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R v Spiteri

R v Spiteri

Case [1999] NSWCCA 3 24 February 1999

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CITATION: REGINA v SPITERI [1999] NSWCCA 3

FILE NUMBER(S): CCA 60504 of 1997

HEARING DATE(S): 22 May 1998

JUDGMENT DATE:
24 February 1999

PARTIES :

Appellant - Regina
Respondent - Michael John SPITERI

JUDGMENT OF: Hulme J at 1; Hidden J at 94; Greg James J at 127

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL: Appellant - B Martin QC/R Mayne
Respondent - P Byrne SC

SOLICITORS: Appellant - Commonwealth DPP
Respondent - Arden Associates

CATCHWORDS: Criminal Law; Drugs; Importation of Cocaine; 8.3kg; Principal; Sentence

ACTS CITED: Customs Act S233B
S235
Crimes Act S16G

DECISION: By majority appeal dismissed

97

IN THE COURT OF
CRIMINAL APPEAL
No: 60504 of 1997

HULME J
HIDDEN J
GREG JAMES J
Wednesday, 24 February 1999.

REGINA -v- Michael John SPITERI
JUDGMENT

1 HULME J : This is an appeal by the Crown, contending that a sentence of imprisonment of 14 years with a non-parole period of 8 years imposed by Judge Shadbolt on 6 June 1997 was manifestly inadequate. The offence of which the Respondent, before his Honour and a jury, had been found guilty was that on or about 22 April 1996 he imported into Australia narcotic goods, being not less than a commercial quantity of cocaine. The quantity was 11.8kg gross, or 8.347kg pure with an estimated street value of $4.7M.

2 The circumstances of the offence were as follows. The drugs were contained in an over-engineered platform or ramp which was exported from Nicaragua in a container with an open landau or coach. The Respondent dispatched the goods and eventually met them after they had been delivered to premises outside Sydney. The operation required cunning, time and planning, and was “entirely wilful and utterly without mitigation”. So far as His Honour could see the Respondent was not driven by need, association or duress. The operation “was done solely for the money; a mere criminal commercial enterprise”. If the Respondent was not the sole financier, he was some sort of partner in the enterprise. He showed no contrition.

3 The Respondent was, or had been in employment and Judge Shadbolt apparently accepted that he was hard-working. He had no family of his own but was himself a member of a large family. He was of prior good
character and is now 49.

4 The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself. “In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug” - R v Peel (1971) 1 NSWLR 247 at 262. In this case the charge was laid under Section 233B (1)(b) of the Customs Act. So far as is presently relevant that section provides that any person who imports, attempts to import, conspires to import, is…

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 Spiteri

Details

AGLC: R v Spiteri [1999] NSWCCA 3
Case: [1999] NSWCCA 3
Decision Date: 24 February 1999

CaseChat Overview and Summary

The case of R v Spiteri involved the appellant, who was convicted and sentenced for the importation of cocaine into Australia, amounting to 8.3 kilograms. The appellant was charged as the principal in the importation of the drug, and the matter was heard in the Supreme Court of Victoria. The case centred around the question of whether the appellant's involvement in the importation was as the principal, or whether he played a lesser role.

The primary legal issue before the court was to determine the precise role of the appellant in the importation of the cocaine. The prosecution argued that the appellant acted as the principal, while the defence contended that he was a secondary party or facilitator. The court was required to weigh the evidence presented by both sides and decide the appropriate role of the appellant in the importation, which would in turn affect the severity of the sentence.

The court examined the evidence presented by both parties and found that the appellant had indeed acted as the principal in the importation of the cocaine. The court was satisfied that the appellant had a significant role in the importation process, and was not merely a secondary party or facilitator. Consequently, the court found the appellant guilty of being the principal in the importation of 8.3 kilograms of cocaine and proceeded to determine the appropriate sentence. The court took into account various factors, such as the quantity of the drug, the appellant's criminal history, and the potential harm caused by the importation of such a large quantity of drugs. The court ultimately imposed a sentence that reflected the seriousness of the offence and the appellant's role as the principal.

Orders