, he was treated as “a mid level participant”. In my judgment the present facts establish that the applicant was at least that.

27    The primary reliance of the applicant was on the contrast between the sentences in the cases analysed in R v Bourel and the present sentence. What counsel said about those cases appears to be correct, but one case listed in Hulme J’s Appendix not mentioned by him is R v Dizel (unreported, NSWCCA, 23 August 1996). The Court of Criminal Appeal there declined to interfere with a 10 year sentence on an applicant notwithstanding that the quantity of Ecstasy was only 40.9 grams and notwithstanding that the applicant was only a courier; he had been sentenced in 1989 to 6 years imprisonment for importing over a kilogram of cocaine in Japan. Of Bourel himself, Hulme J said:

“Also relevant to any judgment of the applicant’s criminality is his role in the importation … Judge Solomon found that the applicant was a financier, in part or in whole, of the importation of the drugs and that he was to meet a courier, one Stuyck, once Stuyck safely arrived in Australia with the drugs. Thus in terms of its objective features, the quantity involved and the applicant’s role, his offence fell no lower than about the middle of the range. There is a deal to be said for the view the applicant could have been described as a principal but I am content to proceed on the basis of the finding his Honour made.”

28    Though the present applicant is not shown to have been a financier, in other respects his role was similar. The Court of Criminal Appeal found that a 7 year sentence was not outside the proper range of Solomon DCJ’s sentencing discretion.

29    The Crown drew attention to R v Osborne (unreported, NSWCCA, 6 November 1997). In that case the Court of Criminal Appeal did not interfere with an 8 year sentence for importing 240 grams of Ecstasy. The accused carried the drugs into Australia but the sentencing judge said he was not “simply a bare courier” and “his position in the scale would run somewhere close to halfway”. Though the factual circumstances were different, the status of Osborne and the present applicant were not dissimilar. The sentencing judge relied on R v Osborne and it was not inappropriate to do so.

30    There are limits to the utility of minute comparative analysis. The analysis which the applicant has offered - of cases which inevitably display considerable factual variations - does not demonstrate that the 8 year sentence on him was beyond a proper sentencing range. In short, even if the sentencing judge erred in employing a distinction between principals and others, and even if the applicant is thought in no sense to be a principal, an 8 year sentence does not suggest, in the present circumstances, any sentencing error.

The applicant’s third argument considered

31    There is no reason to suppose that the favourable aspects of the applicant’s conduct referred to in his character evidence were not properly taken into account by the sentencing judge.

Orders

32    I propose the following orders:

1. Grant leave to appeal against sentence.

2. Dismiss the appeal.

33    SMART AJ: I agree with Heydon JA.

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