R (Cth) v Ender
[2014] NSWDC 198
•21 May 2014
District Court
New South Wales
Medium Neutral Citation: R (Cth) v Ender [2014] NSWDC 198 Hearing dates: 19/05/2014 Decision date: 21 May 2014 Jurisdiction: Criminal Before: S Norrish QC Decision: Sentenced to 5 years and 3 months imprisonment. Non - parole period of 2 years and 7 months.
Catchwords: Criminal - sentence, Commonwealth Crimes Act import border controlled drug cocaine, marketable quantity, role - courier. Legislation Cited: Commonwealth Criminal Code
Crimes Act 1914 (Cth)Cases Cited: Wong v The Queen (2007) 207 CLR 484
Thomson and Houlton [2000] NSWCCA 309
Olbrich v R (1999) 199 CLR 270
Hili v The Queen, Jones v The Queen [2010] HCA 45
DPP (Commonwealth) v De La Rosa (2010) 79 NSWLR 1, [2010] NSWCCA 194
R v Henry [2007] NSWCCA 90Category: Sentence Parties: Director of Public Prosecutions (Commonwealth)
Marco Claudio Alexander Ender - offenderRepresentation: Ms Tandra - Director of Public Prosecutions (Commonwealth)
Mr R Leary - Offender
File Number(s): 2013/00220700
Sentence
HIS HONOUR: Marco Claudio Alexander Ender, who was born on 19 May 1973 and is now 41 years of age, is for sentence today in respect of an offence committed by him on 16 July 2013 at Mascot in the State of New South Wales when he did import a substance, the substance being a border controlled drug, namely cocaine, and the quantity imported being a marketable quantity contrary to s 307.2(1) Commonwealth Criminal Code.
This is an offence that carries a maximum penalty of 25 years imprisonment and/or a fine of $850,000 expressed as 5,000 penalty units in the legislation. A marketable quantity of cocaine may vary between, as I understand it, 2 grams up to but not including 2 kilograms. The facts and circumstances of the matter with which I am concerned so far as the custody of the offender and the circumstances of the crime that he committed are as follows:
The offender was a German citizen who had lived in the Philippines, as I understand it, for approximately five or six years before he arrived in Australia on 16 July 2013. He had previously lived in Thailand for a number of years, the details of which I will cover when I deal with the subjective case. He arrived in Sydney at about 9am on Monday 16 July 2013 on a flight from Manila. He was travelling on a German passport. I hasten to say in this case, as opposed to many other cases of this type, there is nothing suspicious or particularly salient about his travel documents. When he arrived in Australia he filled in the incoming passenger card in the normal way and ticked "no" to question one which asked if he was bringing into Australia goods that may be prohibited or subject to restriction such as "illicit drugs". Then again, what else would he do? He recorded on the incoming passenger card that he was staying at the Ibis Hotel in Sydney.
Customs officials became suspicious of him in circumstances I need not dilate upon, the facts are largely silent on that matter in any event, and eventually, after being detained by Customs officers for a few hours, the offender signed a consent for an internal search form. He was taken to the nearby St George Hospital where most people in this circumstance are taken and subjected to a CT scan of his abdomen. The CT scan result at 2.10pm showed at least initially that there were no foreign objects within his body. As a consequence of this AFP members very kindly drove him to the Ibis Hotel at Darling Harbour and he was released and they departed.
However, at about 5.10 pm on the same day Customs officers were contacted by the medical staff at St George Hospital and advised that a re-consideration of the scan indicated there were at least 50 soft tissue density foreign bodies in the gastro-intestinal system including the stomach, the small bowel, the colon and the rectum. AFP enquiries at the Ibis Hotel revealed subsequently that in fact the offender was not registered there.
In circumstances which are not explained in the facts, it could have been a matter of chance, it might have been a matter of AFP investigation, at 8.20am the following day the offender was seen by AFP officers in the vicinity of the Pyrmont Bridge Hotel in Murray Street Pyrmont. He was arrested, cautioned and on his person were particular items including what seems to me to be some keys associated with his then accommodation and the sum of $444.10 and some other items that are of no moment. He was taken back to the St George Hospital and he consented again to another scan of his abdomen. At 1.40pm medical staff advised the AFP that in fact there were foreign objects within his abdomen. The offender was subjected to the relevant cautions and explanation of rights under the Commonwealth Crimes Act and then at approximately 3pm whilst being guarded by AFP officers the offender made various admissions. This is a matter of some relevance in assessing the offender's contrition, for example, because at this point whilst the AFP knew that there were items in his abdomen they were not sure of the detail of that and they had not searched his hotel room.
The facts reveal that in the conversation with an AFP agent the offender advised that he had passed some pellets in a toilet at the Star City Casino, that he was to be paid $5,000 for importing the items that were within his body, that he had a partner and a daughter who was then aged three back in the Philippines, that he was supposed to call what he described as an "Englishman" who would pay him in Australia and that he apparently had committed the offence because he had lost his business. He said, inter alia, "I'd rather go to gaol than be shot in the Philippines", and also added that he was "worried for my daughter but what can I do .. nothing .. safer here in Australia."
Police ascertained from him that he was staying at the Sydney Darling Harbour Hotel in Pyrmont Bridge Road staying in Room C, hence the keys in his possession with the letter "C" attached to them. AFP officers conducted a search at 2.40pm of his hotel room and there they found 41 cylindrical objects in four clip seal bags which ultimately were found to contain cocaine. A mobile phone was found containing two sim cards, a back pack which contained the cylindrical objects, his passport and his boarding pass. The cylindrical objects that were found in the room were described as being 3 centimetres long and 1 centimetre in diameter and within those objects was contained the cocaine sealed, it would seem, in some type of latex material tied with a knot.
The offender between 5.32pm and 10.14pm on 13 July 2013 whilst under AFP custody passed a further 22 foreign objects by a series of bowel movements and the material that was within the various cylindrical objects was the subject of assessment. The evidence reveals that the total weight of the white powder within the "condoms" was 340.1 grams, but the relevant pure weight for the purposes of assessing the offending was 92.8 grams. The white powder was found to have an average purity, as is the normal method of assessing these matters, of 26.85% of cocaine. The statement of facts states that the wholesale value of the cocaine is described as approximately $3,500 per ounce (I am not favoured with a description of how many grams there are in an ounce) which is calculated to be approximately $42,000. The purported street value of the drugs, on a calculation which does not seem to bear any relationship to the purity of this item, is said to be no more than $66,275.
The offender obviously then was relevantly charged and has remained in custody since the date of his arrest. In accordance with the requirements of the Commonwealth Crimes Act and, of course, with the general sentencing principles in New South Wales, all time spent in custody referable to the offence will be taken into account.
The offender was 40 years of age at the time of the offence. He has no prior convictions in the Philippines, Thailand and in Germany and he gave evidence before me and produced to the Court a report from a psychiatrist, Dr Richard Furst, dated 16 May 2013. When the offender gave evidence about his offending and his background he gave an outline of his personal history, largely in accord with what he told the psychiatrist. From what I understood of what he told me he grew up in Germany and was educated there but since either his late teens or his early twenties he has lived primarily in either Thailand or the Philippines. As a child he appeared to show aptitude in relation to computer work and the like and as an adult he has largely worked, apart from managing bars and working in the hospitality industry, developing computer programs.
He was married at what I understood to be quite a young age, 18 or 19 years of age, and it was in those circumstances a few years later his wife, when he was working in Germany, recommended that he have a trip away from Germany. He went to Thailand and there he remained. The marriage collapsed. He said he had a business in Germany with a partner and his partner and his former wife took over that business leaving him with no assets from that enterprise.
He gave evidence that in Thailand he was involved in two relationships. He was required because he was not a citizen or apparently a permanent resident to do what he described as visa runs, that is, frequent trips out of Thailand primarily to Hong Kong to renew his permission to remain in Thailand with temporary visiting visas. It was in these circumstances that he said he travelled to the Philippines in about 2007 and 2008. On one of these trips he met his now partner and he eventually settled in Thailand where, as I said, he had lived for some years prior to his travel to Australia. He was also required as I would understand it to leave Thailand from time to time in order to renew his visa and in fact one of the issues raised in his evidence was the fact that he had visa problems, as I might generally describe them, which in part lured him to involve himself in this affair.
In the Philippines he did some bar managing work, as I understand he had done in Thailand. But also he got involved in computer program development. He entered into a contract with a person I will describe as a contractor to develop what was called a 'web scraper' program. The purpose of the program, to summarise it, was to assist commercial organisations to get increased internet search exposure, particularly on the Google search engine. He was paid $7,500 as an advance to develop this program but he had an expectation that the program would earn up to $30,000 per month which he would share with his business partner, so to speak, when the program was developed.
As I understood his evidence, in November 2012 his home where he lived with his partner and his child was burgled and personal property was stolen. It would appear not to be a case of industrial espionage. As he explained it the personal property was of great loss to him but what was of greater concern to him was the loss of the computers that had been provided by the contractor and particularly the hard drive of the computers upon which the work that he had entered into developing the program was placed. He sought to recover the computers or the hard drive of the computers but to no avail. The theft of his property left him in terrible financial circumstances. He had no savings at that point. He had no access to any form of income, any property that he had formerly held in Germany and Thailand had been taken by his former partners.
At this point he also was in some sort of visa trouble because he had no money to renew his visa. He ended up not having any money he said for food and he lost his accommodation. He was living, as I understood the evidence, in a placed called Angeles City which is north of Manila. Angeles City was a city that had, as I understand it, developed a great deal when the Clark Air Force Base was then being run by the United States Air Force and had a very heavy American military presence. The Americans abandoned the Air Force Base in the early 1990's after a volcanic eruption of a nearby volcano. It would appear that the offender lost his accommodation there and was forced to live in what he described effectively as a slum with members of his wife's family. It was a place where there was no running water and no real infrastructure. Primarily it would be described as some sort of squatters' accommodation. His mother ultimately provided some assistance sending him €100 a fortnight. He was trying to obtain money to go back to Germany if it was possible. Certainly he was in a situation where he said he really had to beg and scrape even to feed his family.
It was in this situation of economic vulnerability that he said that he was approached by two men who he described as Darren and Carlos who gave him a proposition to "bring something into Australia". He gave evidence, and I do not criticise him for this given the manner in which it was led, somewhat prevaricating as to precisely what he initially agreed to do. He said that he had understood that he was to smuggle "something" into Australia. I have got no doubt that he knew by the time that he had entered into the agreement that it was to smuggle drugs. He agreed to the proposition although he claimed that he then prevaricated about going through with it once Darren and/or Carlos had fixed up his visa problems and had provided him with a ticket to fly to Australia. My understanding of his evidence was that the arrangements for him to come to Australia and his final trip to Australia were made over some few days.
He gave evidence that he gave some thought to participating in the arrangement at the Philippines end but then finding some way to travel to Germany. He said that when he expressed some doubts about whether he would go through with the scheme his family were threatened by one or other of the men that had recruited him and thus he went through with the arrangement. He was required to ingest the drugs as his self-evident from the facts that I have outlined. His claim of ingesting the drugs and then possibly changing his ticket to fly to Germany in my view had a complete air of unreality about it for a number of self-evident reasons. If he was to renege on the arrangement he had made with the drugs within his body, taking a valuable consignment of drugs to Europe instead of Australia, one might have thought that the threats that he said had already been made to him about the safety of his family would have been brought to fruition having betrayed the arrangement he had with his handlers in the Philippines.
In my view, this part of his evidence was inconsistent with his claim of going through with the arrangement because of the threats that had been made. I have got no doubt that he may have been threatened if he indicated some reluctance, having agreed to do what was suggested, but ultimately his own evidence establishes, as was discussed in the submissions, that he had already agreed to do what he ultimately did before any threats were made and no issue of duress arises whatsoever. One might have thought of course people in the illicit drug trade who recruit people are likely to threaten people who try to pull out of it once they have exposed themselves as being involved in that trade. They themselves run risks once they bring people into their confidence and a person who expresses reluctance to carry out an agreed scheme is a person who could cause problems for those people in the venture. Be that as it may, as I said, no issue of duress arose and this was conceded in the submissions. But it is submitted on behalf of the offender, as I will note later, that he did carry through with this matter because of his desperation to overcome his financial difficulties, which I do accept.
He gave evidence that when he arrived in Australia he was to contact, as I understand it, Carlos. He claimed that Carlos was to fly to Australia to pay him the $5,000 that he agreed would be his fee. Again, although I do not reject all of the offender's evidence, I find it very difficult to believe that Carlos, who had organised him to fly to Australia, would expose himself to the risk of arrest in Australia simply to fly over here to give him $5,000. In any event it seems to be inconsistent with the terms of the admission he made to the AFP. The offender sought to explain that Carlos was in fact the "Englishman". I have difficulty accepting that to be true. In any event, as it transpired, he was arrested before he had contact with anybody who could distribute the drugs. He accepted in his evidence that he had done the wrong thing. He expressed regret for his actions and I accept his expression of regret. He confirmed that he had no criminal convictions in any country.
Since he has been in custody he has had significant health difficulties which I will summarise shortly from Dr Furst's report. He said in his evidence there was a gap in his memory as to what had happened whilst he was in custody. He apparently had been found unconscious in his cell in November and could not remember anything between November and January. At the time he was in custody he was suffering from conditions including hypertension, reflux and the consequences of alcohol dependency. He said that since he had come into custody he had recently undertaken entry into what is called the Getting SMART program and that he had undertaken one session of that. He claimed that he did not realise that he had a big problem with alcohol until his arrest in relation to this matter. Given the history that he gave Dr Furst he must have been completely blind to the reality of his lifestyle, if what he told the doctor was true.
In cross-examination he was asked about whether he had considered borrowing some money from friends and family to overcome his financial difficulties. He said there was nobody to assist him although he did concede, as I have earlier indicated, that his mother provided him with some sums of money. He thought that there was a risk involved but he saw it as the only available option for him at the time.
He agreed that he gave no thought at all to alerting authorities to what he did either in Australia or in the Philippines, although I can understand with the more stringent penalties in the Philippines he might have been reluctant to admit that he was carrying drugs within his system.
Dr Furst sets out the personal history of the prisoner, including the history of heavy drinking whilst living in Thailand and the Philippines and his lack of appreciation of his problem. In the review of the Justice Health records, Dr Furst reveals that the prisoner has been diagnosed with a significant hypertension as well as reflux issues. He received medication in relation to these conditions which is set out in the report and he has also been receiving medication in relation to alcohol dependence whilst in custody. As I understand it there is no suggestion that he ever sought any assistance in relation to his alcohol dependence prior to coming into custody.
The Justice Health records confirm that in November 2013 he suffered a psychotic episode when, as I said earlier, he had been found collapsed. He required emergency evacuation to a hospital, he was treated for conventional medical issues such as his hypertension, his reflux and his alcohol dependence and then several days later he gave indications of hallucinating consistent with some form of delirium. He continued with bizarre behaviour over the next number of weeks. His condition settled down for a period and then after late November he showed further evidence of mental disturbance until about 8 January when he was regarded as lucid by 20 February Justice Health records made by a nurse described him as "orientated and logical." The diagnosis of the psychiatrist suggests "mental disorder", as he describes it of "alcohol dependence", and also evidence of psychotic features between November and January 2014 "probably organic in nature related to medication interactions." In other words, the bizarre behaviour and his collapse and related matters are a result of the interrelation or interaction of medications to treat the conditions that he has. He continues to remain in the prison hospital system.
There is some debate in the report about the cause of the delirium. It could have been brought about by the ingestion of prohibited drugs but the prisoner denies that he had ingested prohibited drugs and there is no evidence to suggest that he did so. The psychiatrist concluded: "There are no indications of a pervasive more serious mental illness such as schizophrenia or bipolar disorder at the time of recent assessment or prior to his arrest from 19 July 2013." In other words, there is no evidence of any causal relationship between any mental condition and the commission of the offence. This was not suggested in submission. Of course, his alcohol dependence may have indirectly contributed to his offending as his counsel pointed out insofar as it may have actually exacerbated his financial difficulties and it may have affected his judgment to some extent, but it is to be remembered that his involvement in this offence was not a spur of the moment involvement. The offence occurred over a relatively short period of time, but his involvement involved a number of days of contact with his handlers, travel to Australia and, of course, his excretion of the drugs that were found in his room.
The prisoner does not assert that he agreed to commit the offence or participate in the offence under the influence of alcohol and did not assert in his evidence that he was guided in any way by the condition created by his alcoholic dependence. The psychiatrist has made various recommendations about his treatment in custody including the need for counselling and involvement in the Getting SMART Recovery program. As for his prognosis, the prisoner if he was able to get on top of his alcohol issues had good prospects of being successfully rehabilitated particularly if he remained abstinent from drugs and alcohol in the community. Although there is no evidence of any drug dependence at the time of the commission of the offence and, in fact, the prisoner said in his evidence that whilst he experimented with drugs at a younger age he was not using drugs at the time of the commission of the offences.
The Crown has provided detailed written submissions which set out reasonably fairly the various matters that are required to be considered according to law. The submissions of learned counsel for the prisoner were focused around those written submissions. He said there was not much to dispute in relation to what had been put in the Crown submissions. Thus before I turn to the oral submissions that were made, because there were no written submissions filed by the prisoner, I will just deal briefly with the Crown's written submissions. Firstly, I point out I have taken into account all that has been put by the Crown. As I have said earlier, it is correct to say that the Crown has summarised the salient legal issues that needed to be taken into account. The Court is to have, of course, close regard in the matter described by the Crown as to the maximum penalty and assess the objective seriousness of the offence in the context of the range of conduct that is contemplated by the provision. The prisoner is to be sentenced in accordance with Pt 1B of the Crimes Act 1914 (Cth) and particularly by regard, to the terms of s 16A having regard particularly to s 16A(2) and the various matters under that subsection that are relevant to this matter.
I will deal with some of those matters. Firstly, the nature and circumstances of the offence I have already summarised. With regard to the issue of the guilty plea, the Crown correctly submits that the guilty plea is to be taken into account as a mitigating factor as it demonstrates a willingness to facilitate the course of justice, the utilitarian benefit of the plea of guilty is not a relevant discounting factor in Commonwealth sentencing. That having been said, notwithstanding what was said about the guideline judgments in Wong v R by the High Court, the practice in New South Wales of providing discounts in respect of pleas of guilty in accordance with the guideline judgment of Thomson and Houlton, whilst not necessarily applying to Commonwealth offences, can be considered in Commonwealth sentencing. As I will demonstrate in a moment when I refer to the decision of De La Rosa, it is common place for judges in New South Wales to provide such a discount and I do propose to provide the prisoner with a discount of 25% upon the otherwise appropriate sentence to recognise the plea of guilty as submitted in the terms appropriate by the Crown. It is true that the Crown case against the prisoner was completely overwhelming but that having been said a discount of 25% is appropriate particularly having regard to the fact that the prisoner pleaded guilty at the first reasonable opportunity. In fact, as I understand the matter, he pleaded guilty in the Local Court when he was not even represented.
Properly the Court is to have regard to the need for specific deterrence as provided in s 16A(2) and the need for adequate punishment. The Court is also required to take into account the offender's character, antecedence and background. The Crown submits, of course, that his absence of criminal convictions is of less salience as a mitigating factor in cases of this type and it can be fairly said that that is correct. One bears in mind, of course, this prisoner, who I am prepared to assess was a courier and not a manager or organiser of this importation, was obviously attractive to those that recruited him because he had no prior criminal convictions. People who send people to this country to import drugs are not going to send people with substantial criminal histories because they obviously will attract attention. So far as his character is concerned I accept that throughout his adult life he has been industrious although he was unemployed at the time of the commission of the offence and I accept that he has in recent years been performing responsibilities in relation to his family. In that regard, the issue of the hardship to the offender's family, as the Crown correctly points out, by reason of the prisoner's presence in Australia is not an exceptional circumstance in this case. I am mindful of the fact that there is evidence that he has left behind his partner and his daughter to fend for themselves. But the prisoner, himself, has not raised any matter in his evidence that speaks of exceptional circumstances such as to give effect to the particular mitigation of which the Crown has correctly identified in its written submissions. The Crown, of course, does concede, and it is correct to do so, that the probable effect of the sentence upon the prisoner, they being left in difficult financial circumstances back in the Philippines albeit with some family support, is part of the offender's subjective features which obviously must be taken into account.
This brings me back to the role of the offender in the offending. In this regard, as the Crown correctly submits, in the context of determining the role of the prisoner by reference to the principles set out in the decision of Olbrich v R (1999) 199 CLR 270 (particularly at 279), the prisoner agreed for financial reward to travel from the Philippines to a country with which he had no connection, that is, Australia with the drugs inside his system. He swallowed the drugs to conceal them and actively sought to conceal them from the authorities. It is the case that the prisoner was prepared to travel to Australia and to take such steps as were necessary to enable the drugs to be delivered to whomever he was to provide the drugs. Clearly, as the Crown points out, the prisoner played a crucial role in the importation of the border controlled drug because without the steps that he took the drugs would not have been imported. He was aware of his risk of going to gaol. That would have been self-evident to him. He would have fully been aware, I would have thought having lived in Thailand for many years and been in the Philippines for some years, that the consequences for drug importation were substantial even in a country like Australia that has a more liberal approach to sentencing than might be the case in those countries.
In relation to his participation in the matter, as I have pointed out, by his own account there was no issue of duress. Touching upon his agreement the only issue of threats arose when he sought to withdraw from the enterprise as I have earlier pointed out. The facts of the matter are, as the Crown says, that the fact that the prisoner's role might be seen as that of a courier and categorised as such it does not of, itself, denote the need for a degree of leniency. It merely requires consideration of that role in the context of the range of conduct contemplated by the Section. The Crown is absolutely correct to say that couriers who are willing and able to undertake the role that this prisoner performed, facilitate the importation of drugs in this country. The Crown has made submissions about the significance and the weight of the drug and I will deal with that in the context of the decision of De La Rosa. The Crown in its oral submissions said, having extensively covered relevant matters in the written submissions, simply that there no issue of duress, the medical condition of the prisoner was of limited importance but otherwise relevant matters were set out in the Crown submissions.
The prisoner's counsel submitted that a full term of imprisonment was the only appropriate order to be made which is self-evident. He made submissions about the role of the prisoner which I accept. He submitted that in the context of the quantity of the drugs the offence was at the lower end of the spectrum which I accept although there are other matters to be taken into account which I will deal with shortly. Of course, it should be borne in mind, as I have pointed out to counsel for the accused in submission, that the quantity of the drugs that was imported was constrained by the method of importation. He noted the plea at the earliest opportunity which I have earlier indicated I accept is so. He made submissions about the absence of prior convictions and the prisoner's prior industry. He submitted that the offence was one of "need rather than greed". In the context of the character of the offending and the manner in which the prisoner agreed to enter into this enterprise one could not so categorise the offence in such simplistic terms. It was submitted that the Court should bear in mind the significance of alcohol in his life and the indirect relationship of it to his offending and his medical condition. The medical evidence he said was quite important and I accept that it is certainly highly relevant in a range of ways.
It was initially submitted that the Court would regard his medical condition as one that required less weight being placed upon general deterrence. A discussion of that matter with counsel led to the concession that, in fact, in the context of there being no causal connection between his mental condition in November to January of last year and early this year to the offending that was not so. But his current medical condition and his past medical condition were certainly relevant to the circumstances of his custody. It was submitted he had insight now into his alcohol dependence, had good prospects of rehabilitation and that a finding in relation to the non-parole period, in the context of the submissions of the Crown in respect of the non-parole period, in light of the decision of Hili v The Queen, Jones v The Queen [2010] HCA 45 should permit a minimum term that led to an earlier release than might otherwise be the case primarily because of his medical condition and his prospects of rehabilitation. It was conceded, as I said earlier, that the Crown submissions were of importance and of assistance to the Court.
The Crown provided to the Court a number of comparative cases in summary, I will not read the details of those cases, some of them were decisions of the New South Wales Court of Criminal Appeal, some were decisions at first instance in Western Australia and Victoria. I was provided copies of those judgments and I have read those judgments. I have taken them into account.
Counsel for the accused provided me with a case with which I am familiar, as most sentencing judges should be, because of its importance: Director of Public Prosecutions for the Commonwealth v De La Rosa (2010) 79 NSWLR 1. That judgment, of course, was a judgment of a Full Bench of the Court of Criminal Appeal, presided over by the learned President with the Chief Judge at Common Law and other senior judges. The judgment, of course, was concerned with some constitutional and other issues relating to the operation of s68A Crimes (Appeal and Review) Act 2001 and other matters of particular legal importance. The judgment or the learned Chief Judge at Common Law, however, is most instructive in a range of ways in relation to sentencing in this matter. For a start, dealing with the issue of comparative sentencing, the learned Chief Judge's treatment of comparative cases is extremely useful. I mean no criticism of the learned Crown's assistance in this regard, but the categorisation of various types of offending under relevant legislation and the vast number of judgments that are summarised by his Honour that may be thought to be relevant in a comparable way, was of great assistance to this Court. The judgment is also instructive as setting out principles relating to the treatment of offenders with mental health problems and also in relation to general principles that relate to sentencing offenders in relation to offences of this type.
In relation to this latter matter I particularly refer to [270] - [273] of that judgment. His Honour discusses, for example, that the nature, quantity, purity, source and value of the drugs are highly relevant to the assessment of the objective seriousness of the drug offending. He discusses the need for general deterrence as the Crown pointed out in its written submissions. The participation for financial reward may increase the objective gravity of the offending but, again, this is a matter of degree. He observed: "However, the converse is not true, mere indebtedness does not necessarily operate to mitigate the offence." He points out that in importation cases, the motivation of the offender at the point of initial departure may be relevant in assessing his or her culpability and that it clearly is so. He discusses, of course, the early plea of guilty stating, "It will quite normally attract a discount of 25%" although there is no issue in relation to that matter here. He discussed (at [177]) the issue of an offender "suffering from mental illness, intellectual handicap or other mental problems." He set out a number of issues that arose from a range of authorities from Engert through to R v Henry [2007] NSWCCA 90 [28]. He noted the relevance of mental health where it contributes to the commission of an offence in a material way to the assessment of moral culpability and the weight to be given to general deterrence. That does not arise here.
However, he pointed out, and this may be an observation that may be made in relation to general health issues as also arise here, that the mental state of an offender "may mean that a custodial sentence may weigh more heavily on that person because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced." The condition may also reduce or eliminate the significance of specific deterrence, although that is not a major matter here. Of course, he also discusses the relevance of mental illness when it creates a danger to the community, but that does not arise here.
Ultimately, as I have earlier indicated in the course of submissions the medical condition of the prisoner and the psychotic episodes suffered whilst in the hospital are relevant in this matter in assessing the circumstances of his custody. I have particularly had regard to that matter in considering the fixing of the non-parole period in the contest of submissions made on that matter by the Crown and the defence particularly in light of the decision of the High Court in Hili and Jones.
With regard to the comparative sentencing exercise, of course, the learned Chief Judge at Common Law extensively discussed what could be called "comparative cases". From [207] through to [253] he not only referred to a number of cases indirectly, but summarised a number of cases. He even went to the trouble of identifying (at [224]) what he called a table of his analysis of the dozens of cases that were considered by him relating the importation of commercial quantities and traffickable and/or marketable quantities, bearing in mind the legislation had changed over the years. He broke up the imports of commercial quantities into four groups, imports of traffickable/marketable quantities into three groups. On my understanding of the facts of this matter, in the comparable cases that he summaries or adverts to, it is clear in relation to this matter that this offending falls within group 3 of cases involving an importation of a traffickable/marketable quantity of border controlled drugs. In that regard, group 3 (if I might refer to [224]) cites in general terms that the form of offending involves a quite low quantity, monetary reward or relief of debt, discount for early guilty plea, mere courier role, adverse personal circumstances.
I do not have to now undertake some summary of what his Honour has summarised, but I found the very extensive discussion by his Honour along with the material provided by the learned Crown Prosecutor who skilfully represented the Director very helpful in assessing the appropriate penalty in this matter.
Ultimately, I have concluded the comparative cases point to an appropriate starting point for the sentence in this matter to be seven years imprisonment. The prisoner is entitled to a discount of 25%. That leaves the sentence to actually be imposed as five years and three months. In light of all that has been put to me and the material that I have summarised, I have determined that the non-parole period should be two years and seven months. All sentences should commence from the date the prisoner came into custody. Can you stand up thanks very much, Mr Ender?
In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment of five years and three months to commence on 17 July 2013, that sentence will expire on 16 October 2018. The non-parole period I fix as I am required to do for a sentence of that length in the context of the relevant Commonwealth legislation summarised by the Crown's written submissions is two years and seven months commencing on 17 July 2013 and expiring on 16 February 2016. You can sit down. Whether you are released on that date will be a matter for the parole authorities. I am mindful of the fact that you will be deported at the expiration of your sentence and it will be a matter for negotiation between the Parole Authority and the Department of Immigration or whatever title it will have in 2016 as to your disposal in that regard. If you are of good behaviour during the period you are in custody and undertake the courses that are required of you by the custodial authorities the likelihood is you will be released at least into immigration custody on or about 16 February 2016. It goes without saying, of course, from the remarks on sentence and the form of the order that I have made that I have certainly had regard to the particular legislative provisions relating to the imposition of sentences under Commonwealth law, clearly no other sentence other than a term of imprisonment can be imposed and as I have earlier said given the length of the "head sentence" the minimum term must be expressed as a non-parole period. Yes, thank you. Any technical matters, Madam Crown?
TANDA: No, your Honour.
HIS HONOUR: Any matters from you, Mr Leary?
LEARY: No, your Honour.
HIS HONOUR: Mr Ender, as I say you will be eligible for release to parole on 16 February 2016. You will be taken into immigration custody at some point, you will be deported, whether you will be deported to Germany or to the Philippines will be a matter to be determined by others not I. The law in Australia, somewhat strangely one might have thought, permits consideration of the fixing of the non-parole period issues for foreign/alien offenders but in reality the Australian authorities cannot address relevant issues. Because once you are released you will not be subject to parole supervision, you will be deported. But, of course, foreign nationals are not denied consideration in relevant matters that are to be taken into account for those who will remain in Australia. Yes, thank you, you are excused.
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Decision last updated: 24 November 2014
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