Harper v The Queen

[2011] VSCA 314

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0069

LEONA HARPER
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2011
DATE OF JUDGMENT:	17 October 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 314
JUDGMENT APPEALED FROM:	DPP v Harper (Unreported, County Court of Victoria, 9 March 2010, Judge Howard)

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CRIMINAL LAW – Sentence – Importing a marketable quantity of a border controlled drugs – Whether sentence of five years imprisonment with non-parole period of three years manifestly excessive in all the circumstances – Sentences passed on bare couriers – Appeal allowed – Appellant re-sentenced to four years imprisonment with non-parole period of two years and four months – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E McKinnon	Theo Magazis & Associates
For the Respondent	Mr M Phillips	Director of Public Prosecutions (Commonwealth)

ASHLEY JA:

1. The appellant is a 27‑year‑old Thai National, born 7 August 1984, who pleaded guilty to importing a marketable quantity of a border controlled drug, namely heroin. 

1. She was sentenced on 9 March 2010 to five years’ imprisonment with a minimum period of three years.  The judge stated that if she had not pleaded guilty he would have imposed a period of seven years' imprisonment and fixed a minimum term of four and a half years.

1. The appellant was detected on 24 May 2009 attempting to bring into Australia packages of heroin which were concealed partly in her vagina and partly in her rectum.  The contents of the packages weighed 222.38 grams and the quantum of pure heroin was 126.5 grams.

1. For the purposes of the offence, a marketable quantity of heroin is not less than two grams whilst a commercial quantity is not less than 1.5 kilograms.

1. The wholesale value of the total mixture was between $80,000 and $113,000.  Its potential retail value was estimated to be between $210,000 and $420,000.

1. On the plea, in response to the judge's inquiry, the prosecutor submitted that the appropriate sentencing range was a head sentence of between three and a half and five years with a minimum period of between two and three years.  He provided to the sentencing judge seven instances of convictions for drug importation, five of them pertaining to heroin and two to cocaine.  Those seven instances, as it transpires, were drawn from much larger compilation prepared by the prosecution service of the Commonwealth.

1. Having examined the circumstance of those seven instances, counsel for the appellant identified as being 'the closest to this one', an instance where the offender had been sentenced to five years' imprisonment, to be released after serving 30 months.

1. The particular instance represented the heaviest head sentence imposed in any of the seven instances of which details were provided to the judge.

1. The appellant now appeals, by leave, on the ground that the head sentence and the minimum term are manifestly excessive.

1. The appellant's counsel relied upon the amount of heroin imported as being at the lower end of marketable quantity, to the appellant having no prior convictions, to her role as a courier being a relatively minor aspect of the importation offence, to the plea of guilty at the earliest available opportunity, to the appellant's cooperation (albeit that the judge found that it was less than full), and to the appellant's personal circumstances.

1. With respect to the last-mentioned matter, counsel submitted that the appellant was 25 years of age at time of sentence and that she came from an impoverished family.  She had a dislocated family background, she had been sexually abused as a child, and a victim of incest.  She had worked as a street prostitute for about five years in Bangkok before taking on the role of drug courier on this particular occasion.  She ran an enormous risk, in her home country and in Australia, for taking on the role.  It was a measure of her desperate circumstances.

1. Counsel submitted also that her client had a poor command of English and that incarceration would be more of a burden for her than for a person where the cultural differences are slight.

1. For the respondent, it was emphasised that the maximum penalty for the particular offence is 25 years’ imprisonment or a fine of $550,000 or both, that punishment and general deterrence are of particular importance in drug importation cases, that although the judge sentenced the appellant as a first offender, this was of less significance than is the case with other offences because drug couriers are frequently selected because they have no criminal record, that drug couriers carry out an essential function within the drug trade, and that the judge had taken sufficient account of the appellant's limited cooperation and admissions.  His Honour had also taken into account her personal circumstances and had made appropriate allowance for her different cultural background.

1. The judge carefully and fully analysed the various factors bearing upon sentence. 

1. Subject to a matter which was raised on the application for leave to appeal but which I did not consider was persuasive, it was not contended for the appellant that the judge had erred by taking into account some matter that he should not have done, or that he had made a finding which was impermissibly adverse to the appellant.  Rather, the contention raised by the sole ground of appeal was that, although his Honour had brought appropriate matters to account, he had arrived at a head sentence and a minimum term that were demonstrably excessive.

1. The appellant's difficult personal circumstances should not be undervalued.  But the fact is she took on the role of a drug courier and attempted to bring into Australia a not inconsiderable quantity of heroin.

1. I next agree with the sentencing judge that certain matters relied upon mitigation did not withstand examination.  Specifically, that was so in respect of the extent of the appellant's cooperation with the authorities and the extent of her remorse.

1. But there remains the question whether, notwithstanding his Honour's careful approach, the sentence which he arrived at was beyond that which is permissible.  I am persuaded that that is the case.

1. Although sentencing statistics are, for reasons that have often been explained, of limited value, the full compilation of sentencing material provided by the Commonwealth, first on the leave application, and then again today, suggests not merely that the sentence which the judge imposed was at the upper end of the range, as counsel for the Crown submitted, but that it went well beyond the spread of sentences which have been imposed in this State for the particular offence.  That is

particularly demonstrable when one considers a number of instances in which much larger importations have been dealt with by the imposition of sentences no greater, and in a number of instances less, than that imposed in the present case.

1. Although the ground of manifest excess does not depend upon specific error being demonstrated, there is one matter to which I would refer. 

1. The judge said in his sentencing remarks that: 

By resorting to internal concealment of the drugs, you made detection of the offence even more difficult.  This is an aggravating feature of your crime.

1. Counsel for the Crown did not submit today that this was a correct statement of principle.  In my opinion, it was not.  It is at the heart of the particular offence that detection of the drugs will be made as difficult as possible.  So to say does not mean that what I regard as a manifestly excessive sentence is to be explained by the judge’s particular observation.  Rather, I take the opportunity to indicate my opinion that the observation was unsound.

1. In all the circumstances which I have described, I consider that the appeal should be allowed and that the appellant should be re‑sentenced to a period of four years' imprisonment with a non‑parole period of two years and four months, the sentence commencing as at this date but with an appropriate declaration in respect of pre‑sentence detention.

1. I would state that, had the appellant pleaded not guilty and then been convicted, I would have imposed the sentence and fixed the non-parole period which the judge respectively imposed and fixed.

WEINBERG JA:

1. I agree.  I would add only that my initial assessment of this matter upon reading the learned judge's reasons for sentence was that the sentence would have been within range.  However, having had regard to the detailed analysis of the list of

sentences for comparable offending produced by the Commonwealth, I am entirely persuaded that the sentence was outside the range.  For that reason and for the reasons stated by the learned presiding judge, I agree with the orders proposed.

ASHLEY JA:

1. The orders of the Court will be:

1.        The appeal is allowed.

2.        The sentence imposed below is quashed.  In lieu thereof the appellant is sentenced to be imprisoned for four years. 

The Court fixes a non‑parole period of two years and four months' imprisonment.  The sentence commences as at this date. 

The other orders made below are confirmed.

The Court makes a declaration in the usual form in respect of pre‑sentence detention, the number of days being 877, including this day.

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