R v Bousehjin - [2003] NSWCCA 86

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v BOUSEHJIN [2003] NSWCCA 86 revised - 3/04/2003

FILE NUMBER(S):
60803/99
60293/02

HEARING DATE(S): 25 March 2003

JUDGMENT DATE: 25/03/2003

PARTIES:
Regina
Tony Bousehjin

JUDGMENT OF: Spigelman CJ Hulme J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0066

LOWER COURT JUDICIAL OFFICER: Stewart DCJ

COUNSEL:
Crown: PW Neil SC
Appellant: CV Jeffreys

SOLICITORS:
Crown: Cwth Director Public Prosecutions
Appellant: Jeffreys & Associates

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

- 9 -

IN THE COURT OF
CRIMINAL APPEAL

No: 60803/99
60293/02
SPIGELMAN CJ
HULME J
BUDDIN J
Tuesday 25 March 2003

REGINA v Tony BOUSEHJIN

Judgment

HULME J: On 5 March 1999 the applicant pleaded guilty in the District Court to a charge that:
"On 30 November 1998 ... (he) did without reasonable excuse have in his possession prohibited imports ... to wit narcotic goods consisting of a quantity of heroin which had been imported into Australia ... being not less than the trafficable quantity applicable to heroin."
On 16 December 1998 Stewart ADCJ sentenced the applicant to imprisonment for eight years including a non-parole period of five years and four months, both periods to date from 30 November 1998 when the applicant had been arrested.
The heroin had been imported into Australia by someone who was apprehended at the airport after travelling from Jakarta. It is convenient to refer to that person as "K". K cooperated with the authorities. Most of the heroin he was carrying - 999.5 grams (720 grams pure) - was removed from the briefcase in which it was contained leaving but 20 grams remaining. K was allowed to proceed to the Parramatta City Motel where arrangements had been made for him. Some time later he received a telephone call from someone in Indonesia who informed him that another person would contact him. An hour and a half later K received a telephone call from a person who informed K that his name was, in phonetic pronunciation, "Booshe".
On the following day Mr Booshe called again and said he would attend the motel in about thirty minutes. About twenty minutes later the applicant attended on K. After half an hour or so he departed. Some three hours later the applicant again attended K's room at the motel and handed him a package containing $20,000. The applicant attempted to leave the room with the briefcase and was arrested.
The applicant was able to tell the Australian Federal Police of the amounts in each of five bundles of money contained in the package but declined to say where the money came from or why he gave it to K.
A search of the applicant's car revealed a notepad on which could be seen the imprint of K's flight number. A search of the applicant's home disclosed an entry referring to the Parramatta City Motel and its phone number. Enquiries of Telstra supported the conclusion that the applicant was the person who had rung K.
On 1 September 1999 the applicant made a recorded interview with Federal police agents and purported to give an account of the involvement in the importation of himself and another person on whose behalf or at whose request he said he had been acting. Stewart ADCJ found that the information given by the applicant was in large measure highly unlikely to be true and to minimise the applicant's involvement. His Honour recorded that it had not helped the police in the investigation and was calculated to obfuscate.
Stewart ADCJ found, beyond reasonable doubt, that the applicant "played more than a bit role in this importation. He was no mere messenger boy, the equivalent of a courier ... The evidence does not, however, show that he was a principal in the enterprise or the head of an organisation". His Honour also remarked that while K was a courier rather than a more significant player:
"The prisoner was somewhere more elevated in the hierarchy than a more mule-like individual who did not know what was going on. Wherever he stood in the scheme of things he was a trusted and significant player ... He undoubtedly was motivated by the hope of financial gain in what amount precisely is difficult to determine ..."
Elsewhere his Honour described the applicant as "somewhat higher in the scheme of things than a mere courier or the equivalent thereof".
The offence to which the applicant pleaded guilty encompasses heroin in quantities in excess of 2.0 grams but not more than 1.5 kilograms. The quantity of heroin found in the applicant's possession at the time of his arrest was, as has been said, 20 grams but it is clearly to be inferred that his intention was to process the 720 grams. There was evidence before Stewart ADCJ that the street value of this heroin was between $1 million and $1.5 million.
In arriving at the sentence he imposed his Honour made an allowance of one-third, it may be inferred, on account of section 16G of the Crimes Act. Although he described the prisoner's assistance as "of little value" he allowed a discount of 20 percent from the head sentence he would otherwise have imposed.
So far as the applicant's plea is concerned, his Honour said:
"I will give the prisoner 'some credit' as I am asked to do by his counsel for what he describes in his submission as 'a reasonably early plea'. I note, however, that this plea was entered in the light of what can only be described as a strong Crown case."
At the time of sentence the applicant was 38 years old and had no criminal record. He had arrived in Australia in 1991 having escaped from Iran. His Honour described the applicant's migration to Australia as "arduous" and having involved leaving other family members behind. The applicant had been involved in an accident at work in 1993 when he suffered back injuries and was not able to work since. His Honour accepted that the applicant was severely injured and continued to suffer substantial pain. His Honour recorded that although the applicant spoke English relatively well, it was not his native tongue and that and his cultural history meant that he would probably find prison more onerous than people born in Australia. His Honour accepted a conclusion of Dr Westmore that:
"He is finding prison very stressful and that is not surprising considering the nature of his personality. He has some reactive despondency and depression of his mood in response to the stress of imprisonment. I think on balance his risks of re-offending are probably small if not negligible."
In arriving at the sentence he imposed his Honour paid substantial regard to the then recent decision of R v Wong and Leung [1999] 48 NSWLR 340. Although his Honour did not confine his attention to that case, when regard is had to the way his Honour approached the matter, and to the overruling of it by the High Court on appeal - see Wong v R (2001) 207 CLR 584 - the proper conclusion is that in his reasoning process his Honour erred.
However section 6(3) of the Criminal Appeal Act provides:
"On an appeal under section 5(1) against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
To the question of whether "some other sentence ... less severe ... should have been passed", I now turn.
In support of the claim that the sentence imposed on the applicant should be less, it was submitted that Stewart ADCJ had erred, in circumstances where the charge against the applicant was one of possession of a prohibited import, in finding that the applicant had a role in the importation. Furthermore, or perhaps nevertheless, it was submitted that regard should be had to the sentence imposed on K and, on principles of parity, that imposed on the applicant reduced.
On 4 August 1999 K was sentenced by Latham DCJ to imprisonment for a period of seven years including a non-parole period of four years. He was regarded as a courier. In May 2000 this Court, differently constituted, reduced the sentence to one of five years' imprisonment including a non-parole period of three years. In arriving at that sentence the Court said that: "After making the allowance required by s16G of the Crimes Act 1914 (Cth) the correct head sentence, absent any discount, is one of eight years having regard to the quantity of heroin, its value and the other circumstances of the case."
The Court then applied a discount of approximately 40 percent. This was the allowance the trial judge had made for substantial assistance K had rendered to the authorities and, although the matter is not completely clear, it would seem that the figure of eight years was arrived at after allowance had been made for "the plea of guilty, the subjective features and the serving of the sentence in protective custody".
It should be mentioned also that K had no prior convictions although he admitted on one occasion carrying heroin from Thailand to Indonesia in return for some $1,500. This led Smart AJ to conclude that the offence for which K stood for sentence could not be regarded as an isolated one or a first time offence. K was regarded as having had few emotional attachments of any significance in his life and being emotionally underdeveloped.
If one accepts that the proper starting point for the sentence imposed on K was eight years - and this has not been challenged - the applicant's greater role means that the starting point in the determination of any sentence to be imposed on him must be appreciably higher. It was suggested during argument on the applicant's behalf that the applicant's role was no higher than that of K but Stewart ADCJ clearly found that it was. There was evidence upon which his Honour was entitled to reach that conclusion and thus it follows, in my view, that an appropriate starting point is higher than the eight years which the court thought appropriate in the case of K. When regard is had to Stewart ADCJ's findings concerning such assistance as the applicant gave, his Honour's allowance of 20 percent on that account was excessive. Recognition must be given to the fact of K's prior involvement in the movement of drugs, but otherwise the applicant's subjective circumstances were not more favourable than K's. Thus, rather than supporting a claim that the sentence on the applicant was excessive, the sentence imposed on K supports the conclusion that it was not.
A number of prior decisions of this Court also argue against the conclusion that "some other sentence ... less severe ... should have been passed". These include R v Saisuwan (unreported, CA, 30 September 1994), R v Lawson, Wu and Thapa (unreported, CA, 12 December 1997), R v Turner (unreported, CCA, 21 May 1993) and R v Chase (unreported, CCA, 19 October 1990). A summary of these cases is attached to these reasons.
This conclusion makes it strictly unnecessary for me to consider the argument that Stewart ADCJ erred in finding that the applicant had a role in the importation. While it was relevant for his Honour to take account of the fact that the heroin the subject of the applicant's offence was imported and to consider the circumstances of the applicant's possession of it, a reading of his Honour's remarks does, I think, indicate that he did err in the attention he gave to the topic of importation and the applicant's role in that regard. But because of the terms of section 6(3) (to which I have referred) that is not enough for the applicant to succeed.
I have so far in these reasons considered the matter as if it was a normal application for leave to appeal and to appeal. It should be mentioned, however, that previously this Court has summarily dismissed an appeal by the applicant against the sentence which was imposed on him.
In light of the conclusion at which I have arrived it is unnecessary for me to spend time in considering whether the circumstances established in the evidence are otherwise appropriate for the Court to ignore the previous decision summarily dismissing the applicant's appeal. There is no point in embarking upon that consideration if, as I believe, the substantive appeal which would flow should be dismissed. Accordingly, the conclusion at which I would arrive is that the applicant should have leave to appeal but any appeal should be dismissed.
SPIGELMAN CJ: I agree. I wish to add this: Stewart ADCJ outlined in considerable detail the objective and subjective circumstances relevant to the exercise of the sentencing discretion. His Honour focused on the importation, manifest in the extensive reference he gave to this Court's judgment in R v Wong and Leung, which was concerned with sentences for importation offences, His Honour did fail to focus on the offence with which this particular applicant was charged in a way inconsistent with the reasoning of the High Court in R v Olbrich (1999) 199 CLR 270. This incorrect focus was the subject of comment by this Court in R v Guiu (2002) 129 ACrimR 387 (see especially at paragraphs 23, 32, 36 and 38). Nevertheless, for the reasons that Hulme J has given, I am not satisfied that the case is one in which a sentence less severe than that imposed by his Honour was warranted and I would also apply subsection 6(3) of the Criminal Appeal Act 1912, to which I add the reference I made above to the reasons of Stewart ADCJ other than His Honour’s focus on importation. I agree with the orders proposed by Hulme J.
BUDDIN J: I agree with Hulme J and the order which his Honour proposes. I also agree with the additional remarks which the Chief Justice has made.
SPIGELMAN CJ: The order is as indicated.

R v Tony BOUSEHJIN

SCHEDULE

In Chase (unreported, CCA, 19/10/1990) the appellant was found guilty to a charge of being knowingly concerned in the importation of cocaine, viz. about 762 grams pure. The appellant’s “participation was something considerably beyond that of a courier if he was not in fact the principal”. He had recruited two accomplices one of whom acted as courier, having been given the cocaine by the appellant in America. Apart from the instant offence, the appellant was of good character. The sentence imposed by the trial judge was a fixed term of 8 years, the judge declining to fix a non-parole period because of a view that the appellant would be deported at the conclusion of his imprisonment and saying that 8 years was the minimum term he would fix in any event. This Court said that the term was within the judge’s discretion and compared “reasonably satisfactorily with sentences for similar offences under the earlier legislation allowing for the differences … in regard to remissions.”

Lawson, Wu and Thapa (unreported, CCA, 12 December 1997) was a Crown appeal. Lawson and Thapa had pleaded guilty to a charges of importing not less than a trafficable quantity of heroin. The heroin was being carried in condoms which they had swallowed. Lawson had 320 grams pure, Thapa 346 grams pure. Each had been in a bad financial situation when approached to participate in the enterprise. Neither had any prior convictions although Thapa was a heroin addict. Each was merely a courier, aged almost 19 and found to have excellent prospects of rehabilitation. Lawson was to receive $US10,000 and Thapa $US5,000. Their sentences would be served in what was to them a foreign country in which they had no relatives. This Court held that the sentencing judge had erred in principle and re-sentenced each to imprisonment for 6 years with a non-parole period of 3 ½ years.

Wu had pleaded guilty to a charge of being knowingly concerned in the importation of the heroin. He had played a greater role. He had been recruited in Hong Kong, travelled to Bangkok where he had been suppled with the heroin and had watched Lawson and Thapa swallow it. He had come with them to Australia “so they no run away” and had responsibility to take charge of the heroin after the couriers passed it and to deliver it to consignees. After his arrest and some initial denials of involvement, he participated in an attempt at a controlled delivery which was unsuccessful. Wu was 38. In 1983 he had been convicted in Thailand of smuggling heroin as a courier, and served some 11 years imprisonment. In consequence of some traffic accidents he got into debt. He gambled without success to resolve these difficulties and, according to Wu, he was then offered the chance to help smuggle the heroin. The sentencing judge took the view that there was little that could be said in Wu’s favour and sentenced him to 9 years imprisonment with a non-parole period of 6 years. This Court held that the judge’s starting point of 15 years, before allowing a deduction for Section 16G and assistance, was too low and should have been at least 18 years. However, taking the view that the allowance for assistance was low, that on Crown appeals the Court traditionally imposed a sentence lower than that which should have been imposed at first instance and allowing the appeal would not result in a substantially different sentence, the Court allowed the sentence to stand.

In Saisuwan (unreported, CCA, 30/9/1994) the applicant had pleaded guilty to a charge of being knowingly concerned in the importation of heroin and of being knowingly concerned in the use of a falsified passport. Acting with and under the direction of a third person the applicant had recruited Blass to act as a courier to bring about 1kg of heroin to Australia and had been instrumental in obtaining the passport. The applicant had travelled on the same plane as Blass, “riding shot-gun” and later making contact with Blass. Because of Blass’ inability to swallow more, only 586 grams (pure) were imported. The value of this was between $850,000 and $2.7M depending on the street price and purity. The applicant had been sentenced to imprisonment for 7 years and 2 months with a non-parole period of 5 years and 4 months. She had acknowledged her guilt almost as soon as spoken to by police and the sentence reflected a discount of 40% for assistance which, despite a threat to her, the applicant gave and promised to give to the authorities. The sentencing judge said that the appropriate starting point was 12 years (after Section 16G had been taken into account). This Court refused to interfere with the head sentence but reduced the non-parole period to 4 years, partly on grounds of parity and hardship. The applicant’s husband was in prison in Norway for a drug offence and she had 4 dependent children aged between 4 and 15 in Thailand being cared for by their grandmother who was in poor health.

In Turner (unreported, CCA, 21/5/1993) the applicant appears to have pleaded guilty to importing 686 grams of heroin with a street value of between $770,000 and $1.3M. Following his apprehension at the airport he provided assistance to the authorities. He was of excellent prior character and had undertaken army service. He was contrite and was given credit for work he had done on remand. His family was in Thailand and he was regarded as having significant prospects of rehabilitation. This court took the view that the sentencing judge had overlooked Section 16G of the Crimes Act but declined to interfere with a sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months saying the sentence was towards the bottom of the range in any event. It is apparent that the applicant was treated as a courier.

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LAST UPDATED: 03/04/2003