Harris v The Queen [2016] VSCA 30

1 On 31 July 2015, the appellant pleaded guilty in the County Court to one charge of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code 1995 (Cth). The maximum term of imprisonment for this offence is 25 years. On 25 August 2015, the appellant was sentenced to a term of imprisonment of five years with a non-parole period of three years.

2 On 16 December 2015, Beach JA granted the appellant leave to appeal against his sentence on the following grounds:

1. The sentencing judge erred in sentencing the appellant on the basis that he was engaged in 'quantity based sentencing'.
2. The sentencing judge erred in failing to have regard to where the quantum in this case fell within the spectrum of a marketable quantity of [a border controlled drug].

3. The sentence imposed is manifestly excessive.

3 The appellant is a foreign national who was 24 years of age at the time of his offending. In February 2015, he arrived at Melbourne Airport on an international flight. He was selected by customs officers for examination. During the course of being examined and questioned, the appellant made admissions concerning concealed packages of a border controlled drug ('the drug') in his underwear. Further examination disclosed that the appellant was carrying the drug in his underwear and rectum. The total imported was 120 grams. The appellant was interviewed by police and made full admissions. He provided additional information and offered to assist police. As it turned out, the information the appellant was able to provide was already known to police.

4 On the plea hearing, the wholesale value of the drug was said to be approximately $60,000, and the street value was said to be approximately $140,000. An explanation for the appellant's offending was that, in the years prior to his offending, he had used the drug, and had come to owe money in relation to that use. He was unable to repay the amount he owed, and was pressured to do so by carrying drugs to Australia.

5 The sentencing judge commenced his reasons for sentence with a brief description of the appellant and the offence to which the appellant had pleaded guilty. The judge then said:

The net pure weight imported was 120 grams. The threshold in regard to [the drug] by way of the classification as marketable quantity is 2 grams. Hence, insofar as the pure quantity is concerned, the figure involved is 60 times the threshold amount.[2]

6 The judge then described the appellant's offending in more detail, before saying:

The relevant law in regard to this matter is essentially quantity based. The threshold for a marketable quantity which brings the offence into this serious section is one of 2 grams. [The appellant] has imported approximately 60 times of that amount, being the 120 grams pure that we have spoken of.

The appropriate law requires the Courts to concentrate essentially on the weight of the item relative to the crime and as I have said, he has, [the appellant], sixty times above that threshold.

The appropriate law specifically in regard to state matters was detailed by Appeal Justice Buchanan in DPP v Duong [2006] VCSA 78 'Duong,' where it was stated that where Parliament prescribes a maximum penalty of 25 years imprisonment, such shows unambiguously how seriously the community, through its Parliament, views the particular crime. Obviously the crime that I am dealing with is not the precise crime that was dealt with in Duong, however, I quote such by way of analogy.

In that case the Court went on to say this:

'Indeed it is irrelevant what particular drug is involved. The system is essentially quantity based. We, having regard to the criminal provisions in this state and the Commonwealth, a quantity based sentencing regime and it is important, however, to remember that the quantity as such has no arithmetical relation to a sentence, but of course is very significant in sentencing'.

This particular regime of quantity based sentencing has been fully answered by the Victorian Court of Appeal in R v Pidoto & O'Dea [2006] VSCA 185, 34 where four of the Appeal Justices noted that the structure that Parliament has adopted is, or has:

'adopted a hierarchy of seriousness defined by and only by the quantity of the drug of dependence that has been trafficked'.

Also in that case at paragraph 64 the Court indicated the ultimate question for a sentencing Court to be considered, given such structure, in that case they were actually dealing with a trafficking matter:

'is not whether trafficking in one drug is to be viewed more seriously than traffic of another, but what sentence should be imposed for the particular trafficking'.

Hence in this case one simply needs to substitute the word 'import', bearing in mind the maximum penalty that may be imposed in dealing with the material involved.[3]

7 Next, when referring to the prosecutor's submissions, the judge said:

The significant matters that I took from that submission are the matter as to the maximum penalty prescribed by Parliament, which I have already referred to. The significant amount above the threshold marketable amount, one of course puts that in regard to the totality of the amount of the next level (sic).[4]

8 The judge then went on to deal with further matters of background, including the appellant's co-operation, saying that the appellant was entitled to an appropriate and full discount for his co-operation.[5]

9 The judge noted that the appellant had entered his plea of guilty at the earliest opportunity, and that the appellant's time in custody had been particularly onerous because the appellant was isolated from family and friends.[6] As to rehabilitation, the judge said:

It is put that he has good prospects of rehabilitation. That is always difficult to know, however, given the circumstances of this case, the fact that he has no priors, the fact that one would hope if imprisonment has any impact, it has a specific deterrent in the sense that should he ever be tempted, he would not ever do it again then clearly there might be a rehabilitation effected in that manner.[7]

10 The appellant submitted that the judge erred when he said that he was required 'to concentrate essentially on the weight of the item [imported]' (ground 1).[8] In support of this submission, the appellant relied upon the statement of the plurality[9] in Wong v The Queen:

The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle.[10]

11 Secondly, the appellant contended that the judge erred in failing to have regard to where the quantum in this case fell within the spectrum of a marketable quantity of the drug (ground 2). In support of this submission, the appellant noted that on more than one occasion in his reasons for sentence, the judge stated that the amount imported was 60 times the marketable threshold. While that proposition is undoubtedly correct, the amount imported could equally be described as only some six percent of the upper end of the range for marketable quantity (the commercial quantity in respect of the drug being 2 kg). Thus, the appellant submitted that, viewed along the entire spectrum of offending within relation to a marketable quantity, the appellant's offending was, contrary to the tenor and substance of the judge's reasons, at the lower end of the range of seriousness for the offence for which the appellant had pleaded guilty.

12 Finally, the appellant submitted that, in all the circumstances, the sentence imposed was manifestly excessive (ground 3). The appellant supported that submission by reference to the various matters in mitigation to which we have already referred. Additionally, the appellant relied upon a number of cases that are said to be comparable with the present case. In particular, the appellant relied upon this Court's decision in Harper v The Queen.[11]

13 Harper was a case involving a 27 year old Thai national who pleaded guilty to importing a marketable quantity of a border controlled drug. The appellant in Harper had brought a border controlled drug into Australia, in packages concealed partly in her vagina and partly in her rectum. The contents of the packages weighed 222.38 grams, and the quantity of pure drug was 126.5 grams. The wholesale value of the total mixture was between $80,000 and $113,000, and its potential retail value was estimated to be between $210,000 and $420,000. The appellant in Harper had been sentenced to a term of imprisonment of five years with a non-parole period of three years. On appeal, this sentence was held to be manifestly excessive, and Ms Harper was re-sentenced to a term of imprisonment of four years with a non-parole period of two years and four months.

14 The appellant submits that, when one looks at all the circumstances in Harper, if a sentence of five years with a non-parole period of three years in Harper was manifestly excessive then this Court should again so conclude in respect of the appellant's sentence of five years with a non-parole period of three years in the present case.

15 In answer to the appellant's submissions on ground 1, the respondent submitted that the judge's statement that the law required the court 'to concentrate essentially on the weight of the item' did not involve any error. It was contended to be plain from the judge's reasons that his Honour did not treat weight as the only variable affecting the seriousness of the appellant's offending. Read in context, the respondent submitted, the judge's statement was no more than a correct statement that 'the legislative scheme is quantity based'.

16 As to ground 2, the respondent submitted that the sentence imposed reflected where the quantity imported by the appellant fell when compared with the commercial quantity for this offending (2 kg). The respondent noted that the maximum term of imprisonment in respect of the commercial quantity for this offending is life imprisonment.

17 As to manifest excess (ground 3), the respondent submitted that it could not be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge. In making that submission, the respondent relied upon all of the circumstances of the appellant's offending to which we have already referred. Additionally, the respondent relied upon the fact that it is not uncommon for drug couriers to be of good character. The respondent noted that, for that reason, appellate courts have made it clear that less weight should be attached to evidence of prior good character in drug importation cases.

18 We see no error in the judge's description of the sentencing regime in cases of the present kind as being quantity based. It was perhaps unfortunate for the judge to say that the law required him to concentrate essentially on the weight of the item when sentencing the appellant. While the weight of the drug imported is clearly a relevant matter in sentencing in drug importation cases, care needs to be taken to ensure that a sentencing judge does not fall into the error, identified in Wong, of selecting the weight as the chief factor to be taken into account. As in all cases where a court is required to sentence an offender, all of the myriad of factors that a sentencing judge is required to take into account when sentencing for an offence need to be given appropriate and proper weight, by reference to all of the relevant facts and circumstances, in each individual case.

19 While the appropriateness of the judge's statement that he was required to concentrate essentially on weight may be debated, we think there is greater force in the appellant's complaint that the judge did not properly consider where, along the spectrum of importing a marketable quantity of the drug, the present case fell for consideration. The judge's repetition in his reasons for sentence of the fact that the amount imported was 60 times the threshold level, without a counter-balancing statement that the amount was only six percent of the upper limit, suggests to us that there is a real prospect that the judge did not properly consider the appropriate level of the objective seriousness of the appellant's offending, when compared to the range of offending that importing a marketable quantity of a border controlled drug encompasses. Thus we would uphold the appellant's complaint made in ground 2.

20 The question then becomes whether a different sentence should now be imposed. While an individual sentence in another case does not give rise to any binding precedent, the decision of another court that a sentence in a comparable case is manifestly excessive can be a yardstick that may serve to illustrate the possible range of sentences available.[12]

21 When one looks at the facts of the present case and the facts in Harper one sees a number of relevant similarities (age of offender, lack of prior convictions, similarity in circumstances of offending and similarity in amount of drug imported when compared with the relevant ranges of marketable quantity for each drug). While the sentence in Harper cannot, of itself, be determinative, we think that case shows that (at the very least) the sentence imposed in the present case was right at the upper end of the permissible range - if not in fact manifestly excessive.

22 Having regard to our conclusions with respect to ground 2, it is not necessary for us to determine the question of manifest excess. The sentencing discretion is reopened by the acceptance of the appellant's complaint of error in ground 2. Further, having considered fully all of the circumstances of the present case, we think that a different sentence should now be imposed. Accordingly, we will allow the appeal, set aside the sentence imposed below, and re-sentence the appellant to a term of imprisonment of three years and one day with a non-parole period of two years.[13]

23 The appeal is allowed. The sentence imposed in the County Court on 25 August 2015 is set aside. The appellant is re-sentenced to a term of imprisonment of three years and one day with a non-parole period of two years.

[1] This judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

[2] DPP (Cth) v Harris (Unreported, County Court of Victoria, 25 August 2015, Judge McInerney) ('Reasons') [2].

[10] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 ('Wong'), 609 [70].

[11] [2011] VSCA 314 ('Harper').

[12] The Queen v Pham [2015] HCA 39 ('Pham'), [29] (French CJ, Keane and Nettle JJ).

[13] See ss 19AB and 19AC of the Crimes Act 1914 (Cth).