R v Belinda Mary CAMPBELL

[2007] NSWDC 232

CITATION:	R v Belinda Mary CAMPBELL [2007] NSWDC 232
HEARING DATE(S):	23 July 07 - 24 August 07 19 October 07
JUDGMENT DATE:	16 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [47]
CATCHWORDS:	Criminal Law - Sentence - Importation of a commercial quantity of a border controlled precursor - Pseudoephedrine
PARTIES:	The Crown Belinda Mary Campbell
FILE NUMBER(S):	07/11/0371
COUNSEL:	D Jordan - Crown R Bromwich - Offender
SOLICITORS:	Commonwealth DPP Giddy & Crittenden

SENTENCE

Introduction

1 Belinda Campbell appears for sentence today after having been found guilty by a jury of committing an offence of importing a commercial quantity of a border controlled precursor believing that another person would use the precursor to manufacture a controlled drug.

2 What Mrs Campbell imported were approximately 2,000,000 commercial cold tablets weighing a total of 452 kg. Each tablet contained the precursor pseudoephedrine, a drug which is particularly desirable because of its potential use in the manufacture of the illicit drug methylamphetamine hydrochloride. The amount of pseudoephedrine in the tablets was 92.9 kg. The potential yield of methylamphetamine hydrochloride was more than 50kg with a value of between $10 million and $56 million. Mrs Campbell imported more than 70 times the commercial quantity of 1.2kg.

3 Those figures alone demonstrate the objective seriousness of the offence for which Mrs Campbell is to be sentenced.

4 The maximum penalty for the offence for which Mrs Campbell is to be sentenced is 25 years imprisonment.

Facts

5 For some years leading up to the commission of the offence Mrs Campbell ran a furniture retail business. She obtained her stock from Indonesia, utilising the services of a man by the name of Sam Rantasalu. It was necessary for her to periodically import shipping container loads of furniture and household goods for resale. Mr Rantasalu took care of the Indonesian side of things, in particular it was he who arranged the packing of the containers delivered to Mrs Campbell.

6 On 17 June 2006 a container of furniture was delivered to Mrs Campbell’s business premises. It had been imported into Australia from Indonesia. The authorities were alerted to the presence of things other than the furniture in the container when the container was X-rayed and an anomaly found. By the time it was delivered to Mrs Campbell there was a well organised operation in place involving surveillance of that container, Mrs Campbell and Mr Campbell.

7 At one end, the end furthest from the doors to the container, the X-ray had revealed the presence of items which were not furniture or household goods. Further investigations of that anomaly by the authorities revealed that the container had within it many boxes of Sudafed and Actifed tablets. These tablets contained pseudoephedrine which is a border controlled precursor. The evidence established that pseudoephedrine was a very much sought after drug by those who wish to produce methylamphetamine or methylamphetamine hydrochloride.

8 In those circumstances a controlled delivery proceeded, with many officers from both the Australian Customs Service and the Australian Federal Police performing surveillance duties. What they observed was that after the container was delivered to Mrs Campbell’s business premises, Mrs Campbell, her husband, and others, began to remove some or all of the furniture and household items from the container. By the time they had finished work on the day the container was delivered the packages containing the commercial cold tablets had not been removed. They remained in place in the container until a Mr Baka arrived, together with another man, in a truck the following day. With Mr Campbell and the other man, Mr Baka removed the boxes of Sudafed and Actifed tablets from the container, put them in the truck and drove away. Mr Baka was arrested shortly after, as were Mr and Mrs Campbell.

9 The evidence established that this importation of pseudoephedrine by the offender was at least the 3rd such importation. There was a history of Mr Rantesalu placing pseudoephedrine tablets in the containers he packed, with the offender being well aware of what he was doing.

The Proceedings

10 The trial began as a joint trial involving not only Mrs Campbell, but also her husband and Mr Baka. However, for reasons that are not important now (but which can be found in my judgment published on the Caselaw database on the internet) I directed verdicts of acquittal in relation to Mr Campbell and Mr Baka. The trial continued against Mrs Campbell alone.

11 When the verdict was announced there was a significant disturbance. Mrs Campbell’s many supporters were clearly surprised by the verdict. I ordered one man to leave the courtroom after he began shouting at the jury that they were a disgrace. Others were shouting out as well. The jurors were visibly shocked and upset by the vocal reaction of so many people.

12 In view of what occurred I propose to say something about the verdict returned by the jury. I wholeheartedly agree with the jury’s verdict. In my opinion any person who heard the evidence, and then considered it from a dispassionate point of view, would have agreed with the jury’s decision. Only those who looked at things through rose coloured glasses could have been surprised at the outcome of the trial. The evidence against Mrs Campbell was compelling, in particular her recorded interview with police was significant evidence pointing to her guilt.

13 During her evidence Mrs Campbell attempted to explain how some of the most incriminating answers in that interview could have a more innocent explanation. Those attempts were most unconvincing. I have no hesitation in accepting that Mrs Campbell was being honest and accurate in her interview with police and that acceptance of her evidence in court would have involved acceptance of propositions which were unbelievable to the point of being fanciful.

Mrs Campbell’s Criminality

14 In assessing the sentence to impose on Mrs Campbell I have to determine the extent of her criminality.

15 I am satisfied beyond reasonable doubt that although the offender did not wish Mr Rantasalu to place extra boxes in her shipping containers, she came to accept it as a necessary evil. As she explained to police: she needed to run her business; to do that she needed to import furniture; and to do that she needed to use Mr Rantasalu’s services.

16 He took advantage of the offender’s need for his services but the offender knew full well what she was doing and recognised that what she was doing was wrong, accepting it as the price she had to pay in order to keep her furniture business going.

17 As she told police:

Sam is integral to my business as well, um, because it sort of started from the ground up that he knows all the suppliers. He organises as I said… a fairly big logistic operation which I wouldn’t be able to do.

18 Consistent with the jury’s verdict I am satisfied that the offender knew that there was a substantial risk that what Mr Rantasalu had placed in the container on this occasion were tablets containing pseudoephedrine. I am satisfied beyond reasonable doubt that the reason that the offender had this belief was because he had done so, to her knowledge, on at least 3 previous occasions.

19 My findings of fact are largely based on an acceptance of what the offender told police during her record of interview. Mr Bromwich submitted to the jury that they should not accept what Mrs Campbell said to police at face value, recognising the highly incriminating nature of many things that Mrs Campbell said. I do accept what Mrs Campbell said at face value. The Crown submitted to the jury that Mrs Campbell was largely telling the truth in that interview. I am satisfied that that is the case.

20 As I have explained, the offender’s role was a reluctant one and I will sentence her on the basis that she received no benefit from her offence apart from the ability to continue using Mr Rantasalu and thus keep her business running.

21 Again, as she told police:

The only thing I’ve gained is that my business has kept running, that’s – that’s what I’ve gained from it and that’s what I guess I feared in terms of that, um, changing and whatever.

22 This is a case where the offender is to be sentenced for her role in a drug importation enterprise where she would have preferred not to have played any role at all. But not too much weight should be placed on this factor. Many people, from drink drivers to murderers, would prefer not to commit any crime, but they do so for the advantage it brings. In this case Mrs Campbell was prepared to involve herself in criminal activity of a most serious kind for personal gain.

23 I am prepared to accept that she tried to stop Mr Rantesalu putting contraband in her containers, but these attempts were perfunctory, consistent with her attitude that she needed him to operate her business.

24 The Crown asked me to accept that were it not for the intervention of police the importations would have continued into the future using some other means to bring pseudoephedrine into Australia. The Crown relied primarily on a statement made by Mrs Campbell to Mr Rantasalu recorded by police when Mrs Campbell’s telephone calls were being intercepted. The statement was: “we have to sort something else to do”, that being said in the context of a conversation where both of them were discussing how lucky they were not to have been caught on this occasion.

25 I am not satisfied beyond reasonable doubt, despite grave suspicions to the contrary, that what Mrs Campbell meant by that statement was that she was planning to involve herself in more importations. I make this finding primarily because of Mrs Campbell’s attitude, as revealed in the evidence, towards the importation of the precursors. She was prepared to accept what Mr Rantasalu was doing was the price she had to pay for doing business with him, but there is nothing to suggest that she would have independently involved herself in importations of that drug if they weren’t connected with the importation of furniture for her retail business.

Subjective Factors

26 The offender is now 45 years of age. She has 4 children, 2 of whom are still at school. She has been married to her husband for 23 years. They had a fifth child who died in 1992 at 2 years of age. After completing her HSC and then her tertiary studies she worked as a pharmacist until her husband accepted a job in Indonesia. She and the other members of the family then travelled to Indonesia where they lived for a number of years. It was there that she met Mr Rantasalu. On her return to Australia she used her connections with Mr Rantasalu to start the furniture importing business.

27 She has no criminal convictions and many references were tendered attesting to her qualities as a human being, and in particular as a mother. One qualification to her prior good character concerns the circumstance that this importation for which she is to be sentenced today was the fourth importation of tablets containing pseudoephedrine. Thus she is not to be sentenced as though this offence was an isolated incident.

28 The references all suggest that Mrs Campbell has learnt her lesson and that she is unlikely to commit any further offence in the future. Those expressions of opinion would be easier to accept if Mrs Campbell was prepared to acknowledge her guilt. She maintains her innocence. She maintains that she believed that the extra packages contained cigarettes, a lesser form of contraband than tablets containing pseudoephedrine. Most if not all of the references tendered on her behalf also suggested that Mrs Campbell was innocent. It is a matter of speculation as to whether any of the referees would have expressed a different opinion had they been of the view, which I have no hesitation as accepting as accurate, that Mrs Campbell is guilty as the jury has found her to be.

Consideration

29 An important factor in determining the offender’s criminality concerns the quantity of drugs imported and the potential quantity of narcotic drugs that could be produced. That is why I began these remarks on sentence by setting out the enormous quantity of methyl amphetamine which could be produced from the tablets in Mrs Campbell’s container.

30 Although there was a significant quantity of drugs involved in this enterprise, that circumstance must of course not be permitted to overwhelm all other relevant factors in the sentencing exercise. That is the case for every offence of this nature, but particularly so in this case where the evidence would tend to suggest that Mrs Campbell was unaware of the size of the importation. As I recall the evidence Mrs Campbell was not present when the boxes were left in the container after the furniture was removed, nor was she there when they were collected by Mr Baka and the other man. It’s also apparent that the quantity involved was not a matter of concern to her because there is nothing to suggest that she became aware that the authorities had not put back all of the boxes in the container which they had taken out as part of the controlled delivery.

31 It is also to be noted that this offence can be committed in 2 ways depending on the state of mind of the offender. The offence is proved if Mrs Campbell knew that there were tablets with pseudoephedrine in them inside the container, but also if Mrs Campbell was aware of a substantial risk that there were tablets with pseudoephedrine in them inside the container and in the circumstances known to her it was unjustifiable for her to take that risk by importing the container.

32 I will not sentence Mrs Campbell on the basis that she knew that there were tablets with pseudoephedrine in them inside the container but in the circumstances of this case there is not a great deal of difference between Mrs Campbell’s level of recklessness and knowledge.

33 I repeat that there had been 3 containers imported by Mrs Campbell, before the one the subject of this charge, which to her knowledge had pseudoephedrine in them. So her awareness of the risk that there would be tablets in this container is awareness of a very high risk – one that approaches certainty.

34 It was said by Mr Bromwich that the offender did not have the “insight” to abandon her importing business. That tends to suggest that her decision to continue on importing containers with pseudoephedrine in them was an unconscious one. I do not accept that at all. I accept that Mrs Campbell was troubled by the implications of continuing to business with Sam Rantasalu but she nevertheless consciously decided to carry on, accepting both that the pseudoephedrine would be used to manufacture methyl amphetamine, and the risk of being caught.

35 Mr Bromwich asks that I find his client was contrite and remorseful. I have no doubt that she is very sorry for the position she finds herself in, and the position she has put her children and husband in by her wrongdoing. But in the absence of an acknowledgment of guilt it is difficult to accept that the offender is remorseful as that term is traditionally regarded for the purposes of sentencing. In particular if I ignore the effect of my sentence as a personal deterrent for the moment, I am not satisfied that, given her time again, she would act any differently.

36 However, when the effect of my sentence upon Mrs Campbell is taken into account, I am satisfied that she is most unlikely to commit any further offence, at least of this seriousness, in the future. The experience which she has undergone since her arrest last year, and the punishment she will necessarily undergo after I sentence her today will be a powerful reason for her to commit no further offences in the future.

37 I will take into account that Mrs Campbell gave a candid and detailed account of her dealings with Sam Rantasalu and was honest with police when she spoke to them. It may well be that such assistance never comes to anything, at least insofar as Mr Rantasalu is concerned, but I do accept that Mrs Campbell did give moderate assistance to police soon after her arrest.

38 I will also take into account the way the trial was conducted, presumably on Mrs Campbell’s instructions. This trial was unusual in that very few of the primary facts were in dispute, what was in dispute were the inferences that could be drawn from those primary facts. The trial was considerably shorter than it might otherwise have been as a result of Mrs Campbell’s concessions which were made by way of agreed facts and limited cross-examination.

39 I take into account Mrs Campbell’s health. Tendered in the trial, and also on sentence, was evidence regarding some aspects of her medical history, in particular her difficulties with anxiety over the years. This will make her time in custody harder than would be the case with a person who does not suffer from such a disorder but it has to be recognised that the evidence tended to suggest that her anxiousness at present is not so much due to anything particular to Mrs Campbell, but results from her present predicament, something which is common to almost all those who are to be sentenced for serious drug importations.

40 A large number of the references spoke about the hardship which will be occasioned to Mrs Campbell’s children and her husband through her incarceration. I don’t wish to minimise the consequences for her children when I say that although terribly sad, such consequences are commonplace. Many parents are sent to gaol and as a result many children suffer. There is nothing in the material before me to suggest that the hardship to third parties in the present case is exceptional. That means that I can only take the hardship into account to a limited extent and certainly not to the extent where I can substantially reduce the sentence that I would otherwise have imposed.

41 Mr Bromwich made a submission that when I consider the question of general deterrence what I should do is impose a sentence which would deter others in Mrs Campbell’s position from committing offences of this nature. I do not regard general deterrence as limited in that way. I regard the imposition of a sentence which contains within it a component of general deterrence as being one which reflects generally the community’s attitude towards drug offences and which reflects generally the need to deter others who may decide to import pseudoephedrine whatever role they play.

42 I recognise that this does not necessarily mean that harsh sentences should be imposed in all drug importation cases. The ultimate purpose of sentencing is to protect the community and sometimes this is best achieved through a lenient sentence, one which promotes rehabilitation rather than one which has as its forefront other purposes of sentencing such as general deterrence. However there is no need to promote Mrs Campbell’s rehabilitation for the reasons I have earlier identified and there is very much a place for imposing upon her a sentence which reflects the objective seriousness of her misconduct.

43 Sentencing a person such as Mrs Campbell for a serious offence like this is never easy but it is made harder because of the absence of other sentences for similar offences. The Crown was unable to provide me with much assistance at all by way of comparable cases, (I mean no criticism of the Crown at all when I say that) and thus was forced to rely on sentences for importing illicit drugs as opposed to precursors. There are a number of differences between those offences and offences involving precursors and I am prepared to accept that a person who imports a precursor to be converted to illicit drugs by another person does not bear the same moral culpability as a person who imports the illicit drug itself ready for distribution.

44 I should specifically mention one submission made by the Crown and that was that this offence was increasingly prevalent. There is no evidence to that effect, nor does the difficulty which the Crown had in obtaining comparable cases support the Crown submission.

45 In Commonwealth cases the usual ratio of non-parole period to head sentence is in the region of 60% to 66.6%. Despite Mr Bromwich’s submission to the contrary I can see no good reason for departing from what is usual in this case. The matters suggesting leniency in the offender’s case have already been taken into account by me in setting the head sentence and it would be double counting to reduce the non parole period because of those same factors.

Sentence

46 The offender is sentenced to imprisonment. I set a head sentence of 2 ½ years to have commenced on the day the offender went into custody which was 24 August 2007. She is to be released after serving a period of 18 months, that is on 23 February 2009 upon condition that she enters into a recognisance in the sum of $1,000 to be of good behaviour for a period of 12 months and to appear if called upon to do so at any time in respect of any breach which may be committed within that period.

Explanation

47 Now, I have to explain to you Mrs Campbell what I have just done. I have ordered that you serve a period in custody of 18 months from which you will be released on 23 February 2009. For the following 12 months you will be on a bond to be of good behaviour and if you breach that bond you will be returned to custody until your total sentence of 2 ½ years expires.

**********