R v Thialal TOURE

[2008] NSWDC 335

CITATION:	R v Thialal TOURE [2008] NSWDC 335
HEARING DATE(S):	5 December 2008
JUDGMENT DATE:	5 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment for 7 years and 6 months with a non parole period of 4 years and 6 months. Drugs to be destroyed
CATCHWORDS:	Criminal law - Sentence - Import a marketable quantity of a border-controlled drug - Cocaine
LEGISLATION CITED:	Crimes Act 1914 (Cth)
PARTIES:	The Crown Thialal Toure
FILE NUMBER(S):	DC 2008/11/0680
COUNSEL:	A P Cook SC (Offender)
SOLICITORS:	Commonwealth DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Thialal Toure appears for sentence today, having pleaded guilty before the Local Court to an offence of importing a marketable quantity of a border-controlled drug. The drug in question was cocaine, the quantity was significant. Indeed, there was 843.5 grams of cocaine secreted on the offender’s body when she arrived in Australia on 21 April 2008. That drug was part of an admixture of more than a kilo; 1,290.1 grams, in fact.

2 As might be imagined, the value of the drug was significant. The unchallenged evidence is that its wholesale value was at about $368,000 and its street value somewhere around half a million dollars. These figures demonstrate a number of things, perhaps the most important of which is the need to impose sentences which would deter those who might be tempted to make easy money out of drug trafficking.

3 The offender was offered, she says, 10,000 euros for carrying these drugs into Australia. Clearly those higher up in the hierarchy stood to make much more than that. A sentence that imposes a burden upon the offender consistent with the need to deter others who might be tempted to indulge in drug trafficking because of the easy money that can be made is therefore required. Of course, the offender was a courier; she was not high up in the drug hierarchy, but the Court of Criminal Appeal has said on many occasions that if those higher up in the drug hierarchy find it difficult to obtain couriers, then the evil trade in the trafficking and importation of drugs is made harder as a result.

4 The offender says that she was in financial difficulty because she had some medical debts which arose because of the need for her to receive treatment and her daughter to receive treatment. In her daughter’s case, she is a diabetic and requires regular insulin injections. She said that she approached a cousin of hers in order to see if she could make some money to pay off those debts. Part of the preparation for the importation in April involved an earlier trip to Australia in February. It is not suggested that on that occasion the offender imported drugs but as I understand her evidence, it was perhaps something of a dry run.

5 Shortly before she left Paris to come Australia, she had been visiting her parents in Senegal. On her return to Paris, she went to her cousin’s friends. A quantity of cocaine was placed on her head and tightly woven into her hair, with a wig being placed on top. Another quantity of drugs was secreted in her bra. That was how she got the drugs into Australia. Fortunately, for reasons which are not clear, the suspicions of customs officers must have been aroused and she was searched on arrival in Australia and her offence thus detected.

6 I must say that I am not satisfied on the balance of probabilities that the offender did this in order to obtain money to pay off debts. There is no doubt that she did it to make money but whether it was to pay off debts she had incurred for medical treatment, I do not know. Her parents were in a position to pay for her and her daughter to visit them in Senegal but she did not ask them for money to pay off her debts because she said she was embarrassed. It is a remarkable thing, therefore, to commit a serious criminal offence as this, risking a significant period of custody, simply to avoid embarrassment.

7 On the other hand, I am not satisfied either that this was an offence committed in order to buy some luxuries in Paris. There is no suggestion that the offender was living a luxurious life or wanted to live a luxurious life. It is common ground, however, that this was an offence committed simply to make money. The offender is not a user of drugs, and did not therefore have that level of desperation which is often seen when a drug addict agrees to import drugs. This was, I repeat, an offence committed simply for financial reward.

8 The offender was born in Senegal and moved to France as a young girl. There, she was placed in the care of an uncle who treated her very badly. She moved to Paris as a teenager and began work at Eurodisney in an unskilled area. She was studying tourism at university as well when she became pregnant with her daughter. She gave up both studies and work after her daughter was born in circumstances where, as I have said, they both became sick and her daughter is a diabetic.

9 It is common ground that the offender will receive a significant period of custody. Only such a sentence would reflect the objective gravity of her conduct. She is a French speaker. She speaks some English but did give evidence that there are no other French speakers where she is held in custody. She will find custody socially isolating as well. Other things that will make her time in custody harder are the likely lack of visitors that she will receive and perhaps most importantly of all, the knowledge that as she is locked up in Australia, her daughter is growing up in France.

10 On the other hand, all of these consequences were well known to the offender when she, with her eyes very much open, decided to commit an offence, even, she said, an offence which she thought could lead to her being subject to the death penalty if she was detected carrying drugs whilst in transit in Hong Kong.

11 There is conflicting evidence as to whether the offender is remorseful. The attitude of the offender as suggested in the presentence report to her offence is one that if there was harm caused to any drug users as a result of her importation of cocaine, then that was their problem rather than hers.

12 On the other hand, in evidence today she said that she felt bad about what she had done and further, she did attempt to assist the police, although as it turns out, all of the information was already known to them. Of course, assistance to police can not only be the product of remorse but can also be a deliberate attempt to obtain a lower sentence. In such circumstances, I am unable to find that the offender is remorseful.

13 The offender did plead guilty and so has displayed an attitude of willingness to assist the authorities. The plea of guilty is no evidence of remorse, I could have added when dealing with this subject earlier, because of the circumstances of her arrest. She could scarcely have done anything else but plead guilty once she was detected with the drugs secreted upon her.

14 I consider it appropriate to reflect the offender’s willingness to assist the authorities by pleading guilty by discounting the sentence I would otherwise have imposed upon her by twenty-five per cent. It was not suggested by Mr Cook that the circumstances of the offender’s daughter were such that I could take into account the hardship to her occasioned by her mother’s incarceration in Australia. She is being cared for by the offender’s sister whilst in France and whilst no doubt she will suffer as a result of separation from her mother but unfortunately such consequences are commonplace when parents are sent to gaol.

15 The Crown, in its usual written submissions, assisted the court with three cases determined in the Court of Criminal Appeal. These three matters followed the repeal of s 16G of the Crimes Act1914 (Cth). Two of them concerned heroin and one cocaine. Mr Cook made no submissions as to those cases, in particular, he did not suggest that the range prescribed in those cases was inappropriate.

16 In those circumstances, the sentence I impose is this: The offender is sentenced to imprisonment. I set a head sentence of seven and a half years with a non-parole period of four and a half years. That sentence will have dated from 21 April 2008, which was the day on which the offender went into custody. The offender will be eligible to be released to parole on 20 October 2012.

17 Ms Toure, let me just explain to you the sentence I have imposed upon you. I have sentenced you to imprisonment. You will have to spend at least four and a half years in gaol. That starts from 21 April 2008, which is the day you were arrested at Sydney Airport. That means you are eligible to be released on 20 October 2012. Do you understand that, Ms Toure?

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