DPP (Cth) v Omar
[2019] VSCA 188
•23 August 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0092
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| FARIQ ALDAKHIR BIN AQBAL OMAR | Respondent |
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| JUDGES: | MAXWELL P, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 August 2019 |
| DATE OF JUDGMENT: | 23 August 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 188 |
| JUDGMENT APPEALED FROM: | [2019] VCC 530 (Judge Wilmoth) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Drug importation – Commercial quantity of heroin – Sentence 5 years and 6 months’ imprisonment, non-parole period 3 years – Whether manifestly inadequate – Maximum penalty life imprisonment – Drug courier – Small financial reward – Whether small reward reduced culpability – Respondent was flight attendant – Whether aggravating factor – Hardship in custody – Isolation, separated from family – Consideration of sentencing standards – General deterrence – Appeal allowed – Resentenced to 8 years’ imprisonment with non-parole period of 5 years – Criminal Code Act 1995 (Cth) s 307.1.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Residual discretion – Purpose of Crown appeal – Guidance to sentencing courts – Whether sufficient to declare sentence manifestly inadequate without resentencing – No principled basis to do so – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For the Respondent | Mr D D Gurvich QC with Ms N D Kaddeche | May Monagle Lawyers |
MAXWELL P
T FORREST JA
WEINBERG JA:
Summary
The respondent (‘FAO’) was a flight attendant for Malaysia Airlines. According to evidence given by his wife on the plea, the family was living comfortably in Malaysia on their combined salaries. Inexplicably, FAO agreed to be a drug courier or ‘mule’ in return for a payment of $500. He travelled to Australia with nearly double the commercial quantity (‘CQ’) of heroin concealed in packages under his clothing.
On his arrival in Melbourne, ‘rectangular bulges’ were visible in the front pockets of his trousers and under his vest. Nevertheless, he signed a Customs declaration form stating that he was not bringing into Australia any prohibited goods. He cleared Customs and was then seen on CCTV entering a public bathroom in the airport. When he emerged, the bulges were no longer visible. The heroin was discovered when his bags were searched.
FAO pleaded guilty to one charge of importing a commercial quantity of heroin. The maximum penalty for that offence is life imprisonment.[1] He was sentenced to five years and six months’ imprisonment, with a non-parole period of three years’ imprisonment.
[1]Criminal Code 1995 (Cth) s 307.1(1).
The Commonwealth Director of Public Prosecutions has appealed against the sentence on the ground that it is manifestly inadequate. Her notice of appeal contends that the sentence does not adequately reflect the nature and circumstances of the offending, or the maximum penalty. The sentence imposed is said to demonstrate that too much weight was placed on FAO’s guilty plea and his personal circumstances.
For reasons which follow, we would allow the appeal. With respect to the sentencing judge, it was not reasonably open to impose this sentence if proper weight were given to all of the relevant factors, including — but not limited to — established sentencing standards for offences of this kind.
We would set aside the sentence imposed and resentence FAO to eight years’ imprisonment. We would fix a non-parole period of five years.
Consideration
The principles applicable to sentencing for drug importation offences are clearly laid down in decisions of this Court and other intermediate appellate courts.[2] It is unnecessary to repeat them.
[2]See, eg, Nguyen v The Queen (2011) 31 VR 673, 681–3 [33]–[34] (Maxwell P).
As the Director submitted, the amount of the drug involved in an importation will ordinarily be ‘a highly relevant factor in determining the objective seriousness of the offence’. As this Court has previously suggested, making comparative judgments about offence seriousness is made easier when the quantity involved is expressed as a percentage, or multiple, of the CQ.[3] In this case, the quantity imported was 1.77 CQ.
[3]See DPP (Cth) v KMD (2015) 254 A Crim R 244, 258–9 [54]–[57] (Maxwell P, Weinberg and Beach JJA).
It was accepted that, with one important exception, FAO’s role was typical of that of a courier used to bring drugs into Australia by air. He was not involved in the planning of the importation, less still in the sourcing of the heroin, and was recruited only a matter of weeks before he made the flight to Melbourne. Nevertheless, as the Director submits, the role of a courier is indispensable. Illicit drug networks are only able to prosper because people like FAO ‘are ready, willing and able to undertake these types of roles’.
The one unusual feature of the case is that FAO was a member of the cabin crew. The judge viewed this circumstance as increasing the gravity of the offending:
Those who approached you with the request to convey the drugs knew your occupation and exploited the opportunity that offered, as indeed, you did as well. No flight or travel arrangements needed to be made as you were flying to Melbourne anyway.[4]
Further:
Taking on the role of a courier, whilst an employee of an airline, makes this offending more serious. You had been to Australia many times before and would have been very familiar with the restrictions that apply to bringing items into the country.[5]
[4]DPP v Fariq Aqbal Omar [2019] VCC 530, [20] (‘Reasons’) (emphasis added).
[5]Ibid [27].
There was some debate in argument about the significance of the fact that FAO was paid so little for acting as courier. It was submitted on his behalf that the force of the adverse inference — that he became involved for reasons of personal greed — must necessarily be moderated, given how little he stood to gain. His culpability should be viewed as lower, it was said, than someone who was paid a higher sum, such as $10,000 or $20,000.
We are not persuaded by that argument. There will, of course, be cases where an offender will be able to point to genuine extenuating circumstances which could explain a desperate need for money.[6] In a case like the present, however, where no such circumstances are apparent, it is neither necessary nor possible for the sentencing court to seek to understand why a person would take such enormous risks for such a small amount of money. (We have in mind the exceptional severity of sentences imposed in some other jurisdictions.) The admitted fact is that FAO agreed to perform this role in return for financial reward.
[6]See, eg, R v Agboti (2014) 246 A Crim R 72, 75 [10], 84 [51] (Peter Lyons J).
What can, we think, be said is that a case like this reinforces the importance of general deterrence. If someone in FAO’s position judged that the small reward he was to receive justified taking the obvious risks, then it would suggest that the ‘risk-reward calculus’ is still not a sufficient deterrent.
Mitigating circumstances
The judge described as ‘compelling’ the mitigating factors relied on by FAO.[7] Her Honour had described the relevant matters in these terms:
You will be serving your sentence, isolated from your family and with quite poor English and with few other prisoners who speak your language. Your wife visited you in May last year and has been here for your plea hearing and sentencing, but loans had to be raised to pay for those visits, and she said in evidence that any further visits are unlikely. Your children have not been told about your imprisonment and they believe that you are away working and will return soon.
You will have to live with the isolation from them but also with your knowledge of the heartache and anguish this causes for your wife and of course, for the children.
The hardship that the family is experiencing and will continue to suffer, is considerable, but does not amount to exceptional circumstances as your counsel suggested it might. I take it into account as contributing very considerably to the burden that imprisonment will place upon you. Of course, this is something you should have considered before you agreed to the importation, but nonetheless, I give it due weight.[8]
[7]Reasons [46].
[8]Ibid [40]–[42].
Counsel for the Director accepted — properly, in our view — that these were all matters to which weight had to be given in mitigation. Separation from family, and social isolation, are clearly matters which make imprisonment more burdensome. That must be so, notwithstanding the fact that a person who makes a deliberate decision to commit an offence in a foreign country must be regarded as having assumed the risk of that outcome.[9]
[9]See, eg, R v Ferrer-Esis (1991) 55 A Crim R 231, 239 (Hunt J), cited in R v Zehavi [1998] VSCA 81, [9] (Batt JA), Chong v The Queen [2017] NSWCA 185, [94] (Schmidt J).
The Director’s central point, however, was that mitigating considerations of this kind are present in most cases involving foreign nationals who act as couriers in this way. Counsel submitted that there was nothing unusual or distinctive about FAO’s position, such as might have explained what she submitted was a wholly inadequate sentence.
We would uphold that submission. We have looked at a number of decisions of this Court, and other courts, as to the applicable sentencing standards.[10] Those decisions show that sentences for offending of this scale and nature tend to approach double figures, depending of course on individual circumstances. It must be borne in mind that the maximum penalty for CQ trafficking is life imprisonment.
[10]See Yip v The Queen [2017] VSCA 231; R v Agboti (2014) 246 A Crim R 72; R v Cunha [2017] QCA 6; Legault v The Queen [2014] NSWCCA 271; DPP (Cth) v Afford [2017] VSCA 201; Pham v The Queen [2016] VSCA 259; Shahbazi v The Queen [2016] VSCA 270.
Nothing in FAO’s personal circumstances could have justified a sentence which was so out of kilter with sentencing standards. It follows, in our view, that this sentence was manifestly inadequate.
We need finally to deal with the submission on behalf of FAO that, even if we concluded that the sentence was inadequate, we should nevertheless dismiss the appeal in the exercise of the residual discretion.
Residual discretion
It is well established that, even if the appeal court concludes that a sentence challenged by the Crown is manifestly inadequate, there is a residual discretion to dismiss the appeal.[11] In this case, senior counsel for FAO submitted that the purposes of the appeal could be sufficiently served by declaring the sentence to be inadequate, without the need for the sentence itself to be increased.
[11]DPP v Karazisis (2010) 31 VR 634, 657–60 (Ashley, Redlich and Weinberg JJA).
Counsel relied on the following statement from the New South Wales Court of Criminal Appeal in R v Borkowski,[12] which was quoted with approval by the High Court majority in Green v The Queen (‘Green’):[13]
[T]he purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong.[14]
[12](2009) 195 A Crim R 1 (‘Borkowski’).
[13](2011) 244 CLR 462, 477–8 [37] (French CJ, Crennan and Kiefel JJ).
[14]Borkowski (2009) 195 A Crim R 1, 18 [70] (Howie J).
This submission must be rejected. As the High Court in Green affirmed, the primary purpose of Crown appeals against sentence is
to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.[15]
But fulfilment of that purpose depends, necessarily, on the Crown’s identification of a particular sentence said to be manifestly inadequate. It is that which engages the appeal court’s jurisdiction. More importantly, the guidance which the appellate court is able to provide on sentencing principles and standards is conveyed, to a large extent, through the resentencing decision which is made once the court has come to the conclusion that the sentence under appeal is manifestly inadequate.
[15]Green (2011) 244 CLR 462, 465 [1] (French CJ, Crennan and Kiefel JJ), citing Griffith v The Queen (1977) 137 CLR 293, 310 (Barwick CJ).
The very notion of a ‘residual discretion’ assumes that a conclusion of manifest inadequacy will ordinarily result in a resentencing. This is unsurprising since ex hypothesi the court has concluded that the sentence imposed was unlawful, that is, it was outside the legal limits within which the sentencing discretion was exercisable in the circumstances of the case.
Absent a special circumstance of the kind which engages the residual discretion, there is no principled basis for declining to resentence once a sentence has been found to be manifestly inadequate. It would, indeed, be contrary to the fundamental principle of equality before the law for the Court in a case like the present to refrain from resentencing, unless the same course were to be taken in all other like cases.
The appeal will therefore be allowed.
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