Migration Act 1958 (Cth), s 147

Sentencing Act 1995 (WA), s 87

Sentence of imprisonment for 16 years with a non-parole period of 8 years reduced to 13 years and 6 months with a non-parole period of 6 years and 9 months and sentence taken to begin on 16 June 2000

Appellant : Unrepresented Criminal Appellants Scheme

Respondent : Commonwealth Director of Public Prosecutions

"X" v The Queen [2000] WASCA 355

Diefenbach v R [1999] WASCA 4; (1999) 108 A Crim R 19

R v Ngui & Tiong [2000] VSCA 78

Heryadi v The Queen (19998) 19 WAR 383

Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997

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

The Queen v Chee Kwok Wong, unreported; SCt of WA; 24 November 2000

1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be granted, the appeal allowed and the sentence of imprisonment for 16 years with a non-parole period of 8 years should be reduced to a sentence of imprisonment of 13 years and 6 months with a non-parole period of 6 years and 9 months "to be taken to have begun" on 16 June 2000. I have reached that conclusion for the reasons to be published by Wallwork J. I only wish to add a few comments of my own.

2 It was accepted by counsel for the appellant that the starting point adopted by the learned sentencing Judge of a sentence of 18 years, subject to reduction on account of mitigating factors was appropriate. This sentence was reduced to 16 years on account of the appellant's plea of guilty and all other relevant matters of mitigation. This represented a discount of 11.2 per cent. While it has been frequently said that the prevalence and seriousness of drug use makes deterrence the principal consideration for drug offences, it is important that the public policy consideration governing the provision of an adequate discount for a plea of guilty at the earliest opportunity be fully recognised by discounting a sentence by an appropriate amount: see, for example, Radebe v The Queen [2001] WASCA 254 at [16] - [28] per McKechnie J, with whom Malcolm CJ and Anderson J agreed.

3 In Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997, Franklyn J, with whom Malcolm CJ and Steytler J agreed, reviewed a number of authorities and said at 3:

"It was the applicant's submission through counsel that, regardless of any other relevant circumstance, a plea of guilty pursuant to the fast-track system demanded a known 'tariff' discount of the sentence which the criminality of the offence, having regard to all relevant circumstances, would otherwise demand. He argued that the tariff discount should be 20 to 25 per cent and that in the applicant's case, having regard to his antecedents, the discount should have been increased beyond the tariff to between 30 and 33 and a half per cent. That submission had its genesis in the statement of Anderson J in R v Greenwood, unreported; CCA SCt of WA; Library No 9602093; 21 May 1996 that, for the fast-track system to work, accused persons must be certain that the immediate plea of guilty will carry a definite reward in sentencing, His Honour adding that 'Deductions up to 30 per cent are not uncommon;' and in that of Malcolm CJ in Stretton v R, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 that the discount 'is often of the order of somewhere between 20 to 25 per cent and 30 to 35 per cent.' What the submission overlooks is that neither statement suggests that that range contains the minimum discount. As Malcolm CJ said in Hellings v R, unreported; CCA SCt of WA; Library No 940440; 24 August 1997, speaking of the desirability of encouraging guilty pleas, 'That objective can be achieved by giving credit to the early plea by way of mitigation of sentence imposed in discounting it to the extent considered appropriate'." (underlining added).

This Court has often said that each case must be considered on its own merits and that consequently there is and can be no tariff setting the penalty appropriate to any particular offence or the deduction for any particular mitigatory matter. What might be appropriate by way of sentence or deduction for a mitigatory matter such as an early plea of guilty in one case might well be inappropriate in another. Indeed it may result in an injustice, either to the offender, the complainant, the criminal justice system, society or some or all of them. (See R v Cameron and Simounds, unreported; CCA SCt of SA; Judgment No S4051; 19 July 1993 per King CJ).

It is trite to say that mitigatory matters must be taken into account in sentencing, the weight to be given them varying as required by the overall relevant circumstances. It is accepted, however, that, save in rare cases, an early plea of guilty should result in a recognisable discount. The extent of that discount, however, will vary according to the circumstances of the particular case. Nevertheless, in my opinion, it must be recognisable in the sense that the penalty imposed must be objectively seen to be below that which its criminal gravity would otherwise demand. Such recognition has specific benefits to the complainant and the community, even when the evidence against the applicant is overwhelming in that, at the very least, it relieves the complainant of the necessity to give evidence, the prosecution to collate its evidence and prepare for trial and the State the cost of a trial."

4 In Foster and D'Anna (1992) 59 A Crim R 14 the Court held that no significant discount was merited because of the guilty pleas because the case against the offenders was very strong indeed. In Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 it was held that, while some credit should be given for a plea of guilty, a person caught red-handed while endeavouring to avoid detection could not expect a substantial discount. In Little v The Queen [2001] WASCA 87 in a joint judgment Malcolm CJ, Wallwork and Anderson JJ increased the discount for an early plea of guilty from 16.7 per cent, or 2 years off a starting point of 12 years, to 25 per cent, which in that case increased the discount by one year. In response to a submission by the State Director of Public Prosecutions that this amounted to "tinkering" with the sentence by the Court, it was said at [16] - [17]:

"It is true that courts of criminal appeal do not tinker with sentences. There are basic reasons for this. They were explained recently in Morley v The Queen [2001] WASCA 49 at par 8. A court of criminal appeal must fully recognise the discretionary character of the sentencing function and must accord to sentencing judges a wide measure of latitude. The discretion which the law commits to sentencing judges is of vital importance: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 672; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 336.

In light of these principles, it would be a very rare case in which a court of criminal appeal determined that a sentence of 10 years was manifestly excessive and on that ground reduced it by only 1 year. However, that is not the exercise which is involved in this case. What this Court is concerned to do is to correct a failure to properly implement an important policy in the administration of criminal justice; namely, to encourage pleas of guilty by properly rewarding them when they are made. The applicant should have been given a 25 per cent discount for his fast track plea of guilty and it is no answer to say that to give it to him now will involve a relatively small reduction of the sentence."

5 It is recognised that in this context it is important to bear in mind the approach to be adopted by this Court as a Court of Criminal Appeal when considering an appeal from a decision involving an exercise of sentencing discretion as exemplified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 at 519 - 520 per Dixon, Evatt and McTiernan JJ; and Lowndes v The Queen (1999) 195 CLR 505 at [15] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

6 In my opinion, this is a case of a kind referred to in Dinsdale v The Queen [2000] HCA 54 at [5] whereby the discount for the plea of guilty

was so far outside the appropriate range of sentencing discretion so as to be manifestly wrong and to require correction by the intervention of the court both on the broad grounds of policy and to correct what would otherwise be a justifiable sense of grievance on the part of the appellant. But for the appellant's guilty plea, the Crown would have had the burden of proving that the appellant knowingly imported the relevant goods into Australia: He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523; cf Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995; and "X" v The Queen [2000] WASCA 355.

7 At the same time, however, as Gleeson CJ said in R v Gallagher (1991) 23 NSWLR 220 at 232:

"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."

8 In my view, the additional reduction to recognise the significance of the early plea of guilty and the other matters mentioned have the effect of ensuring that the interests of the administration of justice both generally and with respect to the appellant in particular would be properly served by an increase in the discount for the guilty plea.

9 Ground 2 of the grounds of appeal contended simply that:

"The learned sentencing Judge erred in failing to backdate the sentence to 16 June 2000."

10 Ground 3 was expressed as an alternative on the basis that if the sentence could not be backdated, there should have been a discount for the time the appellant spent in custody from being taken into custody awaiting sentence. Suffice it to say that I agree entirely with the reasons to be published by Wallwork J on this point so that the Court was entitled to order that the sentence imposed on the appellant should be taken to have begun on 16 June 2000 pursuant to s 87 of the Sentencing Act 1995 (WA).

11 WALLWORK J: On 3 October 2000, the appellant was sentenced to a term of 16 years' imprisonment with a non-parole period of 8 years. He had pleaded guilty to have been knowingly concerned in the importation into Australia of 20,833 tablets of ecstasy. He applies for leave to appeal against the sentence essentially on two grounds: firstly, he claims that he

was not given sufficient credit for his early plea of guilty; secondly, he says that the learned sentencing Judge did not allow him credit in the sentence for the time he had spent in custody prior to being sentenced from 16 June 2000 to 3 October 2000.

12 The facts concerning the importation in which the appellant was knowingly concerned were that on 23 May 2000 a motor vessel docked in Broome after a passage from Indonesia. The relevant ecstasy tablets were hidden on the vessel. At the time it arrived, the appellant and another man, using false names, were already at Broome, having travelled there by air three days earlier. They made contact with a person on board the vessel. The appellant later collected a black plastic bag from a person on the vessel. Still later that evening, he obtained possession of two biscuit tins containing the 20,833 tablets, being 6.2 kilograms in weight.

13 On the next day, the appellant and a co-offender, using false names, caught a bus to Alice Springs. They arrived there on 27 May 2000. The contents of the two tins were then repacked into a shoe box and sealed. The co-offender then went by bus to Adelaide. The appellant hired a taxi to take him to the Arradunda Roadhouse, about 200 kilometres south of Alice Springs. He there booked a room for five nights. He went into the room and placed the shoebox containing the tablets in a cupboard in the room. He then returned to Alice Springs in the taxi, where he was apprehended.

14 When presenting the facts to the sentencing Judge after the plea of guilty had been taken, the learned prosecutor advised that the appellant had come before the court on a fast track plea of guilty. Counsel told the Judge that the background to the operation had involved considerable organisation and a number of offenders. He said that the appellant had travelled by air from Sydney to Perth and then to Broome, prior to taking possession of the tablets. After he had left the tablets in the shoebox in the motel room and returned to Alice Springs, he had been spoken to by Federal Police. He had been arrested for being a prohibited non-citizen. The appellant had admitted to being an illegal immigrant. He had been in Australia for something like 11 years. He had subsequently been conveyed to Darwin for deportation.

15 Counsel told the Judge that on 31 May 2000, about four days after the appellant's apprehension, police officers had interviewed the taxi driver who had driven the appellant to Arradunda. Following that interview, the motel room which had been booked by the appellant had been searched. The shoebox containing the ecstasy tablets was discovered. There were then further enquiries made.

16 On 3 June 2000, the appellant had again been interviewed in Darwin. He was asked about his possession of the shoebox containing the tablets. During that record of interview, the appellant told the police officers that he had travelled to Broome to collect $200,000 in Australian currency and then return to Sydney. He said he had only realised that he was in possession of narcotics when he had examined the contents of the shoebox in his hotel room at Alice Springs. He made full admissions concerning how he had come to be in possession of the shoebox and its contents. He told the police officers that the reason he had left the narcotics in the motel room was that he had panicked when he had realised he was involved in the trafficking of narcotics. He had still had the key to the motel room on his keyring. He was later extradited to Perth.

17 The learned prosecutor told the Judge that the prosecution did not accept the appellant's explanations as entirely true.

18 In his address in mitigation, counsel for the appellant told the Judge that, prior to committing the offence, the appellant had not been in a desperate financial situation. He had been approached and offered $10,000 to bring the money to Sydney. All his expenses for the return journey from Sydney to Broome were to be paid. He knew he had been engaged in illegal conduct. It was submitted that he had not discovered the drugs until he had arrived in Alice Springs and opened up the tins. It was said that he had then panicked and had in effect dumped the drugs in the motel room.

19 Counsel advised the Judge that initially the appellant had arrived in Australia on a holiday visa for six months. He had thereafter remained in the country for 11 years. It was said that the appellant came from a family of eight children in Singapore. He was the third eldest. His family were all law-abiding citizens. He had attended a technical college after leaving school and had a certificate in interior design and carpentry. In Australia he had been employed by a hardware and building concern. He had then commenced part-time work as a taxi driver. Later he had become a full time taxi driver. He was single and had no children. He had no previous convictions in Australia or in Singapore.

20 Since he had been in prison the appellant had studied computer courses, business office skills and technology.The learned Judge was informed that apparently the Singapore authorities will place the appellant under detention when he returns to Singapore. There will be some further form of punishment by way of detention at that time. The period of that detention was not known.

21 In reply, the prosecutor informed the court that the quantity of tablets involved in the offence was approximately six times the commercial quantity. Taking an average price per tablet, the value of the tablets was in the order of $1.5 million at street value. The quality of the tablets was appropriate for street sales. The maximum penalty for an offence involving a commercial quantity of the drug was life imprisonment.

22 The Judge was informed that the appellant was the first person to be dealt with from the group of six who had participated in the importation. It was said that his first interview "had really been untrue", whereas the second interview had contained some truths, some half truths and some untruths. However, the appellant had admitted his involvement in the smuggling operation. After taking legal advice, he had pleaded guilty at the first available opportunity . Counsel said that the prosecution "readily acknowledges that he must be given a discount for that".

23 In sentencing the appellant, the learned Judge said that the objective facts suggested that the appellant had been a member of a criminal organisation which had imported a quantity of ecstasy for dissemination to the youth of Australia. His only motivation had been greed. His Honour rejected the appellant's contention that he had only realised he had been in possession of narcotics when he had examined the shoebox at Alice Springs. His Honour said that that explanation was quite implausible. It did not accord with the known facts. It was incredible that if it had been a proper explanation, the appellant would then repack the bag, travel some 200 kilometres, leave the drug in a motel room and then immediately travel back by taxi.

24 His Honour found that the appellant was an indispensable link in the chain of distribution of the drugs from north-western Australia, throughout the country. He said the appellant was at least a major courier who had been entrusted with a large amount of illicit substance. His Honour said that questions of general deterrence and punishment must be uppermost; that the sentence must send a very clear message to other like-minded drug traffickers concerning the attitude of Australian courts to those who are prepared to traffic and profit from the infliction of short term pleasure and long term misery on young Australians. His Honour said he regarded the quantity of the drug as an aggravating circumstance.

"I take into account your age and your previous antecedents, including the fact that you have no previous convictions. I note that your sentence will necessarily be served far from family and acquaintances. However, matters of mitigation must carry little weight when compared with the gravity of the offence and the need for condign punishment. ... I consider that the appropriate sentence for this crime before allowances are made is a term of imprisonment of 18 years. From that figure I would however deduct a term of 2 years to take account of your plea of guilty and such other matters of mitigation which might be considered. You are therefore sentenced to a term of imprisonment of 16 years."

26 In arguing this appeal no complaint was made by counsel for the appellant in relation to the starting point of 18 years for the head sentence, which it was said, was clearly within range and appropriate to the circumstances of the case. However, it was contended that inadequate regard had been paid to the plea of guilty and, to a limited extent, to other matters of mitigation, including the fact that the appellant had no prior record of convictions. It was contended that the discount of 2 years from the head sentence of 18 years had equated to a discount of 11 per cent. That was said to be outside the range considered to be appropriate in similar previously decided cases which referred to a range of discount of 25 to 35 per cent, except in unusual circumstances. It was submitted that there was nothing unusual about this matter.

27 It was submitted that the plea of guilty had by no means been an inevitable plea and that the circumstances of the appellant's apprehension might have allowed him to defend the matter; that the purpose of allowing a substantial discount was to encourage offenders to plead guilty even where there was a strong circumstantial case. It was contended that if offenders believed that they were only going to receive a discount in the range of 10 or 12 per cent for a plea of guilty, they could be encouraged to take their chances at a trial.

28 In Little v The Queen [2001] WASCA 87, at 13, the WA Court of Criminal Appeal said:

"It is well established that, for reasons which are so well known as not to require restatement, offenders must be rewarded and really rewarded for fast track pleas of guilty. The discounts usually fall between 25 per cent and 35 per cent, depending on the circumstances. The discount may be somewhat lower or somewhat higher in particular cases. In this case we can see no reason why this applicant should not have been rewarded by a 25 per cent discount for his fast track pleas of guilty. Whilst no doubt the Crown case against him was strong in respect to the last offence of car stealing (he was apprehended after running away from the crash), the fact is that when questioned in his video record of interview about the other offences, he freely and frankly admitted his involvement in them, and he pleaded guilty to them at the first available opportunity.

The discount given by the learned sentencing Judge amounted to 16.7 per cent; that is 2 years off 12 years. In the circumstances of this case, we are of the opinion that that was not an adequate reward for the fast track pleas. .... A Court of Criminal Appeal must fully recognise the discretionary character of the sentencing function and must accord to sentencing Judges a wide measure of latitude. The discretion which the law permits to sentencing Judges is of vital importance: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 672; Postiglione v The Queen (1997) 109 CLR 295 at 336.

In light of these principles it would be a very rare case in which a Court of Criminal Appeal determined that a sentence of 10 years was manifestly excessive and on that ground reduced it by only 1 year. However, that is not the exercise which is involved in this case. What this Court is concerned to do is to correct a failure to properly implement an important policy in the administration of criminal justice; namely, to encourage pleas of guilty by properly rewarding them when they are made. The applicant should have been given a 25 per cent discount for his fast track plea of guilty and it is no answer to say that to give it to him will involve a relatively small reduction of the sentence. For these reasons, we would set aside the aggregate term of imprisonment imposed by his Honour and resentence the applicant to an aggregate term of imprisonment of 9 years."

29 It should be noted that the decision in Little was quite some time after the appellant in this case was sentenced. However, applying the principles discussed in Little to this case, there seems no reason why this appellant should not have received a discount of 25 per cent from the head sentence to recognise both his fast track plea of guilty and the other mitigating circumstances.

30 I would therefore reduce the 18 year term, which his Honour thought appropriate "before allowances", by 54 months, or 4-1/2 years, to a term of 13 years and 6 months' imprisonment. If the same figure of 50 per cent for the non-parole period was used, the non-parole period would then become 6 years and 9 months' imprisonment.

31 The second ground argued for the appellant was that no allowance was made for the time which the appellant had spent in custody after he had been detained.

32 It was contended for the respondent that the appellant had been detained in custody because of his illegal status and that therefore it could not be said that, prior to being sentenced, the appellant had, in the terms of s 87(a) of the Sentencing Act 1995 (WA), "... previously spent time in custody in respect of that offence and for no other reason; ....". It was common ground that s 87(a) applied due to the provisions of s 16E of the Crimes Act.

33 Counsel for the respondent said that it was four months from 3 June 2000 when the appellant had been taken into custody to when he was sentenced on 3 October 2000 and; that, subject to his numerous rights of appeal, had the appellant not been charged with the relevant offence, he would have been deported as soon as possible. He had been detained pursuant to s 189 of the Migration Act 1958 (Cth), which section authorised his detention where it was known or reasonably suspected that he was an unlawful "non-citizen". Pursuant to s 196 of that Act, it is provided that such a person must be kept in detention until he is removed from Australia or granted a visa. However, it is provided in s 147 of the Act that:

(a) an unlawful non-citizen is to be, or is likely to be, removed or deported; and

(b) the Attorney General considers that the non-citizen should remain in Australia temporarily for the purposes of:

(i) ...

(ia) ...

(ii) ...

(iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth;

the Attorney General may give a certificate that the stay of the non-citizen's removal or deportation is required for the administration of criminal justice."

34 In this case, a s 147 certificate was issued, which amongst other things stated that the appellant "should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to offences against the laws of the Commonwealth of Australia". That certificate was issued by an officer of the Attorney General's department in Canberra and was dated 16 June 2000.

35 It was contended for the respondent that pursuant to the provisions of s 196 of the Migration Act, the appellant had, until sentence, remained an unlawful citizen in detention because he had not been deported from Australia or granted a visa. It was conceded that he had not been deported because he was being prosecuted but it was contended that his status as an unlawful non-citizen had not changed. He was being detained for two reasons. He had to be detained under s 196 of the Act as an unlawful non-citizen and he was being prosecuted for the relevant offence. It was agreed that he would have been deported, subject to his rights of appeal, but for the fact of the s 147 certificate.

36 It is my view that the s 147 certificate, which was signed on 16 June 2000 and which provided that the appellant should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to offences against the laws of the Commonwealth of Australia, has the effect that under s 87 of the Sentencing Act 1995 (WA) the appellant had spent time in custody since 16 June 2000 in respect of the relevant offence "and for no other reason". Pursuant to s 87 of the

Sentencing Act 1995, a court may then order that a prison term it imposes is to be taken to have begun on a specified day, being the day when that custody began.

37 In all the circumstances, it is my view that the appellant's term of imprisonment should now be ordered to have commenced on 16 June 2000, being the date of the s 147 certificate.

38 For the above reasons, the application for leave to appeal should be granted, the appeal should be allowed, and the sentence of imprisonment which was imposed on the appellant should be varied to one of 13 years and 6 months' imprisonment with a non-parole period of 6 years and 9 months' imprisonment, "to be taken to have begun" on 16 June 2000.

39 ANDERSON J: I have had the advantage of reading in draft the judgment of Wallwork J. I agree that a deduction of 25 per cent should have been given for the fast-track plea of guilty on the basis of the principles discussed in Little v The Queen [2001] WASCA 87. I also agree that the sentence should be taken to have begun on 16 June 2000. I therefore agree with the orders proposed by Wallwork J and have nothing further to add.