Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Turns on own facts

Customs Act 1901 (Cth)

Proceeds of Crime Act 2002 (Cth)

Festus v The Queen [2002] WASCA 25

1 McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted on his own plea of guilty of one count of importing a marketable quantity of a border-controlled drug (methylamphetamine), contrary to s 307.2(1) of the Criminal Code (Cth).

2 The offence related to 692.6 g of methylamphetamine with a purity of 77% (533.3 g of pure methylamphetamine). The drugs were intercepted by authorities in Sydney. An inert substance was substituted for the drugs and forwarded to Perth where it was delivered to the appellant. On 9 September 2010, the appellant was sentenced by Keen DCJ to 11 years' imprisonment.

3 There is one ground of appeal which is in the following terms:

The Sentencing judge erred, or his discretion miscarried, such that the sentence was manifestly excessive in all the circumstances.

Particulars

(a) The Appellant was encouraged or incited by a police informer, acting on behalf of the police, to commit an offence he would not otherwise have committed.

(b) The Appellant was afforded no discount for entrapment;

(c) There was no commercial gain on the part of the Appellant;

(d) The Appellant did not intend to distribute the drugs or act as a dealer;

(e) The Appellant co operated with the authorities, both the Australian Federal Police and the Commonwealth DPP.

(f) The Appellant's early plea of guilty in the circumstances.

4 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on an inference of error from the nature or length of the sentence imposed. In assessing whether a sentence is manifestly excessive regard is had to the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.

5 In mitigation of his sentence, the appellant claimed he was induced or encouraged to commit the offence by an informer or agent provocateur without which he would not have committed the offence. After a trial of the issues, the sentencing judge was not satisfied that the appellant was induced or encouraged to carry out an illegal purpose that he would not otherwise have engaged in. The sentencing judge was satisfied that the appellant took an opportunity that was presented to him and had every opportunity to pull out over the ensuing months but did not do so [71]. The sentencing judge concluded:

I am satisfied that there is no mitigation available to the offender by reason of entrapment [72].

6 There is no challenge to the sentencing judge's findings following the trial of the issues. I see no arguable basis for such a challenge. Thus particulars (a) and (b) are incapable of supporting the claim of manifest excess.

7 The sentencing judge's findings do not support particulars (c) and (d). The appellant arranged for the importation of the drugs from South Africa. The sentencing judge found:

In your case, there is no doubt that with your source in South Africa, you were close to the sources of the drug, particularly so far as its distribution in Australia is concerned. In my view, you must have known of the quantity and purity as you were the importer.

I'm not in a position to determine further on the facts your role in the distribution chain, other than you sourced the drugs from South Africa, and upon receiving them from the undercover officer, were to give them to Mr [Haddad]. On that basis, on your case, your role in the distribution comes to an end.

Nevertheless, given your role in bringing these drugs into the country and given the sheer quantity and the purity and the widespread consequences of distribution when it was to occur, your culpability is high. You were a very important and substantial link in the chain of distribution.

Having said this, I'm not in a position to make any finding against you as to the extent of your commercial involvement. According to you, you only did this transaction in order to secure the job in the jewellery business. I'm not satisfied that that is, in fact, the case but can take the matter no further than that.

8 As appears from the reasons, the sentencing judge declined to make a positive finding that (1) there was no commercial gain on the part of the appellant and; (2) he did not intend to distribute the drugs or act as a dealer. Particulars (c) and (d) cannot support the appellant's claim of manifest excess.

9 The cooperation referred to in (e) is that the appellant consented to the making of an order pursuant to the Proceeds of Crime Act 2002 (Cth) and offered to take the Australian Federal Police (AFP) to Mr Haddad's home upon his arrest. Unbeknown to the appellant, the AFP had used Mr Haddad as an informer to introduce the appellant to an undercover operative.

10 The appellant contends the sentencing judge found there was no cooperation with authorities. I do not agree. The sentencing judge said:

I also have to have regard to the degree to which you have cooperated with the law enforcement agencies. I have to say you haven't. You, as was your right, elected not to make a statement to the police.

11 The second sentence of that paragraph relates to the third sentence. Those two sentences together are intended to convey that the appellant had not made a statement to police, as was his right (in recognition of an accused's right to silence).

12 The final particular relates to the appellant's claimed early plea of guilty. The circumstances are as follows. The appellant first appeared in the Magistrates Court on 27 March 2009 to answer two charges. The first charge was in substantially similar terms to the count on the indictment to which the appellant eventually pleaded guilty. The second related to the inert substance and was a charge of attempting to possess the drugs at Scarborough on 9 November 2008. The sentencing judge correctly in my view, characterised the second charge as, in effect, an alternative to the first charge. There is no challenge to that characterisation. On 8 April 2010 the Crown discontinued the second charge and presented its indictment in the form to which the appellant pleaded guilty on 22 July 2010. That was approximately two weeks prior to the scheduled commencement of the trial.

13 The sentencing judge concluded that the plea of guilty did not occur at the earliest reasonable opportunity. That assessment is correct. It is common in this jurisdiction for pleas of guilty to be entered prior to preparation of the prosecution brief and disclosure of all relevant information. As noted by the sentencing judge, it was open to the appellant to plead to the first charge on the prosecution notice without any prejudice to himself, the second being in substance an alternative charge. The sentencing judge accepted that the Crown initiated the discontinuance

of the second charge which was not the product of negotiations with the appellant. The facts do not support the appellant's claim in particular (f) of an early plea of guilty in the circumstances. The sentencing judge said the plea of guilty could be seen as merely an acceptance of the inevitable and although it came very late it did at least avoid the necessity of a trial and demonstrated some remorse (ts 261B).

14 The appellant was aged 40 at the time of sentencing. He was born in Liberia and raised in very challenging circumstances. He arrived in Australia in 1994. At the time of the pre-sentence report, the appellant had four children and his partner was pregnant with their fifth child.

15 On 10 April 2001, the appellant was convicted of possessing a prohibited import (449.2 g of heroin which was 60.8% pure) in contravention of the Customs Act 1901 (Cth)) for which he was sentenced to 9 years' imprisonment. There was a plea of guilty, limited cooperation and the appellant was a first offender. Leave to appeal against his sentence was refused: Festus v The Queen [2002] WASCA 25. The maximum penalty for the offence committed in 2001 was 25 years, the same maximum penalty for a contravention of s 307.2 of the Criminal Code (Cth). The sentence of 11 years imposed by Keen DCJ is entirely consistent with the earlier disposition when regard is had to the differences in quantity and purity of the imported drugs and his antecedents.

16 Having regard to all relevant sentencing considerations, the appellant has no reasonable prospect of establishing that the sentence of 11 years' imprisonment is manifestly excessive. I would refuse leave to appeal and dismiss the appeal.