R v Schmakowski [2001] NSWCCA 395

New South Wales Court of Criminal Appeal

CITATION : R v Schmakowski [2001] NSWCCA 395 FILE NUMBER(S) : CCA 60181/00 HEARING DATE(S) : 28 September 2001 JUDGMENT DATE : 28 September 2001

PARTIES : Regina Reinhard Schmakowski JUDGMENT OF : Heydon JA at 1; Wood CJ at CL at 2; Carruthers AJ at 33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0465 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

COUNSEL : Crown: M. Allnutt Applicant: P.Byrne SC SOLICITORS : C'wealth DPP D J Humprheys CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - importation of trafficable quantity of ecstasy - whether sentence manifestly excessive - whether failure to take into account utilitarian value of plea, assistance to authorities and contrition - whether starting point of sentence too high - consideration of objective and subjective circumstances - no error of law - appeal dismissed. CASES CITED: Customs Act 1901 s 233B(1)(b) DECISION : Leave to appeal granted; Appeal dismissed

- 8 - IN THE COURT OF CRIMINAL APPEAL 60328/01 HEYDON JA WOOD CJ AT CL CARRUTHERS AJ

FRIDAY 28 SEPTEMBER 2001 REGINA v REINHARD SCHMAKOWSKI

JUDGMENT 1 HEYDON JA: I ask Wood CJ at CL to give the first judgment. 2 WOOD CJ at CL: On 24 March 2000 the applicant was sentenced by his Honour Judge Maguire in the District Court for an offence of importing a trafficable quantity of MDMA or Ecstasy, contrary to s 233B(1)(b) of the Customs Act 1901. The sentence imposed was one of eight years with a non-parole period of four years and nine months. 3 The pure quantity of the drugs involved was 410 grams, that is 90 grams less than the commercial quantity applicable for this substance. The wholesale value of the importation was assessed to be in the order of $240,000. The applicant now seeks leave to appeal against the sentence.