Serrette v The Queen
[2000] WASCA 405
•20 DECEMBER 2000
SERRETTE -v- THE QUEEN [2000] WASCA 405
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 405 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:109/1999 | 19 OCTOBER 2000 | |
| Coram: | KENNEDY J PIDGEON J MURRAY J | 20/12/00 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| PDF Version |
| Parties: | JOFFRE GERARD SERRETTE THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Importation of a trafficable quantity of cocaine into Australia 1,431 grams of cocaine having pure content of 925.4 grams Plea of guilty on fast track system Whether sufficient discount for plea of guilty Whether sufficient discount for past and future co-operation with law enforcement authorities Sentence of 10 years' imprisonment with minimum term of 6 years upheld |
Legislation: | Nil |
Case References: | Ferrer-Esis v R(1991) 55 A Crim R 231 Lowndes v The Queen (1999) 195 CLR 665 Medina v The Queen (1990) 108 FLR 288 Quach v The Queen [1999] WASCA 210 R v Bernier (1998) 102 A Crim R 44 R v Foster and D'Anna (1992) 59 A Crim R 14 R v Gallagher (1991) 23 NSWLR 220 R v Morrison [1999] 1 Qd R 397 R v Olbrich (1999) 73 ALJR 1550 R v Storey [1998] 1 VR 359 R v Wong (1999) 108 A Crim R 531 Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997 He Kaw Teh v The Queen (1985) 157 CLR 523 La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 Miles v The Queen (1997) 17 WAR 518 R v Bigic [2000] NSWCCA 9 R v Carey (1997) 97 A Crim R 552 R v Cartwright (1989) 17 NSWLR 243 R v Cottrell (1989) 42 A Crim R 31 R v Diefenbach (1999) 108 A Crim R 19 R v Dinic (1997) 149 ALR 488 R v Duffy (1996) 85 A Crim R 456 R v Heryadi (1998) 98 A Crim R 578 R v Kovacs (2000) 111 A Crim R 374 R v Lawson (1997) 98 A Crim R 463 R v Ngui (2000) 111 A Crim R 593 R v Parsons (1993) 66 A Crim R 550 R v Perrier (No 2) [1991] 1 VR 717 R v Quansah [2000] NSWCCA 64 R v Thomas (1999) 107 A Crim R 311 R v Tomasevic (1990) 51 A Crim R 72 R v Winchester (1992) 58 A Crim R 345 Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 Voong v The Queen [2000] WASCA 220 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SERRETTE -v- THE QUEEN [2000] WASCA 405 CORAM : KENNEDY J
- PIDGEON J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Importation of a trafficable quantity of cocaine into Australia - 1,431 grams of cocaine having pure content of 925.4 grams - Plea of guilty on fast track system - Whether sufficient discount for plea of guilty - Whether sufficient discount for past and future co-operation with law enforcement authorities - Sentence of 10 years' imprisonment with minimum term of 6 years upheld
Legislation:
Nil
(Page 2)
Result:
Application for leave to appeal dismissed
Representation:
Counsel:
Applicant : Mr G R Donaldson
Respondent : Mr J McGrath
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ferrer-Esis v R(1991) 55 A Crim R 231
Lowndes v The Queen (1999) 195 CLR 665
Medina v The Queen (1990) 108 FLR 288
Quach v The Queen [1999] WASCA 210
R v Bernier (1998) 102 A Crim R 44
R v Foster and D'Anna (1992) 59 A Crim R 14
R v Gallagher (1991) 23 NSWLR 220
R v Morrison [1999] 1 Qd R 397
R v Olbrich (1999) 73 ALJR 1550
R v Storey [1998] 1 VR 359
R v Wong (1999) 108 A Crim R 531
Ruvinovski vThe Queen [2000] WASCA 398
Case(s) also cited:
Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997
He Kaw Teh v The Queen (1985) 157 CLR 523
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997
(Page 3)
Miles v The Queen (1997) 17 WAR 518
R v Bigic [2000] NSWCCA 9
R v Carey (1997) 97 A Crim R 552
R v Cartwright (1989) 17 NSWLR 243
R v Cottrell (1989) 42 A Crim R 31
R v Diefenbach (1999) 108 A Crim R 19
R v Dinic (1997) 149 ALR 488
R v Duffy (1996) 85 A Crim R 456
R v Heryadi (1998) 98 A Crim R 578
R v Kovacs (2000) 111 A Crim R 374
R v Lawson (1997) 98 A Crim R 463
R v Ngui (2000) 111 A Crim R 593
R v Parsons (1993) 66 A Crim R 550
R v Perrier (No 2) [1991] 1 VR 717
R v Quansah [2000] NSWCCA 64
R v Thomas (1999) 107 A Crim R 311
R v Tomasevic (1990) 51 A Crim R 72
R v Winchester (1992) 58 A Crim R 345
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
Voong v The Queen [2000] WASCA 220
(Page 4)
1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Pidgeon J. I am in agreement with his Honour's reasons and with the order which his Honour proposes. I desire only to add some brief observations on the issue of the applicant's co-operation with the law enforcement authorities.
2 It has frequently been said that those who engage in the illicit drug trade, whatever their role in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment. However, this is also an area where the law enforcement authorities can gain considerable assistance from participants in the trade who have been caught. Accordingly, as an exercise of pragmatism, sentencing Judges have frequently given credit for assistance given, or promised to be given, to these authorities. This practice has now been enshrined in legislation - see s 8(5) and s 37A of the Sentencing Act 1995 (WA) and s 16A(2)(h) and s 21E of the Crimes Act 1914 (Cth). That legislation is, however, capable of creating some difficulties for sentencing Judges for, as Gleeson CJ said in R v Gallagher (1991) 23 NSWLR 220, at 227, where an offender is entitled to have assistance to authorities taken into account in his favour, that will usually be upon a number of grounds, at least some of which may overlap with other subjective matters to be taken into account in his favour.
3 Having carefully considered the confidential report from the Australian Federal Police in connection with the assistance rendered by the applicant, I am far from persuaded that the discount which his Honour allowed can successfully be challenged. There is very little before us to indicate what actual benefits flowed from the applicant's co-operation and, in this regard, the further comments of Gleeson CJ in Gallagher's case, at 232, should be kept in mind. He said, at 232:
"It is a common feature of cases where leniency is being sought on behalf of a person who has co-operated with the authorities that the argument in favour of such leniency comes from the Crown as well as the offender. The prosecuting authorities themselves have gained, or hope to gain, from the assistance in question, and it is understandable that they regard it as advancing the interests which they represent to see that such assistance is suitably and publicly rewarded. There is, however, usually no-one to put an opposing or qualifying point of view. This raises the need for special care on the part of the judge. The Court must be astute to ensure that it is being given accurate, reliable, and complete information concerning the
(Page 5)
- alleged assistance and the benefits said to flow from it. Public confidence in the administration of criminal justice would be diminished if courts were to give uncritical assent to arguments for leniency, which are being jointly urged by both the prosecution and the defence, in circumstances which may call for a close examination of the alleged assistance. Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards. If sentencing principles are capable of producing an outcome of that kind, then that calls into question their legitimacy."
4 A reduction of one-third of the commencing figure of 15 years, in my opinion, in the circumstances of this case, was within the appropriate range. As was so clearly laid down in Lowndes v The Queen (1999) 195 CLR 665, at 671 - 672:
"A Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."
- Any intervention by this Court, I am satisfied, would, at best, amount to a mere substitution of our opinion for that of the sentencing Judge.
5 PIDGEON J: The applicant is appealing against two concurrent sentences of 10 years imprisonment imposed upon him by the Chief Judge of the District Court following his plea of guilty to a count of importing into Australia a trafficable quantity of cocaine and to a further count of being in possession of the product he imported.
6 The applicant is 53 years old and was born in Trinidad. He was arrested at the Perth Domestic Airport on 31 January 1999. There was found in his baggage four pairs of shoes in which there was concealed in the soles 1431 grams of cocaine. The pure cocaine content was 925.4 grams. It was ascertained that this had been imported by him in the following manner. On 27 January 1999 in Trinidad, a Richard Anthony Franco gave the applicant and a Ms Robbins a total of eight pairs of shoes
(Page 6)
- with cocaine inside the sole of each shoe. The applicant and Ms Robbins were to travel to Perth. They were told by Franco that he too would travel to Perth and would collect the shoes and their contents from them. The following day, 28 January 1999, the applicant and Ms Robbins flew to Perth via London, arriving in Perth on 28 January 1999. Their baggage was searched by customs. Despite the fact that the shoes were submitted to x-ray examination, nothing was detected. They were permitted to leave the airport and they booked into separate rooms at the Trade Winds Hotel in Fremantle. Franco, in the meantime, flew from Trinidad to Sydney arriving there on 30 January 1999. He rang the applicant and said that he was no longer able to travel to Perth and he asked that the applicant and Ms Robbins fly to Sydney to deliver the import. The applicant was told where to stay in Sydney and how he was to make contact. He was also told that he would be given money to buy the air tickets for the two of them. On the same day a West Indian, Francis-Mascall went to the hotel in Fremantle and handed the applicant $1,500. The applicant purchased two tickets for a flight to leave the domestic airport at noon on 31 January 1999. However, in the afternoon of 30 January he received another phone call from Franco who told him to obtain one of the pairs of shoes packed with cocaine from Ms Robbins' room and to hand them over to a person who would call at the applicant's hotel room. At 10.00 o'clock that night Francis-Mascall called and took possession of this pair and left.
7 On the morning of 31 January the applicant and Ms Robbins travelled to the domestic airport en route to Sydney. They were intercepted by customs officers who found the four pairs of the shoes he was carrying and they also found three pairs in Ms Robbins' possession. Also found in the applicant's possession was a mobile telephone registered in the name of Francis-Mascall. A further known fact is that a year earlier, on 4 August 1998, the applicant had travelled to Perth and had in his possession the same mobile phone registered in the name of Francis-Mascall and had made a number of calls to him. This would indicate no more than that he was earlier in touch with those persons who approached him in respect of the offences the subject of the charges. The total amount of cocaine in the seven pairs of shoes was 2540 grams. The trafficable quantity is 2 grams. There was handed to his Honour a sealed envelope which indicated that the applicant co-operated with the officers, gave information which could lead to the arrest of others, and gave an undertaking to give evidence at a later time.
8 The Chief Judge, in his sentencing remarks, outlined the facts to which I have referred. He said the importation was organised with skill and determination from a part of the world far removed from Perth. He
(Page 7)
- said to the applicant "You took part as a courier for a payment of $10,000." He referred to the applicant's age, that he came from a good family and that there were no prior convictions. His Honour said that couriers generally may not be the principals in transactions of this nature, but they clearly are an essential part of international drug movements scene. His Honour said that he considered that the starting point for a sentence was 15 years imprisonment and he said that he based this figure on the authorities referred to him. He said that there must be adjustments to this figure. The first adjustment he mentioned was to allow credit for the plea which was made on the fast track at the earliest opportunity. He said that this would not be high because the applicant was caught red-handed in circumstances where the Crown case was very strong. He then said "You are still entitled to a deduction because of the fact that the State has been saved some part of the expense of the preparation of a trial." His Honour made a deduction of 1-1/2 years. His Honour said that because of the impact of s 21E of the Crimes Act it was necessary to take into account certain undertakings and said, "I propose to reduce the sentence of 13-1/2 years to that of 10 years specifying that the reduction of 3-1/2 years is made because of the impact of the factors contained in the Crimes Act." He imposed concurrent terms of 10 years imprisonment on each charge and fixed a non-parole period of 6 years.
9 The grounds of appeal relating to sentence are:
"The Learned Sentencing Judge erred in fixing a gross sentence of 15 years. This starting point was manifestly excessive having regard to the facts of the offence and the antecedents of the applicant.
The Learned Sentencing Judge erred by failing to give sufficient discount to the applicant for:
a. His fast track plea;
b. His co-operation with the police; and
c. His future intended co-operation with police."
10 The submission in support of the ground claiming that the starting point of 15 years was excessive is that it is essential that parity be maintained in sentencing across the States for Commonwealth offences. The submission then referred to sentencing guidelines formulated by the Court of Appeal in New South Wales in R v Wong (1999) 108 A Crim R 531 in which was set out guidelines to apply to couriers and persons low
(Page 8)
- in the hierarchy of the importing organisation. The figure assigned to an amount of between 1kg and 2 kg of cocaine was 7-10 years. This range of sentence is in a jurisdiction where there are no remissions. The effect of the submission is that in Western Australia, where there are remissions, the range of sentence would be between 9 to 13-1/2 years.
11 This case was decided after his Honour passed sentence. The thrust of the submission is that there is now an opportunity for this Court, as a step towards uniformity, to follow the range referred to inWong. Mr Donaldson referred to a number of subsequent cases in New South Wales and Victoria where, it is claimed, the guideline has been followed. Mr Donaldson mentioned in respect of Wong that special leave has been granted to appeal to the High Court. It is anticipated that this appeal is on the constitutional point as to whether it is possible to give guideline judgments in respect of Federal offences, but the extent of the grounds are not known.
12 The effect of the submission is that in order to maintain uniformity, this Court should now depart from the range it has previously set and follow the range in Wong. The cases in this State were recently summarised by Ipp J in Quach v The Queen [1999] WASCA 210 where the applicant was sentenced to a term of 15 years imprisonment in respect of possessing 653 grams of heroin with intent to sell. The reasons were published on 15 October 1999, which was two months before the publication of the reasons in Wong. They were published after the sentencing of the applicant but the reasons show that the starting figure of the Chief Judge was well within range.
13 I would see a number of difficulties with the submission made. The reason why a court of five Judges was constituted to decide Wong and why consideration was given to a guideline judgment was because of differences and conflicts that were occurring in New South Wales. In 1991 the Court of Criminal Appeal in New South Wales decided the case of Ferrer-Esis v R (1991) 55 A Crim R 231. This was then seen as an authoritative decision on a range of sentences for cocaine and similar substances. It was referred to in this State in a Crown appeal in R v Foster and D'Anna (1992) 59 A Crim R 14. The Court in that case considered that a sentence of 14 years was the appropriate starting point for the importation of 204.5 gm pure of heroin. There were, however, in New South Wales, some subsequent decisions where it would appear Judges were sentencing below the range referred to in Ferrer-Esis. In R v Bernier (1998) 102 A Crim R 44 the observation was made that the pattern of sentencing was somewhat lower than that expressed in
(Page 9)
- Ferrer-Esis. The Crown, therefore in Wong was seeking a guideline judgment to establish that the earlier guideline in Ferrer-Esis was appropriate for high range trafficable quantities of heroin and cocaine, and was submitting, in addition, that there should be an increase to the lower ranges referred to in that case. The Crown submitted that the nature and prevalence of the offence did not warrant the type of reduction referred to in Bernier.
14 The first difficulty with the submission, that this court should follow the case of Wong, is that caution is needed in making a comparison between sentences in a jurisdiction which provides for remissions with sentences in a jurisdiction which does not have that provision. This caution was referred to by Spigelman CJ (at 541). If it can be seen that the guideline in Wong is suggesting a lower range than that referred to in Ferrer-Esis, a further difficulty arises. This Court has worked on the basis that it is important that courts throughout Australia adopt a common approach to sentencing offenders committing offences against Commonwealth legislation Medina v The Queen (1990) 108 FLR 288 per Malcolm CJ at 292. As part of the pattern to achieve uniformity, the court has had regard to Ferrer-Esis in the case to which I have earlier referred (R v Foster and D'Anna) and in other cases. As mentioned earlier this Court shortly before the reasons were published in Wong, published reasons in Quachre-affirming the range of sentences and summarising the cases in this State.
15 The guideline in Wong is expressed to be a guideline which has been determined "primarily on the basis of existing sentencing patterns" (at 506). In that sense it was not made after an examination as to what would be an appropriate sentence for offending of this type and whether that should be greater or lesser than what is disclosed by the existing sentencing patterns. Those patterns and statistics were attached in schedules to the reasons. These sentencing patterns would appear to have been influenced by Judges in New South Wales going below the range suggested in Ferrer-Esis and this was the matter complained of by the Crown. In this State the principles in Ferrer-Esis have been followed, one of the reasons being to obtain uniformity. A suggested reduction on the basis of sentencing patterns in New South Wales would run contrary to what has been said by this Court both in importation cases and in State cases involving offences of being in possession of narcotic substances and distributing them within the State. Sentences for these state offences must be in co-ordination with importation offences and a reduction in one may well suggest a reduction in the other. This would be inconsistent with what has been said in this Court from time to time, namely that there must
(Page 10)
- be a firming up of sentences for offences of this type. The reason given is that it has become apparent both to this Court and to sentencing Judges that a common explanation for offenders who commit violent offences is that they have succumbed to the use of narcotic substances which are becoming more easily available. Deterrence and the prevalency of the offence must be weighed up as well as sentencing patterns. I do not consider sufficient has been shown to justify a departure in this State from the range previously determined by this Court.
16 I would see a further difficulty in respect of Wong and that is, it would be of limited application as it refers to "couriers and persons low in the hierarchy of the importing organisation". Care is needed in so categorising offenders by reason of what was said by the High Court in R v Olbrich (1999) 73 ALJR 1550 where it was said that the characterisation of an offender as a courier or a principal in determining his relative culpability, must not obscure the assessment of what the offender did (par 19).
17 The act proscribed by the offence carried out by the applicant in the present case, as set out in the first count of the indictment, is an act of importation, that is, landing the prohibited goods in Australia. The applicant did just that and is accordingly a principal offender. An offender so convicted might be able to plead in mitigation that he or she succumbed to the temptation for a modest fee to carry a parcel into Australia. This might be seen as mitigation for the offence committed, but the onus would be on the applicant to show that these circumstances are proved on the balance of probabilities (R v Storey [1998] 1 VR 359; R v Morrison [1999] 1 Qd R 397).
18 The facts surrounding the applicant's participation makes it one of those cases where it is not necessary to attempt to put the applicant in a classification. In this respect I would refer to the reasons of Anderson J in Ruvinovski vThe Queen [2000] WASCA 398. The known facts relating to the applicant are that, in the previous year, he travelled to Perth, he had in his possession a phone registered in the name of Francis-Mascall and he made a number of calls to him on this phone. A few days before this offence he was in contact with Franco in Trinidad. Franco arranged for him to participate, in tandem with another person, in a venture that was obviously one of sophisticated smuggling. The enterprise was that they were, together, to bring in eight pairs of shoes, travel to Fremantle, and to await further instructions to deliver the goods. The applicant received instructions to arrange for him and the other person to travel on to Sydney and the applicant purchased the tickets. Although the sentencing Judge
(Page 11)
- said it was accepted that the applicant was not responsible for what was in Ms Robbins' possession, it still follows that the nature of the criminal enterprise was that the two were carrying it out together.
19 The Chief Judge fully appreciated the serious part the applicant was playing in the organisation. Had he had the benefit of the reasons in Olbrich, I do not consider he would have used the term "courier". This term does mask what the applicant did but the sentencing Judge, nevertheless accurately appreciated what he actually did. His Honour did accept, without further proof, what was said from the bar table in respect of the fee the applicant said he was receiving. It is apparent that because of the other factors present showing the serious level at which the applicant was carrying out the offence, the suggested fee was of little consequence and his Honour did not see it as mitigation. The applicant played a very significant part in a planned importation and that is sufficient to show that he was offending to a high degree. He is a different type of person from the type of offender referred to in the guidelines in Wong. The starting point referred to by the Chief Judge was fully justified on the facts before him.
20 The next ground claims that his Honour gave an insufficient reduction for the co-operation with the police and the promise to give evidence. There was in fact the reduction from a 15 year term of 3-1/2 years for matters referred to in s 21E of the Crimes Act and a further 1-1/2 years for the fast track plea. It was submitted in argument that his Honour did not apportion the sentence between past and future co-operation. His Honour had before him an undertaking to do certain things in the future. He said that because of these undertakings it was necessary for him to have regard to s 21E of the Crimes Act. He reduced the sentence by three and a half years because of the impact of the factors referred to in the section. It could not be said, and the grounds do not say, that his Honour failed to comply with the section. The material his Honour had showed there had been some past co-operation and the question is whether this had been sufficiently recognised. The nature of the material is such that it would be difficult to make a separate assessment. Giving information which could lead to the arrest of others would have little or no value if the applicant later refused to testify. I consider it open, in this particular case, to assess the matter in the way his Honour did. The total deduction his Honour made was one third. His Honour gave careful consideration to the factors before him and I am not persuaded that he was wrong and in particular I do not consider there is any error in the final sentence of 10 years. One of the factors that must be
(Page 12)
- taken into account is the serious nature of the offending. Had the offender been incidentally involved in the enterprise, then the factors referred may well result in a greater reduction. He was heavily involved in the enterprise and this must have a bearing on the ultimate sentence the applicant is called upon to serve.
21 At the hearing of this appeal the applicant was given leave to add a ground alleging that the conviction was invalid as the section under which he was convicted was contrary to s 80 of the Constitution and did not create an offence known to the law of the Commonwealth of Australia. No argument was to be submitted on these and it was submitted that this was made out of caution in case it were necessary to keep the matter open if there were a finding by the High Court to this effect. The grounds relate to a proposed appeal against conviction as distinct from sentence. If the conviction were set aside, then by reason of that the sentence would also be set aside. Nothing need to be said about them as they are not grounds relating to an appeal against sentence.
22 I would refuse the application for leave.
23 MURRAY J: I agree with the reasons of Kennedy and Pidgeon JJ. Leave to appeal should be refused.
11
25
1