Boulette v The King

[2024] NSWCCA 217

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Boulette v R [2024] NSWCCA 217

Hearing dates:

26 August 2024

Decision date:

29 November 2024

Before:

N Adams J at [1];
Ierace J at [2];
Sweeney J at [76]

Decision:

(1)   Leave to appeal granted;

(2)   Appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manifest excess — Whether sentence plainly unjust in all the circumstances of the case

Legislation Cited:

Crimes Act 1914 (Cth), s 16A(2); Pt IC

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Code Act 1995 (Cth), s 307.1(1)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Lau v R [2011] VSCA 324

Legault v R [2014] NSWCCA 271

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen [2013] NSWCCA 136

R v Agboti [2014] QCA 280

R v Banker [2016] QCA 74

R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238

R v Pham (2015) 256 CLR 550; [2015] HCA 39

Tsen v The Queen [2010] WASCA 21

Yip v R [2017] VSCA 231

Category:

Principal judgment

Parties:

Alexine Boulette (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Fernando (Applicant)
K Breckweg (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2022/00369622

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

15 December 2023

Before:

Mendes DCJ

File Number(s):

2022/00369622

JUDGMENT

1. N ADAMS J: I agree with Ierace J.

2. IERACE J: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) a sentence imposed on her on 15 December 2023 by Mendes DCJ. The applicant pleaded guilty to a count of importing a commercial quantity of a border-controlled drug, being methamphetamine, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is life imprisonment (and/or 7,500 penalty units). The applicant received a term of imprisonment of 6 years, commencing on 7 December 2022 and expiring on 6 December 2028, with a non-parole period of 3 years and 5 months, expiring on 6 May 2026.

3. The sole ground of appeal is that the sentence was manifestly excessive.

4. The applicant, who was aged 47 at the time of the offence, was arrested on 7 December 2022 at Sydney Airport following her arrival on a flight from Canada via Fiji, when her luggage was found to contain almost 5kg of a substance that included methylamphetamine (an equivalent of 3.915kg of pure methylamphetamine). She pleaded guilty to the charge in the Local Court and was committed for sentence to the District Court.

The sentence proceedings

The Crown case

5. The Crown bundle included a statement of agreed facts and the applicant’s custodial history, which disclosed no prior offences in New South Wales. The applicant is a Canadian national and it was accepted by the parties that she does not have a criminal history.

The agreed facts

6. The agreed facts for sentence are to the following effect.

7. The applicant departed Vancouver, Canada on 5 December 2022 on a flight to Sydney with a brief stopover (three and a half hours) in Nadi, Fiji. She arrived in Sydney on the same day and was due to fly back to Canada on 13 December 2022 via a five-day stopover in Fiji. Her incoming passenger card indicated that her reason for travel was “holiday”.

8. Upon arrival in Sydney, the applicant collected her checked baggage, which was a large suitcase. She was escorted by an Australian Border Force officer (an ABF officer) into an examination area. She stated that she had read the incoming passenger card, fully understood the questions contained within it and completed and signed it. She said that she had personally packed her bags and that she was fully aware of their contents.

9. Swabs were taken of the applicant’s handbag and mobile phone which returned presumptive positive results for methamphetamine and cocaine. When those results were put to the applicant, she responded “I don’t know, I never used them”.

10. Two sealed product bags of “Iron Vegan Athletes Gainer” were located within the applicant’s suitcase. When asked who they were for, she said “It’s for my friend in Fiji. I’m going there on my way back to Canada for her wedding”.

11. On examination, the commercial sealing of the two bags appeared to have been cut and resealed. One of the bags was cut open to reveal a white/clear crystal-like substance. Shortly thereafter, Australian Federal Police officers (AFP officers) attended, arrested the applicant and informed her of her rights as required by Pt IC of the Crimes Act 1914 (Cth).

12. The AFP officers became concerned about the applicant’s mental state and called an ambulance. According to records of New South Wales Ambulance, the applicant reported experiencing auditory hallucinations and said that she had a bipolar disorder. She declined further treatment, saying that hearing voices was “normal” for her.

13. The applicant then participated in a recorded interview with the AFP officers, during which she said the following:

1. She did not fly directly to Sydney because it was cheaper to go via Fiji, although she could not recall how much the airfare was;

2. She was planning to go sightseeing in Sydney, including the Opera House;

3. She did not pack her bags herself. She gave her clothes to friends who packed them for her;

4. These friends are more acquaintances and her communications with them was through a closer friend named “Jenna”;

5. These friends told her that they would include some “vegan protein stuff” for “Priya”. They told her “Oh it’s just vegan protein powder”, and that she “didn’t know it was going to be fucking drugs”;

6. She used to work with “Priya”, who now lives in Fiji. She was to give the powder to Priya on arrival in Fiji;

7. These friends drove her to the airport where she locked her bag without looking inside;

8. She sensed that the protein powder was rocky but never saw inside the bag;

9. She had intended to bring a dress to wear to the wedding, but her friends decided there was no room for it;

10. She lived in a form of social housing, was currently on medication, had mental health issues and difficulties with sleeping;

11. At one point during the interview, she said that she could hear her sister talking to her in her head;

12. She paid for the trip with a combination of cash and credit using a credit card. The cash was sourced from her own savings and from a friend of a friend;

13. In response to a question about who had organised her trip, that she did not want to say anything more until she had sought advice from her lawyer.

14. The applicant’s Canadian passport was issued on 30 November 2022; her plane tickets were purchased on 1 December 2022; her visa for entry into Australia was granted on 2 December 2022, and her accommodation in Sydney was booked on the same day, for six nights at a hotel in Burwood.

15. A forensic examination of the applicant’s mobile phone revealed text message communications about drugs with several contacts, some of which, I note, were not apparently related to the current offending. On 5 November 2022, she received messages from a person saved as “Chauhan Neal” in her phone, saying:

“Get jet black hair dye just for men and a pack of rolling papers and weed. You and I need to blaze. Get an oz off Adam for me. He owes me 2 ounces.”

16. On 17 November 2022, the applicant had a text message exchange with “Jenna”, being the same name as that of the friend she referred to in her police interview, discussing the applicant’s passport and upcoming ‘vacation’. Jenna sent the messages:

“If you don’t come back then I’m not gonna help I swear to god. Mikey even agreed that I need help with this passport shit. He hast (sic) to give you money tomorrow If you don’t come back you’re not gonna get the money.”

17. The applicant replied:

“Fine I will just pau [sic] himself $150 that he gave myself back to on the 23rd of this month than”

18. Jenna responded:

“Then you lose out on the whole vacation just because you want to keep changing your mind. I already talked to you about this Sweets you don’t do that to your friends I would never do that to you that’s so rude”

19. On 20 November 2022, the applicant had a text message exchange with a person saved as “Neil”. She received a message from “Neil” saying “Looking forward to 6 o’clock”, to which she replied, “Me too”, following which “Neil” said, “Come a bit early if possible … So we can have a smoke together”. The applicant responded, “Sure”; “Neil” wrote back “Can you get a hold of Adam I need my stash”, to which the applicant again responded “Okay”, after which “Neil” explained, “He owes me 2 ounces”.

20. Call logs on the applicant’s phone included a call to a number not saved on the phone on 6 December 2022 for a duration of 2 minutes 14 seconds; two attempts to call the same number soon after she arrived in Sydney on 7 December 2022; a third attempt to call the same number minutes after, which connected and lasted for 57 seconds; and a missed call from “Jenna” about an hour after her arrival in Sydney.

21. The gross weight of the crystallised substance was 4,979.9g, which, upon testing, was found to be methamphetamine with a purity of 78.6 per cent. The calculated pure weight of the methamphetamine (according to the agreed facts) was 3,914.9g, which I note is 5.2 times the commercial quantity (750g).

The defence case

22. The defence tendered two forensic reports, one by a neuropsychologist, Nicole Skea, dated 5 July 2023, that was primarily concerned with the applicant’s cognitive functioning and her fitness to be tried, and the other by a forensic psychiatrist, Dr Richard Furst, dated 8 September 2023, which was written to assist the sentencing court.

23. The applicant’s background, as it was recorded in those reports, is to the following effect. The applicant was born and raised in Vancouver, Canada. Her parents divorced when she was young. Thereafter, she resided with her mother, older brother and three half-siblings. Ms Skea noted that the applicant denied experiencing or witnessing any abuse, neglect or exposure to parental alcohol and illicit substance use, although Dr Furst referred to the applicant’s father being “a heavy drinker/alcoholic and he also used drugs; however, he was not violent”.

24. The applicant attended mainstream schooling and completed Year 12, although she had to repeat Year 6 because of delays in her reading comprehension. After school, she worked in various jobs in the hospitality and retail sectors. She gambled excessively for many years, generally on slot machines, becoming bankrupt in 2015 as a consequence of gambling losses. She struggled to hold down employment after her father passed away in 2019, and she ceased work altogether in 2021 after her mother passed away.

25. The applicant was diagnosed with a bipolar disorder and a schizoaffective disorder at the age of 21 after suffering a miscarriage. An episode of mania she experienced at that time required hospitalisation. She had relapses of her bipolar disorder thereafter, including hospitalisations on several occasions, her longest admission being for about three months. She came under the care of a number of psychiatrists in Canada who treated her illness with psychotropic and antipsychotic medication. She reported ceasing to take her prescribed mood-stabilising/antipsychotic medication some three months prior to departing Canada, although she was still receiving depot injections of Buvidal (buprenorphine), which I note is a partial opioid agonist used in the management of opioid dependence.

26. The applicant commenced consuming alcohol, cannabis and cocaine in her adolescence and late teens, although she was not a heavy drug user at that time. As to the applicant’s drug use, Ms Skea reported:

“[The applicant] told me that after her dad passed away four years ago and her mother two years ago, her substance use increased, and she started crushing and snorting methamphetamine daily. She told me she used illicit substances to manage the grief from her mother and father’s death, to manage her negative mood states, to counteract the side-effects of her bipolar disorder and to improve her daily functioning … She reported being heavily under the influence of cannabis, methamphetamine and cocaine at the time of the subject offences and she felt that her illicit substance use in conjunction with her mental health was the cause for her offending behaviour.”

27. The applicant completed two hours of psychometric testing with Ms Skea which excluded the presence of cognitive impairment or intellectual disability:

“The findings from this assessment demonstrate that [the applicant] is functioning well within normal limits intellectually (in the ‘low average’ range at the 12^th percentile) and she is not intellectually disabled. Information processing skills and higher-level attention and concentration skills were also well within normal limits. She was impulsive and had difficulty engaging in other aspects of the assessment, and it was not possible to measure the quality of her memory, but qualitative observations suggested that it was grossly intact. Her difficulties with impulsivity and with engagement in the assessment are clearly underpinned by her psychiatric history (specifically her underlying bipolar/schizoaffective disorders). The limited findings from this assessment provide no evidence of alcohol related (or other) cognitive impairment.”

28. Dr Furst noted, as to the applicant’s pre- and post-arrest mental states:

“A review of [the applicant’s] Crown Case Statement and medical records, including her Justice Health files, and records from Canada, indicates that she was rambling almost incoherently on 9 February 2023 and had signs of pressured speech and flight of ideas consistent with severely elevated mood, i.e. mania.

She remained pressured in her speech and higher in her mood when assessed on 27 February 2023 and 13 March 2023. Her acute mood symptoms/manic symptoms had resolved by the time of the psychiatric assessment conducted on 17 April 2023, which followed treatment with the antipsychotic medication Olanzapine and the mood-stabilising medication Epilim (Sodium Valproate).

Previous medical records/psychiatric records from Canada indicate she had a psychiatric admission from 23 April 2022 to 20 May 2022 and had mental health assessments following her discharge from hospital the following month, i.e. in June 2022.”

29. Dr Furst considered that the applicant met the diagnostic criteria for a Schizoaffective Disorder, Substance Use Disorder (methylamphetamines, opiates), and Gambling Disorder. He further opined:

“It would appear that [the applicant’s] mental condition, use of methamphetamines, homelessness, financial difficulties and the company she was keeping in Vancouver in the weeks/months leading up to her offence were instrumental in [her] alleged criminal actions when importing a commercial quality of border control (sic) drug on 07/12/22 … even though [the applicant] was mentally unstable, I would regard it as more likely than not that [the applicant] was aware of her alleged actions and the wrongfulness of her alleged actions on 07/12/22.”

30. Dr Furst outlined how the applicant’s mental illness and personal situation affected her offending:

“In terms of relevant mitigating factors, the presence of mania and schizoaffective disorder, together with grief issues [recent death of both parents] and her disadvantaged social circumstances in Vancouver are relevant in relation to her drug use and her offending in the following ways:

People with schizophrenia/schizoaffective disorder often seek relief from their distressing symptoms of their mental illness and/or the side-effects of medications by drinking excessively and/or using illicit drugs, including methylamphetamines.

There is a much higher rate of substance abuse, alcohol abuse and cigarette addiction in people with schizophrenia compared to people who do not have schizophrenia/ schizoaffective disorder.

There is often a social drift phenomena, in which people with chronic mental illness such as schizophrenia/schizoaffective disorder are unable to gain or sustain employment or sustain stable relationships and end up being drawn to drug-using peers, thereby associating with drug-using peers and using drugs themselves.

The deficits in cognitive processes and decision-making commonly seen in people with schizophrenia/schizoaffective disorder include deficits in consequential thinking and difficulty in planning, leading to poor decision-making that contributes to criminal offending, with such deficits being more pronounced during episodes of mania and/or when people are psychotic.”

31. It was accepted by the Crown and the sentencing judge that Ms Skea and Dr Furst had access to the applicant’s Canadian health records through Justice Health.

Submissions on sentence

Defence submissions

32. As to the applicant’s role, the defence submitted that she was a “mere courier” who was “at the very bottom of the hierarchy”, with no sophistication as to her conduct, whose role exposed her to a high risk of detection and arrest. There was no evidence as to her having actual knowledge of the quantity or type of drug, or having been involved in the packaging or concealment of the drug, or in the planning or exercise of any managerial role or decision-making function in the importation, or receiving actual financial gain, although it appeared to be that “she was getting a holiday out of it”.

33. The defence submitted that the amount of methamphetamine involved was on the “lower end of the commercial quantity range” and variously submitted that the offence was either “towards the lower end”, or “at the lower end” of objective seriousness.

34. The applicant was experiencing schizoaffective disorder at the time of the offence, and her judgment was impaired. She was “homeless, penniless, living in a shelter, drug-addicted … not taking prescribed medication” which caused her to agree to commit the offence, shortly before departing Vancouver, “to alleviate her parlous financial and personal circumstances”. Her mental health condition contributed to her offending, her moral culpability was accordingly reduced to a substantial extent, and she was a less appropriate vehicle for general deterrence.

35. It was accepted that “there’s no real clear evidence of remorse” beyond the applicant’s plea. It was submitted that its timing should result in a 25 per cent reduction. She was of prior good character and had good prospects of rehabilitation. It was submitted that her time on remand, being a year, had already “met the need for the sentence to specifically deter”.

Crown submissions

36. The Crown initially submitted, in writing, that the objective seriousness of the offending was “within the mid-range”, although that position shifted in oral submissions following its receipt of the forensic reports to a position that the offending fell “below the midrange”. The Crown did not agree with the defence submission that the offending sat “at the absolute bottom end of the range” of objective seriousness.

37. It was submitted that the applicant “played a complicit and ongoing role in the importation of the border-controlled drug” since she obtained a passport and made travel arrangements a week prior to her departure to Sydney via Fiji, and arrived in Sydney carrying methamphetamine packaged as protein powder within her luggage; that the imported amount was over five times the commercial quantity threshold; that she stood to profit from the venture in the form of a vacation and financially in view of the text exchanges with Jenna; that there was limited evidence of remorse beyond the plea; and that she had limited prospects of rehabilitation.

38. As to the applicant’s subjective case, the Crown accepted that there was a pre-existing mental illness at the time of the offending and the significance of general deterrence was reduced, but not to a point that she was “a completely inappropriate vehicle for general deterrence”. Reliance was placed on R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72] as to the relevant sentencing principles for serious federal drug offenders.

An agreed submission

39. It was agreed between the parties in the sentence hearing that the applicant was reckless as to the fact that the substance she imported was a border-controlled drug.

The sentence judgment

40. Her Honour acknowledged the maximum penalty for the offence, noted the relevant legislative provisions for a federal sentencing exercise and closely followed the agreed facts in outlining the background to the offence. Her Honour summarised some of the relevant general principles in Nguyen; Pham at [72] and turned to the objective seriousness of the offence, summarising the parties’ respective submissions and then making the following relevant findings of fact.

41. As to the length of the applicant’s involvement in the importation enterprise, her Honour found that her involvement was “no more than a few weeks” prior to her departure from Canada. The applicant applied for her passport and visa; she was recruited for the specific role of transporting the drugs from Canada into Australia in the weeks leading up to her doing so and although she was unaware of the precise actual quantity of the substance she was carrying “she had a pretty good idea that it was a substantial amount of product that she was transporting”.

42. The quantity of the drug was “substantial”, the pure weight being over five times the commercial quantity threshold. Although there was no evidence as to the value of the drugs, it was reasonably open to conclude that it would have been of “considerable monetary value”. Her Honour was satisfied that the applicant “stood to gain financially” from the offence, and although it was not possible to determine the quantum, her Honour accepted that “it was probably not going to be a significant amount”. Her Honour noted that it was not a sophisticated importation and that the applicant “was in a parlous financial state, drug addicted, mentally unwell and homeless. Any money going her way from her perspective would have been considerable”.

43. Her Honour accepted, as agreed by the parties, that the applicant was reckless as to the fact that the substance she imported was a border controlled drug, a fault element that is less objectively serious than actual knowledge, subject to the particular circumstances and the degree of moral culpability: Tsen v The Queen [2010] WASCA 21 per Wheeler JA at [34]. Her Honour found that this was an appropriate case for the objective seriousness to be so reduced:

“I find that the lack of sophistication in the operation, in particular the location of the packages in full view of anyone who cared to look and her likely, that is the offender’s likely, state of vulnerability resulting from her mental instability, drug addiction and desperate life circumstances lead me to conclude that this offender is less culpable than an offender with actual knowledge. I am fortified in my view of the appellant’s reduced culpability having regard to Ms Skea’s assessment of her intellectual functioning falling within the low average range. The reduction will be a modest one. The offender took a substantial and unjustifiable risk in becoming involved at all.”

44. Her Honour suspended her consideration of objective seriousness in order to assess the applicant’s moral culpability. Her Honour canvassed in some detail the reports of Ms Skea and Dr Furst and concluded:

“I accept on balance the evidence of Dr Furst.

I find that at the time committing this offence the offender was mentally unwell, and suffering from the acute symptoms of schizoaffective disorder, a chronic and debilitating condition. Indeed, paramedics were called immediately following her arrest and noted that she was hallucinating. Dr Furst found that her reported elevated mood in the days leading up to the offence was consistent with symptoms of mania observed by Justice Health in the weeks following arrest.

Whilst the offender’s presentation is complex – she was homeless, drug addicted and mentally unwell – and the individual role played by each of these factors is difficult to distinguish from any other, and in any event closely interconnected, I find that the offender who was unmedicated for three months prior to her role in this importation likely self-medicated her distressing mental ill-health symptoms with methamphetamine which is of itself a symptom of schizoaffective disorder, leading to even poorer decision making and greater deficits in consequential thinking that would have heightened her likely manic state.

In conclusion I accept the submission advanced by defence counsel that there is a proper evidentiary basis to find there is a causal connection with the offender’s participation in this offence and her mental instability at the relevant time. This finding is relevant to her moral culpability which I will reduce. This reduction of her blameworthiness will also have the effect of reducing the objective seriousness of the offence. In terms of the degree of the reduction it will be meaningful, but I note that I also accept the opinion of Dr Furst, that is, that at the material time the offender was nonetheless likely aware of the nature of her actions and their wrongfulness.”

45. Returning to the assessment of the objective seriousness, her Honour said:

“… having considered all relevant objective matters and the subjective issue of the offender’s mental ill-health and how that impacts upon her moral culpability and in turn the objective seriousness of the offence, I find that the offence falls in the low range for offences of this type.”

46. Her Honour declined to find that the offending was at the bottom of the range of objective seriousness, for the following reasons:

“The offender was not spontaneously enlisted for the task of carrying the substance, there was a period of time, albeit a relatively short period during which she was involved in carrying out steps including obtaining a passport and a visa and having contact with those more involved in the importation. Although she was likely manic in the period leading up to the offence, the evidence established nonetheless that she was most likely aware of the wrongfulness of her actions. The amount involved was almost five times the commercial quantity, a substantial amount and an important factor when assessing gravity. I also find the offender was motivated by the opportunity to financially gain, although I am unable to conclude the likely benefit would have been substantial.”

47. Her Honour turned to the applicant’s subjective case, reviewing the material in the two reports as to her personal history, drug use, employment and relationships. Her Honour then considered the factors to be considered pursuant to s 16A(2) of the Crimes Act. As to contrition (s 16A(2)(f)), her Honour said:

“I am unable to find on the evidence before me the offender has shown contrition outside of her early entry of a plea. However, I am prepared to find that the plea itself is some evidence of contrition and remorse.”

48. As to the utilitarian value of the plea (s 16A(2)(g)), her Honour was satisfied by the early plea of guilty that the applicant was entitled to a discount of 25 per cent. As to general deterrence, her Honour found that the applicant’s mental health issues, which affected her “judgment and decision making amongst other things”, made her a “less than suitable vehicle for general deterrence”. Accordingly, her Honour “moderated the weight to be attached to general deterrence”.

49. Her Honour was satisfied that the applicant had good prospects of rehabilitation in view of the following:

“She is a middle-aged woman with no prior criminal convictions despite her very difficult personal circumstances including homelessness, past drug addiction and gambling problems. I am satisfied that her experience in custody has already had and will continue to have a salutary impact. I note what Dr [sic] Skea has said in respect of the offender being abstinent from illicit drugs whilst in custody. I also note that she is compliant with her medication.”

50. Her Honour referred to three comparative sentences provided by the Crown which involved offenders in a similar role as the applicant but who did not have a mental illness, and some Judicial Information Research System (JIRS) statistics provided by the defence, and said:

“The sentence I will impose will be the lowest that I have instinctively synthesised as being appropriate. Whilst the offender’s conduct is in the low range and she has a strong subjective case, sadly it is not unusual for offenders who come before the Courts for importation offences that are detected by Customs as passengers walk through to involve vulnerable and even desperate individuals without criminal backgrounds. Criminal drug enterprises only prosper if people are ready, willing and able to perform various roles including menial and limited roles.”

51. The starting point of the sentence was eight years, which was reduced by the discount for the guilty plea to 6 years, with a non-parole period of 3 years 5 months, backdated to commence on the date of her arrest. I note the ratio of the non-parole period to the total sentence is 57 per cent. Her Honour said:

“In fixing that period I have considered the offender’s need for assertive and extensive mental health treatment, her onerous custodial situation given her mental illness and that she is serving her sentence a long way from home without the support of friends and family.”

Submissions on appeal

The applicant’s submissions on appeal

52. The applicant submitted that the sentence imposed was “simply too severe” and did not reflect the objective and subjective features found by the sentencing judge.

53. The offence was unsophisticated and the applicant’s role had the hallmark of someone who was lower in the hierarchy. Her only preparatory steps were to obtain a passport, visa and ticket. While her circumstances were common to many offenders whose role was that of a “mere courier”, her mental ill-health distinguished her from them.

54. Although the sentencing judge’s determination that the objective seriousness was “in the low range” is not challenged, her Honour’s reasons for not finding that it was “at the bottom” of objective seriousness demonstrate how fine that distinction is. By reference to the sentencing judge’s explanation excerpted at [46] above, the applicant submitted:

1. Although the offence was not spontaneous, the preparatory steps that the applicant took were basic.

2. Although the quantity of drug in this instance was substantial, it was not so great that it was inconsistent with the offence being at the bottom of the range of objective seriousness for such offences, because the offence is open-ended as to quantity and encompasses importations of tonnes of a border controlled drug.

3. While the applicant appreciated the wrongfulness of her actions, had she not, she could not have been convicted, so it is not a matter that distinguishes degrees of objective seriousness.

4. That the applicant stood to make a financial gain from the enterprise is undisputed, but the quantum was unknown and, as her Honour found, it was unlikely to have been a significant amount.

55. In summary, the sentence imposed did not reflect the sentencing judge’s findings as to the relevant fault element being recklessness, the low level of objective seriousness, the applicant’s reduced moral culpability and good prospects of rehabilitation, her prior good character over many years as a middle-aged person, her isolation from social supports in Australia and her early plea of guilty.

Crown submissions on appeal

56. The Crown submitted that it could be demonstrated that the sentencing judge had given full weight to the positive sentencing considerations by reference to five comparative cases for offences against s 307.1(1) of the Criminal Code Act. The five cases are of varying degrees of assistance. I refer to the facts of four of them.

57. In R v Agboti [2014] QCA 280, the Queensland Court of Appeal upheld an appeal against severity of a sentence of 11 years, with a non-parole period of 5 years and 6 months, for an offence of importing the equivalent of 2.326kg of pure methamphetamine in the lining of the applicant’s suitcase. The role of the applicant, who was 23 years old at the time of the offending, was a courier. She had no knowledge of the quantity of drugs involved and her only reward was the cost of the airline ticket. She had no history of prior criminal offending. When arrested at Brisbane Airport, she declined to be interviewed. She satisfied the Court at first instance that she was genuinely remorseful.

58. In the preceding months and days of the offence, the applicant in Agboti endured distressing personal and family experiences, which prompted the appellate Court to remark that the circumstances of the case were very different from others as it “involved such an unusual series of events, which was likely to have left the applicant in a fragile state of mind, bordering on desperation”.

59. The Queensland Court of Appeal determined that the sentence was “beyond the range of sentences that could have been imposed” and handed down a fresh sentence of 9 years and 6 months with a non-parole period of 4 years and 6 months.

60. In Legault v R [2014] NSWCCA 271, this Court dismissed an appeal against severity of a sentence of 9 years and 4 months, following a discount of 25 per cent for an early plea of guilty, with a non-parole period of 6 years. The applicant was arrested at Sydney Airport following his arrival on a flight from Canada, when a quantity of methamphetamine with a pure equivalent of 2.0339kg was found in his suitcase. He was travelling with an accomplice who also had drugs secreted in the lining of her suitcase. His passport had been issued three months before. The sentencing judge was satisfied that the applicant had not packed his suitcase and was not responsible for the substantial level of pre-planning and organisation that had gone into the venture. His motive was financial reward. He was aged 29 at the date of the offence and had a criminal record that denied him leniency that would otherwise have been available to him.

61. The subjective case involved evidence of the applicant having been exposed to serious societal violence from the age of six or seven and suffering a serious violent attack when aged 15, which left him with chronic pain and a post-traumatic stress disorder and led to him consuming drugs including methamphetamine.

62. The sentencing judge accepted that the applicant had “fair” to “good” prospects of rehabilitation and that his experience of prison would be more onerous because of his mental condition. The sentencing judge did not accept evidence that he was remorseful. At [21], Adams J remarked that although the sentence imposed on the applicant was severe and above the mean statistical range for importing a commercial quantity of methamphetamine, it was not so severe as to demonstrate that the sentencing judge's discretion miscarried.

63. In Yip v R [2017] VSCA 231, the Victorian Court of Appeal dismissed an appeal against severity of a sentence of 7 years and 6 months imprisonment, with a non-parole period of 5 years and 6 months for importing the equivalent of 1.346kg of pure methamphetamine. The applicant in that case agreed to give evidence against a co-offender, who pleaded guilty on the second day of his trial when he was made aware of the applicant’s intention. The judge indicated that, had it not been for the plea of guilty, the starting point sentence would have been 9 years, which suggests a discount for the plea of about 21 per cent. The sentencing judge said he would mitigate the applicant’s sentence because he would experience hardship from his isolation in prison consequent to his preparedness to give evidence. His Honour found that the applicant had a “very limited prior criminal history”, was remorseful and made a positive finding as to his prospects of rehabilitation.

64. In R v Banker [2016] QCA 74, the Queensland Court of Appeal dismissed an appeal against the severity of a sentence of 12 years imprisonment with a non-parole period of 8 years that was imposed following the applicant’s conviction at trial for importing the equivalent of 4.1171kg of methylamphetamine. The applicant was aged about 68 at the time of the offence and 70 at the time of sentence. The sentencing judge found that his participation in the enterprise did not extend beyond that of a courier.

65. The respondent also relied upon R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen [2013] NSWCCA 136, which I have disregarded because it involved an offender who was involved in the importation exercise at a significantly higher level, and two cases involving the importation of marketable quantities of drugs, which I have disregarded as too dissimilar: R v Pham (2015) 256 CLR 550; [2015] HCA 39 and Lau v R [2011] VSCA 324.

The applicant’s submissions in reply

66. The applicant challenged the utility of the comparatives, primarily on the basis that they involved different factors to those in the instant case, in particular, the applicant’s mental health diagnosis.

Consideration

67. The principles that apply to a determination of whether a sentence is manifestly excessive were succinctly stated by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443]:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

68. It is not suggested that the sentencing judge misapplied a relevant principle on the sentencing exercise. Although the applicant has reservations as to the sentencing judge’s reasoning in determining that the objective seriousness of the offence was not at the bottom of the range, her Honour’s findings, including as to the ratio of the non-parole period to the total sentence, are unchallenged. The question for determination, therefore, is whether the applicant has demonstrated that the sentence imposed was unreasonable or plainly unjust in light of those findings, in particular, as to the applicant’s moral culpability.

69. The applicant has not referred to comparative cases to seek to demonstrate that proposition, but does challenge the suitability of cases that the respondent has advanced as indicators that the sentence imposed was within range. In none of those cases does the offender have an active mental illness at the time of the offence. I note that neither party has located instances of cases at an appellate level for this offence where the offender had a mental illness that brought s 16A(2)(m) of the Crimes Act into consideration. At first blush it might be thought that Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa), has some utility as a comparative, but that case concerned an importation of a marketable quantity of cocaine contrary to s 307.2(1) of the Criminal Code and the evidence of the nature and severity of the respondent’s mental condition was confined to him stating in an affidavit that he “felt very depressed”, so it is not comparable to the applicant’s sentencing exercise.

68. In my view, the comparative cases relied upon by the respondent are of limited utility. In any event, I am mindful of the care that is required when considering comparative cases, particularly when they are so few in number: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, Bell P (as his Honour then was), Gleeson JA agreeing, at [51]; Hoeben CJ at CL at [52]. Accordingly, I disregard them.

69. The sentencing judge in this case was confronted with a difficult sentencing exercise. Her Honour accepted Dr Furst’s opinion, which included the passage excerpted at [30] above, in which he assessed how the applicant’s mental illness, in the context of her social vulnerabilities, may have predisposed her to mixing in criminal circles and, significantly and adversely impacted on her capacity to engage in sensible decision-making.

70. While it is trite to observe that the applicant was sentenced on the basis that she possessed the necessary mens rea for the offence, the evidence of the applicant’s elevated state in the weeks leading up to the offence when she had ceased taking her medication and her psychotic state on arrival in Sydney raised a real question as to the degree to which her moral culpability should be reduced, separately from her suitability as a vehicle for specific and general deterrence: De La Rosa at [177]. The bare fact that an offender was mentally ill at the time that they took the necessary preparatory steps and committed the offence does not automatically reduce to a minimum their moral culpability. Rather, it is the extent to which an offender’s mental illness impacted upon their capacity for rational and sensible decision-making at the time they made the decisions involved in the criminal offending that bears upon that issue.

71. In this case, her Honour did not adjectivally quantify the reduction in the applicant’s moral culpability, but she explained in some detail the matters that she took into account in reducing it, including the causal connection between the applicant’s mental illness and her participation in the offence, which leaves no doubt that it was a substantial reduction. In this case, the sentencing judge found a causal connection between the applicant’s mental illness and the commission of the offence, which permitted a finding that it reduced the objective seriousness of the offence, as well: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96].

72. The factors that are apparent from the remarks on sentence that tended against a lower sentence included the substantial quantity of methamphetamine involved, the absence of remorse and the degree, albeit limited, to which the applicant had prepared for the journey to Australia. It was not submitted that the manner in which the applicant’s mental illness impacted on her participation in the offence warranted the total exclusion of general deterrence. It is apparent from her Honour’s remarks that she did grapple with this conundrum in her instinctive synthesis of the facts and relevant principles, delivering a sentence which, in my view, was within range and could not be assessed as unreasonable or plainly unjust.

73. For these reasons, I would grant leave to appeal and dismiss the appeal.

74. SWEENEY J: I agree with Ierace J.

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Decision last updated: 29 November 2024