Colgate Palmolive Pty Ltd v Rexona Pty Ltd

[1981] FCA 146

Re: ALAN MICHAEL RICH and LEIGH DAVID BOURKE
And: THE QUEEN
No. NTG 4 of 1981
Customs Act

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Muirhead J.
Keely J.
Fisher J.

CATCHWORDS

Customs Act - Import & Possess Prohibited Drug - Appeal against severity of sentence - Matters to be taken into account - Balance of head sentence, with minimum non parole period and entitlement to remission - Purposes of parole release - Necessity to allow reasonable opportunity for treatment of persons addicted to drugs - Duly proportioned sentence.

Customs Act Sect. 233B; Sect. 233B 1 (ca); Sect. 233B 1 (d)

N.T. Commonwealth Prisoners Act 1967 Sect. 4 (1)(a)

Parole of Prisoners Ordinance 1976 (N.T.) S.4(1)

Remission under Part IV Regulation Prisons Act (N.T.)

HEARING

DARWIN

#DATE 7:9:1981

JUDGE1

On 12 February last the appellants were arraigned and pleaded guilty before the Supreme Court of the Northern Territory to offences pursuant to the Customs Act.

Both appellants admitted that on 10 December 1980 at Darwin they were in possession without reasonable excuse of heroin, a prohibited import to which s.233 B of the Customs Act applied, such import being reasonably suspected of having been imported into Australia in contravention of the Act contrary to s.233 B 1(ca) of that Act.

In addition the appellant Bourke was charged and pleaded guilty to having been knowingly concerned in the importation of that heroin into Australia contrary to s.233B 1(d) of the Customs Act.

It was common ground that the amount of the narcotic goods illegally imported by Rich within his body was 21.016 grams which contained 7.794 grams of actual heroin the narcotic substance referred to in the Act. The traffickable quantity of this drug pursuant to s.235 of the Act and the sixth schedule is 2 grams. Thus unless the court was satisfied that the offences were not committed for any purpose related to the sale of or other commercial dealing in the narcotic goods the maximum penalties applicable were 25 years imprisonment and/or a fine of $100,000. The appellants gave evidence to the effect that the heroin was imported solely for their own use, but the learned trial judge was not so persuaded and the appellants were thus liable to penalties determined within the higher range. No challenge was made to the trial judge's factual findings on this aspect which he expressed in these terms -

"You say that you intended to use the heroin yourselves, you have each given evidence before me to this effect . . . . It is my view and I find that you intended to sell a good deal of the heroin imported, and that profit from this vile trade was at least as important to you as gratifying your own needs. You would not perhaps have been dealers on a very large scale, but dealers you would have been."

On 23 February last each appellant was sentenced to imprisonment with hard labour for 8 years. His Honour directed that neither should be eligible for parole release until 5 years of the respective sentences had been served. The trial judge in sentencing Bourke ordered that the sentences applied to each count to which he had pleaded guilty and he ordered that the sentences be served concurrently.

The appellants, jointly represented, appeal against severity of the sentence. They complain that the trial judge imposed sentences which were manifestly excessive, that he failed to give sufficient weight to the rehabilitation of the appellants and that he erred in imposing a non-parole period of 5 years.

His Honour made certain specific findings and observations of importance -

1. Bourke provided the money which enabled Rich to travel to Penang and to purchase the heroin. Bourke had recently travelled overseas himself and considered another trip would arouse suspicion upon his return through customs.

2. The appellants intended to sell a "good deal" of the heroin imported.

3. The profit from the proceeds was as important to the prisoners as gratifying their own needs.

4. Rich had previous convictions some associated with drugs and the pursuit of drugs.

5. Bourke had no relevant previous convictions.

6. Bourke was the principal actor in as much as he provided the money. Rich travelled to Penang and purchased the heroin which was inserted in condoms and concealed in his body.

7. The deterrent aspect of sentencing should take precedence over considerations relating to the appellants' rehabilitation.

8. Both appellants were addicted to the drug heroin.

9. Both appellants pleaded guilty and were co-operative with the police.

The evidence was that Rich was 26 years of age and Bourke 27 years of age when these events occurred. Rich's criminal record was not insignificant. In 1972 he was placed on probation upon a conviction of unlawful carnal knowledge. In the following two years he had convictions for theft and break enter and steal. In 1975 he was before the courts on two occasions for the same offences which related to efforts to obtain drugs. In 1979 he was convicted for use of heroin and in October 1980 he was convicted for fighting in a public place. It was neither suggested to the trial judge nor to this court that Bourke's sentence should be the lighter as he was a man without previous convictions, and, as mentioned, both men were represented by the same counsel. The fact that a person has no previous convictions is of course an important matter to be taken into account in the sentencing process. Here the trial judge balanced Rich's criminal record against the fact that Bourke had financed the transaction. He thus considered the same sentence should apply in each case and it was not argued that he had erred in so doing. In considering later the question of parole release we have taken the appellants' respective records into account to a limited extent. In the circumstances it may have been preferable for the appellants to have been separately represented so that full emphasis could be given to the fact that Bourke came before the court as a man without prior convictions.

There is no necessity for us to deal in detail with the principles upon which this court should determine the appeal. They were exhaustively examined by this court in Kovac v. R. (1977) 15 ALR 637 when the principles enunciated in Harris v. R. (1954) 90 CLR 652 were considered appropriate. There the High Court cited with approval the passage of Dixon C.J., Fullagar, Kitto and Taylor JJ. in Cranssen v. R. (1936) 55 CLR 509 at 519:

"The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over high and severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable or has not been fixed in the due and proper exercise of the court's authority . . . . . It is not enough in applying those principles that the judges of this court should regard the sentence as greater than they themselves would have imposed."

The basis of the argument put to us by the appellants' counsel was that the sentence of eight years' imprisonment coupled with an order that release on parole should not be considered for five years was clearly excessive in the circumstances of each case. It was not asserted that the trial judge took into account matters which he should not have considered, nor that specific error can be demonstrated upon the record. What was emphasised was the fact that these men are drug addicts, that their anxiety for some profits from the expedition was to fulfil their compulsive habit and that the amount of heroin imported was not great. It was submitted that these sentences were extremely severe when considered with previous sentences of the Supreme Court of the Northern Territory; severe to such an extent that their nature illustrates an erroneous exercise of the sentencing discretion. In R. v. Tait and Bartley (1979) 24 ALR 473 this court emphasised that those who smuggled drugs into this country must expect to find that the deterrent aspect of punishment weighs heavily with the courts. The social evils and the tragic consequences associated with heroin traffic need no further emphasis.

It was common ground that the appellants here were addicts and, if there are grades of addiction, seriously addicted. The evidence of the witnesses Molina and Kilinko (both themselves previously addicted) spoke cogently of this fact. The excitement attaching to the importation and the somewhat feverish self administration which resulted in the overdose taken by Bourke (which appears to have almost killed him) serve to illustrate the state of degradation these men had reached. The trial judge commented that they who had "suffered the perils and the squalor of addiction" should have been aware of the dangers to others that the importation could bring about. On the other hand it is a fact that those who are addicted will take measures which defy reason and objective comprehension, to satisfy their cravings. The trial judge commented that without dealers there will be no addicts but added that an addicted dealer is in a better position (qua the law) than a non-addicted dealer. There was here no evidence of sophisticated organisation.

We are satisfied that the head sentences here imposed were severe and that some circumstances of the importation, the appellants' addiction and the amount of the drug involved were factors distinguishing this case from others referred to us in argument. But that observation does not lead to the conclusion that erroneous exercise of the sentencing discretion has been demonstrated.

The minimum parole period of five years fixed by the learned trial judge was again very substantial. The imposition of a non-parole period in the Northern Territory follows section 4(1)(a) of the Commonwealth Prisoners Act 1967 and section 4(1) of the Parole of Prisoners Ordinance 1976 (N.T.). The former provides in effect that federal offenders shall be dealt with, in so far as the fixing of a non-parole period is concerned, in the same manner as offenders in the State or Territory where the sentence is imposed. The latter section provides:

"(4)(1) Where a court sentences an offender to a term of imprisonment of twelve months or longer, or to terms of imprisonment that aggregate twelve months or longer, it shall specify a lesser term of imprisonment during which the offender so sentenced is not eligible to be released on parole in pursuance of this ordinance."

The court is not required to specify the lesser term if it "considers that the nature of the offence or offences and the antecedents of the offender do not warrant the specifying of the lesser term of imprisonment". The High Court in Power v. The Queen (1974-1975) 131 CLR 623 laid to rest some doubts which arose as to judicial considerations in imposing non-parole periods following R. v. Portolesi (1973) 1 NSW LR 105 and R. v. Sloane (1973) 1 NSW LR 202. The High Court emphasised that the fixing of the lesser period must be regarded as part of the sentence and may be calculated with an eye on punishment as such. Barwick C.J., Menzies, Stephen and Mason JJ. stated (at page 628) -

"In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention. Nor do we understand how it is said that the fixing of a non-parole period is not concerned with deterring either the prisoner himself or others from crime. Surely the requirement that a prisoner must stay in confinement for some period seen by a judge to be appropriate in all circumstances, would operate more as a deterrent than to allow the prison gates to be opened almost as soon as they have closed, that is, when the paroling authority has had time to consider whether the sentence should be served in confinement. To the extent to which deterrence is an object of imprisonment, then imprisonment without a chance of release for a longer time, rather than for a shorter time, is within that objective."

In this situation the lesser period so fixed is open to review upon appeal to this court (see R. v. Tait (supra) at p.486, Brodie v. R. (1977-1978) 16 ALR 88 and Anderson v. R. (1978) 19 ALR 212 per Smithers J. at 218).

The South Australian parole system has material differences from that which prevails in the Northern Territory but nevertheless the words of Bray C.J., Mitchell and Wells JJ. in R. v. Eckardt 1 SASR 347 at 351 are of importance in so far as they refer to the necessity of seeking a balanced sentence which pays regard to imprisonment, conditional release under parole and the question of statutory remission.

"As the result of the recent legislative innovation, therefore, the courts are faced with the task, where imprisonment must be imposed, not just of fixing a proper term, but of considering and resolving the question whether a non-parole period should or should not be imposed, and of formulating a duly proportioned and properly balanced sentence that is appropriate to meet all the circumstances of the case. In arriving at such a sentence the judge must bear steadily in mind the length of any non-parole period he is contemplating, and its bearing on the important work of the Parole Board and on the operation and effect of the current regulations governing remissions that are capable of being, and ordinarily will be, earned by a prisoner who is of good behaviour during his detention. As matters now stand, the nearer the non-parole period approaches two-thirds of the sentence actually imposed, the less scope there is for the Parole Board to exercise its functions, and to the extent that such a period exceeds that two-thirds it not only removes the normal power of the Parole Board to intervene, but also deprives the prisoner of the chance of earning the normal remissions that he is encouraged to earn by responding favourably to treatment. The legislature undoubtedly contemplates that lengthy as well as short non-parole periods could become appropriate, but in achieving the delicate balance that marks a just sentence, both from the point of view of the prisoner and of the community, none of the considerations just mentioned can be overlooked. It follows that in practice a judge ought to strive to assemble for his consideration as much relevant material as is reasonably obtainable, and clearly to recognise the consequences of every aspect of the order he makes with respect to sentence. In brief, the test has now become not only, What is the proper length of sentence? but also, What is the proper balance? One case may require a heavy sentence but no non-parole period, another - not perhaps very different - may require a moderate sentence but a lengthy non-parole period. It is essential that a sentencing judge should exercise a discretion that is at once flexible and readily responsive to the needs of individual cases."

The parole scheme may be said to have several objectives. But undoubtedly one aim is to safeguard the community by ensuring that prisoners upon release will be subject to supervision and returned to life in the community with some prospects of successful integration within that community. The extent to which each prisoner will require supervision or rehabilitation will depend on the individual and his problems, the nature of his offence and indeed the period that has been spent in custody. When a person has a particular problem be it alcoholism or drug addiction it is important that efforts be made to assist him and in this case it is probable that the appellants will require treatment, such as that available at Banyan House, the drug treatment centre referred to in the evidence of the witness Molina.

In the present case the trial judge did not in his remarks on sentence indicate why he considered such a long non-parole period appropriate, but we must assume he considered it warranted in order to remove the appellants from participation with drugs and as a general deterrent.

Part IV of the regulations under the Prisons Act (NT) provides a procedure whereby prisoners are entitled to gain remission on account of industry and good conduct during imprisonment. Without going into detail it is clear that a prisoner sentenced to eight years imprisonment who gained entitlements to remission for good behaviour would in any event be very close to release under these regulations after he had served five years of his sentence. There would be little if any incentive for such a prisoner to apply for parole release in view of the sanctions he would face if he offended again, a situation which is not in the community interest. Here we consider it important that the Parole Board should have the opportunity to consider the release of these appellants well before the expiration of their sentences. It is of course entirely for the Board to make the ultimate decision and it is not for us to determine that matter. At this stage it is we think the opportunity of release not the likelihood of release that is the important matter. (See R. v. Curry (1975) VR 647). In Gibbs v. Samuels 10 SASR 1975 329 at 331 Bray C.J. spoke of the advantages of the Parole Board in this situation.

"It is not necessary to investigate this matter further in view of the order I am about to make. I need not repeat what was said in Eckardt's case and by the full court of New South Wales in R. v. Osborne (1968) 3 NSWR 291 about the beneficent functions of the Parole Board and the need for caution before partially paralysing those functions by the fixation of non-parole periods, particularly non-parole periods lengthy by comparison with the length of the total sentence. After all the Parole Board will not recommend release on parole unless it thinks that that can be done with safety to the community, as well as with benefit to the prisoner. If it does recommend release on parole, it is more likely to be right at that stage than any court can be at the stage of sentence, simply because it can take into account what the court cannot, namely, the behaviour of the prisoner in gaol and the effect of gaol upon him and his future."

Whilst we take the view that the head sentences of eight years imprisonment with hard labour were severe, this court is not satisfied that the learned trial judge erred in the exercise of his discretion, and accordingly the appeals against the head sentences are dismissed.

However, we consider the long non-parole periods specified were not duly proportioned to the head sentences and were not necessitated by the circumstances of the offences and the antecendents of the appellants. We consider they should be reduced.

It is we think very much in the public interest that, if the Parole Board sees fit, these appellants should have the opportunity of treatment for their addiction before their return to the community; otherwise we consider the probability of their reoffending is high. It is important that they should have the opportunity of release under supervision for a substantial period. We therefore allow the appeals. The head sentences remain but the orders of the learned trial judge whereby he fixed minimum non-parole periods of five years are set aside. It remains for us to fix the appropriate periods and in so doing we are aware of the seriousness of the offences as our refusal to interfere with the head sentences illustrates. In reaching our conclusions on this aspect we consider it appropriate that there should be allowance for the fact that Bourke has no criminal record whilst Rich has offended on several occasions.

We direct that the appellant Rich be not eligible to be released on parole until he has served three years and six calendar months of the sentence of eight years passed upon him. As to the appellant Bourke we direct that in his case, and on each count, he will not be eligible to be released on parole until he has served three years of those concurrent sentences of eight years previously imposed. We direct that the sentences and the non-parole periods we have now fixed shall run as from 23 February 1981 when the appellants were originally sentenced.

We direct that the matter now be transmitted to the Sheriff at the Supreme Court of the Northern Territory for implementation of the orders of this Court.