Regina v K

[2000] NSWCCA 200

CITATION:	Regina v K [2000] NSWCCA 200
FILE NUMBER(S):	CCA 060436/99
HEARING DATE(S):	18/05/2000
JUDGMENT DATE:	18 May 2000
PARTIES :	Regina v K
JUDGMENT OF:	Mason P at 1,28,30; Heydon JA at 29; Smart AJ at 2-27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0069
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

COUNSEL :	G.P. Craddock - Appellant R.F. Sutherland - Crown
SOLICITORS:	Legal Aid Commission - Appellant Commonwealth D P P - Crown
CATCHWORDS:	Criminal Law - Sentencing - Courier of trafficable quantity of heroin (mid range) - permissible range - discount for assistance.
LEGISLATION CITED:	Crimes Act 1914 (Cth)
CASES CITED:	Ferrer-Esis (1991) 55 A Crim R 231 Wong & Leung [1999] NSWCCA 420 R v Lawson (1997) 98 A Crim R 463 R v Bernier (1998) 102 A Crim R 44
DECISION:	Leave to appeal against sentence granted; Appeal allowed; Sentence quashed; In lieu therof applicant is sentenced to imprisonment for 5 years starting on 29.11.1998 with a non parole period of 3 years.

IN THE COURT OF CRIMINAL APPEAL

60436/99

MASON P
HEYDON JA
SMART AJ

THURSDAY, 18 MAY 2000

REGINA v K

JUDGMENT

1 MASON P: I will ask Smart AJ to deliver the first judgment.
2 SMART AJ: In this matter I will refer to the applicant by the pseudonym "K".
3 K seeks leave to appeal and to appeal against the severity of a sentence of seven years' imprisonment with a non-parole period of four years for the offence of importing into Australia a quantity of heroin being not less than the trafficable quantity.
4 On 29 November 1998 the applicant arrived by plane in Sydney from Indonesia. Concealed at the bottom of his briefcase was 999.5 grams of heroin mixture with a purity of 72.1 percent. The nett weight of pure heroin was 720.6 grams, which is a trafficable quantity. At the then current street prices of $300 to $450 for 1 gram at fifteen percent purity, the heroin seized was estimated to have a street value of $1 million to $1.5 million.
5 Upon the applicant's arrival he was to proceed to a nominated motel and contact his principal in Indonesia for further instructions. This is a typical mode of operation. Upon his arrest K agreed to assist the authorities. Under their supervision he went to the nominated motel and endeavoured, unsuccessfully, to contact his principal. However, his principal telephoned him at the motel. About one and a half hours later K received a local call advising him that on the following day he would receive a further call with further instructions. A person subsequently attended on him at the motel and saw the briefcase. He left and returned about twenty minutes later with $20,000 which he gave to K. This person was arrested.
6 At the sentence hearing the Crown conceded that the applicant should be sentenced as a courier and that was correct.
7 The judge thought that the offence was committed solely in order to supply the applicant with funds. She noted that he had indicated a plea of guilty from the earliest opportunity. She regarded that as inevitable in the light of his admissions to the police. She thought there was some contrition inherent in the plea of guilty and the savings to the community which that plea represents. She found that the applicant had a lack of insight into his condition and position and that that bore considerably on the question of whether or not there was any demonstrable contrition or remorse over and above that indicated by the plea of guilty. She thought that there was very little contrition or remorse of that quality.
8 I would interpolate that this finding has to be set against his background and emotional condition and what he is capable of by reason of these factors.
9 The applicant had no prior convictions in Australia. He had a driving offence in America. That can safely be ignored.
10 The applicant was born on 28 November 1974 in England where he spent the first few years of his life before his father took the family to France. His parents separated when he was eight years old. He and his younger brother lived with his mother. The boys continued to see their father regularly until he moved to Brussels. His father remarried and had a three year old son.
11 When the applicant was about twelve years old his mother became ill and he and his brother were told that she had AIDS. He was terrified that he would contract AIDS from her and so for some time avoided physical contact with her. He and his brother preferred to sleep at their boarding school. She died when he was seventeen and the last couple of years were tragic for them all. Three days prior to the mother's death the father collected the boys. The applicant felt that he had not supported his mother when she most needed him. He had become emotionally detached. While the applicant got on with his young stepmother and three year old stepbrother the applicant felt that he did not belong in that family setting.
12 The psychologist has recorded that the applicant had no sense of belonging anywhere nor with anyone. He had few emotional attachments of any significance in his life. The judge accepted the assessment of the psychologist that the applicant had little insight and was emotionally under-developed.
13 In his record of interview the applicant said that in October 1998 he had taken some narcotics, probably heroin, from Thailand to Indonesia in a backpack. He was paid $1,500. Both the judge and the Crown relied on this matter. There is no evidence that this was an offence under either Thai or Indonesian law, nor how seriously it would be regarded. I will, however, assume it was an offence. Even so, as it was committed outside Australia its relevance and weight are limited.
14 The judge noted that she had little, if any, material before her which indicated that rehabilitation was likely or realistic.
15 The psychologist summed-up the position thus:

"A major fear [K] voiced during our meeting was that he has no idea what to do on release from prison and essentially has no place to go. Talking this over with a psychologist would also be of benefit to him.

Personality damage is difficult to redress and the process is slow, however, in K's case, given his intelligence and the limited self-insight he currently demonstrates, with appropriate support and counselling, his prognosis seems positive."

16 The judge emphasised the principle of deterrence. She took into account that the applicant would serve his sentence in protective custody and that this is a significantly harsher way of serving his sentence.
17 The judge relied on Ferrer-Esis (1991) 55 A Crim R 231. Ultimately she came to the conclusion that, having regard to the quantity, the other findings she had made and the operation of s 16G of the Crimes Act 1914 (Cth), a head sentence of eleven years was an appropriate starting point. She reduced that by about forty percent, being the discount to be given for the substantial assistance rendered. This led to a head sentence of seven years. She then determined a non-parole period of four years. Non-parole periods are usually in the range of about sixty to sixty-six and two-thirds percent of the head sentence.
18 In R v Wong & Leung [1999] NSWCCA 420 this Court in a guideline judgment upheld the conclusion to which this Court came in both R v Lawson (1997) 98 A Crim R 463 and R v Bernier (1998) 102 A Crim R 44 that the range suggested in Ferrer-Esis has tended to be imposed for low-range commercial quantities rather than for high-range trafficable quantities, although there was an overlap between the two ranges. It is apparent from the remarks of the judge that she was not enamoured of the approach taken in Bernier.
19 Wong & Leung reviewed a considerable number of cases. As a guideline it held that the appropriate range of head sentences for a mid-level trafficable quantity for drugs such as heroin for couriers and persons low in the hierarchy of the importing organisation was six to nine years. In broad terms, prior to that decision a sentence in this range was often imposed for such offences. Wong & Leung drew on an existing reservoir of experience and sentences and introduced more definitive guidelines in order to promote consistency of sentencing. It drew the existing strands together into a cohesive system and refined them.
20 I do not accept the Crown's submission that the starting point of eleven years for a mid-range trafficable quantity in the circumstances of this case was permissible prior to Wong & Leung. It is certainly outside that guideline.
21 After making the allowance required by s 16G of the Crimes Act 1914 (Cth) the correct head sentence, absent any discount, is one of eight years, having regard to the quantity of heroin, its value and the other circumstances of the case.
22 This was not the first time on which the applicant had acted as a courier, albeit not the other occasion was not in Australia. The subject offence could, therefore, not be regarded as an isolated one or a first time offence.
23 I have not overlooked the plea of guilty, the subjective features and the serving of the sentence in protective custody. A discount of the order of forty percent (or a little less) as applied by the judge for assistance is unexceptionable.
24 With a starting point of eight years as a head sentence and allowing a discount of approximately but not quite forty percent, the head sentence reduces to one of five years. The non-parole period should be three years. Any lesser sentence would not sufficiently reflect the objective criminality of the offence.
25 Counsel for the Crown urged upon the court that even assuming that the judge's approach and her mathematics indicated error, nevertheless, the sentence at which she ultimately arrived was the correct one. Counsel submitted that it was certainly within the range and that a lesser sentence was not one that should be imposed.
26 It is apparent from what I have just said that that is a submission with which I do not agree, given what is the correct starting point in this case and the correct approximate discount to be allowed.
27 I propose that leave to appeal against the sentence be granted, that the appeal be allowed, the sentence quashed and that in lieu of the sentence imposed the applicant be sentenced to imprisonment for five years commencing on

29 November 1998 with a non-parole period of three years commencing on the same day.

28 MASON P: I agree.
29 HEYDON JA: I agree.
30 MASON P: That is the order of the Court.

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