Regina v Sando

[2000] NSWCCA 301

CITATION:	REGINA v. SANDO [2000] NSWCCA 301
FILE NUMBER(S):	CCA No. 60726 of 1999
HEARING DATE(S):	Friday 11 August 2000
JUDGMENT DATE:	11 August 2000
PARTIES :	REGINA v. SANDO, Scott Ronald
JUDGMENT OF:	Beazley JA at 1/15; Wood CJ at CL at 16; Greg James J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0135
LOWER COURT JUDICIAL OFFICER :	Stewart, DCJ.

COUNSEL :	Crown: J.V. Agius, SC. App: G.P. Craddock
SOLICITORS:	Crown: Commonwealth Director of Public Prosecutions App: T.A. Murphy
CATCHWORDS:	Criminal law - application for leave to appeal against sentence - asserted error in assessing comparative culpability with courier co-accused - no error.
LEGISLATION CITED:	Customs Act 1901 (Cth) Criminal Appeal Act 1912
CASES CITED:	DPP v. Olbrich (1999) 108 A. Crim. R. 465
DECISION:	Leave to appeal granted; appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

No. 60726 of 1998 CORAM: BEAZLEY, JA.

WOOD, CJ. at CL.
GREG JAMES, J.

FRIDAY 11 AUGUST 2000

REGINA v. SCOTT RONALD SANDO

JUDGMENT

1 BEAZLEY, JA: I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: The applicant for leave to appeal against sentence was convicted on one count of, without reasonable excuse, attempting to obtain possession of prohibited import to which s.233B of the Customs Act 1901 (Cth) applied, that is, a quantity of cocaine which had been imported into Australia in contravention of the Act, being not less than the trafficable quantity. In respect of that offence he was sentenced to imprisonment for six years with an non-parole period of three years to commence on 8 September 1999 and pre-sentence custody was taken into account. 3 The circumstances of the offence were set out in an agreed statement of facts to which the learned sentencing judge had reference. That agreed statement of facts referred to the arrival of a courier, Anita Adomaa, into Australia carrying a Johnsons baby powder canister containing the cocaine. The gross weight of the powder and container was recorded as approximately 624 grams. The consequent analysis of the powder confirmed the presence of cocaine weighing 156 grams pure weight. She was apprehended by police and assisted them. In particular, having been provided with a substitute canister of baby powder, she arranged for the attendance of the applicant at motel premises and a transaction then ensued which his Honour set forth in his remarks on sentence. 4 There was discussion as to how much the applicant had brought with him to pay for the drug and his ability to test the drug to ensure that it was of the requisite kind and quality. Upon attempting to test it he noted that it was talcum powder, he noted also that the canister was made in Australia. He left the room and was subsequently arrested. Initially, he declined to have any conversation as to the matter with police but in due course when the matter came forward before his Honour he relied upon his admission to police of a long term addiction to heroin and also being a heavy steroid user. His Honour was also referred to the applicant's prior convictions. 5 The applicant pleaded guilty before his Honour and the matter went forward on the basis that it was necessary for his Honour, who had sentenced Adomaa, the courier, to determine the applicant's role as relevant to the sentence that his Honour would impose. 6 The applicant gave evidence on this and his Honour made the following findings:-

"I have taken into account all those things the prisoner told the court in evidence. Accepting as I do that what he said is true, I have to say that this case assumes a somewhat different aspect than it would otherwise have done.
It turns out that it is not by design that the prisoner was part of this group of importers of illicit drugs, but rather an addict who happened to be in the premises of a person who was perhaps the principal or co-principal in this enterprise. I accept that he was at those premises of this person, a female dealer and importer, fortuitously and overheard parts of telephone conversations when she was talking about the importation to others. Unfortunately for him, he seized only too readily the opportunity offered to him by this person to become an integral player in this scenario.
In the short term, his opportunistic actions had unfortunate results for him, leading to his arrest."

7   His Honour went on:-

"Most of what I have said so far has had to do with the way the prisoner became involved in this matter. Although it may not be as serious for him if he had been one of the plotters who had played a part in the originating of this importation, it is serious enough. The courts have said time and again that without people like the prisoner, crimes like this could not be committed."

8   His Honour continued:-

"In the case of Regina v. Maunchukingkan (1990) 5 A. Crim. R. 247, it was said that couriers and intermediaries must expect substantial sentences. This prisoner was an intermediary; an opportunist rather than an organiser, but an intermediary, nonetheless. I have already set out my reasons for concluding that he must be sentenced more heavily than the courier."

9 His Honour dealt with submissions that the prisoner was less culpable than the courier holding that in his view this prisoner was more culpable than the courier objectively and subjectively, but only marginally. 10 The sentence his Honour passed on the courier was subject to a reduction of 50% for co-operation and assistance. The sentence his Honour passed upon this applicant almost precisely corresponded in extent to what he would have passed on the courier except for that reduction for assistance. 11 The short point taken on this application is that his Honour failed to appreciate that the role of the applicant was of less culpability than that of the courier or at least no worse than that of the courier. It has been submitted that it is not appropriate to deal with the matter by a labelling or categorisation exercise particularly in the light of what had been said by the High Court in Director of Public Prosecutions v. Olbrich (1999) 108 A. Crim. R. 465. What was necessary to consider was the factual role adopted by the individual in the particular transaction. 12 It appears to me that his Honour took exactly this approach when he concluded that the applicant "seized only too readily the opportunities offered to him by this person to become an integral player in this scenario". 13 Accepting what had been put on his behalf that this was the opportunistic involvement of a drug affected junky in performing a delivery man role for the purpose of seeking to obtain some of the drug, it was a voluntary assumption of an essential and integral role in the importation into Australia of the proscribed substance and an opportunistic involvement in a most serious crime. 14 Having regard to all those matters and in particular to the requirement in s.6 of the Criminal Appeal Act 1912 that the court shall dismiss the appeal unless it is of the opinion that some other sentence, in this case less severe, is warranted in law and should have been passed, I am of the view that the appeal cannot succeed. In those circumstances and since the substantial question of role has been raised and that matter at least fully argued, I am of the view leave to appeal should be granted but the appeal should be dismissed. 15 BEAZLEY, JA: I agree. 16 WOOD, CJ at CL: I also agree. 17 BEAZLEY, JA: The order of the court is as proposed by Justice Greg James.