Court of Appeal (WA)|2002-02-18|Before: Malcolm CJ

Festus v The Queen [2002] WASCA 25 (18 February 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FESTUS -v- THE QUEEN [2002] WASCA 25

Criminal law and procedure - Appeal against sentence - Conviction following plea of guilty not on the fast-track system - Whether adequate discount allowed for that plea and for a late offer to co-operate with the authorities - Applicant's offer of co-operation of negligible value

Customs Act 1901 (Cth), s 233B(1)(c)

Financial Transactions Reports Act 1988 (Cth), s 15(1)

Applicant : Unrepresented Criminal Appellants Scheme

Respondent : Commonwealth Director of Public Prosecutions

Ma v The Queen [2001] WASCA 325

Quach v The Queen [1999] WASCA 210

R v Cartwright (1989) 17 NSWLR 243

R v Gallagher (1991) 23 NSWLR 220

R v Perrier (No 2) [1991] VicRp 38; (1991) VR 717

R v Tait and Bartley (1979) 24 ALR 473

Voong v The Queen [2000] WASCA 220

X v The Queen [2000] WASCA 355

1 MALCOLM CJ: In my opinion, this application for leave to appeal against sentence should be refused for the reasons to be published by White AUJ with which I am in complete agreement.

2 WALLWORK J: I agree with the reasons for judgment of White AUJ and to the order proposed by his Honour.

3 WHITE AUJ: The applicant was presented in the District Court being charged firstly with having in his possession, without reasonable excuse, prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied, namely narcotic goods consisting of heroin, being not less than the trafficable quantity applicable to that narcotic substance, which had been imported into Australia in contravention of the said Act, contrary to par 233B(1)(c) of the said Act. Secondly, he was charged with transferring foreign currency, being not less than $10,000 in value, out of Australia, contrary to s 15(1) of the Financial Transactions Reports Act 1988.

4 The applicant pleaded guilty to both charges and was sentenced to a term of 9 years' imprisonment in respect of the offence against the Customs Act and to imprisonment for one year, cumulative, in respect of the offence against the Transactions Reports Act. The applicant was taken into custody on 26 May 2000 and the sentences were ordered to commence on that date.

5 The applicant now seeks leave to appeal against the sentences imposed upon him, on the ground that insufficient discount was allowed by the learned sentencing Judge for his plea of guilty and his offered co-operation with the Police.

6 The background to the offences, the circumstances of the applicant and the reasoning of the learned sentencing Judge appear from the following (edited) extract from his Honour's reasons:

"The nature and circumstances of the offending behaviour were that the first charge deals with possession of not less than a trafficable quantity imported into Australia. The amount of narcotic goods was 449.2 grams of which was 60.8 per cent pure and the gross weight of the pure heroin was thus 273.1 grams. The sale value of the heroin had a potential to yield $144,000 if sold in 1 ounce lots, or $90,000 if sold in bulk, and those figures are as at May 2001.

The second charge involved the transfer of foreign currency of not less than $10,000, an offence under section 15(1) of the Financial Reports Act 1988. The foreign currency was in fact $US69,000 translated in Australia (sic) dollars at that time, $121,566.67. The circumstances in which - the penalties which can be imposed in relation to the offence under the Customs Act, 25 years imprisonment or $110,000 fine or both. In relation to the Financial Transactions Reports Act, 2 years' imprisonment or a $13,200 or both, and as has just been said, you have been in custody since 26 May.

Turning to the material facts in relation to the first offence, which were outlined by the crown and not disputed by your counsel, that charge related to a quantity of heroin which was found inside a tool-box used by you at your place of employment at Milne Feeds Pty Ltd, Welshpool. You have worked there since 1997 ... On 26 May you were arrested by Federal Police and were subsequently remanded in custody. That arrest occurred on your return to Australia from a trip overseas.

...

In relation to the second charge of failing to declare a transfer of currency, on 1 April you were a departing passenger on an international flight to South Africa. As you departed the country you were processed by the Australian Customs Service and in response to a question you said that you were not carrying more than $10,000 cash. The luggage that you were carrying was examined by the Commonwealth authorities in the presence of the Australian Customs Service and inside the luggage was discovered this large quantity of United States currency in dollars which was counted and found to be in US dollars, 69,000, as converted to Australian dollars at the time $121,566.67

... Because of surveillance of you as part of an ongoing major investigation it was determined that it be appropriate to allow you to leave the country and to observe you on your return.

...

... I have already outlined the circumstances of the offences and I will now turn to other factors which I have to take account of, and the first factors I will be looking at are your personal background and circumstances.

You were born in Liberia in June of 1970. You are now 30. You arrived in Australia in 1995 and were penniless and began working, initially in galvanising companies where you had to do very heavy work and clean metals with dangerous solvents. In 1997, as I said, you began work with Milne Feeds as a panel operator and worked there until your leaving for overseas.

You did have some schooling in Liberia and that schooling was only to primary level and you didn't therefore gain any higher qualifications. It's clear from the material that I have read that your early life was of extreme poverty. It was disrupted by death of both of your parents and you were one of two children to your mother although your father had children with other wives and one of your stepbrothers was shot as he was attempting to leave the country, so your life as a young man was one of great hardship and one of considerable personal danger because of the disruption to the orderly proceedings in the country which you were born.

... you were targeted by people who were prepared to pay your expenses to come to Australia in order to gain a hold over you such that they could use you to do their bidding in relation to importation of drugs and later, as we will see, distribution of drugs at your request.

After arriving in Australia you developed this relationship with your wife and she has recently, after your arrest, become the mother of your child and the fact that you were not with your wife at that time is of great distress to you ...

Although you were brought up in a traditional religion, since your remand in custody you have turned to Christianity of a fundamentalist nature. ...

The fact that your sister is still in Africa is also a cause of concern because leverage has been made of her safety in order to enforce your co-operation, and I am told also that after you came to Western Australia you were physically assaulted, yourself, by an associate of the people running the syndicate. ...

... I am told that you don't have any prior convictions in Western Australia or elsewhere ... It is also to your credit that since your time in custody you have done courses to improve your skills.

...

... One factor that I'm also asked to take into consideration by the legislation is whether these offences can be seen as part of a course of conduct, and I think from the material before they can be seen as such, although you're only being punished for the particular offence.

Why it can be seen as part of a continuing course of conduct is that, because of the debt that you incurred to the people who helped you to migrate to Australia, initially as an illegal immigrant and then as a person granted refugee status and allowed to stay, they had this hold over you and made you their pawn by making threats on your life and well-being and also the fact that they knew of the existence of your sister and threatened her as well was of great concern to you. That's why you co-operated in the heroin trade rather than going to the authorities and reporting these matters.

Nobody can say what the source of the heroin was in your tool-box and where it was imported, but it's clear from your own admissions that you participated in the trade of heroin as a method of repaying the substantial debt you had incurred when you were offered assistance to come to Australia, and that is clearly set out in what you told the writer of the pre-sentence report. Initially the manner of repayment was to be by way of co-operation in transferring money, for which you would receive a commission, but that would have meant that you would be under the control of these people for a very long time in order to earn enough commissions to pay the debt off, and you asked to sell heroin as a means of repaying the debt more quickly, and that's why you were in possession of the heroin in the tool-box.

So it is clear that you had been prepared to be part of the heroin trade in Australia ...

...

It's accepted that your plea of guilty and offer of co-operation show that you're very sorry for what you have done and are becoming aware of the effects of your conduct. Although the case against you was a strong case as a result of the surveillance and the intelligence which was available against you you're still nevertheless entitled to a discount for your pleas of guilty to these two offences which has meant that the community hasn't had to bear the additional expense of a trial. The plea of guilty was realistically entered at the earliest available opportunity.

Another factor I can take account of and your counsel last week asked me to take account of is your co-operation with the authorities. I have read material which has been put before me from the Australian Federal Police and it's clear from the authorities that substantial discounts can be given to encourage people to give assistance to the police in detecting importations and to break-up drug rings. However, the extent of the discount depends on the quality and the quantity of information which is provided to the authorities. In your case the Australian Federal Police from their own intelligence operations had much of the information that you were able to give them. The people you named were apparently already known to them and in the report that I've read it's stated that the information you provided was negligible. However, it was also stated that you were willing to be interviewed by South African authorities if that opportunity arose.

... I accept that you told the authorities what you know but the information hasn't been of much assistance to them as most of it was already known. However, some relatively small discount should be given to you for your willingness to co-operate and for the confirmation that you provided.

It's also noted that the information wasn't offered at the earliest stage. Maybe that's not your fault because of legal advice you initially received, but by February when the information was given by you to the authorities the trail was well and truly cold as you had been in custody - February this year - because you had been in custody since May last year, and any information that you could have given the authorities would have been stale and those about whom you were talking would have had an opportunity to distance themselves from investigations.

...

I think that prospects of rehabilitation for you are good and I say that because of the continued support of your wife and friends and of the church and the fact that you are using your time in custody productively to gain skills which will assist you on your release, and you should continue to do whatever you can in that regard.

...

... You are to be sentenced as a person who was in possession of more than 135 times the trafficable amount of imported heroin for the purpose related to the sale or commercial dealing in the heroin ...

Also, you are to be sentenced as a person who was transferring a considerable amount of US currency out of the country. I have determined that no sentence other than imprisonment is appropriate in all the circumstances of the case and there is no alternative to a sentence of imprisonment because of the serious nature of the first offence in particular and the need for general deterrence, and personal circumstances, as I said, can count little in this type of offending behaviour.

In my view the starting point for the first charge is 12 years' imprisonment. That should be discounted to 9 years to reflect your plea of guilty and the offer of co-operation. The major discount, of course, is for the plea rather than the co-operation, for the reasons I have already mentioned. In relation to the second count, I impose a cumulative sentence of 1 year, taking again into account your plea of guilty... In relation to fixing a minimum term, I fix a minimum term of 5 year's imprisonment to be served before you are released."

7 In her written submissions on behalf of the applicant, Ms Farley referred to the general acceptance that a discount of between 25 per cent and 35 per cent should be given for a plea of guilty, referring to Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 Little v The Queen [2001] WASCA 87, and McKeagg v The Queen [2001] WASCA 99. In Radebe v The Queen [2001] WASCA 254, it was said that the circumstances would have to be unusual for the Court to give less than a 25 per cent discount for a fast-track plea of guilty. In McKeagg, a case of an early guilty plea, not on the fast-track system, Malcolm CJ (with whom Kennedy and Steytler JJ agreed) said, at par 29: "In the result however, the discount for the plea of guilty was less than 15 per cent, when discounts in the order of 20 to 30 per cent or even more are commonly given for an early plea."

8 In that case, the Court allowed, in fact, a discount of 25 per cent.

9 Each of the cases of Stretton, Little and Radebe was a case involving a fast-track guilty plea, as opposed to an early guilty plea not on the fast-track system.

10 As I understand it, there is a significant difference between a fast-track guilty plea and an early guilty plea. A fast-track plea of guilty in Western Australia arises under the provisions of s 100 and s 101 of the Justices Act whereby after a person is apprehended by police and charged, s 100 provides that the prosecutor may provide to the defendant a statement of material fact, a copy of any signed confession and the record of interview with the police. The defendant is then told by the justices under s 101 of the Act that he may plead guilty upon which he will be remitted to this Court or the District Court for sentence. On the fast-track system a defendant then pleads to an indictment which is filed in this Court or in the District Court. The statement of material facts sets out the facts upon which he will be sentenced, and a video record of interview or any other confessional material is the only other evidence to which the Court is normally to have regard. There is therefore a significant saving to the police service at least in relation to the fast-track plea of guilty because no depositions need to be prepared.

11 It is true, as Ms Farley submits, that a discount is given for a plea of guilty entered at an early date, even if it is not a plea on the fast-track. However, the fast-track system has been put in place for an important reason of policy and I am of the opinion that it is necessary to retain a distinction between a plea on the fast-track and a guilty plea made later. In both cases, a discount will normally be made in favour of the defendant, but the former will, in my opinion, normally attract a larger discount than the latter.

12 Accordingly, in my opinion, the above-quoted remarks in Radebe in relation to a 25 per cent discount for a fast-track guilty plea are not strictly applicable to the present appeal. The learned sentencing Judge gave a discount of 25 per cent in relation to the sentence on the Customs Act offence. His Honour did not expressly specify a starting point in relation to the currency offence. The amount exported, being in excess of AUD$120,000, was substantial. If one assumes that his Honour allowed a 25 per cent discount in respect of the sentence on this count also, the starting point would have been a term of 16 months. The maximum penalty for the offence in question is imprisonment for 2 years. In all the circumstances, I would not regard a sentence of 16 months' imprisonment as an inappropriate starting point in the case of this applicant.

13 The applicant's offer of assistance to the authorities was of negligible value. Ms Farley submitted that the applicant should be given the benefit of his offer of assistance as he would not have been aware of the extent of the knowledge already possessed by the police. His Honour dealt with this issue in his sentencing remarks and I have quoted above the relevant passage. Inter alia, his Honour pointed to the fact that the information was not given at the earliest stage so that the "trail was well and truly cold" and "any information that [the applicant] could have given the authorities would have been stale". In my opinion, his Honour did not err in his assessment of the position.

14 Moreover, a factor which his Honour does not mention but which seems to me to be of some significance is that the applicant did not offer to give any information in respect of the Australian members of the drug organisation who had been involved in the offences and had, as he alleged, assaulted and threatened him.

15 In my opinion, the applicant has not demonstrated any error on the part of the learned sentencing Judge and I would refuse his application for leave to appeal against the sentences imposed upon him.

Transactions Reports Act 1988

Festus v The Queen [2002] WASCA 25

At a glance

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Judgment (36 paragraphs)

Festus v The Queen [2002] WASCA 25 (18 February 2002)

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Legislation Cited (2)

Cases Cited (3)