Lau v The Queen
[2011] VSCA 324
•28 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0161
| PO KAU LAU | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE and HANSEN JJA, BEACH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 October 2011 |
| DATE OF JUDGMENT | 28 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 324 |
| JUDGMENT APPEALED FROM | R v Po Kau Lau (Unreported, County Court of Victoria, Judge Tinney, 12 May 2010) |
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CRIMINAL LAW – Appeal against sentence – Importing marketable quantity of border controlled drug – s 307.2 of the Criminal Code Act 1995 (Cth) – Sentence of nine years’ imprisonment with non-parole period of six years not manifestly excessive – Sentencing error – Relevance to sentencing of recklessness, rather than intent, as state of mind – Whether judge mistakenly treated one mitigating factor as counterbalanced or eliminated by another sentencing consideration – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Ms M Fox | Lethbridges |
| For the Crown | Mr L Crowley | Commonwealth Director of Public Prosecutions |
NEAVE JA:
HANSEN JA:
BEACH AJA
This is an appeal against a sentence of nine years’ imprisonment, with a non‑parole period of six years’ imprisonment, which was imposed on the appellant following his plea of guilty to one count of importing a marketable quantity of methamphetamine, contrary to s 307.2 of the Criminal Code Act 1995 (Cth).
Background
On 21 October 2009, the appellant arrived at Melbourne International Airport on a flight from China. After passing through the arrivals area, he was approached by a Customs Officer who carried out an examination of his baggage. Customs officers opened one of the boxes found in his luggage, which appeared to be food product, revealing two packages containing a powdered substance. A sample of the substance tested positive for methamphetamine. A further examination of the appellant’s baggage revealed 27 packages of a crystalline substance, which were concealed in four different ways: twenty items were packed in a plastic tray inside a cardboard box, one item was packed in silver foil inside a cardboard box and four items were packed in a tin. The final two items were packed inside a cardboard box.
Subsequent forensic examination and testing revealed that the total pure weight of methamphetamine in these packages was 709.8 grams. This amount is towards the top of the marketable quantity range, which is between 2 and 750 grams.
When the appellant was arrested and interviewed by Australian Federal Police, he claimed that he was unaware of the presence of drugs in his luggage. Instead, he said (among other things) that he was travelling to Australia for a four day holiday, and had been asked by a friend, Cheung Kee, to deliver the food packages to a person, whose name he did not know. He claimed that after arriving at his hotel, he was going to telephone Kee on a Hong Kong number, so that Kee could contact his friend to collect the items from him.
The appellant was aged 54 at the date of offending and 56 at the date of sentence. He was born and raised in Hong Kong by a family of limited means. He left school at the age of 15, and worked as a construction worker, and then as a security guard, for a number of years. After losing his job in 2005, he became self employed as a courier/driver and met Kee in that context.
The appellant is married with two children. Prior to his offending, he lived separately from his family, who resided in China as a result of laws preventing Chinese nationals from living in Hong Kong. His children are still at school and his wife does not work. He has no prior convictions.
Grounds of appeal
There were initially two grounds of appeal. Ground one claimed that the sentence was manifestly excessive and ground two alleged that the judge had made a specific sentencing error. At the hearing, the appellant sought leave to rely on three additional specific error grounds (grounds three, four and five) which had previously been included as aspects of the complaint that the sentence was manifestly excessive. Counsel for the Crown opposed the grant of leave with respect to the proposed ground four, which is dealt with below. The Court gave leave to the parties to file additional submissions on this ground and indicated that it would deal with the application for leave to add this proposed ground in its reasons.
We will deal with the allegations of specific error first.
Ground two
This ground of appeal alleges that the sentencing judge erred in finding that one mitigating factor can be ‘counterbalanced or eliminated’ by another sentencing consideration.
In his sentencing reasons, the learned judge discussed the fact that the appellant would be imprisoned in a foreign country and isolated from his family, but considered that these matters had:
very limited mitigatory force. Such mitigatory force as is assumed by these matters is counterbalanced or eliminated by the high need to deter others and to protect the community.[1]
[1]R v Po Kau Lau (Unreported, County Court of Victoria, Judge Tinney, 12 May 2010) (‘Reasons’) [29].
The appellant’s counsel relied on Hall v R[2] and R v Ioane[3] in support of the submission that the judge had erroneously taken the view that the appellant’s status as a foreign national, who would have to serve his term of imprisonment away from his family, could not be a mitigating factor at all, because it was cancelled or outweighed by the gravity of the offending.
[2](1994) 76 A Crim R 454.
[3][2006] VSCA 84.
This ground is not made out. Both the authorities cited by the appellant are distinguishable because those cases were concerned with situations in which it was held that the judge failed to give weight or gave insufficient weight to a guilty plea because of the gravity of the offending.
Further, in this case, his Honour gave some mitigatory force to the fact that the appellant would be isolated because he was a foreign national and would not receive visits from his family. In our opinion, his Honour’s remarks meant simply that the need to protect the community from drugs and the importance of general deterrence were to be given considerable weight in sentencing the offender.
Proposed ground three
The appellant sought to add a third ground of appeal in the following terms:
the sentencing judge erred in finding that the appellant’s plea of guilty and willingness to cooperate with the authorities were not indicative of remorse.
The respondent did not oppose addition of this ground. In relation to these matters, his Honour said the following:
You have pleaded guilty. That is a fact. You have done so at the earliest stage. The case against you was a very strong one in the circumstances but you are still entitled to have that plea very much taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the experience of giving evidence. I can tell you that the sentence I intend to impose is far less than would have been imposed if you had been found guilty after a trial.
I do not, I am afraid, accept that your plea is accompanied by any level of remorse or contrition. This of course is not a circumstance or matter of aggravation. Merely, I am not satisfied as to the existence of the mitigatory consideration urged upon me by your counsel. I reached that conclusion having looked at all of the available materials. Your interview account when viewed in conjunction with the nature of your criminality, the carriage of a drug into this country, provides to me absolutely no basis to conclude that you have any level of contrition for your actions. Insofar as Mr Gullaci urged me to have regard to your interview to find remorse, I am unable to find such sentiment within it. That interview contained it is now said, falsehood after falsehood. You denied any wrongdoing. You set yourself up as a totally innocent dupe, and indeed, given the matters that were raised in the course of your plea as to the explanation for this expedition, your interview provided no admissions as to the debt now said to be owed between you and Kee or any financial consideration flowing to you from this trip.[4]
[4]Reasons [24]-[25].
It was also put to his Honour that in assessing the appellant’s contrition, he should give weight to the assistance which the appellant provided to the authorities. His Honour referred to the information provided by the appellant to Australian Federal Police shortly before the plea hearing, but described it as ‘valueless,’ [5] and said that he held ‘very serious doubts as to [the appellant’s] frankness in this exercise.’[6] The judge noted that the appellant had insisted that he did not know the full name or address of his friend Kee, whom he said he had met five years ago and saw everyday in a business capacity. Nor did he know the name of the person to whom he was to deliver the packages in Melbourne.
[5]Ibid [26].
[6]Ibid [26].
The appellant’s counsel submitted that the judge should have regarded the attempt to assist the authorities as genuine. Counsel contended that the judge had placed too much reliance on the fact that the appellant had lied in his initial interview and had not taken account of a later interview in which the appellant had given the police Kee’s phone number (although attempts to contact Kee on that number were unsuccessful). It was submitted that the offer of assistance and the appellant’s guilty plea[7] should have been regarded as some evidence of remorse.
[7]Counsel relied on R v Tasker and Tasker (2003) 7 VR 128, 133, where Eames JA said that normally pleas of guilty are to be regarded as indicative of some remorse.
Counsel for the Crown submitted that, apart from the provision of the phone number, the information provided in the second interview was broadly the same as that which had already been provided and that at the plea hearing, the appellant’s counsel had conceded that it was of limited value. Further, there was no psychological or other evidence relating to the existence of remorse.
For the reasons given by the judge, we consider that it was well open to his Honour to find that the appellant was not remorseful. Ground 3 is not made out.
Proposed ground four
The appellant sought to add a fourth ground of appeal alleging that:
the sentencing judge erred in finding that the appellant’s state of mind, being reckless as opposed to intentional had ‘only marginal influence, if any, in relation to the sentence imposed’.
The appellant relied on Tsen v R[8] in support of the submission that the judge had given insufficient weight to the difference in culpability between a person who brings in a drug with full knowledge of the nature and/or quantity of the drug, and a person who is aware of the substantial risk that they are importing a border controlled drug, but proceeds to do so regardless of that fact. He contended that in doing so, the sentencing judge had not had regard to the requirement in s 16A(2)(a) of the Crimes Act 1914 (Cth) to take the nature and circumstances of the offence into account in sentencing an offender.
[8][2010] WASCA 21 (‘Tsen’), [34].
The appellant further submitted that the judge had downplayed the importance of the fact that the appellant was reckless, rather than being aware of the presence of the drug, by finding that the appellant went into the venture ‘with his eyes wide open’ and that there was ‘a level of deliberation’ in relation to the importation.[9]
[9]Reasons [33] and [61].
Section 307.2 of the Criminal Code Act 1995 (Cth), provides that:
(1)A person commits an offence if:
(a)the person imports or exports a substance; and
(b)the substance is a border controlled drug or border controlled plant; and
(c)the quantity imported or exported is a marketable quantity.
Penalty:Imprisonment for 25 years or 5,000 penalty units, or both.
(2)The fault element for paragraph (1)(b) is recklessness.[10]
[10]Section 307.2(4) provides that it is a defence if the accused proves that he or she did not intend to sell the drug.
Recklessness is defined in s 5.4 of the Criminal Code Act 1995 (Cth) as follows:
(1)A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2)A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3)The question whether taking a risk is unjustifiable is one of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
In submitting that proposed ground four should fail, counsel for the Crown relied on the fact that the offence is made out if a person who knowingly imports a substance[11] is reckless as to the presence of a border controlled drug and that there is no separate offence of intentionally importing a border controlled drug. He also submitted that apart from comments made by Wheeler JA in Tsen (which we discuss below) there were no cases involving sentencing for serious drug offences under the Criminal Code Act 1995 (Cth), where the fact that the offender had been found to be reckless as to the nature of the substance imported had been held to justify the imposition of a lower sentence. He submitted that:
[11]There must be an intention to bring the substance into the country.
(a) the fact that an offender’s state of mind is reckless as to the nature of the substance being imported, did not bear significantly, if at all, on the court’s assessment of the objective seriousness of the offending; or
(b) if it is a relevant factor, it is not a mitigating factor; rather the presence of intention or knowledge is an aggravating factor.
In our opinion, the proposition in (b) should be accepted. The legislative scheme makes it clear that offenders who are reckless as to the nature of the substance imported, rather than having a specific intention to import a border controlled drug, are to be treated in the same way as offenders who do so intentionally. If it had been intended to treat reckless offenders differently from those who act intentionally, this would have been reflected in separate provisions imposing a lower maximum sentence on the former than the maximum sentence imposed on the latter. As counsel for the Crown pointed out, the Criminal Code Act 1995 (Cth) takes this approach with money laundering offences which are structured by reference to both the amount of money involved and the state of mind of the offender.[12]
[12]Chapter 10, Part 10.2, Division 400.
In reaching this conclusion, we have considered Wheeler JA’s obiter dictum in Tsen that:
an offender who imports an item reckless as to whether or not it contains a drug, will, other things being equal, be less culpable than an offender who has some positive awareness of the fact that he or she is carrying a drug.[13]
[13][2010] WASCA 21, [34] (Buss JA and Blaxell JA agreeing).
It is to be noted that the ground of appeal in Tsen was that the sentence was manifestly excessive. It was not put to the Court in Tsen that the existence of an intention to import the border controlled substance was an aggravating factor, rather than the absence of intention being a mitigating factor. In any event, Wheeler JA qualified the above statement by noting that:
Much will depend on the circumstances and in terms of moral culpability there may often be little difference.[14]
[14]Ibid.
Even if we are wrong in considering that the absence of specific knowledge that the substance is a border controlled drug is not a mitigating factor, in this case there was a very high degree of recklessness. The appellant accepted parcels said to contain food from a person whose full name he did not know, in order to deliver them to an unnamed person.
In these circumstances, it was not a sentencing error for the judge to consider that the appellant’s recklessness as to the presence of the drug was of marginal relevance to his sentence.
Further, even if error were made out under this ground, we do not consider that any different sentence should be passed, having regard to the circumstances of the offending and the offender.
We would grant leave to add proposed ground four but for these reasons the ground fails.
Proposed ground five
This ground of appeal alleges that the sentencing judge erred in assessing the appellant’s prospects of rehabilitation as only ‘reasonable’ when they were at least good. The appellant submitted that the appellant’s prospects should have been assessed as at least good, given his previous good character, age and lack of prior convictions. Having regard to the appellant’s lack of remorse and failure to provide valuable assistance to the authorities, we consider that it was open to his Honour to assess the appellant’s prospects of rehabilitation as ‘reasonable’. In any case, this proposed ground is really a particular of the ground of manifest excess.
Ground one
This ground alleges that both the sentence and the non-parole period imposed on the appellant were manifestly excessive. The appellant argues that the learned sentencing judge gave insufficient weight to:
(a) his good character and age;
(b) his attempt to assist the authorities;
(c) his limited role as a courier;
(d) the fact that he does not speak English, and is isolated from his family and native country, and the impact that will have on him in custody;
(e) his remorse;
(f) his prospects of rehabilitation; and
(g) the fact that he was ‘reckless’ as to the presence of drugs, as opposed to having had actual knowledge of their presence.
This ground of appeal also alleges that the sentencing judge gave too much weight to the large quantity of the drug involved and the need for specific deterrence.
Paragraphs (b), (e), (f) and (g) have already been discussed. Although the appellant now seeks to reformulate (e) and (f) as specific errors, they are in fact particulars of the ground of manifest excess. As this Court said in DPP v Terrick,[15]
The proposition that too much ― or too little ― weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy ― or, in a prisoner’s appeal, manifest excess ― is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible ― or necessary ― for the appeal court to reach a conclusion on that question.[16]
[15](2009) 24 VR 457.
[16]Ibid 459-460.
Thus the essential question is whether the sentence fell outside the range of sentences which could be imposed in the reasonable exercise of the judge’s sentencing discretion. In considering that question, the Court must take account of the sentencing principles set out in s 16A of the Crimes Act 1914 (Cth), as well as common law sentencing principles.
In DPP v De La Rosa,[17] McClellan CJ at CL said that the following were key factors in sentencing an offender for importation of a border controlled drug in a marketable quantity:
[17](2010) 273 ALR 324 (‘De La Rosa’).
·the quantity of the drug;
·the role of the offender;
·the reward obtained by the offender;
·any assistance given to the authorities;
·the offender’s criminal history; and
·prospects of rehabilitation.[18]
[18]Ibid 382-4.
His Honour’s sentencing reasons dealt with all of these matters. So far as the appellant’s age and previous good character were concerned,[19] the judge said that these matters should be given ‘lesser weight than often may otherwise be the case’ given the nature of the offence. That proposition is uncontroversial.[20] As the judge explained, ‘[i]t is those matters, age and lack of history, which will often explain the selection of the courier, it being thought, clearly enough, that a person with a history would be much more prone to apprehension’.[21] Further, his Honour went on to acknowledge that the appellant was 56 and had no criminal record.[22]
[19]Crimes Act 1914 (Cth) s 16A (2)(m).
[20]R v Marshall [2000] VSCA 167, [17] (Charles JA).
[21]Reasons [28].
[22]Ibid [29].
The appellant contends that the sentence was manifestly excessive because he was a drug courier who acted for modest financial reward, rather than a person towards the top end of the drug distribution hierarchy who would make substantial profits from his criminal behaviour. The criminal culpability of a courier will usually be less than that of a person who is involved in planning and financing the criminal enterprise.[23] However, as McClellan CJ at CL noted in De La Rosa,[24] whether the offender is characterised as a ‘courier‘ or ‘principal’ must not obscure the assessment of what the offender did.[25] In his Honour’s sentencing reasons, he said that:
It was submitted that your involvement was as a courier, and therefore at the lowest level. No one is suggesting that you are a Kingpin or Mr Big. You will not be sentenced as one… However, you may be labelled, I have to assess what you did. You were the indispensable link. Your involvement is absolutely fundamental to the success of the importation. You imported the drug. Without your preparedness to engage in this trip, that drug would not have entered these shores. You have committed, by your actions, this serious offence punishable by a 25 year maximum. Your offending is extremely serious and no comfort is to be found in a description of your being ‘merely’ a courier…
I sentence you as a courier, but your culpability is not low, your responsibility is absolute.[26]
[23]De La Rosa (2010) 273 ALR 324, 380 (McClellan CJ at CL), 388 (Simpson J).
[24]Ibid 380. His Honour also differentiated between the different levels of responsibility that a courier may assume.
[25]R v Olbrich (1999) 199 CLR 270, 279.
[26]Reasons [30].
It was conceded by the Crown that the appellant was a courier. There was no evidence as to the existence of any hierarchy or his precise role in it. In these circumstances, his Honour correctly sentenced the appellant on the basis that, in his capacity as a courier, the appellant had imported a quantity of drugs which was close to the top of the range of a marketable quantity.
Counsel for the appellant also argued that the judge should have given greater weight in mitigation to the fact that the appellant does not speak English and would be isolated from his family and native country while he was in gaol.
Where an offender comes to this country for the purpose of committing a crime, the fact that imprisonment will separate that offender from his or her family is not irrelevant, but does not carry great weight.[27] Further, in our view, his Honour correctly took the view that general deterrence had to be given significant weight in sentencing the appellant.[28]
[27]R v Adams [2007] VSCA 37, [24] (Vincent JA).
[28]Reasons [29].
Finally, the appellant submitted that the sentence imposed by his Honour was manifestly excessive because the learned sentencing judge placed too much emphasis on the large quantity of the drug involved, in circumstances where the appellant was convicted of reckless importation and gave too much weight to specific deterrence.
In relation to the first complaint, the appellant relies on the comments made by Gaudron, Gummow and Hayne JJ in Wong v The Queen[29] that:
It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported…
It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the offender’s knowledge about the importation in which he or she was involved.
[29](2001) 207 CLR 584, 609.
In his reasons, the sentencing judge noted that ‘whilst weight of the substance is not a matter absolute in determining the gravity of the offence, it was clearly enough still a relevant and important consideration’.
The weight of drug was not decisive in determining the sentence which should be imposed on the appellant. However, we consider that the judge was entitled to treat it as an important factor.[30] As Simpson J pointed out in De La Rosa:
If that were not so, then there would be no greater deterrent (general or specific) to the importation of 1.99 kilograms than there is to the importation of 2 grams. The greater the quantity, the nearer it is to the cut off point for a marketable quantity, and to the starting point of a commercial quantity, the closer to the maximum the penalty must be. Of course, quantity is not the only consideration, and must be tempered by other factors.[31]
[30]Ibid 597, 609, 610-1, 628.
[31](2010) 273 ALR 324, 389.
We consider that this reasoning applies whether the offender is aware that he is carrying drugs, or is convicted of the offence on the basis that he is aware of the substantial risk that he is doing so.
At the plea hearing, the Crown submitted that an appropriate sentencing range would be from seven to nine years, with a non-parole period of four to six years, although no authorities were cited in support of that submission. The appellant’s counsel submitted that he should be sentenced at the lower end of that range.
On appeal, the Crown relied on a number of cases to support the range put forward at the plea hearing. These authorities are summarised in the Table attached to these reasons. The Table also includes some courier cases discussed in De La Rosa.
The appellant placed particular reliance on R v Mirzaee,[32] R v Tran[33] and R v Mirza[34] in support of the claim that the sentence imposed in this case was manifestly excessive. It may be noted that Mirzaee and Mirza both concerned offences under the Customs Act 1901 (Cth), which have been repealed, for which the maximum penalty was 25 years’ imprisonment.
[32][2004] NSWCCA 315 (‘Mirzaee’).
[33](2007) 172 A Crim R 436.
[34][2007] NSWCCA 257 (‘Mirza’).
Sentences imposed in other cases are not precedents. Nor do sentences imposed for the same offence in other cases indicate that a term of imprisonment which is longer or shorter than any sentence previously imposed for the same offence is necessarily manifestly excessive or manifestly inadequate.[35] Nevertheless, previous sentences can provide guidance to sentencing judges and intermediate appellate courts and aid consistency in sentencing. As was accepted by the High Court in Hili v R; Jones v R,[36] consistency is an important consideration in considering appeals against sentences imposed on federal offenders.[37]
[35]See for example Hudson v The Queen; DPP v Hudson (2010) 205 A Crim R 199, 207. See also the comments of Simpson J in De La Rosa at 288-9, [303]-[305], cited with approval by the plurality in Hili v R; Jones v R (2010) 272 ALR 465, 479, [54].
[36](2010) 272 ALR 465.
[37]Ibid 480 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), 485 (Heydon J).
In considering whether the sentence imposed was manifestly excessive, we have had regard to the matters specific to the offending and the offender which are mentioned above, as well as to authorities in the attached Table. We have paid particular attention to the authorities on which the appellant’s counsel relied. We have also taken account of the table of sentences attached to this Court’s reasons in Nguyen v R; Phommalysack v The Queen,[38] which dealt with sentencing practices relating to the more serious offence of importation/possession of multiple quantities of a commercial quantity of a border controlled drug, which carries a maximum term of life imprisonment.
[38][2011] VSCA 32.
The ground of manifest excess can only succeed if the court is satisfied that:
a sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[39]
[39]Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA).
Having regard to the matters discussed above, we consider that the sentence imposed was stern, but was not beyond the range of sentences which could be imposed in the reasonable exercise of his Honour’s sentencing discretion. Ground 1 is not made out.
For these reasons, the appeal against sentence should be dismissed.
Sentences imposed for offences under section 307.2(1) of the Criminal Code: importing/exporting marketable quantity of border controlled drug[40]
[40]Reflects cases relied on by Crown or appellant and is not necessarily comprehensive.
| Case | Drug | Quantity | Role | Plea | Priors | Other mitigating factors | Reckless or knowledge? | TES | NPP |
| Tsen v R [2010] WASCA 21 | Heroin | 667.2g (marketable range is 2g – 1.5kg) | Courier | NG | None | Remorse Foreign national (but does not appear to have been pleaded as mitigating factor) | High degree of recklessness found. Would have had ‘strong suspicions’ that was carrying drugs | 11 years | 6 years, 6 months |
| TYN v R [2009] NSWCCA 146 | Heroin | 242.3g (marketable range is 2g – 1.5kg) | Courier | G | Fine of $400 for possession of prohibited drug Reckless driving, and drink driving | Provided ‘truthful and valuable’ assistance to police ‘Real and genuine’ contrition Plea of guilty entered at ‘earliest appropriate opportunity’ | Knowledge | 6 years (12 years as notional starting point) | 3 years, 9 months |
| Youssef v R [2001] NSWCCA 104 | Heroin | 573.6g (marketable range is 2g – 1.5kg) | Courier | G | None but had been ‘dealt with’ under s 10 of the Crimes (Sentencing Procedure) Act 1999 for an assault | Suffered from ‘refugee disorder’ | Knowledge | 7 years, 8 months (11 years as notional starting point) | 4 years, 8 months |
| R v Tran [2007] QCA 221 | Heroin | 1,473g (marketable range is 2g – 1.5kg) | Courier | G | None | Cooperation with authorities, made full admissions Plea of guilty entered at first reasonable opportunity | ‘Lack of detailed knowledge’ found. Admitted that he ‘suspected’ he was carrying illegal drugs | 10 years | 5 years |
| R v Jimson [2009] QCA 183 | Cocaine | 1,686.8g (marketable range is 2g – 2kg) | Courier | G | None discussed | Provided assistance to authorities; willingness to cooperate fully Foreign national – would be more isolated in prison Entered plea of guilty ‘at early date’ | No finding made | 8 years | 4 years, 6 months |
| R v Huynh [2008] NSWCCA 16 | Heroin | 108g (marketable range is 2g – 1.5kg) | Courier | G | None | Entered plea of guilty at ‘very earliest opportunity’ | Knowledge | 6 years | 4 years |
| R v Mokoena [2009] QCA 36 | Heroin | 497.5g (marketable range is 2g – 1.5kg) | Courier | G | None | Remorse, made full admissions, cooperated with police ‘very substantially’; ‘timely’ plea of guilty; HIV positive | Knowledge | 9 years | 4 years, 9 months |
| Brink v R [2010] NSWCCA 217 | Cocaine and heroin | 210.5 grams of cocaine (marketable range is 2g – 2kg) 281.9g of heroin (marketable range is 2g – 1.5kg) | Courier | G | None discussed | Prosthetic leg Foreign national – but does not appear to have been pleaded as mitigating factor | ‘Suspicious’ about drugs | 8 years, 6 months | 5 years |
| R v Saputra [2009] NSWDC 239 | Methamphetamine | 83.3g (marketable range is 2g – 0.75kg) | ‘Importer, a principal rather than simply a courier’ ‘Intended to be actively involved’ in distribution of drugs. ‘He was not acting simply on behalf of another as a minder or a warehouseman’. | G (late plea) | Three prior drug related convictions, including one conviction for trafficking methamphetamine | Made limited admissions to police, but did not assist further. Conflicting stories advanced to police, pleaded guilty on second day of trial and therefore, held that plea did not indicate contrition ‘Linguistic, cultural and social isolation’. | Knowledge | 8 years (9 years head sentence, discounted 10%) | 5 years, 2 months and an additional term of 27 months |
| Jailani v R [2010] VSCA 276 | Heroin, morphine, monoacetylmorphine | 189g of heroin, 143.1g of pure morphine and 194.9g of pure monoacetylmorphine | Courier ‘acting at the behest of others higher than her in terms of hierarchy’ | NG | None | Foreign national, imprisonment would be greater burden because of isolation from family and friends | No finding made | 5 years (four years on each of three counts) | 3 years |
| Mirza v R [2007] NSWCCA 257*** | Heroin | 313.7g (trafficable range is 2g – 1.5kg) | Judge not prepared to make factual finding about role of applicant, or his position in any hierarchy involved in the importation. | G | None | Major depressive disorder, remorse | Knowledge | 9 years | 5 years |
| Mirzaee v R [2004] NSWCCA 315*** | Heroin | 578g (trafficable range is 2g – 1.5kg) | Courier. | G | None | Plea of guilty entered at earliest opportunity. Foreign national, imprisonment would be more difficult on account of ‘Iranian origins, both in terms of culture differences and [his] inability to speak English. And on account of the fact that [he was] likely to suffer emotionally from being separated from [his] family’. Suffers from a heart condition. | Knowledge | 9 years | 4 years, 6 months |
*** offences committed contrary to section 233B of the Customs Act1901 (Cth), which has been repealed.
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