DANIAL, Fawzieh Nona v R

CATCHWORDS: CRIMINAL LAW - Sentencing - Commonwealth offence - pre-sentence custody - willingness to facilitate the course of justice - strength of Crown case

Commonwealth Crimes Act LEGISLATION CITED: Commonwealth Criminal Code Act 1995 Crimes (Sentencing Procedure) Act (NSW)

Assafiri v Regina [2007] NSWCCA 122 Cameron v The Queen (2002) 209 CLR 339 R v English [2000] NSWCCA 254 CASES CITED : R v Galati [2003] NSWCCA 148 R v Howard [2001] NSWCCA 309 R v Newman; R v Simpson [2004] 145 A Crim R 361 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Tyler v Regina; R v Chalmers [2007] NSWCCA 247

COUNSEL: M Thangaraj (Appellant) M A Wigney SC (Respondent)

SOLICITORS: Nyman Gibson Stewart (Appellant) Commonwealth Director of Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/2836

McCLELLAN CJ at CL JAMES J BARR J

THURSDAY 31 JANUARY 2008 DANIAL, Fawzieh Nona v R Judgment 1 McCLELLAN CJ at CL: The Court is in a position to give judgment now and I will ask Justice James to deliver the first judgment.

2 JAMES J: Fawzieh Nona Danial has applied for an extension of time in which to apply for leave to appeal and for leave to appeal against a sentence imposed upon her in the District Court on 18 January 2007 by his Honour Judge Geraghty, on a charge of importing a marketable quantity of a border controlled drug, namely heroin, to which she had pleaded guilty.

3 Importing a marketable quantity of a border-controlled drug is an offence under s 307.2 of the Commonwealth Criminal Code Act 1995. Under the Code the marketable quantity for heroin is 2 grams or more and the commercial quantity is 1.5 kilograms or more. The maximum penalty for an offence under s 307.2 is imprisonment for 25 years or 5,000 penalty units or both.

4 The sentence imposed by the sentencing judge was a term of imprisonment of six years commencing on 18 January 2007, the date of sentencing, with a non-parole period of four years.

5 No complaint was made in this application about the statement of the facts of the offence contained in the remarks on sentence of the sentencing judge. This statement was taken almost verbatim from a statement of facts admitted without objection in the proceedings on sentence. What his Honour said in his remarks on sentence, subject to a few omissions of matters which would not appear to me to be material, was:- ""On Friday 24 March 2006 Fawzieh Danial arrived at Sydney Kingsford Airport from Vietnam. She was with her sister and a person by the name of Robert Marko. At about 11 o'clock the Customs officers conducted a frisk search of Danial, locating what was thought to be solid objects near the groin area. Later in the day Danial declined initially to allow a Customs officer to remove the objects and denied that she had anything concealed on her person. When she later consented to an external search, the officer removed two extra pieces of underwear from her person. Within these two pieces were four packages; one of the packages was concealed within the lining of one of the pieces of underwear… The four packages weighed a total gross weight of 239 grams. The contents were later measured by the Australian Government National Measurement Institute to disclose pure heroin of 41-44.2 per cent, giving a total net weight of pure heroin of 94.4 grams. A tape recorded conversation took place early in the afternoon. It is agreed that in the course of this conversation, the offender told the Customs officer that she had been approached at Kentucky Fried Chicken in Vietnam by an Australian and told that, if she took the packages back to Australia, she would be paid $25,000. This, it would seem, had occurred a few days before she left Vietnam. She was told to carry the packages and to wear a particular pink top. The Australian who dealt with her at Vietnam had said that her husband would be outside the Kingsford Smith airport and should give the packages to him, … She told the Customs officer that this was the first time she had done such a thing, and that she had done it to make some money because her husband was a pensioner. When she had been asked to conceal the packages internally on her person, she had refused. She acknowledged that what she had done was "stupid" and "crazy", and that the devil had taken over her. She was described as illiterate and forgetful.""

6 The sentencing judge said that he did not accept an assertion by the applicant made to a customs officer that she did not know what was in the package and, indeed, this assertion would be inconsistent with her plea of guilty.

7 In his remarks on sentence the sentencing judge declined to categorise the applicant as being a courier or as being a principal. His Honour enquired into what the applicant had actually done in the importation and found that she had been:- ""An active and critical player for gain in the importation of a substantial quantity of a prohibited drug."" 8 In his remarks on sentence the sentencing judge commented that the applicant had been arrested on 24 March 2006 and released on bail three days later on 27 March 2006. His Honour said that:- ""In sentencing her I take into account the fact that she has spent three days in custody and she has been reporting each day since her release on bail.""

9 With respect to the applicant's plea of guilty, the sentencing judge said:- ""She pleaded guilty on the first day of the trial, on 9 October 2006. I consider this plea was of some utilitarian value, but it was not entered at the first available opportunity, and it seems, on the evidence before me, that the Crown case was strong. Nevertheless, I do consider the offender is entitled to a reduction in her sentence of approximately fifteen per cent.""

10 Later in his remarks on sentence, the sentencing judge said that he was allowing a deduction of 15 per cent for the "utilitarian value" of the plea of guilty.

11 Subjectively, his Honour noted that the applicant was 59 years old at the time of being sentenced; that she had been born in Iraq; that in 1993 she had migrated to New Zealand and then in 2003 to Australia, where she rejoined some of her children; she was a mother and a grandmother and had no previous criminal convictions. His Honour noted that the applicant had suffered from cancer for which, at the time of being sentenced, she was receiving medication. His Honour noted that the applicant had other adverse medical conditions.

12 Other matters referred to by the sentencing judge in his remarks on sentence included the need for the applicant to be adequately punished for her criminal conduct and the need for the sentence to show general deterrence.

13 His Honour observed that the applicant had shown some limited co-operation with the law enforcement authorities but that she had declined to name the person who had supplied the drugs. His Honour also noted that the applicant was likely to have a difficult time in prison because she does not speak English fluently, she is illiterate, she suffers from medical conditions and she would be much older than most other prisoners.

14 An explanation was given for the failure to lodge an application for leave to appeal against sentence in time, that there had been a delay in counsel for the applicant receiving documents from the District Court and then in receiving a statement of the facts of the offence and the Crown's submissions on sentence which had not been with the District Court file. The Crown did not oppose an extension of time being granted and I consider that this Court should grant the extension of time sought.

15 Before I turn to the grounds of appeal, I should record that at the commencement of the hearing of the application an affidavit by the applicant's solicitor was admitted, without objection. In this affidavit the solicitor said that he had spoken to the applicant. The applicant had advised the solicitor that in December 2007 she had undergone surgery for cancer and was continuing to receive post-operative medical treatment in gaol. The solicitor also recorded that the applicant had told him that her health had seriously deteriorated since she had entered custody.

16 In a further paragraph of the affidavit the solicitor said that the applicant had told the solicitor that she might be prepared to assist the police by providing information about the principal in the importation to which she had pleaded guilty. 17 Counsel for the applicant informed the Court that there had been insufficient time in which to obtain the applicant's medical records. However, counsel for the applicant did not apply for any adjournment of the hearing of this application.

18 The first ground of appeal against sentence was that the sentencing Judge erred in failing to allow for the time served in custody. I have already referred to a part of the sentencing judge's remarks on sentence in which he recorded that the applicant had been arrested on 24 March 2006 and had been released on bail three days later on 27 March 2006 and in which the sentencing judge stated that he was taking into account the fact that the applicant had spent three days in pre-sentence custody.

19 It was submitted on behalf of the applicant that, notwithstanding the sentencing judge's statement that he would take the three days pre-sentence custody into account, the sentence the judge had imposed was for a round figure of six years, and had been made to commence from 18 January 2007, the date of sentencing.

20 It was submitted that it was improbable that the sentencing judge had intended, before taking the pre-sentence custody into account, to impose a sentence of six years three days, so that it was improbable that the sentencing judge had taken the pre-sentence custody into account by deducting it from the sentence which would otherwise have been imposed and that the sentencing judge had not allowed for the pre-sentence custody by back-dating the commencement of the sentence by three days.

21 By virtue of s 16E of the Commonwealth Crimes Act a New South Wales court in sentencing an offender for a Commonwealth offence is required to apply s 24 of the Crimes (Sentencing Procedure) Act (NSW), under which a court must take into account any time for which the offender has been held in custody in relation to the offence, and s 47(3) of the Crimes (Sentencing Procedure) Act under which a court in deciding when a sentence of imprisonment is to commence must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates.

22 It has been held in a number of cases that, in general, where an offender has been in custody before being sentenced in relation to the offence, the sentencing judge should take that pre-sentence custody into account by allowing for it in the sentence imposed, preferably by back dating the commencement of the sentence by the amount of pre-sentence custody, rather than by deducting the amount of the pre-sentence custody from the term of the sentence which would otherwise have been imposed. See, for example, R v English [2000] NSWCCA 254; R v Howard [2001] NSWCCA 309; R v Galati [2003] NSWCCA 148; R v Newman; R v Simpson [2004] 145 A Crim R 361. It has been held that this principle should be applied in sentencing for a Commonwealth offence: Assafiri v Regina [2007] NSWCCA 122.

23 However, although a sentencing judge is required to take any pre-sentence custody into account, it is not mandatory in every case that the sentencing judge take the pre-sentence custody into account, either by back dating the commencement of the sentence by the amount of the pre-sentence custody or by reducing the term of the sentence by the amount of the pre-sentence custody. See English per Giles JA at par 22. 24 The present case is distinguishable on its facts from all of the other cases I have referred to. In the present case there was only a single period of pre-sentence custody, that single period of pre-sentence custody was as short as three days and the sentencing judge stated in his remarks on sentence that he had taken it into account. In my opinion, this Court should not find that there was any error by the sentencing judge. I would, however, emphasize that, in general, where there has been a period of pre-sentence custody that period should be taken into account by back dating the commencement of the sentence by the amount of the pre-sentence custody.

25 The second ground of appeal was that his Honour erred in assessing the discount to be allowed for the plea of guilty by taking into consideration the strength of the Crown case. I have already referred to the parts of the remarks on sentence in which the sentencing judge said that the applicant's plea of guilty was of some utilitarian value but that the plea had not been entered at the first available opportunity and that on the evidence before the sentencing judge the Crown case was strong.

26 It was submitted on behalf of the applicant that the sentencing judge had erred in regarding the strength of the Crown case as being relevant to the amount of the discount which should be allowed for the utilitarian value of the applicant's plea of guilty. 27 It is clearly established that in sentencing an offender for a New South Wales offence the strength of the Crown case against the offender is irrelevant to the determination of any discount for the utilitarian value for the plea of guilty. See R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 415-416 (136-137), and many subsequent cases. 28 However, the applicant was being sentenced, not for a State offence, but for a Commonwealth offence. In sentencing for a Commonwealth offence the appropriate factor to be considered by the sentencing judge is not the utilitarian value of the plea of guilty but the offender's willingness to facilitate the course of justice. See Cameron v The Queen (2002) 209 CLR 339. In assessing the willingness of an offender to facilitate the course of justice the strength of the Crown case against the offender can be a relevant consideration. In Tyler v Regina; R v Chalmers [2007] NSWCCA 247 Simpson J, with the concurrence of the other members of the Court, said at par 114:- ""Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable.""

29 Accordingly, in the present case the sentencing judge erred in referring to the "utilitarian value" of the plea, instead of referring to the willingness of the offender to facilitate the course of justice.

30 However, I consider that in the circumstances of the present case this was merely an error in terminology. I consider it is clear from the remarks on sentence that the sentencing judge was adverting to the kinds of matters which would be relevant to assessing the willingness of the applicant to facilitate the course of justice. In doing so the sentencing judge did not err in having regard to the strength of the Crown case as being a relevant matter.

31 No challenge was made on the application to the amount of the discount allowed by the sentencing judge, that is 15 per cent. One matter of importance was that the plea of guilty had not been made until the first day of the trial. 32 I would reject the second ground of appeal. 33 Having rejected both grounds of appeal, I would dismiss the appeal against sentence. Any deterioration in the applicant's state of health since she was sentenced is not a sufficient ground for this Court itself to enter upon any re-sentencing of the applicant or for this Court to remit a further sentencing of the applicant to the sentencing judge.

34 I would propose the following orders: Grant an extension of time in which to apply for leave to appeal against sentence to the date on which the application for leave to appeal against sentence was filed. Grant leave to appeal against sentence but dismiss the appeal against sentence.

35 McCLELLAN CJ at CL: I agree with the orders proposed by Justice James.

36 His Honour expressed he would have regard to the time she spent in custody. As will always be the case the sentence ultimately imposed requires the sentencing Judge to have regard to many matters. Merely based on the pre sentence custody is not expressly identified in the sentence imposed; does not establish error. 37 BARR J: I agree with Justice James' remarks and with the order his Honour proposes. I agree with the additional remarks of the Chief Judge.

38 McCLELLAN CJ at CL: Accordingly the orders will be as proposed by Justice James.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.