Director of Public Prosecutions v Maeda
[2015] VCC 620
•14 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-00036
| THE QUEEN |
| V |
| SHOZO MAEDA |
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JUDGE: | His Honour Judge Murphy | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2015 | |
DATE OF SENTENCE: | 14 May 2015 | |
CASE MAY BE CITED AS: | DPP v Maeda | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 620 | |
REASONS FOR SENTENCE
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Subject: Import marketable quantity of a border controlled drug.
Sentence: Total Effective Sentence (Federal) 9 years and 6 months imprisonment – Non parole period of 6 years and 4 months – 265 days PSD.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Holding (Plea) | C.D.P.P |
| Mr B. Kerlin (Sentence) | ||
| For the Accused | Mr C. Thomson | James Dowsley and Associates |
HIS HONOUR:
1
Shozo Maeda, after a short trial you have been found guilty by a jury of the offence of importing a marketable quantity of a border controlled drug, namely heroin. It was alleged that you committed this crime together with
Mr Yoshitaka Hamada. The maximum penalty is 25 years' imprisonment and/or a fine of 5000 penalty units.
2 The matter was not the subject of a committal hearing. At the commencement of the trial, there was a Basha investigation of evidence to be led by a linguist. There was also pre-trial argument as to whether lies you allegedly told to customs officers at the barrier were to be excluded as unreliable. I ruled against you on that issue. The trial then proceeded for a period of five hearing days and the jury deliberated for less than three hours before reaching a verdict of guilty.
The circumstances of the offence.
3
I am required to sentence you in accordance with the jury verdict. The circumstances of the offence were set out in the Crown opening dated
11 March 2015 which I am satisfied that the Crown proved and which was accepted by the jury beyond reasonable doubt.
4
In brief outline, you and Mr Hamada, who are both Japanese nationals, arrived at the customs barrier at Tullamarine airport around lunchtime on
22 August 2014 after a flight from Thailand. Suspicions were raised as to the two of you and you denied that you were travelling with Mr Hamada. You were interviewed using a telephone interpreter, and in the course of that interview, stated first that you had met Mr Hamada on the plane and later you had met him in Thailand. You later agreed you had met in Japan. Subsequently, Mr Hamada was the subject of a body scan and suspicious packages were observed in his stomach. He subsequently admitted that he was carrying internally concealed drugs. You were also the subject of such a scan and were found not to be carrying any drugs. Mr Hamada was found to have in his stomach 100 pellets weighing 501 grams containing approximately 320 grams of pure heroin.
5 Subsequently Mr Hamada pleaded guilty at the earliest opportunity to the offence of which you have been found guilty.
6
The case against you was a circumstantial case. Telephones found in the possession of each of you revealed text message communication between you and Mr Hamada in July 2014. Mr Hamada was found to be in possession of a passport which was issued in late July 2014. The passport in your possession indicated that you had previously visited Australia for a short period in April 2014. Your passport indicated that you had travelled from Osaka to Bangkok shortly prior to your visit to Australia, as did Mr Hamada. You were found to be in the possession of a travel itinerary of yourself and
Mr Hamada. You each had a visa issued in Thailand. Also in your possession was a notebook that an expert linguist stated contained reference to an abbreviation for heroin on the same lines as various amounts in Thai baht and yen.
7 Also in the notebook was a tally and a series of times leading to a reference to departure to the airport. The prosecution asserted that this was a note of you effectively supervising the ingestion of the 100 pellets that were subsequently found internally concealed by Mr Hamada.
8 The Crown also relied on conduct between you and Mr Hamada where you sought to distance yourself from him in the airport as you moved to attend the customs barrier. There was also signals between the two of you as you were waiting at a baggage counter. The initial lies told by you were also relied on as an attempt by you to distance yourself from Mr Hamada. You did not undertake a record of interview and did not give evidence at your trial.
Seriousness of the offence.
9 Importation of a border controlled drug is inherently a serious offence. The sentencing regime is quantity based and the amount that Mr Hamada was found to be carrying was 160 times a trafficable quantity and around 20 per cent of a commercial quantity which is 1.5 kilograms.
10 In order to assess your moral culpability for the offence, it is necessary to consider your role. It is not disputed that Mr Hamada was the courier of the drugs. I am satisfied beyond reasonable doubt that you were in a role higher in the hierarchy than that of your co-accused Mr Hamada who, on any view, was the courier, and who was sentenced on the basis that he was low in the entrepreneurial hierarchy.
11
Your parallel travel, possession of Mr Hamada’s travel documents including details of his passport and both his incoming passenger card and outgoing passenger card and other personal details, indicate that you were, in effect, the minder of Mr Hamada. This is reinforced by the entries in your notebook indicating that there had been counting of the pellets subsequently found in
his stomach. That note indicates your presence at the time that Mr Hamada ingested those pellets. There is also evidence of preplanning in that the two of you travelled from Japan to Thailand where you were a tenant of an apartment.
12 Further, on the same day in a notebook in your possession, is a reference to purchasing a ticket for arrival in Melbourne and arrival at the airport prior to departure.
13 Your conduct in separating yourself from Mr Hamada at the airport and denying any association with him, which I am satisfied you did, also indicates an attempt to distance yourself from him and indicates a higher role.
14 I am also satisfied as a matter of common sense that your role in acting as a minder of the actual courier indicates that you were in a position of a higher level of trust with the unknown principals of the importation enterprise.
15 I do not accept the submission of your Counsel, Mr Thomson, that I am not in a position to reach this conclusion beyond reasonable doubt. It is in the nature of criminal activity that those directing the enterprise will seek to distance themselves, if possible, from those more immediately involved in the criminal conduct. In a high-risk enterprise like internally concealed importation of narcotic drugs where the risk of high penalties upon apprehension is great, as a matter of common sense, this is likely to be the position.
16 I am unable to further identify your particular role in the enterprise. It is a reasonable inference that a trusted person would be required to shepherd the actual courier and to distance themselves from the actual courier given the agreed statement of facts that the amount of drugs actually sought to be imported had a value on the wholesale or retail market of between $242,000 and $528,000. Those amounts could only be achieved if the drugs were successfully imported.
17 Overall, I regard your moral culpability for this offence as high. The references in the notebook to an abbreviation for heroin and the notations of counting the pellets indicate that you were fully aware that this was heroin and a discrete amount was to be ingested by your co-offender. The offence involved preplanning in that you had to travel from your home country to Thailand with Mr Hamada. You then had to obtain tickets and a visa to enter into Australia and then source the heroin, have Mr Hamada ingest the heroin and then travel to Australia and attempt to enter Australia. In the plane, you were seated in the row behind Mr Hamada, and you, like him, were also carrying anti-diarrhoea medication. You had a list of cheap hotels in Melbourne with you.
18 An additional matter in considering your moral culpability for this offence is that, on the criminal record, you have three prior convictions in Japan for importation of drugs. You had engaged in illegal importation before, albeit into another country and there is no evidence as to the mode, but those prior convictions indicate that you are not a novice and were prepared to engage in a deliberate and calculated effort to breach this country’s customs barrier as part of a scheme to make a substantial amount of money from a drug that the community abhors.
19 There is no evidence as to what reward you were to receive for your role in this importation. As a matter of common sense, given the high value of the drug sought to be imported, you must have been expecting some financial reward for your conduct.
Prior convictions.
20 You admitted a criminal record from Japan, provided under the Foreign Evidence Act 1994. You were born on 3 January 1949 and are aged 66. The record indicates that on 12 July 1983 you were sentenced in the Osaka District Court for violations of the Stimulus Control Act, the Cannabis Control Act and the Customs Act and you were imprisoned for two years and eight months and the sentence was suspended for four years with probation. You were before the same Court on 10 May 1991 for violations of the Cannabis Control Act, Customs Act and for dishonesty offences, violation of the Stimulus Control Act and the Passports Act. You were sentenced to four-and-a-half years imprisonment and an appeal was dismissed. You were before the Osaka District Court again on 29 June 2006 for violation of the Cannabis Control Act and the Customs Act and you were sentenced to six years' imprisonment. The record indicates that the punishment was completed on 14 May 2012. You were also fined.
21 Your Counsel Mr Thomson indicated the offending involved importation of relatively low amounts of cannabis from the Philippines to Japan.
22 Without more details it is difficult to fully assess the measure of your prior criminality, suffice to say that you have been before Japanese Courts on three occasions and were sentenced to serious terms of imprisonment to be served on two occasions. Thus you have a not insignificant criminal record for offences involving drugs and also involving importation into your native country.
23 Your co-offender Mr Hamada also admitted a criminal record. He is about 14 years younger than you and has been dealt with on a number of occasions and sentenced to a number of terms of imprisonment for violation of the Stimulus Control Act and the Cannabis Control Act as well as one occasion for bodily injury. The learned prosecutor Mr Holding submitted that the criminal records of each of you are broadly comparable or basically equivalent and I accept that, although the fact that you have three prior appearances for importation is relevant to considering your moral culpability and on the issue of specific deterrence.
Personal circumstances.
24 Your Counsel indicated your personal circumstances. In outline, you have three older brothers that you do not have contact with. Your parents are now deceased. Your father was a housing designer.
25 You went to university on a sporting scholarship, but when you were not selected for the relevant sport after two years, you dropped out of your social science degree. You then worked on a golf driving range and subsequently worked for a clothing company importing T-shirts from the Philippines. It was in that context that you first became involved in your first offence of importing cannabis into Japan. Subsequently, you worked in a café and for a period lived in Thailand. When you were in your thirties you were married for a period of six years. The marriage broke down and you have no children. You basically have no significant assets. You had a lease on a cheap apartment in Thailand that was in evidence, that had been executed in April 2014. Approximately 15 years ago you had lived for a period of three years in Thailand because the cost of living is lower. When you are released from prison, you will return to Japan and you will then be eligible for a pension in that country.
26 Your Counsel submitted that you are finding prison difficult as there is only one other person, other than your co-offender, who speaks Japanese. While you are imprisoned, you are learning English.
Parity considerations.
27 Your co-accused Mr Hamada was sentenced by His Honour Judge Bourke to a term of imprisonment of six years with a minimum non-parole period of three-and-a-half years. Judge Bourke declared that had he not pleaded guilty, he would have imposed a head sentence of nine years with a non-parole period of six years. Before me, the Crown's sentencing submissions were tendered, as well as the reasons of His Honour Judge Bourke. I have considered both. Mr Hamada received the benefit of an early plea of guilty and cooperation with the authorities. I have not had regard to the account that he provided of his offending on his plea.
28 In relation to the s.6AAA declaration, I regard it as irrelevant to the exercise of my sentencing discretion. It is a hypothetical declaration relating to a counterfactual that cannot assist in circumstances where you have taken the matter to a verdict after seeking to have parts of the Crown case excluded.
29 In fixing sentence, I must seek to ensure that the sentence imposed does not give rise to any unjustifiable sense of grievance, having regard to the sentence imposed on Mr Hamada. Justice must be seen to be even-handed.
30
Your Counsel Mr Thomson submitted that there was to be no significant difference to be found by the Court in relation to the role between you and
Mr Hamada. It followed from this, he submitted, that the sentence imposed by Judge Bourke on Mr Hamada ought be the starting point which ought then be adjusted up because there is no evidence of remorse and you had not pleaded guilty like Mr Hamada. He submitted that a sentence in the range of six-and-a-half to seven-and-a-half years with a non-parole period of four to five-and-a-half years was appropriate.
31 The Crown prosecutor did not specifically respond to the asserted sentencing range but reminded the Court that it would be open to find that your role was more significant than that of Mr Hamada, and, unlike him, there was no evidence of remorse, and you had pleaded not guilty.
32 He also indicted that the list of relevant cases in the submissions related to pleas of guilty and offenders with no prior convictions. I have had regard to those sentences as providing something of a yardstick against which to consider a possible sentence.
33 In sentencing you, I am required to take into account and do take into account the matters set out in s.16A of the Commonwealth Crimes Act. I have earlier indicated that I do see your role in the offending as more serious than that of Mr Hamada. I have classified you as the minder of Mr Hamada which I regard as more serious in a drug importation and distribution hierarchy.
34 While your criminal record is regarded as broadly comparable, given that you have three prior convictions for importation into Japan of illegal drugs, this does go to increase your moral culpability and makes considerations of specific deterrence more salient.
35 Overall, the personal circumstance of you and Mr Hamada are broadly comparable, although I note he has some health issues that you do not have.
36 In sentencing you, I have considered the matters set out in Nguyen v The Queen [2011] 31 VR 673 at paragraph 34 and 35. As I have noted, I consider your role above that of a courier. Your role involved a significant degree of premeditation or planning which is evidenced by the entries in your notebook as to attending Melbourne and buying tickets, as well as the counting of the pellets. In addition to that, there are the two lies that you told initially to the customs officers, and then your signalling to Mr Hamada while waiting at the baggage benches.
37 As Judge Bourke indicated, the amount of drugs imported was considerable. The estimated value I have already indicated was high, and thus this was a serious attempt to obtain significant financial benefit.
38 In sentencing you, general deterrence must be the most salient consideration. Detection is difficult and the sentence imposed must signal to would-be drug importers that the potential rewards to be gained from such an activity are neutralised by the risk of severe punishment. Here the punishment must also include an element of specific deterrence, given that by your plea of not guilty you have no insight into your conduct and you have three prior appearances for similar offending, albeit in your native country.
39 In sentencing you, I have taken into account that you will be serving your sentence in a foreign country where you will not receive any visits and the number of people you can speak to is likely to be limited. The fact that you will find prison more burdensome because you have no contacts and are in a foreign country cannot be accorded anything but minor weight, given that you chose to enter this country for the sole purpose of committing a criminal offence. Also I note, but I do not take into account, that is likely that you will be deported upon completion of your sentence.
40 I must have regard to your prospects of rehabilitation. Given your three prior appearances and sentences of imprisonment, the last of which ended only two-and-a-half years before you committed this offence, and by your plea of not guilty, your refusal to accept any responsibility for the offending, I regard your prospects of rehabilitation as fairly poor.
41 In sentencing you, I have taken into account all the matters submitted by your Counsel and all the matters set out in s.16A of the Crimes Act. I apply the principle of parsimony and impose the minimum sentence that will achieve the ends of sentencing and is proportionate to your offending. I have also had regard to the sentence imposed on Mr Hamada, but as I have indicated, regard your role as more serious, there is no remorse on your part, you pleaded not guilty, and specific deterrence I regard as having increased salience, given your three prior convictions for drug importation.
42 Weighing all the matters, could you please stand. I sentence you to nine-and-a-half years' imprisonment. I regard it as appropriate to fix a non-parole period. I fix non-parole period of six years and four months.
43 I declare that you have served 265 days of pre-sentence detention.
44 I am required to explain the sentence to you. I sentence you a term of imprisonment of nine-and-a-half years. After you have served six years and four months' imprisonment, then if you can convince the relevant authority, you will be eligible to serve the balance of your sentence in the community on parole.
45 Are there any other matters, Mr Prosecutor?
46 MR KERLIN: There's no other matters, Your Honour.
47 HIS HONOUR: All right. Yes, I thank you for your attendance. I thank you, Mr Thomson, for your participation in the trial.
48 MR THOMSON: If Your Honour pleases.
49 HIS HONOUR: Adjourn sine die.
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