R v Pham

[2005] NSWCCA 314

CITATION:	REGINA v. PHAM [2005] NSWCCA 314 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Thursday 25 August 2005
JUDGMENT DATE:	12 September 2005
JUDGMENT OF:	Sully J at 1; Hidden J at 3; Hall J at 4
DECISION:	(a) grant leave to appeal against sentence; (b) appeal allowed; (c) sentence set below quashed; (d) in lieu thereof, sentence the applicant to imprisonment for eight years to commence 3 May 2004 and to expire on 2 May 2012; (e) set a non-parole period four years and six months to date from 3 May 2004 and to expire on 2 November 2008; (f) the applicant will accordingly be eligible for release on parole on 2 November 2008.

CATCHWORDS:	Criminal law - import heroin - two-stage approach to sentencing - applicant's mental condition - mitigating factor - contended that the sentence was manifestly excessive - low level drug importer - factors in s.16A, Crimes Act
LEGISLATION CITED:	Customs Act 1901 (Cth) Crimes Act 1912 (Cth) Evidence Act 1995
CASES CITED:	Markarian [2005] HCA 25 Wong & Leung (2001) 207 CLR 584 Dodd (1991) 57 A. Crim R. 349 Hemsley [2004] NSWCCA 228 Scognamiglio (1991) 56 A. Crim. R. 81 Henry (1999) 46 NSWLR 346 Jiminez [1999] NSWCCA 7 Tsiaras (1996) 1 VR 398 Lauritsen (2000) 114 A. Crim. R. 333 Israil [2002] NSWCCA 255 Pearson [2004] NSWCCA 129 Pearce (CCA, unreported 1 November 1996) Engert (1999) 84 A. Crim. R. 67 Letteri (CCA, unreported 18 March 1992) Wong & Leung (1999) 48 NSWLR 340 Bezan (2004) 147 A. Crim. R. 430 Mas Rivadavia [2004] NSWCCA 284 Wong (2001) 207 CLR 584
PARTIES:	REGINA v. PHAM, Duy Tan
FILE NUMBER(S):	CCA No. 2005/707
COUNSEL:	Crown: L. Crowley App: E. Ozen
SOLICITORS:	Crown: Commwealth Director of Public Prosecutions App: Greenfields

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0754
LOWER COURT JUDICIAL OFFICER:	Hock DCJ.

2005/707

SULLY, J.
HIDDEN, J.
HALL, J.

MONDAY 12 SEPTEMBER 2005

REGINA v. DUY TAN PHAM

Judgment

1 SULLY J: In this particular case I am content to concur in the orders proposed by Hall J; but I do so because I am in general agreement with his Honour’s analysis and conclusions respecting grounds 2 and 3.

2 I wish to reserve expressly my position respecting ground 1. I am not at all sure that the reasoning of the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen [2005] HCA 25 disavows in any cut-and-dried way what is described normally as a “two-tier” approach to sentencing. It is neither necessary nor useful to say now anything more upon the topic.

3 HIDDEN, J: I agree with the orders proposed by Hall J. However, like Sully J, I do so on the basis of grounds 2 and 3. I share Sully J’s misgivings about ground 1.

4 HALL, J: The applicant, aged 27 years, was sentenced in the District Court (Hock, DCJ.) on 3 September 2004. He pleaded guilty before the Local Court on 16 June 2004 to one charge of import prohibited import, namely, heroin, being not less than the traffickable quantity pursuant to s.233B(1)(b) of the Customs Act 1901 (Cth). He has been in custody since his date of arrest, 3 May 2004.

5 On 29 August 2004, evidence was given before the sentencing judge and on 3 September 2004, he was sentenced as follows:-

“1. A sentence of a period of imprisonment of nine years to date from 3 May 2004, which sentence is to expire on 3 May 2013.
2. A non-parole period of five years and six months to commence on 3 May 2004, which will expire on 2 November 2009 on which date the applicant will be eligible for release to parole.”

6 The applicant relies on three grounds of appeal:-

“1. That the sentencing judge erred by adopting a ‘two-stage’ approach to sentencing.
2. The sentencing judge erred in dealing with the applicant’s mental condition,
3. The sentence imposed was manifestly inadequate.”

The facts

7 On Monday 3 May 2004, the applicant arrived at Sydney Kingsford Smith Airport aboard a Thai Airlines flight from Bangkok. He was subjected to a frisk search conducted by Australian Customs Service Officers. The importation related to 244.6 grams pure of heroin valued at a wholesale value of $120,000 and a street value of between $611,500 and $856,100 which, as the sentencing judge observed, was 122 times the traffickable quantity of heroin (two grams).

8 The applicant made full admissions that he had imported the heroin after buying it in Bangkok and that his intention was to sell the heroin upon arrival in Australia. However, several of the answers given during the interview, he claimed in evidence before the District Court, were false. He claimed that he had given false information because he was scared and concerned that if he were to reveal the identity of persons with whom he dealt, there would be serious personal repercussions to himself. In the pre-sentence report dated 19 August 2004, he is recorded as saying that, upon returning to Australia, he would be contacted by “someone” who would collect the drugs from him.

9 In recorded interviews, he stated that he was acting alone and had raised US$6,000 to buy the heroin but he stated in evidence that this, in fact, had not been the case. He stated that he had agreed to carry the drugs into Australia because he needed the money to pay for legal representation in relation to another matter. He said that he was to be paid AUD$5,000 for the importation.

10 The applicant’s criminal history noted convictions from 1994 (as a child) and continuing until 2004 (including a drug offence, driving offences and stealing motor vehicles).

11 At the sentence hearing, the pre-sentence report from the Probation and Parole Service was tendered. In it is recorded the applicant’s regret and stated that he felt “ashamed of his behaviour”. He expressed both his regret and shame in terms of the hurt that he had occasioned to his family.

12 The available evidence indicates that the applicant had a supportive family, notwithstanding his rebellious and subsequent unlawful behaviour during his teenage years and thereafter.

13 In 1996, a significant event occurred involving the applicant. In that year, he was involved in a motor vehicle accident when he was the driver of a stolen vehicle. The collision resulted in the death of a passenger who had shared a close friendship with the applicant. On 30 May 1997, a nine month sentence was imposed by Fairfield Local Court in relation to the accident. He was released on parole on 20 February 1998.

14 The applicant was born in Vietnam, the second of three children. His father and family travelled to Australia in 1987 after spending approximately two years in a refugee camp in Indonesia. In Australia, the family spent some two months in Villawood Detention Centre. The applicant was aged eight years upon his arrival in Australia.

15 He prematurely ceased secondary schooling Year 11, having been sentenced to imprisonment in respect of the 1996 motor vehicle accident. Upon completion of his custodial sentence he undertook a post-secondary studies course at TAFE, completing an IT certificate course of some six months duration in 1998. He undertook an advanced IT certificate six months course in 1999.

16 There is no history of substance abuse.

17 At the sentence hearing, the report of Ms. Kerry Watson, forensic psychologist, dated 18 August 2004 was tendered. I will refer to the report later in this judgment.

Grounds of appeal

Ground 1: adopting a “two-stage” approach to sentencing

18 It is not in dispute that the sentencing judge adopted a two-stage approach to sentencing contrary to the principle enunciated in Regina v. Wong & Leung (2001) 207 CLR 584 per Gaudron, Gummow and Hayne, JJ. at [74] to [76]. There, the High Court criticised an approach to sentencing which involved a mathematical approach involving increments to or decrements from a pre-determined range of sentencing, stating:-

“… that kind of approach, usually referred to as a ‘two-stage’ approach to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.”

19 Gaudron, Gummow and Hayne, JJ. elaborated on the point by stating that such an approach departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong:-

“… we say ‘may be’ is quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. This is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’ …” (at [75])

20 The submission on behalf of the applicant is that the sentencing judge erred in coming to a decision as to the appropriate sentence she would have imposed and then determining the discount that she would apply stating in the remarks on sentence, at p.4:-

“I have taken into account the plea of guilty which was entered at a very early stage. I have reduced the otherwise appropriate sentence by 25% to reflect the offender’s remorse, acceptance of responsibility and a willingness to facilitate the course of justice.”

21 The applicant’s additional submission is that it is not clear to what extent the sentencing judge took into account all the factors required by the provisions of s.16A of the Crimes Act 1912 (Cth) in arriving at the “otherwise appropriate sentence”.

22 In its written submissions, the Crown stated that it did not dispute the matters set out in paragraphs 7 and 8 of the applicant’s outline of written submissions. However, in conceding an error of principle in this respect, the Crown submits that it does not concede that it automatically follows that the court will interfere in the sentence imposed. It contends that in all of the circumstances of the case, both objective and subjective, a lesser sentence should not be imposed: Regina v. Dodd (1991) 57 A. Crim. R. 349 at 354. The Crown also relies in this respect upon the submissions it has made in respect of Ground 3 of the grounds of appeal.

23 The significance or implications of the error in approach of the sentencing judge is a matter dealt with later in this judgment in relating to Ground 3 (the sentence imposed was manifestly excessive). I will accordingly return to Ground 1 at a later point in this judgment

Ground 2: The sentencing judge erred in dealing with the applicant’s mental condition

24 The evidence relied upon by the applicant is the report of Ms. Kerry Watson (Exhibit 1). The author of that report was not cross-examined at the sentencing hearing. The factual material relied upon by Ms. Watson is based upon the applicant’s own account given to her.

25 It is reasonable to accept that the motor vehicle accident in which the applicant was the driver and a friend of his was killed was a traumatic event which had ongoing effects upon him. The extent to which those impaired his capacity to reason and cope with the stresses of life is more problematical. It is sufficient here, without detailing all of the conclusions expressed by Ms. Watson, to say that, based on a clinical assessment on one occasion, the psychologist concluded that the applicant had suffered serious psychological harm including impairment of his emotional functioning and that this contributed to progressive behavioural and emotional difficulties. In particular, what is described as the applicant’s maladaptive behaviour and criminal involvement was said to be a manifestation of the long-term emotional consequence of unresolved emotional turmoil and reactive trauma related symptomatology. Ms. Watson expressed the view that the applicant exhibited symptoms which were consistent with a post-traumatic stress disorder which manifested itself in a wide range of symptoms which are detailed in the report.

26 The submission in support of Ground 2 is essentially that the sentencing judge considered that the psychological report was only of “limited assistance”. The contention is that there was no obvious reason why the matters contained in the report ought to be rejected and yet no findings were made by the sentencing judge one way or the other as to the applicant’s mental condition or specific matters contained in the report. This, it is said, is so, notwithstanding the fact that the sentencing judge expressed the view that the applicant would clearly benefit from some counselling whilst in custody. The submission on behalf of the applicant is essentially that the sentencing judge must have accepted the contents and the findings of the report.

27 Even accepting the submissions in relation to Ground 2 thus far, the critical question remains whether or not the evidence in fact established that the applicant suffered from a recognised mental or psychological condition which, as submitted, rendered him an inappropriate vehicle for general deterrence. Reliance was placed by the decision of this Court in Regina v. Hemsley [2004] NSWCCA 228 at [33] to [36].

28 In relation to this ground of appeal, the following points are noted:-

• Section 16A(2)(m) of the Crimes Act 1914 (Cth) provides that the court, in addition to any other matters, must take into account, as relevant and known to it, “the character, antecedents, cultural background, age, means and physical or mental condition of the person” .

• Statements contained in a history given to a health practitioner are evidence of the facts: s.60 of the Evidence Act 1995 . This, of course, is subject to the statutory discretion in s.136. In this case, there was no application to limit the use to which the evidence may be put in relation to the history given by the applicant to Ms. Watson.

• The expression of opinion by an experienced forensic psychologist that the applicant’s psychological functioning indicates a need for treatment carries an essential implication that there did exist a psychological condition of some kind and of some significance. On a similar point in Hemsley (supra), Grove, J. (at [4]) stated that, on a psychologist’s evidence, a finding ought to have been made to that effect, whether or not there was acceptance of any specific diagnosis proposed by the psychologist.

• Her Honour’s remarks on sentence expressly included an intention to factor general deterrence into her sentence assessment.

• In a case where there is an established impairment of intellectual capacity by reason of mental illness, the offender may not be suitable as a vehicle for the expression of such deterrence: Regina v. Scognamiglio (1991) 56 A. Crim. R. 81.

• It is not the case that persons afflicted by an underlying mental capacity are exempt from any consideration of an element of general deterrence in sentence assessment, but it is necessary to determine whether it was necessary or requisite for consideration to have been given by the sentencing judge as to whether, in the circumstances of this applicant, that element should be included, excluded or ameliorated: Hemsley (supra) at [5].

• There is no indication in the remarks on sentence as to whether or not the sentencing judge accepted or did not accept Ms. Watson’s analysis or conclusions in determining sentence or, if they were accepted, whether some weight was considered appropriate in the circumstances.

29 In the Crown submissions, it is contended that certain of the matters contained in Ms. Watson’s reports were inconsistent with other evidence in the proceedings and that it must be borne in mind that the applicant was not accepted in relation to his sworn evidence in certain respects and that the sentencing judge found that “the offender is now trying to minimise his role” (ROS p.2).

30 I do not consider that the matters of detail contained in Ms. Watson’s report are to be so readily dismissed, although it is necessary to take into account that the sentencing judge was unable to determine where the truth lay concerning the circumstances in which the applicant travelled overseas, given that he had lied to police on certain matters.

31 A difficulty in relation to this matter is that whilst the sentencing judge did have regard to certain matters referred to in the Ms. Watson’s reports and made reference to the psychological consequences arising from the death of the applicant’s close friend, there is no finding or conclusion expressed as to whether and the extent to which those psychological effects impaired the applicant’s capacity, in particular, his judgment in agreeing to enter into the illegal activity which constituted the offence. It will shortly be necessary to review Ms. Watson’s opinion on that matter.

32 In Hemsley (supra), Sperling, J. (at [26]) stated that there was no obvious reason in that case for rejecting the history given to the psychologist, given that no objection to the tender of the report had been made and nor had any application been made to limit the use of the report. Further, there was no obvious reason for rejecting the psychologist’s diagnosis concerning the applicant’s mental state or his opinion concerning the significance of it in relation to the offence, in the absence of any challenge to the opinion that respect. Similarly, in the present matter, Ms. Watson stated:-

“Accordingly, Mr. Pham’s history of maladaptive behaviour and criminal involvement is seemingly a manifestation of the long-term emotional consequence of unresolved emotional turmoil and reactive trauma related Symptomatology. The protracted nature of Mr. Pham’s distressed psychological functioning indicates a necessity of an integrated approach to treatment in order to help him cultivate more adaptive coping/defensive patterns, and subsequently live a more functional life.” (p.6) (emphasis added)

33 Accordingly, on the state of the evidence, and in the absence of challenge, some weight had to be given to this expression of opinion, given its terms and given that there was no obvious reason for rejecting the significant elements of history relied upon by Ms. Watson and no obvious reasons for rejecting her diagnosis or conclusion.

34 The second ground of attack, in essence, a failure by the sentencing judge to take into account the mental condition of the applicant pursuant to s.16A(2)(m) is made out. However, in the nature of sentencing, that conclusion does not necessarily lead to the result that this Court must intervene. It is necessary to determine the significance of the failure to take that matter into account in determining the sentence to be passed.

35 The failure to take into account an offender’s mental condition as a mitigating factor may arise in one or more of three ways:-

(a) First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Hemsley (supra) at [33]; Regina v. Henry (1999) 46 NSWLR 346 at [254]; Regina v. Jiminez [1999] NSWCCA 7 at [23]; Regina v. Tsiaras (1996) 1 VR 398 at 400; Regina v. Lauritsen (2000) 114 A. Crim. R. 333 at [51]; Regina v. Israil [2002] NSWCCA 255 at [23] and Regina v. Pearson [2004] NSWCCA 129 at [43].

(b) Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Regina v. Pearce (NSWCCA, unreported 1 November 1996); Regina v. Engert (1999) 84 A. Crim. R. 67 at 71 per Gleeson, CJ.; Regina v. Letteri (NSWCCA, unreported 18 March 1992); Israil (supra) at [22]; Pearson (supra) at [52]; and Hemsley (supra) at [34].

(c) Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Hemsley (supra) at [35]; Tsiaras (supra) at 400; Jiminez (supra) at [25] and Israil (supra) at [26].

36 It is clear from the remarks on sentence that the sentencing judge did not take the applicant’s psychological or mental condition into account on any one of these aspects. However, I do not consider that the second or third aspect set out above is applicable or relevant to the circumstances of the applicant. I do, however, consider that the evidence, although not directly establishing the first aspect (a) above, does establish that the tragic events surrounding the death of the applicant’s friend due to the applicant’s own actions left a psychological impairment of a significant kind as the sentencing judge herself recognised. In this sense, it was a powerful subjective factor that had to be taken into account in the sentencing determination, but ultimately was not.

37 In relation to his involvement in the 1996 motor vehicle accident the following are noted by Ms. Watson:-

• There was evidence of immediate and rapid onset of symptoms following the motor vehicle accident including recurrent or intrusive recollections/flashbacks, psychological distress, feelings of detachment and other symptoms which were chronic in nature which impacted on psychological functioning.

• The psychological distress occasioned by the motor vehicle accident produced personality symptoms that rendered him a highly vulnerable individual with little psychological resilience or ability to deal with problems, with a propensity to escape them in maladaptive and risky behaviour.

• Research into clinically distressed psychological functioning establishes a correlation between maladaptive behaviour and impaired coping capacity, rather than arising from criminal motivation.

• Impairment of psychological functioning can contribute to, inter alia, an impaired capacity to reason and other described symptoms which may lead to increased maladaptive behaviour.

38 Based on the assessment, Ms. Watson’s opinion that the applicant’s history is seemingly a manifestation of unresolved emotional turmoil and reactive trauma related symptoms is uncontradicted.

39 On this evidence, the mandate or requirement specified in s.16A(2)(m) cannot be ignored and should have been identified as a mitigating subjective factor in the sentence determination.

40 I will return to the significance or implications of the sentencing judge’s failure to deal with this mitigating factor along with Ground 1 in the discussion on Ground 3, to which I now turn.

Ground 3: the sentence imposed was manifestly excessive.

41 In the applicant’s written submissions, it is contended that the sentence imposed on the applicant was manifestly excessive on the basis of two propositions:-

(a) That the sentencing judge’s starting point was too high for the circumstances of the offence.

(b) Insufficient weight had been given to the applicant’s mental condition as discussed in Ground 2.

42 The applicant has submitted that, taking into account the 25% discount on what was “the otherwise appropriate sentence”, indicates that the starting point of the head sentence was 12 years. In support of the applicant’s submissions, reliance is placed upon:-

(a) The sentencing statistics, making due allowance for the repeal of s.16G of the Act.

(b) That the objective facts concerning the offence indicate it was towards the low end of what has been described as the “mid-level traffickable quantity” for a drug of this type: Wong & Leung (1999) 48 NSWLR 340 at 366. This category has been described as being between 200 grams and one kilogram of heroin.

43 The Crown relies, in its submissions, upon dicta of Wood, CJ. at CL. in Regina v. Bezan (2004) 147 A. Crim. R. 430 at [24] and observations of Spigelman, CJ. in Wong & Leung (1999) 48 NSWLR 340 at 361 ([111] to [112], [129] and [132]). In reliance on the principles therein stated and the suggested range set out in Wong & Leung and the repeal of s.16G, the Crown submitted that the approach taken by the sentencing judge disclosed no error of principle.

44 In evaluating the competing submissions, there is some utility in an examination of the sentencing outcome in other cases involving offences under s. 233B(1)(b) of the Customs Act with respect to what has been termed “mid-level traffickable quantity” of heroin.

(a) Regina v. Bezan

45 The offender was convicted of one count of importing a traffickable quantity of heroin contrary to s.233B(1)(b) of the Customs Act. The net pure weight of the heroin was 260 grams and had a potential street value as high as $900,000. He was found to have been the importer. An appropriate finding was made that the amount involved was “towards the lower end of that scale (two grams and 1.5 kilograms) and it was certainly well into that applicable scale”. The offender was an Australian citizen aged 44 years and had no prior convictions. The offence took place well after the repeal of s.16G took effect and no consideration had been given to the consequences of its repeal.

46 This Court substituted, on a Crown appeal, a sentence of imprisonment of eight years and a non-parole period of five years.

(b) Regina v. Mas Rivadavia [2004] NSWCCA 284

47 The charge was a conspiracy to import a prohibited substance of 708.5 grams of pure heroin into Australia pursuant to s.233B of the Customs Act. A sentence was imposed upon two respondents of six years and nine months with a non-parole period of four years and three months. The Crown appealed. The two respondents in question had been recruited as the principals lieutenants and there was no significance between them in terms of criminality, one being described as in the nature of a courier in the hierarchy of a drug importing organisation. They were aged respectively 21 years and six months and 22 years.

48 The respondents were re-sentenced to a term of imprisonment of eight years and three months and an non-parole period of five years and three months. This Court had regard to the time that had passed since the sentence was imposed with the respondents having completed more than half of their non-parole periods and the discretion which applied to Crown appeals.

49 In Bezan (supra), Wood, CJ. at CL. set out, in a table form, a summary of cases decided before the repeal of s.16G involving both importers and couriers of traffickable quantities of heroin, two of which involved sentences imposed after trial. The table is reproduced below:-

Case Date Plea Heroin Head sentence/
NPP (years)

Maddocks 12/12/90 G 44.5 g 5/4

Maunchukingkan 20/12/90 G 455.4 g 7.5/5.5

Ndubuis 27/03/92 G 194.7 g 6/4

Gurung 22/05/92 G 151 g 6/4.5

Turner 21/05/93 G 686.5 g 7.5/4.5

Sanna 21/05/93 NG 863 g 9/5
Rachid 13/08/93 G 105 g 5.5/4

Blass 28/02/94 G 585 g 10/6 reduced to 8/6 for

G plea and assistance;

further reduced to 6/4

for future assistance

Lawless 24/6/94 G 345.2 g 5/3 (possession)

El Khoury 30/09/94 G 99.9 g 6/3.5

Nguyen

6/10/94 NG 250.2 g 8/5

Chaaroui 4/11/94 G 92.8 g 6/4

Schrei 24/11/95 G 18.4 g 5/3.5

50 The following observations are made on the sentence imposed in this matter in light of guidance to be obtained from the Wong guideline judgment and the sentencing results in Bezan (supra) and Mas Rivadavia (supra):-

(a) The sentencing judge’s starting point was high, even very high (12 years before discounting for an early plea).

(b) There is a need for a sentencing judge who strikes a comparatively high sentence to undertake a “check” examination by referring to the relevant guideline judgment (with allowance for the repeal of s.16G of the Crimes Act (Cth) ) and taking some regard to pre and post s.16G sentences for similar offences. The remarks on sentence fail to disclose any such “check” in this case.

`(c) The amount of pure heroin in Mas Rivadavia (708.5 grams) imported by the respondents as the principal’s lieutenants was considerably greater than in this case. The respondent was re-sentenced by this Court to eight years and three months with a non-parole period of five years and three months . In this case the respondents entered pleas of guilty on the day their matters were listed for trial, unlike the present case where there was a plea entered “at a very early stage” .

(d) In Bezan , the pure weight of heroin was 260 grams and had a street value of $900,000. This Court re-sentenced the respondent to eight years with a non-parole period of five years .

(e) The heroin by weight in this case (244.6 grams) was at the lower end of the mid-level traffickable quantity of 200 grams – one kilogram – namely, 24.46% of that range. The weight of the narcotic is given statutory significance. The “particular weight” of narcotic involved can have significance in fixing the sentence to be imposed on an offender Wong v. The Queen (2001) 207 CLR 584, 609.

(f) Plainly, the sentence determined in this case of nine years with a non-parole period of five years and six months is inexplicably higher than any of the abovementioned references points or benchmarks. There is no identifiable explanation as to why this case should be ranked at such a high level.

51 In turning to the matters relevant to the objective seriousness of the offence involved in the present matter, it is relevant to have regard to the following:-

(a) the applicant’s role was appropriately to be dealt with on the basis that he was a low level drug importer. This is not inconsistent with the approach taken by the sentencing judge;

(b) the quantity of the drug in comparison to cases referred to above;

(c) the offence was committed in somewhat amateurish fashion.

52 In relation to subjective factors:-

(a) there was clear evidence of contrition and shame to himself and his family;

(b) the impact of his psychological condition consequent upon the 1996 motor vehicle accident.

(c) The applicant was found to have reasonable prospects for rehabilitation, particularly in light of the continued support of his family.

53 An analysis of the objective and subjective factors, the provisions of s.16A(1) and (2), the identified error in the sentencing determination (Ground 1), the failure to bring into account post-traumatic effects of the 1996 accident and the application of relevant sentencing principles indicates that there is a need for appellate intervention. In that respect the following matters are noted:-

• The sentence imposed of nine years imprisonment with a non-parole period of five years and six months , having regard to the range in Wong – “mid-level traffickable quantity” and comparative sentences, is manifestly excessive.

• The identification of specific error with respect to Ground 1 and the failure to have due regard to the range in Wong and comparative sentences provide the explanation for what is a manifestly excessive sentence.

• The provisions of s.16A(2)(m) of the Crimes Act 1914 (Cth) require appropriate allowance be made for the psychological condition established by the evidence.

54 I consider that the sentence of imprisonment imposed should be set aside. I am of the opinion that the applicant should be re-sentenced to imprisonment for a period of eight years with a non-parole period of four years and six months.

55 I propose the following orders:-

(a) Grant leave to appeal against sentence;

(b) Appeal allowed;

(c) Sentence set below quashed;

(d) In lieu thereof, sentence the applicant to imprisonment for eight years to commence 3 May 2004 and to expire on 2 May 2012;

(e) Set a non-parole period four years and six months to date from 3 May 2004 and to expire on 2 November 2008.

(f) The applicant will accordingly be eligible for release on parole on 2 November 2008.


**********

12/09/2005 - Wrong judgment date inserted on cover sheet - Paragraph(s) N/A