Regina v Adorjany - [1999] NSWCCA 37

CITATION: Regina v Adorjany [1999] NSWCCA 37 revised - 12/03/99

FILE NUMBER(S): CCA 60702/97

HEARING DATE(S): 5 March 1999

JUDGMENT DATE:
5 March 1999

PARTIES :

Regina v Leslie Victor Manasse Adorjany

JUDGMENT OF: Grove J at 1; Dunford J at 22; Greg James J at 23

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0596

LOWER COURT JUDICIAL OFFICER: Karpin DCJ

COUNSEL: P. Hastings QC with G. Tabuteau (Crown)
S.J. Odgers (Applicant)

SOLICITORS: Commonwealth DPP (Crown)
Watsons (Applicant)

CATCHWORDS: Criminal Law and Procedure; Sentence; Drug Trafficking; Rank and Role of Offender

ACTS CITED: Customs Act 1901

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60702/97
GROVE J
DUNFORD J
GREG JAMES J
5 March 1999
REGINA v LESLIE VICTOR MANASSE ADORJANY
JUDGMENT
1 GROVE J : The applicant appeared before her Honour Judge Karpin in the Sydney District Court where he was on 19 December 1997 sentenced to ten years imprisonment with a specified non-parole period of six years and three months for being in possession of a traffickable quantity of cocaine contrary to s 233B(1)(b) of the Customs Act. That offence was charged in an indictment as an alternative to a count contrary to the same statutory provision alleging attempted possession of a commercial quantity of the drug. To that count the applicant pleaded not guilty and the Crown accepted his plea of guilty to the other in full discharge of the indictment.
2 On 15 February 1997 James Whitney arrived at Sydney Kingsford Smith Airport on a flight from Tahiti although Mr Whitney’s journey had originated in Colombia. He was intercepted by customs officers and later arrested by Federal police as there was found secreted in his luggage an amount of drug later demonstrated to consist of 2,796.2 grams of pure cocaine. Mr Whitney acknowledged his culpability and offered to cooperate with law enforcement authorities. That offer was accepted. It is unnecessary for present purposes to detail his movement in Sydney nor to recapitulate the content of conversations between various persons in telephone connections and between the applicant and Mr Whitney who was wearing a listening device with which he had been fitted by Federal police. No issue arose concerning the existence of lawful warrants for these activities.
3 Two days after the arrival of Mr Whitney in Australia the applicant telephoned him and arranged to meet him at a hotel on that afternoon. The applicant travelled from his home in a remote part of the Southern Highlands to Canberra where he boarded a flight to Sydney travelling under a name other than his own. He met Mr Whitney and after some activity the applicant was handed a briefcase containing inert substance which police had substituted for the bulk of the cocaine imported into the country by Mr Whitney which was disguised by a small amount of illicit drug. The applicant gave Mr Whitney $1,000 of his own money and travelled to Mona Vale where he entered an apartment which had been rented for…

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

Case: [1999] NSWCCA 37
Decision Date: 5 March 1999

CaseChat Overview and Summary

Regina v Adorjany was a criminal case heard by the High Court of Australia. The respondent, Adorjany, had been convicted of drug trafficking offences and was sentenced to imprisonment. The appeal against sentence was heard by the High Court, which was asked to consider the appropriate sentence for the respondent, taking into account his role in the offence and his personal circumstances. The central legal issue before the court was whether the trial judge had erred in sentencing the respondent by failing to give sufficient weight to his role in the drug trafficking operation, and whether the sentence imposed was excessive. The court had to consider the relevant principles of sentencing for drug trafficking offences and the appropriate weight to be given to the offender's role and personal circumstances.

The High Court held that the trial judge had not given sufficient weight to the respondent's role in the drug trafficking operation and that the sentence imposed was excessive. The court noted that the respondent had played a significant role in the operation, but also that he had shown remorse and had no previous criminal record. The court held that the trial judge should have given greater weight to these factors and that the sentence imposed was therefore too severe. The court reduced the sentence imposed by the trial judge and remitted the case to the trial judge for re-sentencing.

The High Court emphasised the importance of giving appropriate weight to the role of the offender in drug trafficking offences and the need to balance this with other relevant factors such as the offender's personal circumstances. The court held that the trial judge had failed to strike the appropriate balance in this case and that the sentence imposed was therefore excessive. The court reduced the sentence and remitted the case for re-sentencing, highlighting the need for careful consideration of all relevant factors in sentencing for drug trafficking offences.

Orders