R v Tanudjaja

[2002] NSWCCA 467

CITATION:	R v Tanudjaja [2002] NSWCCA 467
FILE NUMBER(S):	CCA 60135 of 2002
HEARING DATE(S):	19/11/02
JUDGMENT DATE:	19 November 2002
PARTIES :	Regina v Melinawati Tanudjaja
JUDGMENT OF:	Meagher JA at 1, 13; Wood CJ at CL at 11; Greg James J at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/1261
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

COUNSEL :	A: G Farmer R: M Bracks
SOLICITORS:	A: Legal Aid Commission R: Commonwealth Director of Public Prosecutions
CATCHWORDS:	Importation of prohibited substance under s 233B of the Customs Act 1901 - whether the head sentence was reflective of the appellant's subjective circumstances - s 16A (m) of the Crimes Act 1914 - leave to appeal allowed - appeal dismissed.
LEGISLATION CITED:	s 233B Customs Act 1901 s 16A Commonwealth Crimes Act 1914
DECISION:	Appeal allowed; appeal dismissed.

CCA 60135 of 2002

MEAGHER JA
WOOD CJ at CL
GREG JAMES J

TUESDAY 19 NOVEMBER 2002

MELINAWATI TANUDJAJA v REGINA (COMMONWEALTH)

Judgment

1 MEAGHER JA: In this matter there is an application for leave to appeal by Tanudjaja Melinawati. She was found guilty of the criminal offence of importing a prohibited substance under s 233B of the Customs Act 1901. The substance was discovered upon her at the Sydney Airport when she arrived from Indonesia on 24 September 2001. It was 489 grams in weight of which 344 grams were pure heroin. The estimated value of the substance was $244,000. She pleaded guilty.

2 His Honour Judge Shillington sentenced her to six years’ imprisonment commencing on 24 September 2001 with a non-parole period of three years from that date.

3 The Commonwealth Crimes Act 1914, s 16A says that the Court must take into account such of the following matters as are relevant and known to the Court and in par (m) the applicant’s character, antecedents, cultural background, age, means and physical or mental condition of the person. His Honour, Judge Shillington in giving the sentence made the following findings:-

(1) her motivation for committing the offence was a commercial benefit of $2,300 which was needed by her because of her family plight and circumstances;

(2) that she demonstrated sufficient remorse;

(3) that she was a model prisoner and carried out work in an exemplary fashion;

(4) on the medical reports of Dr Hampshire that she suffered from severe depression requiring psychiatric treatment.

4 His Honour accepted the genuineness of the symptoms and the presentation.

5 It is admitted by her counsel that the non-parole period is reflective of her subjective circumstances but it is argued that the total head sentence does not reflect the matters which his Honour was required to take into account in regard to s 16A(m).

6 I cannot follow this argument at all. His Honour made the findings which I have recited. She claims to have suffered from depression. So be it, she has quite a lot to be depressed about because she committed a very serious crime and prisons were not intended to be holiday camps. Nonetheless the trial judge took into account the fact that she was depressed and in so doing, his Honour found that she had to serve no more than fifty per cent of the head sentence. In my opinion the normal non-parole period is more like sixty-five per cent of the head sentence.

7 His Honour really gave a judgment of remarkable leniency. In my view he did not disregard s 16A in fixing the head sentence.

8 It is to be remarked that this is not a case where the lady’s depression in any sense led to the commission of the crime or contributed to the commission of the crime. Her depression is something which occurred subsequently to her imprisonment.

9 In these circumstances I fail to see what his Honour has done which can be complained about. He is committed by statute to take certain factors into account. He took all those factors into account. He gave a judgment in which the head sentences were in the middle of the range and he gave a very generous discount in the non-parole period.

10 In these circumstances I would suggest that leave to appeal be allowed and that the appeal be dismissed.

11 WOOD CJ at CL: I agree.

12 GREG JAMES J: I agree.

13 MEAGHER JA: The orders of the Court will be as I have proposed.

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