Gwardys v R

Gwardys v R - [2019] NSWCCA 62 - NSWCCA 2019 case summary — Zoe

The nature and circumstances of the offending

An agreed statement of facts was tendered before the sentencing judge, on the basis of which her Honour found the facts of the offending to be as follows: [2] The offender is a 37 year old Canadian citizen. He was 36 at the time of the offending on 1 December 2016. He arrived at Sydney International Airport by plane from Vancouver, Canada. He falsely stated on an incoming passenger card that he was not bringing in any illicit drugs. The Australian Border Force selected him for examination and had his carry-on luggage examined. This examination returned a positive reading for cocaine. When asked about this result, the offender suggested that the bag might have come into contact with people who were using cocaine at parties he had attended in the past. A frisk search returned no results and the offender refused to consent to a body scan. The Australian Federal Police conveyed the offender to St George Hospital, where he consented to a CT scan of his abdomen. The CT scan revealed multiple foreign objects concealed therein. He was then arrested. Between 2 and 7 December 2016 he passed 98 latex covered pellets, each of which were approximately three centimetres long and one centimetre wide and weighed about four grams. In total the pellets contained 477.7 grams of cocaine with a pure weight of 391.7 grams, the purity level therefore being about 82%. Whilst in hospital the offender admitted to police that: (a) the white powder in the pellets was cocaine; (b) he did not know what the latex material covering was or how many layers there were of it; (c) he believed that the cocaine was also protected by a wax layer; and (d) that he did not know precisely how many pellets he had ingested. The police investigations revealed that the offender had visited Australia on ten occasions since 27 April 2008. On all occasions he departed from Vancouver, where he lives, except in January 2013, when he departed from Bangkok, Thailand. The offender gave evidence that the visits were for the purpose of visiting family and friends. He said that he had never brought drugs to Australia and has no criminal convictions in any country. That evidence was not seriously challenged on a matter upon which the prosecution bears the onus to prove beyond reasonable doubt. In line with the principles in De Simoni the offender is only to be sentenced in respect of the current offence. He is to be sentenced as a first offender and on the basis that this is not part of any course of conduct.

[3]

The applicant's role

Her Honour made the following findings as to the applicant's role [3] : In order to make a determination as to the seriousness of the offending it is necessary to determine the role played by the offender and the particular activities undertaken by him in performing that role. I find that the offender performed an integral role in bringing cocaine into Australia. In performing this role he: (a) arranged or had arranged for him plane tickets for a return flight from Vancouver to Sydney and either arranged, or had arranged for him, accommodation. (b) he in fact flew from Vancouver to Sydney, he obtained the 98 pellets containing the cocaine; and (c) swallowed them prior to boarding his flight. (d) Accordingly he provided a link between the Canadian and Australian ends of a drugs enterprise, facilitating the importation and possession of cocaine for further distribution in Australia. I find the offender to be low on the hierarchy. Anyone who agrees to carry drugs within his person takes a great personal risk, not only of being detected with the drugs within but also to his health and safety should the drugs leech into his body. In times gone by they were referred to, in cases like this, as "mules" and they were considered at the bottom of the supply chain, given the risks that they were being asked by others to take. More recently it is noted by superior courts which bind me that terms such as "mule" in the context of drug supply and importation offences can create problems when any sentencing court attempts to categorise an offender's role in the drug enterprise, particularly where the full nature and extent of the enterprise is not known. Any characterisation of the offender must not obscure the assessment of the acts taken by him in carrying out the crime for which he is to be sentenced. It remains to be observed that he was prepared to undertake his vital role in the supply chain for a considerable sum of money. Unfortunately it is a common occurrence in this Court that people in situations such as the offender that make them vulnerable to approach by those higher up in the criminal hierarchy, who are otherwise without criminal connections of any kind, take up invitations, lured by the prospect of making financial gain, to participate in highly risky criminal conduct of this kind, exposing themselves to significant prison sentences away from the support of their family and friends. The illicit drug trade only prospers on the backs of those who are ready, willing and able to undertake those roles and those who do so should expect to receive heavy penalties, particularly where the purpose of general deterrence is so important as it is in cases such as this. The weight of the drug imported remains a relevant factor which I have had regard to in determining the seriousness of the offence. This is particularly so in this case where there is almost no evidence as to the extent of any drug importing organisation and there is otherwise little to distinguish the present case from other cases. The marketable quantity threshold for cocaine is two grams, and in this case, the offender reported, as I have said, 477.7 grams with an 82% purity, being almost 200 times the threshold quantity. No evidence has been put before me as to the worth of the cocaine when sold in the Australian market at that time, however I do note that the offender was not only to be paid $20,000 for his role but was also to be provided with some of the cocaine, which indicates to me not an insubstantial importation.
In terms of the applicant's motivation for his offending, her Honour made the following findings: [4] So far as the motivation for his offending is concerned, despite the stated debt, the offender said that he simply decided to take a trip to Australia. He had already booked the trip and had sufficient funds to pay for it. He said he had been then approached by individuals, who had sold him drugs in the past, with an offer for him to import the cocaine. The offender said that he believed that he was taking about half a pound of cocaine in his person. In fact he took approximately double that amount. He said that he agreed to this at the time when he was drinking and consuming cocaine every day, a matter which I accept. He said that of the drugs that he was to import, he was promised approximately four ounces or so and in addition he was to be paid $20,000. The offender proffered two reasons for taking part in the crime. First, his indebtedness to those individuals to the tune of about $1,000 to $2,000, and second, a fear of backing out once he had agreed. As to the first in circumstances where the offender had sufficient funds to undertake the trip before he was approached, I do not accept that he was motivated particularly by debt. I do find the offer of the cocaine and the $20,000 to be motivating factors. The offender initially agreed, but when he changed his mind, was confronted with threats and so went through the offending. He said he was motivated by fear and the offer of money and drugs whilst in Australia, a matter which I also accept. The prosecution has not established beyond reasonable doubt that the offender planned his trip to Australia for the purpose of bringing drugs. I find that the offender agreed to undertake the importation as part of a trip already planned but for financial gain, albeit also enticed by the added benefit of being able to have a ready supply of cocaine for his own use whilst in this country. I do not regard that, however, to be his principal motivation. I also find that whatever thoughts he had about backing out of the crime were not sufficient for him to act upon them. I found his evidence to be truthful on this issue and noted that he did not back away from the fact that he had some four or five months to consider his position and did not move from his intended course. The offender said, and I accept, that he was fearful that some harm might come to him or to his family if he did not comply.

[4]

The applicant's subjective case

The applicant gave evidence before the sentencing judge. He explained that his marriage had suddenly broken down in 2016 and described his general mental state at that time as one of "pretty deep depression (and) shock", all of which had led to "a big withdrawal from everyone", and which had triggered a dependence upon drugs and alcohol. [5] He said he decided to travel to Australia, and that after he had booked his trip he was approached by those from whom he was buying cocaine who suggested he take some with him. [6] He said that his understanding was that he was to carry approximately half a kilograms of cocaine, [7] and that he was told that he would "get some drugs as well as (his) trip paid for". [8]
The applicant told the sentencing judge [9] that as the date of his departure drew closer he started to have second thoughts about undertaking a trip carrying drugs, but that when he approached those who had engaged him they told him that it was too late to withdraw. The applicant said [10] that it was about this time that he was threatened, although his evidence in this respect was somewhat vague. When asked about the form that the threats took the applicant said: [11] It - it's hard to say the exact words, but it was you have to go through with this or else … or else harm's going to come to you.
The applicant went on to say that there was no specific mention of what kind of harm might come to him, but that he understood that it would be in the form of violent assaults, such as bashings or stabbings. [12] He agreed that when he was apprehended upon arrival into Australia, he made no mention to Border Force Officials, Australian Federal Police or hospital staff about the threats allegedly made to him. He also agreed [13] that a period of 4 or 5 months had elapsed between the time he was approached to carry the drugs, and the time that he was due to leave for Australia.
The applicant gave evidence that since being taken into custody he had been employed both in a print shop and in a clerical position, and had not been disciplined at any time by the corrective authorities. [14] He also said [15] that he had attempted to enrol in a number of courses, including those directed to controlling drug and alcohol consumption, but had been told that he could not do so until he had been sentenced.
Also before the sentencing judge was a report of Dr Allnutt, Psychiatrist, dated 25 September 2017. The account given by the applicant to Dr Allnutt regarding the offending was generally consistent with his sworn evidence. In terms of psychiatric illness, Dr Allnutt expressed the following conclusion: [16] In my opinion, your client manifests a constellation of symptoms consistent with a major depressive episode, characterised by a persistently depressed mood, reduced appetite with significant weight loss, loss of energy, poor motivation, loss of confidence in himself, poor self-esteem, strong feelings of guilt, concentration difficulties, anhedonia and loss of interest in usual activities with intermittent suicidal thoughts. Associated with his depression, he experiences persistent feelings of anxiety (previously he has had panic attacks, but he is not currently experiencing them). His anxiety however, is now associated with a perception of threat that he feels within the prison environment.
In addressing the issue of the applicant's mental state at the time of the offending, Dr Allnutt noted [17] that the applicant had offended in the context of drug and alcohol abuse, and associated social withdrawal. It was Dr Allnutt's opinion that the applicant had an underlying depressive disorder at the time, which was acting as a driver to his substance abuse. [18] Dr Allnutt concluded that the applicant showed insight into the effect of his substance abuse, that he presented as remorseful, and that he had good prospects of rehabilitation.
A large number of character references were tendered in the applicant's case on sentence. They generally described the applicant as a hardworking man who had experienced the trauma of an unexpected marital breakdown, and for whom this offending was out of character.
The sentencing judge reached the following conclusions regarding the applicant's subjective case [19] : Whilst the offender's subjective features must not overshadow the objective seriousness of this offence, there are a number of matters that should be taken into account and I do so. The offender is a Canadian citizen of Polish ethnicity born in Warsaw in December 1979. His family immigrated to Italy where they were refugees in a camp for three years before moving to Canada. The offender arrived in Canada at about the age of nine or ten, could not speak English, and had to undertake various courses to do so and attended a number of schools until the age of 16 or 17. Perhaps unsurprisingly he manifested some disruptive behaviour at school, he described himself as being hyperactive and having concentration problems, and although never formally diagnosed, attention deficit hyperactivity disorder was considered. He said overall his familial environment, whilst strict, was loving and supportive and his parents both clearly worked hard. Leaving school he undertook a Bachelor of Arts at a university in Canada and then went into real estate. The offender worked in real estate for about seven years and in a number of jobs prior to that. By all accounts his work in real estate involved working long hours and was demanding. In 2009 or 2010 the offender commenced a relationship. The couple married in 2015. Unfortunately the marriage lasted only 11 months. The offender described the break-up as traumatic and said that his behaviour changed. He said he started drinking and doing drugs and stopped working. He said that he had let himself go and to use his words, "gave up on life". He said that prior to that he had been earning about $150,000 a year but after the break-up he worked only about one day a week, ignoring his clients and his work in general. He was drinking on a daily basis and then started using cocaine on a regular basis at the cost of about $100 per day. He said that he was in debt.
In relation to the applicant's drug use and mental health issues her Honour said: [20] Whilst he said in his evidence he did not have a problem with drugs prior to his relationship break-down, he described to his psychologist that he started to use cannabis at the age of 16, with relatively persistent use throughout his life and with some experimentation, albeit rare use, of cocaine and ecstasy until about June 2016, when he started using cocaine on an almost daily basis along with significant amounts of alcohol in the circumstances that I have described to the extent that he would be diagnosed with a substance use disorder which is currently in remission. In his evidence the offender attributed the increased drug use to marital separation, saying that broke him as a person. He said that after his wife left he was depressed and withdrew from his family and friends, engaging in cocaine and drinking. However one gets the sense, from his ex-wife's reference to "cleaner living" that the problem started perhaps before that and it may have been that his drug use was more causative than resultant in respect of his marriage breakdown. In some sense that does not matter given that in both cases the link between his drug addiction and his offending is established in my view. Drug addiction is however not a matter that ameliorates the seriousness of the offending, but I take it into account in determining his moral culpability. He has been assessed by Dr Allnutt as manifesting symptoms consistent with a major depressive episode including persistently depressive moods, reduced appetite and resultant weight loss, poor energy and motivation, a loss of self-confidence and poor self-esteem, and some feelings of guilt are also described, together with intermittent suicidal thoughts. Associated with this depression are symptoms of anxiety, particularly associated to the threat that he feels within the prison environment, and he is, to some extent, relatively socially isolated in the prison as a result. Although I note in that context that he is currently on remand and has not undertaken what would be required to settle into life in custody, in particular the undertaking of courses. Nonetheless the offender is experiencing depression and shock now that he is in custody, he clearly is suffering mental health issues which, in my view, contributed to the commission of the offence in a material way. However so far as his experience in custody is concerned, those issues are not, to my view, graver than those often experienced by offenders in custody, particularly at the outset, far from home and with limited support, and that custody in my view will not weigh more heavily on the offender than it does compared to others. I have however taken those matters into account.
Her Honour found that the applicant was genuinely remorseful, that he had accepted responsibility for his offending, and that by his plea of guilty he had shown a willingness to facilitate the course of justice [21] . Her Honour did not specify the discount which she applied to reflect the applicant's plea, and made no reference to the utilitarian value of that plea. Her Honour noted [22] that the applicant had no criminal record, and she took into account the testimonial material which was tendered on his behalf. Her Honour also found that the applicant was a person of otherwise good character although in reaching that finding, she noted that this is invariably the case in offending of this nature. [23] She found that the applicant had been an exemplary prisoner and that he demonstrated "good potential for rehabilitation". [24]
Her Honour noted [25] that she had been asked to consider the fact that upon his release to parole it would be likely that the applicant would be detained in immigration detention before being deported. Although her Honour accepted that the applicant was at risk of deportation, and at risk of detention prior to deportation, she concluded that because these were matters over which she had no control, they could not be taken into account on sentence. [26]

[10]

CONSIDERATION

In submissions before the sentencing judge, the Crown's then representative submitted that a discount could not be given to reflect the utilitarian value of the applicant's plea of guilty, but that as a federal offender he could obtain a discount if his plea demonstrated the subjective mitigation of genuine remorse, acceptance of responsibility, and/or a willingness to facilitate the course of justice.
It was accepted that the applicant's plea had been entered at the first available opportunity. As noted above, her Honour took that plea into account as an indication of the applicant's willingness to facilitate the course of justice. However, she did not apply a specific discount in recognition of the plea, nor did she specifically refer to its utilitarian value.
Subsequent to the applicant's sentence proceedings, this Court published its judgments in Xiao and Liu. In Xiao, this Court concluded [30] that in sentence proceedings governed by s 16A of the Crimes Act 1914 (Cth) ("the Act"), a sentencing judge is entitled to take into account the utilitarian value of a plea of guilty. The Court further noted [31] that s 16A(2)(g) of the Act, which mandates that the Court take into account the fact of a plea of guilty, neither requires nor prohibits the specification of a discount, but that it was desirable, in the interests of transparency, that such discounts be specified. However, the Court pointed out that a failure to specify the discount would not, of itself, amount to error.
In Liu, the sentencing judge had not referred to the utilitarian value of the pleas of guilty which had been entered. This Court found that in those circumstances, the only available conclusion was that the sentencing judge had failed to have regard to that factor. [32] The situation is the same in the present case. Her Honour did not refer to the utilitarian value of the plea and in my view, the only available conclusion is that she did not take it into account.
In these circumstances, and as was conceded by the Crown, error is established. This Court must therefore re-sentence the applicant in the fresh exercise of the sentencing discretion. As error has been found, it is not necessary to consider the remaining grounds of appeal, including that which asserted that the sentence was manifestly excessive. However, I have had regard to the submissions of the parties in relation to that ground in re-sentencing the applicant.

[13]

CONSIDERATION

The applicant is to be sentenced in accordance with Part 1B of the Act. Section 16A(1) provides that in determining the sentence which is to be passed, a Court must impose a sentence, or make an order, that is of a severity appropriate in all of the circumstances. In addition, s 16A(2) sets out a number of mandatory factors which are to be taken into account, to the extent that they are applicable. However, before going considering those factors it is appropriate to address two discreet matters arising out of the submissions made on behalf of the applicant.
In Hili v R; Jones v R [33] the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed (inter alia) [34] that the consistency which sought in sentencing is consistency in the application of the relevant legal principles and the relevant statutory provisions, not some numerical or mathematical equivalence. The Court also observed [35] that presentation of sentences imposed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. These principles were later affirmed by the Court in R v Pham [36] .
In these circumstances, the submissions by senior counsel that the applicant's offending should be placed within a particular category or range set out in the Report, and a determination then made as to the appropriate sentence, reflects an erroneous approach. Moreover, as the Crown pointed out, the Report was concerned with offending contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The applicant was not charged with any offence contrary to that Act.
Further, and again in light of the observations of the High Court, the applicant's reliance upon sentences imposed in the District Court in cases which were entirely unrelated, was misplaced. To the extent that the applicant's reliance on those decisions sought to invoke the parity principle, such principle does not apply to sentences imposes upon persons who are not co-offenders. Comparing a sentence directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics, and may have committed similar crimes, reflects an erroneous approach. [37]
Those matters having been addressed, I turn to consider the factors, insofar as they are applicable, set out in s 16A of the Act.

[15]

The need for adequate punishment - s 16A(2)(k)

I have set out the nature and circumstances of the offence by reference to the remarks of the sentencing judge. The applicant's criminality must be assessed by a consideration of his involvement in the steps which were taken to effect the importation. Importantly, it is his criminality which must be assessed. The fact that another person may be characterised as the "mastermind" does not mean that a person in the applicant's position, who was responsible for effecting the actual importation into Australia, is properly described as having only a middle (or indeed, lower) level of responsibility. [38] The relevant inquiry must centre upon what the applicant actually did. [39]
Put simply, the applicant imported a significant quantity of a prohibited drug into Australia. In doing so, he helped to facilitate and promote large scale international drug trafficking. Even if it is accepted that his place in some notional hierarchy was low, that does not mean that his role was insignificant. On the contrary, without him performing the role that he did, the importation could not have been effected.
Further, and although the weight of the drug imported is not the principal factor to be considered when fixing sentence, it is necessarily relevant. [40] The quantity of cocaine which was imported was more than 200 times the marketable quantity. The issue of quantity has increased significance when the offender is aware of the amount of the drugs imported. [41] In the present case, the applicant ingested the drug himself. He must have been aware, at least in general terms, how much he was carrying. It is also clear that the applicant, on his own admission, was undertaking this venture for profit, in terms of both money and drugs.
I place little weight on the applicant's evidence that of having been threatened. As I have pointed out, his evidence in that respect was vague and the first time any such assertion was made was in evidence before the sentencing judge. The applicant said nothing at all about alleged threats at the time of his arrest. However, I do accept that the trauma surrounding the applicant's marital breakdown played some part in triggering a course of behaviour which culminated in his offending and led to his increased use of alcohol and illicit drugs.
In all of these circumstances, the only available conclusion is that the offending was of considerable seriousness, and the applicant's criminality significant.

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