R v Koert

[2000] NSWCCA 21

CITATION:	R v KOERT [2000] NSWCCA 21
FILE NUMBER(S):	CCA 60446/99
HEARING DATE(S):	18/2/2000
JUDGMENT DATE:	18 February 2000
PARTIES :	Regina Beatrice KOERT
JUDGMENT OF:	Ireland J at 18; Hulme J at 1; Smart AJ at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL :	Crown: M. Cinque In person
SOLICITORS:	Crown: SE O'Connor In person
DECISION:	Leave to appeal granted; Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL
No: 60446/99

IRELAND J
HULME J
SMART AJ

Friday, 18 February 2000


REGINA -v Beatrice KOERT

JUDGMENT

1    HULME J : The above named appellant pleaded guilty to a charge that on or about 12 November 1998 in Sydney she imported into Australia prohibited imports to which s 233B of the Customs Act applied, to wit cocaine in not less than the commercial quantity. The quantity of pure cocaine involved was 2,435.4 grams. Its estimated wholesale value was $325,000.

2    The maximum penalty of imprisonment prescribed for the offence of importing more than 2 kilograms of cocaine is life imprisonment. On 25 March 1999 Judge Dodd sentenced the appellant to imprisonment for a period of five years, including a non-parole period of three years, both periods commencing on the date of the appellant's arrest, namely 12 November 1998. His Honour indicated that in arriving at that sentence he had discounted the sentence he would have otherwise imposed by between 20 and 50 per cent.

3    The appellant has appealed against the sentence imposed.

4    Prior to her arrest and following her arrival from Santiago, Chile, the appellant was observed at Sydney Airport to be walking awkwardly. Asked if she was carrying anything on her legs, she denied doing so but when she was searched body packs containing the cocaine were detected. Later in the day the appellant agreed to assist the authorities and, with their connivance, booked into a hotel at Bondi Beach to wait for a telephone call which she had been told would come from someone desirous of collecting the cocaine.

5    Although over the following five days there were a number of telephone calls to the hotel and the appellant's cooperation continued, the operation was then terminated by the Federal Police, albeit not because of any act or omission on the appellant's part.

6    The sentencing judge said that he was satisfied that the appellant had fully cooperated with the police during the operation and supplied them with intelligence which could not have been obtained in any other say. The information was judged by the police to have moderate value.

7    The appellant was born on 1 April 1970 and is a South African citizen. Reports and other information put before the sentencing judge on behalf of the appellant indicated that her childhood had been traumatic and her marriage answered the same description. Her husband had apparently tried to murder her and she ran away to Brazil to escape his abuse leaving her two children with her husband's parents whom she trusted.

8    After some period, both because she was missing the children and her husband had resumed control of them, she desired to return to South Africa but was without funds to do so. A friend in Brazil told her of some acquaintances who could help her to obtain the funds to return to South Africa. In furtherance of this design she went from Brazil to Chile where the body packs were strapped to her legs and a little money and an airline ticket provided. The appellant knew the packs contained drugs. The sentencing judge accepted that the appellant had made no definite arrangements for her remuneration, - a fact which his Honour saw as indicating her vulnerability.

9    Apart from her initial denial to which I have referred, the appellant made full admissions from the time she was spoken to at Sydney Airport - a matter Judge Dodd said he took into account in the context of an extremely strong Crown case. His Honour accepted that the appellant exhibited contrition and was but a courier. She has no prior convictions.

10 The appropriate range of sentencing to be imposed on persons in the appellant's situation has been the subject of consideration by this Court on innumerable occasions. In R v Spiteri (1999) NSWCCA 3, I made a detailed review of many of them. The matter has subsequently been considered by a five member bench in R v Wong & Leung (1999) NSWCCA 420 where this Court laid down as a non-binding guideline for judges involved in the sentencing of persons in circumstances such as those of the appellant, that the appropriate sentence when the quantity of cocaine involved is between 2 and 3.5 kilograms is between eight and twelve years imprisonment. The decision in R v Wong & Leung had, of course, not been given when the appellant was sentenced. However, the guideline given was based on a consideration of past sentencing practice of which, no doubt, Judge Dodd was aware.

11    The appellant's full term of five years is about two thirds of the eight year period which falls at the bottom of the indicated range. Of course, as I have stated above, the sentence imposed does reflect a discount for assistance to the authorities of between 20 and 50 per cent his Honour having observed that it was not incumbent on him to specify the precise percentage. By comparison with the bottom figure of eight years, the appellant received a discount of about one third.

12    Judged by the discount given in other cases where assistance has been far greater than that afforded by the appellant, that discount is by no means inadequate. Of course, in making that judgment I do not criticise the appellant or suggest she could have done more. I do but recognise that other offenders have been in a position to provide more assistance and to have been willing to do so in circumstances of danger meriting more leniency than is appropriate in the appellant's case.

13    The appellant appeared for herself and out of deference for her arguments there are some other matters I should say. Firstly, because those trading in drugs often pick persons such as herself, without prior convictions, to run the risks involved in transporting drugs, the Courts, in pursuit of Parliament's expressed wish to stamp out or at least minimise the harmful trade, have felt obliged to ensure that sentences imposed on such persons are high enough to act as a deterrent.

14    That such sentences do lead to depression such as she said she is suffering from is but a natural consequence. In her case it may be accepted that the separation from her children makes matters worse. However, again the need to deter others tempted, as the appellant was, means that the Courts can give but limited weight to such a factor, even in cases where, as Dr Strum in a report tendered to the sentencing judge suggested, there may be little danger of re-offending.

15 The appellant said she saw little difference between her sentence and that imposed on directors of drug syndicates. I do not know which person she had in mind in this comparison but I do know that Courts in general, and this Court in particular, makes a substantial distinction between the two situations. One such "director" was recently sentenced to life imprisonment - R v Wing Pieu Chung (unreported, CCA, 22 October 1999); another to twenty-two years by way of minimum term - R v Kalache (2000) NSWCCA 2.

16 This Court allows appeals only in the case of error. Appeals do not succeed merely because the Court might or would have imposed a lower sentence than the sentencing judge did. Nevertheless, it is appropriate to say that when one takes account not only of the five year full term but also of the three year minimum term imposed by the sentencing judge, in my view no lesser penalty could reasonably have been imposed. It is, for example, considerably less than this Court in R v Pang [1999] NSWCCA 4 suggested was appropriate in circumstances such as those of the appellant.

17    Leave to appeal should be granted but the appeal dismissed.

18    IRELAND J: I agree.

19    SMART AJ: I also agree.

20    IRELAND J: The orders will be as proposed by Hulme J.