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[2005] VSCA 116
Court of Appeal (Vic)
2005-05-05
WINNEKE, P., BYRNE and OSBORN, A.JJ.A.
Original judgment source is linked above.
Criminal law - Sentencing - Director's appeal - Importation of large commercial quantity of "ecstasy" - Respondent's role to "clear drugs" through Customs - Sentence of 51/2 years with minimum of 31/4 years manifestly inadequate - Substituted penalty of 71/2 years with minimum of 5 years.
1 The respondent Inbar is an Israeli citizen who was one of a number of people involved, in February 2004, in the importation of a commercial quantity of narcotics into this country contrary to s.233B of the (Cth). The imported drug in this case was "ecstasy", comprised in a number of tablets, and was shipped from Rotterdam on board the "P. & O. Nedlloyd" which arrived in Melbourne on 16 February 2004. The Australian Federal Police had advance knowledge of the importation and intercepted the drugs, which were contained within wooden frames of two crates, each of which encased some form of chandelier. The two crates were in what is known as a "consolidated container" being carried by the ship. Police recovered from these crates 72 plastic bags containing ecstasy tablets which had a total weight of 33.930 kilograms, with an average purity of 56.2%, giving a total weight of pure MDMA in excess of 19 kilograms. This amount is nearly 40 times the commercial quantity which the legislation prescribes and, so we were told, is the third largest apprehended haul of this type of narcotic imported into this country. The police recovered these drugs and replaced them with what they call "inert substances", thereby permitting the crates to return to circulation with a view in mind of identifying as many of those involved in the operation as they could.
2 The police were aware of the respondent's part in the operation before the container arrived. Thus, on 12 February 2004, they had commenced a lawful interception of telephone calls made to his mobile telephone service. Between 12 February 2004 and 25 February 2004, police intercepted some twelve telephone conversations and five SMS messages between the respondent and his Israeli controller in Thailand which were concerned with the clearance of the contraband from Customs and delivery into the possession of the respondent. The police also intercepted calls to and from the respondent and the freight-forwarding agents concerned to advance clearance of the crates. The respondent was also heard to make arrangements with his associate in Thailand for the transference of funds for payment of the Customs charges. The arrangements made by the respondent for the clearance were made under the alias of "Guy Even". The arrangements which he made were to achieve delivery of the crates to premises in 20 Heatherbrae Road, Glenhuntly, which we were told was a backpacker establishment for Israeli travellers; and at which the respondent had, at one time, been living.
3 The crates containing what the respondent and his associates believed was a large quantity of illicit drugs were delivered to those premises on 25 February 2004. On that day he transferred the crates by van to premises where he was then living at 4 Imperial Avenue, Caulfield. Over the ensuing two weeks the Australian Federal Police intercepted a further eight telephone calls and two SMS messages to and from the respondent and the unknown Israeli in Thailand and a further five calls between the respondent and a co-accused, Sweid, relating to arrangements for the collection of the crates.
4 Further observations resulted in the detection of three further co-accused; a Mr Smilevich, a Mr Larossa and a Mr Reuben, each of whom was involved in the supervision and collection of the crates.
5 The police conducted their raids on 10 March 2004 and arrested the respondent and all other named persons; save and except the unknown controller in Thailand. Larossa and Reuben were intercepted as they were in the process of departing the country.
6 The value of the drugs intercepted was estimated to be in excess of $A6.3 million in bulk form and between $A10 million and $A17 million if retailed as tablets.
7 The respondent was interviewed by the Australian Federal Police on 11 March 2004 through a Hebrew interpreter. He admitted his identity as Alon Inbar, and that he was an Israeli citizen. He said he was in Australia as a visitor to "travel and surf", that he was resident in the house at Imperial Avenue; and had previously resided at Heatherbrae Street. Otherwise he declined to answer questions.
8 When the Australian Federal Police searched his premises during the raid on 10 March 2004, they located in his bedroom 56.7 grams (or 28.8 pure grams) of MDMA in powder form and tablets of LSD weighing 0.12 grams. These were the subjects of counts 2 and 3 on the indictment. The sentencing judge found in respect of those substances that they were for personal use of the respondent.
9 The respondent was charged with aiding and abetting the importation of prohibited imports contrary to s.233B(1)(b) of the Act (count 1); possession of a prohibited import reasonably suspected of having been imported (the powder - count 2) and possession of a prohibited import (the LSD - count 3). Count 1, in circumstances where it is proved that the quantity of proscribed drug imported exceeds the commercial quantity, carries a maximum penalty of "life imprisonment" (see s.235 of the Customs Act).
10 On 9 November 2004, the respondent was sentenced by the judge in the County Court as follows:
Count 1: 51/2 years' imprisonment
Count 2: 12 months' imprisonment
Count 3: 7 days' imprisonment
His Honour ordered that each sentence should commence on 9 November 2004 (the date of sentencing), which made all sentences concurrent. The total effective sentence was therefore one of 51/2 years, and his Honour directed the respondent to serve a non-parole period of 3 years and 3 months. He declared that the respondent had already served pre-sentence detention of 245 days.
11 The Director's appeal is directed to the sentence imposed on count 1, on the ground that such sentence was manifestly inadequate; although some of the particulars of ground 2 challenge some of his Honour's findings of fact.
12 There was no contest on the plea hearing that the respondent was a young man, 23 years of age then, of otherwise good character, and who had no previous criminal record. It appears that he served with the Israeli Army forces for a period of three years, before mid-2002, as a paratrooper; apparently thereby following in his father's former footsteps. It would seem, however, that at the time of his discharge from the forces he was using drugs and thus had become somewhat unpredictable in his habits. In late 2002 he went to Thailand for some two to three months and lived a life of "party and drugs". In March 2003 he returned to Israel, where he worked for his father for about two months, and then returned to Thailand in May. There he was joined by his girlfriend in October of 2003, and together they came to Melbourne on 12 November 2003. It was accepted by his Honour that by that time the respondent was heavily addicted to drugs, a habit which apparently was not tolerated by his girlfriend, who returned to Israel in January 2004.
13 The Crown conceded before his Honour that the respondent was not a principal in the drug importation but adopted what is called a "critical role" in clearing the shipment of drugs through Customs; and for that purpose using false identities and false documentation. His reward for that role was to be the Israeli equivalent of $A7,000, apparently to be paid by the Thai connection, who was never known to the police because the respondent was not prepared to "talk" when apprehended. As it turned out, the respondent did not receive his payment.
14 It was put to the sentencing judge that the respondent's role in the importation was "opportunistic" in the sense that he was at a low ebb financially and health-wise when he received a call "out of the blue" from Thailand in January 2004, offering him $7,000 to clear a shipment through Customs. His Honour appears to have accepted (on what seems to me to be a flimsy basis) that this call came from a man whom the respondent never knew, who apparently was sufficiently astute to understand that the respondent was "running out of money". According to Mr Grace (who appeared for the respondent both before the sentencing judge and in this Court), the respondent had no definite knowledge of what was in the crates, although it was apparent from the evidence that he was aware that it was likely to be narcotics, but what sort and in what quantity he did not know. One thing, however, is clear, and that is that the respondent was conscripted before the shipment arrived in the country.
15 In the course of his sentencing remarks, his Honour described the respondent's role in this operation in the following terms:
"4. Your role was to arrange the clearance of the crates through Customs and to take delivery of them at your then place of residence at 20 Heatherbrae Road, Glenhuntly which was a private residence operated as a backpacker facility for young Israeli tourists. The crates would be collected from that address by the true consignees, i.e. the drug principals. It is not alleged that you were yourself a principal. In other words, it is not alleged that you instigated the importation, or that you were to be involved in the sale of or distribution of the drugs within Australia. You did not even have the $1,500 needed to pay the import agents/freight handlers. You had to obtain it from your handler. It is not alleged that you knew the quantity of drug secreted in the crates, or that you even knew what kind of narcotic it was.
5. You have admitted by your plea that you were aware that the containers probably contained a narcotic or narcotics. In my view, you knew this to be highly probable. This is the basis on which the plea was put by your counsel, namely that you were reckless as to the fact that the crates contained narcotics, and as to the type, and as to the quantity."
In further describing the respondent's role and his participation in this operation, and his reasons for becoming involved in it, his Honour said:
"10. Your activities in Melbourne continued to revolve around drug taking and led to your involvement in this transaction. You were running out of money and, for that reason, you were targeted as a person who could become the agent of the drug dealers.
11. It was put on your behalf that you were significantly drug affected at the time of your participation in this transaction and that the lifestyle you were leading caused you to behave irrationally and uncharacteristically. I accept that this may have been so, but it provides no excuse. You were living a lifestyle you had chosen. You entered this country with the intention of pursuing that lifestyle. When you ran out of money you assisted others to bring drugs into the country. As a general proposition, drug takers cannot rely on their drug taking in mitigation of their criminal activities. On the other hand, you behaved with such reckless indifference to the risks you were running that your actions can probably be viewed as an aberration. You used your own name and your own telephone number. You had the crates delivered to an address at which you were staying and took no steps to conceal them or to disguise your connection with them whilst they awaited collection by the drug dealers. You took no interest in their contents.
12. International drug dealers are adept at selecting young people to undertake the riskiest parts of drug operations. Often the young person is given the role of courier. Yours was an analogous role. Someone had to identify himself, or herself, as the consignee of the goods, deal with customs authorities and take delivery of the crates. International drug dealers rarely take risks of that kind. They select people like you to do it for them and wait until it is safe for them to ply their evil trade.
13. On the other hand, you are a person whom Mr Cummins describes as of above average intelligence. You had spent three years in the army where you demonstrated leadership skills. You had travelled in Asia. You were worldly enough to know that you were assisting in a highly illegal operation and that you would face heavy punishment if you were caught. You must also have been aware, having regard to all the circumstances, that this importation was likely to be reasonably substantial."
16 His Honour then referred to a passage in the joint judgment of Wong v. The Queen[1] (a case mainly concerned, I think, with the utility of "guideline judgments"). The passage to which his Honour referred was contained in paragraph [18] of his reasons for sentence and was as follows:
"It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported ... .
It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders."
"19. Although you cannot be fixed with knowledge of the very substantial quantity of Ecstasy in the crates, a person who is recklessly indifferent to the consequences of his unlawful conduct, as you were, cannot expect to be punished in complete disregard of those consequences. If you drive your car recklessly and kill another driver, your punishment will be more severe than it would be if the driver of the other car miraculously managed to avoid you. You facilitated the importation of a very substantial quantity of narcotics, capable of inflicting a great deal of harm to the youth of this country. You must accept responsibility, and punishment, for the foreseeable consequences of your behaviour, such punishment to be appropriately modified having regard to your actual role.
20. You made a "no comment" record of interview. You have declined to assist law enforcement authorities. Because of the nature of your role, the assistance you could have provided in any event might have been limited. Further, I think it likely that you declined to assist because of fear of the consequences. The fact that you have made no statement and have declined to assist does not aggravate your offence or increase the penalty which would otherwise have been imposed, but nor can you be given the sentencing discount which is often given to those who make full and frank admissions and who co-operate with law enforcement authorities."
17 His Honour said that he accepted that the "incarceration in a foreign land", far from one's homeland and family, is "particularly harsh"; and that that was a factor that he would "take into account". He also noted that the respondent's prospects of rehabilitation were "excellent" and finally his Honour concluded:
"26. Much is written and said about what should or might be done to address the scourge of drug abuse in this country and, indeed, in many other countries, but no-one ever suggests that the penalties for drug trafficking, particularly international drug trafficking, should be eased. The message to those who are minded to bring drugs into this country must be crystal clear, even if you are merely a courier or some other form of mere functionary, you can expect to be dealt with sternly. It must not be thought that Australian courts are a soft touch. That would send altogether the wrong message to the international drug community."
18 On the hearing of this appeal, Mr Lane, who appeared on behalf of the Director of Public Prosecutions for the Commonwealth, submitted that his Honour's sentence did not match the rhetoric to which I have just referred. He submitted that this was a case in which this Court should interfere with the sentence; notwithstanding the principles of "double jeopardy" which apply to Crown appeals. This sentence of five-and-a-half years with a non-parole period of three-and-a-quarter years was, so he contended, so low as to shock the public conscience.
19 This was, he contended, a deliberate and conscious act of aiding and abetting a large importation of narcotics for reward. The fact that the respondent did not know the quantity of drugs is no excuse. He simply took the risk. Mr Lane further submitted that his Honour was in error in under-stating the respondent's offending by concluding, in paragraph [11], that he was behaving irrationally and with reckless indifference to the risks; and that therefore his actions could "probably be viewed as an aberration". This view of the conduct, said Mr Lane, cannot stand alongside the role which the respondent in fact played, which displayed initiative, a degree of cunning and considerable nerve. The respondent was no fool, it was submitted. He might have been in a phase of life where he was ingesting drugs and taking risks accordingly, but he was a man of intelligence who would have well appreciated the risks that he was running.
20 On the other hand, Mr Grace, on behalf of the respondent, submitted that the sentence of five-and-a-half years' imprisonment was not so low as to be regarded as outside the range available to his Honour in punishing this crime; and certainly not so low as to warrant the Court's interference with such a sentence on a Director's appeal, where the principles of double jeopardy must be applied. He placed emphasis on the fact that this man was an aider and abettor and not a principal. This was a case, he submitted, where his Honour was entitled to have regard to the principles explained in Wong v. The Queen to which I have already referred. The respondent's role, he said, might have been significant in the eyes of the controllers of the operation, but not so when looked at through the eyes of the offender himself. Once these drugs had been delivered, they were left standing in the yard of a backpackers establishment for a period of two weeks; whilst he was taking no real interest in their welfare. The judge, it was submitted, was entitled to give him a substantial discount for his plea, his prior good record and his general background. Five-and-a-half years' imprisonment, it was said, was a severe punishment for a 23-year-old foreign national.
21 I think both counsel recognised that whether a sentence is to be characterised as manifestly excessive or manifestly inadequate is not something which admits of a great deal of argument. It will depend on the Court's intuitive reaction to the sentence, matched against the nature of the offending and the penalties which the legislature has prescribed for it; - in this case, life imprisonment as a maximum. Care has to be taken in Crown appeals because principles of double jeopardy must remain firmly in the mind of the Court, having regard to the unfairness involved in having the prisoner stand for a second time for sentence.
22 Bearing these matters in mind, I myself am of the view that the sentence of the judge is so low, in the context of this offending, as to be properly described as manifestly inadequate. His Honour was right to say that no one has suggested that penalties for drug trafficking should be eased - particularly international drug trafficking. He was also correct to say that the message to those who are minded to bring drugs into this country should be "crystal clear", and that even if you are merely a courier or some other form of mere functionary, you can expect to be dealt with severely.
23 This rhetoric in my view, and as Mr Lane submitted, was not matched by the sentence which was here imposed. True it is that the respondent is not a principal, but the role he played was a very significant one; and one which - like the courier - is vital to the aspirations harboured by his controllers. It has often been said that drug trafficking across international boundaries can only flourish if you have those who are prepared to carry them, even though for moderate reward. Experience in these courts shows us that couriers and others in similar capacities are people generally of good character and who take the risks which they do take for little reward. I refer, for example, to R. v. Carey[2]. Equally, experience tells us that these people frequently are kept in the dark by their principals about the nature and quantity of the drugs that they are carrying: see, for example, Carey[3] and Perrier and Richardson[4]. The same can be said in respect of the role played out by this respondent. It should not need to be said again by this Court that all those who play significant roles in bringing harmful drugs into this country can expect to receive condign punishment if caught; and particularly if - when caught - they do not co-operate with police. Although the respondent did not know the nature and quantity of the drugs the importation of which he was facilitating, he took the risk of aiding the importation of a huge amount which, if it had been circulated, would have inflicted real and lasting harm upon the community. It is my view that his conduct warranted a penalty in the order of nine to ten years; and similar penalties have been inflicted upon couriers for importing commercial quantities of this and other types of narcotics. I refer in particular to Carey[5], particularly at p.19; R. v. Su[6] and Perrier and Richardson[7]. The penalty which his Honour imposed, in my view, seriously under-estimated the part which the principles of general deterrence must play in inflicting penalties for this type of offence upon persons who play significant roles in the importation of large quantities of drugs and who do not co-operate when apprehended. I take the opportunity to remind judges who are dealing with couriers from other countries of what was said by Fullagar, J. in Perrier and Richardson[8] at page 170. His Honour said:
1 "Parliament has indicated the clear legislative intention that severe sentences be imposed for offences of this type. Bearing in mind that policy and the general level of sentence imposed for such offences, I consider that an appropriate level of sentence for this courier, if he had not co-operated with the police, would be of the order of 15 years' imprisonment. In reaching that conclusion, I have regarded as extenuating circumstances the respondent's previous good character and his impecuniosity and the fact that the sentence will be served in a country not his own."
It must be remembered that, when those comments were made, remissions applied, so that the 15 years which his Honour mentioned would translate in current terms to 10 years. Bearing in mind, however, the principles of double jeopardy to which I have referred and which this Court must apply in an appeal of this nature, I would impose, in substitution for the one imposed by his Honour, a sentence of seven-and-a-half years and direct the respondent to serve a period of five years of that sentence before he becomes eligible for parole. Of that sentence I would declare that he has already served a period of 422 days.
24 I concur with the judgment of the President and agree with the conclusions that he proposes.
26 The formal orders of the Court are as follows:
The appeal is allowed.
The sentence on count 1 is set aside. In lieu of the sentence of 51/2 years imposed by his Honour on that count, the Court substitutes a sentence of 7 years and 6 months. Otherwise the sentences on counts 2 and 3 will remain.
All the sentences will be ordered to commence on the day on which they were ordered to be commenced by his Honour, that is, 9 November 2004.
The Court orders that the respondent serve a period of 5 years of that sentence before becoming eligible for parole.
The Court declares pursuant to s.18 of the Sentencing Act that the respondent has already served a period of 422 days of the sentence which we have imposed.
[1] [2001] HCA 64; (1995) 207 C.L.R. 584 at 609.
[3] Supra.
[4] [1991] VicRp 38; (1990) 59 A.Crim.R. 164.
[5] Supra.
[7] Supra.
[8] Supra.
DPP (Cth)
Inbar [2005] VSCA 116