Taylor v The Queen - [2007] WASCA 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TAYLOR -v- THE QUEEN [2007] WASCA 146

CORAM: MILLER JA

HEARD: 6 JULY 2007

DELIVERED : 13 JULY 2007

FILE NO/S: CACR 147 of 2006

BETWEEN: ELEANOR KATHLEEN MARY TAYLOR
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :KENNEDY CJDC
File No  :IND 837 of 2006

Catchwords:

Criminal law - Application for leave to appeal - Importation of amphetamine - 10,517 ecstasy tablets - Relevant weight 136.3 grams - Sentence of 61/2 years' imprisonment - Eligibility for parole after serving 3 years - Whether manifestly excessive - Turns on own facts

Legislation:

Criminal Code Act 1995(Cth), s 307.2(1)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr D W L Renton

Solicitors:

Appellant: Andrew Maughan
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Barany v The Queen (2000) 114 A Crim R 426
Cottrell (1989) 42 A Crim R 31
Darwell v The Queen (1997) 94 A Crim R 35
De Bonde v The Queen [2002] WASCA 251
Diefenbach v The Queen (1999) 108 A Crim R 19
Harris v The Queen (2004) 150 A Crim R 509
Heryadi v The Queen (1998) 19 WAR 383
Kirby v The Queen [2003] WASCA 164
Oancea (1990) 51 A Crim R 141
R v Olbrich (1999) 199 CLR 270
R v Pha [2004] NSWCCA 445
R v Salcedo [2004] NSWCCA 430
Soewandi v The Queen [2002] WASCA 315
Tulloh v The Queen (2004) 147 A Crim R 107
Watson v The Queen [2000] WASCA 119
Wong v The Queen (2001) 207 CLR 584

MILLER JA: The appellant pleaded guilty before Kennedy CJDC in the District Court on 10 August 2006 to an indictment which alleged that on 2 April 2006 at Perth International Airport, she imported a substance, being a border control drug, namely amphetamine, the quantity imported being a marketable quantity, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). This was an offence punishable by imprisonment for 25 years.
The learned sentencing Judge imposed a sentence of 6‑1/2 years' imprisonment. An order was made that the appellant serve a minimum term of 3 years before eligibility for parole. The sentence was backdated to 2 April 2006.

Appeal

The appellant seeks leave to appeal the sentence of 6‑1/2 years' imprisonment, contending that it was manifestly excessive in all the circumstances. Two particulars are given:
"a)The learned sentencing Judge placed undue weight upon the quantity of the drug;
b)The learned sentencing Judge departed from the range of sentences customarily imposed for offences of this nature."

The facts

The appellant arrived in Perth at about 8.45 am on 2 April 2006. She was a United Kingdom national and she arrived on a South African Airways flight from Johannesburg in South Africa.
The appellant's luggage was x‑rayed by Australian Quarantine Inspection Service officers and a large number of tablets were found. These tablets were concealed within the lining of a suitcase.
The appellant was interviewed by Australian Federal Police at approximately 11.25 am on 2 April. She denied any knowledge of the tablets and said that she had been given the suitcase in Amsterdam and instructed to travel with it to Perth and then to Adelaide where she would be met by a person unknown to her. The appellant was in possession of a return business class ticket from Johannesburg to Adelaide with a stopover in Perth.
The appellant was escorted to Australian Federal Police Headquarters in Murray Street, West Perth. During the journey to Perth she told investigating officers that she had gone from London to Amsterdam where a male had given her the suitcase. She was unaware of where she was to go next but ended up in Johannesburg where she was met by another male. She said that she knew when she left Amsterdam that she was carrying drugs. She was to be paid £5000 for her role in the importation of the drugs into Australia. The appellant did not participate in a videotaped record of interview.
The total number of tablets was 10,517. Presumptive testing indicated that they were amphetamine. The total bulk weight of the tablets was approximately 1.7 kilograms. When analysed the tablets were found to be between 7.55 per cent and 9.13 per cent pure and contained an estimated total weight of pure amphetamine of 136.3 grams. Pursuant to the provisions of the Criminal Code Act (Cth) a marketable quantity for the drug is between 2 grams and 750 grams (the commercial quantity). The quantity was approximately 65 times the minimum marketable quantity. An estimate was made that the street price for these tablets (commonly sold as ecstasy tablets) would be between $40 and $50 per tablet, so that the tablets if sold individually would reap a benefit of between $420,000 and $525,000. If purchased in bulk the tablets would be of less value.

Sentencing comments

The learned sentencing Judge dealt at length with the submissions made on behalf of both the prosecution and defence at the hearing. Her Honour accepted that the appellant had participated in the importation of the drugs to make some money easily. She accepted that she was an immature, naive and impulsive person. This was supported by a psychological assessment.
The learned sentencing Judge accepted that the appellant was remorseful for what she had done. She took into account her plea of guilty on the fast‑track system, although pointing out that she had been caught "red‑handed".
The learned sentencing Judge took full account of the fact that the appellant was only 19 years of age and had no prior record for criminal convictions. The appellant's readiness to co‑operate was also taken into account - although in point of fact it was too late for the authorities to utilise her promised co‑operation. The learned sentencing Judge did not consider that the appellant was likely to offend again but on the other hand she considered the offence committed to be so serious that only a deterrent sentence would be appropriate. Her Honour considered the "starting point" for that sentence was 10 years. Because of the plea of guilty and willingness to co‑operate this was reduced by 35 per cent to the 6‑1/2‑year term which was imposed.

Ground of appeal

There is only one ground of appeal and that is that the sentence is manifestly excessive in all the circumstances. The particulars assert that undue weight was put on the quantity of the drug and there was a departure from the range of sentences customarily imposed for offences of this nature.
The appellant's submissions also assert a number of facts relating to matters personal to the appellant, including her youth, naivety, contrition and the offer of co‑operation with authorities. It must be pointed out, however, that in cases of this nature, matters personal to the offender are of little moment. Instead, deterrence is the main consideration. See: Darwell v The Queen (1997) 94 A Crim R 35 at 39; Heryadiv The Queen (1998) 19 WAR 383 at 289; Watson v The Queen [2000] WASCA 119 at [102]; Harris v The Queen (2004) 150 A Crim R 509 at [29].
I should say at once that I do not consider the learned sentencing Judge put undue weight upon the quantity of the drug involved. Her Honour simply noted the quantity and the street value of the drugs if distributed individually. Contrary to the contention that undue weight was given to the quantity of the drug, the learned sentencing Judge simply noted as a fact what the quantity was and what the value of the drugs might be. As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen (2001) 207 CLR 584 at [64], the quantity of drug involved is a matter properly to be taken into account in determining the appropriate sentence. Their Honours added:
"… In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. …"
On any view of it, this was a large importation. The appellant was only a link in the chain of the importation, but she did stand to gain £5,000 for the part that she played.
It is well established that the actual weight of the drugs is not the chief factor to be taken into account in fixing sentence: (Wong v The Queen (supra) at [68]) and the question is to identify the level of the offender's criminality by looking at the offender's knowledge about the importation in which she was involved: (Wong v The Queen (supra) at [69]).
In my opinion, the learned sentencing Judge's sentencing comments do not betray any indication that undue emphasis was given to the weight of the drug and I consider that particular (a) of the ground of appeal is not made out. The conclusion that the offence was very serious was obviously correct.
In R v Olbrich (1999) 199 CLR 270 at [19] Gleeson CJ, Gaudron, Hayne and Callinan JJ pointed out that in sentencing offenders of this nature the true assessment to be made is an assessment of what the offender did rather than putting the offender into a particular category. That passage is in the following terms:
"Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports [Contrary to Customs Act, s 233B(1)(cb)], or being knowingly concerned in the importation of such imports [Contrary to Customs Act, s 233B(1)(d)]. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did."
In the present case, that is the approach that was taken by the learned sentencing Judge. There can be no suggesting that the learned sentencing Judge placed any undue emphasis upon the particular role played by the appellant. It was sufficient to note that she had brought the quantity of drugs into the country in the circumstances in which she did.
The second particular contends that there was a departure from the range of sentences customarily imposed. In the written case of the appellant reference is made to a number of the decided cases, particularly Oancea (1990) 51 A Crim R 141 (6 years' imprisonment); Cottrell (1989) 42 A Crim R 31 (8 years' imprisonment less 10 months for pre‑sentence detention); Heryadi v The Queen (supra) (8 years' imprisonment); Tulloh v The Queen (2004) 147 A Crim R 107 (15 years' imprisonment); Darwell v The Queen (supra) (3 years' imprisonment) and Kirby v The Queen [2003] WASCA 164 (12 years 8 months' imprisonment).
In Tulloh v The Queen (supra) both McLure J at [46] and I at [21] pointed out the limited utility of a comparative exercise of the type undertaken by counsel for the appellant. The exercise is particularly limited when comparing the outcome of Commonwealth prosecutions with State prosecutions and further limited by the fact that the "transitional provisions" (Sentencing Legislation Amendment and Repeal Act 2003 (WA)) which now apply in relation to State prosecutions mean that some sentences are one‑third less than they were prior to the implementation of that sentencing regime.
The submission of counsel for the appellant is that the appellant's case fell well beneath the sentences imposed in Oancea (supra), Cottrell (supra) and Heryadi v The Queen (supra) and the offence was closer in criminality to the sentence imposed in Darwell v The Queen (supra). Because the present case is a Commonwealth prosecution, the comparison sought is difficult to make.
In any event, the facts in Darwell v The Queen were quite different from the facts before the learned sentencing Judge here. In Darwell v The Queen the appellant had pleaded guilty to two counts of selling or supplying ecstasy. A total of 290 tablets were involved. In the present case the offence was importation and a total of 10,517 tablets were involved. Further, in Darwell v The Queen the appellant had some tablets for his own use and had engaged in the criminal enterprise concerned to solve immediate financial problems. There were special circumstances for the sentence which was imposed.
In Tulloh v The Queen (supra) McLure J reviewed (at [49]) a number of cases which led her to the conclusion that a sentence of 15 years' imprisonment imposed in that case for possession of methylamphetamine with intent to sell or supply to another was within a relatively consistent sentencing range. It was a State prosecution. The drug involved was methylamphetamine and there were 805 grams of very high purity. If cut to a street level of 3 per cent purity, the drug was worth something of the order of $4 million and if cut to 6 per cent, $2 million. The cases to which McLure J referred were cases of possession with intent to sell or supply and/or conspiring to possess with intent to sell or supply. No direct comparison can be made with the offence committed by the appellant, but it is apparent from the cases reviewed and from McLure J's conclusion at [49] that a sentence of 6‑1/2 years' imprisonment for the offence committed by the appellant was comparable with sentences imposed for State prosecutions for possession with intent to sell or supply of large quantities of the drug in question.
Importation cases prosecuted by the Commonwealth in recent times reveal that the sentence of 6‑1/2 years' imprisonment imposed in this case - whilst towards the higher end of sentences imposed for such offences - is within the sentencing range that could be expected. See: Diefenbach v The Queen (1999) 108 A Crim R 19 (four offenders: (1) 562.4 grams pure MDMA, 12 years; (2) 505.8 grams pure MDMA, 9 years; (3) 513 grams pure MDMA, 5‑1/2 years; (4) 472.1 grams pure MDMA, 9 years); Barany v The Queen (2000) 114 A Crim R 426 (312.7 grams pure MDMA, 6 years); De Bonde v The Queen [2002] WASCA 251 (five offenders: (1) 30.7 grams pure MDMA, 5 years; (2) 575.2 grams pure MDMA, 7 years; (3) 318 grams pure MDMA, 6 years; (4) 318 grams pure MDMA, 6 years; (5) 185.84 grams pure MDMA, 6 years); Soewandi v The Queen [2002] WASCA 315 (1005.6 grams pure MDMA, 8 years 3 months); R v Salcedo [2004] NSWCCA 430 (169.8 grams pure MDMA, 5 years 9 months); R v Pha [2004] NSWCCA 445 (169.8 grams pure MDMA and anabolic steroids; 5 years 3 months). These cases reveal considerable variations in sentences for differing amounts of amphetamine. They underline the fact that it is not necessarily the quantity of drug imported that governs the sentence, but what the offender actually did: Wong v The Queen (supra). The appellant in this case was a vital cog in an international drug importation which saw her bring more than 10,000 amphetamine tablets into this country purely for financial gain.
In my view, the second particular of the ground of appeal has no prospects of success.

Conclusion

In my view, the single ground of appeal in this case, namely that the sentence was manifestly excessive in the circumstances, has no reasonable prospect of success and leave to appeal should be refused.