Regina v Laloum

[2000] NSWCCA 248

CITATION:	Regina v Laloum [2000] NSWCCA 248
FILE NUMBER(S):	CCA 60841/99
HEARING DATE(S):	07/07/00
JUDGMENT DATE:	7 July 2000
PARTIES :	Regina (Appellant) Laurent Bruno Laloum (Respondent)
JUDGMENT OF:	Fitzgerald JA at 1; Sperling J at 18; Whealy J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0441
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ

COUNSEL :	W G Roser (Crown) S Odgers (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Appellant) Hovan & Co (Respondent)
CATCHWORDS:	Crown Appeal against sentence - one count of importation of a commercial quantity of cannabis - sentence not manifestly inedequate
LEGISLATION CITED:	Customs Act 1901 (Cwth)
DECISION:	Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60841/99
DC 98/11/0441

FITZGERALD JA
SPERLING J
WHEALY J

FRIDAY 7 JULY 2000

REGINA v LALOUM

JUDGMENT

1 FITZGERALD JA: On 17 August 1999 the respondent was convicted after a trial in the Campbelltown District Court of an offence of being knowingly concerned, between about 27 September 1996 and 9 February 1998, in the importation into Australia of a commercial quantity of cannabis, contrary to section 233B of the Customs Act 1901 Commonwealth. 2 Under Schedule 6 of the Customs Act, a commercial quantity of cannabis is 100 kilograms. The respondents' offence involved 624 kilograms of cannabis. 3 On 3 September 1999, the respondent was sentenced to nine years imprisonment to commence on 9 February 1998, the date when he was taken into custody in relation to the offence, with a non-parole period of four years and six months. 4 A forfeiture order was also made pursuant to section 19 of the Proceeds of Crime Act 1987 in respect of money and other property. 5 The prosecution has appealed on the ground that the sentence imposed was manifestly inadequate. It was submitted that the sentence failed to reflect the objective seriousness of the respondent's offence and that the sentencing judge made a number of specific errors. 6 The argument in support of these specific matters, which was principally, if not solely, addressed in writing, involved attention to comparatively unimportant details and considerable overlap. 7 Subject to one matter, there is nothing to indicate any significant error in the approach adopted by the sentencing judge. Subject to that one matter, the critical question is whether the sentence is so low that it establishes appealable error. 8 At the time of sentencing the respondent was 40 years of age and had been born in Algeria of French parents. The cannabis was imported into Australia in used furniture that was stored in a 20 foot shipping container sent from South Africa by sea. It was the prosecution case at the trial that, during the material period, the respondent made a number of trips to Australia, and that in making the arrangements for the importation he used a number of aliases and passports. 9 I think it unnecessary, because of the conclusion at which I have otherwise arrived, to detail the actual activities in which the respondent engaged. Suffice it for present purposes to say that there was plainly a sophisticated operation in which the respondent was directly involved in detail. 10 In his sentencing remarks the sentencing judge said that the Crown submitted "that eight to 11 years was a figure to be arrived at after the discount" (referring to the operation of section 16G) "had been applied". 11 His Honour continued:

"So I am left with that situation, as I say, Mr Ramos for the prisoner submitting that eight to 11 years and then deduct one third and Mr Roser for the Crown submitting that eight to 11 years is the figure after the discount of one third".

12   In the course of his argument in this court, Mr Roser, who again represented the prosecution, made the submission that his Honour had misunderstood the submissions which had been made to him at sentencing, and that the range of eight to 11 years, after section 16G had been given effect, could not fairly be deduced from the argument which was addressed to the sentencing judge. 13   It is unnecessary for present purposes to canvass the various parts of the transcript of the argument before the sentencing judge to which our attention was drawn. 14   I am not persuaded that his Honour made any mistake in the passage which has been quoted. On the contrary, I am of the view that although, as is not surprising, there is some ambivalence in the remarks made at different parts of the transcript, his Honour's statement of his comprehension of the prosecution submissions is a fair reading of what was put to him. 15   I would not like to be taken as accepting that, but for the position adopted by the prosecution before the sentencing judge, the sentence imposed upon the respondent was appropriate. However, this court must approach this matter in accordance with the established principles governing prosecution appeals against sentence. 16   One of those principles makes clear that only in an exceptional case, will this court interfere on a prosecution appeal to correct an asserted error by increasing a sentence, if the sentence imposed by the sentencing judge was consistent with the submissions made to him or her by the prosecution. 17   Since I am of the opinion that that is what occurred in this case, I would dismiss the appeal. 18   SPERLING J: I agree. 19   WHEALY J: I agree. 20   FITZGERALD JA: The appeal is dismissed.