Regina v Yves Camus

[1999] NSWCCA 425

CITATION:	Regina v Yves CAMUS [1999] NSWCCA 425
FILE NUMBER(S):	CCA 60164/99
HEARING DATE(S):	3 December 1999
JUDGMENT DATE:	15 December 1999
PARTIES :	Regina Yves Camus
JUDGMENT OF:	Wood CJatCL at 1; Sully J at 2; Simpson J at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0688
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ

COUNSEL:	I. McClintock - Commonwealth DPP C. Waterstreet - Respondent
SOLICITORS:	Commonwealth Director of Public Prosecutions Hovan & Co. - Respondent
CATCHWORDS:
ACTS CITED:	Customs Act 1901 (C'th) Commonwealth Crimes Act 1914
DECISION:	Crown appeal upheld; sentence imposed in District Court on 5/3/99 quashed; re-sentenced to imprisonment for 10 years to commence on 4 June 1998 and expire on 3 June 2008, with non-parole period of 6 years to expire on 3 June 2004

IN THE COURT OF
CRIMINAL APPEAL

60164/99

WOOD CJ at CL
SULLY J
SIMPSON J

15 December 1999

REGINA v Yves CAMUS

JUDGMENT

1   WOOD CJ at CL: I agree with Sully J

IN THE COURT OF

CRIMINAL APPEAL

60164/99

WOOD CJ at CL
SULLY J
SIMPSON J

15 December 1999

REGINA v Yves CAMUS

JUDGMENT

2 SULLY J: This is a Crown appeal against a sentence of imprisonment imposed upon Mr. Yves Camus, [“the respondent”], on 5 March 1999. On that day the respondent stood for sentence in the District Court at Sydney and before her Honour Judge Ainslie-Wallace. The respondent had previously pleaded guilty upon arraignment to a charge that between about 29 May 1998 and 4 June 1998 he had been in possession without lawful excuse of prohibited imports to which s.233B of the Customs Act 1901 (C’th) applied, being narcotic goods consisting of not less than the commercial quantity as prescribed by statute of the drug which is commonly known as ecstasy. The amount involved was 736.5 grams. The minimum amount necessary to constitute a commercial quantity is 500 grams. Possession of 500 grams or more of ecstasy, in contravention of the relevant provisions of the Customs Act, attracts upon conviction a statutory maximum sentence of life imprisonment. 3 Her Honour Judge Ainslie-Wallace sentenced the respondent to imprisonment for 8 years. Her Honour fixed a non-parole period of 5 years. 4 The relevant facts can be stated sufficiently for present purposes by quoting them, as follows, from the remarks on sentence of her Honour:

“Much of the evidence in this matter was by way of transcripts of intercepted conversations between the prisoner and various persons either in person or on the telephone.
On 29 May 1998 the Australian Federal Police searched the prisoner’s hotel room and located two kilograms of ecstasy which they left in the room and commenced surveillance.
The prisoner said that he had been recruited by a man known to him in Bali who asked him whether he could find customers in Australia for 15,000 tablets of ecstasy. The prisoner agreed, he said, because he wanted money to invest in an hotel in Bali. The prisoner said he was to earn $40,000 from his participation.
On 25 May 1998 the prisoner arrived in Sydney from Argentina. He went to an hotel where he met a person known to him as “George” who was to assist in the operation in Sydney. He and George flew to Melbourne on 27 May 1998 to collect the tablets. The prisoner said that he returned to Sydney with 10,500 tablets.
The prisoner said that George told him that some of the tablets were of poor quality and they were difficult to sell. George invited the prisoner to sample those pills and if he thought they were of poor quality he was to give the pills to Brigitte Van Den Akker who would fly them to Amsterdam. The prisoner said that he tried some of the pills and thought they were not able to be sold.
He then sent money to Van Den Akker in two lots amounting to $3,400 and called her and asked her to come to the hotel and collect the tablets. Van Den Akker contacted the prisoner at his hotel and he gave her 5,000 tablets to return to Amsterdam.
Van Den Akker was arrested at the airport and charged with attempted export. Van Den Akker pleaded guilty and was sentenced to a total term of seven and a half years with a minimum term of four and a half years. On sentence the judge described her role as “low level management above that of a courier”.
The prisoner said he was being “pushed” to close the deal by George and Joe and was receiving phone calls from them everyday. From the transcripts of those conversations in evidence it appears that the prisoner spoke to Joe about the progress of the selling and offers to purchase received by him. The conversations in the transcripts reveal the prisoner actively seeking to sell the drugs to various parties.
In a conversation with Van Den Akker the prisoner discusses prices and calculations with her. The transcript reveals the prisoner negotiating with various people who call on him in the hotel.
On 1 June 1998 the prisoner was advised of Van Den Akker’s arrest and told to leave his hotel which he did.
On 3 June 1998 Marc Lacasse attended the prisoner’s hotel room where he received 5,000 ecstasy tablets from the prisoner and was to bring the prisoner $100,000 the next day. Lacasse was arrested in possession of the drugs and pleaded guilty. He was sentenced to five years imprisonment with a non-parole period of three years. He offered assistance to the authorities without which he would have received six years imprisonment with a non-parole period of three years and nine months.” [Remarks on sentence: 1,2,3]

5   Her Honour expressed a “grave suspicion that this is not the prisoner’s first venture into selling drugs”; but her Honour was not satisfied beyond reasonable doubt that there had been in fact previous drug-dealing ventures. Her Honour assessed the prisoner’s standing in the relevant operations as having been that of Miss Van Den Akker’s superior. Her Honour found to the requisite standard that the respondent’s role in the proposed sale to Lacasse “was one of importance in the distribution of the drugs”. [Remarks on Sentence generally at 5] 6   In my opinion all of these findings were open to her Honour on the evidence. 7   As to a proper overall assessment of the respondent’s criminal culpability, I am content, once again, to adopt what was said by her Honour, and as follows:

“Society suffers in a variety of ways through the importation of drugs and the widespread availability of drugs such as ecstasy. This was a crime motivated by greed. Much of the transcripts include the prisoner’s discussing how much he will realise on the deal. The evidence is that he expected to receive $40,000 for his part. The cost to the Australian community would, one imagines, have been much more.
Courts must sentence to take into account the seriousness of the crime and in a way so as to deter the prisoner from re-offending and also to send a strong message to those in the community who would be of like mind to the prisoner. There is no need for me further to enlarge upon the seriousness with which the legislature, the courts and the community regard the prisoner’s crime.
This was a calculated crime and it must be seen by the community and by others who may be tempted to engage in similar conduct that the courts regard this crime as serious and if the circumstances are appropriate that the salutary punishment will be forthcoming.” [Remarks on Sentence: 7]

8   It is, of course, a question for present consideration whether her Honour, in the sentence which she actually passed upon the respondent, gave proper effect to the foregoing assessment. 9   In that connection, it is necessary to have regard to the relevant subjective features of the respondent’s case. Her Honour found, in the respondent’s favour, that he was genuine in expressions of contrition and remorse which he had made. I myself am, to speak frankly, sceptical about this particular matter. I do not think, however, that this Court would be justified in holding that her Honour’s finding was not properly open to her Honour. 10   Her Honour took into account, also, that the respondent was likely to serve any term of imprisonment in conditions made particularly difficult by being served in a foreign country, without the likelihood of any significant contact with his family, and with the impediment of an imperfect, albeit a relative proficiency, in the English language. 11   In my opinion, all of these considerations were properly brought to account in the respondent’s favour. In my opinion, their combined effect did not justify, however, any significant reduction in what would have been otherwise a proper sentence. 12   Her Honour adverted to the respondent’s prospects of rehabilitation. Her Honour felt, correctly in my respectful opinion, that the available evidence did not really enable any useful conclusion to be reached as to that particular matter. 13   Her Honour gave the respondent credit for his plea of guilty. Her Honour expressed in that regard this conclusion:

“That benefit is perhaps not as great as it might otherwise have been given the strength of the Crown case against him but, nonetheless, there has been a benefit to the community in not proceeding with what would otherwise have been a lengthy trial. I have taken this into account on sentence.” [Remarks on Sentence:3]

14   Her Honour was, in my respectful opinion, clearly correct, given the present state of relevant authority, in giving the respondent some consideration in respect of his plea of guilty. I think, however, that given the objective facts of the respondent’s case it needed to be borne carefully in mind at first instance, and needs to be borne as carefully in mind now in this Court, that what was, in reality, an opportunistic plea of guilty did not entitle the respondent, more or less as of course, to more than a very modest reduction in what would otherwise have been a proper sentence. 15   Her Honour’s remarks on sentence canvass the remaining relevant personal particulars of the respondent. It is not necessary, in my opinion, now to repeat those matters in detail. 16   I take into account for present purposes, but I do not think it necessary to set out in fine detail, all of the other relevant provisions of Part IIB of the Commonwealth Crimes Act; and the relevant principles, well-established and well-known as they are, which govern the approach of this Court to a Crown appeal against sentence. 17   The question whether the present Crown appeal against sentence should succeed requires that consideration be given to certain matters additional to those already discussed. 18   First, it is necessary to consider the comparative sentencing of the respondent, Miss Van Den Akker, and Mr. Lacasse. The relevant comparisons are best illustrated, I think, in the following table:
19   Secondly, the submissions put for the respondent emphasised, among other things, a proposition that ecstasy is to be regarded as what was described as being “a mid-range drug”. This entailed, as I followed the submissions, that the drug ecstasy is to be regarded as less serious in its social consequences than, for example, heroin, or cocaine. That consideration entails in its turn that the punishment for trafficking in ecstasy should be, more or less as of course, less severe than the punishment for trafficking in, say, heroin or cocaine. 20   These submissions were buttressed by a submission drawing attention to the differing ways in which Parliament has prescribed in respect, particularly, of heroin, of cocaine and of ecstasy, the different grading of quantities and of accompanying penalties. 21   In terms relevant to the present appeal, the plain facts are these: it is a criminal offence to traffic in ecstasy; it is a particularly serious criminal offence to traffic in a quantity of ecstasy of or above the arbitrary level fixed by Parliament as the level of what is described by Parliament as a commercial quantity; any trafficking in a commercial quantity is liable to attract a statutory maximum of imprisonment for life. Those propositions are all propositions of law. They have been prescribed by Parliament which is always assumed by the Courts to express in connection with such matters current community perceptions, standards and expectations. Those propositions are, in my respectful opinion, fixed points of reference from which no sentencing Court is entitled to depart by reason of its own idiosyncratic perceptions as to the wisdom of what Parliament has provided. 22   Thirdly, in such a case as the present one, where there has been a finding that the particular offender is what might be described as a middle-man in the relevant chain of command, there is always, as it seems to me, a temptation for sentencing Courts to reason that such an offender is “only” a middle-man; or, as was put in terms in the present particular case, “a commission agent”. 23   In my opinion it is timely to say with all proper firmness that a middle-man, or a “commission agent”, is not, in the context of trafficking in ecstasy or any other prohibited drug, a minor player in the relevant scheme of things, or a minor offender in any other relevant sense. The middle-man and the “commission agent” are significant practical links in any substantial trafficking in prohibited drugs. It would be naïve to suppose that without such people the illicit trafficking of drugs of addiction would come suddenly to an end. It is not at all naïve, in my opinion, to take the view that the resolute discouraging of middle-men and “commission agents” will make the illicit trafficking, and particularly the illicit international trafficking, of prohibited drugs appreciably more difficult for those who are the master-minds of such enterprises. 24   In my opinion, the objective criminality of the present respondent stands at a significantly high level in the relevant scale. The subjective matters to which I have earlier referred have, of course, their proper place; but in the circumstances of the present case they do not seem to me to have, either individually or overall, significant weight. 25   When all of the foregoing matters are brought properly to account, I do not think that the sentence imposed by the learned primary Judge should be allowed to stand uncorrected. My own opinion is that the sentence imposed is, on its face, appellably inadequate even without a particular comparison between it and the sentences imposed upon Miss Van Den Akker and Mr. Lacasse. When account is taken of that comparison, then in my opinion the sentence is shown even more plainly to be appellably inadequate. 26   I think, therefore, that a clear case has been made for the intervention of this Court in the present particular matter. In my opinion, a proper sentence, after all necessary adjustments and constraints have been brought properly to account, would be a head sentence of imprisonment for 10 years with an accompanying non-parole period of 6 years. That adjusted sentence is, I would wish to say plainly, distinctly lower than what I consider to have been a sentence proper to have been imposed at first instance. 27   I would favour, therefore, the making of the following orders:

1) that the Crown appeal against sentence be upheld;

2) that the sentence of imprisonment imposed upon the respondent in the District Court on 5 March 1999 be quashed;

3) that the respondent be re-sentenced to imprisonment for 10 years to commence on 4 June 1998 and to expire on 3 June 2008; with a non-parole period set at 6 years, to expire on 3 June 2004

IN THE COURT OF
CRIMINAL APPEAL

60164/99

WOOD CJ at CL
SULLY J
SIMPSON J

15 December 1999

REGINA v Yves CAMUS

JUDGMENT

28   SIMPSON J:

I agree with the judgment of Mr. Justice Sully and with his reasons therefor.

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