R v Liu

[2005] NSWCCA 378

CITATION:	Regina v Liu [2005] NSWCCA 378
HEARING DATE(S):	25 October 2005
JUDGMENT DATE:	25 October 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Adams J at 45; Hoeben J at 68
DECISION:	Appeal dismissed (by majority)

CATCHWORDS:	CRIMINAL LAW - appeal against sentence - importing a prohibited import being not less than the commercial quantity of heroin - whether the sentence is manifestly excessive - objective seriousness of offence - plea of guilty - delay - hardship of being separated from son - hardship caused to son by separation - whether justifiable sense of grievance when considering the sentence imposed on the co-accused
LEGISLATION CITED:	Customs Act 1901 Crimes Act 1914
CASES CITED:	R v Boyle (1987) 34 A Crim R 202 R v Edwards (1996) 90 A Crim R 510 R v Postiglione (1996-97) 189 CLR 295 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Wirth (1976) 14 SASR 291 Wong v The Queen (2001) 207 CLR 584
PARTIES:	The Crown Piu Man Liu
FILE NUMBER(S):	CCA 2005/1175
COUNSEL:	W J Abraham QC (Crown) R Burgess (Appl)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Appl)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0975
LOWER COURT JUDICIAL OFFICER:	Hock DCJ

2005/1175

McCLELLAN CJ at CL
ADAMS J
HOEBEN J

TUESDAY 25 OCTOBER 2005

REGINA v Piu Man LIU

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to importing a prohibited import being not less than the commercial quantity of heroin contrary to s 233B(1)(b) of the Customs Act 1901. She was sentenced to eight years imprisonment with a non-parole period of four years. The sentence dates from 8 August 2002.

2 On the same day on which the applicant was sentenced her co-offender Sin Chin Wong pleaded guilty to a charge of importing not less than the trafficable quantity of heroin, he was sentenced to eight years imprisonment with a non-parole period of five and a half years.

3 The history of the matter from the date upon which the applicant was taken into custody is unusual. She originally pleaded guilty on 16 December 2002 and the matter was adjourned for sentence. Mr Wong stood trial on 17 December 2002 but that jury was discharged. On 31 January 2003 the applicant reversed her plea and stood trial jointly with Mr Wong on seven separate occasions. The trials aborted on six occasions for different reasons. Both the applicant and Mr Wong relied on a defence of duress. In the only trial which was completed the jury were unable to agree.

4 The applicant was pregnant to Mr Wong when she was arrested in Sydney and on 10 March 2003 she gave birth in custody to her only child, Dylan. The child was initially taken from her but the applicant was subsequently admitted to the Mothers and Children’s Residential Program at Jacaranda Cottages where her child has been able to live with her. The situation is obviously not ideal for the child but is significantly better than his initial placement with foster parents.

5 When the applicant was sentenced the Crown conceded that the delay in having the matter resolved, the numerous trials, the effect on the child of his parents’ incarceration and the effect on the applicant of being deprived of her child were “special circumstances” which could be taken into account on sentence.

6 The maximum penalty for the offence committed by Mr Wong is a fine not exceeding $550,000 or imprisonment for a period not exceeding twenty-five years or both. The maximum penalty for the offence committed by the applicant is a fine not exceeding $825,000 or imprisonment for life or both.

7 The applicant and Mr Wong arrived at Sydney Kingsford Smith airport on a flight from Hong Kong on 8 August 2002. After being approached by a narcotics detection dog they were taken into separate interview rooms. The applicant was feeling unwell but consented to being searched and was taken to St George Hospital. Mr Wong was taken to Police Headquarters and also consented to a search. Both were found to be wearing a body pack containing packages of white powder which were subsequently analysed as heroin. The total weight of pure heroin imported by the applicant was 1582 grams and by Mr Wong 1222.8 grams. Under the Act the commercial quantity of heroin is 1.5 kilograms.

8 Both the applicant and Mr Wong gave evidence in relation to the circumstances surrounding the importation. Mr Wong was thirty-six at the time of sentence and the applicant was twenty-six. Neither had any criminal convictions.

9 Mr Wong was brought up in Hong Kong and employed as a driver. He broke both his legs in a car accident in 1992 when he was visiting Canada which left him with continuing problems. In 2000 he started to visit a town in southern China, Chen Xian, where he met a man named Ah Choy. This man introduced Mr Wong to gambling and lent him increasing amounts of money. When his debt was over 110,000 Hong Kong dollars, Ah Choy demanded that he be repaid with interest. Mr Wong was unable to do so, despite taking a second job. Ah Choy was insistent and on one occasion Mr Wong witnessed the beating of another man who owed Ah Choy money.

10 Mr Wong said that in June 2003 Ah Choy rang him and asked him if he could find some people to go to Europe to buy “water goods” for him. Apparently this is a reference to handbags and Rolex watches which could be purchased in Europe and brought back to Hong Kong. The suggestion was that the items could be sold at a profit in Hong Kong as they were duty free. Mr Wong said that he gave his passport and the applicant’s passport to Ah Choy on the understanding that they would be going to Europe to buy handbags and Rolex watches.

11 On the evening of 7 August 2003 Mr Wong went to the Windsor Hotel with the applicant with their bags packed for the trip. Ah Choy and two other men arrived with some white powder. When Mr Wong refused to take it, he was punched and the applicant was threatened with rape. Mr Wong gave further evidence of threats and assault by these men which led to him and the applicant having the drugs strapped to their bodies. Ah Choy gave him a mobile phone, asking him to turn it on once he arrived at the destination, saying that someone would contact him. Ah Choy also warned him not to speak to the authorities or his family home would be burned and his family incinerated.

12 The applicant grew up in Hong Kong and was one of four children. Her father was a truck driver and the family lived in a one bedroom apartment. She completed high school but did not pass her exams. She qualified as a beauty therapist and also worked as a waitress and receptionist. She moved out of the family home in 2002. In July 2002 the applicant discovered she was pregnant to Mr Wong.

13 The applicant said that Mr Wong had told her on the telephone that he owed a man named Ah Choy money. However, the applicant was not in a financial position to help and gave evidence that she did not like gambling and did not have any debts. Mr Wong was seeking someone who would be interested in going overseas and buying “water goods”. When he was unable to find anyone he told the applicant that she would be going with him to Europe for this purpose. Apparently, the trip was to be the applicant’s first overseas trip. Mr Wong made all the arrangements.

14 Prior to coming to Australia the applicant was working six days a week as a waitress. She worked until 5 August 2002 when her job was terminated because her employer did not give maternity leave or sick leave.

15 The applicant gave evidence that when she was taken to the hotel and told to carry the white powder in the packages she guessed it was some sort of drug but did not know which one or the quantity observed. The men strapped the drugs to her.

16 The applicant said that she was escorted to the airport by the three men. She had never been to an airport before and was very scared. She discovered she was coming to Australia when she was on the aeroplane. On the trip she was vomiting and very uncomfortable. She was to receive no financial benefit at all from importing the heroin.

17 In relation to the circumstances of the offence, the trial judge said the following:

“I am satisfied on the balance of probabilities that the offences were brought about by threats and actual violence falling short of a defence of duress...imprisonment is appropriate in the case of each offender. I am also satisfied...were couriers.”

The Application

18 The applicant advances two grounds on the application. The first ground is that the sentence was manifestly excessive. The second ground is that the applicant has a justifiable sense of grievance when considering the sentenced imposed on the co-accused, Mr Wong. I propose to consider each of the grounds pressed. Before doing so I should indicate that the circumstances revealed in this case suggest that the applicant has been caught up in an enterprise which she did not initiate. Furthermore, the consequences of her being caught up have been severe, both for herself and for her infant child. Nevertheless, this Court is required to look at the matters pressed on this application, having regard to all the matters which the law requires this Court to have regard when considering an appeal.

Ground 1 - Manifestly excessive sentence?

19 The applicant advances five bases for this submission. They are:

(a) The objective seriousness of the offence and the applicant’s role in the offence;

(b) The applicant’s plea of guilty;

(c) The hardship occasioned by delay between the commission of the offence and having to stand trial on seven occasions;

(d) The hardship of being separated from her son as a result of her incarceration; and

(e) The hardship caused to the applicant’s son by her imprisonment and the imprisonment of his father, the co-accused, Mr Wong.

Consideration of Ground 1
(a) The objective seriousness of the offence and the applicant’s role in the offence.

20 The sentencing judge accepted that Mr Wong was led into gambling and incurred debts which he had tried to repay. Her Honour found that the offences came about as a result of threats and a misunderstanding as to the trip which was to be undertaken. The sentencing judge was also satisfied that the offences were brought about by threats and actual violence falling short of the defence of duress and, accordingly, the objective gravity of each offence was reduced. The applicant was found to be a courier.

21 It is submitted on this application that the sentencing judge failed to reflect these matters sufficiently in the sentence that was imposed. The applicant was junior to Mr Wong by ten years and was pregnant to him. A psychologist’s report indicated that she has a submissive and insecure personality which was reflected in her relationship with Mr Wong. It is submitted that although her Honour had careful regard to these matters, they were not adequately reflected in the sentence which her Honour imposed.

(b) The applicant’s plea of guilty.

22 The sentencing judge accepted the applicant’s plea of guilty as an indication of remorse and a willingness to facilitate the course of justice. It is further submitted that her Honour did not adequately reflect these matters in the sentence which she imposed. However, this submission must be considered in light of the fact that the applicant had earlier pleaded not guilty and the matter had gone to a trial on one occasion with the jury being unable to reach a verdict. Although the applicant ultimately abandoned a defence of duress, which may have had some prospects of success, the plea warranted a discount at the lowest end of the available range.

23 The applicant also points to the fact that her Honour did not identify the discount allowed for the plea. This is contrary to the guidance given by this Court in R v Thomson and Houlton (2000) 49 NSWLR 383, although the applicant accepts that the failure to refer to that matter does not itself constitute an error.

(c) The hardship occasioned by delay between the commission of the offence and having to stand trial on seven occasions.

24 The applicant emphasises that there was a significant delay between the applicant being arrested and ultimately sentenced for the offence. The series of aborted trials is unusual and no doubt heightened the uncertainty and the distress felt by the applicant. However, her Honour acknowledged these matters in her remarks on sentence and clearly took them into account.

(d) The hardship of being separated from her son.

25 The applicant emphasised that the birth of her child and the associated difficulties in finding foster care and then the bringing of the child into his mother’s care in custody imposed significant burdens.

26 The fact that the child was required to be placed into foster care was considered by the sentencing judge. The impact of the separation from the child and the applicant’s incarceration, which has been reflected in serious depression suffered by the applicant, exacerbated by the fears for the welfare of her child, both during the period of her imprisonment and thereafter, were considered by the sentencing judge. It must be borne in mind that the circumstances in which the applicant found herself were most likely to create the difficulties which she has reported.

(e) The hardship caused to the applicant’s son by her imprisonment and the imprisonment of Mr Wong.

27 The applicant stresses the difficulties which incarceration of the applicant and Mr Wong will cause to the development of their child. Although the applicant accepts that her Honour had regard to the effect which the sentence may have on the applicant’s family, it is submitted that greater weight should have been given to this matter.

28 The general common law rule was that hardship to third parties is not relevant to sentence, although exceptions were made. One exception was said to be when both parents were imprisoned simultaneously or the family circumstances meant that the imprisonment of one parent effectively deprived the children of parental care: see D A Thomas, Principles of Sentencing 2nd ed, p 212; Franklin (1981) 3 Crim App R (s) 65; see also R v Boyle (1987) 34 A Crim R 202 at 205; R v Wirth (1976) 14 SASR 291 and R v Edwards (1996) 90 A Crim R 510.

29 Although it is accepted that her Honour appears to have taken the hardship to the applicant’s child into account in a general way, it is submitted that her Honour has erred by not giving this factor sufficient weight. This is said to be an exceptional case justifying substantial leniency and a case where it was appropriate to show mercy.

30 The applicant accepts that the sentencing statistics from the Judicial Commission for an offence of importing a commercial quantity of heroin since the repeal of s 16G of the Crimes Act 1914 show that the total sentences range from eight years to life imprisonment. Non-parole periods range from six years to twenty years. The statistics in relation to importing of a trafficable quantity of heroin (forty cases) show that in one case periodic detention was imposed, that full time sentences of imprisonment range from five years to ten years and non-parole periods from two years to seven years.

31 The statistics in relation to sentences before the repeal of s 16G reveal five per cent of the total sentences had a non-parole period of less than four years out of a total of sixty-one cases. Some level of increase of those sentences can be assumed to give them relativity to the position following the repeal of s 16G.

32 The applicant accepts that an examination of the statistics indicates that the sentence received by the applicant falls at the bottom of the historical range in relation to commercial quantities of heroin, although closer to the top in relation to the importation of trafficable quantities. It is accepted that the sentence imposed would lie within the appropriate range but for the exceptional matters identified in the applicant’s case.

33 Although I have not found this case easy to resolve, I have concluded that the sentence imposed by the sentencing judge was appropriate and ground 1 of the appeal fails.

34 The circumstances in which the applicant committed the offence, her own personal circumstances, including her pregnancy and submissive personality, the difficulties which she faced during imprisonment, the problems of giving birth to a child and the nurturing of that child during her prison term were all matters which required careful consideration when imposing a sentence. An examination of the sentencing judge’s remarks reveals a thorough and careful assessment of all these matters and an ultimate amelioration of the sentence by a shortening of the non-parole period. To my mind, her Honour did not commit any error. The offence committed by the applicant was of the greatest degree of seriousness carrying a maximum sentence of life imprisonment. The abhorrence of the community and the determination of the legislature to deter others from the importation of narcotics is apparent. Whatever be the circumstances of an individual who imports a commercial quantity of heroin, the offender must expect a significant period of imprisonment. Although, as the evidence suggests, it is unlikely that the applicant will re-offend, the sentence which she receives must be sufficient to remind others considering similar criminal activity that, if caught, a lengthy prison term will almost certainly follow.

35 The delay in the applicant being sentenced is significant. However, having regard to the fact that the applicant maintained a plea of not guilty which required the various trials to be commenced, any hardship which she suffered was initiated by her own actions and ultimately alleviated when she decided to plead guilty. It must be accepted that the sentence imposed hardship upon the applicant and her child. However, whatever be her personal circumstances and the difficulties for the child, as I have previously said, a term of imprisonment was inevitable.

36 To my mind, the sentencing judge had appropriate regard to all of the matters now raised by the applicant and reflected the particular circumstances of the applicant in a reduction in the non-parole period. But for these circumstances, a significantly longer period of imprisonment before parole would have been justified. I am satisfied that the sentence imposed, and in particular the non-parole period, were not excessive.

Ground 2 - the applicant has a justifiable sense of grievance when considering the sentence imposed upon the co-accused, Mr Wong.

37 The applicant submits that she has a justifiable sense of grievance having regard to the sentence imposed on Mr Wong. Reference was made to R v Postiglione (1996-97) 189 CLR 295. It is submitted that the applicant’s actions involve a lesser degree of criminality than Mr Wong and her subjective case was such that a lesser head sentence should have been imposed on her than was imposed on Mr Wong. It is further submitted that the applicant’s age and her dependent, submissive relationship with Mr Wong placed her in a difficult situation, particularly as she was pregnant to him. In the circumstances, her culpability was significantly reduced.

38 Emphasis is placed on the fact that although the applicant was carrying a greater quantity of heroin than Mr Wong, this was a matter of chance and the difference in quantity, being about 360 grams, is not significant. It is submitted that the difference was not readily discernible and did not reflect on the applicant’s culpability.

39 It is further submitted that in Wong v The Queen (2001) 207 CLR 584 at [67-70], Gaudron, Gummow and Hayne JJ recognised that not all offenders will know or even suspect how much pure narcotic is to be imported and that it was not uncommon for importers to know nothing about what they are dealing with, except that it is a quantity of narcotics. Accordingly, it is submitted that a sentencing judge will be more concerned to identify the level of the offender’s knowledge about the importation. Other information about the kind and size of the reward promised will also be as important in fixing sentence. The weight of a narcotic imported is given statutory significance by Parliament’s distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities. Within those ranges weight is relevant but is not determinative. The applicant stresses that their Honours said at [70]:

“The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle.”

40 I accept that the fact that the applicant was carrying a greater quantity of heroin than Mr Wong was a matter of chance. However, in undertaking the criminal activity the applicant must have known that she was committing a very serious offence which carried with it the prospect, if apprehended, of a significant gaol sentence. It must be remembered that she entered a plea, abandoning the defence of duress, and she fell to be sentenced on that basis. The legislature has determined that the offence which the applicant committed carries a significantly greater maximum penalty, life imprisonment, than the offence committed by Mr Wong which carries a maximum term of twenty-five years.

41 In this respect it is important to remember the passage in the joint judgment in Wong v The Queen commencing at para 67 where their Honours said:

“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 traffickable 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. But is weight generally the chief factor to be taken into account in fixing the sentence?”

42 In these circumstances, it would be a rare case in which the appropriate sentence did not reflect the fact that the legislature has imposed a different and more severe penalty regime for the offence committed by the applicant. By imposing the same head sentence on both the applicant and Mr Wong, her Honour has adequately reflected the part which chance played in the applicant carrying the greater quantity of heroin.

43 Although the applicant committed the more serious offence, it is apparent that her personal circumstances, and her degree of culpability, pointed to the need to carefully consider the term of her imprisonment. The trial judge recognised this fact and reduced the non-parole period so that the applicant will serve eighteen months less in prison than Mr Wong. In the circumstances, I am satisfied that by approaching the sentences as she did the sentencing judge appropriately exercised her discretion and no error is revealed.

44 In my opinion, leave to appeal should be granted but the appeal should be dismissed.

45 ADAMS J: The facts of this case have been briefly but adequately set out in the judgment of the Chief Judge at Common Law and I gratefully adopt his Honour’s account. However, in the circumstances of this exceptional case I am unable, with unfeigned respect, to agree with either his Honour’s analysis or his conclusion as to the disposal of this appeal.

46 Let me deal firstly with the analysis.

47 The applicant’s evidence was (and it was not sought to be disputed or controverted) that she was brought by her boyfriend, the co-accused, to a hotel room where they expected to be given money for the purpose of acquiring what was called “water goods”. Whatever that was it was not drugs, and it appears to have been accepted it was not illegal conduct that was proposed. The boyfriend resisted when informed that they were to take white powder, plainly drugs, into Australia. He was beaten in her presence, she was threatened with rape and dreadful consequences to her family. There was no reason to suppose that these threats were not entirely serious. Drugs were strapped onto her person in the company of her partner, she was taken to the airport, and ultimately placed on the aircraft, she was continuously unwell and very uncomfortable during the flight because of her pregnant state and the tightness with which the parcel carrying the heroin had been attached to her. She was still terrified as she came through Customs in Sydney. She was still in the company of her partner. There was no question of any financial reward for her actions.

48 The learned trial judge found, having heard the applicant, as follows –

“Both offenders gave evidence on sentence. I am satisfied on the balance of probabilities that the offences were brought about by threats of actual violence falling short of a defence of duress.”

49 The offenders recognised by their pleas that the defence of duress was not available.

50 The unusual finding of the learned sentencing judge needs to be unpacked a little. The learned Crown Prosecutor in this Court has submitted that by her plea the applicant admitted that her bringing these drugs into Australia was voluntary. It was voluntary, but only in the rather limited sense that the term has in the law as to duress, since it appears to have been accepted that, although the threats were real and grave, although she was still affected by her fear of them at the material times, and although it was those threats and her fears that caused her to bring the drugs here, she had, in the course of the flight to Australia and, perhaps, on her arrival at the terminal, nevertheless “a reasonable opportunity to render the threats ineffective”: see R v Williamson [1972] 2 NSWLR 281 at 3000. It impossible otherwise sensibly to see how the plea of guilty and the applicant’s evidence can be reconciled. The finding of the learned sentencing judge indicates that the reason for the applicant’s involvement in this crime was the applicant’s fear, induced by substantial and grave threats made not only to her and her boyfriend but also to her family. She imported these drugs, therefore, not because of any hoped for financial reward but to avoid suffering extreme violence.

51 The criminal law can only go so far in controlling people’s activities. I venture to say there would be many people in the community who are not criminals and who regard themselves as honourable people who, if they been themselves in same circumstances as this applicant, would have found it very difficult indeed to resist the terrifying threats that had been made to her and would have complied with the unlawful demands, even if there was – at some points – a reasonable opportunity to seek the assistance of law enforcement authorities. The difficulty facing someone in the applicant’s position having to make this judgment call, especially once she came to Australia - in a strange place and an alienating environment where she did not speak the language - can scarcely be overstated. She was friendless and alone, except for the presence of her boyfriend who had also been subjected both to violence when he first protested and threats of further violence if he did not co-operate. There were no chances for reflection before she was placed on the flight and very few thereafter.

52 Some people in the applicant’s position might well have had the fortitude to have reported the fact that she had been required to carry drugs. Many ordinary members of the public, perhaps even with greater personal resources than this particular offender, would find that extremely difficult to do. The law deals with realities, not with fictions and should deal with substance, not form, especially in the area of sentencing. If we accept fiction instead of reality, the law then becomes by that an instrument of injustice.

53 In my view this finding of fact by her Honour the learned sentencing Judge meant that the sentence which should be imposed should have been be at the very bottom of the possible range of sentences. The true culpability of the applicant was almost as low as it could get. She stood in marked contrast to almost every other courier seen in the courts, whose intentional breaking of the law is motivated by the hope of financial gain. Her crime must therefore be seen as considerably less in culpability than these, more conventional, couriers. Her Honour did not approach this matter in that way. I think it fair to say that, having come to the conclusion about the threats, and other conclusions which I will mention shortly, her Honour attempted to give a sentence which was at the bottom of the statistical range that had hitherto been imposed for cases of importation of commercial quantity by couriers acting for reward. In my respectful view that was a fundamental error. What was necessary in this case was that her Honour should have assessed the actual criminality and moral culpability of this applicant in the light of what most ordinary members of the public in the applicant’s position would have felt themselves able to do and by comparison with sentences passed on couriers who fell into a class of considerably greater culpability. Since to do so should have produced a sentence significantly below that which was imposed, it seems with respect that the learned sentencing judge erred either in her assessment of the bottom of the available discretionary range or the true extent of the objective circumstances as found. In particular, the apparent acknowledgement of this principle by varying only (or substantially only) the non-parole period below the statutory ratio was wrong in principle. The special circumstances of this case certainly justified a significant downward adjustment in this respect but this derived from the subjective circumstances (to which I shall come in a moment). But the matters to which I have drawn attention required a much lower non-parole period by reference to the objective circumstances, with an additional allowance to take into account the special circumstances. In my opinion, the objective character of the crime can never be a “special circumstance” for the purposes of s44 of the Crimes (Sentencing Procedure) Act 1999.

54 It follows from what I have said that the balance of the term was manifestly excessive or, looked at globally, the overall sentence was manifestly excessive.

55 I have, therefore, concluded with respect that the learned sentencing judge approached the sentencing task in this case incorrectly in a fundamental way. This was an exceptional case. It fell close to the bottom of the range of criminal culpability, quite apart from any comparison with Wong.

56 I move to the comparative position between this applicant and her co-accused. The learned sentencing judge said:

“Whilst I recognise that foreign nationals cannot expect leniency if they come into this country purely to commit serious offences, in my view Miss Liu’s situation is such that it would be appropriate to reduce the non-parole period to 50 percent of the head sentence. In addition her criminality is less than Wong's, even though she imported just over the commercial quantity of heroin. She was not in debt, and did not stand to gain anything financially. She was brought into the situation by Wong's gambling debt and subsequent actions. These factors justify the same head sentence for each offender.”

57 I make the observation that it seems to be completely at odds with her Honour’s findings about the applicant’s reasons for carrying the heroin into Australia to treat them as being “purely to commit serious offences”.

58 Having regard to the matters that I have just mentioned, as well as the facts that that Wong was the instigator, and not she, that she stood to gain nothing, whilst he at least was paying off his gambling debts, that she was very much under Wong's influence, being ten years younger than him, submissive both by aspects of her personalty and her culture to his demands, and also that the time pregnant to him, the criminality of this offender was markedly less than that of Wong's and should have been reflected in a substantially lesser sentence.

59 As I understand it the argument that proposes that the same head sentence for each offender was justified is primarily founded upon the fact that having imported a commercial quantity of heroin as distinct from a trafficable quantity of heroin she committed a more serious offence. In one sense that is correct. It rendered her liable to a higher maximum. It rendered her liable also to be treated as more seriously culpable, but it only rendered her liable to those conclusions. In my view those matters do not in this case, especially having regard to the fact that she was only 82 grams over the commercial quantity, render her in any sensible way more or equally criminal than Wong. In my opinion, the conclusion is inescapable that, despite her liability to a heavier sentence, the applicant was very much less culpable than Wong as a matter of substance and reality. It is not all reflected by the sentences imposed, either the head sentence or the non-parole period. The factors identified by the learned sentencing judge required that the applicant should have received substantially lower head sentence than Wong, and that in failing to do so the applicant has a justifiable sense of grievance. To my mind – and with unfeigned respect to those with whom I am in disagreement – the sentence passed on this applicant was gravely unjust when compared to that passed on Wong.

60 Thus the sentence and the non-parole period were manifestly excessive, both when considered on their own and by comparison with the sentence passed on Wong.

61 Let me come to the subjective circumstances of the case. A number of psychological reports were tendered at the proceedings. The applicant's psychological condition was complicated by the enormously stressful circumstances in which she found herself, from which she felt (not unreasonably) unable to extricate herself, and which also rendered her liable to harsh punishment. That alone would understandably provoke in her a multitude of emotional difficulties. The unquestioned evidence in the sentencing proceedings was that the applicant was, and had for some time before sentence, been suffering from a Major Depressive Disorder. (I interpolate that the applicant was arrested on 8 August 2002 and gave birth to her son on 10 March 2003.) Tendered in the proceedings was a thorough and measured psychological report by Ms Watson. It stated the following:

“The offender's clinical presentation is primarily a function of the protracted separation from her child having been removed from her care within hours of his birth, following which she has had intermittent access through the previous two years whilst remanded in custody. The protracted separation during which visitation arrangements have consisted of some two hours weekly fails to facilitate the opportunity for healthy mother/child bonding and attachment, and deserving to determine great anguish and emotional turmoil to the offender. Her growing perception of losing touch and irreparable damage to the relationship with her child is further causing an exacerbation of major depressive disorder.
The prominent distress, worry and guilt in relation to her inability to provide care and nurture to her infant child is a major contributing factor to her recurrent depressed mood, and is in accordance with research suggesting that the incarcerated mother's mental health is substantially attributable to the impact of separation on the mother and child relationship, and the inability to undertake rearing and maternal responsibilities.”

62 That is psychological language. In ordinary language this woman has been through purgatory. I do not think that even those who, if I may say so with respect to the language of the learned presiding judge, regard the bringing of drugs into this country with abhorrence, would think that this treatment should, in all justice, have been meted out to this applicant. Nor do I think that giving these factors a major influence in sentencing this applicant is extending any leniency to her: it is merely acknowledging what justice requires. Even if it be thought lenient to reduce the sentence to what I have proposed (which I do not accept), to be lenient in this case is appropriate and, the circumstances being exceptional, will not adversely affect the due administration of the laws protecting us from the importation of drugs. What rather it will do is to show that are cases when humanity can recognise the unequal effects of the law on the individual and will not press punishment to the point of cruelty. I do not accept that applying humane principles is not an integral part of criminal justice, in some way exceptional or secondary and to be noticed in only the extraordinary case. They are fundamental and lie at its very heart, else it loses the very character of justice. Of course, humane considerations apply to victims or potential victims as well as the offender. The balance is not easy to strike. But, in principle, the dictates of humanity are by no means peripheral in the sentencing of offenders, for all that other considerations must also apply. In this case, my profound (but, I hope, respectful) disagreement with the other judges who have considered this applicant’s sentence does not suggest that I consider that they have not taken these dictates into account. But I have been unable for myself to reconcile the outcome imposed at first instance and left untouched in this Court with any outcome that gives due weight to them.

63 In this case the mother has been separated from her child because she was in gaol on remand. Her newborn son was taken from her an hour after birth. That child was placed with foster parents. It seems to me an indictment of our notions of justice that the opportunity for mothers to be with their children is available to sentenced women but not to those on remand who are, in the eye of the law, presumed to be innocent. I have no doubt, and it seems accepted, the foster parents are loving, caring, people. But they are not Chinese. They speak English. Their cultural assumptions and conduct are different in significant ways from those of the child’s parents and natural community. The way in which the child understands himself, his relationship to his parents, his relationship to the world are significantly different from those which he would have had if he were with a Chinese family, let alone his mother. This has added an additional exquisite refinement to the cruelty in this case, a cruelty which no-one deliberately imposed, a cruelty which has just happened because of the circumstances but which is not one whit less cruel because it is unintentional. In my view, it should have been brought to an end when the applicant was sentenced in the District Court. I cannot agree that the circumstances of the applicant’s offence or the just limits on this Court’s discretion require that, at this stage, it should not be brought to an end.

64 There is a follow-up report by Ms Watson which has become part of the papers here. It deals with the fact that now at least this applicant and her child can be together in Jacaranda House. That situation is far from ideal. Firstly they are mostly Caucasians who are there, and Caucasian children, and not surprisingly her son sees himself as Caucasian. It is difficult for the applicant, whose English language is limited and whose contact with her baby from such an early age for something like two crucial years was so little and so unsatisfactory. This is what Ms Watson says:

“Although the reunification of Ms Liu and [her infant son], represents maximal benefit for the child's healthy development, the prison environment in general is not a healthy environment for young children. The provision of parental care and nurturance is not an easy task within the constraints of the prison environment, and the development of young children is retarded by the restricted access to varied stimuli in the prison environment. Furthermore, the current assessment indicates Ms Liu is experiencing ongoing psychological disturbance and emotional fragility of a clinical degree [that is to say medically evident] the nature of which places her in a precarious position, and has significant implications for both the child's emotional development and the mother's mental health.”

65 I do not doubt that the learned sentencing judge significantly reduced the sentence in light of these circumstances from that which her Honour would otherwise have passed. However, the extenuating objective circumstances and the subjective factors, both very unusual, required a much greater downward adjustment in the sentence which, absent these features, was appropriate. Moreover, this was one of those exceptional cases in which the effect of the applicant’s imprisonment on her child should have been taken into account as well as its effects on the applicant.

66 For these reasons, I am respectfully unable to agree with my colleagues that there was no error of analysis or conclusion in the sentence passed on the applicant.

67 It is unnecessary for me to specify what non-parole period would have been appropriate. What I would propose in these circumstances, however, is that leave to appeal should be granted, the appeal be allowed and the sentence quashed. When this matter was heard, I proposed that this Court should substitute an overall sentence of five years imprisonment with a non-parole period that would have expired on that day. Editing this judgment for publication has led me to reconsider that proposal. I have formed the view that the appropriate sentence that should have been passed at first instance was one of a fixed term of two years commencing on 8 August 2003.

68 HOEBEN J: In this matter I accept the circumstances were most unusual and quite sad. These circumstances were, however, fully considered and assessed by her honour, the sentencing judge. Accordingly, I am not persuaded that error has been identified in her Honour's judgment. I agree with Justice McClellan and the orders which he proposes.

69 McCLELLAN CJ at CL: The orders of the Court will be as I have indicated.

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