Respondent : Commonwealth Director of Public Prosecutions

Bellissimo (1996) 84 A Crim R 465

Carmody (1998) 100 A Crim R 41

Chua v The Queen [2001] WASCA 353

Darwell (1997) 94 A Crim R 35

Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518

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

Heryadi (1998) 98 A Crim R 578

Iskander v The Queen [2001] WASCA 409

Little v The Queen [2001] WASCA 87

Nguyen v The Queen [2001] WASCA 72

R v Cartwright (1989) 17 NSWLR 243

R v Gallagher (1991) 23 NSWLR 220

R v Tait and Bartley (1979) 24 ALR 473

Radebe v The Queen [2001] WASCA 254

Roberts & Roberts v The Queen [1999] WASCA 273

Thom v The Queen [2001] WASCA 322

Wong v The Queen [2001] HCA 64; (2001) 185 ALR 233

Worth v The Queen [2001] WASCA 303

1 MURRAY J: This applicant was convicted after pleading guilty in the Supreme Court to an offence of importation of a commercial quantity of the narcotic substance commonly known as ecstasy, contrary to the Customs Act 1901 (Cth), s 233B(1)(b). The maximum penalty provided for a commercial importation under s 235 of the Act is life imprisonment.

2 The applicant had in fact entered a plea of guilty at the earliest opportunity before the Court of Petty Sessions and he had accepted the process of expedited committal known as the "fast track".

3 He applies for leave to appeal against the sentence of 14 years imprisonment with a non-parole period of 7 years which was imposed upon him, the sentence being backdated to commence on 17 February 2001, the commencement of the applicant's detention in custody. The grounds of appeal are:

"1. The Learned Sentencing Judge erred in the exercise of his discretion in that the level of discount allowed was manifestly inadequate having regard to:

(i) The applicant's earliest possible plea of guilty; and

(iii) The level of the applicant's co-operation with authorities.

2. The sentence imposed on the applicant was manifestly excessive having regard to:

(ii) the applicant's strong prospects of rehabilitation; and

(iii) the level of hardship to the applicant's family; and

(iv) the level of isolation that will be experienced by the applicant.

3. The learned sentencing Judge erred by indicating a starting point for the Applicant's sentence, absent any mitigating factors, that was manifestly excessive.

PARTICULARS

(a) The learned sentencing Judge placed too much emphasis on the weight and quantity of the drugs involved.

(b) The learned sentencing Judge made findings of fact that were not open on the available evidence, being:

i. that the Applicant was more than a 'mere courier'; and

ii. that the Applicant stood to make a considerable profit from the drugs."

4 The sentencing Judge found the facts to be that the applicant was, when he came to be sentenced on 6 June 2001, a 41-year-old British national ordinarily residing in England. He was a married man with two children, an 18-year-old daughter and a 6-year-old son. His wife, children and, indeed, all his family resided in England. He was a jeweller by occupation with a substantial income. He had no previous convictions of any kind.

5 He had been arrested in Perth. He had come here solely for the purpose of making the importation. The drug ecstasy was in the form of 19,000 tablets weighing 4.7 kgs and the net weight of the pure drug was 1.4 kgs. This was a very substantial importation by a person who was not himself involved in the consumption of the drug but who had made the importation purely for commercial purposes.

6 The circumstances of the applicant's apprehension need not be discussed. Suffice it to say that they provided the Crown with a very strong case against the applicant. When interviewed by the police, the applicant told them that he had purchased the drug in Holland and brought it to Australia to sell because he had heard that there was a shortage of the drug in this country. The Crown maintained therefore that not only was this a purely commercial importation for the purpose of profit, but that the applicant was the person solely involved. The applicant said he had no contacts in Australia and had made no prior arrangement for the sale.

7 When one reads the record of the videotaped interview, it is clear that the police investigators did not believe that to be the case. They put to the applicant that the amount said to have been invested to acquire the tablets, [sterling]38,000, and the number of tablets involved, made it difficult for them to accept that the applicant had simply come to Australia hoping to find a buyer upon his arrival and without having any prior arrangement for their sale. The applicant did not seek to maintain the accuracy of this part of the record of interview at the sentencing proceedings but he did not say what the true position was and, through counsel, he did not resile from the proposition that he alone carried out the importation and that the motive was purely commercial gain.

8 A pre-sentence report was obtained prior to sentence. The applicant told the community corrections officer that he had committed the offence under duress. He said he had been involved in a business deal concerned with the importation into England of a large quantity of diamonds which were found to be of poor quality and, one gathers, less saleable than had been hoped. It appears that the applicant said that he had not paid about [sterling]80,000 which he owed on the deal. Those with whom he had been dealing threatened to kill his son if he did not pay, but at the same time proposed that if he would consent to be involved in the importation of ecstasy to Perth as a courier, his debt would be regarded as having been paid. The applicant told the officer that he felt he had no option but to agree, to protect his son.

9 Clearly that would be a version of the facts which would portray the situation of the applicant in a much more favourable light, but the Crown prosecutor told the sentencing Judge that the Crown did not accept the accuracy of this version of the events. The onus rested upon the applicant then to establish these mitigatory circumstances, at least on the balance of probabilities if they were to be taken into account: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. No evidence was led.

10 The sentencing Judge said that some aspects of the record of interview were implausible. I presume by that his Honour meant that he shared the doubts expressed by the interviewing police officers. His Honour declined to accept the Crown's invitation to conclude beyond reasonable doubt that the applicant was the sole or principal offender. He said that on the objective facts an alternative view was open. His Honour did not say what that view was, but again I presume that his Honour thought that other persons might be involved as principal offenders, as financial backers, as suppliers who would be paid out of the proceeds of sale or as persons who had agreed to buy the drug in Australia.

11 His Honour, rightly in my respectful opinion, thought it was unnecessary to make findings about those matters. The admitted facts well supported his Honour's conclusion that:

"You were quite prepared to import into Western Australia for your own gain in some measure, vast quantities of an illicit substance which you knew would be subsequently distributed, particularly to the youth of Australia. That was your whole purpose in coming here."

Whether the applicant was the sole person involved in carrying out the enterprise or whether there were others participating in it with him, his role was of crucial importance and his culpability would remain at a high level if others were involved. He was established to be much more than a "mere courier", mechanically conveying the drug for a limited reward. To consider the applicant's role in those terms would obscure a proper assessment of his true culpability: cf Olbrich at 279 [19] - 280 [23].

12 I have mentioned something of the applicant's personal circumstances and his prior good character. His conduct had caused hardship for his family and particularly for his son but in the circumstances of this case that could not mitigate punishment: cf Hodder v The Queen (1995) 15 WAR 264. On the other hand, the sentencing Judge did not overlook the mitigatory effect of the fact that a sentence of imprisonment would be served by the applicant in this country remote from familial support, recognising however that the mitigatory power of such self-imposed isolation was strictly limited.

13 That was so in respect of the applicant's favourable antecedents generally, given the amount of drug involved, the nature of the drug, the harm and misery it may cause to those who consume it, the fact that the ultimate consumers are often young people and the purely commercial motivation for the importation by the applicant. The cases are legion in which it has been held that in such circumstances the primary aim of the court will be to endeavour to protect the community by imposing punishment of a severity calculated to further the attempt to deter the offender and others from the commission of such offences. His Honour does not seem to me to have overlooked any of these matters.

14 Ground 1 takes as a particular point of criticism of the sentence the proposition that the discount allowed to the applicant for the early plea of guilty, his remorse and his level of co-operation with the authorities was inadequate. The sentencing Judge accepted that the plea and the applicant's behaviour demonstrated his contrition. The co-operation with the authorities upon which the applicant relies is his confession. As I have said, that was made in the context of circumstances of arrest which, in my view, established a Crown case of significant strength and there is the odd circumstance that although the confession was, in effect, that the applicant was the sole and principal offender, that was said on his behalf in court to be untrue.

15 The applicant was successful in causing the Judge to decline to take a view of the facts which was consistent with all aspects of the confession, but the applicant did not provide any particulars to enable those who supplied the drug to him to be identified and, if there were others involved in the enterprise of importation and sale of the drug in Australia, the applicant did not identify them or say what their respective roles were. Effectively, it seems to me, the sentencing Judge was required to evaluate the worth of the early plea of guilty and the applicant's co-operation with the processes of the courts: Cameron v The Queen (2002) 76 ALJR 382.

16 His Honour said that he would allow a "significant credit" for that fact. In imposing sentence his Honour went on to say that but for the early plea of guilty and other matters of mitigation, he would have sentenced the applicant to a term of 18 years imprisonment but, having regard to those matters, he reduced the sentence to a term of 14 years imprisonment. The applicant calculates that that is a discount of just over 22 per cent. Relying upon decisions of this Court, particularly Miles v The Queen (1997) 17 WAR 518 the submission is made that it is common for a discount for an early plea to range between 25 per cent and 35 per cent and if the 22 per cent includes other matters having a mitigatory tendency, it follows, so the argument runs, that the discount must be seen to be manifestly inadequate and the sentence should be held to be manifestly excessive on that ground alone.

17 To my mind, the argument fails for at least two reasons. In the first place, the process of taking a proportion expressed as a percentage of a notional starting point, even one articulated by the sentencing Judge, and endeavouring to demonstrate that the sentence imposed is manifestly excessive having regard to the percentage figure, is an illusory process because the so-called "starting point" is not the sentence, the adequacy or proportionality of which the appellate court is required to measure so that the appeal will succeed if it can be demonstrated that the exercise of sentencing discretion has miscarried because the sentence finally imposed is manifestly excessive.

18 Secondly, in my opinion, although this Court has observed from time to time, including in Miles at 521, that the substantial discount required to be given by the law (Sentencing Act 1995 (WA) s 8(2)) has in fact been able to be seen to be in the order of from 20 to 25 per cent up to 30 to 35 per cent, depending upon the circumstances, it has never been suggested, and in my respectful opinion rightly so, that it is an appropriate way for an appellate court to consider the adequacy of a sentence, to allocate periods of time or percentage points applied to a starting point for the purpose of deciding whether the sentence imposed is manifestly excessive or inadequate: see also Cameron v The Queen [2002] WASCA 81 per Miller J, with whom Murray and Steytler JJ agreed, at pars [16] - [19].

19 That is because, to put it shortly, as did the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 624 [46], "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision." The attempt to measure the size of the discount diverts the appellate court from the essential task of determining whether the sentencing discretion has miscarried because the Judge has made some error of principle or because, even though error is not particularly identifiable, it is demonstrated because the final result is manifestly excessive or inadequate. In my opinion, ground 1 is misconceived.

20 So also, I think, for similar reasons is ground 3. It cannot be relevant to ask whether a sentence of 18 years, had it been imposed, would have been manifestly excessive. In this case the question is whether that can be said of the sentence of 14 years which was in fact imposed and, in my respectful opinion, that is not demonstrated having regard to the nature of the offence, the nature of the drug, the quantity involved, the finding of fact as to the nature of the applicant's involvement and the accepted need for a deterrent penalty, which reduced the mitigatory power of the favourable circumstances of the applicant's very early plea of guilty, his prior good character and the relevant considerations of hardship. I would refuse the application for leave.

21 STEYTLER J: I have had the advantage of reading the reasons for decision of Murray J. I agree with them and would consequently refuse the application for leave. There is nothing I wish to add.

22 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of Murray J. I agree entirely with everything that his Honour has said and I too would refuse the application for leave to appeal.