R v Quesada

[2001] NSWCCA 216

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     Regina v Quesada [2001]  NSWCCA 216

FILE NUMBER(S):
60034/00

HEARING DATE(S): 16 February 2001

JUDGMENT DATE:    30/05/2001

PARTIES:
Regina v Edith Quesada

JUDGMENT OF:        Wood CJ at CL McClellan J Smart AJ   

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):             99/1/1/0124

LOWER COURT JUDICIAL OFFICER:        Twigg DCJ

COUNSEL:
(A) R D McCrudden
(R)  R F Sutherland

SOLICITORS:
(A)  Kenneth McGee
(R)  C'wealth DPP

CATCHWORDS:
Drug importation - admissibility of psychologist's evidence - not dependent on specialised knowledge - direction as to lies sufficient - sentence - non-parole period excessive

LEGISLATION CITED:
Evidence Act 1995
Customs Act 1901

DECISION:
Appeal against conviction dismissed - leave to appeal against sentence granted - appeal against sentence allowed in part - set aside the non-parole period of seven years and in lieu therof order that the non-parole period to be served by the appellant be one of six years commencing on 9 December 1998 and ending on 8 December 2004 - otherwise appeal against sentence of imprisonment for ten years dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60034/2000

WOOD CJ at CL
  McCLELLAN J
  SMART AJ

Wednesday, 30 May 2001

REGINA      v      Edith QUESADA

JUDGMENT

1      SMART AJ:   On 3 August 1999 the appellant was convicted by a jury of being knowingly concerned in the importation into Australia of a prohibited import to which s 233B of the Customs Act 1901 applied, to wit narcotic goods consisting of a quantity of cocaine being not less than a trafficable quantity of cocaine. On 23 December 1999 she was sentenced by Judge Twigg QC to 10 years imprisonment with a non-parole period of 7 years. The appellant appeals against conviction and seeks leave to appeal against the sentence imposed upon her.

2      On 8 December 1998 Ms Marie Madero entered Australia at Sydney Kingsford Smith Airport on a flight from Buenos Aires. Her luggage consisted of a small case and a backpack which had been wrapped in green plastic.

3      A customs officer examined her luggage as part of a routine check. The backpack seemed unusually thick and heavy around the back support area and the straps. The backpack was x-rayed and as a result Ms Madero was taken to an interview room in the Customs Hall so that her luggage could be searched and weighed.

4      The Federal Police took over and placed her under arrest. The backpack was examined.  Two packets were found in the shoulder straps, two in the waist straps and two in back lining of the backpack. One of the packets was examined and found to contain an amount of compressed powder. Chemical tests conducted upon the powder indicated the presence of cocaine. Two of the packets were then returned to the lining of the backpack. Four packets were constructed to be of a similar appearance and weight as those found in the shoulder and waist straps and were substituted for the packets originally found there. The backpack was reconstructed to its original appearance. The four packets found in the shoulder and waist straps were retained by the police.

5      The powder found in the six packages was later analysed and found to be cocaine with a purity of approximately 64 per cent. The amount of the powder was approximately 2.04 kilograms and the amount of pure cocaine was estimated to be 1,306.8 grams.

6      Shortly after her arrest, Ms Madero was interviewed by Federal Police. She agreed to assist the police by taking part in a controlled delivery of the backpack to anybody who might contact her. Ms Madero was taken by police to a room at the Sheraton on the Park Hotel in Sydney. The reconstructed backpack was taken to the hotel and placed in the room with Ms Madero. Federal police occupied the adjoining room.

7      About 11 pm on 8 December Ms Madero answered a phone call made to the hotel room and spoke in Spanish. She received another phone call about 9.58 am on 9 December and again spoke in Spanish. As a result of that phone call Ms Madero wrote a telephone number down on a piece of paper. About 10.37am Ms Madero rang that number and spoke to someone in Spanish.

8      A short time later the appellant came to the hotel room. After knocking on the door she was admitted into the room by Ms Madero. Unbeknown to both women, they were videoed by Federal Police. The video was admitted into evidence before the jury but without a sound track. The video showed Ms Madero taking items of clothing out of the backpack and laying them on the floor. While she was doing this, the appellant entered into the picture with her arms folded. After emptying the backpack Ms Madero went out through a doorway. The appellant moved out of the picture and then came back again. She picked up the backpack and put it down. Ms Madero re-entered the picture and picked up the backpack. The two women then walked out of the picture. The appellant was arrested in the company of Madero just after they left the hotel room.

9      Ms Madero gave evidence before the jury.  She had been charged with an offence of being involved in the importation of the cocaine but had been acquitted by a jury. Ms Madero was a school teacher who usually resided in New York. She left that city on 1 December 1999 and travelled to Panama City.  She met a man there named Rodrigo who gave her the backpack and asked her to deliver it to his son, John, in Australia together with a pair of jeans which were in the backpack. She sent her own luggage back to New York retaining a few personal items which she placed into the backpack. The backpack was wrapped in plastic at Panama City airport and checked in as her luggage.

10    Ms Madero had arranged accommodation for herself for 8 December at the Sheraton on the Park while she was in New York. She told Rodrigo where she would be staying in Sydney.

11    The first telephone call Ms Madero received at the hotel on 8 December was from the person who was staying in her apartment in New York. This person had arranged for Ms Madero to meet Rodrigo in Panama City so that he could take her sightseeing. The person was also aware of where and when Ms Madero would be staying in Sydney. She rang Ms Madero again at 9 am on 9 December and gave her a telephone number which Ms Madero noted down. When Ms Madero rang that number she spoke to a male.

12  In examination-in-chief Ms Madero gave evidence that when the appellant arrived at the hotel room she introduced herself. Ms Madero asked her where the person was to whom she had spoken on the phone and the appellant replied, “He’s downstairs waiting in the car for us, we’re going sightseeing”. Ms Madero complained that she was feeling unwell because of surgery which she had undergone recently. Ms Madero took her personal items out of the backpack and attempted to give the backpack to the appellant. The appellant said, “I don’t speak English, I fear that I may be confronted by the hotel staff thinking that I might be leaving without paying the bill. Would you come downstairs with me?” Ms Madero complained that she was ill but the appellant again indicated that she feared that she would stopped by the hotel staff. The appellant told her “Just go down stairs with me, give me the backpack, kiss me goodbye and I will go home”. Ms Madero agreed to go with the appellant.  Ms Madero first went to the bathroom. When she came out, she picked up the backpack and left the room with the appellant.

13    When Ms Madero went into the bathroom the appellant picked up the backpack and placed it down again. The Crown case was that the jury would find that she had picked up the backpack so that she could assess its weight in order to ensure that the cocaine was still inside it.

14    In cross-examination Ms Madero gave evidence that after the appellant introduced herself she said that she was here to pick up the backpack. She denied that she had brought up the subject of the backpack by asking the appellant to take it for her.

15    After the appellant was arrested, she was interviewed by Federal Police with the aid of an Spanish interpreter. During the interview the appellant told police that she had come to Australia from Colombia in January 1997 leaving her two children behind. She had flown to Australia with two persons, one of whom was a friend Nicholas Riuz. She was attempting to obtain a residency visa so that she could bring her children to Australia.

16    When asked her reason for attending the Sheraton on the Park Hotel, the appellant explained that Ruiz had received a phone call from a female, named Mary, who had come as a tourist. She had been given his telephone number so that the appellant and Ruiz could take her out sightseeing. She said that this was a common practice of Colombian people. She went to the hotel with Ruiz and, as he tried to park the car, she went up to the room. The appellant said that when the woman complained she was ill, the appellant suggested that they would take her somewhere so that she could get some tablets to stop her vomiting. The appellant told police that while she was there, the woman went into the toilet to be ill.

17    The appellant acknowledged that the person carrying the backpack when they were stopped by police was the woman to whom she had spoken in the hotel. When she was asked why this woman was taking the backpack to Nicholas Ruiz, the appellant replied:

"I don’t know…indistinct… as we were leaving I notice that she’d picked something up. I didn’t notice it was the backpack or- or what it was, whether big or small, I just noticed. She grabbed it as we were leaving."

18    The appellant told the police that she had never touched the backpack and she denied that the woman Mary had ever asked her if she could take the bag for her. She said that she had no idea what was in the bag. When asked what she did when the woman went to the toilet, the accused answered, I went for a walk around the room, nothing else.

19    The appellant gave evidence at the trial. She said that in Colombia she was working for the municipal government. She use to visit towns and villages to promote a health insurance scheme. While carrying out this employment she was approached by member of a guerilla organisation dedicated to the overthrow of the government. She was asked to supply information connected with the elections. She was told to co-operate and that they knew she had two children and a mother. She took this as a threat that they could kidnap the children or do something to herself or her mother. She provided them with false information. She decided to come to Australia because she was frightened. She left her children with her mother because she had nobody to receive her in Australia. She came with Ruiz because they happened to be on the same flight.

20    She told the jury that she went to the hotel with Ruiz to help another Colombian by picking her up to take her around the city and see what she would need. The appellant said that she did not anticipate doing anything with any luggage. After she entered the room and introduced herself the woman, whom she knew as Mary, said she was feeling ill and that she felt like vomiting.

21    She said that Mary went to the backpack and started removing her clothing from it. While she was doing this, she kept repeating that she was very sick. The appellant told her that they could go somewhere if she wanted to get some medicine. The woman kept saying that she was very sick and she did not want to go out. She then asked the appellant whether the appellant could take her luggage. The appellant said that she could not take the backpack out herself because people from the hotel would be suspicious because she was not staying at the hotel.

22    The appellant told the jury that when the woman went into the bathroom, the appellant lifted up the backpack. When asked why she had done this the appellant answered, “I don’t know out of curiosity”. When asked  what she was curious about, the appellant answered, “I thought she was going to, unpacking that to give it to me to take it away, and I don’t know. That is what I thought at the time.”

23    The appellant gave evidence that after she was arrested by police, one of the officers spoke to her in an aggressive manner which frightened her. After that conversation she felt very scared. She said that during the interview with police she was very nervous because she was getting involved in something that she did not know about. She admitted that she lied in the interview to police when she said that she did not touch the backpack. She was asked why she lied and she said, “I was very scared and I was protecting myself for being involved in this problem.”

24  The appellant admitted that she also lied when she told police that the woman had never asked her to take the bag for her. When asked why she lied in that answer, the appellant said, “For the same reason I was very scared, very frightened and everything related to the backpack scared me.”

25    The appellant called evidence as to character from two persons who had employed her and as to the procedure for taking samples of the powder found in the backpack. That evidence is not presently relevant.

26    Two grounds of appeal have been pressed. The first asserts that the trial judge was in error in refusing to admit evidence of a psychologist whom the defence wished to call of the appellant’s state of mind at the time she lied to police about touching the backpack.  The second asserts that the judge was in error in directions he gave the jury in relation to lies.

Rejection of evidence from a psychologist

27   After the accused had given evidence, counsel for the Crown stated that he would object to evidence being called by the defence  from a psychologist in terms of her report.

28    The judge was shown the report and defence counsel was asked to indicate what evidence he proposed that she should give. The transcript records counsel as saying: (T143)

"… she spoke with the accused at some length and conducted some personality testing … she had taken a history and to touch upon … the subject headings of that history, but not to re-give the history … it really starts to run into the evidence … it's page 4 … circumstances surrounding her arrest, to put a number of propositions to the witness … as to, in brief, what the accused has said happened during the day that might turn upon aspects of her likelihood to be truthful or not, to deal with the fact that the interpreter at the top of page 5 of the report … did an assessment, and then to deal with her conclusions.".

29  Counsel was asked to indicate what conclusions he was going to lead from the witness. Reference was made to this passage from the conclusions of the report:

"She felt somewhat intimidated by police, particularly as she had never been arrested before. The fear was that she would be implicated in something she had nothing to do with, and she did not really know how to explain it. She said that fear motivated her to deny picking up the bag, and this was a form of self protection.

It is feasible that someone who has never had cause to be interviewed by police would be entirely overwhelmed by the situation, particularly as Ms Quesada had been subject to threats and intimidation back in her home country."

30   Counsel for the accused stated that he wanted to go one step further  and elicit from the psychologist that "somebody who has the background and who goes through what Ms Quesada says she went through on that day (would) be likely to have possibly a different reaction to questioning than might somebody who was well versed with Australian culture and who was entirely familiar with the English language".  Counsel further submitted that the psychologist's evidence would go to matters beyond the normal experience of a juror.

31    In the course of his submissions in answer to the those of the Crown, defence counsel said:

"…just as in any matter where a person's state of mind comes before a jury, they are entitled to have the assistance of some expertise when it is within a proper province of expertise, and I’d suggest that this is something that is outside of their normal experience and that there can be no question of  prejudice to the Crown because the witness will be asked to talk about only things that Ms Quesada has already given in evidence but to do so in an expert way - in a way that pulls together some opinion that is an expert opinion."

32 The judge rejected the evidence firstly because there was no basis for the opinion evidence on the motivation for the particular witness to lie in the situation in which she did. The judge thought that it was a matter for the jury to determine whether the motive of the appellant to lie to police was because of fear or self protection arising from the fact that the appellant had been intimidated by persons in Colombia and that she had never been questioned by police before. Further he held that even if it were admissible he would reject the evidence under the discretion contained in s 135 of the EvidenceAct 1995. He viewed the admission of the evidence as unfairly prejudicial to the Crown.

33    It was not in issue that the appellant had told lies to the police.  She admitted in her evidence that she had done so.  The issue was why had she lied?  Was it for the reasons she gave or was it because she was conscious of her own guilt and wanted to rebut any circumstance which indicated that she was involved in the drug importation.

34  The report of the psychologist indicates that she had interviewed the applicant on one occasion. The report sets out the appellant’s personal; background including an account of the applicant being threatened by members of a guerilla movement similar to that given by the appellant in evidence before the jury.  The report refers to the physical  and emotional health of the appellant at the time of the interview and her relationships with her former husband and her children.

35    The report refers to the circumstances of the appellant’s arrest. It refers to her being scared during the interview with police which prompted her to lie to the police about touching the backpack. It reports that the appellant was so worried and upset at suddenly being placed in such a situation that she had no idea how to deal with it.

36    The psychologist administered two psychological tests to the appellant designed to assess  the severity of her depression and anxiety at the time of the consultation.  She had mild symptoms of anxiety and depression, as might be expected of a person in gaol.

37    In Murphy v The Queen (1988-1989) 167 CLR 94 the High Court gave consideration to whether certain evidence of a psychologist was admissible as expert evidence. It was anticipated that the expert would say that the accused had a limited capacity to express himself. The evidence was to be used to suggest that certain expressions attributed to the accused by the police were unlikely to have been used by him. The Court held by a majority of three to two that the proposed evidence was expert evidence and should not have been rejected. At 111 Mason CJ and Toohey J held that before the psychologist's evidence could be admitted there had to be some identification of the expertise he could bring to bear. They continued, "in particular, the trial judge had to be satisfied that the matters to which he would speak were outside the experience and knowledge of the judge and jury … it does not follow that because a lay witness can describe events and behaviour, expert evidence is unavailable to explain those events and that behaviour. Expert opinion will often be built upon lay observations " (p112).

38  At 126 Deane J held that the psychologist's evidence "would have been relevant expert evidence given upon a subject which was properly susceptible of expert evidence …".  At p 127 Deane J said:  "Nor is it an acceptable answer to assert that expert evidence is not admissible on the very question which the jury had to decide".

39  Brennan J at 122 took the view that it had not been shown that the psychologist had the expertise to say whether a subject understands particular words and phrases or to assert the unlikelihood of the subject's use of particular words and phrases.  Dawson J at 130 defined the relevant principle thus:

"… evidence which is put forward to tell the jury something that is within their own knowledge or experience is not helpful and not admissible for that reason".

40    Since Murphy the Evidence Act 1995 has been enacted. I would not question the relevance of the evidence - see s 55. Section 76 provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 79 reads:

"If a person has specialised knowledge based on the person's training, study or experience the rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge".

Section 80 reads:

"Evidence of an opinion is not inadmissible only because it is about

(a)a fact in issue or an ultimate issue, or

(b)a matter of common knowledge".

41  I return to the facts.  The critical evidence was contained in the video tape.  That demonstrates a focus by the appellant on the large apparently empty backpack after the clothing had been removed in her presence.  She was then seen looking around, as if to check that nobody was watching, and picked up the empty backpack in what appears to be a weighing motion.  The appellant, despite the stated illness of Ms Madero, prevailed upon her to carry the backpack down to the foyer where she was to give the appellant a kiss before handing the backpack over and permitting the appellant to take it away.

42    The appellant conceded in her evidence that she had touched the backpack by lifting it up. She said that she did this out of curiousity.   She said that she lied in saying that she did not touch the backpack   She said that she lied because she was very scared and was protecting herself "for being involved into this problem".

43    The appellant also conceded that her answer that she had not at any time asked Ms Madero to take the bag (backpack) was not truthful.  The appellant said that she gave an untruthful answer because she "was very scared, very frightened and everything related to the backpack scared me".  She complained that one of the police officers had been rude and aggressive towards her at the hotel. She said that the truthful answer would be that Ms Madero asked her to take the backpack.  The appellant conceded in cross-examination:

"Yes I told her to come downstairs with me to kiss me goodbye so people wouldn't think I was leaving without paying or taking a bag which wasn't mine".

44    There was evidence from the appellant that she wanted to stay in Australia and that she was fearful for the safety of herself, her mother and her two children because of threats and intimidation.

45    A jury and indeed laymen generally would appreciate that a citizen confronted by a number of police officers, taken to a police station and accused of serious crime is likely to be scared and apprehensive and that a lady with the appellant's background who is seeking permission to stay in Australia was likely to be even more scared and apprehensive.  She could be overwhelmed.  So much is obvious and a matter of common sense.  They would also appreciate her language difficulties.  She gave her evidence through an interpreter.

46  This is not an area where it could be said that a psychologist has specialised knowledge based on that person's training, study or experience.  Any opinion she expressed in the area in question could not be said to be based on such specialised knowledge.

47   In the psychologist's report it is recorded that the appellant stated that she endeavoured to and remained outwardly calm.

48  In the present case the jury had the benefit of seeing the events in the hotel room and the interview between the police and the appellant.  That interview in total was relatively short although there were two interruptions to it, one of which was lengthy.  During this latter period the appellant spoke to a friend and a solicitor.  The police asking the questions do not seem to have been aggressive.  The jury also had the benefit of seeing the appellant give evidence in chief and under cross-examination.

49    The evidence of the psychologist was not admissible.  Further, even if it had been admitted it would have made no difference, the jury was able to assess the explanations offered by the appellant based on compelling primary factual materials.  I would not accept that a psychologist (or for that matter a judge) has some special knowledge or skill which enables that person, over and above the rest of the community, to say why an accused told admitted lies.  It is a conclusion that has to be reached after considering the facts and circumstances of the particular case.

50   The judge correctly rejected the proposed evidence of the psychologist.

Direction As to Lies

51  The judge at SU 22 said:

"I turn now to more detailed consideration of lies by the accused as corroboration.  The prosecution alleges that the accused has told lies to the investigating police.  The accused admits she told those lies".

52  The judge then directed the jury's attention to the lies told and continued:

"The evidence must reveal a deliberate lie, not an error or untruth arising from confusion of the accused or told inadvertently.

And secondly the lie must relate to a material issue, that is a fact or circumstance connected with the offence.  And thirdly it must be clearly shown to be a lie by evidence other than that to be corroborated.

You can then, if you are satisfied about all those matters, and the prosecution says you can easily do so, you can take such a lie into account if you are also satisfied that it reveals a knowledge of the event or some aspect of it and because of a realisation of guilt or fear of the truth which is for you to determine.  There may, of course, be reasons for telling lies from little children who do not know precisely what it is to children of a higher age who know what it is but not quite the consequences, to those who have another reason for lying.  You will recall the accused said to you that her reason was because she was afraid of becoming involved. She was scared she said.  She did say to you in her evidence that she did pick up the back pack and touch it and she said when asked why both by Mr Washington and in cross-examination by the prosecutor, 'I do not know it was out of curiousity'.  She said that more than once to you did she not in her evidence that her reason for checking it was because she was frightened.

She said 'I was getting involved in something that I did not know about' and she said, I am quoting from the evidence at page 106 ladies and gentlemen where Mr Washington asked her why make the answer to question 128.  'I was very scared and I was protecting myself for being involved into his problem'.   And she says in regard to question 161, I am reading from page 108 of the official transcript: 'Why did you give an untruthful answer?  For the same reason I  was very scared, very frightened, and everything related to the back pack scared me.'  And she says the same about the answer to question 162.

Well I have told you about the three steps as to how you may test the relevance of lies of an accused person in a situation such as she is.  You must be satisfied beyond reasonable doubt that the accused lied because she believed that if she were to tell the truth the truth would convict her.  Another way of putting that is to say that she was unable to account innocently for the facts with which she was confronted.

Sometimes people tell lies out of panic not necessarily restricted to fear.  It may be to protect some other person.  It may be to protect herself in this case.  But because she is concerned about misconduct other than the offence with which she is charged here, so the relevance of the material issue must be knowledge of guilt of this offence."

53  The appellant complained that the judge had failed to give a direction that if the jury accepted that a reason for the lie was panic or to escape an unjust accusation, to protect another or to avoid a consequence extraneous to the offence (or a reason of that kind) the jury could not regard the lie as an admission.  Edwards c The Queen (1993) 178 CLR 193 at 211.

54  However, as earlier mentioned  the judge said:

"Sometimes people tell lies out of panic not necessarily restricted to fear.  It may be to protect some other person.  It may be herself in this case.  But because she is concerned with misconduct other than the offence with which she is charged here, so the relevance of the material must be knowledge of guilt of this offence".

55    That passage was criticised for lack of clarity.  I think that from this passage, coupled with the remainder of the directions on lies,  the jury would have understood that they had to consider whether the lie was told as a result of consciousness of guilt or for some other reason.  The jury was aware of the evidence of the appellant that she was worried about her safety and that of her family.  She would have wished to avoid being held responsible for any conduct which might affect her being able to remain in Australia.

56    In his directions as to lies the judge put the explanations of the appellant for telling the lies fully.  They were that she was very scared, very frightened and attempting to protect herself from becoming involved.  She did not tell them because of a realisation of guilt or fear of the truth.  The jury would have understood that if they accepted her explanation they could not rely on the lies as an admission of guilt.  They had to be satisfied of the matters specified  by the judge before they could rely on the lies as evidence of guilt.

57  The directions as to lies were sufficient.  The circumstances elicited at the trial did not require the judge to go further.  He was not asked to do so by defence counsel.

58   The appeal against conviction must be dismissed.

Sentence

59  The appellant contended that the sentence was too severe.  The appellant primarily contended that the non-parole period of 7 years was too high.

60    The offence proven involved not less than a trafficable quantity of cocaine, namely,  1306.8 grams of pure cocaine.   In R v Wong & Leung (1999) 48 NSWLR 340 at 366 this Court promulgated a guideline judgment. It held, amongst other things, that for a high range trafficable quantity of cocaine the appropriate head sentence lay in the range of 7 years to 10 years for couriers and persons low in the hierarchy of the importing organisation. For cocaine the high range trafficable quantity is 1 kilogram - 2 kilograms. In terms of quantity the amount involved is in the lower third of the high range trafficable quantity. As pointed out in Wong & Leung quantity is a critical factor.  It was conservatively estimated that the street value of the cocaine was between $A790,000 and $A950,000.

61  The judge made these findings:

"The jury's verdict  indicates that the prisoner was part of the preconceived plan to import into Australia the cocaine contained in the backpack.  The prisoner's role was to pick up the cocaine from Marie Madero at her hotel and deliver it to persons unknown who would sell and distribute the cocaine in Australia.  To avoid detection, the prisoner told Marie Madero to carry the backpack out of the hotel room and give it to her in the foyer of the hotel.  The prisoner's request that Marie Madero kiss her in the foyer was a signal to persons unknown that the backpack containing the prohibited substances had been safely imported into Australia.  Further, the prisoner's lies during her record of interview that she had never touched the bag was a deliberate attempt to conceal her involvement in the importation into Australia of the cocaine." 

62  The judge held that the precise nature of the involvement of the appellant in the importation was not fully known.  He said that the circumstances of the offence warranted a greater head sentence than 10 years.  That view is incorrect.

63    The judge stated that in determining the term of imprisonment and the period of non-parole he had taken into account the special circumstances of the prisoner and her family.

64    As to the appellant's subjective features it appears that she is now 37 years of age.  She is a single mother with two children now aged about 11 and 8 who live with the appellant's mother in Columbia In a house owned by the appellant and subject to a mortgage.  The appellant's mother is aged and suffering from degenerative arthritis.

65    The judge found that there was "ample detail of the prisoner's involvement in the guerilla movement in the Colombian National Liberation Army".  She was "forced to spy for them under threat to the point where she left Columbia to come to Australia in January 1997, significantly meeting Ramirez at the airport overseas and taking up with him in Australia".  Ramirez was higher in the drug organisation in December 1998.

66  The judge stated that she was tired, experienced disturbed sleep, was moderately depressed and needed counselling. She was not suffering from any more serious psychiatric condition.

67    The judge held that there was no evidence that the children were not receiving proper care or not attending school.  Despite the problems with the mortgage payments the judge thought that friends would help and that the appellant's mother and the children would not end up on the street.  The judge thought that the family difficulties were no more than the ordinary consequence of a prisoner being committed to prison for a serious offence.

68   The judge correctly attached importance to public and private deterrence.  He noted that the appellant had not shown any contrition and listed all the matters he had taken into account including one which is incorrect, namely that the circumstances surrounding the commission of the offence justified a sentence of 12 years imprisonment.  The judge was not entitled to proceed n that basis.

69  Ultimately, the judge selected a head sentence at the top of the range suggested in Wong even though the quantity of cocaine involved was in the lowest third of the high trafficable quantity range.  The head sentence was, in the circumstances of the present case, at the top of the permissible range.

70   I turn to the non-parole period.  In Regina vClaude Bernier (1998) 102 A Crim R 44 this Court held that the usual non-parole period should be 60 to 66-2/3 per cent of the head sentence. However, it was emphasised that attention had to be focused on the individual facts of the particular case which may point to or demand a different non-parole period (p49). The Court continued at 49:

"Subject to those caveats, the norm for non-parole periods is in the range of about 60 per cent to 66 and two-thirds per cent.  One factor which may be material is the length of the head sentence and its position in the permissible range for non-parole periods.  The process is not mathematical or rigid, and often requires a finely tuned assessment.  The determination of the appropriate non-parole period, as of the head sentence, should be approached with the caution and flexibility enjoined by Hunt CJ at CL in Lawson (at 324-325; 464-465)".

71  Further, there are special circumstances.  This is the appellant's first custodial sentence.  She has the children mentioned and there is a need for her to keep in touch with them in an effective way.  The circumstances in which she found herself with the threats from the guerillas have made her life a difficult one.  With a head sentence of 10 years for the offence in question it was wrong in the circumstances of the case to set the non-parole period outside the usual range and as high as 7 years.  That was manifestly excessive.  The correct non-parole period is one of 6 years.

72   I propose the following orders:

(a)Appeal against conviction dismissed.

(b)Leave to appeal against sentence granted.

(c)          Appeal against sentence allowed in part.  Set aside the non-parole period of   seven years and in lieu thereof order that the non-parole period to be served by   the appellant be one of six years commencing on 9 December 1998 and ending   on 8 December 2004.  Otherwise appeal against sentence of imprisonment of                   ten years dismissed.

73  WOOD CJ at CL:   I have had the advantage of reading in draft the reasons for judgment of Smart AJ.  I agree with his reasons and the orders he proposes.

74   McCLELLAN J:   I agree with Smart AJ.

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LAST UPDATED:               30/05/2001