OPQ v The Queen

[2012] VSCA 115

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0289

O P Q	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL ACJ and NEAVE JA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 May 2012
DATE OF JUDGMENT	8 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 115
JUDGMENT APPEALED FROM	DPP v [O P Q] (Unreported, County Court of Victoria, Judge Dean, 28 October 2011)

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CRIMINAL LAW – Appeal – Sentence – Attempted possession of marketable quantity of border controlled drug – Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’) s 307.6 – Guilty plea – Whether sentence of six years’ imprisonment with non parole period of three years and six months manifestly excessive – HIV positive – Post-traumatic stress disorder – Whether excessive weight given to deterrence – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Lewenberg & Lewenberg
For the Crown	Mr D D Gurvich	Director of Public Prosecutions (Cth)

MAXWELL ACJ:

1  I have had the advantage of reading in draft the reasons for judgment of Neave JA.  I too would dismiss the appeal, for the reasons which her Honour gives.

2  In paragraph 39, her Honour refers to the table prepared by the respondent of sentences imposed for Commonwealth importation and possession offences involving a marketable quantity of a drug.  Counsel appearing for the Commonwealth Director informed the Court that this table had been prepared in response to the statement in Nguyen v The Queen[1] that it would be of assistance to sentencing courts, and to this Court on appeal, if the Commonwealth Director could identify comparable cases from across Australia which could be used as a reference point for sentencing, or appellate review of sentencing, in particular cases.

[1](2011) 207 A Crim R 380, 392 [39] (Maxwell P).

3  As Neave JA has said, having this information in convenient tabular form was of considerable assistance in addressing the appellant’s contention that the sentence here imposed fell outside the range reasonably open to the judge in the circumstances of the case.[2]

[2]See also ibid 406, [104] (Redlich JA).

NEAVE JA:

4 The appellant was sentenced to six years’ imprisonment, with a non-parole period of three years and six months, following his plea of guilty to one charge of attempting to possess a marketable quantity of a border controlled drug, contrary to ss 307.6(1) and 11.1(1) of the Criminal Code.[3] The maximum penalty prescribed for that offence is 25 years’ imprisonment and/or fine of 5,000 penalty units. 

[3]Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’).

5  The appellant now appeals against that sentence.  

Background

6  Prior to committing the offence to which he pleaded guilty, the appellant collected or attempted to collect packages sent to various addresses in Hender Street, Ringwood East, or to various post offices in that area.  The contents of those packages were unknown and the appellant was not charged for collecting them.

7  The offences to which he pleaded guilty occurred between 9 July 2010 and 16 August 2010, when the appellant travelled to Melbourne from his home in Sydney and attempted to collect five separate packages that had arrived in Australia from Nepal, Bangladesh, Thailand, the Philippines and Argentina. 

8  Like the previous packages, these were addressed to false names at false and legitimate addresses in Ringwood East, Reservoir and Melbourne.  Four of the five packages contained a total of 1,355.6 grams of heroin (491.3 grams of which was pure heroin).  The fifth package contained 97.3 grams of cocaine (69.7 grams of which was pure cocaine).  The cocaine was extremely pure.

9 For the purposes of s 307.6(1) of the Criminal Code, a marketable quantity of either heroin or cocaine is not less than 2 grams.  At the plea hearing, the prosecutor pointed out that the quantity of drugs in the packages amounted to approximately 245 times the marketable quantity of heroin (based on the amount of pure heroin) and 34 times the marketable quantity of pure cocaine.  The street value of the drugs, depending on the extent to which they were cut with other substances, was estimated as between $436,916 to $846,712.  There was no evidence as to the amount the appellant would have received if the drug had not been detected.

10  On 16 August 2010, the appellant was arrested by the Australian Federal Police at a Ringwood East post office.  At the time of his arrest, he was attempting to collect a package which contained (among other things) 351 grams of heroin.  He was found to be in possession of $70,000 in cash and three false New South Wales driver’s licences.

11  Investigations of the appellant’s activities revealed that between 26 February 2010 and 14 August 2010, about $343,026 was transferred to nine different countries, using the false identity documents and drivers licences.  $75,247 was transferred to Nigeria, $123,448 was transferred to Thailand and $41,310 was transferred to India.

12  The prosecution conceded that the precise extent of the appellant’s involvement in the money transfers could not be ascertained, although there was a match between the false names and the drivers licence numbers found in his possession.  However, the transfers to Thailand were approximately timed to correspond with the receipt of the package from that country. The Crown said that the appellant’s activity other than the conduct covered by the charge was ‘contextual and goes to assist the court to understand what his role was.’

13  Initially, the appellant was charged with three importation charges and five charges of attempting to possess a marketable quantity of a border-controlled drug.  After he was committed for trial for these offences, he agreed to plead guilty to one count which covered his attempt to possess the five parcels.

His Honour’s reasons

14  In his sentencing reasons, the learned sentencing judge described the appellant’s offending as ‘organised and planned’, and being ‘of the utmost seriousness’.[4]  There was no challenge to these findings. 

[4]DPP v [O P Q] (Unreported, County Court of Victoria, Judge Dean, 28 October 2011), [6] (‘Reasons’).

15  His Honour found that the fact that the appellant had three false identity documents, was in possession of a substantial amount of cash when arrested and was associated with the transfer of substantial amounts of money overseas on 61 occasions showed that his role was ‘more significant than that of a mere courier or a person sent by others to collect the packages’.[5]  The judge was satisfied that the appellant, who was aged 45 at the time of sentence, ‘played an important role in a continuing drug smuggling enterprise’, noting that his counsel described him as ‘a trusted intermediary’ of the drug syndicate.[6]  Once again, these findings were not challenged.

[5]Ibid [7].

[6]Ibid.

16  The appellant was born in Nigeria and was granted refugee status in Australia when he was 33 years old.  He obtained Australian citizenship in 2008.[7] The judge referred to evidence of the appellant’s good character, including his award of several community leadership awards between 2000 and 2005,[8] and noted that he had also completed a number of courses whilst on remand.[9]

[7]Ibid [10]

[8]Ibid [12].

[9]Ibid [13].

17  His Honour concluded that the appellant was ‘an intelligent, resourceful person’ and did not ‘appear to have experienced any significant functional difficulties, either in the community or in prison’.[10]

[10]Ibid.

18  The appellant admitted two previous court appearances.  In 2004, he was placed on a good behaviour bond for an assault, and in 2007, he received a suspended sentence of nine months for obtaining money by deception, and five counts of using a false instrument.[11]

[11]Ibid [8].

19  At the plea hearing, the appellant relied on a psychiatric report prepared by Dr Lester Walton, which said that he had witnessed multiple atrocities when he was a child in Nigeria and had been sexually abused as a child by his uncle, a Catholic priest.  The appellant told Dr Walton that he had not abused drugs until about seven years previously, when he was introduced to cocaine and later heroin.  He was now addicted to those drugs.  Dr Walton found him to be cognitively intact and of normal intelligence.  However, he said that:

[The appellant] would qualify for a diagnosis of chronic post-traumatic stress disorder of at least moderate severity.  That condition was triggered by his childhood exposure to military activities as well as the sexual abuse.

It is uncommon in my experience for post-traumatic stress disorder to reach psychotic proportions but [the appellant] does speak of nocturnal hallucinosis.  I suspect that it is an example of so called hypnogogic hallucinations which are a feature of sleep disturbance rather than a psychotic illness, essentially the onset of dreaming before one is fully asleep which is experienced as hallucinating.

…

Precisely why [the appellant] was tempted to participate in the drug importation is not entirely clear.  I understand that he was in a state of some financial necessity at the time and he was in the grips of his own drug addiction but I suspect a more relevant factor was his chronic mental disorder which may have compromised his ability to exercise proper social judgement and carefully consider the consequences of his actions.  His foolishness has been thoroughly reinforced in him now that he has become a father.  This does not amount to a formal mental state defence but I certainly would see what might be described as psychological factors rather than conventional criminality as relevant in this case.

It is unfortunate that [the appellant’s] psychological counselling was interrupted by his being incarcerated.  It is most unlikely that he will be able to attract that type of intervention in a prison setting.  However, there has been continuation of his medication.

…

In my view it would be open to the sentencer to invoke those principles enunciated in Verdins.  In my opinion this man’s chronic mental disorder has made a central contribution to his offending.  I believe it is fair comment that because of his mental health problems [the appellant] is enduring imprisonment more onerous than others.  [The appellant] does impress as a suitable candidate for both continuing psychiatric treatment and also drug rehabilitation but necessarily definitive intervention in that regard must be deferred until he is again released to the community.  [The appellant] is not an unintelligent man and I suspect that the mere threat of imprisonment would suffice in relation to specific deterrence.  I fully appreciate that there are aspects of sentencing which must be considered and which lie outside my area of expertise.

20  Dr Walton was called as a witness.  The judge asked Dr Walton how his view that the appellant’s offending was causally related to his post-traumatic stress disorder could be reconciled with the fact that after the appellant had left Nigeria in 1999, he had functioned so well in the community for a number of years after he came to Australia that he had won community awards, and that his offending was systematic and organised.  Dr Walton maintained the view that the appellant’s post-traumatic stress disorder was an important factor in his offending.

21  In his careful and comprehensive sentencing reasons, the judge accepted that the appellant suffered from post-traumatic stress disorder as a result of the traumatic experiences he had suffered whilst he was in Nigeria and that the disorder had been exacerbated by the fact that he was infected with the HIV virus, and requires ongoing treatment.[12]  He also accepted that at the time of offending, the appellant was using illegal drugs of dependence, and had been doing so for some years.[13] 

[12]Ibid [15], [18].

[13]Ibid [18].

22  The judge accepted that the appellant’s capacity for social judgment was impaired by his mental condition, but noted that his judgment was also impaired by his drug use.  His Honour held that because of his mental condition

the principles set out by the Court of Appeal in R v Verdins[14] are engaged in your case, such that the principles of general and specific deterrence should be moderated to some degree in your case.  I also accept that your mental condition does moderate your moral culpability to some degree.[15]

[14](2007) 16 VR 269.

[15]Reasons [19].

23  The judge accepted that imprisonment would involve greater hardship for the appellant because of his post-traumatic stress disorder and HIV infection, than for a person not suffering from these conditions.  He also recognised that incarceration could worsen these conditions.[16]

[16]Ibid [21].

24  However, his Honour went on to say that:

I do not accept that your drug use, which also contributed to your offending, should moderate your moral culpability or the application [of] general and specific deterrence in your case.  You were a trusted intermediary for a drug syndicate, and I do not accept that you were importuned upon to offend.[17]

[17]Ibid [20].

25  Although his Honour took into account the appellant’s guilty plea,[18] he assessed his prospects of rehabilitation as only ‘reasonable’, having regard to the extensive nature of his involvement in the offending.[19]  His Honour also said that:

general deterrence is a significant sentencing consideration in cases such as yours, and involvement at any level in offending of this type must attract a significant sentence of imprisonment.[20]

[18]Ibid [9].

[19]Ibid [22].

[20]Ibid [23].

Grounds of appeal

26  The appellant relies on the following grounds of appeal:

1.        The learned sentencing judge erred in the exercise of his discretion by:

(a)giving excessive weight to the sentencing principle or objective of general deterrence; and thereby

(b)failing to sufficiently moderate the weight given to the sentencing principle or objective of general deterrence.

2. The sentence imposed is, in all the circumstances of the case, manifestly excessive.

27  In support of ground 1, the appellant submits that there was an internal inconsistency in the judge’s sentencing reasons, amounting to a specific sentencing error.  Although the judge initially accepted that the principles of general and specific deterrence should be moderated to some degree,[21] this was said to be contradicted by his later statement that general deterrence was a significant sentencing consideration.[22]

[21]Ibid [19].

[22]Ibid [23].

28  Alternatively, the appellant submits that the judge failed to give due weight to the reduction in the appellant’s moral culpability and the need to moderate specific and general deterrence, because of his mental condition.

29  In response, the Crown contends that his Honour explicitly took account of the effect of the appellant’s mental condition on his moral culpability and on the weight to be given to specific and general deterrence.  His Honour had considered all relevant mitigating factors, including the effect of the appellant’s mental condition and his HIV infection. 

30  The Crown relies on the following remarks of Allsop P in Director of Public Prosecutions (Cth) v De La Rosa:[23]

One needs to approach the sentencing task by reference to the facts found by the sentencing judge.  No appeal was directed to any of those findings.  The assessment of their seriousness and what was a proper sentencing response to them are broad evaluative judgments, in respect of which minds could reasonably differ at a number of points and from a number of perspectives.[24]

[23](2010) 79 NSWLR 1 (‘De La Rosa’).

[24]Ibid 19, [65].

31  The Crown argues that despite the mitigating factors which existed in this case, the sentence appropriately reflected the gravity of the offending, which involved importation of large amounts of heroin and cocaine, of considerable value and was ‘organised and planned’.  It was necessary for his Honour to impose a significant sentence having regard to the nature of the offences and the importance of deterring others from importing drugs.

Conclusion

32  I would reject the argument that there was any internal inconsistency in his Honour’s sentencing reasons.  The offending involved premeditated attempts to collect five separate packages containing significant quantities of drugs sent from many different origins.  In these circumstances, it was not inconsistent for his Honour to accept that general and specific deterrence had to be moderated ‘to some extent’, but nevertheless to treat general deterrence as a significant sentencing consideration.

33  The appellant’s argument also related to the weight given to his mental condition and HIV infection.  As this Court has said on many occasions, a complaint which goes only to weight must be treated as a particular of the complaint of manifest excess.  There is a logical reason for that proposition.  The process of sentencing involves an ‘instinctive synthesis’ of all relevant matters, which makes it impossible to determine the precise weight which has been accorded by the sentencing judge to a particular factor.  As Buchanan JA remarked in R v MacNeil‑Brown:[25]

[25](2008) 20 VR 677.

The myriad facts identified, found and classified by the sentencing judge are to be intuitively synthesised, that is, considered, in the light of general sentencing considerations, for the purpose of assessing their contribution to the determination of an appropriate sentence. This synthesis is generally not to be done mechanically by arriving at a starting point and adding or subtracting a period of time attached to each relevant sentencing factor.[26] In Wong v R,[27] Gaudron, Gummow and Hayne JJ rejected a mathematical approach to sentencing, saying:

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say ‘may be’ quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.

Similarly, in Markarian v R,[28] McHugh J said:

A sentence can only be the product of human judgment, based on all the facts of a case, the judge’s experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes in authoritative judgments … The circumstances of criminal cases are so various that they cannot be the subject of mathematical equations.[29]

[26]Although there may be simple cases in which ‘some indulgence in an arithmetical process will better serve’ the ends of transparency and accessible reasoning. Markarian v R (2005) 228 CLR 357, 375, [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[27](2001) 207 CLR 584, 611, [75] (emphasis in original).

[28](2005) 228 CLR 357, 378, [52]. See also R v Williscroft [1975] VR 292, 300 (Adam, Starke and Crockett JJ).

[29]R v MacNeil-Brown (2008) 20 VR 677, 710 [126]. Although Buchanan JA dissented from the majority on the question of whether it was appropriate for the prosecutor to provide a sentencing range in response to a request by a judge, nothing said by the majority detracts from the observations quoted above.

34  It follows that the party seeking to challenge the sentence must persuade the Court that it falls outside the range of sentences which would have been imposed if the sentencing discretion had been properly exercised.  If the sentence does fall outside that 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.[30] 

[30]DPP v Terrick (2009) 24 VR 457, 460 [5].

35  The appellant contends that the findings made by the judge with respect to (among other things) his HIV status, his post-traumatic stress disorder, and the hardship of incarceration caused by these conditions, were not adequately reflected in the sentence imposed by the judge.  Having regard to his guilty plea, his drug addiction and his ‘reasonable’ prospects of rehabilitation, the sentence imposed was beyond the range of sentences reasonably open to the judge.

36  During the plea hearing, the Crown submitted that the appropriate sentencing range was a total effective sentence of between four years and six months, and seven years’ imprisonment, with a non-parole period of between two and four years.

37  His Honour asked whether that range was formulated having regard to the factors in R v Verdins relevant to the offender.  The prosecutor submitted that there was an insufficient connection between the offending and the offender’s mental condition to justify the view that his moral culpability was reduced or that general and specific deterrence should be moderated.  

38  However, the Crown conceded that the appellant’s time in custody would be more onerous because of his post-traumatic stress disorder and HIV infection, and the prosecutor told the judge that the quoted range took that matter into account.  Nevertheless, the judge said he had moderated the application of general and specific deterrence and taken account of the appellant’s moral culpability, to some degree.

39  On appeal, the prosecutor relied on a chart of sentences imposed for importing or attempting to possess a marketable quantity of a drug, both of which carry a 25 year maximum term of imprisonment.  The provision of information of this kind is particularly helpful when it is claimed that a sentence falls outside the range of sentences which can be imposed for a particular offence.

40  In assessing the manifest excess ground, I have taken account of the reasons of this Court in Nguyen v The Queen,[31] which was an appeal against sentences imposed for offences connected with the importation of quantities of drugs the amount of which substantially exceeded the relevant commercial quantity.  The Court of Appeal examined New South Wales appellate decisions which provided guidance on the appropriate sentencing range, making particular reference to the reasons of McClellan CJ at CL in De La Rosa[32] and to the decision of the Court in R v Nguyen.[33]  In De La Rosa, the factors said to be relevant in sentencing, and comparing sentences, in cases involving importation of drugs included:

[31](2011) 207 A Crim R 380.

[32](2010) 79 NSWLR 1. In that case, the offender was sentenced for importing a marketable quantity of the drug.

[33](2010) 205 A Crim R 106. In that case the offenders were sentenced for importing a commercial quantity or attempting to possess a commercial quantity of a border controlled drug.

·          the quantity of the drug or drugs involved;

·          the involvement of the offender in planning the importation;

·          the reward to be reaped by the offender;

·          whether the offender gave assistance to the authorities;

·          the offender’s criminal history and prospects of rehabilitation; and

·          whether the offender pleaded guilty and the timing of any guilty plea.

41  The reasons of this Court in Lau v The Queen[34] include a table of sentences imposed for the federal offence of importing/exporting a marketable quantity of a border controlled drug, based on submissions made by the prosecution and the appellant’s counsel.  That table takes account of the matters considered relevant in De La Rosa, in relation to each sentence. 

[34][2011] VSCA 324.

42  In this case, the appellant was not convicted of importation, but of attempting to possess a marketable quantity of a border-controlled drug.  However, in R v Nguyen, Johnson J (Macfarlan JA and RA Hulme J concurring) said that: [35]

(l) where an offender…is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.[36]

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.[37]

[35](2010) 205 A Crim R 106, 127-8 [72].

[36]El-Ghourani v The Queen (2009) 195 A Crim R 208, [33]-[37].

[37]R v Ferrer-Esis (1991) 55 A Crim R 231, 230.

43 We have attached at Schedule 1 to these reasons a table setting out the sentences imposed for both importation and (attempted) possession of a marketable quantity of a border-controlled drug.

44  The appellant did not assist the authorities.  The quantity of the drug which he attempted to possess was comparatively high.  The judge found that he had played an important role in the importation process.  His guilty plea was not made at the first available opportunity.  

45  Although care must be taken in comparing the sentences imposed on other federal offenders for the same or similar offences,[38] the table of comparable sentences attached to these reasons indicates that the sentence imposed on the appellant was not at the higher end of the range.

[38]Hili v The Queen (2010) 242 CLR 520, 535.

46  It cannot be inferred from the sentence that his Honour gave too much weight to general or specific deterrence.  Because of the difficulties in apprehending people who attempt to import drugs and the enormous potential profits they may make if the drug is sold, both specific and general deterrence were important, despite the need to moderate them to some extent because of the appellant’s mental condition.

47  The appellant was not mortally ill and his HIV infection was being treated with anti-viral drugs.  His Honour had regard to the fact that the appellant’s HIV status and his post-traumatic stress disorder would make imprisonment more difficult for him.

48  In my view, neither ground of appeal is made out.  I would dismiss the appeal against sentence.

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SCHEDULE 1

POSSESSION AND ATTEMPTED POSSESSION OF A MARKETABLE QUANTITY OF BORDER CONTROLLED DRUG
S 307.6(1) CTH CRIMINAL CODE

Case	Plea	Drug	Quantity (pure)	Priors	Role	Subjective factors	Sentence imposed
Okeke v R [2010] NSWCCA 266	G	Heroin and cocaine	Count 1: 80.4g cocaine Count 2: 617.2g cocaine & heroin Count 3: 372.2g cocaine Count 4: 473g heroin Total just over 1500g Count 5: $61,150 cash and mobile phones showing contact with people overseas.	No	Received drugs from importers and played role in distribution. Used false identities to lease privately owned mailboxes. Arranged to receive (and received) packages sent from overseas that he believed contained narcotics.  Received and sent profits back to the importers. Evidence of money transfers overseas.	Suffered from heart condition, but was relatively stable under treatment. Suffered from post-traumatic stress disorder from head injuries suffered in an assault. 47 years old.	Resentenced on appeal: Count 1: 2 years. Count 2: 7 years. Count 3: 4 years and 6 months. Count 4: 6 years and 6 months. Count 5: 18 months. TES: 10 years and 6 months. NPP: 6 years and 10 months.
El‑Ghourani v The Queen (2009) 195 A Crim R 208 NSWCCA	G	Heroin	181.5g	1999: possession of prohibited drug	Role extended beyond a ‘mere cog’.  Arranged receipt of drugs in Australia and was to retrieve them.  Played ‘central role’ in overall transaction.	Significant drug habit (although this did not drive his crime). Plea of guilty not at the earliest opportunity.	Upheld on appeal: 9 years, with NPP of 6 years.
Onuorah v R (2009) 76 NSWLR 1	NG	Cocaine	107.2g	No	Leased post office box in false name; communicated with a person in Venezuela.  Contacted shipping agent to arrange for delivery of the parcel without him being present. Arranged for another person to receive parcel.	Youth and good character.	Upheld on appeal: TES of 9 years, with NPP of 6 years.
R v Oprea [2009] QCA 184 (Co-offender with Harris)	NG	Cocaine	1,489.7g	1982: break enter and steal. 1987: supply and possession of heroin 1987: Possession of prohibited drug 1992: Possession of prohibited drug	Domestic courier. No evidence that he had detailed knowledge of contents of package. But: knowledge of presence of illicit drug in parcel of not insignificant amount. Knowledge that he was part of a significant importation of an illicit drug.	46 years old at sentence. Commercial basis for activities, but no evidence as to what he received. Retail street value of drug: $2 million. No cooperation with authorities. Relevant criminal history.	Upheld on appeal: 10 years, with NPP of 6 years and 6 months.
R v Todoroski (2010) 267 ALR 593	G (late plea)	Heroin	825.7g	No	Arranged for his sister to collect package. Had provided ‘friend’ with names and addresses to which packages could be sent. ‘Crucial link’ in chain of operations.	Admitted that had received ‘other packages’ previously in return for money, but inference not drawn other packages contained illegal drugs.  Admitted that had knowledge that package contained illegal drugs. Culpability at upper end of the mid‑range of such offences. Street value of drug: $577,990.	Upheld on appeal: 6 years and 6 months, with NPP of 3 years and 9 months.
R v Harris [2009] QCA 370 (Co-offender with Oprea)	G	Cocaine	1,489.7g	1995: receiving and false pretences 2004: possession of drugs, stealing, drug 2006: soliciting for prostitution 2007: unauthorised dealing in shop goods (no terms of imprisonment imposed for above)	Not a courier, but a “minion” in the sense that she was merely a post box. A cog but nevertheless an important cog in the wheel. Less culpable than Oprea. No involvement in planning or funding offence, but role was simply to receive drugs and pass them on.	Retail street value of drug: $2 million. Guilty plea was not particularly early. Absconded at the time of trial. Heroin addiction. Promised forgiveness of debt, and second hand car in exchange for assistance.	Upheld on appeal: 7 years, with NPP of 4 years

IMPORTATION AND ATTEMPTED IMPORTATION OF A MARKETABLE QUANTITY OF BORDER CONTROLLED DRUG
S 307.2(1) CTH CRIMINAL CODE

Case	Plea	Drug	Quantity (pure)	Priors	Role	Subjective factors	Sentence imposed
Seah v R [2011] NSWCCA 269	G	Heroin	423.6g	Several offences in Singapore, including robbery, but none drug related	Courier. Not part of distribution network for drugs in Australia.	37 years old. Expected reward of $10,000 to $20,000. Street value: $494,200 and $847,200. Entitled to ‘significant discount’, as pleaded guilty ‘at the first reasonable opportunity’. Cooperated with authorities by admitting his involvement.	Upheld on appeal: 8 years, with NPP of  5 years.
Lau v R [2011] VSCA 324	G	Meth-amphetamine	709.8g	No	Courier.	54 years old. Plea of guilty ‘at earliest stage’. Judge did not accept that he was remorseful.	Upheld on appeal: 9 years, with NPP of 6 years.
Harper v R [2011] VSCA 314	G	Heroin	126.5g	No	Courier.	27 years old. Potential retail value of drug: $210,000 to $420,000. Plea of guilty at earliest opportunity. Impoverished background, victim of incest, worked as prostitute in Bangkok.	Resentenced on appeal: 4 years, with NPP of 2 years and 4 months.
Chong v R [2011] NSWCCA 182	G	Cocaine	151.1g	Drug possession and other offences overseas	Courier.	Street value of drug: $86,343 to $135,990. 26 years old at time of offence. Drug abuse since age of 15 years.	Resentenced on appeal: 5 years and 3 months, with NPP of 2 years and 9 months.
Adenopo v R [2011] VSCA 269	G	Heroin	127g	Not discussed	Courier.	Not discussed in detail on appeal.	Upheld on appeal: 3 years and 6 months. Resentenced on appeal to NPP of 2 years and 4 months.
Youssef v R [2011] NSWCCA 104	G	Heroin	573.6g	No	Courier. “left Australia for the express purpose of bringing heroin back into this country”.	Suffered from ‘refugee disorder’ and ‘post-traumatic stress disorder’. Street value of drug: $669,000 and $1,147,000. 41 years old.	Upheld on appeal: 7 years, 8 months, with NPP of 4 years, 8 months.
Brink v R [2010] NSWCCA 217	G	Cocaine and heroin	210.5g of cocaine 281.9g of heroin	Not discussed	Courier.	Prosthetic leg. Street value of cocaine: $120,000 to $170,000. Street value of heroin: $120,000 to $420,000.	Upheld on appeal: 8 years, 6 months, with NPP of 5 years.
Taylor v R (2007) 172 A Crim R 430	G	Amphetamine	136.3g	No	Courier.	19 years old. To be paid £5000 for importing. Estimated street price: $420,000 to $525,000. Remorseful. Offered to cooperate with police.	Upheld on appeal: 6 years and 6 months, with NPP of 3 years.
Nakhla v R [2011] NSWCCA 143	G	Cocaine	1,431g	Not discussed	Travelled overseas to make arrangement for importation. ‘Trusted lieutenant’. Although there were persons higher in organisation, he was an ‘extremely active participant’.	Guilty plea at ‘relatively early stage’.	Upheld on appeal: 9 years and 6 months, with NPP of 5 years and 9 months.
R v Nikolovska [2010] NSWCCA 169 (co-offender with Nakhla)	G (late plea)	Cocaine	1,431g	One conviction for dishonesty offence 20 years ago	Not a ‘mere courier’. Role went beyond collecting and delivering package. She ‘facilitated’ offending – by passing information to co-offenders in ‘strategic placement’ as Qantas. employee, and monitored likely arrival of package. Provided assistance over several months.	Acted for financial gain of $10,000. Married at age of 14 and suffered domestic violence. Guilty plea entered before committal hearing. Had knowledge that package contained drugs. Breach of employer’s trust was ‘fundamental’ to her criminality.	Resentenced on Crown appeal: 7 years and 6 months, with NPP of 4 years and 9 months.
Springer v R (2007) 177 A Crim R 13	G	Heroin	71.8g	No	Courier.	Immediate cooperation with authorities.  Made full admissions and identified co-offenders, which led to prosecution of two others. Discount of 50% allowed for subjective factors, including assistance (past and future).	Resentenced on appeal following apprehension of co-offenders: 4 years and 6 months, with NPP of 2 years and 9 months.
R v Mokoena [2009] QCA 36	G	Heroin	497.5g	No	Courier.	Acted for financial gain of $10,000. Remorseful. Made full admissions, and cooperated with police ‘very substantially’. ‘Timely’ plea of guilty. HIV positive.	Upheld on appeal: 9 years, with NPP of 4 years and 9 months.
R v Huynh (2008) 180 A Crim R 517	G	Heroin	108g	No	Courier.	Anticipated fee of $20,000 for importation. Pleaded guilty at ‘very earliest opportunity’. Estimated street value: $90,000 to $270,000. Motivation for offending: gambling addiction, resulting in substantial debt. 41 years old.	Resentenced on Crown appeal: 6 years, with NPP of 4 years. (Note:  double jeopardy applied)
R v Jimson [2009] QCA 183	G	Cocaine	1,686.8g	None discussed	Courier.	Estimated street value: $759,083.49. Provided assistance to authorities; willingness to cooperate fully. Genuinely remorseful. Foreign national – would be more isolated in prison. Entered plea of guilty ‘at early date’. Unlikely to reoffend.	Upheld on appeal: 8 years, with NPP of 4 years, 6 months.
Tyn v R (2009) 195 A Crim R 345	G	Heroin	242.3g	Fine of $400 for possession of prohibited drug Reckless driving, and drink driving	Courier.	Provided ‘truthful and valuable’ assistance to police. Real and genuine’ contrition. Pleaded guilty at ‘earliest appropriate opportunity’. 42 years old. Motivated to offend because owed money as a result of drug use.	Upheld on appeal: 6 years, with NPP of 3 years, 9 months.
R v Tran (2007) 172 A Crim R 436	G	Heroin	1,473g	No	Courier.	Cooperation with authorities, made full admissions. Plea of guilty entered at ‘first reasonable opportunity’. Offered $10,000 in exchange for importation. 41 years old.	Resentenced to 10 years, with NPP of 5 years.
Tsen v R [2010] WASCA 21	NG	Heroin	667.2g	No	Courier.	Street value: $2.3 million to $6.6 million. Had negotiated $10,000 fee for importation. Remorseful. Would have had ‘strong suspicions’ that was carrying drugs. 38 years old. Culpability at a ‘high level’.	Upheld: 11 years, with NPP of 6 years, 6 months.
R v Saputra [2009] NSWDC 239	G	Methyl-amphetamine	83.3g	Three prior drug related convictions, including one conviction for trafficking methamphetamine	‘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’. Some of drug for own use.	Late guilty plea (on second day of trial), therefore plea did not indicate contrition. Made limited admissions, but conflicting stories advanced to police. ‘Linguistic, cultural and social isolation’. 54 years old. Drug addiction. ‘Mid range’ level of culpability.	Resentenced on appeal: NPP of 5 years, 2 months, plus additional term of 27 months.
Jailani v R [2010] VSCA 276	NG	Heroin, morphine, monoacetyl-morphine	189g of heroin, 143.1g of morphine and 194.9g of monoacetyl-morphine	No	Courier, who was ‘acting at the behest of others higher than her in terms of hierarchy’.	Foreign national, imprisonment would be greater burden because of isolation from family and friends. 40 years old. Good prospects of rehabilitation.	Resentenced on appeal: 4 years on each count. TES: 5 years. NPP: 3 years.
R v Chea [2008] NSWCCA 78 Chea	G	Heroin	146.8g	Courier.	30 year old Cambodian national. Assistance to authorities provided by all co-offenders except Choun.	Crown appeal failed.  Upheld on appeal: 4 years 5 months, with NPP of 2 years 11 months.
As above Choun	G	Heroin	149.9g	Courier.	38 year old Cambodian national. Offered $40,000 to import drugs. Motivation for offending was to obtain better life for family. Psychological testing indicated bottom 1% of population in intelligence.	Crown appeal failed.  Upheld on appeal: 5 years 6 months, with NPP of 3 years 6 months.
As above Loueng	G	Heroin	169.7g	Courier.	25 year old Cambodian national. Assistance to authorities.  Expected to have bonding problems with infant child due to incarceration.	Crown appeal failed.  Upheld on appeal: 4 years 5 months, with NPP of 2 years 9 months.
As above BS	G	Heroin	239.2g	Courier.	37 year old Cambodian national. Brought infant child into Australia, who was in foster care. HIV positive.	Crown appeal failed.  Upheld on appeal: 5 years 3 months, with NPP of 2 years 9 months.
As above Srey	G	Heroin	27.1g	Courier.	35 year old Cambodian national. Unlike co-offenders, did not come from deprived background.	Crown appeal failed.  Upheld on appeal: 3 years 2 months, with NPP of 2 years 2 months.