Regina v Blakeman [1999] NSWCCA 415

New South Wales Court of Criminal Appeal CITATION : Regina v Blakeman [1999] NSWCCA 415 revised - 20/12/99 FILE NUMBER(S) : CCA 60712/98 HEARING DATE(S) : 9 September 1999 JUDGMENT DATE : 9 September 1999

PARTIES : Regina v Kerry Vernon Short BLAKEMAN JUDGMENT OF : Newman J at 26; Simpson J at 2; Hidden J at 26

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0305 LOWER COURT JUDICIAL OFFICER : Mitchelmore DCJ

COUNSEL : F A Veltro - Crown G D Wendler - Appellant SOLICITORS : Commonwealth Director of Public Prosecutions John D Weller and Associates - appellant CATCHWORDS : Customs Act 1901 ACTS CITED : Crimes Act 1900 Criminal Procedure Act R v Robinson 5 August 1998 CASES CITED: R v Behar unreported, NSW CCA 14 October 1998 R v Fahda [1999] NSWCCA 267 R v Benais [1999] NSWCCA 236 DECISION : Leave to appeal granted, appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60712/98

NEWMAN J SIMPSON J HIDDENJ

9 September 1999

REGINA v Kerry Vernon Short BLAKEMAN Judgment

1 NEWMAN J: I will ask Simpson J to deliver the first judgment in this matter. 2 SIMPSON J: On 22 October 1998 the applicant was convicted after a trial by jury of a charge of conspiracy to import into Australia narcotic goods to which s 233B of the Custom's Act 1901 applies. On 13 November 1998 he was sentenced by Mitchelmore DCJ to imprisonment for three and a half years with a non-parole period of two years and three months. The applicant seeks leave to appeal the sentence. He has abandoned an appeal against conviction. 3 The prohibited goods in question consisted of the drug commonly known as Ecstacy. The conspiracy involved 296 tablets containing a total quantity of 25.4 grams of the pure drug. This was well in excess of the trafficable quantity prescribed by Schedule VI of the Act (0.5 grams) and exposed the applicant to a maximum penalty of imprisonment for twenty-five years or a fine of $100,000 or both. 4 The sentencing judge was satisfied beyond reasonable doubt that the applicant had arranged with the co-conspirator, a man named Anderson, for the drug to be sent from Germany concealed in three parcels containing cassette tapes, addressed to two post office boxes taken out by Anderson in false names. The applicant posted the articles while on a trip to Germany between June and August 1994. In the applicant's favour, the sentencing judge was not satisfied that the applicant travelled overseas for the purpose of the conspiracy but rather considered that he took the opportunity that presented itself while he was coincidentally in Europe. 5 There was subjective material before the sentencing judge. The applicant was born on 15 March 1957. He was forty-one at sentencing. His only previous encounter with the law involved possession and self-administration of prohibited drugs and possession of equipment for that purpose in 1990, in respect of which no convictions were recorded and which his Honour ignored for sentencing purposes. He had an impressive work record, having served in the New Zealand army and subsequently taken up employment in the security industry and later the film industry as a safety supervisor. He has six children, one of whom is a daughter of an earlier relationship and all of whom the applicant supports. The youngest child was born during the applicant's trial. The remaining five children are the children of his present marriage. It is obvious that his incarceration will cast a considerable burden on his wife who, at the time of sentencing, was the manager of an extensive medical practice. The burden will be financial as well as emotional. However, this is not a case which comes within the exception of the general principle that hardship to third parties, including families, cannot be taken into account as a sentencing consideration. 6 There was evidence that the applicant had, some years earlier during his employment as a security officer, been involved in a terrifying and traumatic armed robbery and had, on another occasion 1990, been severely injured in a motor vehicle accident. It was not suggested that these events in any way mitigated the offence or bore on penalty.