Donnelly v Regina [2006] NSWCCA 212

New South Wales Court of Criminal Appeal

CITATION: Donnelly v Regina [2006] NSWCCA 212

HEARING DATE(S): 10/07/06

JUDGMENT DATE: 18 July 2006

JUDGMENT OF: Handley JA at 1; Hulme J at 2; Kirby J at 3

DECISION: (1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS: Criminal Practice & Procedure - appeal on severity of sentence - claim imported drugs for personal use - MDMA - civil onus on accused - rejected by Judge - whether gave reasons or sufficient reasons.

LEGISLATION CITED: Customs Act 1901 (Cth)

PARTIES: Timothy Michael Donnelly (App) Regina (Resp)

FILE NUMBER(S): CCA 2006/1192

COUNSEL: J L Glissan QC (App) Ms W J Abraham QC (Resp/Crown)

SOLICITORS: Adams & Partners Lawyers (App) P Hill - DPP (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0075

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 12/08/05

IN THE COURT OF CRIMINAL APPEAL 2006/1192

HANDLEY JA HULME J KIRBY J

Tuesday 18 July 2006 Timothy Michael DONNELLY v REGINA Judgment 1 HANDLEY JA: I agree with Kirby J. 2 HULME J: I agree with Kirby J. 3 KIRBY J: This is an application for leave to appeal against sentence. Timothy Michael Donnelly (the applicant) returned to Australia from overseas at 7.30 am on 11 November 2004. He was a passenger on a British Airways flight from London via Singapore. Having cleared Customs, he went to a flat in Neutral Bay. 4 At approximately 2.50 pm on 13 November 2004, Mr Donnelly presented at the Emergency Department of the Royal North Shore Hospital. He complained of severe abdominal pain. He disclosed to medical staff that, before leaving London, he had swallowed a number of pellets made from plastic and ducting tape containing the drug ecstasy. He had already regurgitated a small number of the pellets. 5 An x-ray was undertaken and revealed a large number of foreign objects in the stomach and intestines. He was suffering from severe abdominal obstruction and required immediate surgery. 6 The police were notified. At 4.45 pm Mr Donnelly underwent a laparotomy. Sixty-five pellets were removed. The operation was witnessed by the police who took possession of the pellets. 7 Later the same evening, the police searched Mr Donnelly's flat at Neutral Bay. The person with whom Mr Donnelly shared the flat handed the police a further 12 pellets, being the pellets he had regurgitated the previous day. 8 Each pellet was later examined. There were 77 pellets in all, each weighing about 5 mgs. One pellet contained 4.7 grams of cocaine. The remaining 76 contained the drug methylenedioxymethamphetamine (MDMA or ecstasy) in powder form. 9 On Sunday 14 November 2004, the police spoke to Mr Donnelly at the hospital. He was informed that he was under arrest for the possession of prohibited imports. He was also formally cautioned. 10 On 17 November 2004, a bedside court was conducted. Once discharged from hospital, Mr Donnelly remained in custody. Pleas of guilty were entered in the Local Court on 2 February 2005. When the matter came before Nield DCJ on 22 April 2005, the charges were reformulated and can be summarised as follows: Count 1 : That on 11 November 2004, he was in possession of a prohibited import, contrary to s233B(1)(a)(vi) of the Customs Act 1901, namely ecstasy, in an amount not less than the trafficable quantity of that drug. Count 2 : Further, that on the same day and contrary to the same section, he was in possession of the prohibited import cocaine, in a quantity not less than the trafficable quantity. 11 The Commonwealth Act, unlike the State Act, is concerned with the quantity of pure drug imported. In each case the drugs had a high level of purity, namely: · Ecstasy: 278.69 grams pure MDMA (representing over 77% of the 362.3 grams imported). · Cocaine: 3.9 grams pure (representing 84.6% of the 4.7 grams imported). 12 A "trafficable quantity" of MDMA or ecstasy under the Customs Act is 0.5 grams and a "commercial quantity" is 500 grams. Accordingly, as noted by his Honour, the amount imported exceeded by many times the trafficable quantity and was over half of a commercial quantity. 13 In the case of cocaine, a "trafficable quantity" is 2 grams and a "commercial quantity" is 2 kilograms. The amount imported, therefore, was just over the trafficable quantity.