Di Tommaso v The Queen [2010] VSCA 178

2 The appellant, who is some 26 years' old, was born and lived most of his life in Italy. In 2006 he visited Australia for a holiday for three months. In 2008 the appellant returned to Australia on a working visa. Towards the end of 2008 the appellant and his cousin went to Thailand for a holiday. When the appellant arrived at Melbourne Airport, he was asked to consent to an internal examination for drugs. He refused. He was later escorted to a toilet cubicle, which the appellant locked to prevent entry by Federal Agent as escort. The escort broke down the cubicle door and in the toilet pan the police found a wrapped pellet containing cocaine. The cocaine weighed a total of 54.1 grams and was of 63.9 percent purity. Accordingly the weight of pure cocaine was 34.5 grams. The Criminal Code Act 1995 provides that a marketable quantity of cocaine is one weighing between 2 grams and 2 kilograms. The maximum penalty for the offence is imprisonment for 25 years and/or a fine of $550,000.00

3 The appellant comes from Pescara. He left school in Year 10 and worked in labouring jobs. His father is an insurance broker. His mother has a psychiatric illness which apparently caused the appellant to have a difficult childhood. The appellant has no prior convictions.

4 A report by a psychologist was tendered during the course of the plea. The psychologist was of the opinion that the appellant had the capacity to reflect on the impact that his behaviour had on himself and others but that his judgment and reasoning skills were limited. The appellant tended to be impulsive and have a low tolerance for internal distress. The psychologist said that he was mildly depressed as a consequence of the position in which he found himself. Psychometric testing indicated that his intelligence was in the average to low average range. The psychologist said that the appellant was not so much anti-social as immature. His lack of ability to speak English and his emotional immaturity would render imprisonment more difficult for him than another.

5 There are two grounds of appeal. The first is that the judge's findings regarding the purpose of the importation proceeded upon an uncertain and erroneous footing. The appellant pleaded guilty to the offence of importing a marketable quantity of a border controlled drug, contrary to the provisions of s 307.2(1) of the Criminal Code. Section 307.2(4) provides that it is a defence to prove that the accused did not intend to sell any of the border controlled drug and did not believe that another person intended to sell any of the drug. The burden of proof resting upon the appellant is one to be discharged on the balance of probabilities. See s 313.4(b) of the Code. If the drug is imported for personal use, or some other non-commercial purpose, the importer commits an offence under s 307(4).

6 The appellant did not seek to discharge the burden of proof cast upon him by s 307.2(4). No evidence was adduced by or on behalf of the appellant. Nevertheless, counsel and the judge debated the question. His Honour's findings were somewhat ambiguous. He said:

You decided to bring cocaine into Australia for your own use. The value of drugs at street level in Australia is said to be $24,000.00 to $32,000.00. At wholesale it is said to be between $9,000.00 and $10,000.00. Those figures suggest that there is a strong commercial incentive to import drugs from Thailand into Australia.

7 Counsel for the appellant submitted that the judge's approach to the question and his sentencing remarks created such uncertainty as to the legal basis upon which the plea was conducted and the findings that were made, that there has been sentencing error and accordingly the sentence should be set aside. Counsel contended that the appellant should have been sentenced on the basis that the judge could not be satisfied beyond reasonable doubt that the substance was imported for a commercial purpose. I do not agree.

8 It appears that the appellant was sentenced upon the basis that there was a commercial purpose for the importation. That was clearly correct. The appellant

pleaded guilty to charge under s 307.2(1) of the Code. The appellant did not establish that the drug was intended solely for his personal use. No burden lay upon the Crown to establish that the importation was for a commercial purpose. In my opinion, the structure of s 307 of the Code does not permit an enquiry as to the use of the drug contemplated by the importer, independently of the question whether the offence is one under s 307(2) or s 307(4).

1"> 9 The second ground of appeal is that the sentence is manifestly excessive. Counsel for the appellant relied upon a number of mitigating factors: the appellant's youth; immaturity and impulsivity; his previous good character; his work history; his prospects of rehabilitation; his mild depression; his remorse; the hardship to the appellant of serving a term of imprisonment as a consequence of his poor English; the circumstances of the offence; and importantly, the early plea of guilty.

10 On the other hand, the maximum of penalty is one of 25 years' imprisonment and the importance of general deterrence in dealing with the offence is apparent. It appears to be common ground that the appellant organised the importation himself and the value of the cocaine was significant, factors were militating against leniency.

11 The sentencing judge appears to have considered each of the mitigating factors now relied up by the appellant. Reports of decisions in comparable cases show that the sentence imposed upon the appellant was of the same order as sentences in like cases. In my opinion the sentence imposed upon the appellant was within the range of a sound sentencing discretion. I would dismiss the appeal.

13 The order of the Court is that the appeal is dismissed.