Tsen v The Queen
[2010] WASCA 21
•12 FEBRUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TSEN -v- THE QUEEN [2010] WASCA 21
CORAM: WHEELER JA
BUSS JA
BLAXELL J
HEARD: 18 DECEMBER 2009
DELIVERED : 12 FEBRUARY 2010
FILE NO/S: CACR 56 of 2009
CACR 57 of 2009
BETWEEN: LAN YA TSEN
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
File No :IND 1 of 2009
Catchwords:
Turns on own facts
Legislation:
Criminal Code 1995 (Cth), s 307.2
Customs Act 1901 (Cth)
Result:
CACR 56 of 2009
Leave to adduce additional evidence granted
Leave to appeal against conviction refused
Appeal against conviction dismissed
CACR 57 of 2009
Leave to appeal sentence granted
Appeal against sentence dismissed
Category: B
Representation:
Counsel:
Appellant: Mr H Sklarz
Respondent: Mr D W L Renton & Ms M E Cheshire
Solicitors:
Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Festus v The Queen [2002] WASCA 25
KLM v The State of Western Australia [2009] WASCA 73
Mohlasedi v The Queen [2006] WASCA 267
Parry v The Queen [2003] WASCA 222
R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430
R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271
R v Lee [2007] NSWCCA 234
R v Mirzaee [2004] NSWCCA 315
Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313
Taylor v The Queen [2007] WASCA 146; (2007) 172 A Crim R 430
Thom v The Queen [2001] WASCA 322; (2001) 126 A Crim R 196
TYN v The Queen [2009] NSWCCA 146
X v The Queen [2000] WASCA 355
WHEELER JA: These are applications for leave to appeal against conviction and sentence. On 14 July 2009, Miller JA referred the applications for leave to appeal and an application for leave to adduce additional evidence to the hearing of the appeal.
The appellant was convicted, after trial, on 26 February 2009 of one count of importing heroin. On 23 April 2009, she was sentenced to 11 years' imprisonment, with a minimum non‑parole period of 6 1/2 years.
The appellant appeals against conviction on one ground, relating to defence counsel's conduct of the trial in failing to call the appellant to give evidence, and in calling the appellant's sister to give evidence.
Circumstances of the offence
On 4 June 2008, the appellant, who is from Taiwan, arrived in Perth on a flight from Kuala Lumpur. By coincidence, a crew from a television channel were at the airport when the appellant arrived, filming an episode of the programme "Border Security". A customs officer asked the appellant to submit to a baggage examination, the entirety of which was filmed by the camera crew. The appellant repeatedly denied having been asked by another to carry any item into Australia. During the search of the appellant's bag, a number of swabs were taken. These tested positive for the presence of drugs. A small package was located inside the lining of the appellant's suitcase. This package was opened and found to contain 1195.8 g of heroin of 55.8% purity (a pure weight of 667.2 g). Evidence was given at trial that this quantity of heroin would have a street value of between $2.3 million and $6.6 million.
The appellant did not give evidence at trial. She did participate in an interview with Australian Federal Police officers, a DVD of which was tendered at trial. In this interview, the appellant gave the following account of the events giving rise to the offence. The appellant was introduced, through a friend, to a man named Mike Laurence who lived in India. The appellant's relationship with Mike was entirely online and via the telephone. They did not meet in person. The appellant began doing work for Mike, for "sometimes two thousand US dollars sometimes three thousand US dollars" depending on what she did for him. "They" asked the appellant to travel to Malaysia and carry some luggage to Australia. These arrangements were made using "Yahoo Messenger" and Hotmail accounts. The appellant asked Mike whether the package she would be carrying contained drugs, to which he replied that the package contained precious stones like diamonds, which he could not bring to Australia legally as he was from Africa and it was difficult to obtain visas. Mike told the appellant that if she got caught smuggling the diamonds into Australia; she would just have to pay the "import fee, taxes, tax, like custom fee".
Emails and online conversations between the appellant and Mike were also produced at trial, including the following (AB 79):
[The appellant]: you sure i m not caring and drugs, right? [You are sure I'm not carrying drugs, right?]
[Mike]: [It] seems you are so scared…I will show you the [stones don't] worry.
…
[The appellant]: [You] have to show me [yourself] ...
And at AB 92 - 93:
[The appellant]: [M]y mom find out today that I am caring [carrying] the [precious] stone…she [begging] me not to go…my sister said I must be [carrying] drugs for you so [that's] why [you] pay me so well…my family is so worried…I want to ask [you] more details.
[Mike]: [Y]ou told your mum or who told her you are carrying p. stones.
[The appellant]: [Y]es…I tell them the truth [isn't] it?
[Mike]: [Y]eah but why they complain about that…I wish you could come see the materials [before it's] packed.
[The appellant]: [T]hey think, why P. stones is so [valuable], why [you] pay me so well to [carry] them to another country?
…
[Mike]: [Y]ou know why we need people from other countries is because to get other countries visa is very difficult for most [A]frican countries
[The appellant]: [A]nd I found out some news are talking about [carrying] P. stones are [against] the [custom] law too…[the appellant then posted two links to news media websites].
…
[The appellant]: …you [won't] set me up …right? [You] do care about me, right?
That conversation continues, with the type, size, origin and state of the diamonds being discussed, as well as Mike's business arrangements and method of selling the diamonds before moving on to a conversation of a more personal nature.
The appellant was aware that others had gone to gaol for their involvement in carrying items to other countries (numerous emails describe a man named "Teddy" and his imprisonment, and request money to help him, for example AB 40, 42, 44, 48, 52, 54, 59, 62, 68, 70, 74, and Yahoo Messenger discussion at AB 77, 92) and was sufficiently aware of the value and risk of what she was about to undertake to request that her payment be upped from the "same" (ie, USD$5000) to USD$10,000 with the option to "redeal" in the future (AB 77).
Legal principles – appeal on the basis of incompetence of counsel
The principles to be applied on appeal where there is an allegation that trial counsel was incompetent were recently discussed by Martin CJ, with whom Le Miere J agreed, in KLM v The State of Western Australia [2009] WASCA 73. It is not necessary to repeat them.
Failure to call the appellant
Affidavits were sworn by the appellant and Mr Andrew Maughan, who represented her at trial. There is a difference between them, in relation to the question of whether Mr Maughan made it clear to the appellant that the ultimate decision concerning whether or not to give evidence was one for her. At the hearing of the appeal, however, counsel acting for the appellant advised the court that it was not proposed to call the deponent of either affidavit for the purpose of cross‑examination. He confirmed that the appellant did not dispute those paragraphs of Mr Maughan's affidavit in which he deposed that he advised the appellant that the decision whether or not to give evidence was hers, but that it was his view, by the "merest of margins", that she ought not. It was not disputed that Mr Maughan gave that advice because he believed that there was little material information that she could add to her explanation to police, weighed against what was, in his view, the potentially fruitful grounds for cross‑examination of her arising out of the contents of the emails which were tendered in evidence.
Counsel at this trial was faced with a difficult forensic decision. There were potential advantages to be gained from calling the appellant to give evidence. She might have been able to explain to the jury a number of inconsistencies between the account she gave of thinking she was carrying diamonds, and the way in which she behaved at the customs inspection, where she denied carrying anything untoward and insisted that the bags were her bags which she had packed. She may have been able to impress the jury with her naivety, and her trust of the man "Mike". She may have been able to explain to the jury why she told gratuitous lies to customs officers (for example, about managing a restaurant) and she may have been able to explain away the numerous references in the emails in which she appeared to be aware that others who had carried items to other countries had been imprisoned for their efforts.
On the other hand, some of the matters which might have been given in evidence by the appellant would have been inferences reasonably open to the jury in any event. For example, in relation to the fact that she denied carrying anything untoward, the emails relating to diamond smuggling would suggest that, even if the situation had been as she alleged she understood it, she would not have wanted to inform customs officers that she was carrying undeclared diamonds.
It may be that she would not have been able to explain other matters. For example, in the materials placed before the court, she said that she did not attempt to look into the bag of "diamonds" because she had been told it was sealed very well and she did not want to open it up and "ruin the seal". She also said that she wanted Mike to trust her not to steal his diamonds. However, this is a difficult explanation to accept, in the light of the fact that in one of the emails Mike suggested that he would show her the diamonds, effectively giving her permission to look at them. Further, it is difficult to see why it would be a problem to "ruin" the seal (unless, perhaps, there was a suggestion that opening the packet might, in some way, increase the possibility of detection, a matter not referred to in the appellant's materials). Importantly, it would appear unlikely that the appellant could have explained how she could, rationally, have been convinced the package contained diamonds, as the emails contained no more than bold assurances from "Mike".
It is also possible that, even if the appellant had in one sense been able to "explain" adverse matters, the jury might not have found her explanation convincing, and her cross‑examination in relation to these matters would have served only to highlight inconsistencies between the account which she gave to the Australian Federal Police and the objective facts.
It is fair to say, in my view, that a viewing of the Border Security DVD might have suggested to the appellant's counsel that she was not a person likely to acquit herself particularly well under the pressure of cross‑examination. While a poor performance in cross‑examination, if it appeared to stem from nervousness, might have engendered some sympathy in the jury, there was also the obvious risk that her answers in cross‑examination might appear so plainly false, or so illogical, that they closed off potential explanations favourable to the appellant which might otherwise have been able to be inferred.
Counsel's decision at trial to advise the appellant not to give evidence was made for good forensic reason. There is nothing in the materials put before us by the appellant that suggests that anything which she might have been able to say to the jury was so important and so persuasive that there was a miscarriage of justice occasioned by counsel not advising her to give evidence. Further, it is plain that the ultimate decision was the appellant's.
Calling the appellant's sister
Following a brief discussion about the need for an interpreter and the tendering of a letter she had written, the appellant's sister gave evidence at her trial, through an interpreter. All of her evidence‑in‑chief was as follows:
MAUGHAN, MR: Ms Tsen, are you aware that your sister came to Australia in June of 2008?‑‑‑Yes.
Prior to her coming to Australia, did you discuss with her the reason for her trip?‑‑‑Yes.
What was the reason given by her for coming to Australia?‑‑‑She said she would carry diamonds for her friend.
Did you express any concern about your sister doing that?‑‑‑Yes.
What did you say to your sister?‑‑‑I felt it's a bit odd.
Did you have any discussion with her about drugs?‑‑‑No.
Cross‑examination included the following:
Would you consider your sister to be an intelligent person?‑‑‑Her academic is not that good. What do you mean about intelligent?
Somebody who had a lot of common sense?‑‑‑I'm not sure.
...
RENTON, MR: Now, in the email that I just mentioned, your sister says that you were concerned she might be carrying drugs?‑‑‑Not concerned. I had suspicions.
Do you recall having a discussion with your sister where you raised your suspicions with her about the fact that she might be taking drugs?‑‑‑I'm not saying she was carrying drugs. I was just little bit suspicious.
Why were you suspicious that she might be carrying drugs?‑‑‑Because the whole thing appeared to me a bit odd.
...
Did she tell you the friend's name?‑‑‑I was told her friend's name is Francis. That Francis, afterwards we found out was the email name, probably that's the name, that's the man with the name as Mike.
...
I just want to make sure I understand your evidence. Are you saying that you were suspicious that your sister might be carrying drugs because she had told you she was carrying diamonds for Francis?‑‑‑Can I explain why it appeared odd to me?
Please?‑‑‑First of all my sister had never met this person. Afterwards I found out they only had exchanged emails. It's normal for my sister to contact people via emails. Secondly, diamond is art to me. To my knowledge, not everybody can get access or carry diamond. Thirdly, carrying diamond should be earning very good income, but my sister didn't have. Therefore I felt it's art [sic odd].
Re‑examination was one question, as follows:
MAUGHAN, MR: Just one question, your Honour. When you told your sister of your suspicions, what was her response?‑‑‑My sister had promised me, if she found out it's drug, she wouldn't be carrying at all.
Again, the relevant question is not whether trial counsel made the wrong decision in calling the appellant's sister to give evidence; rather, it is whether the fact of the appellant's sister giving evidence resulted in the appellant receiving an unfair trial, such that there was a miscarriage of justice. In this instance, the appellant's sister merely confirmed by her evidence that she had concerns over the appellant's involvement in the "diamond smuggling" scheme, and had expressed these concerns to the appellant. The jury would already have been aware of this, as it was discussed by the appellant and Mike in a conversation on Yahoo Messenger, transcript of which was available to the jury and which I have set out above.
Further, aspects of her sister's evidence were plainly favourable to the appellant. She confirmed that it was "normal" for the appellant to contact people via email. She was "not sure" whether the appellant had a lot of common sense. Importantly, the appellant had promised that if she knew the package was drugs, she would not carry it. There are some apparent inconsistencies between the sister's evidence‑in‑chief on the one hand and her cross‑examination and the emails, on the other, so that it is not clear whether she gave evidence as the appellant's counsel had anticipated she would. However, based upon what she did say in evidence, there would appear to have been good forensic reasons for calling her. It should also be noted that the appellant does not say, in her affidavit, that she suggested to Mr Maughan that her sister should not be called.
The sentence
Keen DCJ imposed a sentence of 11 years' imprisonment with a non‑parole period of 6 years 6 months, backdated to 4 June 2008, to reflect time spent in custody. The appeal relies on the single ground of manifest excess, in relation to both the head sentence and the non‑parole period.
The appellant's personal circumstances
The appellant was born in Taiwan and was 38 years old at the time of the offences. She came from a close family and had never used drugs or had any alcohol problems. Her father died in 2007 and after his death she had been caring for her mother. She completed high school, had a degree in accounting and was employed in a restaurant prior to her arrest. She met Mike on the Internet after having several failed Internet relationships, and said that she fell in love with him after several months of chatting online. She told the author of the psychological report that she met him at a time when she was feeling particularly emotionally vulnerable after the death of her father and the breakdown of a previous relationship.
She had no prior convictions and both the author of the pre‑sentence report and psychological report stated that she appeared very remorseful. During her interview, she made a broad offer of assistance to help catch the others involved, which did not appear to have been pursued.
Sentencing remarks
The learned sentencing judge set out the facts of the offending, and the case put by the appellant about her lack of knowledge of the drugs, and found that the evidence made it clear that the appellant would have had strong suspicions that what she was carrying was drugs. Although he accepted she was an "easy target", his Honour commented that there were numerous "alarm bells" which should have made her aware of the risk she was taking. He found that she was willing to turn a blind eye to the obvious possibility that she might be delivering drugs. There was a commercial element to the offending, as the appellant had negotiated a $10,000 fee and was motivated by financial reward. For the future, she expected to get involved in a pattern of smuggling. This placed the culpability at a high level.
The learned sentencing judge noted her personal circumstances and said that there was nothing remarkable in the pre‑sentence report or the psychological report. She had favourable antecedents and had no prior convictions. A number of positive references were before his Honour, as was evidence that the appellant had undertaken a number of courses while in custody.
His Honour rightly noted that the pure weight of the heroin (667.2 g) placed this offence in a serious category, as did the financial motivation for the offending. No credit could be given for a plea of guilty, although, the appellant had demonstrated remorse and her co‑operation with the prosecution had shortened the trial, and narrowed the issues. Only limited regard could be had to her offer to assist authorities, as it was not taken up and no actual assistance was given.
Having regard to the amount of the drug, the high degree of recklessness which his Honour (correctly) considered the appellant demonstrated, the fact the appellant did not receive any mitigation from a plea of guilty, the limited weight which could be given to the otherwise favourable (but unremarkable) personal circumstances, and the fact that the appellant apparently had no detailed understanding of the precise quantity - or perhaps even identity - of the drug which she was carrying, it seems to me that the sentence which his Honour imposed was within an appropriate range.
Cases concerning the provisions of the Criminal Code (Cth) s 307.2, under which the appellant was sentenced include: Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383 (21.4 g pure methylamphetamine, fast‑track plea of guilty, 3 years 9 months with 2 years 6 months non‑parole period); TYN v The Queen [2009] NSWCCA 146 (242 g pure weight heroin, early guilty plea, courier who gave valuable information and promised future assistance - 6 years with 3‑year 9‑month non‑parole period); Taylor v The Queen [2007] WASCA 146; (2007) 172 A Crim R 430 (136.3 g pure amphetamine, fast‑track plea of guilty, 19‑year‑old immature courier, 6 years 6 months with 3‑year non‑parole period). None is truly comparable. Although Tyn was a courier of heroin, the quantity was substantially less than in the present case and there were the important distinguishing features of the early plea of guilty and the co‑operation and assistance. Taylor was naive, but, unlike the present appellant, was also a very young adult, entered a fast‑track plea of guilty, and possessed a significantly lesser quantity of a different drug.
I have also had regard to cases under the former Customs Act 1901 (Cth) provisions. Some involving quantities of drug under half a kilogram, and couriers, include: Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 (229.7 g pure heroin, impoverished drug courier, 9 years with 4‑year 9‑month non‑parole period following fast‑track plea of guilty); Thom v The Queen [2001] WASCA 322; (2001) 126 A Crim R 196 (225 g pure heroin, 49‑year‑old courier, prior drug‑related convictions, but co‑operation with authorities, 8 years 6 months with 4‑year 3‑month non‑parole period following fast‑track plea of guilty); X v The Queen [2000] WASCA 355 (224.2 g pure heroin, courier, co‑operation with authorities, 7 years 4 months following fast‑track plea of guilty); Festus v The Queen [2002] WASCA 25 (273.1 g pure heroin, courier, offered to assist authorities at late stage, 9 years with 5‑year non‑parole period following guilty plea).
It can be seen that all of the offences referred to above attracted sentences significantly less than those imposed upon the appellant. However, they also all involved quantities of drug approximately one‑third of that carried by the appellant, and all involved fast‑track pleas of guilty. Circumstances similar to those in the cases referred to above, but without the fast‑track plea of guilty appear to attract significantly heavier sentences. The closest to those referred to above is Parry v The Queen [2003] WASCA 222, involving 224.4 g pure heroin and a sentence of 10 years after trial with a 5‑year 6‑month non‑parole period. The appellant in that case was more involved in the organisation of the importation than was the present appellant. However, again, the quantity of heroin was significantly less.
At the other end of the scale, those who have imported very significant quantities of heroin have been sentenced to terms of imprisonment very substantially exceeding the term imposed on the present appellant. A number of such cases are collected in R v Lee [2007] NSWCCA 234. Those cases involved, generally, many kilograms of heroin and sentences imposed have been of the order of 18 years to life imprisonment. They are consistent with cases in this State concerning larger quantities of heroin, such as Mohlasedi v The Queen [2006] WASCA 267 (1.46 kg pure weight heroin, concealed in the appellant's underwear; 18 years with 10‑year non‑parole period imposed after trial).
It appears to me that, having regard to the summary of cases referred to above, it cannot be said that the sentence imposed upon the appellant was manifestly excessive. I would accept that, as the appellant's counsel suggests, an offender who imports an item reckless as to whether or not it contains a drug, will, other things being equal, be less culpable than an offender who has some positive awareness of the fact that he or she is carrying a drug. However, much will depend upon the circumstances and in terms of moral culpability there may often be little difference.
I do not accept the submission that sentences imposed upon offenders convicted of offences under former Customs Act provisions are not appropriately comparable. A person could be convicted under those former provisions if he or she had a suspicion, falling short of actual knowledge, that drugs were being imported. That concept does not appear to me to be significantly different from the recklessness required for the offence of which the appellant has been convicted.
Finally, I do not accept the submission that the three cases particularly relied upon by the appellant are relevantly comparable. In R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271, the respondent had imported 479.3 g of pure heroin, hidden in a guitar. I accept that, like the present appellant, it appears that Kaldor had no idea of the precise nature of what he was carrying, or of what the arrangement was for the distribution of the heroin. Kaldor received a sentence of 7 years with a non‑parole period of 4 years, but that was on a Crown appeal, where double jeopardy principles applied. The court expressed the view that a more appropriate sentence would have been one of the order of 8 to 10 years, which is less than, but approaches, the sentence imposed upon this appellant. R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 involved 260 g of pure heroin and an 8‑year sentence with a non‑parole period of 5 years imposed upon the importer, who claimed that he had no knowledge of the drug. However, that, too, was a Crown appeal. R v Mirzaee [2004] NSWCCA 315 was a case where the offender received 9 years with a non‑parole period of 4 1/2 years for importing 578 g of pure heroin. However, that courier was almost 60 years of age with no prior convictions and pleaded guilty at the first opportunity.
The appellant has submitted that a sentence of 9 years' imprisonment would have been more appropriate to the culpability and personal
circumstances of the appellant. It may be that such a sentence would not have been in error. However, although the sentence actually imposed upon the appellant may be regarded as severe, it does not appear to me to be outside an appropriate range.
The appellant also submits that the non‑parole period of 6 1/2 years, representing 55% of the head sentence, was manifestly excessive. The principles relevant to the imposition of non‑parole periods in relation to Commonwealth drug offences were recently discussed by Buss JA in the decision of Bertilone at [54] ‑ [60]. There is no need to repeat them here, save to note his Honour's comment at [57]:
[N]on‑parole periods for Commonwealth drug importation and related drug offences have usually been about 60% to 66 2/3 % of the head sentences.
The appellant's non‑parole period is less than this usual range, and I am not convinced that there is anything extraordinary about her circumstances which would warrant a non‑parole period even lower than this.
Conclusion
I would grant the application for leave to adduce additional evidence. I would grant leave to appeal against sentence, but dismiss the appeal. I would refuse leave to appeal against conviction, and would therefore dismiss the appeal.
BUSS JA: I agree with Wheeler JA.
BLAXELL J: I agree with Wheeler JA.
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