New South Wales Court of Criminal Appeal CITATION : Regina v Durant [2002] NSWCCA 295 FILE NUMBER(S) : CCA 60287/01 HEARING DATE(S) : 7/6/02 JUDGMENT DATE : 7 June 2002 PARTIES : Regina v Edward Charles Durant JUDGMENT OF : O'Keefe J at 1; Greg James J at 26; Carruthers AJ at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/011/0173 LOWER COURT JUDICIAL Freeman DCJ OFFICER : COUNSEL : Applicant - Applicant in person Respondent - Ms M M Cinque SOLICITORS : Applicant - Applicant in person Respondent - DPP - Sydney CATCHWORDS : Criminal law - Drug importation - MDMA or ecstasy and cannabis resin - Quantity in excess of trafficable quantity - Involvement in importation for money - Purchase of drugs by appellant for sale in Australia - Not a mere courier - Appellant in part responsible for the organisation of importation and in relation to distribution LEGISLATION CITED : Commonwealth Crimes Act 1914 DECISION : 1. Leave to appeal granted; 2. Appeal dismissed. - 6 -IN THE COURT OF CRIMINAL APPEAL 60287/01 O'Keefe J Greg James J Carruthers J Friday, 7 June 2002 REGINA v EDWARD CHARLES DURANT Judgment 1 O'KEEFE J: Edward Charles Durant (the applicant) who is now aged 53 years and is a citizen of the United Kingdom, was sentenced by Judge Freeman (the judge) in the District Court on 7 May 2001 on two counts of importing a prohibited substance, in one case consisting of 3.4 methylenedioxymethamphetamine, commonly known as ecstasy, or MDMA, and in the other consisting of cannabis resin. 2 The sentence imposed by the judge in respect of the first offence was seven years imprisonment with a non-parole period of four years and three months, that is in respect of the charge concerning the ecstasy, and 18 months to be served concurrently in respect of the cannabis resin. 3 The maximum penalty fixed by law for the importation of the ecstasy was 25 years with the possibility of a fine of up to $100,000. The maximum penalty fixed by law in respect of the importation of the cannabis resin was two years imprisonment with a fine of up to $2,000. 4 The facts of the matter are that on 25 December 2000 the applicant, who was travelling with his partner, arrived at Kingsford Smith airport from London having travelled via Rome and Taipei. Whilst awaiting immigration clearance, a drug detection (or sniffer) dog reacted to the applicant who was then in company with his partner. He was asked to recover luggage from the baggage carousel. 5 Examination of the applicant's luggage revealed a pair of women's leather platform-soled sandals, in the compartment in the sole of each of which was a quantity of narcotics, consisting of some 1,800 ecstasy tablets. He admitted to having secreted the narcotics in the sandals and further admitted that he had an additional quantity of ecstasy tablets and other narcotics concealed within his body. These were in a condom which was in his rectum and, when recovered, the package was found to contain additional ecstasy tablets together with a quantity of cannabis resin. When questioned the applicant claimed that his partner had no knowledge of the presence of the narcotics and that the ecstasy tablets had been checked in a laboratory in Holland to ensure that they were not toxic. 6 The total number of ecstasy tablets involved in the importation was 2,213, having a gross weight of a little over half a kilogram. On analysis these were found to contain 166 grams of pure MDMA. This is in excess of a trafficable quantity. The cannabis resin weighed 10.9 grams and was thus below a trafficable quantity. 7 The evidence before the trial judge showed that the street value of the two narcotics lay somewhere between $45,000 and $100,000 which as the judge said, "Whilst not a huge importation...it could not be said that the drugs of the value in question were trivial amounts". 8 The applicant was represented at his sentence hearing by experienced counsel. He did not give evidence on the sentence. Before this Court, but not in the notice of appeal, a claim was made that counsel appearing for him was incompetent. As I have said, this is not in the notice of appeal and although referred to in additional material which was placed before the court, there is no evidence that this is so and indeed, the experience of the counsel named in the transcript is inconsistent with such an allegation. 9 Furthermore, there is no indication in the course of the proceedings before the judge that anything done or not done by counsel for the then accused resulted in the sentence which was imposed by the judge, being different from what may have been the case had the applicant had the services of other counsel. 10 The applicant submitted through his counsel that he should be regarded as a mere courier. However, with ample basis for so doing, the judge rejected this submission and was of the view that there was no evidence from which the applicant or otherwise which would militate against the view that he was responsible in a serious and significant way for the importation. Although there was no evidence before the judge as to the amount received by the applicant, in the additional material put before the court on this appeal there is a clear statement that an amount of £10,000 was received by the applicant in respect of his criminal acts. 11 The documentation further revealed that as part of the transaction in which the applicant was involved, he actually purchased the drugs in question and was then going to be paid an additional amount in this country when the drugs were picked up by some other person. 12 The nature of his involvement in the criminal enterprise, which resulted ultimately in the importation of the narcotics into Australia, remains virtually as obscure before this Court as it was before the judge in the court below. 13 In an interview conducted with the applicant at the time of his arrest he claimed that he had been approached in a London bar about carrying the drugs into Australia. However he declined to name the persons involved, either at the London end of the transaction or at the Australian end of the importation. 14 The material before the judge to which I have just adverted suggests a casual encounter and a spur of the moment decision. However, before this Court the applicant has referred to an association with the persons who made the drugs available to him extending for a period of some two years. No mention was made of a mere casual encounter in an hotel. 15 Moreover, at his interview he made no allegation of that kind and there is no evidence of the matters to which reference is made in his additional submissions either before the judge or before this Court. 16 The applicant conceded that he was aware that his behaviour was illegal and it appears quite clear from the material before the judge and before this Court that he did what he did knowing that it was illegal, because of the money that he was going to get for committing the offences. 17 Although this material was included in a probation report which was before the court, the applicant did not verify it, as was his entitlement. This left the judge properly sceptical about the weight to be given to the self-serving statements made by the applicant and included in the probation report. When determining the culpability of the applicant the judge took into account the way in which the applicant had secreted the major part of the narcotics, namely in the sandals, that he had secreted the rest within his body and that before this was done he was aware that the tablets had been checked in a laboratory in Holland to ensure that they were not toxic. The findings by the judge, namely: "This is not a dumb mule, this is not a courier. This is a man who, at least in part, is responsible for the organisation and performance of this importation and the fact is that he would have needed contacts at this end of the journey in order to effect a distribution and make such profit as he was entitled to" are supported by the evidence before the sentencing judge. 18 Furthermore, the judge's finding he would accept the role of the applicant "in the scale of culpability as somewhat more than halfway up" such scale is unexceptional. Indeed, on the evidence in my opinion it is very fair as far as the applicant is concerned. 19 In fixing the sentence the judge took into account the quantity of drugs involved, the elements referred to in s 16 of the Commonwealth Crimes Act 1914 and the question of general deterrence. He took into account the plea of guilty and despite the fact that it had been proffered against the background of an extremely strong Crown case, he nonetheless gave a discount of in excess of 10 per cent in respect of the sentence which he would otherwise have imposed. 20 Having regard to the fact that this is a sentence for Commonwealth prosecution imposed under the Commonwealth Crimes Act and that the applicant did not, on any view of the matter, really proffer any assistance to the authorities other than the plea of guilty, I am of the opinion that the fixing of that discount involved no error. 21 The judge also gave a discount on the head sentence because of the absence of remissions in prison sentences imposed and served in New South Wales. This was proper so to do. He further discounted the sentence because the drugs involved, although narcotics and at least in one case quite dangerous, were not as bad in their effects as heroin. He noted, however, that there had been no assistance to the authorities and that the applicant had no family ties in England which would result in a sentence being served in Australia being more impactive upon him and his family than would be the case with another offender. The judge then imposed the sentences referred to above. 22 In my opinion the judge made adequate and well supported findings of fact, applied the appropriate principles and did so correctly. He then imposed sentences which were well within the range which, in the past and over a period, have been imposed in respect of the importation of narcotics into Australia. An examination of the 32 cases included in the schedule to the respondent's outline of submissions shows that the sentence imposed was within the parameters of sentences imposed for mid range drug importations. 23 At the hearing of the appeal before this Court, the applicant sought to rely upon a document entitled "Appeal Statement." Although not verified, I am of the opinion that it would be appropriate, having regard to the fact that the applicant is representing himself and he is unversed in the conduct of appeals, to allow that matter to be taken into account in the hearing of this appeal. However, when that is done there is nothing in it, in my opinion, which would give rise to any additional exculpation of the applicant or do anything to reduce the high criminality involved in the actions in which he was involved. Indeed, on one view it puts him a little further up the chain of responsibility than the judge fixed. However, I do not take that into account adversely to the applicant. 24 It is important in my view to bear in mind, in relation to offences of the kind presently before the court, that general deterrence is an important element of the sentencing process. If it is known that heavy penalties will necessarily result from the importation of narcotics into this country, that will undoubtedly have a deterrent effect upon many in the drug importation trade. The sentence fixed by Judge Freeman is one which is capable of such an effect and is appropriate to the seriousness of the offence involved. 25 I would propose that leave to appeal should be granted, but that the appeal should be dismissed. 26 JAMES J: I agree. 27 CARRUTHERS AJ: I also agree 28 O'KEEFE J: The order of the Court will be that leave to appeal is granted, but 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. 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