R v English-Russell [2002] NSWCCA 179

New South Wales Court of Criminal Appeal

CITATION : R v English-Russell [2002] NSWCCA 179 FILE NUMBER(S) : CCA 60597/01 HEARING DATE(S) : 10 May 2002 JUDGMENT DATE : 10 May 2002

PARTIES : Melanie English-Russell - Applicant Crown - Respondent JUDGMENT OF : Sheller JA at 31, 33; Levine J at 32; Simpson J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0667 LOWER COURT JUDICIAL Wall ADCJ OFFICER :

COUNSEL : M Bracks - Crown K Newell - Applicant SOLICITORS : DPP (Cwlth) - Crown Lyon Law Firm - Applicant

Customs Act 1901 LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 CASES CITED: R v Moreno, unreported, CCA, 4 November 1994 DECISION : Leave to appeal granted; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60597/01

SHELLER JA LEVINE J SIMPSON J

Friday 10 May 2002 REGINA v MELANIE ENGLISH-RUSSELL Judgment 1 SIMPSON J: This is an application for leave to appeal against the severity of sentences imposed in the District Court on the applicant on 10 August 2001. The applicant pleaded guilty to two charges on an indictment. The first charge was brought under s233B(1)(d) of the Customs Act 1901 (Cth) and alleged that, between 29 October and 29 December 1999 the applicant was knowingly concerned in the importation of not less than the traffickable quantity of the drug shortly known as MDMA, and commonly known as ecstasy. The second count, brought under s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), alleged that, between the same dates, she supplied not less than the large commercial quantity of the same drug. Pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") the applicant asked that a further offence ("the Form 1 offence") be taken into account. This was an offence of supply of not less than the indictable quantity of methylamphetamine, committed on 21 December 1999. 2 On the first count, which carries a maximum penalty of imprisonment for twenty-five years, Acting Judge Wall sentenced the applicant to imprisonment for five years, seven months and thirteen days, with a non-parole period of two years, seven months and thirteen days. (The explanation for this unusual sentence lies in a construction placed upon s16E of the Crimes Act 1914 (Cth) and to which later reference will be made. The judge specified that this sentence was to commence on the date it was imposed, 10 August 2001. 3 On the second count, which carries a maximum penalty of life imprisonment, the applicant was sentenced to imprisonment for nine years with a non-parole period of five years to commence on 24 March 2000. This date was selected as it was the expiry date of the non-parole period of sentences imposed on the applicant in relation to other matters. The sentence for the first offence was thus made partially cumulative upon the sentence for the second. 4 The applicant stood for sentence with a co-offender, Kim Augustus Rodd, who pleaded guilty to two identical charges on an indictment, and asked that two additional offences (of supplying not less than the indictable quantity of cannabis, and of being in possession of $24,730, being goods reasonably suspected of having been unlawfully obtained, each committed on 21 December 1999) be taken into account. On the Commonwealth charge he was sentenced to imprisonment for seven years with a non-parole period of four years, commencing 21 December 1999; and on the State charge, to imprisonment for nine years with a non-parole period of five years, also commencing 21 December 1999. 5 These two offenders were part of a group which included at least six others (each of whom has been sentenced by a different judge of the District Court) who were engaged, at one level or another, in the importation and distribution of the drug ecstasy. It is unnecessary to relate the circumstances of the other co-offenders, or the sentences imposed upon them. 6 The applicant contends that the sentences imposed upon her were manifestly excessive, and that specific error can be identified in the sentencing process. In part, her argument depends upon certain factual matters determined by the judge. It will therefore be necessary, in due course, to examine some of the evidence, which was extensive, that was before his Honour. Otherwise it is possible to recount the relevant facts with relative brevity. 7 There were four separate importations of ecstasy tablets, on 2 December, 7 December, 9 December and 29 December 1999. One of the participants, who was a citizen of and resident in the United Kingdom, sent by mail packages containing ecstasy tablets concealed in magazines to Post Office box addresses in various suburbs in Sydney. For this purpose a number of Post Office boxes in suburban newsagencies had been rented in fictitious names. Rodd was responsible for making these arrangements. In November Rodd travelled to the United Kingdom, having arranged that the applicant would recruit "a trustworthy person" to pick up the packages from the mailboxes. He agreed to pay the applicant $2,000 for this service, and also agreed that she would have first option on some or all of the tablets for on-selling. The applicant, was, at that time, regularly supplying ecstasy tablets to customers. The applicant recruited a friend (Karen Roach, who was also charged and sentenced) to pick up the drugs and agreed to pay her $500 or give her drugs of equivalent value. 8 The first two importations were successful. A total of 1,819 ecstasy tablets, with a pure weight of 110g, were collected and disseminated. The applicant retained for herself 63 tablets from the first importation which she shared with her then partner, Ben Morris (who was also charged). The remainder (900 tablets) she gave to another participant, presumably for distribution. Of the second importation, she promised to supply 800 tablets to Morris at a price of $23 each, she having purchased them for $22 each. For collecting the tablets the applicant gave Roach a quarter of a gram of amphetamine, apparently worth approximately $500. 9 The third and fourth importations (involving 1,656 tablets with a pure weight of 125.2g) were unsuccessful in the sense that the drugs were intercepted by police prior to collection by Roach and therefore never made their way into the community.