R v Edo Saputra

[2009] NSWDC 239

CITATION:	R v Edo SAPUTRA [2009] NSWDC 239 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 September 2009
JUDGMENT DATE:	11 September 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	The offender is sentenced to a term of non-parole imprisonment of 5 years and 2 months and an additional term of 27 months .
CATCHWORDS:	Criminal law - sentence - Criminal Code - drug importation - methamphetamine - role - mixed motivation: personal use and profit - parole conditions - notification of travel plans
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Code (Commonwealth)
CASES CITED:	R v Bernier (1998) 102 A Crim R 45 R v Lee [2007] NSWCCA 234 The Queen v Olbrich [1999] 199 CLR 270 N v R; AP v R [2009] NSWCCA 108 R v SC [2008] NSWCCA 29 R v Schluenz [2001] NSWCCA 314 R v Solomons [2000] NSWCCA 215 Veen v The Queen [No 2] (1988) 164 CLR 465 Wong & Leung v R [2001] HCA 64; (2001) 207 CLR 584
PARTIES:	Regina Edo Saputra
FILE NUMBER(S):	DC 2008/20503
COUNSEL:	Crown: Mr N Adams Defence: Mr A Parsons
SOLICITORS:	Crown: Commonwealth DPP Defence: Ren Zhou Lawyers

JUDGMENT

1 On 30 June 2009 the offender pleaded guilty to the following count on an indictment:

On or about 20 August 2008 at Mascot, in the Sate of New South Wales, imported into Australia, a substance, the substance being a border controlled drug, namely Methamphetamine, and the quantity imported being a marketable quantity.

2 That count was bought pursuant to s 307.2(1) of the Criminal Code (Commonwealth).

3 The maximum penalty for that offence is one of 25 years imprisonment or a fine not exceeding $550,000 or both.

Pleas

4 On 29 June 2009 the offender had pleaded guilty to a count of importation of Methylamphetamine, under s 307.4 of the Criminal Code. The Crown did not accept that plea.

5 The plea to the count under s 307.2(1) was indicated prior to a jury being empanelled. Accordingly the utilitarian value of the plea was limited in terms of the saving to the Court and DPP resources, as well as the fact that various police witnesses did not have to be called.

Facts

6 A statement of agreed facts dated 29 June 2009 was tendered. (Exhibit S1)

7 In summary, on Wednesday 20 August 2008 at 7:47am the offender arrived at the Kingsford Smith Airport International Airport, aboard Garuda Airlines flight GA714. He was searched by customs officers who noticed a bulge on the right inside internal breast pocket of his suit jacket. When asked what it was he said, “food”. Then, giving more specific details, he said that the items included were sugar. The customs officers opened the package and found it to obtain a white crystal substance.

Weight

8 The total weight was 142 grams. Analysis by the Australian Forensic Drug Laboratory revealed a net weight of 113.5 grams of 73.4% pure methamphetamine, giving a total net pure weight of 83.3 grams. The Australian Federal Police asked the offender where he got the package from, to which the offender replied he had gone to Bali and bought the “ice” off two unknown males for 45 million Indonesian Rupiah (approximately $7500). The accused stated the “ice” was for personal use.

9 Dr Jacmon’s updated psychologist’s report of the 10 August 2009 (Exhibit S10) stated that the offender elaborated on that account. He said that he was prepared to share some of the drugs with his friends.

Pre-sentence report

10 A pre-sentence report by Marco Battaglia dated 17 March 2009 was tendered (exhibit S2).

11 That report indicated that Mr Saputra had been the subject of two Victorian community based orders in 2002 and 2004. The first order was revoked and finalized by way of a monetary penalty and the second order was breached and the warrant issued for the breach has not been finalised.

12 Mr Saputra claimed that the drug found in his possession was for personal use. He claimed that he purchased the illicit substance three days prior to his departure in a nightclub from persons unknown to him. He further claimed that because it was “such a good price” that he purchased a large quantity intending to use it when in Australia. Having heard all the evidence – including the admissions of the offender – the drugs purchased were clearly not only for his own use but also involved a substantial profit motive.

Personal circumstances

13 Mr Saputra gave evidence through an interpreter. He has some English capabilities. He confirmed the personal matters set out below.

14 Mr Saputra is aged fifty-four. He had a good upbringing and education within a stable family in Indonesia. His father’s death clearly affected him. He is an Australian citizen with Indonesian ethnicity. From 2008 he resided in Jakarta and gave the address of a step-brother in Melbourne. He has had a series of relationships, including a marriage and a ten-year-old son. He has travelled extensively and worked overseas.

15 He is not a naïve individual and has considerable work skills.

16 He came to Australia in 1987 as a student, completing university studies and ultimately obtaining a diploma in business administration in 1991. He initially worked as a courier and then became self-employed as a proprietor of a furniture importing concern, essentially connecting with a family business base in Indonesia. He said his income was of the order of $80,000-$90,000 gross.

17 His reasons for travelling were due to being involved in the family business in Indonesia.

18 Clearly his past relationship difficulties and breakdowns have had a dramatic affect on him, as did the death of his father and his separation from his son. The difficulties led to the resumption of his drug use.

19 I have real concerns about the offender’s truthfulness having heard and observed him giving his evidence. I have little confidence in anything he says about his future plans.

Psychologist’s Report

20 There were 2 reports tendered from Dr John Jacmon, psychologist, dated 6 April 2009 (Exhibit S9) and 10 August 2009. (Exhibit S10)

21 Relevantly they set out that his breakdown in various relationships led to his drug usage. He was on a rehabilitation program in 2003 involving counselling. There was a further relationship breakdown in 2005 as a result of which he relapsed into deep depression and drug usage including usage of methamphetamine in Jakarta. He told the psychologist that in Indonesia “ice was much cheaper than in Australia so he bought enough ice in Indonesia for his needs whilst he was in Australia”. The report of 6 April 2009 included that Mr Saputra’s disorders were unlikely to resolve by themselves and he needed extensive and regular treatment to address his symptoms and to ensure that he adopted active drug relapse prevention skills. Any such plan should include the provision of regular urine samples to monitor his progress in remaining drug free.

22 The second report of 10 August 2009 referred to the fact that in 2008 at least Mr Saputra was “a seasoned user of ice”.

Drug usage

23 The offender reported to the author of the pre-sentence report that the drugs found in his possession were for personal use. That statement preceded the plea of guilty on legal advice on 30 June 2009.

24 The offender said that he first briefly experimented with crystal methamphetamine (ice) after the breakdown of his marriage in 2000, and did not resume that until 2004. From 2007 he used ice on average twice a month, thereafter escalating to weekly usage.

25 The offender acknowledged that his actions were illegal and that he knew that to be the case. He said his drug usage had affected his judgments.

Authorities

26 Counsel have referred to various authorities. Three specific cases seem to me to be relevant:

27 In R-v-SC [2008] NSWCCA 29 Justice Price at [35] referred to Judicial Commission statistics which were relevant to on Commonwealth matters involving low level trafficable quantities of cocaine and heroin after the repeal of s 16G of the Commonwealth Crimes Act.

28 That decision followed the guidelines determined in the High Court and Court of Criminal Appeal decision of Wong & Leung v R HCA 64; (2001) 207 CLR 584 where originally a range of head sentences was between 5 to 7 years imprisonment.

29 In R-v-Solomons [2000] NSWCCA 215, a sentence of 8 years imprisonment with a non-parole period of 5 ½ years imprisonment was upheld on appeal. What was involved there was importation of ecstasy.

30 In R-v-Schluenz [2001] NSWCCA 314, the Court (Spigelman CJ Grove J Enfield AJ) upheld a sentence of 7 years imprisonment with a non-parole period of 4 years. What was involved was a trafficable quantity of methamphetamine involving 83.2 grams of pure methamphetamine. There were some personal circumstances for the offender and her dependents which are not relevant here.

31 I note that as was said in N v R; AP v R [2009] NSWCCA 108 that there is limited authority and reliance on authorities prior to 2003 following the repeal of s 16G. Since that time the authorities indicate that there should be generally higher sentences.

Consideration

32 I am required to take into account the matters set out in Part 1B of the Crimes Act 1914 and more specifically the matters set out in s 16A(2) of that legislation. That provides a “check list” of the matters a court should take into account when sentencing a federal offender.

33 The governing principle under s. 16A(1) is the imposition of a sentence that is of a “severity appropriate in all the circumstances of the offence”. In addition, the Court must consider the matters adverted to in s 16A(2). Although general deterrence is not specifically mentioned in s 16A(2), it is nonetheless a factor that the court must take into account.

34 The Crown submits that various s 16A matters are relevant in relation to the nature and circumstances of the offence:

The role of the offender

35 The Court of Criminal Appeal has indicated that it is relevant to assess the level at which the offender operated in an organisation in order to determine the level of culpability. In The Queen v Olbrich [1999] 199 CLR 270, the High Court recognised that it was generally appropriate to categorise offenders in that manner for sentencing purposes where possible as follows:

“…it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a “courier” or a “principal” must not obscure the assessment of what the offender did.”

36 The Crown submits that the version given by the offender of his involvement in this importation suggests that his role is that of the importer, rather than a courier or other type of intermediary, if evidence is adduced that suggests the offender played such a lesser role, I should bear in mind that the NSW Court of Criminal Appeal has said on a number of occasions that couriers and intermediaries should not receive any particular leniency because, without them, the trade in narcotics would not exist.

The weight of the narcotics

37 The amount of the relevant drug is not the only factor to be taken into account on sentence but it is one of the relevant factors relating to the nature and circumstances of the offence under s 16A(2)(a) of the CrimesAct 1914. The majority of the High Court in Wong v R acknowledged that weight was relevant in the following terms:

“The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament’s distinguishing between the maximum sentences that may be imposed for offences involving trafficable and commercial quantities. No doubt, within both of those categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender”

38 In R v Lee NSWCCA 234, the Court affirmed that the size of the importation is a relevant factor to which the sentencing court must have regard.

39 The Code specifically provides for different penalties based on the weight of the relevant drug. In this case the maximum penalty for a marketable quantity (which is an amount in excess of 2 grams of methamphetamine) is 25 years imprisonment, whereas for a commercial quantity (which is an amount in excess of 0.75 kilograms of methamphetamine) the maximum penalty is life imprisonment.

Purity

40 The pure quantity of methamphetamine imported in this case was 83.3 grams, the gross quantity being 113.5 grams. The drugs were of considerable purity – being 73.4% pure. The pure quantity is over 41 times higher than the prescribed minimum amount for a marketable quantity.

Value

41 Federal Agent Rob Gilder of the Australian Federal Police has estimated the street value of the drugs to be between $28,375 and $90,800. The wholesale value has been estimated to be between $24,300 and $40,500.

42 Details provided by the Australian Federal Police show that the street value of the “ice”, if sold by the gram, was between $28,000 and $62,000. If sold by lesser amounts of 0.1 of a gram the street value was between $56,000 and $90,000.

43 The Crown concedes that a portion of the drugs was imported by the offender for his own personal use. However, it is also submitted that the larger proportion of the drug was imported by the offender with the intention that it be sold.

Offender’s Involvement

44 The Crown submits that in making an assessment of the proportion of the drugs that were for the offender’s own use there are a number of matters that the Court would take into consideration. It is clear from his travel records that he was intending to travel back to Indonesia on 31 August 2008 (Exhibit S4) – not that he was going to stay in Australia as he apparently told Dr Jacmon and could be inferred by his evidence before me. The offender’s movement record shows that he was a frequent international traveller and in the six months prior to the offence he had a pattern of travel which typically involved him spending the majority of his time in southeast Asia and returning to Australia every one to two months for 9 to 14 days at a time. There is a strong inference that the offender had the opportunity to source drugs during his travel. Furthermore, based on the psychologist’s report of Dr Jacmon dated 6 April 2009, the offender’s methamphetamine use is described as having peaked at 2 grams per week. He was found with 113 grams.

Prior convictions

45 The offender’s criminal history was tendered (Exhibit S2).

46 The offender has three prior drug-related convictions, including one conviction for trafficking methamphetamine in January 2002. The offender received community based sentences for each of those convictions. In my view there was considerable leniency extended to the offender when he received a 12 months community service order for trafficking involving 29 grams of amphetamines.

Personal

47 Clearly these convictions and the (lenient) sentences imposed have had no effect in deterring him from involving himself in drug enterprises. I have little confidence that the offender has any real insight into his offending behaviour or that he is not likely to re-offend. The sentence imposed should carry with it a strong component of personal deterrence.

48 In Veen v The Queen [No 2] (1998) 164 CLR 465 the majority said:

The antecedent criminal history of an offender is a factor, which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty, which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: DPP v Ottewell . The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, (and I regard that as being the case here) retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.

Plea of guilty

49 Here there has been a plea of guilty subject to the matters set out, there have been some limited savings in terms of the time and resources of the Commonwealth DPP, the police as well as the court system.

50 After initially pleading guilty to the offence at Central Local Court on 17 December 2008 the offender then reversed his plea of guilty on 23 April 2009 in the District Court. The matter was listed for trial to commence on 29 June 2009. The plea came on what would have been the second day of the trial, 30 June 2009, and prior to a jury being empanelled but after an application was mounted and lost by the defence for exclusion of certain prosecution evidence. Witnesses were in attendance at court and one prosecution witness had attended from interstate.

51 The offender made limited admissions to the Australian Federal Police but did not assist the authorities further in the investigation of this offence. However he cannot be penalised for a lack of assistance.

52 I regard the appropriate discount in the area of 10%. I do not regard the plea as constituting a significant indication of contrition. There were conflicting stories advanced as to whether he, or a friend was to sell the drugs used and how long he intended to stay in Australia. Further, I see no evidence of any real assistance to authorities or willingness to facilitate the course of justice on a wider level. His contrition and associated preparedness to abandon that lifestyle might have more verisimilitude if that was the case.

Findings

53 I find that the offender obtained these drugs from abroad and deliberately bought them into Australia. He was not acting simply on behalf of another as a minder or a warehouseman but intended to be actively involved in the distribution of these drugs to others.

54 I find him to have been an importer, a principal rather than simply a courier.

55 This was not simply a matter for his personal use – despite the fact that he clearly had, and has, an addiction.

56 In my view there were mixed motives for the offender’s possession of the drugs. It would have clearly involved his contact with others in the drug trade.

Level of culpability

57 The drugs were concealed and were discovered in the course of travel from Indonesia where the offender was recently treated for drug addiction.

58 The concealment was clumsy and unsophisticated. Defence counsel submits that it was an indication of both a lack of judgement or impaired judgement rather than any planning and premeditation.

59 I find that the level of culpability is mid-range.

Matters taken into account

60 I take into account the factors set out in s 16A matters set out above including in particular, the circumstances of the offence, the method of detection, the nature, weight and purity of the drug as well as the offender’s personal circumstances. What is also relevant is the mixture of motives for the offence both for commercial profit and personal use.

61 This offender is a mature, intelligent, educated and well-travelled individual. He must have known the seriousness of the offence. The requirement of general and personal deterrence mandate a condign penalty.

Sentencing options

62 The pre-sentence report notes that the offender is unsuitable for either a community service order or for a periodic detention order because of his prior non-compliance with a Victorian community based order.

63 In any event the gravity of this offence, in particular the amount of the drugs taken, render any penalty other than the imposition of a full time period of custody inappropriate.

64 Clearly incarceration in an Australian Correctional setting will be onerous for him given his relative linguistic, cultural and social isolation. He is likely to be depressed in any custodial setting

Adjustments: Parole

65 The Court of Criminal Appeal has said that it is generally appropriate for the ratio of the non-parole period to head sentence, duly adjusted having regard to all relevant subjective factors to be approximately 60% to 66.6%: R-v-Bernier (1998) 102 A Crim R 44. The usual practice of setting the ratio of the non-parole period within this range is not a rigid mathematical formula or fixed process but rather it requires finely tuned assessment. It is not an immutable practice. Here the appropriate ratio is 66.66%.

66 That adjustment is appropriate to ensure that there can be a period of time on parole on some realistic conditions in this case.

67 In terms of the date of commencement of the sentencing process, given the factors I have outlined, an appropriate head sentence would be 9 years imprisonment. The discount of 10% for the plea would result in a sentence (rounded down) of 96 months or 8 years. The appropriate non-parole period would be 62 months or 5 years and 2 months imprisonment.

Date of commencement

68 The offender has been in gaol since 20 August 2008. It is agreed that his sentence should take effect from that date.

Sentence

69 The offender is sentenced to a term of non-parole imprisonment of 5 years and 2 months commencing on 20 August, 2008 and expiring on 19 October 2013 and an additional term of 27 months expiring on 19 January 2016.

70 I direct that he be released to parole on that date.

Parole

71 I recommend that on his release to parole the offender be released on good behaviour subject to you comply with the directions of the Probation and Parole Service and notify that service of his address and occupation and any travel plans he has at least 21 days before such travel and his return to Australia within 21 days of his return.

72 That he comply with any conditions imposed by the Probation and Parole service including random urine testing and treatments for his drug addiction.

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25/09/2009 - Correction of citation - Paragraph(s) Cover sheet