Anna LE v Regina

CATCHWORDS: Sentence - import traffickable quantity of heroin - whether exceptional hardship to applicant's family - whether manifestly excessive.

LEGISLATION CITED: Customs Act (Cth) 1901 Crimes Act (Cth) 1914

R v Bednarz [2000] NSWCCA 533 R v Liu [2005] NSWCCA 378 R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 552 DPP v Ip [2005] ACTCA 24 R v Gardner [2005] NSWCCA 383 R v Hinton (2002) NSWCCA 552 R v Gerard [2004] NSWCCA 170 CASES CITED: R v Berlinsky [2005] SASC 316 R v Nguyen (2001) 160 FLR 216 R v Gaw [2006] VSCA 51 House v The King (1936) 55 CLR 499 R v Wong and Leung [1999] NSWCCA 420 Wong v The Queen (2001) 207 CLR 584 Markarian v The Queen [2005] HCA 25 R v Bloomfield (1998) 44 NSWLR 734

PARTIES: Anna Le (Applicant) Regina (Crown)

M Pickin (Applicant) COUNSEL: Ms W Abraham QC (Crown)

SOLICITORS: S O'Connor (Applicant) S Kavanagh (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2006/538

McCOLL JA ADAMS J LATHAM J

2 ADAMS J: In accordance with usual practice, I have had the opportunity of reading the judgment in draft of Latham J. I gratefully accept her Honour's narration of the objective and subjective features of the case. However, with respect, I do not agree with her Honour's conclusion that the appeal should be dismissed. The fundamental reason for my disagreement with this conclusion is the significance which, in my view, should be given to the psychological evidence.

3 The report of Dr Lennings stated the following - 24 Cognitive Assessment : Ms Le was administered the non verbal scale of the Wechsler Abbreviated Scale of Intelligence (WASI). The WASI is a fast but reliable measure of intelligence consisting of 4 sub-tests. Two each assessing ability in the verbal and non-verbal domains of intelligence. The verbal domain is assessed by word knowledge and the capacity for abstract reasoning, whilst the non-verbal domain assesses visuo-spatial reasoning and visuo-motor ability. Verbal measures are generally more affected by education, cultural experiences and language familiarity than non-verbal tests. 25 Ms Le's performance on the WASI was extremely poor. Her ability places her only at the very bottom end of the borderline mentally retarded region or better than only the bottom 2%. Whilst it is probable that Ms Le's lack of educational background, her poor psychological sophistication as well as her current quite sad affect have impacted upon her performance the reality is that Ms Le's history also suggests a woman of very low cognitive function. It is likely that even if the current result under- estimates her ability it does not under-estimate it by much and Ms Le is a woman of quite limited cognitive ability. It is this limited cognitive ability along with her lack of social resourcefulness that appears to have led her into the situation that she finds herself in at the moment. 26 Formulation: Ms Le presents as a rather sad woman who has spent a lifetime of disadvantage. She reports having been very close to her family and attempted to do the best that she possibly could for them but usually unable to achieve the desires that she sets out with. She reports a history of failed relationships. Despite having been a dedicated mother is currently feeling extremely disappointed with herself for having exposed her children to the risk of retaliation for her own behaviour. I note there appears to have been no Department of Community Services involvement with her children. She presents as a person with very low cognitive ability who has poor coping skills and at the moment is having difficulty managing the sadness and depressive affect she is experiencing. She does not appear at this moment to have a major depressive disorder but clearly is reactively depressed and is experiencing a high level of distress. At the moment she appears to have nursed some vague hope that somehow or other leniency will be shown and she will be able to leave gaol sooner rather than later. I suspect that should she get a sentence of any reasonable length all her hopes and her fears, particularly about her inability to protect her children, will be realised and then a true depression will descend upon her. 27 It seems to me that Ms Le does lack significant coping skills and is also highly vulnerable within the prison system. The fact that she can only identify with prison officers as a means of being able to find any support for herself in a prison suggests that she will have a great deal of difficulty in being able to negotiate the somewhat more brutal environment than prison is. It remains the case that she continues to be vulnerable to the syndicate, to which apparently she owes a considerable amount of money. According to her they continue to harass her children. Ms Le would clearly benefit from significant support. Such support will include the capacity for her children to visit her in gaol. It will also include as much as possible some counselling and preferably support for her daughter and son in the community.

4 In my respectful view, the conclusion that the applicant had full knowledge of the potential consequences to her of acting as she did must be qualified in its significance by the limitations of her cognitive ability demonstrated by the objective testing undertaken by Dr Lenning. This was significantly less, by a very great margin, than the understanding of the average person. There was no evidence that the applicant appreciated to the same or similar extent as would be the case with a person of average cognitive ability the serious nature of what she did and the potential consequences that her conduct might have. Indeed, the psychological evidence showed, in my view, that the applicant did not have this understanding, although I would accept that she understood that she was undertaking a criminal enterprise and would be punished if she were caught. The story that the applicant proffered to police in explanation of her crime was childishly absurd.

5 It is inevitable that the limited intelligence of the applicant, not to speak of the effects of the extreme hardship of her childhood and lack of any formal education, played a part in her undertaking the offence. These facts, and her fear of retribution, made her much more liable to manipulation and pressure than would be someone of greater intelligence and education. Of course, one cannot say that, had the applicant been without these handicaps, she would not have committed the offence. But the fact is that she did suffer under these limitations. To my mind, it follows that the applicant's objective culpability was thereby less than would have been the case if they had not been present. I am unable to agree that the criminal law should not give these factors some real significance in the sentencing process.

6 The mere fact that those who use persons such as the appellant will be encouraged to continue to do so because such a person will receive a lesser sentence than a person of average intelligence is not a proper basis for sentencing the applicant to a heavier sentence than her culpability warrants. It seems extremely unlikely that the employers of couriers seek out the borderline mentally retarded so that, if caught (and, one might think, such persons are far more likely to be caught) they will get a somewhat lighter sentence. Moreover, it is clear that the sentences imposed on couriers do not deter those who employ them. The logical extension of this argument is that the personal attributes and circumstances of a courier are immaterial or virtually so. That cannot be right.

7 In the course of the reasons for sentence of the learned sentencing judge, his Honour said - Given what Dr Lennings says is her low level of functioning, given what I accept to be her absence of education, occupation and sophistication, given the history of having been imposed upon in other ways, I think it is not unlikely that she may have been groomed and pressured into this importation by others who do not share her naivety and compliant personality. By the merest of margins, then, I conclude that on the balance it is more probable that she was just a courier. But attaching that label does not mean of course that one does not have full regard to the objective seriousness of her actions in seeking to breach this country's defences.

8 The learned sentencing judge went on to say - I am dealing with an offence which is prevalent. There is a need to deter not only this prisoner but most importantly all others who might find themselves subjected to pressure to take part in the act of importation. She got into this mess by giving free reign to her gambling and, indeed, on the material she gave to Dr Lennings, deliberately gambling in the mistaken belief that she could somehow alleviate the circumstances in which her parents were living in Vietnam. That is foolhardiness of a very high order.

9 This passage demonstrates the view of the learned sentencing judge that the only significant aspect of the applicant's personal history and attributes relating to the role which general deterrence should play in sentencing the applicant was her extreme foolhardiness as demonstrated by her gambling, so that she should receive a sentence that would deter persons subject to similar pressures from committing such an offence. With respect, I think it is neither sensible nor just to separate the destructive aspects of the applicant's conduct, including her commission of the crime, from what is known about her personal situation, including her intellectual capacity. To do so bears the hallmarks of the arbitrary and capricious. Of course, if there were evidence that the psychological assessment was unreliable and there was a finding to this effect, the situation would be altogether different. But there was no such evidence and no such finding. Nor does the finding that it was "deliberate" add much: it was never suggested that either the applicant's gambling or her crime was accidental. Although the notion of general deterrence is an important one, it cannot justify discarding any significant element of the offender's particular situation. I must confess to a high degree of scepticism that persons who are less capable than 98% of the population who are being pressured into acting as drug couriers will be less likely to give in on learning of this applicant's fate.

10 In my respectful view, the learned trial judge, in substance, gave virtually no weight to the applicant's subjective personal characteristics. These were significant and reduced the culpability of the applicant. Of course, general deterrence is a very substantial element in sentencing for offences of this kind - though it is obvious that it has not slowed the importation of drugs and helps to maintain their black market price, which is of course the only inducement for importation - but it cannot be permitted to overwhelm the other important elements of sentencing. With respect, this is what has happened in this case.

11 I have also formed the view that the matters disclosed in Dr Lennings' report constituted circumstances that justified a reduction in the non-parole period from the conventional ratio of about 66% applying to Commonwealth offences. There is no sign that his Honour considered whether these matters should mitigate the usual term of the non-parole period. Rather, having decided that the appropriate head sentence was seven years and six months, I think his Honour considered that this was the end of the application of the subjective circumstances to the sentencing process and that it simply followed that the usual proportion between it and the non-parole period should be applied.

12 It follows that, in my opinion, leave to appeal should be granted and the appeal upheld. I would quash the sentence and substitute a sentence of six years and six months imprisonment with a non-parole period of three years and eight months.

13 LATHAM J: The applicant, Anna Le, seeks leave to appeal against a sentence imposed on 18 August 2005 by his Honour Judge Freeman, following a plea of guilty to a charge of importing into Australia prohibited imports pursuant to section 233B of the Customs Act (Cth) 1901. The charge related to a quantity of heroin, being not less than the trafficable quantity, namely 117.6g. The applicant received a sentence of seven and half years imprisonment with a non-parole period of five years, commencing 14th February 2005, being the date of the applicant's arrest. The offence carries a maximum penalty of 25 years imprisonment.

14 The facts in relation to the matter may be briefly stated. On the evening of Monday 14th February 2005, the applicant arrived in Sydney on a flight from Singapore. She was detained by the Australian Customs Services on suspicion of concealing a quantity of narcotics. She consented to an internal examination and was taken to St George Hospital where she denied concealing any foreign objects in her body. A CT scan indicated to the contrary. Shortly after the CT scan, the applicant removed two objects and sought to conceal them within her personal belongings. A search of those belongings a short time later revealed two parcels wrapped in beige coloured rubber, each about 4 cm in diameter, one about 7 cm in length and the other 10 cm in length. The total weight of the powder contained within the packages was 154g, subsequently analysed as comprising 117.6g of pure heroin. The applicant was duly arrested and gave a version of events to the Australian Federal Police that she later contradicted in an account given to Dr Christopher Lennings, for the purposes of a psychological report tendered on sentence on her behalf. It is unnecessary to provide the detail of these two accounts, save to say that the applicant referred to a gambling habit in her discussion with Dr Lennings. According to this later account, the applicant became indebted to unknown persons in Australia who prevailed upon her to travel to Singapore and undertake the importation. The applicant did not give evidence in the proceedings before Freeman DCJ.

15 The applicant had no prior criminal convictions and was 40 years old as at the date of sentence. She was born in Vietnam, one of 10 children. Her account to Dr Lennings portrayed her upbringing as one attended by extreme hardship and a lack of formal education. The applicant lived with her family in Vietnam until the age of 22 when she married. The marriage ended shortly after she became pregnant. The child of that marriage, a daughter now 19 years of age, came to Australia in 1995 following the applicant's immigration to Australia with her younger brother in 1994. The applicant is now an Australian citizen and has spent the years since her arrival caring for her daughter whilst in receipt of Social Security benefits. In 2002 the applicant had a brief relationship which resulted in the birth of a son, aged three at the date of sentence. The applicant has had no contact with the father of that child since her pregnancy.

16 Dr Lennings reported that the applicant presented as a woman of "very low cognitive function" and that her incarceration would "create great hardship and suffering for her children, particularly the 19-year-old daughter who …. is prepared to sacrifice her own future in order to become a de facto mother to her three-year-old brother. The son will be likely to experience significant attachment difficulties with the loss of his mother although this appears to be inevitable and unavoidable."

17 The applicant's Grounds of appeal are: -- (i) The sentencing judge failed to give adequate weight to the probable effect that any sentence would have on the applicant's dependants.

(ii) The sentence in all the circumstances was manifestly excessive.

18 I shall deal with these grounds in turn. Section 16A(2)(p) of the Crimes Act (Cth) 1914 requires a sentencing judge to take into account the probable effect that any sentence or order under consideration would have on any of the offender's family or dependants.

19 Before passing to a consideration of the argument advanced on the applicant's behalf, it is appropriate to review the findings made by Freeman DCJ against the background of the evidence on this issue and the submissions made by the applicant's legal representative in the course of the sentencing proceedings.

20 The applicant's daughter, Kenix Le, gave evidence which was generally consistent with the applicant's subjective case. In particular, it emerged that Kenix completed her HSC in 2004 and that she was attending TAFE three days a week in pursuit of qualifications in the hospitality industry. Kenix was receiving a parenting allowance as the carer of the applicant's three-year-old son in an amount of $700 a fortnight. After the payment of rent and child-care expenses, Kenix received approximately $230 a fortnight towards the care of herself and her brother. Rental assistance was provided by a community agency, a representative of which was present in court, together with a person described as an "aunt-in-law". The child, Anton, was in child care five days a week. In response to the question, "you've taken on the role of in effect being the mother to Anton in the community for that period of time: do you think you are coping sufficiently with that?", Kenix replied "yes". Kenix also testified that her aunts and aunt-in-law visited her on a reasonably regular basis in order to assist her.

21 The applicant's legal representative made the following submission on sentence:- There is a significant hardship upon herself that she has to live every day with the fact that she has left her daughter with a great responsibility of raising a three year old child and impeding her daughter's own abilities as an adult, as a young adult at least to get on with her own life. ….. In relation to the impact of my client's conduct on …. third parties at least …. it's a sort of double edged sword but whilst perhaps it may not get to the stage of being exceptional , it really is only as a result of the fact that fortunately for my client's sake she has a responsible intelligent daughter who is able to take on the role of mother to her youngest child Anton rather than see the other situation which would be that the child would go into some type of foster care. But nevertheless your Honour, it would be my submission there is still an extreme impact upon, or a significant impact at least, upon her daughter Kenix by virtue of the fact that -- and fortunately obviously she is prepared to take on that responsibility but unfortunately she has now been lumbered with this role of raising her younger brother for the next number of years that her mother will be in custody. …. And it would be my submission your Honour that whether it gets to exceptional is a matter for you, but it would be my submission that is a highly significant impact that's been put upon Kenix by virtue of the imposition of a custodial sentence. (emphasis added)

22 It is hardly surprising therefore, that in the light of the evidence and this submission, his Honour declined to find that the hardship to the applicant's daughter warranted the description "exceptional". There was no evidence of any probable hardship to the applicant's son, other than the hearsay statements of Dr Lennings, who did not have any direct contact with the child. His Honour made the following comments in his remarks on sentence: -- There is some argument about whether I should have particular regard or rather lay particular stress upon the probable effect of her sentence on her family or dependants. It does appear that this is a matter of surpassing importance to the offender. By her actions having herself incarcerated, she has left her daughter Kenix in the unfortunate position of being a carer for her half brother Anton, thus inhibiting Kenix's opportunities for education, advancement, socialisation and the like. …. I do not however believe that they amount to an interference with the family of such an extraordinary level that those circumstances should be reflected in some diminished sentence. (ROS 6)

23 It is clear from what is set out above that the only submission made for the purposes of s 16A(2)(p) was that the applicant's incarceration would significantly impact upon her daughter's capacity to participate in all facets of the life of a normal 19 year old female. Yet, there was very little, if any, evidence capable of supporting such a submission. Kenix gave no evidence of any restriction on her social activities as a result of her assumption of the care of the applicant's son, nor was any evidence given of any restriction to present or future educational choices. To the contrary, Kenix appeared to have the support of her extended family and the availability of child care in excess of the required three days per week attendance at TAFE. There was positive evidence that Kenix had adapted her lifestyle to the demands created by her brother's care and that she was coping well in general terms. Whilst it cannot be gainsaid that the sole care of a young child by a 19 year old female would inevitably give rise to certain restrictions not faced by a peer without those responsibilities, the evidence established that Kenix was not in reality solely responsible for the care of the applicant's son. The direct evidence from Kenix was to be preferred to the opinion evidence of Dr Lennings.

24 The submission advanced in this Court is expressed somewhat differently. The applicant maintains that the evidence established the existence of circumstances capable of visiting exceptional hardship upon the applicant's son and daughter. Those circumstances included the imprisonment of a parent in the absence of a father or grandparents, thus effectively depriving the younger child of parental care, and the impact of that circumstance upon the applicant's daughter. Alternatively, it is submitted that even without a finding of exceptional hardship, the impact of the applicant's imprisonment upon her children justified either a reduction in the head sentence or in the length of the non-parole period. In this regard, reliance was placed upon the judgment of Howie J. in R v Bednarz [2000] NSWCCA 533, and on R v Lui [2005] NSWCCA 378. The applicant complains that there is no indication from the sentencing judge's remarks that the observations relating to the hardship upon the applicant's family, referred to at par 22 above, had any moderating effect on the sentence or on the non-parole period. The non-parole period imposed was 66% of the head sentence in accordance with the usual practice in Commonwealth matters.

25 A number of decisions of this Court have confirmed the approach taken by the Chief Justice in R v Togias (2001) 127 A Crim R 23 ; [2001] NSWCCA 522, namely that section 16A(2)(p) must be construed consistently with the common law, in that exceptional hardship is required to ameliorate an otherwise appropriate sentence. The applicant's attempt to persuade this Court to depart from that line of authority, by way of reliance upon DPP v Ip [2005] ACTCA 24, was faintly pressed. The ACT Court of Appeal in Ip dissociated itself from the reasoning in Togias, preferring an unqualified construction of s16A(2)(p), whilst acknowledging that the weight to be accorded to a given sentencing factor is a discretionary matter. As far as I am aware, the ACT Court of Appeal's disapproval of Togias is against the weight of authority in this State and in other States: see R v Gardner [2005] NSWCCA 383 ; R v Hinton [2002] NSWCCA 522; R v Gerard [2004] NSWCCA 170 ; R v Berlinsky [2005] SASC 316 ; R v Nguyen (2001) 160 FLR 216 ; R v Gaw [2006] VSCA 51. In any event, Togias is binding on this Court.

26 I can discern no error in his Honour's refusal to find that the applicant's imprisonment would occasion exceptional hardship to her children so as to justify a lesser sentence. I do not agree with the submission that the evidence was capable of establishing exceptional hardship. What the evidence established was that appropriate measures had been put in place for the ongoing care of the applicant's son and that the applicant's daughter was both willing and able to provide a significant measure of that care, without disrupting her tertiary education or her living arrangements.

27 Nor do I accept the submission that his Honour failed to take these matters into account in determining the appropriate sentence. Immediately after dealing with the question of hardship to the applicant's children, his Honour said, "I am dealing with an offence which is prevalent. There is a need to deter not only this prisoner but most importantly all others who might find themselves subjected to pressure to take part in the act of importation." Shortly afterwards, his Honour observed that the applicant had "put herself in the highly emotional situation of being separated from her children" and that because of that separation, the impact of imprisonment upon her would be very onerous (ROS 7.4). His Honour went on to stress that "the requirement however is that she be adequately punished for a very serious offence and that others be deterred." (ROS 7.6) These remarks demonstrate that the applicant's subjective case was considered by his Honour in both contexts, that is, in the context of asserted hardship and in the context of fixing a penalty appropriate to all the circumstances of the offence.

28 A submission was made to his Honour urging departure from the usual ratio between the head sentence and non-parole period in Commonwealth matters. That submission was:- "bearing in mind my client's subjective circumstances and her low level of cognitive functioning and also that this is her first time in custody, that the quantity itself is ultimately, whilst not an insignificant quantity but certainly nowhere near the higher range of trafficable quantities, that your Honour could certainly look to a non-parole period that is at the bottom end of the appropriate range or perhaps even slightly underneath it." Immediately prior to pronouncing sentence, his Honour refers to the quantity of the drug, the discount for the plea of guilty and "maintaining between the head sentence and the non-parole period the usual proportion." In the light of what had gone before, the only sensible construction of these remarks is that his Honour declined to accede to the submission, in spite of all that had been put on the applicant's behalf. I cannot accept that the applicant's subjective circumstances were not taken into account by his Honour on this issue, independently of the question of exceptional hardship.

29 The length of the non-parole period, including the extent, if any, of departure from the usual proportion, is an exercise of sentencing discretion. The applicant must demonstrate error in the sense identified in House v The King (1936) 55 CLR 499. I am unable to conclude that the non-parole period of five years is so unreasonable or plainly unjust that it bespeaks a miscarriage of that discretion. I am fortified in that view by what follows on the applicant's second ground of appeal.

30 The submissions advanced in support of the contention that the sentence is manifestly excessive focus upon the quantity of heroin, the fact that it was accepted that the applicant was a courier, and that she was a woman of low cognitive ability. The applicant seeks to call in aid the range of sentences promulgated by the Court of Criminal Appeal in R v Wong and Leung [1999] NSWCCA 420 for couriers and persons low in the hierarchy where a low level trafficable quantity has been imported. The low level trafficable quantity was identified by the Court as between 2g and 200g. As the applicant acknowledges, the range of five to seven years imprisonment was "determined primarily on the basis of existing sentencing patterns" [142], which were established against the backdrop of section 16G of the Crimes Act, and was premised on a plea of guilty. In addition, it must be borne in mind that the High Court has disapproved of the practice of placing too great an emphasis on the amount of the drug in assessing the appropriate sentence : Wong v the Queen (2001) 207 CLR 584 at 609 ; see also Markarian v The Queen [2005] HCA 25. Nonetheless, the applicant argues that a starting point of 10 years imprisonment, before the application of the discount for an early plea of guilty, was outside the range appropriate to a courier, importing a low range trafficable quantity, with the subjective features of the applicant.

31 The intervention of this Court is not justified by the fact that the sentence ultimately imposed was towards the top of the range of sentences imposed for a like offence, without more, or that this Court would have been minded to impose a lesser sentence at first instance. The applicant must establish that the sentence imposed is so plainly outside the permissible range that latent error has been demonstrated. In undertaking this exercise, it is important to bear in mind the statutory obligation to impose a sentence "of a severity appropriate in all the circumstances of the offence" ; s16A(1).

32 At the end of the day, the applicant imported a significant quantity of heroin, in full knowledge of the potential consequences to her, notwithstanding her limited education and intelligence. Her intelligence is not so limited that she was unable to provide one false explanation for her offending to the arresting officers, followed by another altogether different explanation some months later to Dr Lennings, which sought to cast her in a more sympathetic light. There was little evidence of real contrition ; his Honour found that she regretted her situation but was unable to conclude that it extended to real remorse for her actions (ROS 5.9). That finding is not criticised. To the extent that his Honour found that the applicant succumbed to gambling and that it was "not unlikely that she may have been groomed and pressured into this importation by others who do not share her naivety and compliant personality" (ROS 5.4), they are unremarkable features of many importation offences. It is commonplace for offenders to seek to explain participation in an importation, other than simply admitting that it was a pre-meditated act committed for financial gain. Whether that explanation be the offender's vulnerability arising out of a drug addiction, or a gambling addiction, it generally does not warrant the extension of leniency. The deterrent value of sentences imposed on those who import drugs would be undermined if leniency were extended merely on the basis that an unsophisticated and compliant offender came under the sway of more unscrupulous people.

33 When one has regard to the range of sentences imposed for the importation of a trafficable quantity of heroin post-repeal of section 16G and following a plea of guilty, it is apparent that there has been an upwards movement of both head sentences and non-parole periods for this offence since this Court's decision in Wong and Leung. Of the 49 cases sampled in the JIRS statistics, 28 received head sentences of seven years or more. Sixteen of the 49 cases received non-parole periods of five years or more. Whilst the use of these statistics should be approached with caution, they are capable of indicating an appropriate range and may be useful in determining whether a given sentence is manifestly excessive: R v Bloomfield (1998) 44 NSWLR 734.

34 For all of these reasons, I am not persuaded that the sentence imposed upon the applicant is manifestly excessive. This ground of appeal also fails. I would grant leave to appeal and dismiss the appeal.

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