Alpha v R

[2015] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Alpha v R [2015] NSWCCA 225
Hearing dates:	17 August 2015
Decision date:	17 August 2015
Before:	Leeming JA at [1]; Price J at [2]; R A Hulme J at [3]
Decision:	1. Extend time for the filing of the Notice of Application for Leave to Appeal to 2 June 2015; grant leave to appeal; and allow the appeal.  2. Quash the sentence imposed in the District Court on 17 October 2013 and in lieu, sentence the applicant to imprisonment for 6 years with a non-parole period of 3 years 8 months. The sentence is to date from 9 October 2012. The non-parole period will end on 8 June 2016 and the overall term will expire on 8 October 2018.
Catchwords:	CRIMINAL LAW – appeal against sentence – importing a marketable quantity of border controlled drug – 684 grams of cocaine – whether starting point of 12 years manifestly excessive – principles of sentencing for drug importation offences – application of guideline judgment in R v Wong and Leung (1999) 48 NSWLR 340 – relevance of quantity of drug - where applicant’s role greater than that of mere courier – no manifest excess established in starting point or resulting sentence   CRIMINAL LAW – appeal against sentence – importing a marketable quantity of border controlled drug – 684 grams of cocaine – where arithmetical error in applying discount for guilty plea and assistance conceded – re-exercise of sentencing discretion – total discount increased to 50 per cent – applicant re-sentenced
Legislation Cited:	Crimes Act 1914 (Cth) s 16G Criminal Appeal Act 1912 (NSW) s 6(3) Criminal Code (Cth) s 307.2
Cases Cited:	Adegoke v R [2013] NSWCCA 193; 234 A Crim R 280 Burns v R [2008] NSWCCA 260 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Kuti v R [2012] NSWCCA 43 McGeown v R [2014] NSWCCA 314 Minall and Watkins v R [2003] NSWCCA 311 R v Mas Rivadavia; R v El Akkaoui; R v Aksu [2004] NSWCCA 284; 61 NSWLR 63 R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 R v Vasquez [2003] NSWCCA 94 R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340 Wong v The Queen [2001] HCA 64; 207 CLR 584 Young v R [2007] NSWCCA 114
Category:	Principal judgment
Parties:	“Alpha” (Applicant) Regina (Respondent)
Representation:	Counsel: Mr J Stratton SC with Ms F Graham (Applicant) Mr Lenehan with Ms Bathurst (Crown)   Solicitors: Hunter and Braddon Lawyers Commonwealth Director of Public Prosecutions
File Number(s):	2012/312881
Publication restriction:	Non-publication order made on 17 August 2015 in respect of the name of the applicant and alleged co-offenders, none of whom are named herein
Decision under appeal	Court or tribunal: District Court Date of Decision: 17 October 2013 Before: Lakatos DCJ File Number(s): 2012/312881

Judgment

1. LEEMING JA: I agree with R A Hulme J.

2. PRICE J: I agree with R A Hulme J.

3. R A HULME J: This is an application for leave to appeal against a sentence imposed by his Honour Judge Lakatos in the District Court at Sydney on 17 October 2013 for an offence of importing a marketable quantity of a border controlled drug, namely cocaine.

4. A non-publication order was made at the commencement of the hearing of this matter for reasons which will become apparent. The applicant will be referred to in the name of the case by the pseudonym "Alpha" and herein as "the applicant".

5. The offence is contrary to s 307.2 of the Criminal Code (Cth) and the prescribed maximum penalty is imprisonment for 25 years and/or a fine of $550,000.

6. The learned judge imposed a sentence of imprisonment for 7 years 2 months with a non-parole period of 4 years 3 months dating from 9 October 2012.

7. The applicant seeks an extension of time in which to seek leave to appeal on the following grounds:

1   The starting point of the sentence of 12 years is manifestly excessive

2   His Honour erred in the application of the discount for an early plea of guilty and assistance to the authorities to the starting point for the sentence

3   The sentence imposed by his Honour is manifestly excessive

8. An extension of time is required. Given the Crown concedes there is merit in the second ground of appeal the extension should be granted.

9. The sentence was well within the range of the primary judge's sentencing discretion, particularly as this was a serious example of this type of offence. The reduction of the sentence on account of the applicant's early plea of guilty and his assistance was appropriate but there was a miscalculation that cannot be allowed to stand. No lesser starting point before the application of the discount is warranted but a lesser resulting sentence should be passed.

Facts

10. At some stage prior to 20 September 2012 the applicant communicated with two men who I will refer to as “K” and “H”, concerning the applicant arranging for a consignment of cocaine ordered by K to be imported into Australia. K paid the applicant $166,000. The applicant arranged for that money to be transferred to his (the applicant’s) father in Lebanon. The father retained $50,000 for the benefit of the applicant and himself and used the rest to acquire the drugs. The applicant obtained and provided his father with the details for the nominated recipient of the consignment, a man I will refer to as “M”.

11. Between at least 20 September and 9 October 2012 the applicant’s father sourced the drugs, likely from Germany, through other persons. When he received them he consigned them via air freight from Syria to Sydney. The cocaine was concealed within plastic tubes stitched within the fabric of a shag pile rug. The consignment arrived on 9 October 2012 but was intercepted by Customs officers. The pure quantity of cocaine was 684 grams; the gross weight being 1.14 kilograms (thus a purity of about 60 per cent).

12. During a period of several weeks in which the importation of the consignment had been delayed, the applicant was in communication with H, M and K. In communications with co-participants in the enterprise he utilised coded terminology in conversations via telephone services subscribed with false identification particulars.

13. The applicant obtained from his father the details of the freight carrier company and the airway bill number for the consignment after it had been sent from Syria. Although unsuccessful, he attempted to monitor the progress of the consignment with this information on the freight carrier’s website. He maintained contact with H with respect to M’s anticipated receipt of the consignment and planned to meet with H after learning that it had arrived.

14. The applicant was arrested on 9 October 2012 after the drugs had been intercepted. Incriminating evidence of a variety of sorts was found at his home. He declined to be interviewed. The alleged co-offenders attempted to make contact with him by telephone on numerous occasions (the calls obviously being unanswered) and they met on 12 October 2012, presumably to discuss what had happened to their investment in the cocaine.

15. The wholesale value of the cocaine was $207,000 and the estimated street value was between $489,000 and $547,000.

16. The Crown provided the sentencing judge with information concerning a conviction of the applicant in 2008 for supplying cocaine. He was involved in the actual supply of 2.65g of cocaine and was found to be in possession of two mobile phones, 54 grams of cocaine (71 per cent purity), about $3000 in cash, a small quantity of methylamphetamine and a set of scales. Two further offences were taken into account when he was sentenced: possessing a prohibited drug and dealing with property suspected to be the proceeds of crime.

The sentencing judge’s assessment of the seriousness of the offence

17. His Honour indicated at an early stage of his sentencing remarks that “this is a serious example of an importation of drugs”. Later, he described the applicant as being “part of a sophisticated drug supply chain”; “it was clearly an international operation”. He accepted that the applicant had an “important, high level and trusted organisational role and detailed knowledge with respect to a sophisticated cocaine importation”. He “brought together a sophisticated, organised overseas criminal enterprise concerned with the exporting of illicit drugs and the sophisticated organised Australian criminal enterprise designed to import such drugs”.

18. The judge also had regard to “a significant degree of planning, premeditation and deliberation” and the applicant’s acknowledgement that he was motivated by the prospect of financial gain. He also took into account that it was not an isolated occurrence but the first of a number of proposed importations. His Honour concluded this aspect of his sentencing remarks by stating:

“In my view, these objective facts place the offence at a high level of seriousness and call into play significant issues of general deterrence.”

19. Later, after reviewing a number of authorities in this Court concerning sentencing for this type of offence, his Honour reiterated: "this is in my view a particularly serious example of such a crime".

The applicant’s personal circumstances

20. The applicant was aged 33 at the time of the offence. He had a criminal history, the only significance of which was the previous drug supply matter for which he was sentenced in 2008 to imprisonment by way of periodic detention for 2 years 6 months. The judge made clear that this "does not warrant any increase in the appropriate sentence but it negates any mitigating factor".

21. He was born and raised in Lebanon and came to Australia with his brother in 2000, becoming an Australian citizen in 2003. He was described by the judge as having had a “turbulent upbringing”; his father was involved with trading in illicit drugs and his mother suffered from a mental illness. His parents separated when he was aged 10. His mother came to Australia in 2005 and the applicant and his brother had cared for her since.

22. The applicant had some employment, including being self-employed operating an expanding business until it failed. He had not worked since March 2012, some six months before the offence in question. The judge noted that the applicant said he became involved in the offence for financial benefit in the hope of starting up another business.

23. The applicant was married in Lebanon in 1999 but the marriage ended three years later after coming to Australia. He found the divorce stressful and he turned to using cocaine in 2003. He underwent detoxification and rehabilitation programs which were not completely successful but he did significantly reduce his usage. However, at the time of the offending he was using cannabis on a daily basis. Underlying his drug use is a history of depression and anxiety.

24. The applicant had provided information about his alleged co-offenders and an unconnected person. He undertook to give evidence; such offer to assist being first advanced only two days after his arrest. As a consequence he has been held in a segregation gaol in what the judge accepted were “significantly arduous” circumstances. He will likely remain in such an environment for the entirety of his sentence until released on parole. The judge also accepted from the evidence before him that “his fear of harm is real and not imagined”. There was also the fact that the circumstances of his custody meant he was denied access to employment, rehabilitation programs and the potential for work release.

25. The applicant gave evidence in the sentence proceedings and the judge accepted that he did so honestly. He accepted that the applicant was “truly remorseful and contrite”. He also accepted his stated intentions as to rehabilitation.

Other sentence considerations

26. The judge reviewed the schedules of cases concerning sentencing for drug importation offences provided by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 and by Fullerton J in Adegoke v R [2013] NSWCCA 193; 234 A Crim R 280. He also had regard to the general sentencing principles for this type of offence set out in the judgment of Johnson J in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72]. He noted that general deterrence "is of primary importance in relation to large scale commercial importations of dangerous drugs into this country".

27. His Honour concluded that "an appropriate starting point for the sentence is one of 12 years"; noting at that point of his remarks that:

"A cursory analysis of the cases that I have referred to in the authorities … indicates that the quantity of the drug in the present offence is at the higher end of the range as is the sophistication of the offence which is not to be considered as an isolated incident."

28. The judge allowed a combined discount of 45 per cent for the applicant's early plea of guilty and his assistance to authorities, specifying that it was made up of 25 per cent for the plea and 20 per cent for assistance, 15 of which was for future assistance.

Ground 2 – error in the application of the discount for plea and assistance

29. There was an inadvertent arithmetical error in the judge's reduction of the sentence on account of the applicant's plea of guilty and assistance to authorities. From the starting point that he announced of 12 years, a reduction of 45 per cent should have yielded a sentence (with a small degree of rounding) of 6 years 7 months. However, the sentence imposed was one of 7 years 2 months.

30. The Crown in this Court took the position that it would proceed to resentencing pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) if satisfied that it was the 12 year starting point with 45 per cent reduction that the judge intended as opposed to his stated resulting sentence of 7 years 2 months. I am so satisfied.

Ground 1 – manifestly excessive starting point of 12 years

Ground 3 – manifestly excessive sentence

31. Whilst it is strictly unnecessary to deal with these grounds given my view as to the success of Ground 2, it is useful to consider the merit of the submissions as that will assist in the resentencing task.

32. Written submissions by senior counsel for the applicant were almost wholly directed towards the first ground. However, it must be observed that it is not the "starting point" of a sentence that is the subject of appeal but rather the sentence actually imposed. In reality, it is the asserted severity of the "starting point" that the applicant says explains how the resultant sentence is manifestly excessive: McGeown v R [2014] NSWCCA 314 at [13]-[14] (Leeming JA).

33. It was submitted for the applicant that the weight of the drug in this case, 684 grams, was about one third of the marketable quantity range (250g to 2kg) yet the starting point of 12 years was just less than 50 per cent of the maximum penalty of 25 years.

34. It was observed that sentencing statistics maintained by the Judicial Commission of New South Wales showed that no offender received a head sentence greater than 12 years and the median sentence was 7 years. No offender received a non-parole period greater than 7 years and the median non-parole period was 4 years 6 months. (The statistics relied upon were for sentences imposed in the period October 2007 to September 2014. The currently available statistics for the period 1 July 2010 to 30 June 2015 are reasonably similar but not identical.)

35. Next, senior counsel for the applicant referred to the guideline judgment in R v Wong & Leung [1999] NSWCCA 420; 48 NSWLR 340 ("Wong and Leung") where (at [142]) Spigelman CJ indicated that in sentencing of "couriers and persons low in the hierarchy of the importing organisation" where the quantity of drug is in the range of 200 g to 1 kg the sentence would be in the range of 6 to 9 years.

36. Counsel noted the criticism by the High Court of Australia in Wong v The Queen [2001] HCA 64; 207 CLR 584 of the guideline in Wong and Leung but noted that this Court had subsequently said in R v Mas Rivadavia; R v El Akkaoui; R v Aksu [2004] NSWCCA 284; 61 NSWLR 63 at [67] (Wood CJ at CL) that the ranges set out in Wong and Leung remain a “useful reference point".

37. Reference was made to Director of Public Prosecutions (Cth) v De La Rosa where Simpson J (as her Honour then was) made some remarks (at [307]-[308]) concerning the significance of quantity in drug importation cases with her Honour adding that it "is not the only consideration, and must be tempered by other factors".

38. Three cases were cited, in which "where possible … the role of the offender was found to be greater than that of a mere courier": R v Vasquez [2003] NSWCCA 94 (sentence of 9 years); Minall and Watkins v R [2003] NSWCCA 311 (7 years 6 months); and Kuti v R [2012] NSWCCA 43 (7 years 6 months).

39. Finally, counsel observed that the sentencing judge "did not find that the applicant was a principal, or even that he was at a mid-level in the hierarchy". It was contended that K was in fact the principal and that he was assisted by H as a middleman in his dealings with the applicant.

Consideration

40. The submissions for the applicant based upon statistics cannot be accepted. They seek to compare the starting point before reduction for plea and assistance in the present case with sentences imposed in other cases where the vast majority of offenders pleaded guilty (82 out of 95 in the current iteration), and for whom some reduction of sentence would usually have been made on that account.

41. The statistics allow for selection of the variable "plea of guilty" but there is no provision to identify cases in which there has been a further reduction for assistance to authorities. All that can be said is that a sentence of 6 years 7 months (when correctly calculated) is around the median sentence for all offenders.

42. The submissions of the applicant concerning Wong and Leung must be rejected. First, while Wood CJK at CL referred to the sentencing range in Wong and Leung as a “useful reference point” (at [67]), that remark has to be seen in the context in which it was made:

“[65] Notwithstanding the criticisms which were expressed by the High Court in Wong v The Queen (2001) 207 CLR 584 concerning the extent of the emphasis that had been given in the guideline to the weight of the narcotic involved, and concerning the need for greater attention to be given to the role played by the offender, the range of sentences which were suggested by the Court of Criminal Appeal continued to be regarded as providing a useful guide before the repeal of ss 16G and s 19AG (which had made similar provisions in relation to non-parole periods: see for example R v Taru [2002] NSWCCA 391; R v Marchando [2003] NSWCCA 71 and R v Cerullo [2003] NSWCCA 201).

[66] Guideline decisions have occupied an important role, in this State in establishing general sentencing patterns which have emerged for offences of the kind to which they relate, and the decision in R v Wong and Leung is no exception. However, such judgments have never been intended to operate as strait jackets. Their role is to provide indicators of sentences that have been found to be appropriate, in the general run of cases, to which they are directed. They are, accordingly, expected to be taken into account, by sentencing judges although without excluding the important discretion to take into consideration the differences, objectively and subjectively, which exist in the individual case before the court: R v Karacic (2001) 121 A Crim R 7 and R v Whyte (2002) 55 NSWLR 252.

[67] They are sounding boards which provide an important final check once proper consideration is given to the objective and subjective circumstances, and to the need to ensure that the sentence meets the various requirements of punishment, retribution and deterrence. As such they also provide a useful reference point for this Court when it is asked to review a sentence for manifest leniency or inadequacy.” (Emphasis added)

43. Wood CJ at CL proceeded to discuss the significance of the repeal of s 16G of the Crimes Act 1914 (Cth) before concluding:

“[84] To the extent that regard is had to R v Wong and Leung, in the indicative way for which guideline sentences are intended, or to the extent that reference is made to pre s 16G and 19AG sentencing patterns, or to those which will now emerge following the repeal of those sections, it is important for Judges to bear in mind:

(a) That R v Wong and Leung was decided in a context where s 16G required an adjustment to be made, although that adjustment was not one that was mathematically and unequivocally linked to a discount of 30 per cent, since there remained an area for sentencing discretion; and

(b) That it is no longer permissible to make an allowance for the s 16G factor.”

44. When it is recognised that the 6 to 9 years indicated in Wong and Leung was regarded as generally appropriate for a "courier" or "persons low in the hierarchy of the importing organisation", one can immediately see that for a person who played a more significant role, as the applicant in the present case did, and who was not entitled to a s 16G discount, a starting point of 12 years is unremarkable.

45. The "comparable" cases relied upon by the applicant are all distinguishable. If anything, they support the adoption of at least a 12 year starting point rather than characterise it as excessive.

46. In R v Vasquez, the sentence under consideration (and only on a parity basis) was imposed on 14 January 2000. Section 16G was repealed with effect from 16 January 2003. Thus the sentence of 9 years for importing 649 g of cocaine may be assumed to have been the subject of a significant reduction on account of that provision. There was also some unquantified reduction on account of the offender's plea of guilty at what may be inferred to have been an early stage.

47. The sentences of 7 years 6 months imposed upon each of the offenders in Minall and Watkins v R for the importation (by internal concealment) of 437 g of cocaine were also the subject of a "discount" on account of s 16G. The offenders had no criminal records and had pleaded guilty at, by inference, an early stage.

48. Kuti v R involved sentencing after the repeal of s 16G. A man from an impoverished background arrived in Sydney on a flight from Nigeria with 452 grams of heroin concealed internally. The sentencing judge accepted that he became involved as a result of threats and in order to expunge a debt. His role was held to be that of a courier. He was 69 years of age with no criminal record. His wife, with whom he had four children, was ill before he came to Australia and had died before he was sentenced. He was genuinely remorseful and there was a discount of 25 per cent for his plea of guilty; the starting point for the sentence therefore being one of 10 years.

49. The offence in the present case was of a higher level of seriousness than the offenders in each of those cases.

50. The submission by the applicant's counsel that the ranges of sentences in Wong and Leung and the three cases just mentioned "suggest that the appropriate starting point for an importation of about 700 grams of pure cocaine was in the order of 9 years" must be rejected for the foregoing reasons. It must also be rejected to the extent it may be taken to suggest that in sentencing for drug importation offences there is a "starting point" based on quantity with adjustments then made for other factors: cf Wong v The Queen at [74]-[75] (Gaudron, Gummow and Hayne JJ). (See also, Kirby J at [138]-[139].)

51. The erroneous emphasis upon the quantity of the drug in the applicant's submissions also means that the comparison of where within the range of the marketable quantity 684 grams falls with the proportion of the maximum penalty represented by the starting point of the sentence must also be rejected.

52. The applicant's contention as to manifest excess, either in the starting point or in the resulting sentence, is not made out.

Resentencing

53. The submissions for the Crown pointed out that where an arithmetical error is the sole basis of this Court's intervention in a sentencing appeal such intervention has been confined to simple correction. Burns v R [2008] NSWCCA 260 at [34], [37] and Young v R [2007] NSWCCA 114 at [26]-[28] were provided as examples. However, the Crown submitted that after Kentwell v The Queen [2014] HCA 37; 252 CLR 601 it seems necessary for the Court to re-exercise the sentencing discretion afresh. I am not sure that this will always be necessary; it seems to me that it would depend upon the nature of the error. However, in the present case I am prepared to carry out the task.

54. I have earlier set out the findings made by the sentencing judge as to the seriousness of the offence (see above at [17]-[19]). There was no challenge to any aspect of them. It is true that the judge did not describe the applicant as "a principal". But the applicant's submissions ignore the description of the applicant as having "an important, high level and trusted organisational role" with "detailed knowledge with respect to a sophisticated cocaine importation". Moreover, the applicant was regarded as having "brought together a sophisticated, organised overseas criminal enterprise, concerned with the exporting of illicit drugs and a sophisticated organised Australian criminal enterprise designed to import such drugs".

55. Having considered the factual basis of the offending I find myself in complete agreement with the unchallenged findings of the primary judge. The various findings made concerning aspects of the applicant's subjective case were also not the subject of any challenge. As I am in agreement with them I am prepared to act upon them, including as to the level of discounting his Honour assessed.

56. An affidavit sworn by the applicant on 31 July 2015 provided further information about the circumstances of his custody arising as a result of his assistance. It does not add anything of significance to the information that was before the primary judge but it does confirm his Honour's assessment of the applicant's custodial conditions as "arduous".

57. A further affidavit by a police officer which was read at the hearing described assistance provided by the applicant subsequent to sentencing. It is not appropriate to go into the detail; that is available within the document marked as confidential Exhibit B. It justifies, in my view, an increase in the level of discount to 50 per cent (which the Crown conceded was open); the assistance component being 25 per cent, 15 of that being for assistance in the future.

58. I have had regard to the sentencing principles summarised by Johnson J in R v Nguyen; R v Pham and also the useful examples of sentencing provided by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa. They lead me to conclude that nothing less than 12 years is warranted as a starting point for the sentence. It should be reduced by 50 per cent on account of the applicant’s plea and assistance. The non-parole period should be 3 years 8 months.

Orders

59. I propose the following orders:

1   Extend time for the filing of the Notice of Application for Leave to Appeal to 2 June 2015; grant leave to appeal; and allow the appeal.

2   Quash the sentence imposed in the District Court on 17 October 2013 and in lieu, sentence the applicant to imprisonment for 6 years with a non-parole period of 3 years 8 months. The sentence is to date from 9 October 2012. The non-parole period will end on 8 June 2016 and the overall term will expire on 8 October 2018.

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Decision last updated: 18 August 2015