Customs Act 1901 s 233B(1)(ca)

Respondent : Commonwealth Director of Public Prosecutions

Bailey v The Queen (1988) 35 A Crim R 458

Eliasen v The Queen (1991) 53 A Crim R 391

Lam v The Queen (1991) 53 A Crim R 118

Langridge v R (1996) 17 WAR 346

Laurentiu and Becheru v The Queen (1992) 63 A Crim R 402

R v Calabria (1982) 31 SASR 423

R v Foster and D'Anna (1992) 59 A Crim R 14

R v Smith (1987) 44 SASR 587

R v Wong (1995) 16 WAR 219

Salisbury v The Queen (1994) 12 WAR 452

Thiagarajah v The Queen (1989) 41 A Crim R 45

1 IPP J: I have read the reasons to be published by Heenan J. I agree with them and his Honour's conclusions. I have nothing further to add.

2 WHITE J: I have had the advantage of reading in draft the reasons to be published by Heenan J. I am in agreement with those reasons and have nothing further to add.

3 HEENAN J: On 30 April 1999 in the District Court at Perth his Honour Judge Blaxell sentenced the applicant to eight years imprisonment, with a non-parole period of four and a half years, in respect of an indictment containing four counts. In the first count the applicant had been charged with possession of heroin reasonably suspected of having been imported into Australia, and being not less than the trafficable quantity, contrary to the Customs Act 1901 s 233B(1)(ca). Each of the other three counts - two of possessing amounts of money and one of disposing of an amount of money reasonably suspected of being proceeds of crime - related to an offence against the Proceeds of Crime Act 1987 s 82(1).

4 The applicant was born in Italy 33 years ago. He has been a heroin addict since the age of 14. In or about 1986 he acquired the HIV virus from needle use. Since then he has maintained reasonably good health but, because of a significantly lessened antibody count, he is particularly vulnerable to serious illnesses. In about 1994, when he was 28 or 29 years old, he left Italy for the first time and went to Thailand. He resided there until shortly before his arrest on the charges in question.

5 On 23 October 1997 the applicant flew from Bangkok to Perth. Upon his arrival at the Perth International Airport customs officers searched his baggage. They found banknotes of $200 in Australian currency and $200 in US currency. On the afternoon of 24 October the applicant checked into a motel in Osborne Park, using a false name. On 25 October he purchased Australian travellers cheques worth $6,250 from an American Express office in Hay Street Perth. On 27 October he purchased travellers cheques to a value of US $6,100 from a bank in St George's Terrace, Perth and transferred $8,000 telegraphically from another bank in St George's Terrace to a man in Thailand by a way of a bank in Bangkok. Then he went to yet a third bank in St George's Terrace and converted an amount of $8,900 in $50 notes to travellers cheques. On that same evening police officers went to his room at the motel, forced their way in and found him in the bathroom area near the toilet bowl. There were 16 small white pellets on the floor and the remains of a further six in the toilet bowl. The pellets later were found to comprise 61.6 grams of heroin, between 57 and 75 per cent pure. In the room there were also a roll of cling wrap, a set of electronic scales, $3,760.25 in cash, travellers cheques to a value of $12,200 and further travellers cheques to a value of US $6,100. At about 1.25 am on 28 October 1997 at Royal Perth Hospital x-ray examination showed that the applicant was carrying two cylindrical objects within his body. The objects were recovered later and were found to contain 76 grams of heroin, 72.5 per cent pure. The total quantity of pure heroin found in the motel room and recovered from the applicant's body amounted to a little more than 98 grams.

6 To the police who interviewed him the applicant said that he had a habit of using 5 grams of heroin per day and asserted that he had come to Perth to buy the drug. He said that the heroin sold here does not contain the impurities and chemicals commonly found in that which is sold in Thailand. He asserted that after he arrived he had purchased the heroin for $7,000 or $8,000.

7 In the course of his sentencing remarks Blaxell J said:

"You have maintained these assertions through your counsel before me in court but I have no hesitation in rejecting them. In this regard I accept the evidence of experienced police officers that at the material time the heroin you claim to have purchased in Perth would have cost approximately $60,000 according to the market prices that then prevailed in Perth. That same heroin would have cost only $5700 in Thailand.

It is simply not possible to credit the explanation that you were able to acquire the heroin in Perth for less than one-seventh of its market price. It also defies logic that you would be willing to expend money on airfares and accommodation in order to travel to Perth so that you could acquire heroin at a significantly higher price.

There is also the matter of the large sums in cash in Australian currency that you were able to produce within days of your arrival in Perth. You claim that these were the proceeds of a theft from your partner in Thailand. However, you have not condescended to any details of that claim or as to the nature of the business which you were conducting with your partner in Thailand. Neither have you explained how you were able to get the money through customs when you arrived at Perth airport.

I find that the explanation you have given in that regard is inherently improbable. Furthermore, I have regard to the provisions of section 235 subsection (3)(b) of the Customs Act which, effectively, place an onus on you to prove that you did not possess the heroin for any purposes of sale or other commercial dealing in the heroin.

You have made no attempt to discharge that onus and in the end even your counsel has accepted that I probably have to come to the finding that I now make. That finding is that you were in possession of the heroin for purposes of sale or other commercial dealing with the sale. Only you know the true nature of your involvement with the heroin and I'm unable to make any further detailed findings of fact. I'm unable to even determine whether you in fact were the person who imported the heroin. However, given the proximity of the financial transactions and the high purity and relatively large quantity of the heroin, I am satisfied that you were either the importer of the heroin or were very close to the person or persons who did in fact import it.

I nevertheless accept that you yourself were a heroin addict at the time and that that was probably a factor which contributed to your offending. However, it is clear that your addiction was not your main motivating factor and by the very scale of the transactions in which you were involved, you obviously stood to make considerable personal gain."

After commenting that the applicant appeared to be physically fit and in good health, and noting that because of issues arising from his HIV infection he had sought protective custody while in prison and that he had no previous convictions in Australia, his Honour said that, because of the terrible damage being inflicted on our community by the drug trade and the difficulty in detecting offences of this type, there is a need to impose "consistently tough sentences" on those involved in the trade in order to deter potential traffickers. His Honour then observed that the decision of this Court in R v Cottrell (1989) 42 A Crim R 31 suggested that the appropriate penalty for possession of heroin in this case "would fall within the range of 7 to 10 years imprisonment". In relation to the offence the subject of the other three counts in the indictment, for which the maximum penalty is two year's imprisonment, his Honour expressed his view that "the only reasonable inference is that the moneys involved in the three transactions were proceeds arising from the importation of heroin" and added that, because he considered them to be related offences, he intended to make them concurrent with each other. Having said that he considered a term of eight and a half years imprisonment to be the appropriate starting point for possession of the heroin, his Honour went on to say:

"You are entitled to a discount for your plea of guilty but this plea has come very late and was made in light of an exceptionally strong Crown case. Furthermore, you have not at any time admitted the true facts of the offences, nor have you co-operated in any way with the police. In these circumstances I intend to allow a discount of 6 months resulting in a sentence on count 1 of 8 years imprisonment.

In respect of each of counts 3, 4 and 5 you will be sentenced to 15 months' imprisonment, which terms will be concurrent with each other and with the term of count 1. That means that you are sentenced to a total of 8 years imprisonment and I direct that all sentences are to be backdated to the date of your arrest on 27 October 1997. I also direct that you are to serve a non-parole period of 4½ years imprisonment."

8 Now the applicant seeks leave to appeal against the sentence on the following grounds:

"1. The learned Sentencing Judge erred in finding that the Applicant had imported the heroin, or was close to the person who had imported the heroin, into Western Australia.

2. The learned Sentencing Judge erred in finding that the appropriate sentencing range on Count 1 was between 7 and 10 years imprisonment.

3. The learned Sentencing Judge failed to give sufficient weight in mitigation of sentence to the Applicant suffering from Human Immunodeficiency Virus ("HIV").

4. In all the circumstances the sentence is manifestly excessive."

9 Clearly, his Honour was justified in finding that the applicant did not come into this country to buy heroin. Again, the quantity and value of the drug found in his possession and his concealment of a substantial part of it within his body show that it was not simply for his own use: he had it for sale or to assist in its sale. The fact that it was a relatively large quantity of heroin of high purity shows either that he imported it or that he obtained it from some person or persons much higher up the scale than a street dealer. His possession of about $25,000 in cash and travellers cheques when he was arrested and his disposal of another $8,000 earlier that day point inevitably to the inference that before he left Thailand arrangements had been made for him to contact a dealer or dealers in Perth with access to substantial amounts of money. The circumstances clearly show that the applicant was very close to persons who traded in the drug internationally.

10 In my opinion Blaxell J was entitled to find, as he did, that the applicant either was the importer of the heroin or was very close to the person or persons who did in fact import it. His Honour, a very experienced sentencing Judge, was well aware that he was not to sentence the applicant for importing the drug, an offence different from that to which the plea of guilty had been made. His Honour's remarks do not suggest that he was about to do that, but they do suggest that he was about to sentence the applicant as a person whose culpability was not much less than that of the importer. In my opinion it was the correct approach.

11 It is clear from his remarks that Blaxell J relied on R v Cottrell as in indicating that the appropriate range was between 7 and 10 years imprisonment. In doing so, his Honour adopted the view tentatively expressed by Pidgeon J (at p 36 of the report) that such was the range for possessing heroin of 123.4 grams and 73 per cent purity. True, Pidgeon J then was concerned with an appeal from a sentence for the actual importation of heroin, but the view which he expressed was approved and applied in R v Oancea (1990) 51 A Crim R 141. Bearing in mind also that the range of sentences now applicable might well be considerably higher (see Heryadi v The Queen (1998) 98 A Crim R 578 at 585 per Ipp J) I believe that Blaxell J adopted the appropriate range.

12 Section 16A(2) of the Crimes Act (Cth) 1914 provides that in determining the sentence to be passed in respect of any person for a federal offence the Court must take into account such as is relevant and known to the Court of specific matters which include "the physical or mental condition of the person".

13 In this case the only medical evidence before the Court was contained in a report dated 16 February 1999 from the Immunology Outpatient Clinic of the Royal Perth Hospital, which had been sent to the applicant's solicitors. The relevant part of the report reads as follows:

"Mr Gagliardi was first seen in the Immunology Clinic at Royal Perth Hospital in January of 1998. It was established that he had HIV infection and the level of HIV replication appeared to be low (the plasma HIV RNA concentration has always been < 7000 copies per mL). The blood CD4 T-cell count has indicated that there is a mild to moderate degree of immunodeficiency. On 1 July 1998 the CD4 T-cell count was 361 x 106 per litre (19%).

It has been difficult to communicate with Mr Gagliardi because he speaks little English, but as far as could be ascertained he has not had significant problems related to the HIV infection. He has not been treated with antiretroviral therapy.

Mr Gagliardi informed us that he has used a number of different drugs including heroin but we have not been involved in treating him for heroin addiction."

Counsel for the applicant told Blaxell J that there had been "an enormous improvement" in the physical well-being of his client since 27 October when he was arrested, and that the applicant hoped that when he has his liberty he will be able to stay off heroin. Although I assume that we can and should take judicial notice of the likelihood that by reason of his HIV infection the applicant is at greater risk than other prisoners of developing a terminal illness while in prison and that his life expectancy is reduced to some unknown extent, there is little if any evidence to suggest that he will experience greater mental or physical hardship in prison than otherwise would be the case. There is no evidence, for example that he suffers from the stress of worry about the potential effects of his condition. What evidence there is tends to show that his imprisonment is likely to bring about improvement, rather than deterioration, in his health.

14 As is shown by the authorities to which this Court referred in Vasich v The Queen (1998) 99 A Crim R 262 at 269 - 272, the fact that an offender is HIV positive, or has a reduced life expectancy, is not by itself a reason which should affect sentence. Bearing in mind that the applicant now has only a little more than two years and eight months of his non-parole period to serve, I do not believe that the state of his physical or mental condition provides any basis for a reduction in either the sentence or the non-parole period.

15 As his remarks show, after taking into account the applicant's late plea of guilty, Blaxell J reduced by six months the sentence which otherwise he would have imposed. In the circumstances it was an appropriate reduction. The remarks show also that when his Honour arrived at the starting point of eight and a half years imprisonment he had taken into account the applicant's heroin addiction but had concluded that, as the main motivating factor for the offence was personal gain, he could give little weight to the addiction as a mitigating factor. Again, it seems that his Honour made no reduction in respect of the applicant's apparently good record nor for his lack of family or friends in Australia. However, in a case involving drug offences of this kind little weight can be given to matters personal to the offender such as his lack of prior convictions or the particular hardship which he has to endure in custody as a foreign national (see again the observations of Ipp J in Heryadi at 584).

16 After taking all of the above matters into account I am satisfied that the sentence passed by his Honour was not excessive. I would grant the application for leave to appeal but would dismiss the appeal.