Court of Appeal (WA)|2000-08-31|Before: Kennedy ACJ

Barany v The Queen [2000] WASCA 240 (31 August 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BARANY -v- THE QUEEN [2000] WASCA 240

Criminal law - Sentencing - Appeal - Importation of 'ecstasy' (MDMA) - Discount for assistance to investigating authorities - Effectiveness of assistance to authorities relevant

Respondent : Commonwealth Director of Public Prosecutions

Hayes v R (1981) WAR 252

La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 31 October 1996

Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997

R v Bellissimo (1996) 84 A Crim R 465

R v Ferrer-Esis (1991) 55 A Crim R 231

R v Foster & D'Anna (1992) 59 A Crim R 14

R v Tait & Bartley (1979) 24 ALR 473

1 KENNEDY ACJ: I have had the advantage of reading in draft the reasons about to be published by Parker J. I entirely agree with those reasons and have nothing to add to them. Accordingly, I would refuse leave to appeal.

2 WALLWORK J: I agree with Parker J that no error on the part of the learned sentencing Judge has been established. I would also refuse leave to appeal.

3 PARKER J: The applicant seeks leave to appeal from a sentence of 6 years' imprisonment with a non-parole period of 3 years which was imposed by Fenbury DCJ in the District Court on 23 February 2000 for an offence of importing a quantity of 3,4-methylenedioxymethamphetamine (MDMA or ecstasy) into Australia contrary to s 233B(1)(b) of the Customs Act 1901.

4 The offence occurred on 27 November 1991. The applicant arrived in Perth by air as a passenger from Paris via Kuala Lumpur. After disembarkation, her luggage was searched by Customs officers. A false bottom was detected in a blue bag. Beneath this were concealed 4,168 tablets of ecstasy with a net weight of 600.3 grams. The tablets had a purity of 52.1 per cent ecstasy with a net weight of pure ecstasy of 312.7 grams. The trafficable quantity is 0.50 grams. The information placed before the sentencing Judge indicated the street value of the ecstasy to be some $208,000.

5 When interviewed on 27 November 1999 the applicant admitted she was aware of the substance concealed in the blue bag, although she said she understood it to be hashish or marijuana. She said she had met a man named Eddie in London early that month. She said she did not know his surname. He offered her the chance to make some quick money. As arranged with him, she collected the blue bag from him at a railway station in Brussels. Her instructions were to deliver the bag in Adelaide to a male person who was unknown to her. She was to travel by air from Paris to Perth where she was to catch a train to Adelaide. Details of her flight and train bookings were made known to Eddie after she had made the bookings. She was to be met at the station in Adelaide by the unknown male who would have a photo of her.

6 The applicant was provided by Eddie with £2,000 sterling to cover travel costs. On delivery of the blue bag in Adelaide she expected to receive US$10,000.

7 After her arrest on arrival in Perth, the applicant agreed to assist the Australian Federal Police who took over investigation of the matter from the Customs Service. She agreed to complete the journey and arrived in Adelaide by train as originally planned. An inert substance was substituted for the ecstasy in the false compartment in the blue bag. In Adelaide, however, no one met her.

8 The applicant was born in France. She is some 35 years old and, in partnership with her sister, had been self-employed as a fashion designer. She is unmarried. It seems that she was living in Indonesia, the United Kingdom and France. With her sister she also had a fashion shop in Spain.

9 In explanation of her conduct, she said the fashion business had virtually collapsed, she was in urgent need of money to try and resurrect it, and she was depressed. The sentencing Judge was informed she had no previous criminal record.

10 While the attempted controlled delivery at the Adelaide Railway Station was to no avail, his Honour was informed that the police accepted that this was a genuine attempt by the applicant to assist in their enquiries. She had been prepared to admit the offence when interviewed and, to a degree, was quite co-operative with the police. In at least one respect, however, she withheld information from the police. It was not until her appearance in the District Court that, through her counsel, she provided the police with a French telephone number which had been a means by which Eddie had contacted her. It was her explanation that this was the telephone of a friend of hers and she did not want it known that she had been arrested in Australia.

11 While the papers in support of the application for leave were more widely framed, at the hearing the applicant's argument was confined to the issue whether the sentencing Judge had failed to take adequate account of the co-operation and assistance given by the applicant to the police. It was accepted that his Honour had considered and weighed properly all other relevant considerations.

12 With respect to the applicant's assistance to the police, the Judge made the following observations when he sentenced the applicant:

"You were interviewed on video and I have viewed the three cassettes with the transcript of the interviews. You made significant admissions about your conduct. It has been said on your behalf that you cooperated fully with the authorities. You agreed to partake in a controlled delivery with police at the Adelaide railway station. You did partake in that delivery but no-one came to collect the bag from you.

The crown accepts that this was a genuine attempt by you to help authorities to apprehend others involved. It was a useless exercise of no benefit to the authorities. Given the size and value of this importation, I think it unlikely that no system existed to check your safe entry into Australia at Perth. The controlled delivery could fairly be described as a long-shot. You did, however, try to help the authorities and your efforts should be recognised upon the basis that the fact that nothing came of your assistance is not your fault. On the other hand, you cannot receive the same recognition for your help that you would receive if the authorities had in fact been assisted in their task of bringing other criminals to justice.

It is to be observed that your assistance was not total, and I made these remarks or drafted these remarks before Mr Tudori told me what he has said about the telephone number so perhaps I will just simply say that you recently provided a number but I think probably, given that it is now 3 months after the matter was in a sense alive, it is probably too late, but I won't comment further about that."

Having dealt with other matters, his Honour then continued:

"I think a sentence of imprisonment of something like 10 years would be appropriate in your case. For the early plea of guilty on the fast-track system I would discount that sentence by 2 years.

I now refer to the fact that you cooperated with the authorities and especially participated in a controlled but failed attempt of delivery of the drugs to their source. People in your predicament who try and repay society by helping in this way must be encouraged to do so. I think that would justify a further discount of a period of 2 years. Thus I think a sentence of 6 years is appropriate."

13 It was submitted for the applicant that she had co-operated with the police so far as she could and, in particular, had put herself in danger by participating in the attempted controlled delivery in Adelaide. It was submitted that while she delayed disclosing her friend's telephone number, that was for genuine personal reasons and as it was the number of a friend of hers it was not directly material. It was further submitted that to the extent that the telephone company records might enable the tracing of calls to that number, that could still be done despite the delay. In that regard, the tracing of calls is only one possible use which the police might have been able to make of that telephone number had it been known to them when the applicant was first interviewed. Further, given the apparent professionality of the activities of the man identified as Eddie by the applicant, there cannot be any high expectation that the police would be greatly assisted by the tracing of telephone numbers of callers.

14 Because of the nature and degree of co-operation which the applicant provided, it was submitted that the applicant should have received a much more substantial discount from the sentence that would otherwise have been appropriate. In particular, it was submitted that it was not her fault that the delivery which was attempted in Adelaide was not effected and that no one was arrested at the end of the day. Her actions in co-operating exposed her, and could in the future continue to expose her, it was submitted, to the risk of repercussions. Hence, there was every justification, it is said, for there to be a real and genuine incentive reflected in the sentence for this type of co-operation. In particular, it was submitted that the observations of his Honour, quoted above, indicate that the discount which his Honour did allow was less than might otherwise have been the case because the attempt to delivery in Adelaide failed. It was submitted this was an erroneous approach in principle and that the determinative factor should be the nature and degree of the co-operation provided and the risk to which the applicant was exposed as a consequence.

15 Counsel relied on R v Nagy [1992] VicRp 45; [1992] 1 VR 637 at 643, which echoed observations of Deane and McHugh JJ in Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 239, as to the need for courts to be perceived to extend leniency beyond what might otherwise be justified to those who assist in the exposure and prosecution of, among others, hidden organisers of criminal conduct, particularly in drug cases, by the provision of significant and reliable evidence. In R v Nagy (supra) McGarvie J, at 643, noted particularly that regard should be had " ... to the position in which he places himself through informing against his associates ... ".

16 Reliance was also placed on the observations of Hunt and Badgery-Parker JJ in R v Cartwright (1989) 17 NSWLR 243 at 252 - 253 where their Honours said:

"It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive might have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co-operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities."

17 It is submitted that this last paragraph should be understood as holding that it is irrelevant to the amount of the discount whether or not the information did significantly assist the authorities. While that view can be taken of the paragraph, it may also be understood as directed to a different issue, namely, whether the offender should receive any discount where the information turns out to be of no assistance to the authorities; the view expressed being that a discount is appropriate where there has been genuine cooperation which could significantly assist the authorities, whether or not in fact the information proves effective.

18 Whatever may have been intended at the time, it is the second of these views which seems to have prevailed in New South Wales, and, in my view, it is the view appropriate to be followed in this case.

19 In R v Cartwright (supra) itself, Mahoney JA at 244 said:

" ... in fixing the discount for co-operation with the authorities, it is proper that the sentencing judge take into account that the information given was effective. I find difficulty in accepting that all a judge can take into account, and therefore all he need know, is that the information could assist and not that it did. Hunt J and Badgery-Parker J have surveyed the cases. As they have said, in some of them reference was made to what the information achieved and not merely its potential to achieve it. I cannot but feel that it would be felt artificial for a judge to say: I take into account that the information could have broken up the gang but not that it did."

20 Hunt J himself in R v Gallagher (1991) 23 NSWLR 220 at 233 said:

"This Court's decision in R v Cartwright (1989) 17 NSWLR 243 did not purport to deal with every aspect of the "discount" to be allowed for assistance given to the authorities by a person standing for sentence. Obviously, the relevant principles relating to this matter can only be worked out on a case by case basis."

It is clear from the reasons of Gleeson CJ, Meagher JA concurring, in R v Gallagher (supra) at 223, read with the orders made at 233, that it was regarded as relevant for the court when sentencing in a case such as this to be provided with information which includes details of the nature of the information provided to the authorities, the identity of the persons, if any, to whom it led the law enforcement authorities, and the ultimate outcome, ie the "outcome of any proceedings against the arrested persons". When discussing aspects of the discounting of sentence by virtue of assistance to investigating authorities, Gleeson CJ referred at 227 to:

" ... the utilitarian consideration involved in encouraging persons to provide information which will permit the apprehension and successful prosecution of other offenders. Public opinion seems to accept this as reasonable enough in a case where, for example, a middle level dealer in a drug operation provides information enabling the apprehension and prosecution of more senior persons in the organisation."

"The court must be astute to ensure that it is being given accurate, reliable, and complete information concerning the alleged assistance and the benefits said to flow from it."

A little later in his reasons at 232 - 233 the Chief Justice continued:

"In the present case I regard the information that was before the sentencing judge, and that is before this Court, as to the nature and extent of the assistance that the appellant has given to the authorities, and as to the benefits that have resulted, or will result in the future, from such assistance as inadequate for the purpose of forming an appropriate judgment as to the degree of leniency that should be extended to the appellant on account of that assistance." (emphasis added)

21 In R v Dinic (1997) 149 ALR 488, a case involving a Commonwealth offence, the New South Wales Court of Criminal Appeal (Newman J, James and Dunford JJ concurring) having reviewed a number of earlier decisions concluded, at 494:

"On these authorities I am of the view that in dealing with Commonwealth offences it is appropriate that a sentencing judge should consider the benefits which have flown from the assistance provided in assessing what discount (if any) should be given from the sentence to be passed."

22 The following passages from the reasons of Gleeson CJ in R v Gallagher, which deal with aspects of the discounting of a sentence for assistance to authorities, are also of particular relevance in this appeal. At 228 his Honour observed:

"It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical."

" ... it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by 'tariffs' derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice."

"Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards. If sentencing principles are capable of producing an outcome of that kind, then that calls into question their legitimacy."

23 In my view this brief reference to authority is enough to confirm that regard may properly be had for sentencing purposes, inter alia, to the value and benefit to the investigating authorities of the information and assistance provided by an accused in cases such as this, but that is only one of a number of relevant considerations. Even where the information and assistance in fact proves to be of no assistance, the provision of that assistance, at least if fully and frankly provided, and also the degree of risk arising to the accused because of the assistance provided, will also be relevant considerations.

24 In my view this consideration of the authorities does not reveal that the sentencing Judge erred in principle in his approach in this case to the issue of assistance to the police. His Honour took into account that the applicant provided a frank and substantial, though not full, disclosure of all information known to her when interviewed and that she agreed to participate genuinely in the attempted delivery in Adelaide, a circumstance which might well expose her to risk because of the assistance she provided. These matters, as his Honour correctly appreciated, warranted due recognition in the sentencing process by the provision of a substantial discount, although not as extensive as would have been justified had there been a successful delivery in Adelaide which resulted in the identification and prosecution of others involved in this criminal importation, particularly, I would add, if they were among the "hidden organisers" of the criminal activity.

25 It is further submitted for the applicant that, in any event, in the result too little discount was allowed. His Honour's comments indicate that by virtue of the applicant's assistance to the police the sentence which otherwise would have been of 8 years' imprisonment, after regard to other relevant considerations, was reduced to six years, ie by one quarter. As was observed by Gleeson CJ in R v Gallagher the amount of the reduction is not a matter of tariff. In my view a reduction of one quarter is not properly to be regarded as an inadequate reflection of the assistance provided by the applicant in this case. It is a significant reduction both in percentage and actual time and, in my view, in the circumstances of this case it cannot be said to be inadequate as a matter of fairness to the applicant. More importantly, it is sufficient in my view to achieve the public interest objective of encouraging others to provide real assistance to investigating authorities.

26 I would further observe that the resulting sentence of 6 years' imprisonment for the importation, in this case of a significant quantity of a most harmful narcotic solely for financial gain, could hardly have been less without it being likely to be seen to be out of touch with the circumstances of the offence and of this applicant so as to affront community standards: cf Gleeson CJ in R v Gallagher at 232. In this respect I would observe that while the sentencing Judge may have taken a term of 10 years as a guide to an appropriate starting point for his consideration of the sentence, it is my respectful view that when the circumstances of this case are fully considered, and in particular the nature and quantity of the drug and the clear role of organised criminal activity in what occurred, a starting point in the range of 11 - 14 years could well have been justified.

27 Even having full regard to the assistance provided by the applicant, including the potential for risk to her, and the other mitigating factors which were weighed by his Honour, it seems to me that, if anything, a sentence of six years tends toward the lower end of the range of a proper exercise of the sentencing discretion in the circumstances of this case.

28 For these reasons I would refuse leave to appeal.

Barany v The Queen [2000] WASCA 240

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Judgment (63 paragraphs)

Barany v The Queen [2000] WASCA 240 (31 August 2000)

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Cases Cited (5)