Lindsay v R [2012] NSWCCA 124

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lindsay v R [2012] NSWCCA 124 Hearing dates: 23 May 2012 Decision date: 14 June 2012 Before: Allsop P at [1] Davies J at [20] Schmidt J at [21] Decision: 1.Grant leave to appeal on the issues raised in the supplementary written submissions dated 23 May 2012, otherwise leave to appeal refused. 2.Appeal dismissed. Catchwords: CRIMINAL LAW - sentence - importing marketable quantity of border-controlled drug - duress - drug debt - threats to offender's family - reliability Legislation Cited: Criminal Code (Cth), s 307.2(1) Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 Tiknius v R [2011] NSWCCA 215 Category: Principal judgment Parties: Angus John Lindsay (Applicant) Regina (Respondent) Representation: A Francis (Applicant) G Farmer (Respondent) Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2010/261704 Decision under appeal Before: Wells DCJ

Judgment 1ALLSOP P: This is an application for leave to appeal against a sentence imposed by the District Court on 20 May 2011 in respect of the applicant's conviction in respect of an offence contrary to the Criminal Code (Cth), s 307.2(1) of importing a marketable quantity of a border controlled drug. The drug was cocaine. The applicant had over 400 grams (352.1 grams pure) of cocaine hidden on his person. He was stopped and questioned at Sydney airport after disembarking a flight from Bangkok on 6 August 2010. He pleaded guilty. A marketable quantity of cocaine for s 307.2(1) was two grams to two kilograms. The maximum penalty for the offence was 25 years imprisonment. 2He was sentenced on 20 May 2011 to a term of imprisonment of a non-parole period of five years six months with a balance of term of three years. 3The facts are set out in the applicant's written submissions at paragraphs 5 to 13. I will refer to them as necessary below. 4The matter came before this Court on Monday 21 May 2012. Written submissions had been filed in support of the sole ground of appeal, that the sentence imposed was manifestly excessive. An application for an adjournment to Wednesday 23 May was granted on the basis of inconvenience to counsel due to family matters. New counsel appeared on 23 May with additional written submissions. Those submissions were directed to a specific point not referred to in the grounds of appeal: that a finding of duress, falling short of the legal defence of duress, should have been made and in the absence of such a finding no proper weight was given to this matter in the assessment of the criminality of the offence. No objection was taken by the Crown to the variation in argument based on the form of the grounds of appeal filed. 5In my view, there are no real prospects of success of demonstrating that the sentence is manifestly excessive. 6The findings of the learned sentencing judge noted that there was a degree of planning, that while there was a lack of clarity about the true role of the applicant, he was not a mere courier and his involvement included booking his travel and his hotel accommodation and that he was 44 and had a lengthy criminal history including offences involving drugs, stealing and dishonesty. 7Considerable weight was placed by original counsel for the applicant on the categorisation of Commonwealth drug offences by the Chief Judge at Common Law in De La Rosa [2010] NSWCCA 194; 205 A Crim R 1. It was said that the applicant fell into the third of the Chief Judge's categories, not the second. The range of sentences for this (third) category (thematically described as involving lower quantities, monetary reward or relief of debts, guilty pleas, mere courier role and adverse personal circumstances) was a head sentence of 3.75 to 6 years and a non-parole period of 2 to 4.25 years. 8Two things can be said immediately about this approach. First, although the applicant conceded that the Chief Judge's categories in De La Rosa were not legally binding, the submissions really worked on that hypothesis. The categorisation in De La Rosa should not be used as anything other than general guidance and assistance. The categories are not binding. Secondly, the overall criminality of the offence involves an evaluative assessment of all factors. If one were to characterise the offence by reference to the Chief Judge's categories, it is more than arguable that, given his role was something more than being a mere courier, in particular because of his participation, to a degree, in the planning of the offence, the applicant fell within the second category. That category had a range of head sentence of six to nine years with a non-parole period of three to just over five years. 9Thus analysed, I would not have granted leave. 10The additional submissions had more force. Central to the applicant's case on sentence was the assertion that he and members of his family in England had been threatened with violence by those behind the enterprise. These threats were said to have their genesis in an unpaid drug debt of some £6,000. Initially, on the first day of the sentencing hearing, 8 April 2011, the applicant attempted to provide substantiating evidence of this by the tender of an email letter from his sister in England. The tender was rejected. Her Honour said on that occasion that it touched upon "important issues" and that "some other avenue of putting the evidence before the Court be explored". Whilst that evidence was not led on that day, the applicant gave oral evidence, upon which he was cross-examined, about the drug debt, the alleged intimidation and other matters relevant to his sentence. 11It was submitted in the additional submissions that it was not put to the applicant in cross-examination that there was no pressure exerted upon him in the nature that he contended. This is not the case. During his cross-examination there were questions which challenged the veracity of his evidence about the duress. For instance, it was put to him that he had not told the social worker who prepared a report that his family had been threatened, but rather he had stated that the reason why he undertook to import cocaine was to pay off drug debts. In a body of transcript which, on its face, reflects a degree of evasion, the applicant's explanation for this was that he was not asked that question. There are also questions of him by counsel for the Crown and the judge about the fact that he did not inform the police of his family being threatened. Nevertheless, when the matter resumed on 20 May 2011 two affidavits were read without objection. The first of those affidavits was of the applicant's sister and the second of his mother. The applicant's sister said, amongst other things, the following: "6.Before Angus left England, I had received threats from some people who were after my brother stating that he owed them some money. I had some phone calls from a man whose voice I did not recognize, on approximately 28th June 2010, stating that if Angus did not get some money he owed them they would harm us. As best as I can recall, he said 'You know where your brother is, tell him we want our money or someone is going to get hurt'. I disconnected the call. I was worried as I did not know how he had got my number. 7.I had a man come to my house and threaten me and my son on approximately 5th July 2010 at about 2130 to 2200 hrs, I recall it was getting dark outside. He said 'If you do not tell Angus to get us our money we will come and fire bomb your house'. 8.The man was approximately 5'10" with short brown hair. He was thin and was very agitated and hostile. He demanded my son give him his mobile phone stating 'I know you are speaking to him and that you know where he is'. I gave him my son's mobile and he checked his contact number list however the number listed for Angus was not working. He then demanded that I tell him Angus's whereabouts, I said 'He is out of the country but I don't have an exact address'. He accused me of lying and said 'I know these people are serious, they are not people you want to mess with, they will come here and fire bomb your house or go to your mum's, we know where she lives'. During this conversation the man was shouting and agitated he also told us 'Don't tell the police'. I didn't report the incident to the police as I was frightened this may exacerbate the situation. I knew my mother had previously had someone at her house and that she had felt intimidated. 9.I told my brother, about this incident and was angry with him telling him he had endangered his family and shortly afterwards I heard he had committed this crime. 10.My mother had also spoken to my brother about the contacts with her and with myself. 11.All the dates and times are approximate as it was a stressful time. 12.I feel that he took this action as a means of trying to protect his family. As I have previously stated I think that Angus would take any action to protect us. 13.These people are reportedly dangerous people who I genuinely felt would harm us. I believed that they might even attempt to kill us due to the fire bomb threat. We are not a family with money to assist him as we all work in the public service. Angus was aware of this. 14.I know that Angus is distressed by the fact that this will mean he cannot see our mother for quite some time as she is too elderly to make the trip to Australia." 12The applicant's mother said the following, amongst other things: "6.Before Angus left England in July 2010, I had received threats from some people who were after my son stating that he owed them some money. I had some phone calls on approximately 28th June 2010 in the evening stating that if Angus did not get some money he owed them they would harm me. As best as I can recall, he said 'He had better get our money or someone will get hurt'. I took this to mean that either Angus, myself or another member of my family were being threatened. I was very upset and frightened. I told my son this and he felt it would be safer for us and him if he left our address and Town. Shortly afterwards he left the UK. 7.On approximately 3th [sic] July 2010 a man came to my home during the late afternoon, he was tall and balding, he asked where my son was and when I said 'I don't know', he said 'I know you do. Why are you lying?' I again said 'I don't have his address' and the man left. 8.Not long after this my eldest daughter and her son, my grandson were also threatened. I told Angus when he rang me. He was very worried about our safety. 9.Later I heard he had committed this crime." 13These affidavits had been given to the Crown beforehand. Objection to their admissibility was not taken. The Crown did submit, however, that the Court should give consideration to the fact that it was unable to test the evidence of the sister and mother as they were unavailable for cross-examination and that the evidence should be given reduced weight to that extent. 14The judge then proceeded to sentence the applicant. In her Honour's remarks on sentence the following appears: "This offender, through the evidence tendered to this Court by way of affidavits from his sister and his mother and through other statements made by him since his arrest, contends that his involvement in this offence was almost out of his control, that is, he committed the offence under duress. He contends that he was forced by a drug debt of some 6,000 pounds to commit this offence. Whether or not he did owe such a debt, and I accept to some extent there were people after him for money, it does not really assist him in mitigating the motivation for him committing this offence. The amount of 6,000 pounds, to someone who has been unemployed for a period of six or seven years is no doubt a large sum of money. If it were the case that he owed a debt of that magnitude, it would have been difficult for him to obtain that kind of money. However, to make the claim that the only way that he could solve the problem of the drug debt was by engaging or becoming involved in this importation does not really assist him. In relation to a debt of that kind, there were other options available to this offender including, perhaps, borrowing money from his mother or members of his family who seemed to have incomes and are supportive of him, or borrowing from another source. Furthermore, I have some slight reservations as to the pressing nature of this debt given that his first concern expressed to the police when interviewed formally was that he did not want to spend his time in prison known as an informer. His concerns for the threats to his family seem somewhat secondary to that. At any rate it does not matter a great deal whether he was motivated by a past debt for drugs or whether it was a present need for money for drugs, there were other avenues, open to him other than being involved in the importation of this large quantity of cocaine into this country. ... In sentencing the offender, his early plea of guilty is taken into account and a twenty-five per cent discount is allowed for the utilitarian benefit of that plea. The present offence is not an aberration as he has past drug related offences on his record. One offence attracted a four-year sentence of imprisonment in England and, as such, must have been significantly serious. His personal drug addiction provides nothing in the way of mitigation for an offence as serious as this. As I have already indicated, it was a premeditated act committed for a financial gain of sorts, either to pay off a debt or for some other purpose." 15The applicant submitted that there was uncontradicted evidence of threats to the family. That is putting the matter too high. The Crown submissions as to the inability to cross-examine had a degree of force. It is tolerably plain from the remarks on sentence that the sentencing judge was not particularly impressed by the evidence of the applicant. Her Honour took into account the evidence of the sister and mother. What she was not persuaded of, partly because of the lack of reliability of the applicant's evidence, and partly because of the size of the asserted drug debt, was that the pressure of his "creditors" was truly pressing on him as a motivation to commit this crime. She remarked that his first concern expressed to the police was that he did not want to spend his time in Australia in prison as an informer and that his concerns for the threats to his family seem somewhat secondary to that. Thus, the uncross-examined evidence of the mother and sister does not necessitate a finding that these matters were what weighed on the applicant. What weighed on the applicant depended upon his evidence and its acceptance by the sentencing judge having seen him. 16In these circumstances, it is not correct to say that her Honour failed to make a finding which she was bound to make. 17Reliance was placed upon a number of cases, but in particular Tiknius v R [2011] NSWCCA 215. Nothing in Tiknius required any firmer or more precise finding on so-called duress that was favourable to the applicant. The sentencing judge considered all evidence led on behalf of the applicant and expressed herself in a manner that did not leave out of account any factual consideration nor leave unfound any fact necessary and required to be found. 18Indeed, the judgment of Johnson J in Tiknius (with whom Tobias AJA and Hall J agreed) has remarks in it which do not assist the applicant. The consideration of general deterrence in offences of this kind is significant. It can be taken that those behind drug importations may well often groom or pressure persons of weaker will to carry out the tasks of the actual importation and undergo the risk of detection. That has been referred to as an unremarkable feature of many importation offences. Courts should be astute not to permit general deterrence to be diluted by the claim of some threats or intimidation. Of course, every case must be examined on its own particular facts and the evidence led. That is precisely what the learned sentencing judge did on this occasion. 19In my view, no error of the sentencing judge has been demonstrated. There was sufficient ground, in my view, to warrant leave to appeal being granted on the matters raised in the supplementary submissions but the appeal should be dismissed. Orders that I would make would be: 1.Grant leave to appeal on the issues raised in the supplementary written submissions dated 23 May 2012, otherwise leave to appeal refused. 2.Appeal dismissed. 20DAVIES J: I agree with Allsop P. 21SCHMIDT J: I agree with Allsop P.