New South Wales Court of Criminal Appeal CITATION : Regina v Robertson [2000] NSWCCA 266 FILE NUMBER(S) : CCA 60841/99 HEARING DATE(S) : Friday 14 July 2000 JUDGMENT DATE : 14 July 2000 PARTIES : Regina v Hayden Robert Robertson JUDGMENT OF : Meagher JA at 12; Grove J at 2; Bergin J at 13 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0413 LOWER COURT JUDICIAL Viney DCJ OFFICER : COUNSEL : R. Sutherland (Crown/Applicant) C.J. Watson (Respondent) SOLICITORS : Commonwealth DPP (Crown/Applicant) Carnone Anderson (Respondent) CATCHWORDS : Criminal Law and Procedure - Sentence - Import of Drugs - Ecstasy - Minor Role as "Postbox" - Asserted Inadequacy - Sentence of Periodic Detention Within Discretionary Bounds in Exceptional Circumstances of the Case DECISION : Crown Appeal Dismissed IN THE COURT OF CRIMINAL APPEAL 60841/99 MEAGHER JA GROVE J BERGIN J Friday 14 July 2000 REGINA v HAYDEN ROBERT ROBERTSON JUDGMENT 1 MEAGHER JA: The Court is in a position is to give judgment. I ask Grove J to give the first judgment. 2 GROVE J: This is a Crown appeal asserting inadequacy of sentence imposed on the respondent for an offence of being knowingly concerned in the importation of a prohibited import. That prohibited import was the drug Methyldioxin Methylamphetamine, commonly known as ecstasy. The learned sentencing judge imposed upon the respondent a sentence which effectively required him to serve three years periodic detention, suspended after one year. The expression of the sentence was in the somewhat awkward language required by the Commonwealth Crimes Act but, that said, this was the practical effect. 3 The respondent was a young man aged 22 years. He has no previous convictions. The facts of the matter were relatively unremarkable. The respondent was in the habit of partaking of marijuana from time to time. He apparently began to do this as a result of contact with that drug whilst in a boarding school in Western Australia. He was attending that school as his parents were overseas in connection with his father's employment. He had left home and was residing in a flat with his fiancee Holly Ferguson, to whom later reference will be made. In order to obtain his supplies of marijuana he came into contact with a man called Capper. It appears Capper is a man whose interests in drugs are well known in the northern beaches area of Sydney. Apparently whilst the respondent was under the influence of marijuana, Capper put to him a proposition he would in effect act as a post box for material to arrive from overseas. The respondent later admitted that he knew drugs were involved although it is plain that he did not know precisely what drugs or the quantities involved. What happened was that mail addressed to a fictitious name was collected by the respondent and his fiancee, Holly Ferguson. Upon its receipt they placed it in a vehicle and were on their way to deliver it to Capper. There has been some submission to the court as to whether as a matter of categorisation that activity should be described as that of a courier. It does not seem to me necessary for present purposes to resolve any such debate. On the way to Capper's house, the pair (the respondent and Miss Ferguson) were stopped by Federal Police. The respondent admitted to police what he had done. 4 It is perhaps of some significance to record the motives which were obviously operating upon the respondent at that time. His fiancee, Holly Ferguson, was a few years older than him. They had apparently met at a place of employment. Miss Ferguson was ill and had been treated from time to time for psychotic episodes. They had both become unemployed. The respondent's father had, during this unemployment, supported the pair of them by weekly cash contributions. However, a few days before the respondent was recruited by Capper the respondent's father had withdrawn his support. It appears that the father had, understandably, come to the conclusion that the pair were living what was called, at one point, a rock and roll lifestyle, and sincerely, no doubt, he thought that it might be for their benefit for him to withdrew support. He gave evidence before the sentencing judge that had he known that the situation was that his son, the respondent, was seeking to support his ill fiancee he would have taken a different view. At the time rent was due and the respondent was desperate to obtain funds in order to pay that rent. Capper had offered him $1,000 for acting as a post box, as I have called it. In fact he received $100 which, it might be mentioned in passing, was seized by police upon his arrest. 5 It is relevant to make some reference to the discount upon sentence to which the respondent would be entitled by reason of his assistance to authorities. I have already mentioned that he acknowledged his part in the offence. When stopped by Police he went further and agreed to be fitted with a listening device in order to assist obtaining evidence against the drug dealer, Capper. As a result of his preparedness to do this and his actual undertaking of it, evidence was collected against Capper. Both he and Miss Ferguson made witness statements. 6 It might be observed that at that stage the federal police did not charge either of the respondent or Miss Ferguson. However, in due course, what might be described as a water tight case having been assembled against Capper, charges were brought against them. I say "them" because there is a potential matter of parity that should not be overlooked. 7 Holly Ferguson was also charged with her participation in the offence. She was dealt with later than the respondent by a different judge. That charge resulted in Miss Ferguson being given a sentence involving no custody at all and she was released upon an order made in terms of Federal Statute which amounts to release upon recognisance. It should also be observed that Miss Ferguson was convicted after a trial at which she pleaded not guilty, whereas the respondent Hayden Robertson pleaded guilty before a Magistrate and was committed for sentence. As I have said, there is a potential matter of parity that should not be overlooked. 8 In this case I should make some observations about the rehabilitation of the respondent as was manifest before the sentencing judge. The respondent had resumed employment although this changed once or twice. He was an apprentice chef. The evidence before his Honour was that he was back on track towards with his career. It also appears that he did give up his use of marijuana. It might be observed that he did initially express some views as are often publicised about the relative harmlessness of that drug. I would comment those views are at odds with the evidence given over and over in courts by medical practitioners concerning the ravages upon persons who regularly use that drug. It is to the respondent's undoubted credit that the evidence before his Honour was that he had given up the use of that drug. 9 I should also mention that there was evidence before his Honour concerning the potential emotional stress that may derive out of the recent contact, for the first time, with the respondent by his birth mother. He was adopted by his parents when he was about a month old. It is not necessary to detail this matter and I mention it only to observe that, were I coming to the conclusion that the sentence imposed was inadequate, that circumstance would be relevant to the residual discretion in this court to dismiss a Crown appeal. 10 There are an accumulation of matters which should be taken into account. Viney DCJ was clearly conscious that other than in the case which can be categorized as exceptional, offences such as this call for full-time in jail. He came to the conclusion that the appropriate sentence in this case was as I have indicated. 11 There have been advanced before the court interesting arguments concerning the procedural requirements of the Crimes Act as to whether the primary selection of periodic detention was an option and as to the application of s 19 AC of the Commonwealth Crimes Act when dealing with a sentence of less than 3 years which is to be served by way of periodic detention in relation to the suspension of part of the period selected. It does not seem to me to be necessary to elaborate upon the arguments advanced to the court. In my view the sentence imposed by Viney DCJ was well within the boundaries of his discretion. In this case I would dismiss the Crown appeal. 12 MEAGHER JA: I agree. 13 BERGIN J: I also agree. 14 MEAGHER JA: The order of the Court, therefore, is that the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.