New South Wales Court of Criminal Appeal CITATION: Michel v R [2007] NSWCCA 337 HEARING DATE(S): 1/11/07 JUDGMENT DATE: 5 December 2007 JUDGMENT OF: Handley AJA at 1; Hoeben J at 18; Smart AJ at 19 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - Sentence - Customs Act 1901 (Cth) - Second serious drug offence - no question of principle Crimes Act 1914 (Cth) LEGISLATION CITED: Customs Act 1901 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) CASES CITED: R v Thompson (2000) 49 NSWLR 383 PARTIES: Kelvin William Michel v Regina FILE NUMBER(S): CCA 2006/4657002 COUNSEL: M Picken (Applicant) WJ Abraham (Crown) SOLICITORS: Hardin Law (Applicant) Commonwealth DPP (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 04/11/0798 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 27/1/2006 - 2 - IN THE COURT OF CRIMINAL APPEAL CCA 2006/4657002 DC 04/11/0798 HANDLEY AJA HOEBEN J SMART AJ Wednesday 5 December 2007 Kelvin William MICHEL v Regina CRIMINAL LAW - Sentence - Customs Act 1901 (Cth) - Second serious drug offence - no question of principle The applicant pleaded guilty to an offence of conspiracy to import a trafficable quantity of cocaine contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). He had previously been convicted of the offence of being knowingly concerned in the importation of a trafficable quantity of the same drug contrary to s 233B(1)(d) and had been sentenced for that offence to imprisonment for 3 years with a non-parole period of 1 year 3 months. Accordingly s 235(1)(c) increased the maximum period of imprisonment for the current offence from 25 years to life. The applicant was the principal in the conspiracy, his co-conspirators being characterised as "errand boys". The conspiracy, which was open ended and ongoing at the time of his arrest, and had already lasted for 12 months, had involved the importation of 601.6 grams of the pure substance with a street value of $240,000. The applicant was on parole for the previous drug offence when the conspiracy began and for a further 4 months. The Judge adopted as his notional starting point a sentence of 17.5 years after allowing a discount of 20 per cent for the plea of guilty. The applicant was sentenced to 14 years imprisonment for this offence with a non-parole period of 8 years 9 months. The co-conspirators had been sentenced to imprisonment for 10 years 9 months and 6 years 11 months respectively with appropriate non-parole periods and the Court of Criminal Appeal had refused to intervene. Held: The sentence should not be disturbed. IN THE COURT OF CRIMINAL APPEAL CCA 2006/4657002 DC 04/11/0798 HANDLEY AJA HOEBEN J SMART AJ Wednesday 5 December 2007 Kelvin William MICHEL v Regina Judgment 1 HANDLEY AJA: The applicant seeks leave to appeal from sentences imposed by Nield DCJ on 27 January 2006. He pleaded guilty to a charge of conspiring to import not less than the trafficable quantity of cocaine contrary to s 233B(1)(b) of the Customs Act 1901 (Cth), this being the range between 2 grams and 2 kilograms. He also pleaded guilty to charges of cultivating 6 cannabis plants and supplying 4.519 kilograms of cannabis leaf contrary to sections 23(1) and 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He asked that an offence of goods in custody relating to $3,500 in cash be taken into account on his s 25(1) offence. 2 The maximum penalty for the Customs Act offence is normally 25 years and a fine or both. However in 2001 the applicant had been sentenced to 3 years imprisonment for being knowingly concerned in the importation of cocaine equivalent to 250grams of the pure substance contrary to s 235(1)(d) of the Act. Accordingly s 235(1)(c) increased the maximum penalty for the applicant's Customs Act offence to life imprisonment and a fine or both. The sentencing Judge imposed the following sentences: (a) the Customs Act offence - 14 years imprisonment with a non-parole period of 8 years 9 months to date from 28 November 2003 when the applicant was arrested (b) the Drug Misuse and Trafficking Act offence of supplying 4.519 kilograms of cannabis leaf - 4 years imprisonment with a non-parole period of 3 years to commence on 28 November 2010, one year after the expiration of the non-parole period for the first sentence. The non-parole period was concurrent for 2 years and culmulative for one year (c) the Drug Misuse and Trafficking Act offence of cultivating cannabis plants - 1 years imprisonment with a non-parole period of 9 months to commence on 28 November 2003 which was fully concurrent with the first sentence. 3 The sentencing Judge said that the applicant's pleas of guilty had a considerable utilitarian value to the State, and that he would allow a discount of 20 per cent. He said that his notional starting point for the conspiracy offence was 17.5 years and for the supply cannabis leaf offence was 5 years which were both discounted for his pleas of guilty. He also took into account in favour of the prisoner his assistance to the police following his arrest. The prisoner admitted his participation in the conspiracy, identified his co-conspirators, and described their roles. The Judge said the police were already aware of these matters, and this reduced the value of his assistance. The sentencing Judge did not identify the discount he applied, which can only have been taken into account in fixing the starting point of 17 years 6 months. However it is well established that his Honour was not bound to identify this discount: R v Thompson (2000) 49 NSWLR 383, 419. 4 The conspiracy, which was open-ended and ongoing at the time of the applicant's arrest, had already involved 7 importations of 601.6 grams of pure cocaine in a bulk of 1613.7 grams with a street value of $240,000. Importation was from Chile through the post in 139 envelopes. They were intercepted while under the control of Australia Post. The applicant, as the principal in the conspiracy, was aware of the quantities involved, and their street value. 5 The sentencing Judge found that the applicant was the principal in the conspiracy offence who supplied the funds used to acquire the cocaine in Chile, and to lease the various post office boxes to which the letters were addressed. He found that the applicant's motive for entering into the conspiracy was financial gain from the resale of the cocaine at a considerable profit. The applicant was also the principal in the supply cannabis offence which related to cannabis having a street value of $90,000. 6 Aggravating features of considerable seriousness were established. The applicant had been sentenced on 8 February 2001 to 3 years imprisonment with a non-parole period of 1 year and 3 months to expire on 15 June 2001 and a recognisance release period of 1 year and 9 months to expire on 14 March 2003. He was released subject to this recognisance on 14 June 2001 but entered into the conspiracy in November 2002 within the recognisance period. Serious re-offending while on parole or conditional liberty is a materially aggravating factor. 7 The other aggravating factor was the earlier offence under s 233B(1)(d) of the Customs Act, involving a trafficable quantity of cocaine, which increased the maximum period of imprisonment for that offence from 25 years to life. Counsel for the applicant contended that the Judge's starting points of 17 years 6 months for the conspiracy offence and 5 years for the supply cannabis leaf offence were far too high, that they evidenced a failure to allow any appreciable discount for assistance to the authorities, that the sentences infringed the totality principle and that the much lower sentences imposed on the applicant's co-conspirators by the same Judge established a breach of the parity principle. 8 In sentencing the co-conspirator Teehan the Judge adopted as the starting point on the conspiracy charge a sentence of 13 years 6 months and on the supply cannabis charge a sentence of 3 years. He said that the starting point for the co-conspirator Viera was 12 years 6 months. 9 In the course of his remarks on sentence the Judge reviewed the relevant objective and subjective features as they applied to each of the conspirators. He held that the co-conspirators were "errand boys". Teehan had been in the conspiracy from the beginning but Viera only became involved on 17 October 2003. Teehan did not have a criminal record, and although Viera did, and was on conditional liberty at the time, his record was not for drug related offences. 10 Teehan was sentenced to imprisonment for 10 years 9 months on the conspiracy charge with a non-parole period of 6 years 6 months from 28 November 2003 and to imprisonment for 2 years 4 months on the supply cannabis leaf charge with a non-parole period of 1 year 9months, 1 year of which was concurrent with the non-parole period for the conspiracy offence. 11 Viera was sentenced to imprisonment for 6 years and 11 months on the conspiracy charge with a non-parole period of 4 years 6 months. On 12 December 2006 this Court dismissed appeals by Teehan and Viera against these sentences. 12 The applicant challenged the Judge's findings as to the roles of the conspirators, and in particular his finding that the applicant was the principal in the conspiracy and supply cannabis leaf transactions and intended to act as a wholesaler of the drugs. These findings were well open on the evidence and cannot be disturbed. 13 The fact that the applicant was the principal who initiated and carried on the conspiracy while on a recognisance, that he had a prior serious drug conviction, and was liable to a higher maximum penalty demonstrate that a parity argument based on the sentences imposed on Teehan is not available, and the comparison with Viera is even less promising. 14 Counsel for the applicant relied on statistics from the Judicial Commission in relation to the conspiracy offence. Although they post dated the repeal of s 16G of the Crimes Act 1914 (Cth) on 19 December 2002 with immediate effect we have no information about the cases where the higher sentences were imposed. These statistics do not justify interference with these sentences. 15 The sentencing Judge refused to take into account in mitigation the fact that the applicant was on protective custody. The applicant relied on hearsay evidence by his mother who lived in New Zealand that she was told in the course of telephone conversations (AB 21-2) that at some stage his status in the prison system changed and he was placed on special protection and lost all his work rights. The applicant did not give evidence in the sentencing proceedings and the Judge said: "… the evidence is silent as to whether the offender is on protective custody in prison, and, if he is, as to the reason for it, the consequence of it and likely duration of it. Accordingly it seems to me that I cannot take this submission into account." 16 The hearsay evidence of the applicant's mother does not establish error by the sentencing Judge in this passage. 17 No error of fact or of principle has been shown, and in my judgment the sentence cannot be characterised as manifestly excessive. The higher sentences imposed on the applicant compared with those imposed on Teehan are justified by his greater criminality and the differences in their subjective features. The applicant has failed to establish any principled basis for this Court to interfere with his sentences. I would therefore propose that the following orders be made: 1. Leave to appeal granted. 2. Appeal dismissed. 18 HOEBEN J: I agree with Handley AJA and the orders he proposes. 19 SMART AJ: I agree with Handley AJA. 20 The total of pure cocaine involved was 601.06 grams which is towards the lower end of the trafficable quantity range. The sentence of 14 years imprisonment with a non-parole period of 8 years 9 months for the offence of conspiracy to import not less than the trafficable quantity of cocaine in respect of the quantity in question is justified because of these factors: (a) On seven occasions between 16 June 2003 and 7 December 2003 mail, being 139 envelopes/postcards in total, containing cocaine was intercepted. All mail was addressed to Post Office Boxes using fictitious addresses and posted from Chile. These importations were part of the conspiracy. (b) The applicant arranged for a co-offender to go to Chile to ascertain why the cocaine supply was not arriving in Australia as expected. The conspiracy was ongoing. (c) The applicant had previously been sentenced in 2001 for the serious drug offence of being knowingly concerned in the importation of cocaine equivalent to 250 grams of pure cocaine to 3 years imprisonment.. This increased the maximum penalty from 25 years to life imprisonment. ********** 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.