R v Spiteri
[1999] NSWCCA 3
•24 February 1999
CITATION: REGINA v SPITERI [1999] NSWCCA 3 FILE NUMBER(S): CCA 60504 of 1997 HEARING DATE(S): 22 May 1998 JUDGMENT DATE:
24 February 1999PARTIES :
Appellant - Regina
Respondent - Michael John SPITERIJUDGMENT OF: Hulme J at 1; Hidden J at 94; Greg James J at 127
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ
COUNSEL: Appellant - B Martin QC/R Mayne
Respondent - P Byrne SCSOLICITORS: Appellant - Commonwealth DPP
Respondent - Arden AssociatesCATCHWORDS: Criminal Law; Drugs; Importation of Cocaine; 8.3kg; Principal; Sentence ACTS CITED: Customs Act S233B
S235
Crimes Act S16GDECISION: By majority appeal dismissed
Grams Sentence Role Case Notes/Major Factors
97
IN THE COURT OF
CRIMINAL APPEAL
No: 60504 of 1997HULME J
Wednesday, 24 February 1999.
HIDDEN J
GREG JAMES J
REGINA -v- Michael John SPITERI
JUDGMENT
1 HULME J : This is an appeal by the Crown, contending that a sentence of imprisonment of 14 years with a non-parole period of 8 years imposed by Judge Shadbolt on 6 June 1997 was manifestly inadequate. The offence of which the Respondent, before his Honour and a jury, had been found guilty was that on or about 22 April 1996 he imported into Australia narcotic goods, being not less than a commercial quantity of cocaine. The quantity was 11.8kg gross, or 8.347kg pure with an estimated street value of $4.7M.2 The circumstances of the offence were as follows. The drugs were contained in an over-engineered platform or ramp which was exported from Nicaragua in a container with an open landau or coach. The Respondent dispatched the goods and eventually met them after they had been delivered to premises outside Sydney. The operation required cunning, time and planning, and was “entirely wilful and utterly without mitigation”. So far as His Honour could see the Respondent was not driven by need, association or duress. The operation “was done solely for the money; a mere criminal commercial enterprise”. If the Respondent was not the sole financier, he was some sort of partner in the enterprise. He showed no contrition.
3 The Respondent was, or had been in employment and Judge Shadbolt apparently accepted that he was hard-working. He had no family of his own but was himself a member of a large family. He was of prior good
character and is now 49.4 The commencing point in any consideration of an appropriate sentence for a statutory offence is the statute itself. “In determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug” - R v Peel (1971) 1 NSWLR 247 at 262. In this case the charge was laid under Section 233B (1)(b) of the Customs Act. So far as is presently relevant that section provides that any person who imports, attempts to import, conspires to import, is knowingly concerned in the importation into Australia of any prohibited import or has possession of any prohibited import to which the section applies is guilty of an offence. By virtue of sub-section 2, the prohibited imports to which the section applies are prohibited imports that are narcotic goods. By the combined operation of Section 4 and Schedule VI to the Act, there are laid down with some particularity quantities of such goods which are described as “Trafficable” and, in the case of some goods, “Commercial”. A trafficable quantity of cocaine is 2 grams and a commercial quantity is 2 kilograms. For heroin, a trafficable quantity is also 2 grams but a commercial quantity is 1.5 kilograms.
5 Section 235 provides for a variety of situations and penalties. It is sufficient for present purposes to confine attention to offences under Section 233B. The maximum penalty for importing, or otherwise acting as described in the preceding paragraph in relation to a quantity which is not less than a commercial quantity is imprisonment for life. That maximum is also applicable where the quantity is not less than a trafficable quantity and, on a previous occasion, the person has been convicted of an offence involving not less than the quantity defined as trafficable at the time of the prior offence and which falls within a certain specified class. Within that class are the offences I have referred to in the preceding paragraph.
6 Where otherwise the importing etc. involves not less than a trafficable quantity, the maximum penalty is a fine not exceeding $100,000 and imprisonment for a period not exceeding 25 years. To this there are two qualifications. In the case of cannabis the maximum penalty is a fine not exceeding $4,000 and imprisonment for 10 years. Secondly, if the court is satisfied that the offence was not committed by the person charged for any purpose relating to the sale or other commercial dealing in the goods, the penalty is the same as if the quantity was less than a trafficable quantity. The maximum in that situation is a fine not exceeding $2,000 and imprisonment not exceeding 2 years.
7 It is an elementary principle of sentencing that a maximum penalty laid down by the legislature “is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v R (1987) 163 CLR 447” - Veen v The Queen [No 2] (1988) 164 CLR 465 at 478. Nevertheless, as the majority of the High Court in the latter case went on to say, “That does not mean that a lesser penalty must be imposed if it be possible to envisage a worst case: ingenuity can always conjure a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category”. It follows that a worst case of importing just under 2 grams of cocaine merits imprisonment for 2 years and a worse case of importing just under 2kg of cocaine, merits imprisonment for 25 years.
8 This graduated scale of penalties carries a number of implications. As a general proposition, the greater the quantity involved, the higher the penalty. This is expressly so as one moves from a quantity which is less than “trafficable” to one which is a “trafficable quantity” and then to a quantity which answers the description “commercial”. Although it is obviously not the sole criteria, insofar as the gravity of an offence is to be measured by the quantity involved, importation of a commercial quantity is more heinous than importation of a quantity not answering that description. It is an inevitable inference that Parliament also intended that, all other things being equal, within a category the higher the quantity, the greater should be the penalty. The provisions of the Customs Act, and other statutes making possession and supply of drugs illegal, have been enacted in the belief that the use of the drugs is harmful and importing, supplying and dealing in them contributes to this harm. Other things being equal, doubling the quantity is calculated to double the illegal profits for those engaged in the enterprise and, if not to double, at least substantially increase the harm.
9 Secondly, it follows from the graduated scale of penalties that cases of importing commercial quantities should be considered against the benchmarks laid down for trafficable quantities. This was the view of the Victorian Court of Criminal Appeal in Perrier and Richardson (1990) 59 A Crim R 164 at 168-9 and 174.
10 Thirdly, in providing in Section 235 that the commission of a second offence of importing a trafficable quantity renders an offender liable to the higher penalty of life imprisonment, Parliament is stating that 25 years imprisonment is not sufficient for a worst case of an offence and offender answering that description. It follows also from the group of sections that 25 years imprisonment is an, and perhaps the, appropriate punishment for someone who, for the first time, is involved in the importation of just under 2kg of cocaine or 1.5kg of heroin and whose involvement in the offence and/or whose subjective circumstances place him into a worst category.
11 Nothing I have said is intended to suggest that sentences should be simply proportional to the quantity involved. It is apparent from a consideration of the legislation that Parliament has eschewed this approach. So have the courts - see e.g. R v Doan (unreported, CCA, 27 September 1996), Postiglione (1991) 57 A Crim R 301. Quantity is an important consideration but there are numerous factors which bear on the appropriate sentence or range of sentences in any particular case and these must be given proper weight - see Zayat (unreported, CCA, 22 November 1996). That said, whether sufficient attention has always been given to the quantity involved is a matter to which I shall return.
12 The above remarks have been made in the context of only the Customs Act. When one comes to determine the sentence to be imposed in any particular case, and when the significance of sentences in other cases falls for consideration, regard must be had to Section 16G of the Crimes Act 1914 (Cth) which provides:-
“If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remissions or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.”
New South Wales is such a State.13 Section 16G came into operation on 17 July 1990. Its operation has been the subject of consideration in a number of cases of which it is necessary to mention only a few. The first is El Karhani (1991) 51 A Crim R 123 where this Court indicated that the individual discretion conferred by the section was not to be replaced by a fixed formula but that it was not inappropriate to take into account that throughout Australia the reduction of custodial sentences for remissions and the like was about one-third of the sentence. A consideration of the cases since reveals that this proportion or proportions close to it have been commonly employed in the application of Section 16G, although there has been some variation - see e.g. Bradley (1997) 137 FLR 314; Doan (unreported, CCA, 27 September 1996); Li (1998) 1 VR 637 at 641-2. See also R v Paull (1990) 20 NSWLR 427. Applied to the statutory maximum of 25 years imprisonment for an offence involving a trafficable quantity, a one-third reduction means that the maximum sentence which may be imposed in New South Wales for such an offence is of the order of 16½ to 17 years.
14 A further case which should be mentioned is Lee Vanit v R (1997) 190 CLR 378, where the High Court affirmed the decision of the Northern Territory Court of Criminal Appeal in Wangsaimas, Vanit & Tansakun (1996) 87 A Crim R 149 that Section 16G did not apply to life sentences. A number of earlier cases in New South Wales, referred to below, have been decided on a different view.
15 A second guide to the appropriate penalty to be imposed in any particular case is to be found in prior decisions of the courts and, as invariably happens in matters of this nature, during the course of argument the Court was taken to a number of prior decisions concerned with penalties imposed under Section 233B and to summary tables recording the result of other cases prepared either by one of the parties or the Judicial Commission. One or other of the parties sought comfort from a pattern or patterns said to be thereby disclosed.
16 Such summaries, while useful, do have their disadvantages. Sometimes they present inadequate details of the cases to which they refer. Sometimes they tend to be selective when, given the wide differences there are in the penalties imposed for somewhat similar cases, support can often be found both for and against a challenge to sentence imposed. As will appear when I come to consider the case of Bernier (unreported, CCA, 19 May 1998), it would seem that the Court has been led in quite different directions by reliance on different selections of cases. Commonly the summaries cover only a narrow range of cases without any attempt to see that group in a wider context. That happened in this case and it has seemed to me advantageous to prepare a summary, regrettably lengthy, of my own of cases dealing with charges under Section 233B of the Customs Act covering the whole of the trafficable and commercial ranges.
17 That summary is attached as Appendix 2 to these Reasons and its existence will enable me to make many of the references to cases in the body of these Reasons cryptic, and without the qualifications or additional material to which I would need to refer to demonstrate that I have not overlooked features of the cases mentioned.
18 This Court has said that heroin and cocaine are to be regarded as equals for sentencing purposes - see e.g. Ferrer-Esis (1991) 55 A Crim R, Bernier (unreported, CCA, 19 May 1998) and R v Pereira (1992) 66 ALJR 791 - and offences involving both (but not other) drugs have been included. Apart from some cases where other issues made the cases useless for present purposes I have not been selective and have included in the schedule all of the cases in the Supreme Court or this Court or the corresponding courts in other states which I came across or could readily find and in which consideration was given to the length of sentence. Because I felt that the number of cases involving quantities above 1000 grams of heroin or 1500 grams of cocaine might not be sufficiently representative, I then had done, at the time of preparation of these Reasons, what I understand to be a comprehensive data base search through the material in the Court library for cases in this category which have been determined since the beginning of 1995.
19 I have not included cases in the District Court (except insofar as the cases I have included are appeals from that court). This is not because I have concluded that such exercises would not be useful. Prior authority in this Court has recognised that weight should be given to the decision of sentencing judges - Ferrer-Esis (1991) 55 A Crim R 231 at 237 - but any attempt to obtain a representative sample of decisions in the District Court with sufficient detail to make them useful guides would far exceed a sensible use of the available time. And it seems to me that the number of cases which I have included is likely to be reasonably representative. It is on these grounds also that I find it unnecessary to refer to the decisions in the District Court of Poompiriyipinte & Tait , and Li to which the Court was referred and which are summarised in the Reasons for judgment of Hidden J.
20 I have also not included cases arising under the Drug Misuse and Trafficking Act, (NSW) or similar legislation in other States. I have not felt it necessary to do so and the task undertaken has been sufficiently time consuming.
21 I have also prepared a schedule of the cases in Appendix 2 arranged substantially in order of the quantity of drug involved and this is attached as Appendix 1. Its purpose is as an aide to identifying any patterns which may exist. As part of that schedule I have referred to the more significant features of some of the cases but I do not suggest that in all cases those references provide an adequate account of the features of the cases where they appear. They may however help to explain some apparent aberrations and the full summary is available in Appendix 2. Of course, any attempt to derive a pattern or range from cases decided before the introduction of Section 16G, or in States where it does not require that any adjustment be made, requires a notional adjustment to the sentences imposed in those cases. In Appendix 1, wherever possible - I am not sure of the situation in some other jurisdictions - I have indicated those cases and whenever I have relied on them in the body of these Reasons, I have made a notional adjustment by reducing the sentence by one-third.
22 A consideration of Appendix 1 and of the cases referred to in it does reveal some patterns. One which emerges clearly is that couriers of quantities in the range of about 70 to 700 grams even when they have pleaded not guilty have generally received head sentences in, or close to, the range of 6 to 8 years. (In that statement, and generally elsewhere in these Reasons I refer to terms after the section 16G adjustment has been made, either actually, or notionally by my reducing sentences actually imposed by one-third.) There is nothing magical about the limits of 70 and 700 grams. They have been chosen because the schedule happens to have steps at or about these points and 700 grams is close to half the commercial quantity of heroin.
23 Head or total sentences imposed or indicated as appropriate in the case of couriers of quantities in the top half of the trafficable range have tended to be higher. Thus, putting aside (or adding back) allowances for mitigating factors, the head sentences imposed or indicated were: Chu (851 grams, convicted, 9 years), Bamford (1006 grams, plea, 9 years), Montenegro (over 1500 grams, plea, about 12 years, Lopez - Alonso (1600 grams, convicted, 9 years), and Ferrer-Esis (1819 grams, plea, 9 years in a successful Crown appeal). Lam (1433 grams, plea, a minder, 9 years and 4 months), might fall into this category of criminality. All of these except Chu , and Lopez-Alonso pleaded guilty. It may be worthy of remark that Montenegro and Ferrer-Esis , one where the sentence was the highest in the group, and the other where it probably would have been next but for it being a Crown appeal, were decided in 1991 rather than later. The sentence imposed in Lopez-Alonso was also imposed by this Court but the Court was limited by the absence of a Crown appeal. (In the comparison in this and succeeding paragraphs, I have generally not included references to where the reports of these cases can be found. They are sufficiently identified in the appendices without the need for repetition.)
24 On the same basis, i.e. disregarding or adding back the allowance for mitigating factors, the head sentences indicated in cases of couriers of between one and two times the minimum commercial quantities were as follows. For the purposes of comparison, some of these need to be adjusted to reflect Section 16G and the result of a one-third reduction is indicated in brackets. Sugahara and Watanabe (1511 grams, pleas, 10 and 10½ years), Ku (1625 grams, plea, 14 (9.3) years), Richardson (1636, convicted, 15 (10) years), Linke (1783 grams, plea, 15 (10) years), Tee (2003 grams, plea, 16 years (less up to about 4 years for remissions)), Lea (2095 grams, plea, 8 years), Banthithadawit (2120 grams, plea, 12 years (after an unspecified small discount for assistance)), Li (2172, plea, 17 (11.3) years), Taha (2234, plea, 13½ (9) years), Srisoi (2523 grams, plea, 17 (11.3) years), Zakaria (2700 grams, convicted, 14 (9.3) years), Whitney (2790 grams, plea, 12 years), and Barsky (3133 grams, plea, 11 years and 4 months). Of this group only Richardson pleaded not guilty and all the offences involved heroin except Whitney and Barsky . In light of the circumstances of the offenders, the head sentences in Bernier (2045 grams, plea, 9 years) and Luckier (3387 grams, convicted, 8½ years), are limited in their guidance. Apart from those two, of the 14 cases in this group, 3 indicate head sentences of or between 9 and 9½ years, 4 indicate sentences of or between 10 and 10½ years, 3 indicate sentences of eleven and one third years and 3 indicate head sentences of 12 years or more. Again these figures reflect the adding back of identified discounts for mitigating factors.
25 I have adopted double the commercial quantity as the upper limit for this grouping because once that quantity is reached, one can reasonably say that, insofar as the criminality is affected by quantity, it has moved well away from the trafficable range. Indeed, one can make that statement before double the commercial quantity is reached but double seems to me to be as good as any other figure for present purposes and better than many others. Of course a figure slightly over this is not an indication of significantly more criminality than one slightly below it. Indeed there is often no difference and the difference in quantity is liable to be explained simply by a difference in purity. It may be noted that in Behar (unreported, CCA, 14 October 1998), it was said that there was error in describing 2½ times the commercial quantity as at the lower end of the scale of commercial quantities and in Bernier it was said that “in the case of cocaine, (the lower end of the commercial) range would embrace quantities up to 3.5 kilograms or thereabouts.” I would myself eschew any absolute limit in any description of “low” or “substantial” quantities. It only provokes pointless arguments in cases near the boundary.
26 Couriers of quantities higher than double the commercial quantity are so few as to make any attempt to identify a pattern from sentences on them almost pointless. They range from 10 years in the case of Hollins (3,400 grams, plea) to 14½ years in Van Hung Duong (12.7kg, plea).
27 I turn then to persons higher in the hierarchy of drug importation
than couriers. I have treated them as one group because the various degrees of criminality tend to shade into one another and, indeed, with the exception of “principal” there is no precise categorisation of roles. Obviously the difference in roles of the offenders does impose some limits on the usefulness of the grouping but it nevertheless does enable useful comparisons to be made. Of course, more precise identification of role must be pursued when significance is sought to be attached to an individual case. The range of head sentences for persons involved with quantities between 70 and 700 grams, once one puts aside any discount or allowance for mitigating factors, has been wider and generally, although not always, higher than for couriers. (Again where called for, the Section 16G adjusted figure is indicated in brackets.) Cases in this group are Dodd (about 150 grams, plea, addict, principal, 10 years), Foster and D’Anna (204 grams, pleas, addicts, principals, 12 and 14 (8 and 9.3) years), Putcharkan (256 grams, plea, principal, 10 (6.7) years), Kogelbauer (269 grams, plea, principal, 8½ years), Direkpong (273 grams, plea, principal, (but for a parity argument) 13 (8.7) years), Abdalla (547 grams, convicted, at centre, 15.1 (10) years), Saisuwan (547 grams, plea, above courier, 12 (8) years) and Wu (666 grams, plea, above courier, second offence 18 (12) years).28 For principals or persons displaying more involvement than couriers in quantities of drugs in the top half of the trafficable range the head sentences, again putting aside mitigating features, have been: Kissner (1232 grams, plea, principal, 12 years in a successful Crown appeal), Raz (1254 grams, plea, a little above courier, 10.5 years), Laurentiu (1600 grams, plea, major, aggravating features, 15 years), Stafrace (1663 grams, plea, above courier, 10 years), De Hesselle (1930 grams, convicted, possessor, 8 years), and Michaels (under 2000 grams, plea, above courier, additional offences, 10½ years). All of these offences have involved cocaine but not all offenders had the same degree of involvement. In light of the special facts of the cases, the head sentence in Knott (1000 grams, plea, substantial involvement, 2 offences, aggravating features, 20 years), and Gibson (1076 grams, convicted, possessor, developed cold feet, 7 years) are limited in their guidance. Again the heaviest sentences tend to be in the early cases although this might well be accounted for by differences in criminality.
29 For principals or persons displaying more involvement than couriers in quantities of drugs between the commercial quantity and double that amount, the head sentences, again putting aside mitigating features have been: Mai (1500 grams, convicted, major operator, 13 years), Dellapatrona (1500 grams (not imported), convicted, principal, 10.2), Ong (1597 grams, plea, seriously involved, 12 years), Kolalich (2180 grams, convicted, principal, prior record, 13 years), Leff (2 x 1250 grams, convicted, close to principal, 13 years 4 months), Modica (2500 grams, plea, principal, 12 years), Swann (2 charges, 760 and 2000 grams, pleas, principal, about 18 years), Zapata (2980 grams, convicted, above courier, 8.5 years), Warfield (3239 grams, plea, above courier, 9 years in circumstances of “triple jeopardy” in a successful Crown appeal) and Saade (4009 grams, convicted, possessor, 12 years). In light of their circumstances, the head sentences in Perrier (1636 grams, convicted, principal, prior record, life), Chow (about 1 kg but 13 kg intended, convicted, well above courier, 20 (13.3) years) and Kingswell (2095 grams, convicted, substantial role, life), are limited in their guidance.
30 Before I turn to the cases which deal with persons above the role of courier and amounts in excess of double the commercial quantity, it may be convenient to reflect on what seems to be the pattern in the groups so far discussed. In doing so I again acknowledge the limits in any attempt to categorise cases by reference to only two criteria and the breadth of involvement in my “above courier” grouping but there does seem to be a reasonably clear pattern.
31 Couriers of quantities in the range of about 70 to 700 grams even when they plead not guilty generally received head sentences in, or close to, the range of 6 to 8 years. In the case of couriers of quantities in the top half of the trafficable range, there is a decided concentration of sentences of 9 years. In the case of couriers of amounts between a commercial quantity and double that, the median is about 10½ years with the vast bulk of cases within 15 months below and one year higher than this.
32 In the case of those who were involved with quantities in the range of 70 to 700 grams and whose involvement was greater than that of a courier the majority of sentences are in the range of 8½ to 10 years. Where the quantities are in the top half of the trafficable range, 3 of the 6 sentences indicated are in the range of 10-10½ years. Where the amount is between a commercial quantity and double that, the sentences for one offence are concentrated in the 12 to 13 years range.
33 In tabular form, omitting the qualifications, the pattern is:-
Courier Above Courier
70-700 grams 6 - 8 years 8.5 - 10 years
Top half of trafficable range s9 years 10 - 10.5 years
One to two times commercial 9¼ - 11½ years 12 - 13 years34 I do not suggest that these figures limit the range of sentences available within the categories. I have made sufficient reference to authority to indicate this is not so.
35 It was said in R v Warfield (1994) 34 NSWLR 200 at 207 that “In the present case, even if the Respondent be regarded as no more culpable than a mere courier, the amount of cocaine involved (more than twice the commercial quantity) would in the usual case require an adherence to a somewhat higher pattern of sentences” than that referred to in Ferrer-Esis , Laurentiu and Becheru, Muanchukingkan and Foster and D’Anna . The above pattern demonstrates that contrary to this approach, commonly relatively little weight has been given to variations in quantity and to the difference between a courier and persons with higher and often substantially higher roles. Examples of this are afforded by Moreno (294 grams. 6 years with a non-parole period of 4 years), Ng (301 grams, 8/5¼ years), Stenovich (390 grams, 8/5 years), Jelks (404 grams, 8.5/5 years), Maman (461 grams, 8/5 years), and Muanchukingkan (455 grams, 7.5 years after allowance for assistance and family hardship, 5½ years non-parole), all of whom were couriers who pleaded guilty, when compared with Mai (1500 grams, major operator, 13/10 years), Dellapatrona (1500 grams (not imported), principal, 10.2/5½ years), Ong (1597 grams, seriously involved, 12/8 years), Kolalich (2180 grams, principal, prior record, 13/10 years), and Leff (2 x 1250 grams, close to principal, 13 years 4 months/8½ years ), all of whom, with the exception of Ong pleaded not guilty. In this comparison it must be remembered that, even when of only utilitarian value, where an offender admits his guilt and pleads guilty at the first opportunity, this warrants a reduction in sentence which is substantial and seen to be such - Winchester (1992) 58 A Crim R 345 at 350, Kogelbauer (1992) 65 A Crim R 357 at 359. (In the comparison made in this paragraph I have included the non-parole periods to demonstrate that these do not account for the difference in sentences.)
36 I suspect the explanation lies in part in the tendency to select a sentence in an individual case by reference to the sentence imposed in a like case and, if there are two like cases to place more weight on that where the sentence has been lower so as to avoid any suggestion of unfairness to an offender, by comparison with what has occurred previously. But whatever the reason may be, the result seems to me to be wrong. Although I can accept, as has been said on many occasions, that the courts should not treat those who perform menial tasks in drug trafficking with the measure of leniency which might be applied in other fields to those with lesser roles - see e.g. Le Cerf (1976) 8 ALR 349 at 351, Budiman (unreported, CCA, 8 September 1998) - I regard the criminality of those who organise importations for reasons of greed and who stand to make large profits from them as very substantially worse than that of mere couriers who, not infrequently, are induced to participate from need.
37 I have acknowledged that sentences should not merely be proportional to quantity but it does not seem to me that sufficient weight has been given to this either. Hunt CJ at CL, with the concurrence of the other members of the Court, said in Doan:-
“It is wrong to treat sentencing for drug offences as if there is some precise mathematical relationship between the sentence and the amount of drugs involved. Obviously enough, all other things being equal, the sentence for one offender will be greater than that for another offender where the amount of drugs is substantially higher, but greater precision than that cannot be achieved and it should not be attempted.”38 I agree with the first sentence of this passage but, with respect, I am unable to agree with a deal of the second. The fact that the harm done by drugs and the profit to many engaged in drug dealing is often roughly proportional to quantity leads me to the view that substantially more weight should be given to quantity that the sentencing pattern reveals. Substantially higher weights should result in substantially higher sentences than imposed on persons who have offended on a significantly more limited scale. Particularly is this so in the case of those who, it can be inferred, know the quantity in which they are dealing and make a deliberate decision to break the law on a large scale. Wood J remarked in Schaal (unreported, NSWSC, 8 September 1989) that “just as those stakes (in the drug trade) are high, so, however, must be the risks if caught”. The cases to which I have referred seem to me to demonstrate that either the stakes for couriers of small quantities are disproportionately high or those for principals involved with quantities 4 and 5 times as great, disproportionately low.
39 I take the view that actual imprisonment for, say 10 years is more than twice as severe as one of imprisonment for 5 years. Having regard to the sorts of terms under consideration for drug dealing a sentence of one of the longer periods is likely to have an impact on an offender’s life in terms of wife, children, job prospects and the like from which he may well never recover and these sorts of considerations also have to be borne in mind. That said, it still seems to me that there is a lack of proportion and that it is impossible to reconcile the sentences imposed on many persons involved with the lower quantities with many sentences imposed on persons involved with higher quantities. Although between many cases there are wide variations in the facts, between others there is no significant difference, or no significant difference other than quantity.
40 The most commonly quoted statements of the appropriate ranges for sentences on couriers have been those contained in El Karhani (1990) 51 A Crim R 123 and in Ferrer-Esis (1991) 55 A Crim R 231. In the former case where the quantity involved was 447 grams this Court said that it agreed with a submission that “having regard to the ‘tariff’ for like cases, the severity appropriate in the circumstances of the offence lies somewhere between a (head) sentence of 7 to 12 years”. The submission is recorded at page 133-4 of the report where the group under consideration were described as “small-time couriers”. The sentence adopted in the circumstances of the particular case was 10 years, reduced to 7 to reflect the requirements of Section 16G (as, no doubt, the “7 to 12” range must be).
41 In Ferrer-Esis , where the drug involved was 1819 grams of cocaine, Hunt J said (at p 237):-
“The recognised pattern of sentencing of couriers of substantial quantities of heroin , prior to the commencement of the Sentencing Act 1989 (NSW) … produced head sentences of between 12 and 16 years with minimum terms generally fixed within the order of approximately 60 to 65 per cent of the head sentence. ….
Taking into account the adjustment required by Section 16G, the previous pattern translates into a head sentence of between eight and a half and eleven years.”42 His Honour did go on to say that it was too early to tell what impact the changes in sentencing consequent on the Sentencing Act and the introduction of Part 1B into the Crimes Act (Cth) would have but the passage cited has been accepted in innumerable subsequent decisions. Included in these are Kissner , Warfield , Foster and D’Anna , Maman and Robertson , but of the cases referred to in the appendices to these Reasons, there are also many others. Furthermore the patterns for which El Karhani and Ferrer-Esis stand as authority seem to me consistent with one another and with the statutory regime which, as I have said, imposes a maximum penalty of about 16½ years imprisonment (without a lower non-parole period - see Crimes Act 1949 (Cth) S19AB and Power v R (1974) 131CLR 623 at 628) for a worst case - one where the quantity is likely to be near the top of the trafficable range and the offender is likely to be a principal.
43 The pattern of sentences to which I have referred demonstrates that the range referred to in El Karhani has been generally followed. So has that in Ferrer-Esis although the sentences on couriers of drugs in substantial trafficable quantities I have come across have tended to be concentrated towards the bottom of the range.
44 However in Bernier (unreported, CCA, 19 May 1998) it was said:-
“However, what can be said is that the pattern of sentences for substantial quantities of drugs identified by Hunt J in Ferrer-Esis (8½ to 11 years) should now be seen as appropriate for the importation by couriers of drugs in quantities at the low end of the commercial range. We doubt that 12 years is within that range but, if it is, it is right at the top of it.”45 Elsewhere in the judgement the Court had said “In the case of cocaine, that lower (end of the commercial) range would embrace quantities up to 3.5 kilograms or thereabouts.” and that “references in decisions of this Court to a range of sentence in cases of this kind take into account two subjective features which are commonly present; a plea of guilty (usually in the face of a strong Crown case) and an absence of prior convictions”.
46 During the hearing of the instant appeal, considerable reliance was placed by counsel for the Respondent on the indented quotation. Counsel appearing for the Crown said that the Crown would at some stage wish to challenge the correctness of that observation but did not wish to do so in this case. However, in light of the issues posed for the Court and my understanding of, and research into, previous authority, I do not regard the Crown’s approach as obliging me to accept that the statement in Bernier is correct. I said as much at the commencement of the address of counsel for the Respondent, thus affording him the opportunity to address the topic. Bernier was referred to without disapproval in Chu (unreported, CCA, 16 October 1988) but in Robertson (unreported, CCA, 6 November 1998) it was said by this Court that when Bernier and two cases relied on in it, Lawson and Doan are read as a whole they should not be taken as indicating a lowering of the range from that stated in Ferrer-Esis . Notwithstanding the matter has not been argued, I do not regard myself as bound to proceed on a basis I believe is wrong and inconsistent with, not only Robertson , but also previous decisions in this Court to which no reference was made in Bernier and with the acceptance on very many occasions of the passage I have quoted from Ferrer-Esis .
47 In Bernier , the Court seems to have relied on four matters. The first was material contained in an earlier decision of Lawson . In that case reliance was placed on an earlier decision of Doan and it convenient to start there. The offence under consideration in Doan was the importation of 170.8 grams of heroin for which a sentence of 6 years with a non-parole period of 3½ years had been imposed. Hunt CJ at CL attached to his judgment a schedule of prior cases involving between 18.4 and 863 grams. In a number of these, head sentences imposed or indicated as appropriate but for assistance, were in the range of 7.5 to 9 years. His Honour said that those cases “demonstrate conclusively that the sentence imposed on the applicant was well within the range appropriate for this offence” (my emphasis).
48 In Lawson, Wu and Thapa (unreported, CCA, 12 December 1997) James J said:-
“However, since Ferrer-Esis the pattern of sentences which have been imposed on couriers who have not provided assistance has tended to be rather lower than the range of sentences indicated by His Honour. See the schedule of particulars of cases attached to his Honour’s judgment in R v Doan (unreported, Court of Criminal Appeal, 27 September 1996). In Doan itself the sentence imposed on the applicant of a term of imprisonment for six years with a non-parole period of three and a half years was described as being within the range appropriate for this kind of offence. In Gurung a sentence of 6½ years with a non-parole period of 4½ years was described as being within the sentencing Judge’s discretion, although “towards the bottom of the range”. Statistics provided by the Judicial Commission show that in the higher courts between January 1990 and December 1996 the great majority of sentences for offences under Section 233B of the Customs Act involving a trafficable quantity of heroin where the offender had pleaded guilty and had no prior convictions were less than 8 years.”49 With respect, when recognition is given to the facts in Doan and in the cases referred to in the schedule in that case, it is clear that when Hunt CJ at CL referred to “this offence” he was referring to the case involving 170.8 grams before the Court and not to cases of trafficable quantities generally. There is nothing in Doan which provides any support for a conclusion that the sentences on couriers of substantial , but trafficable, quantities have been lower than envisaged in Ferrer-Esis . Similarly in Gurung (unreported, CCA, 22 May 1992) the quantity involved was 151 grams. And the sentencing statistics published by the Judicial Commission do not differentiate between different quantities within the trafficable range. Without knowledge of the quantities involved in the cases the subject of those statistics, they also provide no reliable basis for any departure from what was said in Ferrer-Esis . With respect to His Honour, I am unable to see in the material apparently relied on by James J, support for the proposition advanced.
50 On the other hand, it must be acknowledged that the cases to which I have referred do show a decided concentration of sentences for couriers of quantities within the top half of the trafficable range of 9 years - low, but within the Ferrer-Esis range. Seven of the 14 sentences I have come across imposed on couriers of quantities between the commercial and double the commercial range, also fall within the Ferrer-Esis range but some overlap between ranges is to be expected.
51 The second of the matters relied on in Bernier in support of the conclusion advanced were several cases which, unless they are incorporated in another group to which I shall come, were not identified. They were included in a schedule provided to the Court by the Crown, involved amounts of cocaine towards the top of the trafficable range and in them sentences ranging between 8 and 10 years had been imposed. It was said that “those figures lend some support (albeit limited) to the observation of James J that the pattern of sentence in recent years is somewhat lower than that expressed in Ferrer-Esis . However the Court in Bernier went on to say that it was not its function to re-examine the range for trafficable cases generally, its examination having been only insofar as such cases may have been of assistance in determining a range for low commercial quantities.
52 A third matter relied on were a number of cases in a schedule involving couriers of commercial quantities of heroin and cocaine, wherein sentences ranging from 6½ to 11½ years had been imposed, most of these cases being in the District Court and not reviewed on appeal. Unfortunately the report does not identify these cases either but in relation to the them the Court observed that the views of the judges must command “great respect”. Insofar as it refers to “respect” that statement derives support from Ferrer-Esis at p 237 and what Barwick CJ said in Griffiths v R (1976-1977) 137 CLR 293 at 310 and I would not disagree with it. Barwick CJ indeed went on to say that “those whose daily, or almost daily, task is the sentencing of prisoners … are in reality in a better position to assess the proper sentences than, in my opinion, is a court of appeal, error or breach of principle being absent.”
53 However, it seems to me that at least in that latter remark Barwick CJ was directing attention to the circumstances of individual cases rather than to patterns or general standards. I venture to suggest that the number of cases which comes before this Court and the extent of argument of principle which occur, places it in a better position to determine patterns and standards of sentencing than the judges of the District Court. Indeed there is something to be said for the argument to which I adverted during the hearing of the appeal but originally advanced in another case, that for this Court to simply follow patterns of sentencing in the District Court is “to allow the tail to wag the dog”. I accept that the decisions of the District Court do command respect. However, if they are followed too readily, any error is likely to be perpetuated.
54 The Court in Bernier did however refer specifically to a number of decisions, all of which have been included in the appendices to these Reasons. Of the cases referred to, Barsky (3.1kg, courier, assistance, 10 years), Araya (about 3.5kg, above courier, 12 years), Michaels (under 2kg, above courier, 2 connected offences, 10½ years), Swann (2 offences, one 2kg bulk weight, one 760 grams pure, principal, 12 years), were appeals by persons convicted in which this Court had no need to comment on whether the sentences should have been higher. Hollins , in which this Court said, in effect, that a sentence of 12 years, prior to a discount for assistance, for a courier importing 3.4kg (pure) of heroin seemed rather high, but made its decision on grounds of parity, was also referred to. So was a statement by Hunt J in Paull (1990) 20 NSWLR 427 at 435 wherein he recognised and accepted an agreement between the parties that the “tariff” for couriers of commercial quantities, prior to Section 16G, as 16 years. That was, of course, prior to Hunt J’s own assessment in Ferrer-Esis.
55 Reliance was placed on Luckier (3.3kg, 8½ years) but when one has regard to the fact that the offender was 68 years old, that case does not provide support for the conclusion arrived at in Bernier . For reasons appearing later in these Reasons when I consider the case of Tamayo (47kg, local distributor, 14 years), I regard the reliance in Bernier on that case as misplaced. In Bernier it was said that the sentence imposed in Banthithadawit (2.128kg, courier, 12 years) appeared unusually high in light of some of the cases referred to in the last paragraph but no reference was made to the fact that in Banthithadawit this Court said that it had reviewed a number of recently decided cases, albeit unidentified, and considered the sentence of 12 years as well within the sentencing judge’s discretion. Periera (6kg, principal, 2 connected offences, 13 years), Kissner (1.232kg, principal, 2 offences, 12 years), and Warfield (3.239kg, above courier, “triple jeopardy”, 9 years) were, as the Court recognised, successful Crown appeals.
56 It may be accepted that the sentences imposed in some of the cases mentioned do suggest departure from the range to which Hunt J referred in Ferrer-Esis . On the other hand the Court in Bernier did not attempt a comprehensive review of the authorities. It did not refer for example to Montenegro where after a discount of the order of over 50%, this Court imposed a sentence of 6 years with a non-parole period of 3½ years on a courier who imported something over 1500 grams of cocaine, or to cases involving lower quantities.
57 Nor did the Court explain why, without a comprehensive review, it moved from reference to a limited range of cases displaying sentences at the low end of, or indicative of departure from, the pattern of sentences referred to in Ferrer-Esis to the statement that that pattern “ should now be seen as appropriate for the importation by couriers of drugs in quantities at the low end of the commercial range.” There was no discussion of the significance of the penalties laid down in the legislation. There was no consideration given to the appropriateness of any tendency for sentences imposed in drug cases to be lower than hitherto. Nor was there any consideration of the impact of drugs on the community and whether the problem is getting worse. My impression is that it is but whether this be so or not, I do not find persuasive an endorsement of a reduction in sentencing standards which does not include a review of the problem the legislation is directed at.
58 And surely relevant to the proposition that “… the pattern of sentences for substantial quantities of drugs … (of) 8½ to 11 years should now be seen as appropriate for the importation by couriers of drugs in quantities at the low end of the commercial range” are cases such as Lee and Ng where it was said that head sentences of 8 years for the importation by one offender of 301 grams and by the other of 488 grams of heroin was well within the range, Maman where this Court imposed a head sentence of 8 years on a courier who had imported 461 grams and accepted the range stated in El Karhani of 7 to 12 years (prior to the Section 16G discount) for quantities of that order, Zayat where, working from a notional head sentence of 12 years prior to the Section 16G discount, a fixed term of 5 years was imposed for the importation of 165 grams and this Court saw no reason to interfere and Moreno where the Court said that an applicant who had imported 341 grams of cocaine “could not assert that the sentence imposed (10 years with a non-parole period of 6 years) was not well within the range of the judge’s discretion”. (Because Moreno’s role is not expressly mentioned in the Court of Criminal Appeal’s reasons, I have had access to the Court’s file. It is clear that he must have been treated as a courier.) Most of these cases are recent. None was referred to by the Court in Bernier .
59 In Blass the quantity imported was 586 grams. The sentencing judge’s starting point was 10 years. This was reduced to 8 for a plea and assistance and reduced by a further 2 years for future assistance. This Court said that the sentence was well with in the range examined in Ferrer-Esis, El Karhani and Muanchukingkan . In Jelks , decided in December 1995, where the applicant, a courier, had been sentenced for importing 404 grams of cocaine, Hidden J, with whose judgment Smart and Studdert JJ agreed, said that after examining some ten cases to which the Crown had referred, “it appears to me that the present sentence of 8½ years with a non-parole period of 5 years rests squarely within the range and cannot be said to be manifestly excessive.”
60 If 8½ years is squarely within the range for the importation of 404 grams of cocaine, I am unable to accept that it is also within the range for the importation of a quantity 5 times as great and for which Parliament has provided a significantly greater maximum penalty. I acknowledge that Hunt J in Ferrer-Esis was not laying down a range of sentences which was immutable but, as a consideration of the cases to which I refer in these reasons shows, the range stated in Ferrer-Esis has been accepted by this Court on numerous occasions. It should not be departed from without thorough consideration.
61 Nor did the Court in Bernier make reference to Whitney (unreported, CCA, 6 November 1997). In that case the applicant was a courier who had imported 2.79 kilograms of cocaine and had been sentenced to imprisonment for 7 years with a non-parole period of 4½ years. This sentence reflected assistance to the authorities but for which, the sentencing judge indicated, a sentence of 12 years with a non-parole period of 8 years would have been imposed. Among the matters considered by this Court was the appropriateness of that starting point. Relying on Banthithadawit and Raz where, but for assistance, a head sentence of 10½ years would have been imposed for the importation by a courier of a trafficable quantity - it was in fact 1254 grams - the Court in Whitney said that the starting point was not manifestly excessive.
62 Since the above remarks were written this Court has decided the matter of R v Barrientos (1999) NSWCCA1. Some of the references by the majority in that case have been relied on by my brothers in this case. It is accordingly appropriate to record that, as the majority in Barrientos said, the Crown did not submit that the decision in Bernier was wrong nor in argument or in the majority judgment was there any reference to prior authority remotely approaching that set out above.
63 Having regard to the authorities and matters to which I have referred, in my view the passage which I have quoted from Bernier should be regarded as neither correct nor authoritative. It does however tend to reinforce the inconsistencies in sentencing patterns to which I have earlier referred and argue in favour of the Court making a comprehensive review of the subject. Consistency, and the preservation of relativity in sentencing - see Everett v R (1994) 181 CLR 295 at 306, R v Allinson (1987) 49 NTR 38 and R v Visconti (1982) 2 NSWLR 104 at 107 and the cases there cited - seems to require it.
64 I turn then to the cases involving in excess of double the commercial quantity and where the offender was a principal or one having a role which was above that of courier. At one end of this group are cases where life sentences were imposed or, but for assistance or because of a view, subsequently held to be mistaken - Lee Vanit v R (supra) - of the operation of Section 16G would have been. Kelleher , Mooseek , Lun and Wangsaimas fall into the first of these categories, Ng , Tam and Yook into the second. With the exception of Kelleher where 10kg of heroin were involved, all of these cases involved quantities in excess of 30kg. In the case of the actual life sentences, the non-parole periods have been 16 or 22 years. In Shepherd involving 24kg, the then maximum of 25 years imprisonment was imposed. In three other cases involving quantities in excess of 30kg, Chai , Cheung and Savvas the head sentences imposed, after taking account of pre-sentence custody, were of 24 or 25 years. I shall return to these cases below. Whether the mistaken view as to the effect of Section 16G has had an impact on sentences imposed in cases falling near but not in a worst category is not apparent.
65 The other cases in this group merit further consideration. Towards the lower end are the sentences imposed on Mari (8 years with a non-parole period of 6 years) and Kapeliotis (12 years with 7 years non-parole). The submission that Mari’s role in the conspiracy he was engaged in was minor was rejected, but the sentence is so low - about that appropriate to a low quantity courier - that, in light of the 20kg involved and the fact that he had previously been sentenced to 14 years for importing heroin, I do not find the decision of assistance. I take the same view concerning the sentence imposed on Kapeliotis - 12 years for participating in not one but two conspiracies to import 20kg of drugs by someone who had a prior sentence for a drug offence raises the possibility that the sentencing judge may have seen something in the circumstances which took the offence or offender outside the general run of sentences. The fact that no drugs were imported pursuant to the conspiracy has been regarded as a mitigating factor previously - Dellapatrona - and it may be that some issues of parity arose.
66 In Postiglione (1991) 57 A Crim R 301, there were so many features different from those here that I find it impossible to draw from the case any assistance as to what the decision in this case should be. The quantity was slightly above twice the commercial quantity, the appellant pleaded guilty, it does not appear that he was treated as a principal although his role was regarded as essential, and he had a prior conviction for a serious offence involving heroin. Parity influenced the final sentence of 12 years with a non-parole period of 9 years - in part lower and in part higher than in this case.
67 Also towards the low end of the group is the sentence imposed on Martinez (10 years with a non-parole period of 7 years). He and Tamayo (14 years with 10 years non-parole) must be considered together. Martinez’ role was only that of Tamayo’s lieutenant but the quantity involved - 47kg, and Tamayo’s role as distributor for commission make it impossible to avoid the conclusion that his sentence is substantially out of line with those imposed on other persons deeply involved with high commercial quantities. So great is the disparity that I am not inclined to place any weight upon the sentences imposed on either Martinez or Tamayo. In so concluding I am not unconscious of the fact that Allen J , with the concurrence of Gleeson CJ and Sully J said that the sentence was well within the range. However the issue before the Court was whether the sentence was excessive. The Court was not concerned whether the sentence was too low.
68 In Tang , Dang and Quach , sentences of 15, 6 and 12 years (with non-parole periods of 12, 3.5 and 9 years) respectively were imposed in connection with the importation of 5.281kg. of heroin. The description applied to Tang and quoted in Appendix 2 fits the Respondent here but the latter’s role as principal puts him significantly ahead in terms of criminality. Tang had some prior convictions not identified in the report.
69 The role of the co-offender An Doa Dang, sentenced to 14 years imprisonment with a non-parole period of 10 years - taking delivery of the drugs, removing them from packaging, maintaining custody of and delivering them - all apparently for $20,000 to be shared with his brother - demonstrates that his criminality was much less than that of the Respondent here. The fact An Doa Dang’s offence was committed on parole and he had a prior conviction for importing heroin tends to reduce or offset this difference. However An Doa Dang pleaded guilty.
70 The role of Dang, An Doa Dang’s brother, was so small that it can be ignored. Quach’s role as liaison between Tang and An Doa Dang and persons further up the chain was regarded as higher than that of those two. Quach had no prior convictions and seems to have been given a small discount for co-operation. He was given a discount, variously described as “very considerable” and “significant” for pleading guilty. Quach’s involvement also, I regard as significantly lower than that of the Respondent here. The sentences on these offenders argue in favour of the instant sentence, and particularly the non-parole period being too low.
71 Sanderson was sentenced to 13 years imprisonment with a non-parole period of 8 years for involvement in an importation of 5kg of heroin. His involvement, at least as proved, was significantly less than that of the Respondent here.
72 Pereira also was sentenced to 13 years imprisonment with a non-parole period of 8½ years. As a principal his criminality was on a par with that of the Respondent here and I do not regard the fact that Pereira was proved to have recruited couriers and that he was convicted of a second associated offence makes his criminality worse. The fact that Pereira’s sentence was imposed in a Crown appeal where the practice is followed of imposing a sentence at or lower than the bottom of the range appropriate for the particular case provides an indication that the sentence imposed here was low. It could be argued that the fact the head sentence imposed on the Respondent was no less, and indeed one year more, than that imposed on Pereira indicates that it is within the range but that argument ignores the fact that the quantity here was over one-third greater than in Pereira and the latter had operating in his favour a plea of guilty (at least for its utilitarian benefits), and findings he was contrite and his imprisonment would have an impact on his family - factors not present here. The fact that Pereira was charged with both importation and possession of part of the cocaine imported and the Respondent was not makes, in my view, no difference.
73 In light of the facts which inspired the statement that it was a “special case” and the reason for the reduction of the sentence previously imposed, the sentence of 13 years with a non-parole period of 10 years imposed in Chung , a courier of 4 times the commercial quantity, clearly argues that the sentence here is inadequate.
74 Given they were imposed in 1988, the sentences imposed on Wong and Ng of, respectively, 24 years and 20 years with minimum term of 18 years and 15 years need to be discounted by about one-third. The amount of heroin involved was something less than 4 times the commercial quantity. Both pleaded guilty, although the discount for this would have reflected the fact they were caught red-handed. Neither was found to be a principal. The sentences imposed, particularly in the case of Wong, suggest that the sentence imposed here was to low.
75 I do not regard the sentence of 22 years which would have been imposed in Keyes but for assistance and pre-sentence custody as persuasive in any direction. The three conspiracies and further offence of breaking, entering and stealing demonstrate a longer period of criminality. However Keyes pleaded guilty and as a proportion of a life span, 22 years is so long that factors analogous to totality come into play.
76 McCauley was an intermediary who pleaded guilty. The 9.7kg of heroin he was involved with is relatively higher than the 8.347kg of cocaine involved here but the cases suggest the difference between 6½ times the commercial quantity and 4.3 times is of little significance. As I have indicated, I do not agree with that view but, if it is correct, the sentence of 17 years with a non-parole period of 11 years which, but for future co-operation, would have been imposed argues that the sentence here is too low.
77 The decision in Lara-Gomez where a sentence of 18 years with a non-parole period of 13½ years was imposed for possession of 77kg clearly argues against any increase in the Respondent’s sentence, even though Lara-Gomez was not a principal. However this sentence also is so out of line with other sentences for high commercial quantities that, in my view, it cannot be used as a precedent.
78 Daubney probably argues against an increase in the head sentence in this case. If one has regard to the fact that the reduction made by this Court was for the plea, to the probability that the sentencing judge probably allowed some discount for that anyway, one is looking at a starting point in excess of 22 years for a long period of criminality, involving about 11 times the commercial quantity and for a second offence of supplying heroin committed while awaiting trial.
79 Tan argues for an increase here. On the assumption that a notional Section 16G discount is required, the head sentence (adding back the discount for future assistance) becomes about 20 years with a non-parole period of 12 years for an offence involving in excess of 8 times the commercial quantity by an offender who pleaded guilty and who had given assistance prior to sentence.
80 The significance for present purposes of Lim (18 years with a non-parole period of 13.5 years) is difficult to determine. His plea of guilty, his assistance to the authorities and the fact that he was not a principal on the one hand, and the fact of his involvement in additional offences on the other, tend to operate in different directions compared with the situation of the Respondent here.
81 I find it also difficult to reason from the sentence of 21 years with a non-parole period of 16.8 years (adding back the discount for future co-operation) imposed in Postiglione (unreported, CCA, 13 December, 1993) as to the sufficiency of the sentence here. On the one hand the fact of two conspiracies, the quantity of 20kg in each, and Postiglione’s appalling record argue against an increase in that imposed on the Respondent. On the other hand, if Postiglione was to obtain any benefit from his co-operation, there had to be some limit on his sentence and the fact that the sentence imposed was, as to 15 years, cumulative on another sentence of 9 years (non-parole period) meant that the principle of totality came into play.
82 Although far removed in quantity (over 30kg) and sentence (24 or 25 years, after taking account of pre-sentence custody) the decisions in Chai , Cheung and Savvas should also be referred to, particularly having regard to the submission for the Crown that the appropriate range in this case extended as high as 20 years. Chai, who had in his favour that he pleaded guilty and hardship to his family was taken into account, was regarded as a “high level principal in an international heroin dealing on a vast commercial scale” who had joined a conspiracy as the buyer and intended importer of 31kg of heroin. In deciding on a sentence of 24 years Wood J gave consideration to a number of other cases including Kelleher . Unless one regards the difference in quantity between 8 and 31kg as of limited weight - and I do not - the case argues against a sentence of 20 years here being within the appropriate range and against the sentence of 14 years being manifestly inadequate.
83 In Cheung it was the applicant’s position as fourth in the hierarchy which induced the sentencing judge not to impose the maximum of life imprisonment but to impose a head sentence (before discount for pre-sentence custody) of 25 years. The quantity involved, 32kg required a higher sentence on Cheung than on the Respondent, particularly as it seems the sentence on Cheung has to be notionally reduced to take account of Section 16G, and argues against a sentence of 20 years being within the range here. However, the Respondent’s position as principal means that I do not regard Cheung as arguing against the sentence here being too light.
84 When regard is had to his role as a principal, albeit not the leader, in a conspiracy to import 64kg, the sentence of 25 years in Savvas , argues against any increase in the sentence here.
Conclusion
85 In my view even when allowance is made for the differences between them and for the discretionary element in sentencing, it is impossible to reconcile all these cases. However when account is taken of all of them and of the terms of the legislation, I am satisfied that the sentence imposed on the Respondent is manifestly inadequate. That conclusion is, in my view, compelled by the terms of the legislation alone. As a principal, actively involved, the Respondent’s role was as bad as it could be. His motive, greed, the fact that the offence was a straight commercial enterprise and the fact that the quantity involved was no less than 2kg of cocaine means that, so far as its objective circumstances are concerned, the offence was no less serious than a worst case of the importation of a trafficable quantity. I would not so categorise the subjective circumstances but this because, and only because, the Respondent had no prior convictions and had apparently led a productive and respectable life previously. He has no entitlement to the substantial reduction in sentence for a plea - see Winchester (1992) 58 A Crim R 345. Nor was there any entitlement to leniency for contrition or indeed anything else. And it must be remembered that the weight to be given to a clear record in drug cases is less than in other fields. This is particularly so in the case of couriers - Ferrer-Esis (1991) 55 A Crim R 231 at 238, Budiman (unreported, CCA, 8 September 1998) but the practice also has application to principals - see Chai (1992) 60 A Crim R 305 at 352, and Lara-Gomez (unreported, CCA, 24 April 1996).
86 But one must also take account of the fact that the quantity involved was not 2kg but 8.3kg. This is so far over a trafficable quantity that it more than offsets the benefits to which the Respondent’s past entitles him. Judged by the terms of the legislation, the quantity in my view means that the minimum sentence which should have been imposed is 18 years. Certainly anything less than the maximum prescribed for the importation of a trafficable quantity is to deny the will of Parliament. It is impossible to contend that the circumstances of this case bring it lower than a worst case of the importation of a trafficable quantity.
87 And much authority also leads to the view that the sentence imposed in this case is manifestly inadequate. It is impossible to reconcile it with sentences imposed on offenders involved with quantities in the lower range or with those cases to which I have referred in criticism of Bernier . It is impossible to reconcile it with the standards recorded in Ferrer-Esis . Nor can it be reconciled with Tang, Dang and Quach, An Doa Dang, Sanderson, Pereira, Chung, or Wong and Ng. .
88 I acknowledge that some of the cases argue against the sentence being regarded as manifestly inadequate or for any sentence this Court imposes being the maximum for a trafficable offence of 16½ or 17 years rather than 18 years. On the other hand, Tang, Dang and Quach , An Doa Dang , and Wong and Ng argue for the higher figure and in any event I prefer to follow what seems to me to be the dictates of the legislation.
89 In the last few paragraphs, and indeed through much of these Reasons, I have been concentrating attention on head sentences. When the non-parole period imposed on the Respondent is also taken into account, the inadequacy becomes more manifest. It was said with reference to prior authority in Behar (unreported, CCA, 14 October 1998) that the “criminality of the offence should be reflected not only in the full term but also in the non-parole period”. At 57% of the head sentence the non-parole is, for no reason given by the sentencing judge, below the usual range of between 60 and 75% referred to in Ferrer-Esis , when the Respondent’s criminality would have justified a much higher proportion - see Lommahadthai (unreported, CCA, 11 December 1997), where an appeal against a non-parole period equal to 73% was dismissed. It must be conceded it falls within the “about 60 percent to 66-2/3 percent” referred to in Bernier . However, when regard is had to the gravity of the Respondent’s offence, and to the almost complete lack of any mitigating factors, a simple comparison between what Parliament has provided, and the non-parole period of 8 years imposed demonstrates that the period is inadequate.
90 The foregoing is the basis on which I prefer to decide this case. However even if one accepts the remarks in Bernier , the sentence here is manifestly too low. There are three relevant differences between the situation contemplated by those remarks and the circumstances here. Firstly, the Respondent was not a courier, not a middleman, but a principal. Secondly the quantity in this case was more than double the 3.5 kilograms to which the Court referred. The Respondent’s criminality was thus substantially above that of the class of persons of which the Court in Bernier was speaking. And as he pleaded not guilty, he was not entitled to the leniency for a plea that such persons are entitled to and which would also have been reflected in the range there contemplated.
91 In my view the appeal by the Crown should be allowed. The sentence imposed by Judge Shadbolt should be quashed and in lieu the Respondent should be sentenced to imprisonment for a period of 18 years with a non-parole period of 11 years.
APPENDIX 1
92REGINA -v- Michael John SPITERI
NOTE: The columns in the following table state or denote the following:-1. The quantity involved, possibly rounded slightly,
2. Whether the drug was heroin or cocaine,
3. The head sentence and the minimum or non-parole period, to 1 or 2 decimal points.
4. When it contains an asterisk, that the sentence does not reflect Section 16G of the Crimes Act.
5. Whether there was a plea of guilty, or not guilty.
6. Where this is stated, or unarguably clear, the role of the offender.
7. (a) The name of the offender. Where a report deals with more than one person, this may not be that by which the case is generally known. A reference to the decision.
(b) Where merely a date appears, this is an unreported decision and, unless there is a note to the contrary, a decision of the New South Wales Court of Criminal Appeal. “ACR” denotes an Australian Criminal Report.8. This records the more significant features of some of the cases.
1 2 3 4 5 6 7 8
24/6/94
See also Gurung
24/11/95
4/4/90
See also Kumsuz
51 ACR 376
11/8/89
8/6/90
4/11/94
30/9/94
71 ACR 82
18/8/93
71 ACR 82
30/6/1998
30/6/1998
22/5/92
23/11/93
22/11/96
14/6/90
27/9/96
59 ACR 14
59 ACR 14
11/11/91
71 ACR 82
6/10/94
65 ACR 357
26/6/96
20/12/96
12/12/97
4/11/94
12/4/91
12/12/97
23/3/92
27/11/96
17ACR 162
1/12/95
5/11/86
51 ACR 123
52 ACR 354
27/3/97
20/12/96
4/12/89
15/12/95
22/11/96
18/2/94
30/9/94
12/12/97
21/5/93
4/4/90
19/10/90
16/10/98
21/5/93
16/3/90
14/11/96
56 ACR 1
69 ACR 83
17/12/92
18/9/98
53 ACR 118
under
4/8/95
plus
11/12/97
plus
plus
15/2/91
plus
31 NSW
LR 123
plus
23/9/98
16/10/98
16/10/98
1/5/98
[1999] NSWCCA 1
20/12/96
63 ACR 402
63 ACR 402
86 ACR 270
(1998) SC
ACT 24
59 ACR 164
59 ACR 164
96 ACR 452
4/3/88
55 ACR 231
29/8/97
70 ACR 78
[1998] 1 VR 637
71 ACR 181
19/5/98
2/9/98
26/5/95
thadawit
8/4/94
19/2/88
14/8/91
14/8/91
20 NSWLR 427
10.5
18/12/90
86 ARC 212
1/9/95
20/11/87
75 ACR 343
62 ACR 259
17/7/92
6/11/97
7/2/86
17/10/96
10/12/87
10/12/97
57 ACR 301
12/12/97
34 NSW
LR 200
26/3/93
31/5/96
under
63 ACR 123
under
63 ACR 123
27/9/96
5/7/93
96 ACR 550
4/6/96
96 ACR 550
96 ACR 550
39 ACR 1
39 ACR 1
(con-current)
57 ACR 46
8/3/95
26/6/96
27/9/96
8.75
47 ACR 444
17/12/97
11/12/96
78 ACR 300
10.5
23/12/97
30 ACR 103
29/8/86
6/10/94
c
31/8/95
c
31/8/95
13/12/93
none
41 ACR 420
60 ACR 305
56 ACR 36
97 ACR 283
25/7/91
6/8/93
13/4/95
plus
5/9/97
24/11/95
24/11/95
84 ACR 432
58 ACR 174
24/4/96
82 ACR 530
APPENDIX 2
93REGINA -v- Michael John SPITERIUnless other offences were involved, the charges encompassed in the following cases are all pursuant to Sections 233B and 235 of the Customs Act and relate to importation or drugs which had been, or were intended to be, imported.
In Abdallah and Hasan (unreported, CCA, 4/12/1989), the appellants had been convicted of conspiracy to import heroin, viz. 547 grams with an estimated value of $229,000 (wholesale) and $1.6M (retail). Both were was sentenced to 14 years penal servitude with non-parole periods of 6½ years (Abdullah) and 7 years (Hasan). Sentences commenced at the time they were imposed and pre-sentence custody of 13 months and 8 months respectively effectively increased these terms. Abdallah was at the centre of the conspiracy which involved at least 3 other persons and was actively pursued for some 10 months. Hasan was regarded as just as involved. Hasan had previously pleaded guilty to one charge of possession and one of importing 0.8 grams of heroin and had been fined. Abdallah seems not to have had any prior convictions. Appeals against severity were dismissed.
In An Doa Dang (unreported, VicCA, 4 June 1996) the applicant had pleaded guilty to importing heroin, viz. 5281grams (pure) with a street value of at least $12M. The applicant took delivery of lamp bases consigned from Thailand. He and his brother broke them open, took control of the drug and tried to deliver some. They were to receive $20,000 for their efforts. The applicant was regarded as having played an important part in the importation and as more than a mere courier. He had been sentenced previously to 4 years imprisonment for importing heroin and was on parole at the time of the instant offence. He was 24 years old and unco-operative in providing any information concerning others. The Court of Appeal took the view that the head sentence of 14 years imprisonment was “entirely appropriate, if anything merciful” but that the non-parole period of 12 years should be reduced to 10 years. See also Tang, Dang and Quach.
In Araya and Joannes (1992) 63 A Crim R 123 Joannes had pleaded guilty to two charges. One was supplying cocaine by having in his possession more than the trafficable quantity thereof, viz. 8 grams, and on this he was sentenced to imprisonment for 6 months concurrent with the sentence imposed on a second charge. This second was attempting to obtain possession of a commercial quantity of cocaine which had been imported. The approximate wholesale and retail values of the drug the subject of that charge were $1.3M and $2M. Access to the Court file shows the quantity to have been 3½ kg. Although he was regarded as exhibiting less criminality than a courier, the second offence was committed while Joannes was on bail for the first and on this he was sentenced to 11½ years imprisonment with a non-parole period of 7 years. Joannes was aged 38. He provided a deal of evidence for the assistance of the authorities. He had no prior convictions and a deal of character evidence was tendered on his behalf although he did have a history of cocaine addiction and his reward for participation was to be 2 ounces of cocaine. He had taken delivery - one may infer on behalf of someone else who provided money to pay the international courier - and was described as playing a minor but vital role in the big league of drug dealing. In arriving at the term of 11½ years the sentencing judge had commenced with a term of 15 years and then reduced it on account of assistance to the authorities and Section 16 G of the Crimes Act.
Araya pleaded guilty to one count of being knowingly concerned in the importation of the cocaine. His role was to watch over the courier and he was considered to have a greater degree of criminality and the sentencing judge adopted as his starting point 16 years, reducing it to 12 years as the term of the head sentence. The non-parole period was fixed at 8 years. The sentences imposed on both offenders were regarded as within the judge’s discretion.
In Bamford (unreported, CCA (SA), 14 November 1996) the respondent to a Crown appeal had pleaded guilty to importing heroin, the amount being 1.006 kg with an estimated value of between $800,000 and $2,600,000. He was a courier apprehended at the airport and gave no information to the authorities. He was 38 years with a good work record. In consequence of serving in the Army Medical Corp he developed post-traumatic stress disorder which led to him stabbing a person associating with the respondent’s wife. At the time of the subject offence he was still on parole for that stabbing. Taking the view that the post-traumatic stress disorder played a part in the events leading up to the subject offence, the court held that the sentence imposed of imprisonment for 9 years with a non-parole period of 4½ years was not manifestly inadequate although it was towards the lower end of the range.
In Banthithadawit (unreported, CCA, 8/4/1994) the applicant had pleaded guilty to importing heroin. The quantity was 2.12kg (pure) assessed as having a wholesale value of $440,000 and a street value of $4-6M. The applicant was a courier, his reward expected to be about $15,000. Apprehended at Sydney airport he then co-operated with the arresting officers. The extent and worth of this co-operation was questionable but some small discount was allowed for it. The applicant had no prior convictions and his motivation stemmed from his family’s penurious circumstances. This Court refused to interfere with a sentence of 12 years imprisonment with a non-parole period of 8 years saying that the sentence was well within the sentencing judge’s discretion.
In Barrientos (unreported, [1999] NSWCCA 1) the applicant had been found guilty of being knowingly concerned in the importation of 1.55 kg of cocaine, with wholesale and street values of about $240,000 and $880,000 respectively. The applicant was regarded as just above a mere courier. On the ground that the trial judge had made no allowance for good character and assistance to the authorities, this Court reduced by 6 months and 4 months respectively the full and non-parole periods of 8 years and 5 years imposed by the trial judge.
In Barsky (unreported, CCA, 12/12/1997) the applicant pleaded guilty to a charge of importing cocaine, being 3.133kg pure. The value was assessed at approximately $507,000 wholesale and $846,000 street value. He was arrested at the airport, participated in a controlled delivery leading to the arrest of a co-offender but gave little or no other assistance. His actions were described as “calculated and deliberate to benefit himself and those in the organisation with no concern for the hurt and devastation” of his actions and in this Court he was said to be more than a mere courier. For his involvement he anticipated remuneration of US$40,000. He was sentenced to imprisonment for 10 years with a non-parole period of 7½ years. But for his assistance and early plea the head sentence would have been 11 years and 4 months This Court regarded the head sentence as within the range but reduced the non-parole period to 6 years.
Becheru - see Laurentiu and Becheru below.
In Bernier (unreported, CCA, 19/5/98) the applicant pleaded guilty to importing cocaine. The amount was 2.045 kg., said to have a value of between $220,000 and $260,000 (wholesale) and about $800,000 (retail). Apprehended at the airport, the applicant had no prior record, a good employment history, a stable relationship, and good references. The sentencing judge had been satisfied that the applicant was a courier, not motivated by greed but who had been pressured to discharge a debt he owed to a gang who supplied him with cocaine to feed his own addiction and who had threatened him. Given he was regarded as having had a potential defence of duress, the plea was regarded as additional evidence of contrition. The sentencing judge had regard to the fact that imprisonment would be served as a foreign national whose first language was not English and the impact of that imprisonment on his partner and family (although this Court said not much weight to be given to this). This Court regarded the sentence of 12 years as manifestly excessive and even if within the range, gave insufficient weight to the exceptional features of the case. Imprisonment for 9 years with a non-parole period of 5½ years was substituted.
In Blass (unreported, CCA, 18/2/1994) the applicant pleaded guilty to importing and possessing a quantity of heroin weighing 586gms pure. He was immediately co-operative and by the time of sentence had given evidence against a co-offender and undertaken to give evidence at his trial. The applicant was 31 years at the time of sentence with prior convictions for drug matters. He was a courier who had participated in circumstances where, as a result of his drug habit he was in an impoverished situation financially and physically. By the time of sentence he was “making a determined effort to shake off his drug addiction” and the judge took 10 years as an appropriate starting point for the head sentence reducing it on account of the plea and assistance to one of 6 years with a non-parole period of 4 years. The Section 21E credit was 2 years for each of the head sentence and the non-parole period. This court took the view that the sentence was within the judge’s discretion.
Borsa - see Kumsuz and Borsa below.
In Chaaroui (unreported, CCA, 4/11/1994) the applicant had pleaded guilty to importing the equivalent of 92.8 grams of pure heroin, the street value estimated to be between $95,000 and $126,000. The applicant had initially denied involvement. Subject to two arguments of no present relevance and which were rejected, it was accepted by the parties that the sentence imposed by Judge Davidson of 6 years with a non-parole period of 4 years was well within the proper range.
In Chai (1992) 27 NSWLR 153; 60 A Crim R 305, this Court thought a sentence of 24 years with a non-parole period of 16 years entirely justified for an offence of conspiracy to import not less than a commercial quantity of heroin. The amount imported pursuant to the conspiracy was 69 pounds (31 kg) but it is not clear whether this was a pure weight. The appellant’s role was as the recipient of the heroin and apparently the buyer. He had no prior criminal record of significance apart from minor involvement in illegal gambling and pleaded not guilty. The sentencing judge took into account that the appellant was not of Australian origin and hardship on the appellant’s wife and children but characterised the appellant as “a high level principal in an international heroin dealing on a vast commercial scale”. Wood J’s judgment (unreported, 6 March 1991) makes it clear that the purchase price to the applicant was about $4M and imposing the maximum penalty was considered.
Chan Kam Wah - see Lun, Cheung Ying) below.
In Chase (unreported, CCA, 19/10/1990) the appellant was found guilty to a charge of being knowingly concerned in the importation of cocaine, viz. about 762 grams pure. The appellant’s “participation was something considerably beyond that of a courier if he was not in fact the principal”. He had recruited two accomplices one of whom acted as courier, having been given the cocaine by the appellant in America. Apart from the instant offence, the appellant was of good character. The sentence imposed by the trial judge was a fixed term of 8 years, the judge declining to fix a non-parole period because of a view that the appellant would be deported at the conclusion of his imprisonment and saying that 8 years was the minimum term he would fix in any event. This Court said that the term was within the judge’s discretion and compared “reasonably satisfactorily with sentences for similar offences under the earlier legislation allowing for the differences … in regard to remissions.”
In Chenkovit and Others (unreported, CCA, 29/8/86) the respondents to a Crown Appeal had been convicted of conspiring to import and of conspiring to supply heroin. This Court was concerned with only the Customs Act offence. The quantity involved was about 15 kg pure with a value of $19M (wholesale) and $30M (street). All were principals, none had prior records and all had satisfactory personal backgrounds. Allowing the appeals this Court imposed sentences of 20 years imprisonment with minimum terms of 14 years.
Cheung Ying Lun - see Lun, Cheung Ying below.
In Kwong Yue Cheung (1997) 97 A Crim R 283, the applicant was refused an extension of time to appeal against his conviction and sentence for an offence of being knowingly concerned in the importation of 32.41kg (pure) heroin. He had pleaded guilty to a charge of having possession of that (imported) heroin. His delay in appealing was gross, not adequately explained, and the Court said that an extension would only be granted if a substantial miscarriage of justice was demonstrated. The applicant had assisted in the delivery of the heroin to a ship in China and had come to Australia to assist in its unloading and distribution here. On its discharge in Geraldton it was placed in his car. The applicant was no higher than the third or fourth rung down in the hierarchy and this induced the sentencing judge not to impose the maximum of life imprisonment but a sentence of 22½ years with a non-parole period of 13 years. In arriving at these figures allowance was made for 2½ years pre-sentence custody. The sentence reflected also the applicant’s plea to possession, and no prior record. The Court of Criminal Appeal saw nothing wrong with the sentence and declined to give the applicant an extension of time to appeal. Section 16G is not mentioned in the report and the judge’s approach of crediting the applicant with 30 months pre-sentence custody although he had served but 20 months suggests the section had no application.
In Ming Lok Cho (unreported, CCA, 7/2/86) the offender had pleaded guilty to being in possession of imported heroin. The quantity was 2.906 kg pure with a wholesale value of $3,250,000 or more. There is no clear finding of the role of the offender although he had come to Australia to take delivery of the heroin. He had no prior record, had engaged in some ordinary business activities in the past and had a family. In a Crown appeal this Court held that a head sentence of an effective 19 years was within the range open to the sentencing judge but increased the non-parole period to 10 years. The Court indicated that that figure was fixed in light of the special circumstances of the case, would have been longer if the Court had been sentencing at first instance and was not to be regarded as a guide in other cases.
In Chow (1987) 11 NSWLR 561; 30 A Crim R 103 the appellant was convicted of having in his possession not less than a trafficable quantity of imported heroin. A further conviction of conspiracy to supply part of the same heroin was quashed. The amount actually possessed by the appellant would seem to have been about 2 kg, the authorities having substituted plaster of paris for another 26 kg of heroin. These quantities are gross, the amount of pure heroin being about 13 kg. This Court said that one could not say the appellant’s criminality was reduced by circumstances of which he was ignorant but it was by reference to the penalty for a trafficable quantity that he had to be sentenced. He was regarded as higher than a courier. This Court refused to reduce a head sentence of 20 years but, on grounds of parity, and because the conspiracy conviction was quashed, reduced the non-parole term from 14 to 12 years.
In Chu (unreported, CCA, 16/10/1998) the applicant was convicted of importing heroin, the quantity being 851gms pure. He was a courier apprehended at the airport in possession of 2 bottles of alcohol containing the heroin. He then participated in a controlled delivery resulting in the arrest and subsequent sentence of the consignee. In light of the fact there was no plea of guilty this Court held there was no error in the trial judge’s selection by reference to Ferrer-Esis of a head sentence of 9 years notwithstanding the later decisions of Doan, Lawson and Bernier. A discount of 2 years allowed for co-operation was said to be too low and the head sentence was reduced to 6 years. The non-parole period of 4½ years was reduced to 3 years and 9 months.
In Chung (unreported, VicCCA, 8/3/1995) the applicant pleaded guilty to importing 6.353 kg (pure) of heroin. The street value was between $13M and $20M. He was a courier, apprehended at the airport. The sentencing judge had found that the applicant was an addicted gambler and his expected reward a discharge of his gambling debts. The Court of Criminal Appeal said that it should be inferred from these findings that the sentencing judge had also concluded that pressure for the repayment of those debts had occasioned the applicant to become a courier. The judge had been informed that the applicant had been threatened he would be killed if the debts were not paid. Phillips CJ said that because of the findings made the case was “special” and reduced a sentence of 16 years with a non-parole period of 12 years to one of 13 years with a non-parole period of 10 years. The case indicates that remission terms had been abolished in Victoria by the time of it.
In Cunningham and Prince (unreported, CCA, 11/11/ 1991), the applicant Cunningham had pleaded guilty to two counts of importing heroin, and aiding the commission of an offence under the Passports Act. One of the importation charges related to the importation in August 1989 of approximately 173 grams of heroin which, depending on its purity was said to have a value of between $162,000 and $260,000. The second related to the importation in October 1989 of 50 grams of pure heroin with an estimated street value of $100,000. She had also pleaded guilty to possession of not less than a trafficable quantity of heroin, probably the same heroin as the second importation charge and in light of this and the way this Court dealt with the possession and the passport charges, these counts need not be further referred to. The sentencing judge took the view that both applicants were not mere couriers but entrepreneurs. Cunningham had no prior record, did not co-operate with the authorities and pleaded guilty to the first importation only after an indictment was presented. The sentencing judge took the view that she showed no remorse but took into account in her favour the potential adverse impact on her two teenage children.
Prince pleaded guilty to two counts of conspiracy relating to the two importations mentioned and to an offence under the Passports Act. He had prior convictions for offences of dishonesty over some 14 years but co-operated with the authorities. In allowing the appeals this Court took the view that the sentencing judge had overlooked the total effect of the sentences he imposed on the two importation charges. On these this Court imposed on both applicants cumulative sentences of 5 and 7 years respectively with an aggregate non-parole period of 8 years.
In Curry and Hardes (unreported, CCA, 10/12/87) the respondents Patrick and Elizabeth Curry had each been convicted of 5 charges. The first involved conspiring with Hardes to import heroin. In this connection they travelled to Thailand in April 1984 but the heroin was not available and they returned. The second and third were of importations in June and November 1984 for which they shared rewards of $40,000 and $20,000 for acting as couriers of, it would appear, 3 kg. The purity is not stated but the Court recorded that the maximum penalties for these three offences was 25 years.. The fourth charge was of inciting two other men to import heroin. The Currys also stored the heroin they had imported in Sydney and participated in it being drawn upon as required and this led to a charge of conspiracy to supply. Mr Curry was 43 and his wife 39. Both ran a training school for taxi drivers and had clear records. Neither was a drug user and they were described as “cold blooded drug traffickers.” They had been sentenced to an aggregate 20 years imprisonment with a 12 year combined minimum term and non-parole period, as follows -
Count 1 - 3 10 years with a minimum term of 6 years, all concurrent,
Counts 4 1 year with a minimum term of 9 months, also concurrent,
Count 5 10 years with a non-parole period of 6 years, cumulative.This Court held the overall sentences inadequate and increased the sentences on counts 2 and 3 to, respectively, 13 years with a minimum term of 8 years and 16 years with a minimum term of 10 years, resulting in an aggregate head sentence of 26 years with a 16 year combined minimum and non-parole period.
Hardes was convicted of participation in only the first of the conspiracies mentioned but the quantity involved so far as he was concerned rendered him liable to life imprisonment. He was regarded as two rungs higher than the Currys, more active, but not the principal. His sentence was increased to one of 15 years with a minimum term of 10 years.
D’Anna - see Foster and D’Anna below.
In Daubney (unreported, CCA, 6 October 1994) the applicant pleaded guilty to a charge of being knowingly concerned in the importation of not less than a commercial quantity of heroin. He had made some 15 trips to Thailand over 4 years in the course of which he obtained heroin, concealed it in the frames of paintings which he posted to Australia. By agreement one charge was brought but the facts to be taken into account related to the 15 trips. The importations were detected after the last of the trips by which time it was impossible to ascertain the precise quantity of heroin imported. The sentencing judge accepted that he could not be satisfied how much in excess of 16 kg that was. Taken into account were 5 offences under the Passports Act.
The applicant also pleaded guilty to one charge under Section 25(1) of the Drug Misuse and Trafficking Act of supplying heroin. While awaiting trial, he had agreed with a cell-mate to arrange for his wife to pass on a telephone number of someone who would deliver heroin. This matter was dealt with as if a trafficable quantity under that Act was involved and the applicant’s criminality was reflected in the sentence for the importation charge.
At the time of sentencing, the applicant was 40, married with 2 children and a heroin addict. In 1976 he had been sentenced to 3 years imprisonment for importing cannabis and in 1978 to 8 years imprisonment with a 4 year non-parole period on 2 counts of supplying heroin. He had vacillated on the issue of whether he would plead guilty and, to what charges, but was regarded as entitled to some discount for the utilitarian reasons associated with his plea. The Crown had submitted at first instance that after the discount required by Section 16G, an appropriate sentence was between 20 and 25 years with a non-parole period of 13 to 18 years. A sentence of 22 years with a non-parole period of 16½ years was imposed.
Ireland J, with whom Dunford J agreed, after a consideration of Chai, Savvas, Perrier and Lun where the offenders had pleaded not guilty and Pereira, Swann, Ng, Kissner, Gomez and Postiglione where they had, said that the sentence did not reflect sufficiently the applicant’s plea. A sentence of 20 years imprisonment with a non-parole period of 15 years was substituted. Grove J would have imposed terms of 18 and 13½ years.
In De Hesselle (unreported, CCA, 29/8/97) the applicant was convicted of having in his possession 1.93kg (pure) of cocaine suspected of having been imported. The cocaine was said to have a value of $848,000. He was sentenced to 8 years imprisonment with a non-parole period of 5 years. The applicant was not found to be the importer. He had no prior convictions and was apprehended following a sale of the cocaine to another person. At the time of his appeal the applicant did not seek to address this court on the sentence which was viewed as “altogether appropriate”. It would seem that the sentencing judge may have been influenced by parity.
In Dellapatrona (1993) 31 NSWLR 123, the appellants were found guilty of conspiracy to import not less than a commercial quantity of heroin. None was imported but the quantity contemplated was about 3 kilograms. However the evidence concerning purity did not enable a finding that significantly more than 1.5 kg of pure heroin was involved. The appellants were found to be principals and heavily involved in a criminal operation which involved a considerable amount of planning, administration and activity and which seems to have extended over a period of at least 3 months and the spending of a not insignificant amount of money. The report details few of the subjective matters relevant to each appellant. One was 48, the other 50 and each was married with children. Neither had any, or any significant, prior record. One was a resident of Manila. The appellants were sentenced to 13 ½ years imprisonment with non-parole periods of 10 years. The sentencing judge said that but for undertakings on the part of the appellant to assist law enforcement agencies the terms would have been 16 years and 12 years respectively.
After noting that a 16 year term arrived at after the application of Section 16G, represented close to 24 years under the previous sentencing legislation, this Court said that, given the conspiracy was unsuccessful, the sentences were outside the range appropriate in 1988 or 1993. For this reason and because the sentencing judge had proceeded upon the basis that the amount of heroin was 3 kg. the appellants were re-sentenced to imprisonment for 9 years with a non-parole period of 6 years 8 months. But for the appellants’ undertakings to assist, the terms would have been 10 years 2 months and 7½ years respectively.
In Direkpong (1988) 94 FLR 461 the applicant pleaded guilty to a charge of being knowingly concerned in the importation of heroin, the quantity being 273 grams pure. The applicant gave different versions of events but finally said that he was prepared to take full responsibility for the importation. He was a Thai national who came to Australia only about a month before he came to the attention of the authorities. He was sentenced to 13 years imprisonment with a minimum term of 9 years. In this Court it was said that the sentence was near the top of the range but nevertheless proper. However because of the principle of parity and what was described as an unduly light sentence of 10 years with a minimum term of 6 years imposed on a co-offender, the Court reduced the sentence imposed on Direkpong to 11 years with a minimum term of 7 years - one the Court regarded as the minimum appropriate to the his criminality.
In Doan (unreported, CCA, 27/9/1996) the applicant was found guilty of importing heroin, the quantity being 170gms. It appears that the applicant’s sister may have been more actively involved in the importation than the applicant but in this Court it was said that the inference was available that the applicant would receive some portion of a sum of $10,000. It may thus be inferred the applicant was regarded as no higher than a courier. She was sentenced to imprisonment for 6 years with a non parole period of 3½ years - a sentence this court regarded as well within the appropriate range.
In Dodd and Kavinmethavee (unreported, CCA, 30 June 1998) each applicant pleaded guilty to a charge of conspiring to import not less than the trafficable quantity of heroin. The amount would seem to have been between about 110 and 180 grams, described as “not much more than 10% of a commercial quantity”. The applicant Dodd was a heroin addict. He had arranged to meet Kavinmethavee in Thailand and organised three couriers to travel there where they were supplied with heroin by Kavinmethavee. The three couriers were apprehended at Bangkok airport (receiving incidentally sentences of death commuted to 50 years imprisonment) but Kavinmethavee was allowed to return to Sydney where he was apprehended and confessed to his part in the conspiracy). He provided assistance in relation to the apprehension of Dodd.
It appears that about one-third of the heroin was intended for Dodd’s own use but at least some of the balance would have been sold into the market. Dodd was the organiser, he funded the operation, recruited the others and they were to be remunerated by him in cash or kind. He was about 40 years old with a significant criminal record but mostly for relatively minor drug offences. He was on parole at the time of the offence and his plea was during the week preceding the date fixed for his trial and after his co-accused pleaded guilty. The sentencing judge used as a commencing point a notional head sentence of 18-20, years reducing this to 18 for the plea of guilty and 12 because of Section 16G, imposing a non-parole period of 9 years. This Court regarded the result and a number of steps in this process as erroneous and imposed a sentence of 10 years imprisonment with a non-parole period of 6½ years.
Kavinmethavee’s role was described as that of an intermediary in procuring the heroin in Thailand and as higher than that of a bare courier. He made full confession early and pleaded guilty as soon as his record of interview was ruled admissible. He had no prior convictions and his motivation was only financial gain. He was a Thai national. This court reduced the sentence originally imposed of 6 years with a non-parole period of 4 years to one of 4 years with a non-parole period of 2½ years. The court said he was entitled to a substantial discount for his confession, his plea and his assistance in relation to Dodd.
In Drazkiewicz (unreported, CCA, 23/11/1993) the applicant pleaded guilty to being knowingly concerned in the importation of heroin, the quantity being about 165 grams. He was sentenced on the basis of the criminality of a courier. The applicant was 43, of prior good character and since coming to Australia about 11 years earlier had a good work record. He gave no assistance and pleaded guilty at the last moment. His sentence would mean that his house would have to be sold. The sentencing judge had started with 12 years, reducing this to 8 for the factors mentioned and Section 16G. This Court and the Crown regarded the starting point as appropriate but the reduction inadequate. Subject to an allowance for pre-sentence custody, the sentence finally imposed, was of 7 years imprisonment with a non-parole period of 4½ years.
In Droullos, Metcalfe and Laver (1994) 71 A Crim R 82 the appellants pleaded guilty to importing heroin. When apprehended at the airport, Droullos was carrying 101 grams, Metcalf 109 grams and Laver 239 grams (pure weights). The street value for the 449 grams was between $500,000 and $2M. The three were couriers for one Miles who had gone to Thailand where he acquired the heroin and provided it to them. Earlier the Northern Territory Court of Criminal Appeal had held that the appropriate sentence on Miles, who had no prior convictions or involvement in the drug trade and who had pleaded guilty was imprisonment for 11 years with a non-parole period of 6 years but because of co-operation with the authorities had reduced this to 9 years with a non-parole period of 4½ years. In the case reported, head sentences imposed on the appellants were upheld but, on the basis of parity with Miles, their non-parole periods were reduced. The terms of the head sentences and non-parole periods imposed were, on Droullos 8 years and 3 years 6 months, and on Metcalf and Laver 7 years and 3 years.
Duong - See Van Hung Duong below.
In Elchami (unreported, CCA, 15/12/95) the applicant pleaded guilty to importing a heroin being 548 grams pure. He was a 59 year old native of Lebanon in poor circumstances with no prior record. Wishing to visit his son in Australia, the applicant approached a drug merchant who offered to pay the applicant’s fare and about $A20,000 if he brought with him an article or articles. Arrested at the airport, the applicant acknowledged what had happened but provided no assistance. This Court said the case was unremarkable and refused to interfere with the sentence of imprisonment for 7 years with a non-parole period of 5 years. The applicant was a courier.
In El Karhani (1990) 51 A Crim R 123, the respondent to a Crown appeal, described as “an elderly, frail and sick man” aged 62 and an inhabitant of Lebanon, pleaded guilty to importing heroin. The pure quantity was 447 grams. He was caught at the airport, from which time he co-operated. The view was taken that his motivation was to visit his daughter and brothers in Australia. The respondent said also that he was to receive some $2,000. This Court agreed with a submission by the Crown that “having regard to the ‘tariff’ for like cases, the severity appropriate in the circumstances of the offence lies somewhere between a (head) sentence of 7 to 12 years” and concluded that the appropriate sentence but for Section 16 G of the Crimes Act would have been 10 years. Because of Section 16G the Court then reduced this period to 7 years and because the appeal was by the Crown, reduced it further to 6 years. A non-parole period of 4 years was fixed.
In El Khoury (unreported, CCA, 30/9/1994) the applicant pleaded guilty to importing 99.9 grams of pure heroin estimated to have a street value of between $191,000 and $287,000. The report contains few details of the applicant’s circumstances other than that she had seven children in Lebanon some of whom were only teenagers. This Court held that a sentence of 6 years imprisonment with a non-parole period of 3½ years was within the sentencing judge’s discretion.
In Faneite (unreported, CCA, 1 May 1998) the applicant pleaded guilty to importing not less than a trafficable quantity of cocaine and being knowingly involved in the importation of not less than a trafficable quantity. On each count he was sentenced to 6½ years imprisonment with a non-parole period of 4 years. 834 grams (pure) of cocaine was found in the applicant’s shoes and 719 grams (pure) in his wife’s. The applicant was apprehended at the airport and participated in a controlled delivery leading to the arrest of two further people. The applicant undertook he would give evidence at their trials. At the time of arrest the applicant was 61, a resident of Venezuela with no prior record. The sentencing judge took the view that but for the early pleas of guilty and the applicant’s co-operation, the appropriate sentence would have been 10 years with a non-parole period of 6½ years but those factors justified a discount to terms of 6½ years and 4 years. These periods were further reduced by 18 months for the undertaking to give evidence. This court took the view the sentences were well within the appropriate range.
In Ferrer-Esis (1991) 55 A Crim R 231, the appellant had pleaded guilty to a charge of possession of 1819 grams (pure) of cocaine which had been imported. The appellant was found to be no more than a courier. The sentencing judge had found he was contrite. This Court upheld a Crown appeal and imposed a sentence of 9 years with a non-parole period of 5 years. Little if any weight was given to the guilty plea. The Court said that the prior pattern of sentencing indicated the appropriate range for the head sentence was between 8½ and 11 years.
In Foster and D’Anna (1992) 59 A Crim R 14 the respondents to appeals by the Crown in right of the State of Western Australia had pleaded guilty to charges of conspiracy to import, importing and possession of a trafficable quantity of heroin. The amount involved was 204 grams pure, each respondent having concealed half of this in a body orifice. They were addicts and the importation was a joint enterprise with their supplier and the profits were to be shared. The predominant motive of each was greed. Each was credited with having given substantial co-operation but, because of the strength of the case against them, little credit for their pleas. Allowing the appeal, the court took the view that the starting point for the sentence on D’Anna for conspiracy should be 14 years, reduced to 8 years for his plea, co-operation and addiction and undertaking to give evidence and by another 6 months because it was a Crown appeal and by a further 2 months for pre-sentence custody. The sentences on the other charges should be concurrent terms of 6 years. The non-parole period should be 4 years and 9 months less 6 months for good conduct remissions. The starting point in the case of Foster, who did not have D’Anna’s record of some drug offences, was 12 years with more or less corresponding reductions in the other periods, leading to a head sentence of 5 years 8 months. Again concurrent sentences were imposed on the other charges.
The report refers to Ferrer-Esis and to the range of sentences prior to the adjustment required by Section 16G referred to therein. From this and the fact that the section was not referred to by the Western Australian court I infer that no Section 16G adjustment was then required in that State. Hence in Appendix 2 and whenever I have used the case for the purposes of comparison, I have proceeded on the assumption that a Section 16G adjustment needs to be made by me.
In Gibson (1991) 56 A Crim R 1 the respondent to a Crown appeal had been found guilty of being in possession of 1,076 grams (pure) of cocaine. He was convicted at the same time of an offence under the Proceeds of Crime Act (Cth.). This Court said that the cases of Lam, Ghomari, Taha, El Karhani and Ferrer-Esis demonstrated that the sentences imposed at first instance of 5 years and 4 months on the first charge and 6 months cumulative on the second, with an aggregate non-parole period of 3 years were manifestly inadequate and re-sentenced the respondent to imprisonment for 7 years on the possession charge and a further one year on the second charge. A total non-parole period of 5 years was specified. The Court accepted findings by the sentencing judge to the effect that the respondent had received the cocaine intending to sell it or find a buyer for the person who had supplied it, had developed cold feet and decided to hand it back but said that, nevertheless, the respondent was in a position where, at the least, he was prepared to assist in and facilitate the supply of a significant quantity of drugs. The respondent had his own business, a wife and child all of which the sentencing judge thought the respondent would probably lose. He was 41 and had no prior convictions but, consistently with his plea, displayed no contrition.
In Ghomari (unreported, CCA, 12/4/1991), the applicant pleaded guilty to possession of heroin reasonably suspected of being imported. The quantity was 345 grams pure, the street value of which was estimated to be approximately $500,000. This Court refused to reduce a sentence of a minimum term of 8 years with an additional term of 2 years and 8 months. The application for leave to appeal was heard after the introduction of Section 16G of the Crimes Act but at least a majority of the Court held that even under that regime, no reduction was called for.
In Gurung (unreported, CCA, 22 May 1992) the applicant pleaded guilty to importing heroin. The quantity involved was 151 grams (70% pure) and the applicant was sentenced to imprisonment for 6½ years with a non-parole period of 4½ years. He appealed on the ground of severity, particularly having regard to the sentence imposed on a co-offender. This Court declined to interfere.
Hasan see Abdallah and Hasan above.
In Hollins (unreported, CCA, 31/5/1996) the applicant pleaded guilty to a charge of importing heroin, being 3.4 kg pure. He was a courier, arrested at the airport, co-operated with the authorities and gave evidence against a co-offender. In consequence his sentence would be served in protective custody. The applicant was 49 years of age and had no prior convictions. He had a creditable military record. Principally on a parity grounds this Court reduced a sentence of 7 years and 2 months imprisonment with a non-parole period of 4 years and 9 months to one of 6½ years imprisonment with a non-parole period of 4 years. It was said in this Court that the sentencing judges starting point of 18 years prior to the section 16G discount was high but was offset by other leniency.
In Siew Beng Hoong (1994) 75 A Crim R 343, the applicant had been convicted of importing heroin. The quantity was 2,671 grams pure. There is nothing to suggest he was treated as other than a courier. He was 55, with a family, unable to speak to anyone in prison and western food made him sick. He had been treated for TB which was at bay at the time of sentencing. The sentence imposed was of 14 years imprisonment with a non-parole period of 7 years, the latter reflecting pre-sentence custody of 8 months. The Queensland Court of Appeal said that on the authorities it was impossible to regard the sentence as too heavy.
In Jelks (unreported CCA, 1/12/1995) the applicant pleaded guilty to a charge of importing, it seems, cocaine although heroin is mentioned. The quantity was 404 grams pure said to have a bulk value of $60,000 and a potential street value of some $115,000. The applicant was 36 years with no criminal record but with a history of alcohol and drug abuse. He was sentenced as a courier, the sentence imposed being 8 ½ years imprisonment with a non-parole period of 5 years. This court declined to interfere, inter alia, explaining why little weight could be given to the applicant’s position as a foreigner imprisoned here.
Kavinmethavee - see Dodd and Kavinmethavee above.
In Kumsuz and Borsa (unreported, CCA, 4/4/1990) Kumsuz had been convicted of being knowingly concerned in the importation of heroin and of having possession of that heroin. The amount involved was 731 grams pure, with a value of between $1M and $1.5M. Concurrent sentences of imprisonment for 17 years, with a minimum term of 11 years were imposed. He had engaged an accomplice to travel overseas to collect heroin which the appellant there provided. The two travelled part of the way back together, separating in Singapore. The appellant, regarded as more than a courier, met the accomplice and took possession of a suitcase containing the heroin at Sydney airport. The appellant was 51, a man of prior good character who had involved himself in charity work. This Court recorded that the experienced counsel who appeared for Kumsuz conceded that the sentence imposed on Kumsuz was within the then current sentencing range but contended that on the basis of parity and because it was affected by factual error, the sentence should be reduced. Leave to appeal against sentence was refused.
Borsa had been charged and convicted of only the second offence. He had been involved in the transfer of money to be used by the accomplice for an airfare and had met the appellant at Sydney airport. It was into a car owned and driven by Borsa that the suitcase had been placed. The trial judge was not satisfied that Borsa expected more heroin to be in the suitcase than the 41 gr. it in fact contained when the offenders were apprehended. (The accomplice had been apprehended prior to arriving in Sydney.) Borsa, who abandoned an appeal against severity, was sentenced to imprisonment for 9 years with a minimum term of 4 years and 9 months. (A later statement in the report of the sentence imposed on Borsa is erroneous.)
In Kapeliotis and Mari (1995) 82 A Crim R 300, following his conviction, Kapeliotis had been sentenced to concurrent terms of imprisonment for 12 years with a non-parole period of 7 years for his part in conspiracies with, inter alia, George Savvas - see R v Postiglione (unreported, CCA, 13/12/1993) above - to import a commercial quantity (some 20 kg) of heroin and to import a similar quantity of cocaine. He had frequently visited Savvas in prison and been the latter’s agent outside that institution. Kapeliotis had a prior prison term for a drug offence.
Mari had been engaged by Postiglione to travel to South America in pursuit of the cocaine and to arrange finance. He had at least some success in that regard and was given instructions covering things such as packaging, price, flight and consignment details and contacts. He was promised $100,000 when the consignment was delivered. Mari had a prior conviction of conspiring to import heroin. He also pleaded not guilty and was sentenced to imprisonment for 8 years with a non-parole period of 6 years. This Court declined to interfere with the sentences imposed on either.
In Kelleher (1996) 89 A Crim R 215 was an appeal from an order fixing a non-parole period of 13 years in respect of a sentence of life imprisonment imposed in September 1988 in respect of a charge of conspiracy to import a commercial quantity of heroin. The applicant had recruited a person to go to Hong Kong on a number of occasions with money provided by the applicant, purchase heroin there and bring it to Australia. In totality some 22lbs (10kg) of heroin were imported of which 16lbs (approx 7.3kgs) found its way into the community. The applicant’s criminality was described as at the highest level and his motivation completely base, i.e. to enrich himself. His past criminal record and his lack of contrition at the time of the original sentence was said to disentitle him from receiving lenient treatment.
At the time of fixing the non-parole period, Newman J commenced with a period of 22 years reducing that, on account of, inter alia, a change of attitude by the applicant in the meantime, to 16 years reducing it further to take account of pre-sentence custody. This Court took the view that the 16 year period was not excessive given the criminality.
In Keyes (unreported, CCA, 27/9/1996) the applicant pleaded guilty to two charges of conspiring to import not less than a commercial quantity of heroin, one charge of conspiracy to import not less than a trafficable quantity of heroin and one charge of breaking, entering and stealing some 83 computer components worth some $108,000. The conspiracies occurred while the applicant was subject to a recognisance and were described as sophisticated and well planned operations. In connection with the first two the applicant purchased a can sealing machine and had it delivered to Thailand and provided $30,000 for the purchase of heroin which was to be sent to Australia via, in one case the Cook Islands, and in another an island off Papua New Guinea. In the case of the first conspiracy 2.4 kg of high grade heroin was involved and in the case of the second some 5 kg. Pursuant to the second conspiracy the Applicant purchased an inflatable dingy travelling with it to Cape York and then in it to islands in Torres Strait. The third conspiracy - with a different co-offender than the first two - involved the purchase of a boat in the United Kingdom for about 200,000 pounds sterling. The Applicant was the principal organiser. He was arrested in Spain and did not resist extradition. After his arrest he co-operated with authorities and gave undertakings to give evidence against his co-conspirator in respect of the third count. The sentencing judge adopted as a starting point 22 years imprisonment with a non-parole period of 15 years reducing this by 20% for the co-operation and a further 2½ years on account of the time spent in custody in Spain. This Court declined to interfere with the resulting sentence of 15 years imprisonment with a non-parole period of 9 ½ years. The sentence for breaking, entering and stealing was 2 years to be served concurrently.
In Kingswell (unreported, CCA, 2 September 1998) the appellant was convicted of attempting to obtain possession of heroin the amount involved being 2.0958 kg. with a street value of $6,000,000. Packages containing the heroin were despatched from Malaysia addressed to a private box at a newsagency which the appellant had some role in arranging. There they were intercepted and much of the heroin removed. The packages were collected by one Lea (also mentioned in this appendix) and delivered to the appellant’s address where the appellant took possession of them. Although the appellant challenged his conviction, he did not pursue a challenge against the sentence of life imprisonment with a non-parole period of 15 years and 4 months.
In Kissner (1993) 69 A Crim R 83 the respondent to a Crown appeal had pleaded guilty to two charges of being concerned in the importation of cocaine. The quantity involved in each charge was, or was about, 1232 grams. The respondent was in the position of an Australian principal. He had a prior record which included illegally trafficking in narcotics in South America in about 1980. This Court took the view that his pleas of guilty did not evidence contrition and were but a recognition of the inevitable. James J, with whom Sheller JA and Campbell J concurred, referred to statements in Ferrer-Esis and Raz to the effect that the appropriate range of sentences for couriers, before Section 16G is taken into account, is 12 to 16 years and said that this range reflected a plea of guilty. His Honour observed that the respondent’s role was much greater than a courier, and, recognising the case was a Crown appeal, adopted as a starting point which reflected all the objective and subjective features, 18 years. These features included two other charges, one of possession of the cocaine the subject of one of the importation charges, and one of possession of some cannabis. After taking account of Section 16G, concurrent sentences of 12 years were imposed with a non-parole period of 9 years. The courier who carried out the second importation, Raz, - see Raz below - was detected at the airport.
In Knott (unreported, CCA, 16/3/1990) the applicant pleaded guilty to two charges of conspiracy to import cocaine and two charges of possession of that cocaine. The quantity involved on each occasion was about a kilogram including packaging. On one occasion it was about 55% pure and, possibly the same on the other occasion. The applicant made a profit of about $50,000 each time. The applicant had recruited the courier who had imported the drugs, and had on one occasion travelled overseas to supervise the genesis of the enterprise. On apprehension he was not co-operative until he realised the police had recorded his conversation. He then offered to co-operate and when allowed at liberty to make contact with another offender, absconded. This Court declined to interfere with cumulative sentences of 8 years on the first two offences committed in October 1988 and 12 years on the second two, committed in June 1989. A minimum term of 15 years was fixed.
In Kogelbauer (1992) 65 A Crim R 357 the applicant pleaded guilty to importing cocaine, the quantity being 269 grams pure. By majority, Hunt CJ at CL dissenting, this Court refused to interfere with the sentence imposed at first instance. It was of imprisonment for 8½ years with a non-parole period of 6 years. The applicant was addicted to cocaine but the importation was largely for the purposes of funding a holiday in Australia. He was arrested at the airport and his conduct between then and the time he was sentenced was the subject of very favourable report. A matter upon which Hunt CJ at CL placed a deal of weight, but the other judges did not, were the conditions upon which the applicant, as a person liable to be deported at the conclusion of his sentence was held in prison. {See also on this topic Pereira (1991) 57 A Crim R 46 and Chebat (unreported, CCA, 25 July 1991)}.
In Kolalich and Begovic (unreported, McInerney J, 14/8/1991) the defendants were convicted of conspiracy to import heroin. The amount involved was 2.18 kg pure. Both were regarded as principals and sentences of imprisonment for 13 years with non-parole periods of 10 years were imposed. The conspiracy and the acts done in pursuance of it involved financing the venture, obtaining the heroin in Thailand, and persuading other persons to join in the importation of it. McInerney J found that that each defendant was motivated entirely by greed and there were no extenuating circumstances in their involvement. Each had a not insignificant criminal record. In Kolalich’s case this included the possession of heroin (3 months gaol) and the possession of a drug of addiction (fined), attempted rape and 3 counts of burglary. Begovic had twice been convicted of offences involving alcohol and motor vehicles and on one occasion of causing grievous bodily harm. There were some subjective matters taken into account in favour of each defendant but it does not appear they were of great weight. At the time of sentence Kolalich was aged 34 and Begovic 55.
In Ku [1998] SCACT 24 the defendant pleaded guilty to possession of 15gms of heroin and attempting to obtain possession of 1.6259kg of heroin. The heroin had been sent via a freight courier company in six hollowed out books. The offender had apparently come to Australia for the purposes of receiving delivery of the consignment. He was regarded as a courier although not a mere “mule”. He was 31 years and as a result of his arrest his engagement was broken. He seems to have been regarded as remorseful. He participated in the venture for an anticipated $10,000. Higgins J imposed concurrent sentences of imprisonment for 6 and 14 years with a non-parole period of 10 years. As I understand it, Section 16G has no application in the Australian Capital Territory and for comparative purposes, these terms need notional adjustment.
Kwong Yue Cheung - see under Cheung, Kwong Yue above.
In Lakeman (unreported, CCA, 8/6/1990) the applicant pleaded guilty to importing heroin. The quantity was 74 grams pure, with a potential street value of between $100,000 and $120,000. The applicant was a courier, caught red-handed at the airport. She was an addict but had no past criminal record. She was to be paid $10,000 for importing the heroin. The Crown conceded that the sentence imposed of 11 years imprisonment with a minimum term of 8½ years was on the high side but the Court disagreed, saying that it was well within the sentencing judge’s discretion and that the sentence and those in the future could be expected to be heavier than in the past.
In Lam (1991) 53 A Crim R 118 the applicant pleaded guilty to being in possession of a prohibited import, viz. 1,433 grams (pure) of heroin with an estimated street value of $3M. The applicant had been sentenced to a minimum term of 7 years imprisonment with an additional term of 2 years and 4 months. The sentencing judge had approached the matter on the basis that the applicant had no role in the importation of the heroin but, for a reward of $10,000, was minding it for someone else and was well down the line so far as culpability was concerned. This Court held that the sentence imposed was within the bounds of the judge’s discretion.
In Lama (unreported, CCA, 4/8/1995) the applicant pleaded guilty after a sentence indication hearing. It may be inferred from the report that the charge was of possession or attempted possession of imported heroin. The quantity involved was just under 1.5 kg. After telephone calls and meetings designed to minimise the prospect of being caught, the applicant met the international courier of the heroin. The sentencing judge indicated that, but for assistance given to the police, the sentence would have been 10 years imprisonment with a non-parole period of 6 years. As it was, the sentence imposed was one of 8 years with a non-parole period of 5 years and 2 months. This court saw no error in the sentencing process.
In Lara-Gomez (unreported, CCA, 24 April 1996) the applicant pleaded guilty to two charges of possession of cocaine reasonably suspected of having been imported. The amount involved was 77.275 kg pure with an estimated street value of in excess of $44M. The cocaine was found partly in a flat rented by the applicant and partly in a nearby garage. The applicant came to Australia for the purpose of establishing the facilities necessary to warehouse the cocaine, took custody of it and he was also to distribute it by fulfilling orders. He was not regarded as a principal but as having a very major role. He pleaded guilty but provided no co-operation. He was 38 years at the time of sentence, had a prior good record but was not regarded as contrite. The Crown case, particularly in respect of the majority of the cocaine, was described as very strong. This Court declined to interfere with concurrent sentences of 18 years imprisonment with a non-parole period of 13 years and 6 months imposed by Studdert J. Allen J, with whom the other members of the court agreed, said that but for the applicant’s pleas of guilty, prior good record and that he was not a principal, a sentence of life imprisonment would have been appropriate.
In Laurentiu & Becheru (1992) 63 A Crim R 402 the applicant Becheru had been found guilty of a charge of possession of imported cocaine, the quantity being 50 grams with an estimated value of $25,000 (wholesale) and $50,000 (retail). He had been sentenced to what was effectively 7 years with a non-parole period of 4 years and 6 months. Laurentiu had pleaded guilty to a similar charge and had been sentenced to 15 years imprisonment with a non-parole period of 10 years. 2 ½ years of these periods overlapped a minimum term Laurentiu was serving for a prior offence under the Drug Misuse and Trafficking Act (NSW) of supplying heroin. But for the interception of the importation and the substitution of sugar for most of the cocaine imported the quantity would have been about 1.6kg, the wholesale value of which was an estimated $250,000. This Court took the view that while the applicants stood to be sentenced for possession of 50 grams, the latter fact, and the inspection by the applicants of a number of packages was relevant in showing participation in an organised importation of a drug destined for commercial distribution.
After referring to El Karhani, Maddocks, Muanchukingkan, Ndubuisi, Gurung, Ghomari, Ferrer-Esis and Lam , Wood J, with whose judgment Sharpe J agreed, held that the sentence on Becheru, who was described as paid “back-up muscle”, was not out of line with the pattern so disclosed. That imposed on Laurentiu, some few rungs down from a principal, was also not outside the permissible range when his past history, lack of contrition and unfavourable prospects of rehabilitation and the fact that his offence had been committed while on bail for the offence under the Drug Misuse and Trafficking Act were taken into account.
Laver - see Droullos, Metcalfe and Laver above.
In Lawless (unreported, CCA, 24/6/1994) the applicant was found guilty of possession of a quantity of imported heroin. (The importation was by two brothers - see Gurung (supra)). The quantity which the applicant had in his possession was but 16 grams, the authorities having taken control of the shipment previously and substituted an inert substance for part of it. The sentencing judge found that the applicant’s intention was to assist a co-offender to take possession of whatever had been imported, his reward being at least the opportunity of acquiring 10 to 14 grams on credit. He was regarded as playing a significant part in the intended distribution. The sentence imposed was for possession of 16 grams albeit criminality was judged on the basis of the wider intention. This Court declined to interfere with a sentence of 5 years with a non-parole period of 3 years.
In Lawson, Wu and Thapa (unreported, CCA, 12 December 1997) was a Crown appeal. Lawson and Thapa had pleaded guilty to a charges of importing not less than a trafficable quantity of heroin. The heroin was being carried in condoms which they had swallowed. Lawson had 320 grams pure, Thapa 346 grams pure. Each had been in a bad financial situation when approached to participate in the enterprise. Neither had any prior convictions although Thapa was a heroin addict. Each was merely a courier, aged almost 19 and found to have excellent prospects of rehabilitation. Lawson was to receive $US10,000 and Thapa $US5,000. Their sentences would be served in what was to them a foreign country in which they had no relatives. This Court held that the sentencing judge had erred in principle and re-sentenced each to imprisonment for 6 years with a non-parole period of 3 ½ years.
Wu had pleaded guilty to a charge of being knowingly concerned in the importation of the heroin. He had played a greater role. He had been recruited in Hong Kong, travelled to Bangkok where he had been suppled with the heroin and had watched Lawson and Thapa swallow it. He had come with them to Australia “so they no run away” and had responsibility to take charge of the heroin after the couriers passed it and to deliver it to consignees. After his arrest and some initial denials of involvement, he participated in an attempt at a controlled delivery which was unsuccessful. Wu was 38. In 1983 he had been convicted in Thailand of smuggling heroin as a courier, and served some 11 years imprisonment. In consequence of some traffic accidents he got into debt. He gambled without success to resolve these difficulties and, according to Wu, he was then offered the chance to help smuggle the heroin. The sentencing judge took the view that there was little that could be said in Wu’s favour and sentenced him to 9 years imprisonment with a non-parole period of 6 years. This Court held that the judge’s starting point of 15 years, before allowing a deduction for Section 16G and assistance, was too low and should have been at least 18 years. However, taking the view that the allowance for assistance was low, that on Crown appeals the Court traditionally imposed a sentence lower than that which should have been imposed at first instance and allowing the appeal would not result in a substantially different sentence, the Court allowed the sentence to stand.
In Le (unreported, CCA, 22/11/1996) the applicant pleaded guilty to importing heroin, the amount being 570gms pure said to have a wholesale value of $196,000 and a street value of between $1.14M and $1.7M. The applicant initially denied knowledge of the heroin but later gave some assistance to the authorities for which she was given credit. The sentencing judge was satisfied the offence was committed because of pressing financial commitments. This Court declined to interfere with a sentence of 7 years imprisonment with a non-parole period of 4½ years. The report does not make clear what the applicant’s role was although there do seem to have been other people involved.
In Lea (unreported, CCA, 26 May 1995) the Crown appealed against a sentence of 8 years imprisonment with a non-parole period of 4½ years. The respondent had pleaded guilty after a sentence indication hearing to being knowingly concerned in the importation of heroin, namely 2.0958kg and to a second charge of supplying 749gms of cannabis leaf, this apparently being his remuneration for participating the heroin transaction. Packages containing the heroin were despatched from Malaysia addressed to a private box of the Appellant at a newsagency. There they were intercepted and much of the heroin removed. The packages were collected by Lea and delivered to one Kingswell also mentioned in this appendix. The sentencing judge had described the respondent as a “vulnerable dupe” and “messenger” and although this court thought the sentence “undoubtedly lenient in the extreme” thought it was not such as to warrant appellate intervention. The respondent had a previous conviction for possessing prohibited imports.
In Lee and Ng (unreported, CCA, 20/12/1996) the applicants pleaded guilty to importing heroin. When apprehended at the airport Ng was carrying 301gms and Lee 488gms of pure heroin. Each was a courier, 23 years old with no prior criminal record, no connections in Australia, and each admitted his guilt and pleaded guilty at the earliest opportunity. Each gave as much information as he could to the authorities but the information was limited. Appeals against head sentences of 8 years imprisonment were abandoned. This court reduced the non-parole periods of 6 years which had been fixed to 5 years and 3 months.
In Leff (1996) 86 A Crim R 212 the appellant had been found guilty of two counts of being knowingly concerned in the importation of cocaine. The quantity involved on each occasion was about 1.25 kg pure. The first importation was that the subject of consideration in Kissner , the second the subject of consideration in Raz . The applicant’s involvement had been in America. Her role was said to be “at a level somewhere close to that of a full principal, but considerably more than that of a courier”. Her criminality was regarded as a little less than that of Kissner, although the latter was entitled to recognition for his plea. The appellant was 56 when sentenced, with no prior record. Her husband in America was seriously ill and she would have no family support during a imprisonment in Australia. The argument advanced on sentence was only one of parity but this Court declined to interfere with concurrent terms of 13 years 4 months and a non-parole period of 8 years 6 months.
In Leutkens (unreported, CCA, 14/6/1990) the applicant pleaded guilty to importing heroin. The quantity was 170 grams pure with a value, depending on demand at the time, of between $170,000 and $500,000. The sentencing judge concluded that the importation was professional and the applicant was a courier. He was not co-operative. The applicant was 28 when sentenced and had prior convictions for, inter alia, possession of Indian hemp, assault, and breaking and entering and abduction. On the abduction charges he had been sentenced to 2½ years imprisonment. He was sentenced to imprisonment for 12 years with a minimum term of 9 years. This Court dismissed the appeal, describing the sentence as severe but within the range of the sentencing judge’s discretion. The Court said that more guidance as to the proper range was to be obtained from Putcharkan and Direkpong than from Poyner .
In Li (unreported, CCA, 19/2/1988) the applicant pleaded guilty to importing a commercial quantity of heroin. The quantity involved was 2,172 grams pure. There was evidence which the Court said had to be treated with circumspection that the street value was over $6M. The applicant was caught at the airport with the heroin strapped to her body, at which stage she agreed to provide, and then provided, assistance to the authorities in an attempt to apprehend the persons who were to receive the heroin here. She was a courier who was to receive about $A10,000 for her efforts. She had no prior criminal record, a satisfactory work history but had fallen into bad company. Her imprisonment would be served in what was, to her, a foreign country where she had no friends or relatives. This Court refused to interfere with a sentence of 17 years imprisonment with a non-parole period of 10 years.
In Wing Tin Li (1998) 1 VR 637, the applicant was convicted of one count of attempting to obtain possession of a commercial quantity of heroin and one count of possession of a trafficable quantity of heroin, both prohibited imports. The quantity involved in the first charge was 2 kg (pure) with values of $440,000 (wholesale) and $3M (retail). The quantity involved in the second was part of this 2 kg after the police had intercepted the consignment prior to the applicant taking delivery of it. The applicant was sentenced to concurrent terms of 10 years and 6 years imprisonment with a non-parole period of 7 years. Finding that the sentencing judge had failed to have regard to Section 16G of the Crimes Act, and that the sentence would have been less if he had not forgotten about it, the Victorian Court of Appeal re-sentenced the applicant to concurrent terms of imprisonment for 7 and 4 years with a non-parole period of 5 years. The report does not indicate any consideration of sentencing patterns beyond those referable to Section 16G.
In Lian (1990) 47 A Crim R 144, the applicant had been convicted of possession of imported heroin and of supply of it. The quantity involved was about 7.92 kg (pure), worth about $1.7M wholesale. The applicant was the principal in the operation. This Court held that there had been error in the sentencing process and re-sentenced. It was said that the minimum and non-parole terms under the pre-Sentencing Act regime should have been 15 years and accepted that this translated to a post-Sentencing Act minimum term of 8 years 9 months and 6 days. The Court imposed an additional term of 5 years.
In Lim (unreported, CCA, 26/6/1996) the applicant pleaded guilty to a number of offences. One was of being knowingly concerned in the importation in January 1994 of 6.559 kg. (pure) of heroin said to have a wholesale value of $2.16M. The second was of being in possession in June 1994 of not less than 2.98 kg. (pure) of heroin said to have a wholesale value of $775,400. This Court expressed the view that the June offence related to a different shipment from the January one. The third and fourth were of being in possession of 2 automatic pistols, in connection with which the sentencing judge took into account a charge of goods, being $65,000, in custody. On these charges the applicant was sentenced respectively to imprisonment for 18 years with a non-parole period of 13½ years, imprisonment for 15 years with a non-parole period of 11 years, and two fixed terms of 4 years. The applicant was about 33 when sentenced, a resident of Singapore and he had no prior convictions although there was evidence he had been in the heroin trade. The sentencing judge was satisfied the applicant was one of a team of persons involved in large scale importation of heroin, that he was not a principal but had a high ranking role involving the recruitment of couriers, storing the heroin in Australia, distribution of it at a wholesale level, receipt of money and its remittance overseas. He gave some slight assistance to authorities but there was no evidence of remorse or contrition. The sentencing judge’s starting point prior to the application of section 16G was 27 years. This Court dismissed the appeal.
In Linke (unreported, CCA, 4/3/1988) the applicant pleaded guilty to being knowingly concerned in the importation of heroin, the quantity being 1,783 grams. The estimated street value was in the order of $2.4M. The applicant was caught at the airport. In light of her past, she was sentenced as a professional in the work of couriering prohibited or restricted imports. She rendered valuable assistance to the authorities, assistance which was productive of positive results in Australia and Hong Kong. The Court recognised the consequences of this to the applicant so far as her imprisonment was concerned. In the circumstances of the case the Court treated the plea of guilty as manifesting a significant degree of contrition. Holding that the sentencing judge did not give sufficient weight to these factors this Court reduced the sentence imposed from 15 years with a minimum term of 10 years to imprisonment for 11 years with a minimum term of 7 years.
In Lommahadthai (unreported, CCA, 11/12/97), the applicant had pleaded guilty to 3 charges of being knowingly concerned in the importation of heroin. There had been 3 importations of a trafficable quantity and he was involved “on an organisational and entrepreneurial” in each. The report does not indicate the quantities involved but the Court file shows that the amount in one importation was 847 grams pure with an estimated street value of $1,151,920. The quantities involved in the other charges were not known with any degree of precision. Lommahadthai was sentenced to imprisonment for 13 years with a non-parole period of 9½ years. Any challenge to the head sentence was abandoned and this Court said no error had been demonstrated in the selection of the non-parole period, which amounted to 73% of the head sentence.
In Lopez-Alonso (1996) 86 A Crim R 270 the applicant was convicted of importing not less than a trafficable quantity of cocaine, being 1.6kg pure. The applicant, who seems to have had no previous criminal record, was regarded as a courier but the report discloses little else by way of findings as to the extent of his involvement or subjective circumstances. Although this court held that the sentencing process had miscarried and the Court should form its own view, it was held that the sentence originally imposed of 9 years with a non-parole period of 6 years was an appropriate sentence.
In Luckier (unreported, CCA, 26 March 1993) the applicant was convicted of importing cocaine, being 3.387kg. The report contains little detail as to the objective, and subjective, circumstances other than that the applicant was a resident of Columbia and aged 68 at the time of his appeal. This Court refused to interfere with a sentence of 8 ½ years imprisonment with a non-parole period of 5½ years, saying it was well within the range of the sentencing judge’s discretion.
In Cheung Ying Lun (unreported, Badgery-Parker J, 6/8/1993), the defendant pleaded guilty to being knowingly concerned in the importation of heroin. The amount involved was something less than 50 kg with a street value estimated at $75M. (It would seem to have been only 38 kg - see R v Wah and others, and Ng (unreported, 25 July 1991) referred to below.) Cheung was a senior customs official officer in Hong Kong and a, if not the, principal in the transaction. He was sentenced to imprisonment for life with a non-parole period of 22 years. He was 44, had a long admirable record and was regarded as of good character, apart from the subject offence which Badgery-Parker J felt was probably committed largely for the benefit of his family and out of disenchantment with the rewards he had received in his employment by comparison with those enjoyed by his wider family. Consideration was given to the fact that the defendant’s imprisonment would be served in what was, to him, a foreign country, away from his children and wife who, because of her state of health, Cheung was unlikely to see again.
The situation of other participants in that importation was considered in R v Chan Kam Wah and others (unreported, CCA, 13/4/1995). Badgery-Parker J had not, but this Court proceeded on the basis that Section 16G required a notional reduction from the maximum penalty of life imprisonment and imposed sentences which can be summarised as follows:-
Name Age Involvement Sentence
Cheung 35 financing and handling 24 yrs; 18 yrs NP
Ah Ting 43 active liason, significant link 24 yrs; 18 yrs NP
Law Yat 41 handling in Hong Kong and Sydney 24 yrs; 18 yrs NP
Chi 34 liased, took delivery and transported 19 yrs; 15 yrs NP
shorter involvement, illness in jail
Chan 34 similar, but slightly less than Chi, no 20 yrs; 16 yrs NP
illnessAll of these persons had either no, or no significant, prior criminal history. See also Ng (unreported, 25 July 1991) below.
In McCauley (unreported, CCA, 17 December 1997) the applicant sought an extension of time within which to appeal against the sentence imposed after pleading guilty after a sentence indication hearing of 14 years imprisonment with a non-parole period of 9 years. But for an undertaking to co-operate in the future the sentence would have been 17 years with a non-parole period of 11 years. The charge was of possession of imported heroin, the quantity being 9.7 kg. pure worth an estimated $21M. As an intermediary on behalf of another, the applicant had apparently agreed to pay $114,000 per kg for this. The value, presumably street value, of the parcel was said to be $21M. The application was refused, the Court saying that his role was critical for without him the distribution mechanism would not have been put in place and that the sentence imposed was within the range. “He was the person who, it can be inferred, for profit located a buyer in this country and proceeded to negotiate the price”. Mr Nicholson QC, the experienced counsel who appeared for the applicant, said that the basis of the application was nothing but parity.
In Maddocks (1990) 51 A Crim R 376 the appellant had pleaded guilty to a charge of importing heroin. The quantity was 44 grams pure, estimated to have a wholesale value of $6,300 and a street value of about $80,000. The appellant was caught red-handed at the airport and regarded as a courier. He was 28 and his only prior conviction was in 1980 for the unauthorised taking of a vehicle. This Court took the view that the sentencing process at first instance had miscarried and re-sentenced. The judge had been influenced by the decision in Ugur . This Court thought the facts in that case were comparable and, subject to changes required by Section 16G, sought to impose what would be, in effect, the same sentence. The result was a head sentence of 5 years 4 months and a non-parole period of 4 years.
In Mai and Tran (1991) 26 NSWLR 371; (1992) 60 A Crim R 49 the appellants were found guilty of a charge of possession of a trafficable quantity of heroin which had been imported. The appellant Mai was also found guilty of having attempted to obtain not less than the trafficable quantity of heroin which had been imported but in light of the way the trial judge and this Court dealt with the matter, that charge can be disregarded. (Because the report is not as clear as it might be, I have had reference to the Court’s file.) A suitcase had been imported. The authorities discovered it contained some 6.9 kg (pure) of heroin. They removed all but 50 grams of this and the two offenders were then provided with the opportunity to take possession of it. This they did. The trial judge found that each of the appellants believed the suitcase involved contained in excess of a commercial quantity of heroin, but was not willing to find that they were expecting 6.9 kg. His Honour accepted that no link had been shown between the offenders and the importation of the heroin but found that each was a major operator and actively involved with the heroin in Australia for commercial purposes. Each appellant was sentenced to a minimum term of 10 and an additional term of 3 years. This Court saw no reason to interfere.
In Maman (unreported, CCA, 27/3/1997) the applicant pleaded guilty to importing heroin, the quantity being 461grams pure and the street value of which was said to be about $1.38M. He was apprehended at the airport but gave no assistance to the authorities. The sentencing Judge concluded that there had been intricate planning in the venture although the applicant was a courier who had embarked upon the enterprise with his eyes open purely for greed. The applicant was 31 years old when sentenced, an Israeli citizen with strong family ties there. He was of previous good character though this was regarded as of little weight. In light of the quantity and the decisions in El Kaharni and Ferrer-Esis this Court took the view that a fixed term of 9 years imprisonment which had been imposed was excessive and reduced it to a head sentence of 8 years with a non-parole period of 5 years.
Metcalfe see Droullos, Metcalfe and Laver above.
In Michaels (1993) 70 A Crim R 78 the appellant had pleaded guilty to 2 charges of possession of a prohibited import, viz. cocaine. The quantity of pure cocaine the subject of the second charge was 72 grams. The quantity the subject of the first was in excess of 2 kg but, as the appellant had been charged only in respect of a trafficable quantity, he was sentenced on the basis that the quantity was one falling just below the commercial quantity. The street value of this latter quantity was taken to be approaching $400,000; the street value of the lesser quantity was about $24,000, it and a sum of $3,000 being the appellant’s reward for handling the larger quantity. The appellant had picked up the goods containing the cocaine from the Customs authorities, paying for them with his own cheque. The operation was regarded as a commercial one and the appellant was regarded as more than a courier. For the two offences and a further offence of escape from lawful custody the applicant had been sentenced, effectively, to imprisonment for 10 years and 6 months with a non-parole period of 6 years. This Court saw no error in the sentence.
Ming Lok Cho - see under Cho above
In Modica (unreported, CCA, 1 September 1995) the applicant pleaded guilty to conspiring to import a commercial quantity of cocaine and to engaging in organised fraud of the Commonwealth. So far as penalty was concerned, the charges were dealt with separately and the discount for totality applied to the fraud charge. In these circumstances one can confine attention to the importation count. As to this the applicant sought out Mr Chen who was engaged in commercial drug dealing and agreed to bring in 2.5kg. Mr Chen provided some $9,000 of the $15,000 for the purpose but the importation never occurred. The applicant was 33 years at the time of sentencing and had no significant record. He received some credit for his plea which was not early. He was the sole principal, however, he provided quite extraordinary assistance to the authorities. Commencing with a period of 18 years the sentencing judge reduced this to 12 on account of Section 16G making a further reduction to 10 years because of the plea and because no narcotics had been imported. He applied a 50% discount for assistance. This court declined to interfere with the 5 year period remaining and although it reduced the 5 year period on the fraud charge to 3 years, left the aggregate non-parole period as 5 years.
In Montenegro (unreported, CCA, 15/2/1991) the applicant pleaded guilty to importing cocaine. The quantity was over 1.5kg pure, with an estimated street value of about $1.5M. The applicant was a courier, aged 26 and when recruited he had been unemployed. He was a foreigner, had no record, had had a disrupted childhood and his family was overseas. Soon after his apprehension at the airport, he co-operated extensively with the authorities and as a result others were charged. In consequence his imprisonment was in protective custody. He was regarded as contrite.
Finding error in the original sentencing process, this Court re-sentenced the applicant under the July 1990 changes to the Crimes Act. The Court did not expose its reasoning beyond recording an agreement between the Crown and the applicant that in that case a discount for plea and co-operation with the authorities which had been allowed at first instance of over 50% was generally appropriate. The terms imposed were 6 and 3½ years respectively. But for the promise of future assistance, the sentence imposed would have been 7 years imprisonment with a non-parole period of 4 years.
In Mooseek (1991) 56 A Crim R 36 the appellant was convicted of a number of Commonwealth and state offences. It would seem that the state offences related to the same heroin. On each of the charges of conspiracy to import and importing heroin he was sentenced to life imprisonment; on a third charge of possession of (imported) heroin he was sentenced to 25 years imprisonment. A minimum term of 16 years which the Victorian Court of Criminal Appeal noted was not subject to remissions, was fixed in respect of these offences. Separate sentences were imposed in respect of the state offences. The total amount of heroin involved exceeded 70 pounds (almost 32 kg.) with 70% purity. There was no appeal against sentence.
In Moreno (unreported CCA, 4/11/1994) the applicant pleaded guilty to importing cocaine, the quantity being 341gms pure with a value which the sentencing judge took as the street value of about $136,000. The applicant was arrested at the airport but gave no assistance to the authorities. The ground of appeal argued is not presently relevant but the Court remarked that “the applicant does not and could not point to any error on the part of the sentencing judge nor assert that the sentence imposed was not well within the range of the judge’s discretion.” The sentence was 10 years imprisonment with a non-parole period of 6 years. (Although the matter is not mentioned in the judgment of the Court of Criminal Appeal, reference to the Court file shows that there was no suggestion that Moreno was other than a courier.)
In Moreno , (unreported, CCA, 26/6/1996) the applicant pleaded guilty to importing cocaine, the quantity involved being 294gms pure. He was arrested at the airport and later offers to assist the authorities proved worthless. The applicant’s intelligence was in the lower range, he appeared naive, had been used by others and was genuinely contrite. It was also recognised that the applicant’s imprisonment was in a foreign country and he had little ability to communicate in English. This Court refused to interfere with a sentence of 6 years with a non-parole period of 4 years saying it was well in the middle of the appropriate range.
In Moussa (unreported, CCA, 5/11/1986), the applicant pleaded guilty to importing heroin, the quantity being 439 grams pure, with a wholesale value of $60,000 and street value of $929,220. The applicant was a courier, aged 56, a resident of Lebanon, and regarded as ignorant, illiterate and one who probably lacked an appreciation of the serious effect of heroin and of the gravity of her crime. Other subjective circumstances also were most unusual. This Court reduced a sentence of 12 years with a minimum term of 6 years, imposed on a misunderstanding of the amount of heroin involved, to one of 10 years with a non-parole period of 5 years.
In Muanchukingkan (1990) 52 A Crim R 354 the applicant pleaded guilty to importing heroin. The amount involved was 455 grams with an estimated street value of $500,000. After apprehension at the airport the applicant, a courier for reward, provided some assistance to the authorities although the significance of this was difficult to quantify. He was 42, not a resident of Australia and had no prior record. The Court took into account, as the Crimes Act (Cth) required, that his detention would occasion considerable hardship to his family - 2 wives and 10 children dependent on him for support.
This Court took the view that in light of prior decisions including Moussa, Direkpong, Putcharkan, Lakeman, Luetkens, Linke, Srisoi and Li, and even disregarding the applicant’s assistance to the authorities, the sentencing judge’s commencing point of 14 years with a minimum term of 12 years was too high and that the starting points should have been 12 and 9 years respectively. The Court then reduced these to reflect Section 16G of the Crimes Act and imposed a sentence of imprisonment for 7½ years with a non-parole period of 5½ years.
In Ndubuisi (unreported, CCA, 27/3/1992) the applicant pleaded guilty to importing heroin and of possession of the same heroin. The quantity was 378 grams pure. Holding that there was error in the original sentencing process, this Court allowed an appeal from concurrent sentences of 5½ years and, Part 1B of the Crimes Act, including Section 16G, having come into force in the meantime, re-sentenced the applicant to imprisonment for 6 years with a non-parole period of 4 years. The report contains little concerning the offence or the circumstances of the applicant other than that he was a Nigerian, described as relatively naive, apprehended at the airport, and the importation was described as “very much towards the bottom of the scale”.
In Ng (unreported, CCA, 25/7/1991) the applicant pleaded guilty to being knowingly concerned in the importation of heroin. The amount involved was approximately 38 kg. Finding error in the original sentencing process this Court sentenced the applicant to imprisonment for 12 years with a non-parole period of 9 years. The importation was described as a “massive enterprise” and the applicant had acted in a high level executive role, the “link man” between the overseas sellers and the Australian buyers. He was promised a share of the heroin expected to be worth about $700,000. The Court said that leaving aside the applicant’s guilty plea, his past and future co-operation with the authorities (which had been and was expected to be substantial) and the circumstances of his confinement, and having regard only to the objective circumstances, the case was one which warranted the maximum penalty. Taking the view that Section 16G required that there be a reduction from the term of “life” provided for under the Customs Act, this Court proceeded on the basis that the maximum sentence permissible was 20 years and, for the factors mentioned, reduced the head sentence to the 12 years. See also R v Lun above.
Ng (unreported, CCA, 20/12/1996) - see Lee and Ng above.
Ng (1988) 39 A Crim R 1 - see Wong and Ng (below)
In Nguyen (unreported CCA, 6/10/1994) the applicant was convicted of importing 250 grams of pure heroin estimated to have a value of not less than $300,000. The applicant was a drug addict who had been convicted in 1986 of two charges of attempting to import a prohibited import. He was regarded as more than a courier and as showing no contrition. This court held that the sentence of imprisonment for 8 years with a non-parole period of 5 years was well within the appropriate range.
In Nguyen (unreported, CCA, 23/9/98) the appellant had been convicted of being knowingly concerned in the importation of a commercial quantity of heroin. The amount imported was about 10 kg pure although the trial judge was not satisfied the appellant was aware of this. His role was equivalent to that of courier having acted as consignee of the items containing the heroin and, with the person who had recruited him, picked up those items form the airport. He had no prior convictions, a good reputation and real prospects of rehabilitation. He had undergone hardships in escaping from Vietnam. Smart J with the concurrence of Sully and Ireland JJ said that the sentence originally imposed of 9 years with a non-parole period of 5 years was probably within the permissible range absent any question of parity but because this had also been the starting point in the sentencing of the person who had recruited the appellant and whose criminality was significantly greater, on grounds of parity reduced the sentence imposed on the appellant to imprisonment for7½ years with a non-parole period of 3 years and 9 months.
In R v Olbrich (unreported, CCA, 6 July 1998) the applicant had pleaded guilty to importing not less than a trafficable quantity of heroin. The quantity was 1,184 grams pure. Because the sentencing judge had not properly addressed the factual issues which arose on the question of sentence, this Court remitted the matter to the District Court.
In Ong and Chau (unreported, CCA, 20 December 1996) the applicants pleaded guilty to attempting to obtain possession of heroin which had been imported, the quantity being 1,597 grams pure. The sentencing judge found that each applicant was more than a courier and seriously involved in the attempted reception and distribution of heroin which had entered Australia in crates picked up by one of the applicants. This Court held that sentences imposed of 12 years imprisonment with non-parole periods of 8 years were within the range available. The report says nothing about the subjective circumstances of the applicants.
In R v Paull (1990) 20 NSWLR 427; (1990) 49 A Crim R 142, the prisoner had pleaded guilty to having imported cocaine. The amount involved was 2.222 kg. with an estimated street value of $0.66M. The prisoner was a courier. The prisoner gave substantial assistance to the authorities, actions which involved great personal risk. He was 35 and had a minor criminal record. Hunt J recorded an agreement of the parties that the tariff for couriers of commercial quantities prior to the recent changes to the sentencing legislation was 16 years. To take account of Section 16G he reduced this to 10 years and 2 months, reducing this further by 50% on account of the assistance. But for some peculiar features of the prisoner’s pre-sentence custody to which it is unnecessary to refer, his Honour would have imposed a non-parole period of 4 years.
In Pereira (1991) 57 A Crim R 46, the respondent to a Crown appeal had pleaded guilty to charges of importing a commercial quantity, being 6.094 kg, and possession of a trafficable quantity, being 1.422 kg., of cocaine. The commercial quantity included the lesser amount and the cocaine carried by the applicant’s co-offenders in a joint enterprise. This Court held that concurrent sentences of 10 years with a non-parole period of 6 years and of 5 years with a non-parole period of 3 years were manifestly inadequate and re-sentenced the respondent to concurrent terms of 13 years and 6½ years with a non-parole period of 8½ years. The sentencing judge had found that the respondent was a principal in the scheme of importation in which he and co-offenders had been engaged at the time of their apprehension, and that he had actively recruited the participation of the others. The respondent had been caught red-handed as he entered Australia and this limited the discount for the guilty plea. The respondent had no prior criminal record and was regarded as having excellent prospects of rehabilitation and his incarceration would have an adverse impact on his family. Some surprise was expressed that the sentencing judge had found the respondent contrite but there was no overruling of this finding. The Court gave weight to the principle of double jeopardy and to the matters in Sections 16A of the Crimes Act.
In Perrier and Richardson (No 2) (1991) VR 717;(1990) 59 A Crim R 164 the Victorian Court of Criminal Appeal had to consider appeals involving persons convicted after trials of importing 1.636 kg of pure heroin. Perrier had been sentenced to life imprisonment with a minimum term of 22 years. He was a Melbourne principal of an international operation and described as a mature, intelligent man, committing the crime solely for profit. He had been convicted in 1967 in Switzerland for illicit drug trafficking and sentenced to 6 months imprisonment, in 1967 in Pakistan for possession of undeclared foreign currency and sentenced to one year’s imprisonment, in 1968 in Hong Kong for obtaining goods by false pretences and sentenced to 18 months imprisonment and in Singapore in 1981 for unlawful possession of heroin and sentenced to 3 years imprisonment. He was 48 at the time of commission of the offence under consideration and 50 at the time of his appeal. The Court held that the trial judge made no error in treating the instance as a worst case and dismissed Perrier’s appeal. An application by Perrier for special leave to appeal to the High Court was refused - (1991) 174 CLR 637.
Richardson was but a courier who seems to have been approached in his then home country of Thailand and there agreed to bring travellers’ cheques to Australia to be fraudulently cashed here. The sentencing judge took the view that the jury were not convinced Richardson knew of the existence and quantity of heroin he carried into Australia but was aware of the likelihood that heroin or some other drug was contained in the suitcase with which he had been provided. The majority of the Court took the view that but for Richardson’s assistance to the authorities, without which Perrier could not have been convicted, the appropriate sentence would have been one of 15 years notwithstanding Richardson had no prior convictions, had been in a desperate financial position, and the fact the sentence would be served in a country not his own. Had he pleaded guilty the majority would not have interfered with the sentence originally imposed of 5 years but, he having not, allowed a Crown appeal and imposed a sentence of 7 years with a minimum term of 5 years. The third member of the Court said that but for Richardson’s assistance he would have imposed a sentence significantly higher than 15 years and the discount allowed by the majority was too great.
In Postiglione (1991) 24 NSWLR 584; 57 A Crim R 301 the appellant had pleaded guilty to a charge of being knowingly concerned in the importation of a commercial quantity of heroin. The amount was 5.56 kg of 56% purity, i.e. about 3.113 kg. The appellant seems to have joined a group who had already organised at least one prior importation. He travelled overseas to assist in the acquisition of the heroin. He had a prior conviction in Italy for criminal conspiracy to traffic heroin for which he had been sentenced to imprisonment for 12 years. He had avoided serving some 5 years of this period by absconding from the country.
This Court set aside a sentence of life imprisonment and substituted a sentence of 12 years imprisonment, with a non-parole period of 9 years. Grove JA, who delivered a judgement in which the other members of the Court agreed, said that he did not propose that there should be any gradation in penalty in simple proportion to quantity but an importation of the amount involved fell far short of many cases that had come before the Court in terms of size and there was nothing beyond the commonplace in planning or execution. Nor was the appellant regarded as in the category of a worst type. The Court was influenced by the principle of parity in light of sentences imposed on co-offenders.
In Postiglione (unreported, CCA, 13/12/1993) the applicant pleaded guilty to two charges of conspiring to import narcotic goods. One related to the importation of a commercial quantity of cocaine and the second to the importation of a commercial quantity of heroin. No drugs were in fact imported. However the quantities of cocaine and heroin envisaged were each 20 kg with potential street values of $8M and $24M respectively. Savvas, who has figured elsewhere in this summary was regarded as the principal organiser of the conspiracies although the applicant was deeply involved and regarded as a principal. The conspiracies were hatched while Savvas and the applicant were serving the sentences also referred to in this appendix. The applicant rendered some assistance to the authorities in relation to the two offences and other matters and a discount of 3 years was allowed for future co-operation.
The overall criminality was taken into account on the charge relating to cocaine. Mathews J considered a life sentence but finally imposed a penalty of 18 years imprisonment with a non-parole period of 13 years and 10 months was imposed, and a lesser concurrent sentence given in respect of the second charge. Because the commencing point was backdated, almost 3 years of the period was attributable to the applicant’s existing sentence. This Court refused to interfere, Abadee J, with whom the other members of the bench agreed, saying that he regarded the sentence as quite appropriate.
In Poyner (1986) 17 A Crim R 162 the applicant was found guilty of possession of cocaine, the quantity being either about 393 or 442 grams worth respectively, about $220,000 and $265,000. The applicant was aged 36, had no criminal record and a good employment history. There is no express statement of his role but from the cases considered, one may infer he was a courier. There had been error in the original sentencing process and the applicant was re-sentenced by this Court. Taking the view that the time had arrived to correct a prior sentencing pattern of 7 or 8 years, this Court imposed a head sentence of 12 years including a minimum term of 7 years. But see Leutkens (supra).
Prince - see Cummingham and Prince above.
In Putcharkan (unreported, CCA, 20/10/1989) the applicant pleaded guilty to importing heroin. The quantity was 256 grams pure with a street value of about $636,000. The applicant was a principal intending to sell for commercial gain (which he might have shared with another). He was Thai, aged 33 and had no prior record. The sentencing judge found that the offence was the applicant’s first foray into crime and accepted that the motivation was to obtain funds to travel to the Unit+ed States to attempt to effect a reconciliation with his wife and to see his child and said that he had reduced the terms he imposed on the applicant by 5 years and 2 years respectively for his plea. In the result he sentenced the applicant to 10 years imprisonment with a minimum term of 8 years. This Court obviously thought this reduction unjustified but said that both the head sentence and the minimum term were entirely appropriate.
In Rachid (unreported, CCA, 13/8/1993) the applicant had pleaded guilty to importing the equivalent of 105gms of heroin with a street value of between $275,000 and $670,000. The applicant was 63 years at the time of sentence, a native of Lebanon where his life had been severely affected by the civil war and his family still resided. He did not speak English and his motivation to commit the offence was his need for surgery for an eye problem. He was a courier and anticipated receiving $5,000. He had no prior record and was regarded as contrite. This court regarded the sentence imposed of 5½ years imprisonment with a non-parole period of 4 years was well within the appropriate range.
In Raz (unreported, CCA, 17 December 1992) the applicant pleaded guilty to importing not less than a trafficable quantity of cocaine. Neither the quantity involved nor its value is stated in the report but reference to this Court’s records of the appeal show it was 1254 grams. The applicant was involved in packing the drugs overseas, bringing them here, collecting payment for the drugs, converting this to American dollars and smuggling those back to the United States. His reward was to include a percentage of the money so remitted. He was thus more than a mere courier although the majority of the Court did not regard him as far removed from that description. Holding that the original sentencing process was affected by error, Hunt CJ at CL, with whom Badgery-Parker J agreed said the appropriate starting point for the head sentence was 16 years which, after adjustment pursuant to Section 16G, resulted in 10 ½ years. This was then reduced by 55% for extensive assistance to the authorities and the consequences to the applicant of that assistance. In the result the sentence imposed was 4¾ years imprisonment with a non-parole period of 3½ years.
Richardson - see Perrier and Richardson above.
In Saade (unreported, CCA, 27 September 1996) the appellant had been found guilty of being knowingly concerned in the importation of a commercial quantity of cocaine the quantity being 4,009gms (which I take to be a bulk weight). The drug was found at the airport secreted in his luggage. He was sentenced to 12 years imprisonment with a minimum term of 6 years and 9 months. Although he appealed against conviction, there seems to have been no appeal against sentence. He was described as higher than a courier but lower than a principal.
In Saisuwan (unreported, CCA, 30/9/1994) the applicant had pleaded guilty to a charge of being knowingly concerned in the importation of heroin and of being knowingly concerned in the use of a falsified passport. Acting with and under the direction of a third person the applicant had recruited Blass to act as a courier to bring about 1kg of heroin to Australia and had been instrumental in obtaining the passport. The applicant had travelled on the same plane as Blass, “riding shot-gun” and later making contact with Blass. Because of Blass’ inability to swallow more, only 586 grams (pure) were imported. The value of this was between $850,000 and $2.7M depending on the street price and purity. The applicant had been sentenced to imprisonment for 7 years and 2 months with a non-parole period of 5 years and 4 months. She had acknowledged her guilt almost as soon as spoken to by police and the sentence reflected a discount of 40% for assistance which, despite a threat to her, the applicant gave and promised to give to the authorities. The sentencing judge said that the appropriate starting point was 12 years (after Section 16G had been taken into account). This Court refused to interfere with the head sentence but reduced the non-parole period to 4 years, partly on grounds of parity and hardship. The applicant’s husband was in prison in Norway for a drug offence and she had 4 dependent children aged between 4 and 15 in Thailand being cared for by their grandmother who was in poor health.
In Sanderson (unreported, Grove J, 5/7/1993) the defendant was convicted after a trial of being knowingly concerned in the importation of “some five kilograms of pure drug ”. The drug was heroin. Grove J found that the defendant was a recruiter of couriers and the shepherd of the courier involved in the actual importation. The defendant gave that courier some assistance on the way. Grove J said that “There is no evidence of the anticipated gain to the prisoner but I conclude that he obviously involved himself for the purpose of profit and that his expectation was that the profit would be great”. His Honour also observed that the prisoner had made some small expenditure from his own funds but was unpersuaded that the prisoner was the financier of the importation. The sentence was imprisonment for 13 years with a non-parole period of 8 years.
In Sanna (unreported, CCA, 21/5/1993) the applicant was convicted of importing heroin, the quantity being 863 grams pure. The applicant was apprehended at the airport with the heroin concealed in the lining of a suitcase. The report contains few details. This court declined to interfere with a sentence of 9 years imprisonment with a non-parole period of 5 years.
In Savvas (No 2) (1991) 58 A Crim R 174 the appellant had been found guilty of conspiring to import heroin and a second State offence of conspiring to supply it. “The appellant was deeply involved, as one of the principals, although not the leader, of an organisation which carried out one of the largest known schemes for the importation of heroin into Australia. The amount … involved was not less than 80 kg,” with a purity of 80%, ie.64 kg. The wholesale value was in excess of $17M. In respect of the first charge the appellant was sentenced to imprisonment for 25 years, including a minimum term of 18 years. In respect of the State offence he was sentenced to a minimum term of 18 years with an additional term of 6 years, the sentences to be served concurrently.
In Schrei (unreported, CCA, 24/11/1995) the applicant imported 18 grams of heroin. The report provides limited detail in some respects but it does disclose that he had significant health problems and declined to co-operate in hospital in removal of the heroin from his rectum, and some was found in his mouth. The judge was not satisfied that the heroin was for the applicant’s own use and treated him as a courier. Declining to fix a non-parole period the sentencing judge imposed a sentence imposed a fixed term of 5 years This Court felt obliged to re-sentence. It adhered to the 5 year period but fixed a non-parole period of 3½ years.
In Shepherd (1989) 41 A Crim R 420 the appellant had been convicted of conspiring to import heroin. At the time the highest category provided for by the statute was then described as trafficable and the maximum penalty was 25 years imprisonment. The conspiracy covered a 3 year period although it was only during some 5 months that the appellant had the leading role. His involvement was described as “of the highest order, deliberate and completely and utterly premeditated”. The operation was substantial, there were a number of importations pursuant to the conspiracy, the quantity being not less than 24 kg of high grade heroin. The appellant was aged 44 at the time of sentence and had a long criminal record. This Court declined to interfere with a sentence of 25 years or with the trial judge’s refusal to specify a non-parole period.
In Srisoi (unreported, CCA, 20 November 1987) the applicant had pleaded guilty to importing heroin. The quantity involved was 2,523 grams with an estimated street value of about $3M. After apprehension at the airport the applicant co-operated with the authorities and participated in an unsuccessful attempt at a controlled delivery. Nothing came of other assistance either. The applicant was 33, his home Thailand. He was a courier anticipating a reward of $10,000. This Court held that the sentence imposed of 17 years imprisonment with a minimum term of 10 years was well within the sentencing judge’s discretion.
In Stafrace (1997) 96 A Crim R 452 the applicant had pleaded guilty to two charges of being in possession of cocaine reasonable suspected of being illegally imported. The amounts were 726 grams and 937 grams pure, the street value being $1.3M. The majority took the view that the applicant stood to be sentenced upon the basis that he was individually in possession of the cocaine in one safety deposit box and jointly in possession of the cocaine in another such box - as to part for his own use and as to part for purposes related to commercial dealing in the sense that he knew that his joint possessor was dealing in the cocaine commercially and the applicant was assisting by keeping the cocaine for him - and this denoted greater criminality that that of a mere courier. The applicant was 31, he had no prior convictions although this seems to have been afforded little weight, and he was sentenced on the basis that there was little utilitarian value in his plea of guilty and without any finding of contrition. This Court set aside a sentence of 12 years with a non-parole period of 9 years as excessive substituting effective concurrent terms of, respectively, 10 and 6 years.
In Stenovich (unreported, CCA, 27/11/1996) the applicant pleaded guilty to importing cocaine, the quantity being 390gms pure. He was arrested at the airport and his co-operation was described as minimal. He was regarded as a co-offender with another courier who arrived the next day although the applicant’s criminality was worse because he had previously visited Australia on a reconnaissance expedition. This Court took the view that the sentence imposed of imprisonment for 9 years with a non-parole period of 6 years was either at the top of the range or marginally above it but, as the co-offender had been sentenced to imprisonment of 7 years with a non-parole period of 4½ years, the sentence on the applicant was reduced to 8 years with a non-parole period of 5 years.
In Sugahara and Watanabe (unreported, CCA, 16 October 1998) the applicants had each pleaded guilty to a charge of importing heroin. Each had brought in 1511 grams (pure) strapped to his body. Each was apprehended at the airport. Watanabe participated in an unsuccessful attempt at a controlled delivery. Each was sentenced as a courier. It would seem that Sugahara was regarded as slightly less culpable, apparently having been recruited by Mr Watanabe. The view was taken that a sentence of 11½ years with a non-parole period of 7½ years imposed on Watanabe was excessive, particularly in light of his co-operation. A sentence of 10 years with a non-parole period of 6 years was substituted.
After his arrest Sugahara provided some assistance to the authorities and this court thought it proper to make some allowance on account of the fact that he did not speak English. This court reduced the sentence originally imposed of 10 years with a non-parole period of 6 years to one of 9½ years with a non-parole period of 5 years. In the case of each offender, 6 months was taken off the head sentence and then another 6 months off the non-parole period.
In Swann (unreported, CCA, 17/7/1992) the applicant had pleaded guilty to 2 charges of conspiracy to import cocaine. The quantities involved were 2kg (bulk weight) worth an estimated $260,000 - $300,000 and 760 grams (pure) worth an estimated $130,000 - $160,000. He was caught red-handed during the importation the subject of the second charge, and made full admissions in relation to both. He was a principal, participating in the activity for financial gain. He was given a discount of the order of 1/3 for pleas of guilty and extensive co-operation with the authorities. This Court saw no reason to interfere with cumulative sentences of 6 years with a total non-parole period of 7 years.
In Taha (unreported, CCA, 18/12/1990) the applicant pleaded guilty to importing and possession of heroin, viz. 2.234 kg with an estimated street value of $2.5M. Apprehended at the airport, the applicant participated in a controlled delivery which led to another person being charged. The applicant gave some further co-operation but refused to give evidence. He was regarded as a professional courier expecting significant financial reward. The sentence of a minimum term of 10½ years with an additional term of 3 years was described as severe, but this Court regarded it as within the range of the sentencing judge’s discretion.
In Tam (unreported, Barr J, 5 September 1997) the defendant pleaded guilty, after some three weeks of trial, to a charge of conspiring to import not less than the commercial quantity of heroin. It would seem that on 5 occasions heroin had been imported. After 4 of these Tam entered Australia and then transmitted money amounting to at least $284,000 overseas. He returned to Australia at about the time of a fifth consignment consisting of about 40 kg (pure) of heroin. He was found to be engaged at the highest level of the organisation in Australia and reporting to persons overseas, and that he was concerned with the selling of the heroin, he recruited at least one other senior person and performed supervisory functions. Barr J took the view that the maximum sentence was appropriate but, taking the view that Section 16G applied, reduced this to 24 years. This period was reduced by 1/6 on account of past, and 1/6 on account of future, assistance. A non-parole period of 10 years was fixed.
In Tamayo & Martinez (unreported, CCA, 24/11/1995) the applicants had pleaded guilty to possession of cocaine reasonably suspected of having been imported. Tamayo was one of the local distributors, working on a commission basis, of cocaine for an organisation based in Columbia. The organisation had supervisors who supervised the distributors. Martinez acted as Tamayo’s lieutenant. The amount of cocaine seized was 47.7 kg pure. Each applicant had pleaded guilty although in the case of Tamayo that was belated. Neither had any prior convictions. It was accepted that Tamayo was remorseful and had health problems which would add to his hardship in prison. Martinez had given assistance to the authorities. Allen J with the concurrence of Gleeson CJ and Sully J said that sentences of 14 years imprisonment with a non-parole period of 10 years (Tamayo) and of 10 years with a non-parole period of 7 years (Martinez) imposed by Studdert J were well within the appropriate range.
In Tan (1995) 78 A Crim R 300, the applicant had pleaded guilty to being knowingly concerned in the importation of heroin. The amount involved was 12.5 kg (pure), with an estimated street value of approximately $32M. The report does not identify the conclusions drawn as to the extent of the applicant’s involvement in the importation although one might infer he was to be involved in the distribution of part of the heroin in Sydney. The applicant made admissions in his record of interview, indicated at an early stage he would plead guilty, gave considerable assistance to the authorities and indicated that he was prepared to continue this assistance. This assistance was at considerable personal risk and this risk would continue. His imprisonment would be in a, to him, foreign country. The Victorian Court of Criminal Appeal re-sentenced the applicant to imprisonment for 25 years with a non-parole period of 12 years. But for his undertaking to co-operate in the future these terms would have been 30 and 18 years. The trial judge had sentenced the applicant to life imprisonment, giving effect to co-operation past and future, only in the determination of the non-parole period.
In Tang, Dang and Quach (1997) 96 A Crim R 550 the situation of co-offenders with An Doa Dang (supra) was considered. As has been said the quantity imported was 5281 grams (pure) with a street value of $12M.. Tang who had prior convictions appealed against a conviction for being knowingly concerned in the importation but did not pursue an appeal against a sentence of 15 years imprisonment with a minimum term of 12 years. He had been involved “in complex arrangements that were made here and abroad for the export of the heroin to Australia and its reception here”.
Without reference to Thay Dang the goods had been delivered to the premises where he resided and he had given unnecessary assistance to his brother in dismantling the lamp bases, albeit he contemplated sharing the reward. He was involved for only a day or two in a labouring capacity. He pleaded guilty to inter alia a charge of attempted possession of a commercial quantity. There were significant subjective factors operating in his favour including an unfortunate background, a drug addiction and low intellectual functioning and the court reduced the sentence which had been imposed to one of 6 years with a non-parole period of 3½ years. He was sentenced also for other matters but these and the sentences imposed can be ignored for present purposes.
Quach also pleaded guilty to charges of attempting to possess a commercial quantity and of possession of a trafficable quantity (presumably that which remained after interference with the shipment) and was sentenced to an effective term of 12 years with a non-parole period of 9 years. Quach, whose reward was to be between $30,000 and $40,000 was regarded as having a pivotal role - he was a liaison between the person or persons further up the chain and the three persons mentioned. He had no prior convictions and was entitled to some small discount for co-operation.
In Tee (1994) 71 A Crim R 181, the respondent to a Crown appeal had pleaded guilty to importing heroin. The quantity was 2,003 grams worth, according to the evidence between $600,000 and just over $5M, depending upon the manner of sale and distribution. The respondent was a courier whose remuneration was to be $10,000. He was apprehended at the airport and then co-operated with the authorities. However he could give but little assistance. He was sentenced to imprisonment for 8 years with a non-parole period of 4 years. The Court of Criminal Appeal of South Australia took the view that, but for the plea and the assistance to the authorities, such as it was, the appropriate sentence would have been 16 years but these two matters justified a reduction to 12 years. That head sentence would attract good conduct remissions of up to one third and, according to the Court, the non-parole period had to be less than the result. Taking the view that the real purpose of the sentence was deterrence and rehabilitation was not a material consideration, the Court fixed the non-parole period at 7 years.
Thapa - see Lawson Wu and Thapa above.
Tran - see Mai and Tran above.
In Turner (unreported, CCA, 21/5/1993) the applicant appears to have pleaded guilty to importing 686 grams of heroin with a street value of between $770,000 and $1.3M. Following his apprehension at the airport he provided assistance to the authorities. He was of excellent prior character and had undertaken army service. He was contrite and was given credit for work he had done on remand. His family was in Thailand and he was regarded as having significant prospects of rehabilitation. This court took the view that the sentencing judge had overlooked Section 16G of the Crimes Act but declined to interfere with a sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months saying the sentence was towards the bottom of the range in any event. It is apparent that the applicant was treated as a courier.
In Ugur (unreported, CCA, 11/8/1989) the appellant pleaded guilty, but not, it appears, until arraigned, to importing heroin, the quantity being 58 grams pure, said to have a street value of about $100,000. A claim that the heroin was for the applicant’s own use was rejected although the report does not identify the appellant’s precise role. This Court held the sentence of imprisonment for 8 years with a minimum term of 6 years was well within the sentencing judge’s discretion.
In Van Hung Duong (unreported, VicCA, 23 December, 1997), the applicant Duong pleaded guilty to a charge of obtaining possession of a prohibited import. The import was 12.7 kg. (pure) of heroin with an estimated street value of over $25M. The Court of Appeal held that there had been error in the sentencing process at first instance but that, apart from an issue of parity which justified a 6 month reduction in each of the periods, there was no reason to reduce the sentence of 14½ years with a non-parole period of 10½ years which had been imposed at first instance. The applicant’s involvement was to travel to Melbourne, collect the goods containing the heroin at the wharf there and carry the heroin to Sydney in return for a sum of $15,000. At the time of the offence he was aged 31. He had come to Australia from Vietnam when 17, and since then had provided much of the financial support for his parents and 8 siblings. He had been employed as a head waiter in a relatively large Sydney establishment. He had no prior record.
In Wangsaimas & Ors (1995) 82 A Crim R 530 the three defendants pleaded guilty to a charge of importing heroin. The amount involved was 89 kg pure. Its bulk sale value was $20M. Its street value was estimated to be of the order of $300M. It would have provided 1.8 to 2 million individual doses. Wangsaimas had been employed as the captain of the vessel that had brought the heroin to Australia and the sentencing judge found he willingly entered into the enterprise for a fixed sum. The other two were at least two rungs down from the most senior person in the organisation but they had been entrusted with the shipment of the drug and were to arrange and facilitate its delivery in Australia. All were sentenced to life imprisonment, with no non-parole period.
An appeal from this decision was allowed - see (1996) 87 A Crim R 149 - but only in respect of the judge’s refusal to specify a non-parole period. Non parole periods of 22 years for Wangsaimas, and 25 years for the other prisoners were fixed. In a further appeal reported as Lee Vanit v R (1997) 190 CLR 378, the High Court upheld the conclusion that Section 16G did not apply to life sentences.
R v Chan Kam Wah and others (unreported, CCA, 13/4/1995). See under Lun (unreported, Badgery-Parker J, 6/8/1993) above,
In Warfield (1994) 34 NSWLR 200; (1994) 73 A Crim R 516 the respondent to a Crown appeal had pleaded guilty after a sentence indication hearing to a charge of conspiring to import cocaine. The amount imported was 4.378 kg although this seems to have been the gross weight. It had a purity of 74%, yielding (presumably) 3.23 kg. The respondent’s role was to arrange for the collection of a consignment containing the cocaine, overcome difficulties which were attendant upon that operation, take delivery of the consignment and store it until final delivery to others. He envisaged receiving about $50,000.
The respondent was 41, and in secure employment and there was no suggestion of any desperate need of money. He had no prior convictions. He was sentenced to imprisonment for 7 years with a non-parole period of 4 ½ years. The sentencing judge had started with a sentence of 12 years, reduced it to 8 years because of Section 16G and then reduced it to 7 for “all other matters”. Hunt CJ at CL, with whose judgment the other members of the court agreed said that, as a starting point, 12 years was the very bottom of the range even for couriers of trafficable amounts. The Court’s decision was that the sentence was too low and that the respondent should have the opportunity to withdraw his plea but that, if he did not, there should be imposed a sentence of 9 years imprisonment with a non-parole period of 6 years. This sentence was substantially less than the Court thought should have been imposed because of the “triple jeopardy” faced by the respondent in consequence of the failure of the sentence indication process.
Watanabe - see Sugahara and Watanabe above.
In Watson (unreported, CCA, 18/9/1998) the applicant had pleaded guilty to attempting to possess imported cocaine. The quantity involved was 1.43 kg. pure, with a street value, if sold at a purity rate of 35%, of $800,000. The applicant was 29, in employment and treated as a first offender. There is nothing to suggest he was treated as other than a courier. The sentencing judge had regarded the relevant range of sentences as that stated in Ferrer-Esis and imposed a sentence of 9 years with a non-parole period of 6 years. The Court said that the sentence was at the higher end of the range but did not require appellate intervention.
In Whitney (unreported, CCA, 6 November 1997) the applicant pleaded guilty to importing 2.79 kg (pure) of cocaine. He was apprehended at the airport and thereafter rendered substantial assistance to the authorities. This involved risk and the consequence that the applicant could never to return to Colombia where he had been resident. The applicant was a courier expecting some $US30,000 for his participation. This court said that the starting point the sentencing judge has used of 12 years after taking account of Section 16G of the Crimes Act with a non-parole period of 8 years was not manifestly excessive nor did the reduction to a sentence of 7 years with a 4½ year non-parole period for assistance constitute error. However, some of that assistance was to be given in the future and the sentencing judge had not adhered to the requirements of Section 21E. The matter was remitted.
Wing Tin Li (unreported, Vic. Ct of App., 18/4/1997) - see under Li above.
In Wong and Ng (1988) 39 A Crim R 1 the applicants who had been caught red-handed pleaded guilty to importing, or being knowingly concerned in the importation of heroin and of possession of that heroin. Ng had been bosun of a vessel in which the heroin was imported and had handed the heroin over to Wong in return for over $20,000. The quantity involved was 5.669 kg (pure) with a street value of approximately $20M. Both were regarded as more than couriers and as playing important roles in the operation although the sentencing judge did say that they may not have been principals. This Court declined to interfere with sentences of 24 years imprisonment with a non-parole period of 18 years (Wong) and of 20 years imprisonment with a non-parole period of 15 years (Ng).
Wu - see Lawson Wu and Thapa above.
In Yook & Sung (1995) 84 A Crim R 432, the appellant Yook pleaded guilty to a charge of importing heroin. The amount involved was 51.4 kg pure. He was regarded as at least “intricately and immediately involved at a level very close to that” of a principal in an elaborate enterprise on a massive scale. He was aged 36 at the time of the original sentence and had pleaded guilty. Holding that there had been error in the original sentencing process, this Court sentenced Yook to imprisonment for 24 years with a non-parole period of 18 years. These periods reflected the Court’s view that, but for Section 16G the appropriate head sentence was one of imprisonment for life, but that that section precluded such a sentence.
Sung’s offence was that, contrary to the Drug Misuse and Trafficking Act, he took part in the supply of heroin in an amount not less than the commercial quantity under that Act. He had pleaded guilty but in circumstances such that he was not regarded as entitled to much credit for it. He was regarded as a recruiter, tutor and supervisor. His appeal against a sentence of 16 years, including a minimum term of 12 years, compared with a statutory maximum of 20 years was dismissed.
In Zakaria (1992) 62 A Crim R 259, the appellant was convicted of importing heroin and of possession of it. The quantity involved was 2.7 kg pure with an estimated value of between $5M and $6M. The Victorian Court of Criminal Appeal characterised the offence as premeditated and deliberate although there does not seem to have been any evidence that the appellant was more than a courier. She had no prior record. She had first arrived in Australia in 1988 and had obtained permanent residency status. The Court held a sentence of 14 years with a non-parole period of 8 years as within the sentencing judge’s discretion. The applicant seems to have been regarded as a courier.
In Zapata (unreported Vic CA 17 October 1996) the applicant was convicted of conspiracy to import a commercial quantity of cocaine. The sentencing judge had concluded that the applicant’s brother who had in due course imported 2.98kg of cocaine worth at least $1,193,000, had recruited him into the conspiracy. Between arrest and trial the applicant attended university obtaining a high honours degree and had very good prospects of rehabilitation. It was accepted that the applicant would “do time in prison hard”. The court dismissed his application to appeal against a sentence of 8½ years imprisonment with a non-parole period of 5 years, terms arrived at after a Section 16G discount.
In Zayat (unreported, CCA, 22/11/1996) the applicant pleaded guilty on arraignment to importing heroin, the quantity being about 165gms. His account was that he had gone to Lebanon to pick up and then bring back drugs for which he was to be paid $10,000. The sentencing judge used as a commencing point a term of 12 years, reduced this to 8 years pursuant to Section 16G and, declining to fix a non-parole period, imposed a fixed term of 5 years. This court held that there was no error unfavourable to the Applicant.
IN THE COURT OF
CRIMINAL APPEAL
60504/97
24 February 1999
HULME J
HIDDEN J
GREG JAMES J
REGINA v MICHAEL JOHN SPITERI
Reasons for judgment94 HIDDEN J: This is an appeal by the Crown against the asserted inadequacy of a sentence imposed upon the respondent in respect of a charge of importing an amount of cocaine in excess of the commercial quantity: an offence under s233B(1)(b) of the Customs Act 1901 carrying a maximum sentence of life imprisonment. The respondent was found guilty after a trial in the District Court before Shadbolt DCJ and a jury, and was sentenced to imprisonment for 14 years with a non-parole period of 8 years.
Facts
95 The respondent, an American citizen, despatched a horse carriage and ramp from Nicaragua to Australia to be delivered to the address of a friend of his at Londonderry, west of Sydney. The items arrived at Sydney on 22 April 1996. An inspection by Customs officers located 12 packages containing cocaine secreted in the ramp. The substance in the packages was of a bulk weight of just under 12 kilograms, yielding 8.3 kilograms of pure cocaine. The commercial quantity for that drug is 2 kilograms. Officers of the Australian Federal Police replaced most of the drug with plaster of Paris and allowed the goods to proceed to the transporter’s premises at Prospect.
96 The respondent arrived in Australia on 11 May 1996. A few days later he attended the transporter’s premises and arranged for delivery of the goods to the Londonderry address. Some weeks later he arranged for the transfer of the ramp to a shed at South Wentworthville. He was arrested on 14 June 1996 and made no admissions.
97 At trial the respondent gave an elaborate and improbable account of his involvement with the carriage and ramp, and it is unnecessary to recount it in detail. Its effect was that he had been persuaded by a man in Nicaragua to consign these items to Australia for an apparently legitimate purpose, but that man must have duped him by concealing cocaine in the ramp without his knowledge. His Honour described the jury’s rejection of this story as “hardly surprising”.
98 His Honour characterised the respondent’s criminality in this way:
99 As far as I can ascertain, the prisoner was not driven to this crime by need, association or duress. No mental factors acted to drive him to it. It required for its commission cunning, time and planning. It was entirely wilful and utterly without mitigation. It was done solely for the money; a mere criminal commercial enterprise. As far as can be ascertained, he was no mere courier. He dispatched the goods in the container. He eventually met the goods when they had been delivered to premises outside Sydney and he, no doubt, was to pass it on when the coast was clear. If he was not the sole financier, he certainly was some sort of partner in the enterprise and as such more culpable than those who merely act as mules to bring drugs to this country.
100 His Honour added, “He has shown no contrition and has put the State to a lengthy and expensive trial.”
Subjective case
101 The respondent was aged 47 at the time of the offence and is now 49. He was born in Malta, one of a large family. The family migrated to Australia when he was five years old. It would seem that he had a stable upbringing. When he was fourteen the family moved to the United States, where he completed his education. He qualified as a textile designer and worked successfully for many years in that calling, and also as a sculptor. He is a single man with no children.
102 The respondent has no prior convictions. Character evidence strongly favourable to him was given by his brother and sister-in-law who live in Sydney. A report of Dr Bruce Westmore, forensic psychiatrist, found no evidence of mental illness or personality disorder and, as his Honour observed, provided no explanation for his criminal conduct.
The Appeal
103 For the Crown, the appeal was argued by the Commonwealth Director of Public Prosecutions, Mr Martin QC, leading Mr Mayne. He submitted that both the head sentence and the non-parole period were manifestly inadequate. He provided three schedules of sentences in other cases which, he submitted, might provide some guidance.
104 The first schedule contained ten cases, either in this Court or the District Court, involving the importation of cocaine in quantities ranging from 2 to 7 kilograms. The offenders were couriers, most of whom had pleaded guilty. Head sentences ranged from 7 to 12 years with non-parole periods of 4 to 8 years.
105 The second schedule contained eight cases, again in this Court and the District Court, involving the importation of heroin in quantities also ranging from 2 to 7 kilograms. (The commercial quantity for heroin is 1.5 kilograms and this Court has held that offences involving cocaine should not be treated more leniently than those involving heroin.) In all cases the offenders were couriers who had pleaded guilty. Here head sentences ranged from 5½ to 12 years with non-parole periods, again, from 4 to 8 years. In both schedules the lower sentences, for the most part, had been passed upon persons who had provided assistance to the authorities.
106 The third schedule contained only four cases, each of them decisions of this Court, involving principals in the importation of cocaine or heroin in quantities ranging from 2 to 10 kilograms. They are Ong & Chau (unreported, 20 December 1996), Kissner (1993) 69 A Crim R 83, Pereira (1991) 57 A Crim R 46, and Lim (unreported, 26 June 1996). In the first three cases, head sentences ranged between 12 and 13 years and non-parole periods between 8 and 9 years. In Lim , this Court affirmed a sentence of 18 years with a non-parole period of 13½ years, but that was a particularly serious case involving two separate importations together with firearms offences. I put it aside as of no relevance to the decision in this case.
107 Mr Byrne SC, for the respondent, produced Judicial Commission sentencing statistics in respect of the importation of commercial quantities of cocaine, from which it appears that a head sentence of 14 years is at the top of the recorded range and a non-parole period of 8 years is close to it. The Director supplemented this information with similar sentencing figures in relation to the importation of commercial quantities of heroin. Not surprisingly, they are based upon a larger sample. Those figures in respect of all offenders show that a head sentence of 14 years is high in the range, but by no means at the top of it, and a non-parole period of 8 years is towards the middle of the range. As one would expect, both the 14 year head sentence and the 8 year non-parole period sit somewhat higher in the scale for offenders who have pleaded guilty, and somewhat lower for those who have not.
108 On a number of occasions this Court has expressed its appreciation of the Judicial Commission statistics, while acknowledging their obvious limitations. The figures to which I have referred are for offences involving commercial quantities of cocaine and heroin generally. They disclose neither the quantity involved in each case nor the role of the offender in the importation. The Court is also assisted by schedules of comparable cases, such as those provided by the Director. However, it need hardly be repeated that information of this kind provides no more than a guide, and in no way detracts from the uniqueness of each sentencing exercise.
109 After the hearing, the Director supplied to us further schedules of cases in which head sentences of more than 14 years and non-parole periods of more than 8 years had been set for offences involving heroin, some of which were not contained in the Judicial Commission statistics. Most are decisions of this Court, but the schedules included sentences at first instance in the Supreme Court and the District Court. The role of all the offenders was that of a principal, or something close to it, acting for profit. We were also referred to a case involving cocaine which apparently had escaped the statistician’s attention: R v Lara-Gomez (CCA, unreported, 24 April 1996) in which the Court declined to interfere with a sentence of 18 years with a non-parole period of 13 years, where the quantity involved was a staggering 77 kilograms. In view of that quantity, the case is of no relevance here. The same can be said of most of the heroin cases, which also involved very large amounts (38 to 69 kilograms).
110 However, I have given close attention to those cases involving smaller quantities of heroin, in most cases less than the quantity of cocaine in the present case. A list of those cases, with a summary of their salient features, is attached to this judgment. An examination of them soon establishes that they can be distinguished from the present case on one or more of several bases. Some involved multiple offences. In some, the offenders were engaged in the distribution of imported heroin in this country (and were dealt with for offences under the Drug Misuse and Trafficking Act 1985). Some offenders had significant criminal records. Insofar as these cases might bear upon the question of the appropriate non-parole period, it must be remembered that in four of them the offenders were dealt with by the imposition of minimum and additional terms under the Sentencing Act 1989, rather than under Pt 1B of the Crimes Act 1914 (Cth).
111 The Director’s submission was that the sentence as a whole fails to recognise the quantity of cocaine involved, the respondent’s role in its importation, and the absence of mitigating features. The significance of the part played by an offender in an importation was spelled out by Hunt CJ at CL in Raz (CCA, unreported, 17 December 1992) at pp6-7 of the judgment:
112 It is always relevant in the sentencing process to know just where a person guilty of importing drugs into Australia, or of being knowingly concerned in their importation, stands in relation to the organisation for which he commits that offence. He may have been recruited either here or overseas to bring the drugs into Australia for reward on one occasion only, and to hand them over to someone here. Such a person is the ‘bare or mere courier’, and that is at one end of the spectrum of culpability. At the other end is the principal of the organisation, or other senior person, who recruited the courier or who organised the supply of the drugs overseas or their distribution locally. In between there are many levels. But all are relevant in assessing the culpability of the person who is guilty of one or the other of those offences, and thus the sentence which is appropriate to that culpability.
113 The Director argued that the sentence passed upon the respondent was more appropriate for a mere courier of such a substantial quantity of cocaine. He was prepared (albeit begrudgingly) to reason from such parameters as were set by this Court in the recent decision of Bernier (unreported, 19 May 1998). (I should mention, in passing, that he rattled his sabre about that decision without, however, asking us to reconsider it.) In Bernier this Court expressed the view that the range of 8½ to 11 years identified by Hunt J in Ferrer-Esis (1991) 55 A Crim R 231 at 236-7 for couriers of “substantial” quantities of cocaine or heroin should be seen as more appropriate for offences involving quantities at the lower end of the commercial range. In the case of cocaine, that lower end would embrace amounts up to about 3.5 kilograms. The range of sentence assumed that the offender had pleaded guilty and was of prior good character. The Director argued that, as the quantity of this case (8.3 kilograms) is so much greater than the lower end of the commercial range, a 14 year sentence would have been appropriate for a courier enjoying those other favourable features. Taking into account that the respondent was a principal (allowing for some elasticity in that term) who had pleaded not guilty, he argued, the sentence is clearly inadequate.
114 In Bernier (at p8), the Court also considered a series of cases involving the importation of quantities of cocaine in the low commercial or high trafficable ranges where the offender might be described as a principal. They resulted in head sentences between 9 and 14 years (with non-parole periods of 6 to 10 years). With one exception, they are decisions of this Court. In most cases the offender had pleaded guilty and had no prior convictions and, in a few of them, there had been assistance to the authorities. Those cases also involved quantities of the drug significantly less than this case.
115 Accordingly, the quantity of cocaine imported is the salient feature distinguishing the present case from all those considered in Bernier . The Director placed this quantity, loosely, in the middle of the commercial range and submitted that a principal in the importation of such a quantity should attract a head sentence in the order of 15 to 20 years. The offender’s plea would be a material matter in determining his or her position in that range.
116 The logic of that proposition is apparent and, if sentencing were a more mathematical and less intuitive undertaking, it might well be persuasive. However, although the Director has referred us to a number of cases, none of them involved a sentence of that order in circumstances relevantly similar to the present case. The most that can be said is that, if his Honour had passed a sentence greater than 14 years, it might have withstood appellate challenge by the respondent. It is quite another matter to say that this sentence is manifestly inadequate, requiring the correction of this Court on a Crown appeal. I am far from persuaded that it is.
117 The Director also submitted that, even if the head sentence were to stand, the non-parole period of 8 years bears an unusually low ratio to that sentence and fails to reflect his Honour’s findings as to the respondent’s criminality and the lack of mitigating features. He referred to the undoubted punitive element in a non-parole period, relying on a passage in the judgment of Badgery-Parker J in R v Drazkiewicz (CCA, unreported, 23 November 1993). After referring to Bugmy v The Queen (1990) 169 CLR 525 and Deakin v The Queen (1984) 58 ALJR 367, his Honour went on (at p7):
118 There is no tariff which dictates what should be the non-parole period, but it is important to remember in determining a non-parole period that it must be of sufficient length to ensure that the sentence reflects the criminality involved and does not lose the very important significant element of general deterrence which is particularly important in relation to drug importation cases.
119 In Bernier (at p9) the Court considered the relationship of non-parole period to head sentence, noting the difficulty of that task “given the variety of factors to be considered”. The Court concluded that “the norm” for non-parole periods was about sixty to sixty-six and two thirds per cent of the head sentence. It was observed that the matter should be approached with “caution and flexibility” as the process “is not mathematical or rigid, and often requires a finely tuned assessment”.
120 A factor which the Court considered material, and which is relevant for present purposes, is the length of the head sentence. A long sentence may call for a non-parole period of a lower proportion than would a shorter sentence. Particularly is this so where the offence is uncharacteristic and the offender’s background does not demonstrate “any ingrained criminal tendency”: cf Griffiths v The Queen (1989) 167 CLR 372, per Brennan and Dawson JJ at 379. The respondent’s non-parole period is a little under sixty per cent of the head sentence, and His Honour was entitled to moderate it in the light of the fact that he was a mature man who, prior to this offence, had led a blameless and productive life. Again, it may have been open to his Honour to have fixed a longer period, but it cannot be said that 8 years is manifestly inadequate.
121 Accordingly, neither the head sentence nor the non-parole period could be said to be so inadequate as to call for this Court’s intervention on a Crown appeal. It is timely to remember the special place which that form of appeal occupies in our criminal jurisprudence, demanding a restraint which has been affirmed time and again in judgments of the High Court, this Court, and other courts of criminal appeal throughout the country. Those statements of principle are so familiar as to require no repetition here. This case is not the stuff of which Crown appeals are made.
122 The appeal should be dismissed.
123 Since this judgment was drafted we have been referred by the Director to the recent decision of this Court in R v Robertson (unreported, 6 November 1998). The leading judgment was given by Dunford J, with whom Beazley JA and Wood CJ at CL agreed. It seems that Bernier (supra) had been relied upon in argument in that case, although it was concerned with a charge of supplying a commercial quantity of cocaine under the State legislation. Dunford J observed (at p8) that Bernier had not recognised a lowering of the range for couriers of substantial quantities of cocaine and heroin since Ferrer-Esis (1991) 55 A Crim R 231.
124 Earlier in this judgment I summarised the effect of Bernier . I was a member of the Court which decided that case and I see no reason to depart from my analysis of it. Certainly, this was how it was viewed by Spigelman CJ, with whom McInerney and Sperling JJ agreed, in R v Chu (CCA, unreported 16 October 1998 at pp4-5): see also R v Behar (CCA unreported 14 October 1998) per Spigelman CJ at p13. Recently, the same view was taken by Abadee J, with whom Sheller JA agreed in R v Barrientos [1999] NSWCCA 1 at paras 18-32. As I have said, the Director did not ask us to reconsider Bernier . In any event, while it provided a framework for the argument, that decision could in no way be determinative of the present case.
125 I have also had the benefit of reading in draft the judgment of Hulme J. Like Greg James J, I do not think that it is appropriate in this case to re-examine patterns of sentence in this area. Quite apart from that, I am still not persuaded that the sentence we are considering is manifestly inadequate. My conclusion that this appeal should be dismissed remains unchanged.
126SCHEDULE: CASES INVOLVING COMMERCIAL QUANTITIES OF HEROIN WHERE HEAD SENTENCES GREATER THAN 14 YEARS OR NON-PAROLE PERIODS GREATER THAN 8 YEARS
G J Daubney (CCA, 6.10.94) - 22 years/15 years: Pleaded guilty to rolled up charge for 15 importations over 4 year period - total amount in excess of 16 kilograms - 5 passport offences taken into account - separate State charge of supply heroin - prior convictions for serious drug offences .
Poompiriyapinte & Tait - Solomon DCJ, 12 December 1990: Conspiracy to supply large commercial quantity of heroin which had been imported into Australia - convicted after trial - Poompiriyapinte sentenced to 21 years (MT 16 years, AT 5 years) - Tait sentenced to 13 years 4 months (MT 10 years, AT 3 years 4 months) - 9.8 kilograms bulk, 7.84 kilograms pure - Poompiriyapinte no criminal record, but the major participant - Tait, long criminal record, including serious drug offences, but sentence discounted by 1/3 for assistance to authorities. (Appeal to CCA, but sentence not considered - see Yooyen & Ors (1991) 57 A Crim R 226).
Begovich & Kolalich - McInerney J, 14 August 1991: Both sentenced to 13 years, NPP 10 years, for conspiracy to import commercial quantity of heroin - 2.18 kilograms pure - convicted after trial - joint principals - both had some criminal record but Kolalich’s record the more significant (including drug offences).
Keyes (CCA, 27 September 1996): Pleaded guilty to 2 charges of conspiring to import commercial quantity of heroin, 1 charge of conspiring to import trafficable quantity of heroin, and break enter and steal - sentenced to 15 years, NPP 9½ years - 3 separate conspiracies - first two involving 2.4 kilograms and 5 kilograms respectively, the third an unspecified trafficable quantity - break enter and steal, serious offence of its type - 2½ years custody in Spain before extradition taken into account - 20% reduction for future assistance.
Mai & Tran (1991) 26 NSWLR 371 (CCA): Each found guilty of a number of charges relating to commercial quantity of heroin imported into Austra lia - sentenced prior to Pt 1B of the Crimes Act 1914 (Cth) - each sentenced to 13 years (MT 10 years, AT 3 years) - 6.9 kilograms - major operators in heroin dealing in Australia - insignificant criminal records.
Taha (CCA, 18 December 1990): Pleaded guilty to importation and possession of 2.234 kilograms of heroin - sentenced before Pt 1B of the Crimes Act 1914 (Cth) - 13½ years (MT 10½ years, AT 3 years) - professional courier for significant financial reward - no criminal record - some assistance to authorities - sentence described by Gleeson CJ as “severe”, but not outside the range of sentencing judge’s discretion.
Li - Luland DCJ, 13 November 1997: Pleaded guilty to conspiracy to supply large commercial quantity of heroin, possession of prohibited imports (commercial quantity of heroin) and conspiracy to launder proceeds of crime - 14 years (MT 10½ years, AT 3½ years) on conspiracy to supply with concurrent sentences on other matters - in possession at different locations of amounts of 3.8 and 7.9 kilograms, but those quantities alone did not “indicate the extent nor sophistication of this particular distribution business” - characterised as “an assistant” in “a vast commercial enterprise to introduce huge quantities of heroin into this country, to process and sell them and then dispose of the ill-gotten gains to other criminals off our shores.” - remitted $1.8 million to Hong Kong in false name - insignificant criminal record.IN THE COURT OF
CRIMINAL APPEALNo. 60504 of 1997
.
CORAM: HULME, J.
HIDDEN, J.
GREG JAMES, J.WEDNESDAY 24 FEBRUARY 1999
GREG JAMES, J:REGINA v. MICHAEL JOHN SPITERI
JUDGMENT
127 I have had the advantage of seeing in draft the proposed judgments of Hulme and Hidden, JJ.
128 At the hearing of this appeal, the Director contended that the sentence and non-parole period were both manifestly inadequate. The Director opened the proceedings by referring the court to Bernier (CCA, unreported 19 May 1998) and submitting that "we would be contending within the framework of the guidelines decided by that decision that both the head sentence and the non-parole period are manifestly inadequate".
129 The Director expressed his concern lest Bernier (supra) gave the imprimatur of the Court of Criminal Appeal to a lower range of sentence than had been indicated in 1991 in Ferrer-Esis (1991) 55 A. Crim. R. 23 but expressly declined to submit that Bernier (supra) should be revisited, proceeding with the appeal on the basis that Bernier (supra) applied. He submitted that "it would as a practical matter require more time for the Crown to be able to assist this court properly and it might of necessity mean adjourning this case and the ones due to follow it". (That latter reference is to the matters of Jiminez and Yu Tit Hoi , judgments in both of which are delivered today, which were also before the court for argument on the same day as this case.) On a number of occasions the Director confirmed that this appeal was proceeding as he had set out and consequently no argument was entertained other than within the parameters as set by the Director. Subsequently a limited number of additional decisions were drawn to the court's attention but no request has been made to have the matter re-listed for further argument or to put the appeal on a wider basis.
130 On the hearing of the appeal, the Director conceded that the range, albeit approximately, for head sentences, in the light of Bernier (supra) was such that the sentence fell at or just below the bottom end of an appropriate range. As to the non-parole period, it was submitted that the non-parole period was three percent below what was said to be the bottom of the appropriate range.
131 The issues raised on Crown appeals, in the light of the statements by the High Court in Griffiths v. The Queen (1977) 137 CLR 293 and Everett v. The Queen (1994) 181 CLR 295 peculiarly turn on whether the matters raised by the appellant disclose error or propound issues of principle which in the instant case should be answered in the exercise of the court's discretion. (See Regina v. Allpass (1992) 72 A. Crim. R. 621.) With the greatest respect to those who might hold a different view, I do not consider, especially since counsel for the respondent has not had the opportunity to deal with the matter any more widely, that this case raises such considerations as would merit the upholding of a Crown appeal, as the case was conducted. Cognisant, as I am, of the matters adverted to by Hulme J., I am, with the greatest respect, unable to share his views that such an analysis and conclusion as he proposes is appropriate, here particularly in the light of the decision in Regina v. Chu (CCA, unreported 16 October 1998) and the careful examination of authorities including Bernier (supra) by Abadee, J. with whom Sheller, JA. agreed in Regina v. Barrientos [1999] NSWCCA 1 at paras.18-32. Hidden, J. in his judgment, examines the sentence in accord with the Director's submissions on this appeal. On that basis, for the reasons he gives, I am of the opinion the appeal should be dismissed.
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