Regina v Whitney

[1999] NSWCCA 38

CITATION:	Regina v Whitney [1999] NSWCCA 38 revised - 15/04/99
FILE NUMBER(S):	CCA 60554/98
HEARING DATE(S):	5 March 1999
JUDGMENT DATE:	5 March 1999
PARTIES :	Regina v James Herbert Whitney
JUDGMENT OF:	Grove J at 1; Dunford J at 22; Greg James J at 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0273
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ

COUNSEL:	P. Hastings QC with G. Tabuteau (Crown) R. Burgess (Appellant)
SOLICITORS:	Commonwealth DPP (Crown) T.A. Murphy (Appellant)
CATCHWORDS:	Criminal Law and Procedure; Sentence; Drug Importation; Courier; Significant Assistance to Authority; Parity with Co-offender
ACTS CITED:	Crimes Act 1914(Commonwealth) Criminal Appeal Act Criminal Procedure Act
DECISION:	Appeal allowed; New sentence substituted

IN THE COURT OF
CRIMINAL APPEAL

60554/98

GROVE J
DUNFORD J
GREG JAMES J

5 March 1999

REGINA v JAMES HERBERT WHITNEY

JUDGMENT
1 GROVE J : Following a plea of guilty to a charge under s 233B(1)(b) of the Customs Act of importing a commercial quantity of cocaine the applicant was sentenced by his Honour Judge Gibson QC in the District Court to imprisonment for seven years with a non parole period of four and half years being specified. That sentence was imposed on 1 May 1997 and directed to commence on 15 February 1997 when the applicant was taken into custody upon his arrest at Sydney Kingsford Smith Airport in circumstances that I will later sketch. On 19 December 1997 a co-offender Leslie Victor Manasse Adorjany appeared before her Honour Judge Karpin where he pleaded guilty to a charge under the same statutory provision of possessing a traffickable quantity of cocaine and was sentenced to imprisonment for ten years with a non parole period of six years and three months being specified. In the immediately preceding appeal heard by this Court an application for leave to appeal against severity of sentence by Adorjany was heard by this Court, such leave being granted but the appeal dismissed.
2 The applicant is aged 56 years and a citizen of the United States of America. He has been residing in Colombia for some time and prior to his arrival and arrest in Australia had been living in a de facto relationship with a woman in that country. On 15 February 1997 he arrived at Sydney Kingsford Smith Airport on a flight from Papeete, Tahiti but his personal journey had commenced in Colombia. His baggage was examined by customs and he was detained and later arrested by Federal police. His baggage was found to contain illicit drug later analysed and assessed to be 2,796.2 grams of pure cocaine.
3 The applicant admitted his culpability. He informed police of the identity of those who had recruited him, principally a man with whom he had been associated in the building trade in Medellin Colombia. He agreed to assist police in the apprehension of other participants in the drug trafficking in which he was involved. It was accepted that his role was that of a courier. He had been promised US$30,000 for his part.
4 Pursuant to his offer to assist, accepted by Federal police, he took possession of a briefcase containing inert substance substituted for the cocaine which he had imported which was “salted” with approximately 40 grams of actual drug. It is unnecessary to detail all the following activity but it is significant that the applicant cooperated with police in recording telephone calls which he made and in wearing a listening device when he met a man, the co-offender Adorjany, to whom he passed the briefcase containing the purported drug.
5 It is relevant to recount some of the curial history concerning the charge against the applicant. As noted, the applicant immediately acknowledged his offence. He pleaded guilty and was committed for sentence which I have already recounted was imposed by Gibson DCJ on 1 May 1997. On that occasion the learned sentencing judge specified that the applicant “has not only cooperated but he has said that in the future he will also assist by way of giving evidence (against Adorjany)”. His Honour specified:
“If it were not for the assistance that he has given, I would have been sentencing him to a twelve year sentence, and a non parole period of three quarters of that, which would have been eight years.”
6 Although his Honour referred on more than one occasion to future assistance he stated that he was reducing the sentence from that provisional estimate to what was ultimately imposed “in view of the substantial assistance that he has given”. The applicant sought leave to appeal against the severity of the sentence actually imposed and it came before this Court differently constituted on 6 November 1997. The judgment of the Court then given by Newman J (with whom Gleeson CJ and Cole JA agreed), included an expression of view that the head sentence which Gibson DCJ would have imposed had it not been for the assistance (12 years) could not be said to be manifestly excessive. However, the attention of the Court was drawn to the specific requirements of s 21E of the Crimes Act 1914 (Commonwealth) which in substance required a sentencing judge to specify the reduction given for future assistance by a prisoner then being sentenced. As I have recited, his Honour specified the allowance that he was making in terms which referred to past assistance. Therefore the Court was minded, expressly not deciding the appropriateness of the course as a matter of procedure, to remit the matter pursuant to s 12(2) of the Criminal Appeal Act for the purpose of allowing Gibson DCJ to undertake what was required pursuant to s 21E.
7 On 27 November 1997 the matter was relisted before Gibson DCJ. He delivered the following judgment from which I have omitted the formal introductory paragraph:
“The overall sentence was reduced from twelve with a non-parole period of eight to a period of seven years with a non-parole period of four and half, the basis for that reduction being the assistance, which was considerable, that the prisoner had given to the authorities and the fact that he had informed them that he would give future assistance.
The amount that I allowed for future assistance was a period of two years on the head sentence with a period of eighteen months on the non-parole in the matter, so that I confirm that the period allowed for future assistance was two years on the head sentence and eighteen months on the non-parole. I make confirmation of that order under s 12(2) of the Criminal Appeal Act.
However, if there is no jurisdiction under that, then I make it pursuant to s 24 of the Criminal Procedure Act.”
8 The effect of that judgment was to make no variation to the sentence imposed on 1 May.
9 In submissions before this Court it has been contended on behalf of the appellant that further argument should be entertained that the sentence was manifestly excessive because, by reference to several decisions “touching on the appropriate tariff for sentences of this kind” it should now be seen as more appropriate for importation by couriers to impose a head sentence somewhat lower than twelve years. That had been the head sentence in R v Banthithadawit CCA unreported 8 April 1994 (to which the sentencing judge had been referred). He was also referred to other cases in which head sentences of eleven years, nine years, eight and half, and nine years had been imposed. However, in this very case although the matter did not come to final decision because of the referral for the purposes of s 21E of the Crimes Act 1914 there has been a clear indication that the sentence (before reduction for assistance) should not be categorized as manifestly excessive. I do not regard any of the remarks in the cited more recent cases R v Barrientos (CCA 10 February 1999); R v Robertson (CCA 6 November 1998) or R v Jiminez (CCA 24 February 1999) or R v Bernier (CCA 19 May 1998) as establishing that the view expressed in this case in November 1997 should be concluded to be incorrect. I do not categorize an assessment of head sentence at twelve years for a courier in the circumstances of this applicant as manifestly excessive.
10 The second matter advanced on behalf of the applicant involves a simple issue of parity. The approach of the Court must be guided by Lowe v The Queen 1984 154 CLR 606 and Postiglione v The Queen 1996-97 189 CLR 295. Nor do I overlook the judgment of this Court in R v Hodges CCA unreported 20 August 1997 but analysis of the majority and dissenting judgments in that case is not presently required.
11 Before turning to the matter of parity it is appropriate to make reference to evidence before the sentencing judge which was not expressly adverted to in his remarks on sentence. His Honour referred to the substantial assistance that the applicant had given and mentioned that he had a de facto wife in Colombia and remarked
“As I understand it, he cannot go back to Colombia at any rate, which is as a result of the cooperation that he has extended.”
There was evidence placed before his Honour from Federal agent Elliott in the form of a statement of assistance which contained the following assertion:
“As a long term resident of Medellin in Colombia, Whitney has first hand knowledge of the operation of cocaine cartels and the enormity, wealth and power of such organizations. The cartels have a well deserved international reputation for murdering not only individuals who assist the police but also their families.
He is therefore acutely aware of the physical danger that he has placed himself in with his agreement to cooperate with police in this matter. He is aware that he will not be able to return to Colombia where he has a girlfriend and a prior life.”
12 Federal Agent Elliott added:
“Whitney is further aware that Australian authorities can afford him no assistance or protection once his gaol term has been served and he departs Australia. Whitney will automatically be deported to the USA on the completion of any gaol sentence imposed.
Not only has Whitney the Colombian cartels to contend with he also has to be aware of members of the Australian criminal milieu given Adorjany’s extensive network of connections within that group.”
This material will be significant in the event that the Court determines to resentence.
13 It is pointed out on behalf of the Crown that the actual discount taken from comparison of the notional term specified by his Honour and the actual imposition of sentence approximates to 42%. On any view that is a large discount. However, it is rare that assistance given by an offender has such a marked value to law enforcement authorities. Whilst, of course, it was not open to the sentencing judge dealing with Adorjany to take such matters into account I see no reason why in relation to the evaluation of the assistance given by this applicant it should not properly be observed that Adorjany was a person who had been of interest to Federal police for many years, a person who was at least an acquaintance and probably an associate of such notorious figures as Bruce “Snapper” Cornwell and Ian Saxon and, on Adorjany’s own evidence, an associate of Juan Diaz whom he asserted was the effective principal in the importation in which the applicant took part. Adorjany knew Diaz had served imprisonment for drug offences. The arrest and conviction of Adorjany was a notable occurrence in police operations against drug traffickers. It is true that in the event the applicant was not required to give evidence against Adorjany but it is perceptible that the plea of guilty by him was provoked by the ironclad quality of the prosecution case against him and that quality was directly the result of the activity of the applicant and the risks to which he had been prepared to and will be prepared in the future to expose himself.
14 On the issue of parity, in written submissions it was conceded by the Crown
“That the criminality of Adorjany was higher than that of the applicant, in which case the sentence of Adorjany may have been inappropriately lower than the pre discount sentence imposed on the applicant.”
15 In my assessment it was so. It is observed that the non-parole period of the applicant after his discount is one year and nine months (approximately 28%) less than the non-parole period to be served by Adorjany. The discrimination in head sentences is calculated at approximately 30%.
16 It must be accepted that the circumstances in which the two offenders were sentenced were not equal and accordingly direct comparisons cannot be decisive. The applicant pleaded guilty to importation of a commercial quantity of the drug whereas Adorjany pleaded guilty to possession of a traffickable quantity. It does not appear that the prosecution would have been in possession of evidence demonstrating that Adorjany was aware that the quantity of drug was a commercial quantity. Although these differences are noted, the result is that an impression is available that the benefit of the discount given to the applicant has the appearance of being diminished when compared with the result of the sentencing of Adorjany.
17 For my part, I consider that the Crown submission that the difference is such that the sentence should not be categorized as manifestly excessive should not be sustained.
18 I have touched upon a number of matters concerning the applicant. In common with most selected by drug traffickers to act as couriers, he has no prior convictions either here or in his countries of origin or residence. I have mentioned the relationship between the applicant and a woman in Colombia. He is a native of Grand Rapids Michigan. He has been married and is divorced with grown children but that means of course that he does have family which is potentially vulnerable to the matters referred to by Federal agent Elliott. There is need to take into account the matters scheduled in s 16A of the Crimes Act 1914 and as well in particular the circumstance that the regime of sentencing applicable in this State does not provide for the earning of remissions.
19 There is an unusual aspect to this case in that the generally recognized risk to those who assist in law enforcement against drug trafficking has been shown to be magnified for this applicant by specific evidence of realistic and continuing danger to him and possibly to his family. I do not need to repeat the evidence of Federal agent Elliott earlier recited. I give special weight to these special circumstances in resentence.
20 Taking all necessary matters into account I propose the following orders:
(1) Application for leave to appeal be granted and the appeal allowed.
(2) Sentence imposed in the District Court quashed.
(3) In lieu thereof the applicant be sentenced to imprisonment for 6 years with a non-parole period of 3 years 9 months such sentence and non-parole period to commence on 15 February 1997.
21 I note that the matter of Adorjany being completed, no question of future assistance in accordance with the signed undertaking by the applicant now arises.
22 DUNFORD J: I agree.
23 GREG JAMES J: I also agree.
24 GROVE J: The orders of the Court will be as I have proposed. We direct that counsel for the applicant render an explanation to her client in compliance with s 16F of the Crimes Act 1914.

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