Tanadi v The Queen
[1999] WASCA 188
•30 SEPTEMBER 1999
TANADI -v- R [1999] WASCA 188
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 188 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:50/1999 | 7 SEPTEMBER 1999 | |
| Coram: | IPP J WALLWORK J PARKER J | 30/09/99 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | PANGKY TANADI THE QUEEN |
Catchwords: | Criminal law Sentence Importation of narcotics Ecstasy and Ice (Amphetamine and Heroin) Sentence of 10 years imprisonment, with 5 year non-parole period, not excessive |
Legislation: | Customs Act 1901 (Cth) s 233B(1)(b) |
Case References: | Darwell v The Queen (1997) 97 A Crim R 35 Heryadi v The Queen (1998) 98 A Crim R 578 Lim v The Queen unreported; CCA SCt of WA; Library No 970482; 26 September 1997 Parsons v The Queen (1993) 66 A Crim R 550 Vasich v The Queen (1998) 99 A Crim R 262 Morton (1987) 28 A Crim R 409 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : TANADI -v- R [1999] WASCA 188 CORAM : IPP J
- WALLWORK J
PARKER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Importation of narcotics - Ecstasy and Ice (Amphetamine and Heroin) - Sentence of 10 years imprisonment, with 5 year non-parole period, not excessive
Legislation:
Customs Act 1901 (Cth) s 233B(1)(b)
Result:
Leave to appeal refused
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Representation:
Counsel:
Applicant : Mr H C Quail
Respondent : Mr J A Scholz
Solicitors:
Applicant : Julie Wager
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Darwell v The Queen (1997) 97 A Crim R 35
Heryadi v The Queen (1998) 98 A Crim R 578
Lim v The Queen unreported; CCA SCt of WA; Library No 970482; 26 September 1997
Parsons v The Queen (1993) 66 A Crim R 550
Vasich v The Queen (1998) 99 A Crim R 262
Case(s) also cited:
Morton (1987) 28 A Crim R 409
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1 IPP J: I have read the reasons to be published by Parker J. I agree with them and his Honour's conclusions. I have nothing further to add.
2 WALLWORK J: I agree with the reasons for judgment of Parker J and to the order proposed by his Honour.
3 PARKER J: This is an application for leave to appeal against a sentence of 10 years' imprisonment with a 5-year non-parole period to which the applicant was sentenced by Hammond CJDC on 15 March 1999 in respect of three counts of importation into Australia of a prohibited import, namely, narcotic goods, contrary to s 233B(1)(b) of the Customs Act 1901.
4 The importation in each case occurred on 27 September 1998 when the applicant arrived at the Perth International Airport on a flight from Jakarta, Indonesia. He was searched by officers of the Australian Customs Service and was found to be wearing a corset containing 3037 tablets of the narcotic commonly known as Ecstasy and a further 720 tablets containing a concoction apparently known as Ice, which contained both methylamphetamine and heroin. It is in respect of those three distinct narcotics that the three counts in the indictment are founded.
5 With respect to the Ecstasy, or 3,4-Methylenedioxymeth-amphetamine or MDMA, the gross weight of the tablets was 674.1 grams, which had an analysed purity of 39.1 per cent so that the net weight of the prohibited narcotic was 263.5 grams. With respect to the methylamphetamine or MDA, the gross weight of the Ice tablets was 209.7 grams, and those contained eight per cent of pure methylamphetamine, so that the net weight was 16.4 grams. Those same tablets contained 3.2 per cent pure heroin, so that there was, in all, 6.8 grams net weight of pure heroin.
6 It will be appreciated from this short statement of the facts that the applicant was apprehended in the course of the very act of importation. As found by the learned sentencing Judge, the applicant was well-aware that he was importing prohibited drugs into the country, although, on his account, he had made no inquiries and did not have certain knowledge of the precise contents of the corset. On his account, he had been offered $6000 to bring the narcotics into Australia from Indonesia. So far as appears, he was acting in the capacity of a courier; his expenses being met and he was to receive $6000 in due course.
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7 The applicant was a 51-year-old citizen of Indonesia where he was born, although his ethnic origin is Chinese. He lives in Jakarta and, on his account, he had there conducted a business which had fallen victim to the Asian economic crisis, so that he and his family suffered financial crisis. He is married and has four children, whose ages range, he says, from six to 15 years of age. He says he is the breadwinner of his family and that, in addition, he supports his mother. He suggested to authorities that he was heavily in debt in Indonesia because of the failure of his business.
8 It is not submitted for the applicant that the learned sentencing Judge's comments on sentencing reveal any failure to correctly appreciate the relevant principles upon which the question of sentence was to be approached. The grounds of appeal, as amended at the hearing, contend that in the process of sentencing there was a failure to have regard, or adequate regard, to the applicant's early plea of guilty, his age and health and his previous unblemished record, and that the sentence imposed was manifestly greater than was justified by reference to the quantity of narcotics imported by the applicant.
9 The applicant did enter an early plea of guilty. In this respect, it may be said that he has co-operated with the investigating authorities, although he has not, it appears, provided useful information as to the identity of those who, on his account, involved him in this venture to import the narcotics into Australia. The comments of the learned sentencing Judge make it clear that his Honour did take the early plea of guilty into account, but his Honour was also well-conscious that this was a case where the early plea of guilty was not one that might be readily attributable to genuine remorse, but was rather an inevitable consequence of the circumstances of the applicant's detection and arrest. He was caught "red-handed". In this respect, the observations of Kennedy J in Lim v The Queen unreported; CCA SCt of WA; Library No 970482; 26 September 1997 at 3 - 4 and of Malcolm CJ in Parsons v The Queen (1993) 66 A Crim R 550 at 562 are apposite. The learned sentencing Judge's approach was entirely in keeping with the views expressed in those decisions. There is no error revealed in the approach of the learned sentencing Judge to the early plea of guilty entered in this case.
10 The comments of Hammond CJDC also reveal that the age and the health of the applicant were also given due consideration. With regard to the applicant's health, it is the case that the applicant had a heart condition for which he had been treated at Royal Perth Hospital between the time of his arrest and sentence. This matter having been raised in mitigation of sentencing, his Honour delayed passing sentence until he obtained a
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- medical report, which satisfied his Honour that the medical condition of the applicant could be well-managed while serving imprisonment and that the applicant's health problems were to continue to be cared for under the control of the cardiology unit at Royal Perth Hospital. In view of the report and the submissions concerning the applicant's health, there was no basis in the material before the learned sentencing Judge on which he should have concluded that there was a serious risk that imprisonment could have a gravely adverse effect on the applicant's health; in this respect see Vasich v The Queen (1998) 99 A Crim R 262 at 271 - 272. It has not been shown, therefore, that the learned sentencing Judge failed to give careful and appropriate consideration to the age and health of the applicant, or that the applicant's condition justified any departure from what otherwise would be an appropriate sentence for his conduct.
11 The sentencing remarks also make it clear that the learned sentencing Judge approached the question of sentence on the basis that the applicant had no previous record of convictions. This is, of course, a factor of relevance in any sentencing. It is also to be noted, however, that this is a feature which is not unusual in cases concerning those who are involved as couriers in the importation of narcotics into this country. There is ready acceptance in the authorities, for very sound reasons, of the need in the interests of this country and its inhabitants to maintain a stern stance against those who import narcotics; Heryadi v The Queen (1998) 98 A Crim R 578 at 585 and Lim v The Queen (supra) at 7, 9. The significance to be attached to the applicant's lack of previous convictions is to be viewed, therefore, in the context of the nature of the offences for which he was being sentenced on this occasion. In my respectful view no error of approach is revealed in the approach of the learned sentencing Judge in this respect.
12 For the applicant, it was further submitted that if comparisons were made with sentences imposed in respect of some other importations of narcotics that have been dealt with in the Supreme Court in recent years, the conclusion should be reached that the sentence imposed on the applicant was greater than was justified by reference to those other sentences, having regard in particular to the nature and quantity of narcotics imported by the applicant.
13 Any consideration of a submission of this type must start from an appreciation that, in respect of each of the three offences for which the applicant was dealt with, the maximum sentence was a fine not exceeding $100,000, or imprisonment for a period not exceeding 25 years, or both. In that respect, however, it may readily be appreciated that while the
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- importation of three distinct types of prohibited substance occurred, there really was but one course of behaviour on the part of the applicant which involved the simultaneous importation of the three types of prohibited narcotics. Further, given the nature of the conduct, there can be no question that a sentence of imprisonment was the only appropriate disposition.
14 It is also to be borne firmly in mind that a reference to sentences imposed in other cases can, at the very most, provide some approximate indication of an appropriate sentencing range, as it is necessary to have regard not merely to the prohibited substance that was imported and the quantity that was involved, but it is also necessary to take into account the full circumstances of the offence itself, and of the offender, when attempting to make comparisons with other sentences. It is also necessary to bear in mind that sentencing is not a precise mathematical exercise and that, inevitably, there is not one sentence but rather a range within which lies an appropriate sentence for a particular offender who has offended in a particular way.
15 In this case, the applicant sought to rely, in particular, on six other sentences. It should be noted at once that only three of these were decisions of the Court of Criminal Appeal. It is also of significance that it is clear from each of these cases, and of the many others to which reference was not made, that there is no clearly-established tariff in respect of offences of this type, a situation that is somewhat inevitable having regard to the wide variation that is revealed in previous cases, both with respect to the circumstances of the offender and of the offence itself. For these reasons, it is necessary to approach any exercise of comparison with other sentences with a good deal of caution.
16 The first of these other sentences relied on was that in Darwell v The Queen (1997) 97 A Crim R 35. This was not a case of importation, but involved two offences, one of supplying and the other of possessing with intent to sell or supply. In each case, the narcotic was MDMA or Ecstasy. The quantity was very significantly less than the quantity of Ecstasy tablets which was the subject of one of the offences for which the present applicant was sentenced. In that case, the question of sentence came before theCourt of Criminal Appeal by way of an appeal by the offender against the severity of sentence, which was one of 3 years, having been reduced from 4 years in light of a plea of guilty. In my respectful view, the nature and circumstances of the offences are so markedly different as to preclude that decision being of any assistance in this present case, although it is to be noted that, in the course of dismissing that appeal, the
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- Court of Criminal Appeal took the occasion to warn that there was both every justification for firming-up the existing pattern of sentences beyond that imposed in that case and, further, that it was more appropriate to consider Ecstasy as belonging at the high end of the scale of seriousness and in the same category as heroin and cocaine.
17 Lim v The Queen (supra) was an appeal against the severity of a sentence of 6 years' imprisonment imposed in the District Court in respect of the importation into Australia of what proved to be 164 grams net of Ecstasy, which is, of course, just a little more than half of the amount of Ecstasy which was among the three narcotics imported by the present applicant. In refusing leave to appeal, there were observations by the members of the Court that sentences for offences of that nature were in need of review to place greater emphasis on general deterrence and the recognition of the evils of, and public concern at, the prevalence of the trade in narcotics and its resultant effects.
18 Particular reliance was placed on the decision in Heryadi v The Queen (supra), where leave to appeal against the severity of sentence was again refused. In that case, Heryadi was sentenced to 8 years' imprisonment with a minimum term of 4 years before being eligible for parole. He had been arrested and searched on arrival at Perth International Airport on a flight from Jakarta and he was found to have altogether some 2950 tablets concealed under his clothing, as well as some white powder. On analysis, it was found that he had some 60 grams net of Ecstasy, some 86.2 grams of methylamphetamine, those two narcotics being in tablet form, and the white powder was found to contain 25.5 grams nets of cocaine. While there was in net weight significantly more methylamphetamine than was imported by the present applicant, and more cocaine than there was heroin in the case of the present applicant, the narcotics were, in the case of Heryadi, in their distinct and separate forms, whereas with the present applicant the methylamphetamine and the heroin had been combined into the new composition known as Ice. In the case of Heryadi, however, he had only some 64 grams of Ecstasy, as opposed to approximately 264 grams in the case of the present applicant. In the case of Heryadi, he, too, had been a businessman who was married with two children and he had fallen into financial difficulties. On his account, he had undertaken the importation for reward. He had entered an early plea of guilty, had no previous offences. Significantly he had, from the time of his arrest, co-operated with the authorities. In fact, he had agreed to assist the police in a controlled delivery of narcotics, a factor of some significance with regard to the question of sentence and a feature of marked distinction from the present case. While there were many
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- circumstances that were quite similar to those of the present case, the distinctions in the weight and type of narcotic involved, and in particular, the preparedness to actively assist the police in the case of Heryadi, are material distinctions which make any direct comparison inappropriate. The decision in the case of Heryadi indicates that for an offence in those circumstances, by an offender who was prepared to positively assist the authorities in the way indicated, a maximum term of 8 years was within the appropriate discretionary range. Given the matters that distinguish the circumstances in Heryadi from those of the present applicant, the sentence imposed in Heryadi does not provide a basis for concluding that the sentence imposed in this case is, in any way, outside an appropriate discretionary range.
19 Reliance was then placed on the sentences imposed on Bloomfield & Hughes No 87 of 1998, Sentencing Transcript, 28 May 1998 by a Judge of this Court in respect of their convictions on pleas of guilty for importing something in the order of 619.4 grams net of Ecstasy, MDMA and 17.8 grams net of MDA, methylamphetamine. Both pleaded guilty and both had acted in the capacity of couriers for reward because they were experiencing financial difficulty. The comments of the learned trial Judge in sentencing indicated that he regarded a sentence of 14 to 15 years' imprisonment as appropriate for that offence, but in view of the fast track plea of guilty and a number of other circumstances, which his Honour regarded as significantly mitigatory, he was persuaded to reduce that term and to impose, in respect of each of the accused, a sentence of 10 years' imprisonment. In my respectful view, the extent to which the sentence was reduced in mitigation in that case was unusually generous, even having regard to the matters which his Honour took into account by way of mitigation of the punishment. The circumstances of the offenders in that case were, in some respects, different from the present. While I would not regard the starting-point of 14 to 15 years which his Honour applied when dealing with Bloomfield and Hughes (supra) as outside the range of appropriate discretion, I would respectfully suggest that the sentences of 10 years imprisonment which were imposed ought not be regarded as an appropriate precedent to guide future sentences, for the reasons indicated.
20 In the case of Jezowski,No 118 of 1988, Sentencing Transcript, 28 August 1988, Wallwork J sentenced that woman to a term of 9 years' imprisonment with a minimum term of 4 years for an offence which involved the importation into Australia of 472.1 grams of Ecstasy, MDMA. There was only one offence and there were no other substances imported. Again, there was an early plea of guilty and Jezowski had acted
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- in the capacity of a courier. She, too, had no previous adverse record and, as the transcript of the sentencing proceedings reveal, there were a number of factors which Wallwork J regarded as significantly mitigatory. It was by force of those factors that his Honour was, in the end, persuaded to impose the sentence that he did. While that case involved a large amount of MDMA, there were no other substances. The personal circumstances of Ms Jezowski are somewhat different from those of the present applicant.
21 On 16 November 1998, a Judge of this Court sentenced Lindke and Diefenbach, No 156 of 1998, Sentencing Transcript, to terms of 9 years, with a non-parole period of 4½ years, in the case of Lindke, and 12 years, with a non-parole period of 6 years, in the case of Ms Diefenbach. Each had pleaded guilty to the importation into Australia of a substantial quantity of Ecstasy (MDMA). The sentencing transcript describes the gross weight, but does not give any indication of the purity, so that it was not possible to identify the net weight of the narcotic that was involved in respect of these offenders. Indications from the gross weights each carried are, however, that the quantity involved would have been significantly greater than the present case. Both pleaded guilty at an early stage and Diefenbach was seen to have played a role beyond that of mere courier. Ms Jezowski had been a part of the same importation scheme. There were no narcotic substances, apart from MDMA, involved. Neither offender had any previous record of convictions and, in the case of Lindke, it appears that the references provided to the learned sentencing Judge as to his excellent past conduct were noteworthy.
22 While I have dealt in some detail with the circumstances of each of the six sentences which were relied on by the present applicant, I am left, overall, unpersuaded that the submission for the applicant is made out. There has certainly not emerged from these other sentences any clear tariff in respect of offences involving the importation of narcotic substances. The particular circumstances of each offence and of each offender necessarily weigh significantly in determining an appropriate penalty. Further, I do not perceive the effect of these other six sentences as revealing that the sentence imposed on the present applicant was manifestly greater than was justified on a comparison with those other sentences. Even after due regard to the quantity and types of narcotics imported in each of these six cases it appears to me there were in each case points of distinction concerning either or both the offender or the circumstances of the offence, which precluded a direct comparison being made. The nature, quantity and value of narcotics imported by a courier do have a significant part to play, necessarily, in the determination of an
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- appropriate sentence in cases of this nature. It must not be overlooked, however, that in cases of this type, typically, the offender has become knowingly involved in the importation of trafficable quantities of prohibited narcotics for reward. That, alone, is a matter of substantial gravity. The more precise circumstances of a particular importation have, in the ordinary run of cases, to be weighed against that starting point.
23 Having regard to the very careful consideration to the question of sentence given by Hammond CJDC in this case and the nature of the circumstances in which this offence was committed, I am not persuaded that the sentence imposed on this applicant, despite the matters which tell in his favour, was outside the range of an appropriate exercise of the sentencing discretion. In my respectful view the matters raised were appropriately weighed by the learned sentencing Judge. I would refuse leave to appeal in respect of this sentence.
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