R v Klein

[2001] NSWCCA 120

Reported Decision: 121 A Crim R 90

New South Wales

Court of Criminal Appeal

CITATION:	R v Klein, Lucy Pearl [2001] NSWCCA 120
FILE NUMBER(S):	CCA 60713/00
HEARING DATE(S):	19 March 2001
JUDGMENT DATE:	19 March 2001
PARTIES :	Regina v Lucy Pearl Klein
JUDGMENT OF:	Giles JA at 1; Wood CJ at CL at 22; Simpson J at 32

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0516
LOWER COURT JUDICIAL OFFICER :	Solomon DCJ

COUNSEL :	D Staehli - Crown G Jones - Respondent
SOLICITORS:	Commonwealth Director of Public Prosecutions - Crown Freemans Solicitors - Respondent
CATCHWORDS:	SENTENCE - drug importation - Crown appeal - whether sentence manifestly inadequate - (by majority) not manifestly inadequate. ND
CASES CITED:	R v Behar (NSW CCA 14 October 1998); R v Benais (1999) NSW CCA 236; R v Budiman (NSW CCA 8 September 1998); R v Cartwright (1989) 17 NSWLR 243; R v Chu (1998) (NSW CCA 16 October 1998); R v Dodd (1991) 57 A Crim 349; R v Ferrer-Esis (1991) 55 A Crim R 231; R v Gallagher (1991) 23 NSWLR 220 R v Laurentiu and Becheru (NSW CCA 1 October 1992); R v Lawson, Wu and Thapa (NSW CCA 12 December 1997); R v Leroy (1984) 2 NSWLR 441; R v Stead 99 NSW CCA 4; R v Wong (1999) 48 NSWLR 340; R v Zayat (NSW CCA 22 November 1996).
DECISION:	Appeal dismissed.

IN THE COURT

OF CRIMINAL APPEAL

CCA 060317/00

DC 11/11/0516

GILES JA
WOOD CJ at CL

SIMPSON J

Monday 19 March 2001

REGINA v Lucy Pearl KLEIN

JUDGMENT

1 GILES JA: The respondent entered a plea of guilty to a charge of importing cocaine contrary to s233B of the Customs Act 1901. She was sentenced to imprisonment for three years and nine months with a non parole period of two years and six months. This is a Crown appeal on the ground that the sentence is manifestly inadequate.

2    The respondent arrived in Australia from South Africa on 7 June 2000, and was identified for a full baggage search. An ion scan of some of her belongings tested positive for the presence of cocaine. When informed of this, the respondent admitted carrying narcotics concealed on her body and in her shoes. She was found to be carrying a package of cocaine taped around her waist and packages of cocaine in her shoes. The cocaine had a gross weight of 960.3 grams and a pure cocaine weight of 513.7 grams. Its street value was somewhere between $296,000 and $370,000.

3    In interviews subsequently conducted the respondent said that she knew she was bringing narcotics into Australia, although saying she thought she was carrying marijuana, and that she knew it was illegal to do so. She said she did it for money in order to help discharge her debts. She and a friend of hers in South Africa agreed with acquaintances in that country to carry the packages, which were supplied by one of the acquaintances. She was provided with her packages, her airline ticket, $US400 for shopping, and the promise of the equivalent of $4,500. On arrival in Australia the respondent was to go to a particular motel and telephone the acquaintance who provided her with the packages, so that arrangements could be made for her packages to be picked up.

4    The respondent named her friend and gave the first names of the acquaintances. She could not provide the last name of one of the acquaintances and was unsure of the last name of the other acquaintance, the one who provided the packages and whom she was to telephone. She offered to assist the police by carrying out the instructions for delivery in a controlled delivery, but for what were described only as operational reasons the police were unable to continue with their investigations taking advantage of that offer. The respondent told the police when her friend was coming to Australia, apparently to make another delivery, but no arrival of someone by the friend's name at the relevant time could be found.

5    Some photographs and telephone numbers were provided by the respondent, but did not provide further information to the police. Some other photographs obtained from South Africa were shown to the respondent, apparently meant to include a photograph of the acquaintance who provided the respondent with her packages, but she said she did not recognise anyone in the photographs.

6    In the result, although the respondent provided information, the information she provided was not independently corroborated and in fact did not give assistance to a police investigation. The assistance in offering to participate in a controlled delivery was in a different position. The offer was made, but it was not taken up. It may or may not have provided assistance to the police, but it was not the respondent's fault that it was not taken up.

7    Once confronted with the ion scan the respondent readily admitted her conduct, although saying she thought she was carrying marijuana, and promptly entered her plea of guilty to the charge involving cocaine. The sentencing Judge said that the plea of guilty contained within it a degree of contrition, and that he was satisfied that the respondent was truly contrite in what she had done.

8    The sentencing Judge's reasoning was to the following effect.

9    His Honour first noted that the offence was a serious offence, its seriousness being reflected in the maximum penalty of a fine not exceeding $100,000 or imprisonment for twenty five years for which the Customs Act provided. He said that cocaine was an insidious drug and brought much pain and sorrow to the community, and that in sentencing the respondent the Court must "reflect the abhorrence the community has for those persons who commercially involved themselves in the importation of narcotic drugs".

10 As particularly required by s16A of the Crimes Act 1914, his Honour then turned to subjective matters. He recorded that the respondent had pleaded guilty and saved the community the cost of bringing her to trial, and expressed his satisfaction as to contrition to which I have already referred. He said he took into consideration her family background, one of a broken home and upbringing under the then apartheid regime in South Africa. There was evidence before his Honour that the respondent, an indigenous South African, was thereby subject to particular pressures and stresses, although it must be said it was not immediately apparent from the evidence, and was not stated by his Honour, just how that might have borne upon the respondent engaging in the particular courier activity which she did for money in order to help meet her debts.

11    His Honour noted that the respondent had not had satisfactory personal relationships. He said he took into consideration the fact that the respondent had no criminal record, but that because she was the type of person who was recruited by those involved in the drug trade her character did not have the same weight as it would have in a case not involving drugs. He noted she was separated from her family in South Africa and had no friends in Australia, and said that as a result she would have more difficulty in the prison system than prisoners who had familial support.

12    His Honour said that these subjective matters were "indeed powerful", but then reminded himself he must not lose sight of the fact that the respondent was involved in a large importation of cocaine into Australia. He referred to the guideline judgment of R v Wong (1999) 48 NSWLR 340, saying that the guideline for the mid level trafficable quantity of cocaine fell within six to nine years imprisonment. His Honour then said -

"I now wish to refer to the question of assistance. I have indicated the prisoner offered to meet with others by way of a controlled delivery, and that the offer was not taken up by police due to other operational matters. The courts are required to provide to a prisoner in circumstances similar to this a great measure of leniency because of the offer of assistance. In that regard I refer to the case of R v Cartwright (1989) 17 NSWLR 243. In this case leniency must be given to the prisoner, having regard to the assistance offered to be given by her. I do accept the submission that the prisoner was only a courier at the very lowest end of the importation hierarchy. It would have been my intention to have imposed a term of imprisonment of six years, however, because of the assistance given by the prisoner, I reduce the period of imprisonment to three years and nine months".

13    The Crown submitted that the sentence of six years imprisonment taken by his Honour as appropriate, apart from the question of assistance, was too low, and that the reduction for assistance was excessive. Certainly in combination, it was submitted, the result was that the sentence of three years and nine months was manifestly inadequate.

14    While I regard the starting figure of six years as one on the low side and consider that a higher figure could have been adopted without justifiable complaint, I do not regard the opening figure of six years as of itself appellably inadequate. The six years was at the bottom of the range indicated in R vWong, but the respondent was a casual courier, and while she was acting for profit to herself and the drug trade significantly depends on couriers such as she, and while general deterrence is an important consideration, the respondent's culpability was at the lower end of the spectrum. I am of that view notwithstanding the Crown's submission that because of the amount of cocaine involved the respondent should not be regarded as at the bottom of the range of six years to nine years. The amount involved was above the bottom of the bracket to which the six to nine years applied, but taking the respondent's part together with that ingredient in assessing where she was to be placed in the range, I do not think that it can be said to have been wrong to have started with the six years.

15    Importantly, in my view, the sentencing judge made no finding as to the respondent's belief that what she was carrying was marijuana rather than cocaine, at the relevant points in his reasoning referring to carrying narcotics. As I read his Honour’s reasons, he implicitly accepted that the respondent had the belief she professed in the material put before his Honour. In my view the respondent was entitled to be sentenced, in the particular circumstances of this case, on the basis that her culpability was coloured by a belief that what she was carrying was marijuana rather than cocaine, and that to my mind contributes to the availability of the starting point of six years.

16    The respondent's immediate acknowledgment of her offence and her prompt plea of guilty may have been borne of recognition that she could not resist a finding of guilty, at least to the importation of a narcotic, but nonetheless the contrition as found weighed in her favour. I do not think the Crown suggested to the contrary. The sentencing Judge properly paid little regard to the absence of prior convictions. The weight to be given to the respondent serving her sentence in what was for her a foreign country separated from her family and without friends in Australia must have been small. She could not really complain, as when entering Australia carrying narcotics she was exposing herself to the inevitable consequence of conviction for her offence (see R v Ferrer-Esis (1991) 55 A Crim R 231 at 239).

17    While it may be that his Honour overstated it in calling the subjective matters powerful, there were certainly subjective matters of some weight properly to be borne in mind in the task his Honour was engaged in. His Honour properly reminded himself, after so describing the subjective matters, of the seriousness of the offence. In my view, the role played by the respondent, her plea, and proper account of the subjective considerations thus far mentioned did permit the view that a sentence of six years imprisonment, apart from assistance, was appropriate, although I repeat that it may have been at the low end of what was available.

18    Going then to assistance, the Crown rightly emphasised there is no fixed tariff for reduction by reason of assistance, as was said, amongst other places, in R v Cartwright (1989) 17 NSWLR 243 at 255. As was explained in R v Cartwright at 252-3, the extent of the reduction will depend to a large extent upon the genuineness of the offender who has co-operated with the authorities, whether or not the information supplied turns out to be of use. The Crown emphasised before us that the information provided by the respondent had not been corroborated and that it provided little assistance to the police investigation, but that tended rather to overlook the significance of the respondent's offer of assistance by participating in a controlled delivery. The sentencing Judge clearly considered the respondent's co operation in that respect to be genuine. Although, as the Crown said, it was untested, the reason why it was untested at the time was because of the ubiquitous operational reasons. If that co-operation was genuine, it seems to me difficult to proceed on the basis that the provision of information was other than genuine, and it must be asked what more the respondent could have done.

19    The reduction at which his Honour arrived was 37.5 per cent. While it was a significant reduction, I do not feel able to conclude it was outside the range open to his Honour.

20    It must, of course, be asked whether in combination a low starting point and a high discount level led to a sentence which was manifestly inadequate. It must also be asked whether, after all relevant considerations have been taken into account, the objective gravity of the offence called for such a sentence that the sentence imposed was manifestly inadequate.

21    It is not enough that this Court considers a higher sentence could have been imposed, or that a slightly higher sentence should have been imposed. The Court must be persuaded of manifest inadequacy. I think the sentence was a low sentence, but I do not think it was a sentence which can be described as manifestly inadequate. In my opinion, therefore, the appeal should be dismissed.

22    WOOD CJ at CL: In my view, the sentence was manifestly inadequate. However, for the reason later mentioned, I agree with the order proposed. I do, however, wish to add some comments of my own in relation to the sentence.

23    Although the guideline judgment in Wong & Leung is not to be regarded as laying down a rigid framework, that would operate as a binding precedent from which judges cannot depart, it needs to be respected as a considered decision of this court as the appropriate level of sentence for a serious category of narcotic offence. It establishes the need for a consistent approach to sentencing that ensures a level of punishment appropriate for the seriousness of offences of this kind which pose such a significant threat to the community, particularly to the more youthful section of it. It also affirms the need for a significant element of general deterrence (see also Benais (1999) NSW CCA 236).

24    Sentencing judges must not lose sight of the following principles when sentencing for such offences:

(a) Prior good character and relative youth are of reduced significance since they are matters, which the organisers of the heroin and cocaine trade use to their advantage, in order to avoid attracting suspicion in relation to those who carry those substances across immigration and customs barrier upon their behalf. (See Leroy (1984) 2 NSWLR 441 at 446/7 and Lawson, Wu and Thapa NSW CCA 12 December 1997).
(b) The subjective circumstances of an offender standing for sentence need to be kept in context, and not given such an undue weight as result in a sentence that is disproportionate to the objective seriousness of the criminality involved. (See Dodd (1991) 57 A Crim R 349 at 354; Stead 99 NSW CCA 4 and Zayat NSW CCA 22 November 1996.
(c) For foreign offenders, the fact of their separation from their homeland and family is of very little relevance. Those who choose to run the risk of bringing drugs into this country must accept the consequences of being imprisoned here, with all the disadvantages entailed. (See Ferrer-Esis (1991) 55 A Crim R 231 at 239 and Chu (1998) NSW CCA 16 October 1998.
(d) Those involved in an importation for purely financial gain or for greed, can expect little in the way of leniency.
(e) The discount allowed for assistance must not be such as to result in a sentence that is disproportionate to the offence, or that is likely to cause affront to the community: See Chu (1998) NSW CCA 16 October 1998 and Gallagher (1991) 23 NSWLR 220.
(f) There is no reason to extend particular leniency to those who perform the task of personally carrying narcotics into the country, because without them the trade in those substances will collapse. (See Laurentiu and Becheru NSW CCA 1 October 1992, Budiman NSW CCA 8 September 1998, and Behar NSW CCA 14 October 1998.)

25    The respondent here was entitled to a discount for the assistance she offered to the authorities, even though, as events turned out, it was not of any real value. She was also entitled to a discount for her contrition and for the utilitarian value of her earlier plea of guilty, albeit a conviction was inevitable.

26    However, even allowing for these matters I am of the view, for similar reasons to those expressed in Ceissman last Friday, that his Honour allowed himself to be diverted by the respondent's subjective circumstances and then pronounced a sentence that was manifestly inadequate.

27    In particular, the privileged family background of the respondent was not a matter that could be properly called in aid by her.

28    The other matter that seems to have swayed his Honour was the somewhat general evidence led concerning the evil doctrines of apartheid that fractured the South African community, and concerning the social upheaval that followed transformation. There can be no doubt that those were significant events having terrible consequences for very many people. However, there was nothing in the evidence led to suggest that they had any particular impact upon the respondent individually, such as to entitle her to leniency.

29    Furthermore, the so called absence of “satisfactory personal relationships” which seemed to have attracted his Honour's attention, were neither exceptional or such as to amount to a circumstance mitigating against sentence.

30    I am of the view that while the respondent did inform the police, when interviewed following her arrest, that she believed that she was importing cannabis, the relevance of that was diminished by the circumstance that it was the offence with which she was charged to which she pleaded guilty. The fact of that plea may be taken as an admission by her of the essential elements charged. She was to be sentenced upon the basis that she had imported into this country not cannabis but cocaine.

31    Notwithstanding my concerns as to the leniency of the sentence pronounced, and the need for judges to maintain a consistently strong stance in this area of criminality in order to deter those tempted to bring narcotic drugs into the country, I am prepared to join in the order proposed but solely by reason of the discretion attaching to a Crown appeal.

32    SIMPSON J: I agree with the order for the reasons given by the presiding Judge. I agree with the summary of relevant principles stated by Wood CJ at CL but I do not agree with his conclusion that the sentence was manifestly inadequate. The sentence was lenient and the discount generous, but I think in combination they were within the range of leniency availed of by the judge.

33    GILES JA: The order of the court is the appeal is dismissed.

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