R v Faridah Rashid
[2012] NSWDC 180
•10 May 2012
District Court
New South Wales
Medium Neutral Citation: R v Faridah RASHID [2012] NSWDC 180 Decision date: 10 May 2012 Before: Cogswell SC DCJ Decision: For the offence of attempted importation of a border controlled drug (cocaine) - 3 years and 9 months imprisonment. Fix non-parole period of 2 years.
Catchwords: CRIMINAL LAW - Particular offence - drug offences - attempted importation of a border controlled drug (cocaine) - identity of prohibited substance - substance actually Diphenylhydramine - substance not controlled/prohibited - quantity of drug -unable to attribute purity. Sentence - prior criminality - prior imprisonment overseas for cocaine importation - premeditation - sophisticated operation - offender played an essential role - assistance to authorities - early disclosure of foreign priors - full co-operation upon detection - guilty plea at earliest opportunity - 25 per cent discount - personal circumstances of offender - well educated 40 year old mother of three - motivated by financial gain - purpose of sentence - general deterrence - specific deterrence relevant because of prior drug importation conviction - serving sentence in foreign gaol taken into account for non-parole period. Legislation Cited: Criminal Code Act 1995, ss 11.1(1) and 307.3(1) Category: Sentence Parties: Regina (Crown)
Faridah RASHID (Offender)Representation: Solicitors:
Director of Public Prosecutions (Cth) (Crown)
George Sten & Co (Offender)
File Number(s): DC 2011/305631
SENTENCE
I am sentencing Faridah Rashid for the crime of attempting to import cocaine into Australia. It is an unusual case in that what Ms Rashid brought into Australia was nothing but a substance which could be bought quite legally over the counter at a chemist shop. Nevertheless the crime that she has appropriately pleaded guilty to carries a maximum of 10 years imprisonment and for good reason.
Briefly what happened is this. Ms Rashid arrived at Sydney airport on 18 September 2011. She was interviewed by Customs officers and denied bringing in any border controlled drugs. She was taken to a hospital and a CT scan revealed what are described in exhibit A as "foreign objects in her stomach and vagina". She was asked about what was found and admitted that she had been in prison in 2007 in Argentina for 3 years because she had 2 kilograms of cocaine strapped to her body. She claimed that her husband made her do the drugs - commit that crime and this one. When what were described as the foreign objects were removed, it turned out to be just over 350 grams of diphenylhydramine which is not a prohibited substance.
It is convenient at this stage to say a little about what had happened before the Customs officers detected what they found. When Ms Rashid was interviewed she said that she had been offered a job of transporting goods. The job was offered by a man whom she knew as Ocean. She expected to be paid $US10,000 to $US15,000. She was not told what the goods were but she was told that she would get a free holiday. She acknowledged that she was "desperate for money for her daughter's university enrolment". She was given $1000 for expenses. She travelled from Singapore, where she lived, to Kuala Lumpur and then travelled on to Paris where she spent a few days until being told by Ocean to travel on to Johannesburg. There she spent a few more days until the people that she spent time with "brought the pellets to her hotel room". She said she would take the pellets in her luggage but it was made clear to her, both by words and physically, that she had no choice but to swallow them. She could not swallow them all, so part of the supply was concealed in her vagina.
It is important also to say something about an offender who is being sentenced by a judge. Ms Rashid is 40 and she is, as I said, from Singapore. She has 3 children aged 20, 19 and 10.
Enquiries by the Australian Federal Police reveal Ms Rashid was arrested by Argentinean Customs officials on 23 November 2007 at an international airport and over four kilograms of cocaine were found strapped to her body. She had a ticket to fly to Spain. She served a sentence and then moved back to Singapore.
Ms M Sten who appears for Ms Rashid arranged for her client to see Catherine Wakely, a forensic psychologist. Ms Wakely noted a "largely uneventful childhood within the context of a close and supportive family". She had been well educated. As Ms Sten appropriately acknowledged, her client has had relationships with quite undesirable men as far as their illegal activities are concerned. It was noted by Ms Wakely that Ms Rashid's "children are her primary focus and she is extremely concerned about their education and future". Indeed Ms Wakely described "the current offence" as a "desperate attempt to secure her daughter's entry to university". She obviously had elevated levels of depression, anxiety and stress which are likely to be accentuated by her separation from her family. Ms Wakely noted "no indicators of underlying antisocial belief patterns or attitudes". She also noted that Ms Rashid's "chances of re-offending should be minimal and she should be in a favourable position to resume a pro social life within her community". What Ms Wakely was not told was anything about the offence committed by Ms Rashid in Argentina. The reason for that was twofold. One was that the information sent was (without fault of those who sent the information) incomplete. It has since been updated. But the second reason must be of course that Ms Rashid did not disclose that to Ms Wakely. That must affect the weight I put on Ms Wakely's conclusion about her chances of re-offending and her antisocial beliefs, patterns or attitudes.
Ms J Petersen, who appears for the prosecutor, the Commonwealth Director of Public Prosecutions, has set out in her written submissions which are part of exhibit A the factors which I need to take into account. She emphasised the steps which Ms Rashid undertook in order to bring what she thought was cocaine into Australia. She engaged in extensive travel and was prepared, although in the context of some coercion, to swallow twenty-three pellets and carry a further thirteen within her vagina. She undertook an international flight carrying those substances. She had an expectation of being paid a significant amount of money for what she was prepared to do and had received some money towards her expenses. She refused to acknowledge when first asked by the Customs officers that she was carrying anything illegal.
Ms Sten emphasised that as soon as the substances were discovered she was fully cooperative and I accept that submission. Ms Rashid pleaded guilty at what Ms Petersen agreed was the first reasonable opportunity and in due course when I impose a sentence I am going to discount the otherwise appropriate sentence by 25 per cent because by pleading guilty Ms Rashid has facilitated the course of justice and has also confirmed her contrition for committing this crime.
The maximum penalty which is attached to this crime is 10 years imprisonment. That is by way of a combination of s 11.1(1) of the Criminal Code Act 1995 (Cth) and s 307.3(1) of the same Criminal Code.
Ms Sten emphasised what she submitted was an artificial aspect about the crime; what her client in fact imported was innocuous and the one significant aspect of assessing the significance of an importation of cocaine is the percentage of purity. She correctly pointed out that of course in a case such as this the purity cannot be assessed. She also emphasised that but for her client's admissions she would not be facing this court at all. I am inclined to accept that submission, although Ms Petersen pointed out that there would have been a reasonable prospect of conviction without the admission, inviting a jury to infer from the conduct engaged in by Ms Rashid that she must have known that she was importing a border controlled substance.
Ms Sten pointed out that her client had disclosed her previous involvement in Argentina. That, I think, does reflect some credit because it was admitted by her early in the piece. On the other hand, of course, as Ms Petersen says, the police would probably have found out but it does demonstrate her early contrition and preparedness to assist with enquiries.
When I asked for an explanation of why what Ms Rashid imported was innocuous, Ms Petersen suggested that it was probably of what is colloquially known as a "rip-off" whereby somebody who had agreed to sell the drugs to somebody in Australia had substituted the drugs for an innocuous substance and kept whatever profit was agreed. That seems to me to be a reasonable explanation. Ms Sten pointed out that her client also had been duped. She believed that she was likely to gain financially from this. I put little weight on the fact that her client was also deceived.
I do take into account that Ms Rashid will be serving a period of custody in a foreign gaol so far as she is concerned and will not have ready access to family and friends.
In response to Ms Sten's submission about my not being able to place a percentage of purity on the figure of 350 grams, Ms Petersen pointed to information contained in the agreed facts that the average purity for seizures such as this is roughly between 50 and 85 per cent. However I do think there is some force in Ms Sten's argument that I cannot in fact attribute a purity to this amount.
On the other hand as Ms Petersen says - and as the High Court has emphasised - what is important to focus on is what Ms Rashid actually did in committing this crime. That, to me, indicates a degree of sophistication and seriousness. She was not someone who was handed a parcel before she got on the plane. She was someone who was prepared, for a significant amount of money, to travel to several overseas destinations and to have her body used to conceal what she regarded as highly dangerous and toxic substances. I accept Ms Petersen's submission that Ms Rashid played an essential role in the attempted importation of what she believed was a border controlled drug.
General deterrence is obviously a very important factor so far as crimes such as this are concerned and specific deterrence is also very important because of Ms Rashid's prior conviction. She is disentitled to any leniency which might be otherwise given to a first offender and I need to place greater emphasis on factors such as retribution, deterrence, personal deterrence and the protection of society.
Taking all those factors into account, particularly the steps involved in this crime, I would regard an appropriate penalty as one of 5 years imprisonment. I would discount that by 40 [sic: this seems to be an error and I should have said 25] per cent and fix a penalty of 45 months imprisonment, or 3 years and 9 months. I would regard an appropriate minimum term - to use a general description - as 2 years imprisonment. I take into account, in fixing that 2 years imprisonment as the minimum term, the fact that Ms Rashid will be serving her sentence in an overseas prison.
HIS HONOUR: Now Ms Petersen I need to sentence and it s 19.
PETERSEN: It's of the Crimes Act.
HIS HONOUR: You don't happen to have a copy, the relevant provisions for sentencing.
PETERSEN: Of the Crimes Act, yes your Honour,
HIS HONOUR: And your submission is a non-parole period rather than recognisance release order?
PETERSEN: Yes your Honour.
HIS HONOUR: Ms Sten do you want to be heard on that?
STEN: No your Honour.
I should have added that I regard no other sentence than one of full time imprisonment as appropriate because of the seriousness of the crime.
HIS HONOUR: I am going to sentence you now Ms Rashid.
For the crime of attempting to commit a crime, namely importing a substance being a border controlled drug, namely cocaine, I sentence you to imprisonment for 3 years and 9 months. I fix a non-parole period in respect of that sentence of 2 years. The sentence will commence on 18 September 2011 and will conclude on 17 June 2015. The non-parole period commenced on 18 September 2011 and it will expire on 17 September 2013.
HIS HONOUR: Now any matters of fact or law that I should correct that I may have been in error about, whilst I can correct them now. I don't think so, I'm just checking.
PETERSEN: No your Honour.
HIS HONOUR: Ms Sten?
STEN: No your Honour.
HIS HONOUR: Now the mathematics, I've got the main sentence of 3 years and 9 months commencing 18 September 2011, concluding 19 [sic: this seems to be an error and I should have said 17] June 2015, and the non-parole period 18 September 2011 to 17 September 2013. Now just carefully check those please, both of you, and tell me.
PETERSEN: I understand them to be correct.
HIS HONOUR: They are correct yes. Ms Sten?
STEN: They are.
HIS HONOUR: Now Ms Petersen, apart from explaining the sentence to Ms Rashid are there any other formal orders that I need to make under the Commonwealth legislation?
PETERSEN: No thank you.
HIS HONOUR: I'll return your Practice thank you.
Ms Rashid, for this crime I have sentenced you to 3 years and 9 months. That is the sentence which you received. I have backdated it to when you first arrived, 18 September 2011 last year. So your sentence expires on 17 June 2015. I have specified a non-parole period that you must remain in custody of 2 years. That also started last year on 18 September. That will expire on 17 September next year, 2013. At that stage you will be eligible for parole - eligible for parole. Whether you get it or not is not a matter for me but the minimum time that you will be imprisoned is 2 years, until 17 September next year.
HIS HONOUR: Do you understand that?
OFFENDER: Yes.
HIS HONOUR: Is there anything else Ms Petersen, Ms Sten?
PETERSEN: No your Honour.
STEN: No your Honour.
HIS HONOUR: I will give my associate the exhibits and the MFI and the indictment. Good luck Ms Rashid, I will now adjourn.
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Decision last updated: 09 October 2012
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