Director of Public Prosecutions (Cth) v Beatrice Laus Johie

[2013] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0144

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
	v
BEATRICE LAUS JOHIE	Respondent

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JUDGES:	MAXWELL P, COGHLAN JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2013
DATE OF JUDGMENT:	16 October 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 308
JUDGMENT APPEALED FROM:	R v Johie (Unreported, County Court of Victoria, Judge Lawson, 24 April 2012)

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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Import marketable quantity of border controlled drug – Offender sentenced to 4 years’ imprisonment, with non-parole period of 2 years – Sentence at first instance reduced upon offender’s sworn undertaking to cooperate with law enforcement agencies – Offender failed entirely to cooperate in accordance with undertaking – No reasonable excuse – Substitution of appropriate sentence – Offender re-sentenced to 5 years’ imprisonment, with non-parole period of 3 years – Crimes Act 1914 (Cth) s 21E.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B Tchakerian	Commonwealth Director of Public Prosecutions
For the Respondent	Mr S Holt SC with Mr M D Phillips	Victoria Legal Aid

MAXWELL P
COGHLAN JA
LASRY AJA:

1. On 19 April 2012, the respondent pleaded guilty in the County Court at Melbourne to one count of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal CodeAct 1995 (Cth). The offence was committed on 6 November 2011. The circumstances of its commission are set out below.

The offending[1]

[1]Paragraphs [2]–[5] below are taken from the Director’s written case.

1. On 6 November 2011, at 10.20am, the respondent arrived at Melbourne Airport on a flight from Malaysia.  Her baggage was examined by Customs officers.  The respondent said she was in Australia for a four day holiday to visit some friends she had met through her boyfriend.

1. The respondent was carrying a backpack and her handbag.  A search of the backpack by Customs officers revealed approximately 1.2kg of white powder concealed in a set of bed sheets and the support of her backpack.  Presumptive testing of the powder confirmed the presence of heroin.  The respondent was placed under arrest.

1. In a record of interview conducted with police that day, the respondent explained her purpose for travelling to Australia.  She said she was given the backpack by her boyfriend the day before her departure and the bed sheets were left behind by ‘Micky’ (also known as ‘Princewell Echefu’) when he had visited Malaysia in July that year.  She stated ‘Micky’ asked her to bring the bed sheets when he became aware she and her boyfriend were intending to come to Australia.

1. The white powder concealed in the bed sheets and backpack contained 567.9 grams of pure heroin.

1. On 19 April 2012, in sworn testimony on her plea in mitigation, the respondent gave an undertaking to provide future cooperation with law enforcement agencies.

1. On 24 April 2012, the respondent was sentenced by Judge Lawson as set out in the following table:

Count on indictment	Offence	Maximum	Sentence
1.	Import marketable quantity of a border controlled drug, contrary to subsection 307.2(1) of the Criminal CodeAct 1995 (Cth)	25 y and/or a fine of 5,000 penalty units ($550,000)	4 y with a non-parole period of 2 y
Total effective sentence:		4 y
Non-parole period:		2 y
Pre-sentence detention declared:		170 days
Section 21E statement: but for her undertaking to cooperate with law enforcement agencies in future, the sentence imposed would have been a head sentence of 5 years’ imprisonment with a non-parole period of 3 years.
6AAA statement:  but for her plea of guilty, the sentence imposed would have been 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months.

1. As appears from that table, the judge made a statement in accordance with s 21E of the Crimes Act1914 (Cth) (the ‘Act’) that, but for her undertaking to cooperate with law enforcement agencies in future, the respondent’s sentence would have been a head sentence of five years’ imprisonment with a non‑parole period of three years.

1. The matter comes before the Court on an appeal by the Commonwealth Director of Public Prosecutions, pursuant to s 21E(2) of the Act, as an appeal against the inadequacy of the sentence. Section 21E provides as follows:

Director of Public Prosecutions may appeal against reductions where promised co‑operation with law enforcement agencies refused

(1)Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:

(a)if the sentence imposed is reduced — specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction;  and

(b)if the non-parole period is reduced — specify that the non‑parole period is being reduced for that reason and state what the period would have been but for that reduction.

(2)Where:

(a)a federal sentence is imposed or a federal non-parole period is fixed;  and

(b) the sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1);  and

(c)after sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking;

the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non-parole period.

(3)Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person’s undertaking to co-operate with law enforcement agencies, the court hearing the appeal:

(a) if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking — must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction;  and

(b)if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking — may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate.

1. As appears from those provisions, the Parliament contemplated two circumstances. The relevant one for present purposes is that defined by s 21E(3)(a). It is common ground on the appeal, and accordingly we are satisfied, that the respondent ‘has failed entirely to cooperate in accordance with [her] undertaking’.

1. As the provision makes clear, upon that state of satisfaction we are required to substitute for the reduced sentence the sentence that would have been imposed but for the reduction for cooperation — that is to say, a head sentence of five years’ imprisonment and a non‑parole period of three years.  It being common ground —and the subject of an express concession by the respondent — that she has failed entirely to cooperate in accordance with her undertaking, it follows automatically that we will make that order and allow the appeal for that purpose. 

1. We set out below so much of the summary provided in the written case for the Director as is necessary to provide a proper understanding of the circumstances in which the non‑cooperation manifested itself.

Circumstances surrounding the non-cooperation[2]

[2]Paragraphs [13]–[21] below are taken from the Director’s written case.

1. On 26 March 2012, the respondent made a statement to police.  In that statement, she said, inter alia, that:

(a)       some time in July 2011, her boyfriend Onyia Chukwuid Magnus (‘Magnus’) introduced her to ‘Micky’ in Kuala Lumpur, Malaysia;

(b)      a few days after this meeting, ‘Micky’ introduced her to ‘Blandine’ and they went shopping in the vicinity of Petaling Street, Kuala Lumpur.  It was during this trip that she saw ‘Micky’ purchase three sets of bed sheets from a store with cash.  She described one of the bed sheets as dull purple and green in colour, approximately 40cm in length;

(c)       some time in September she sent and received text messages from ‘Micky’ and, as a result of one of those conversations, ‘Micky’ told her he had accidentally left behind the bed sheets he purchased whilst in Malaysia.  She recalled seeing the bed sheets at Magnus’ house.  ‘Micky’ requested she take them with her and come to visit them in Melbourne, Australia;

(d)      she sent and received several emails from ‘Micky’ and he replied using an email address beginning with ‘prince’;

(e)       she booked her ticket to travel to Australia on 4 November 2011 and it was her intention to travel with Magnus to visit ‘Micky’ and ‘Blandine’ as they were expecting the birth of their child.  Prior to her departure, Magnus gave her the backpack and bed sheets.  She packed the backpack with children’s toys, her clothing and for Magnus and ‘the bed sheets Micky purchased whilst visiting Kuala Lumpur, Malaysia in July 2011’;

(f)       shortly before her departure she had a conversation with ‘Micky’ when she informed ‘Micky’ that Magnus was not travelling with her and ‘Micky’ asked if she had the bed sheets;  and

(g)      Magnus wrote down a number on a piece of paper (being a note with Micky’s phone number) and told her to call it when she arrived in Melbourne.

1. After re-reading the statement of 26 March 2012, the respondent made a further statement dated 16 April 2012, in which she confirmed that ‘Micky’ had requested that she take the bed sheets with her when she travelled to Melbourne to give to him.  She also identified from photographs the bed sheets she saw ‘Micky’ purchase.

1. On 4 May 2012, ‘Micky’, otherwise known to police as Princewell Echefu (‘Echefu’), was arrested and charged that he did aid, abet, counsel or procure the commission of the offence committed by the respondent.  The evidence against Echefu comprised CCTV footage, travel records, telephone intercept material, money transfers conducted by associates linked to him, mobile phone records, the importation carried out by the respondent and the expected evidence she was to give.

1. On 30 October 2012 Echefu’s committal hearing commenced in the Magistrates’ Court at Melbourne.  The respondent gave evidence.

1. During examination-in-chief, the respondent was shown her 10-page statement signed and dated 26 March 2012.  She agreed the contents of this statement were true and correct.  She was also shown her five page statement made on 16 April 2012 and agreed the contents of that statement were true and correct.

1. In cross-examination, the respondent admitted to telling lies in her statements that:

(a)       she observed ‘Micky’ purchase the bed sheets when he visited Malaysia in June/July;  and

(b)      ‘Micky’ had contacted her after hearing she and Magnus were coming to Australia and requested that she bring the bed sheets as he had left them behind when he visited Malaysia in July. 

She stated the first time she spoke to ‘Micky’ about travelling to Australia was prior to her check-in on the evening of her departure (on 5 November 2011).

1. The respondent in cross-examination admitted that anything she had said in her interview or statements that implicated Echefu was to protect her boyfriend Magnus.

1. The respondent in re-examination by the prosecutor admitted to lying in her statements to police.  The respondent re-affirmed that she did not see ‘Micky’ buy any bed sheets and her identification of the bed sheets shown to her by police as the bed sheets she saw ‘Micky’ purchase was not the truth.

1. The effect of the respondent’s evidence was a complete shift from the contents of her original statements.  A decision was made by the Crown not to call the respondent as a prosecution witness in Echefu’s trial.

Conclusion

1. Before making the orders, we would wish to commend the parties for the very sensible manner in which this matter has been presented, first as articulated by the director and then as responded to by counsel for the respondent.  In our view, the concession made about the entire failure to cooperate is a concession properly made.

1. For those reasons, we will allow the appeal and re‑sentence the respondent as follows.

1. The orders of the Court are: 

1. The appeal by the Director of Public Prosecutions is allowed.

2. The sentence imposed in the court below is quashed.  In lieu thereof, the respondent is sentenced to five years’ imprisonment on the count of importing a marketable quantity of a border controlled drug, and a non‑parole period of three years is fixed.

Other matters: 

1.We declare that a period of 710 days is taken to have been served under the sentence and we order that the fact of that declaration and its details be entered in the records of the Court.

2.Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), we declare that but for the respondent’s plea of guilty, the sentence imposed would have been six years’ imprisonment with a non parole period of four years.

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