Isaac v R

Court of Criminal Appeal (NSW)|2012-09-14|Before: Hoeben JA, Latham J, Garling J

Judgment 1HOEBEN JA: I agree with Garling J and the orders he proposes. 2LATHAM J: I agree with Garling J. 3GARLING J: On 16 August 2011, the applicant, Sam Isaac, pleaded guilty in the District Court at Sydney (Syme DCJ) to three counts of aiding and abetting the importation of a marketable quantity of a border control drug, namely heroin. Each count occurred between 16 December 2008 and 3 April 2009. 4The applicant was sentenced to an aggregate sentence of 11 years and 8 months with a non-parole period of 8 years and 6 months, expiring on 10 February 2018. The maximum penalty applicable to each count is imprisonment for 25 years and/or a fine of $550,000. 5The sentences commenced on 11 August 2009, which was the date upon which the applicant was arrested. He has been in custody since that time. 6The applicant seeks leave to appeal against the severity of his sentence.

Facts 7A Statement of Agreed Facts (which was amended in part in handwriting) was tendered to the sentencing Judge. A brief summary of these facts is set out below.

Count 1 - Scott Meksavanh 8On 12 January 2009, Scott Meksavanh was arrested at Sydney Airport, having arrived by aeroplane from Bangkok. 9He was wearing a pair of black shoes, which had concealed underneath the inner soles, 779.1g of a powder that, upon analysis, was found to contain 537.3g of pure heroin. The street value of this heroin was assessed as being between $537,408 and $940,000.

Count 2 - Aram Younan 10On 12 January 2009, at the same time as Scott Meksavanh arrived at Sydney, Aram Younan also travelled into and through Sydney Airport having arrived by aeroplane from Bangkok. 11Like Mr Meksavanh, he was wearing a pair of black shoes in which there was concealed powder. Since Mr Younan was not arrested, the precise weight of the powder, and the content of pure heroin, is unknown. However, the applicant agreed that the quantity was at least 2g, and hence was a marketable quantity. Her Honour found that the quantity carried by Mr Younan was about the same as that carried by Mr Meksavanh.

Count 3 - Akram Hanna 12On 3 April 2009, Akram Hanna was arrested at Sydney Airport having arrived by aeroplane from Bangkok. 13He was wearing a pair of white sports shoes which were found to contain, concealed under the inner soles, 961.5g of a powder which upon analysis was found to contain 642.1g of pure heroin. The street value of this heroin was estimated between $642,080 and $1,123,640. 14The applicant aided and abetted these three importations by doing, at least, the following: (a)met with the organisers who were of Vietnamese descent and agreed, for financial reward, to identify couriers to wear the drug-filled shoes from Thailand to Australia, thereby importing illicit goods or substances; (b)recruited Mr Leonard Vaga, to assist him in arranging for the importation of the illicit substances; (c)recruited each of the three couriers involved in the importations, provided them with, or else reimbursed them for purchasing, the air tickets to and from Thailand, accommodation in Thailand, and provided cash to each of the couriers before they travelled to Thailand; (d)prior to the departure of the couriers, the applicant, together with Mr Vaga, made all the arrangements necessary for himself and Mr Vaga to travel to Thailand and then to Vietnam, in order to have the implicated shoes filled with the illegal substances which were to be imported; (e)in respect of the first two counts, after arriving in Thailand, the applicant travelled to Vietnam where, with Mr Vaga, he provided the empty shoes to a Vietnamese national, who returned them to him a few days later. Upon return to him, the applicant noticed that each of the shoes, all of which were identical in weight, was much heavier than a normal shoe and much heavier than they were, when initially handed over to the Vietnamese national; (f)the applicant, with Mr Vaga, then travelled by road from Vietnam to Thailand, each wearing a pair of the newly filled shoes; (g)in Bangkok, he met each of the couriers and handed over the shoes to them and gave various instructions with respect to their behaviour whilst wearing the shoes and travelling to Australia, including telling the couriers not to touch the insides of the shoes with their hands because a dog at the airport might pick up on the smell; (h)in respect of the third count, the applicant gave instructions for Mr Hanna to travel to Vietnam where he handed over the empty shoes to a Vietnamese national, who returned them after the drugs had been concealed inside the soles of the shoes. When Mr Hanna arrived back in Bangkok, the applicant met him, took possession of the shoes, concealed them in his girlfriend's apartment for a number of days and then returned the shoes to Mr Hanna so that he could wear them whilst he returned to Sydney. At that time, the applicant gave Mr Hanna instructions with respect to not handling the inside of the shoes in the same terms as those given to the couriers in Counts 1 and 2; (i)the applicant admitted that he knew with respect to Count 3, that the shoes contained heroin; (j)the applicant admitted that he was the principal organiser who was responsible for the three importations of the marketable quantities of heroin into Australia from Thailand. In respect of the first two counts, the applicant admitted that Mr Vaga, whom he had recruited, was also a principal organiser. 15A number of subsequent events also formed part of the Statement of Agreed Facts. These events included: (a)on 11 August 2009, the applicant was arrested, charged and remanded in custody; (b)on 14 April 2010 the applicant pleaded guilty to the offence in Count 3, but pleaded not guilty to the offences in Counts 1 and 2. The matter was sent to trial in the District Court in respect of Counts 1 and 2; (c)in the period May 2010 to 11 August 2010, the applicant was interviewed by, and spoke to, the Australian Federal Police ("AFP") and officers of the Commonwealth Director of Public Prosecutions ("CDPP"); (d)in the period between 12 August 2010 and 17 August 2010, the applicant gave evidence in the trial of Mr Aram Younan; (e)on 29 September 2010, immediately after the applicant's trial started, the applicant pleaded guilty to Counts 1 and 2 and indicated that he adhered to his plea of guilty in respect of Count 3; (f)on 17 December 2010, the applicant participated in a conference with prosecuting lawyers, in advance giving evidence at the trial of Mr Vaga. (g)In the period between 8 February 2011 and 15 February 2011, the applicant gave evidence as a Crown witness in the trial of Mr Vaga.

Sentence 16The sentencing Judge imposed the following sentences, commencing with Count 3: (i)Count 3: 8 years 4 months to commencing 11 August 2009; (ii)Count 2: 10 years 2 months to commence on 11 August 2010; (iii)Count 1: 10 years 2 months to commence on 11 February 2011. 17The aggregate sentence was 11 years and 8 months, commencing on 11 August 2009. The sentencing Judge fixed a non-parole period of 8 years and 6 months which commenced on 11 August 2009 and is due to expire on 10 February 2018. 18In her remarks, in addition to referring to the Agreed Facts, the sentencing Judge found or noted the following matters: (a)a discount for the facilitation of the course of justice by the entry of the guilty plea for Count 3 should be 25 per cent, but that the discount for the plea of guilty for Counts 1 and 2 should only be notional; (b)the applicant had provided some limited assistance to AFP and Crown authorities which merited a further discount. No discount was available with respect to Count 1 because the courier concerned, Mr Meksavanh, had pleaded guilty before the applicant's arrest and before the provision of any assistance by the applicant to the AFP. However, in respect of Counts 2 and 3, the sentencing Judge assessed the appropriate discount for assistance at 15 per cent; (c)the personal circumstances of the applicant, including his age and his lack of any employment did not, having regard to the circumstances of the offences, merit a finding that the applicant had particularly good prospects of rehabilitation; (d)the applicant had not proved that he was remorseful. He did not give evidence on sentence; (e)it was likely that the quantity of drug imported in respect of the charge in Count 2 was similar to the quantity imported in respect of the charge in Count 1; (f)in respect of each importation, the applicant could fairly be described as being the only conduit between the principals who arranged for the importation and the couriers who gave effect to, and made possible, the importation. The sentencing Judge concluded that the applicant played a significant role which was pivotal to the whole drug importation operation; (g)although the offences were each part of an overall course of conduct, it was appropriate to accumulate the sentence to a limited extent; (h)there were no special circumstances. 19The sentencing Judge noted that s 16A of the Crimes Act 1914 (Cth) applied to the sentence which she was obliged to impose, and gave consideration to the matters required by that section.

Notice of Appeal 20On 29 February 2012, the applicant filed a notice of his application for leave to appeal. To that notice he attached the following grounds: "1. Her Honour erred in the assessment of the utilitarian value of the applicant's plea with respect to Counts 1 and 2. 2. Her Honour erred in her assessment of the value of the assistance provided and the subsequent manner of the reduction of the sentence."

Ground 1: Utilitarian value of guilty pleas to Counts 1 and 2 21The applicant concedes that the pleas of guilty to Counts 1 and 2 were late. It is apparent that the pleas were entered after the date fixed for the commencement of the trial, but before a jury was empanelled. The trial was due to occupy three to four weeks of hearing time. The plea no doubt saved the cost, expense and disruption associated with the hearing, but coming at the time that it did, the extent to which it facilitated the course of justice was a matter which the sentencing Judge was entitled to assess at the lower end of the ordinary range. 22The applicant submits that an examination of the sentencing Judge's remarks reveal error. In particular, the applicant submits that since her Honour described the discount for the entry of the plea as being only a "nominal" one, there must have been an error because the saving of a three to four week trial could not bear the description "nominal". The applicant submits that, at least, a discount of 10 per cent was an appropriate one for a late plea. 23The law recognises that when assessing the appropriate sentence to impose, the fact that an applicant has pleaded guilty is to be taken into account in fixing the appropriate sentence to be imposed. In Commonwealth offences, s 16A(2)(g) of the Crimes Act (Cth) obliges a court to take that fact into account. However, the weight to be accorded to it, and the significance of it as a factor, together with whether any discount ought be identified, are matters which fall to be considered on an individual case basis. 24Since the applicant was being sentenced for offences against the Criminal Code Act 1995 (Cth), the principles stated by the High Court of Australia in Cameron v R [2002] HCA 6; (2002) 209 CLR 339, were applicable. 25The plurality, Gaudron, Gummow and Callinan JJ, said at [14]: "Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing." 26As Simpson J, with whom Spigelman CJ and Harrison J agreed, said in Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458 at [114]: "[The sentencing Judge] was called upon to sentence Tyler in accordance with the principles stated by the High Court in Cameron. This specifically excludes reference to the utilitarian value of the plea. Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question of whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable. Nor is there any requirement in sentencing commonwealth offenders, for quantification of a discount for the plea of guilty." 27There was a very strong Crown case against the applicant. His plea came late in the proceedings. It was well within the sentencing Judge's discretion to describe, in adjectival terms, the appropriate allowance for the plea of guilty in respect of Counts 1 and 2 as being "nominal". 28The sentencing Judge was, in this case, confronted with the need to assess the appropriate discounts for the pleas of guilty, differently for Counts 1 and 2, on the one hand, and Count 3 on the other, because the pleas of guilty were entered at very different times in the progress of the matters through the judicial system. 29As well, although it will be necessary to discuss this in detail when dealing with the next ground of appeal, the sentencing Judge was required to assess, as a further basis for a discount, the assistance which the applicant provided to the authorities. Any such discount was applicable to all three counts. 30Ordinarily, it is within the discretion of a sentencing Judge to refrain from individually quantifying the particular components of a discount: R v Robert Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. However, in the particular circumstances of this case, it would have been preferable if her Honour had done so, with respect to Counts 1 and 2, as she did with Count 3, when she fixed 25 per cent as the appropriate discount for the plea. 31Having regard to the timing of the pleas being entered on Counts 1 and 2, a conventional assessment of the appropriate discount is 10 per cent. There is little profit in resolving what is in essence a semantic debate about the use of the word nominal, and whether an assessment of 10 per cent would or would not fall within that description. 32However, her Honour allowed an overall discount of 15 per cent for Counts 1 and 2. This is sufficient to incorporate a 10 per cent allowance for the plea of guilty as evidencing the applicant's willingness to facilitate the course of justice. 33On that basis, I see no error of principle in the manner in which the sentencing Judge dealt with this aspect of the discount. 34I would not uphold this Ground.

Ground 2: Error in determining value of assistance 35The applicant submits that having regard to the extent of assistance provided by the applicant to the AFP, and to prosecuting authorities, insufficient allowance was made by the sentencing Judge by way of a discount to reflect that assistance. 36As well, the applicant submits that the way in which the sentencing Judge assessed the appropriate discount, namely by assessing it differentially for each count on the indictment, was contrary to authority and amounted to an error in the sentencing process sufficient to result in a miscarriage of justice. 37In the course of the oral argument on the application, the Crown accepted that the sentencing Judge had fallen into error in the way in which she approached the application of such discount for assistance as was appropriate. The Crown accepted that this error would require this Court to re-sentence the applicant. 38This concession was correctly made. The result of this error is that the appropriate discount for assistance was not applied as it should have been. Put differently, the applicant did not receive the full benefit of the discount for assistance to which he was entitled. He received a sentence which was longer than it should have been. I am satisfied that a lesser sentence is warranted. 39As a miscarriage of justice has resulted, I would uphold the ground of appeal.

Re-sentencing 40In undertaking the exercise of re-sentencing the applicant, it is necessary to identify with some particularity, the extent of the assistance which was actually provided by the applicant. The source of the evidence on this came from a document prepared by two AFP officers, dated 6 April 2011, which was tendered to her Honour, headed "Assessment of Assistance". One officer was an agent, and the other a Detective Superintendent. They were familiar with the importations and the investigations of the AFP about all of those responsible for these importations. 41The AFP officers provided an evaluation of the assistance. Commonly, the details of such assistance are confidential. Although no specific orders were made below for confidentiality, prudence dictates that the Court should follow the usual practice. It is necessary, however, to give a brief summary of the AFP's evaluation. It would appear that the applicant provided information to the AFP and agreed to, and did, give evidence as a witness at two trials. One trial involved Mr Younan and the other, Mr Vaga. The AFP acknowledged that his evidence had been of some assistance. 42The AFP summarised the information provided to it by the applicant, relating to the importation of the drugs as being "of low value to the AFP". 43Although, as the AFP points out, with respect to two of the three counts in the indictment, the information provided to the AFP by the applicant was of no assistance, or no practical assistance, that does not mean that a discount should not be assessed and applied to the sentences imposed in respect of those particular counts. As the evaluation of the assistance demonstrates, the sentencing Judge, and now this Court, was being asked to take into account and consider as a factor in mitigation of sentence, the assistance which the applicant provided in respect of the offence committed by Mr Vaga, and his subsequent trial. There was no matching count on the indictment upon which the applicant stood for sentencing that reflected this discrete assistance. It was necessary to assess all of the assistance given, and apply any discount to all counts equally. 44The complexity of applying an assessed discount to multiple offences was discussed by Howie J, with whom McClellan CJ at CL and Harrison J agreed, in Felton v R [2010] NSWCCA 79 at [45]: "45 It is important to note that, when sentencing for multiple offences, the discount has to apply to the overall sentence imposed and not just the individual sentences. This of course may be difficult when there are different discounts applicable to different sentences. A rigid application of Pearce means that the sentence for each offence, including any applicable discount, is determined and then attention paid to the issue of totality. But in considering totality, the sentencer must not lose sight of the discount that has to apply to the total sentence and not just the individual sentences. Where all sentences are made concurrent, of course the problem does not arise. But where individual sentences are accumulated, either in whole or part, the discount can be eroded." 45In this case, in order that the discount for assistance is not eroded, and because there are different sentences being imposed on the three individual counts in the indictment, the appropriate approach is to identify and apply the assessed discount for assistance to each of the sentences, after each is initially assessed. Totality then needs to be considered. 46In assessing the appropriate discount for assistance, it is necessary to recognise the reasons which underpin the giving of the discount. They include: (a)it is in the public interest that criminals with information about the activities of other criminals with whom they are associated should be encouraged to give information to the police: R v Lowe (1977) 66 Cr App R 122; R v Perez-Vargas (1986) 6 NSWLR 559 at 562 per Street CJ with whom Hunt and Allen JJ agreed; (b)it is in the public interest that criminals should be persuaded not to trust one another and discounting the sentence of a person who provides such assistance facilitates such distrust: R v James and Sharman (1913) 9 Cr App R 142; R v Golding (1980) 24 SASR 161 at 162 per Wells J; (c)leniency through a discount for assistance to police marks, or rewards, the good inherent in the conduct of the provider of the assistance: Golding at 172-173 per Wells J; (d)a person who has provided assistance will often, but not always, whilst a prisoner, be confined for his or her own protection in much harsher conditions than the general prison population. Hardship may also be occasioned to a prisoner upon their release into the community: R v Cartwright (1989) 17 NSWLR 243 at 250 per Hunt and Badgery-Parker JJ; R v Gallagher (1991) 23 NSWLR 220 at 227 per Gleeson CJ; R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [55] per Latham J. 47However, there are two cautionary matters that need to be kept in mind. The first is that it is no longer regarded as axiomatic that a person who has provided assistance to authorities will serve the sentence under harsher and more onerous conditions when compared to an ordinary prisoner: R v Sukkar at [4]-[5] per Howie J; FS v R [2009] NSWCCA 301; (2009) 198 A Crim R 383 at [21] per Rothman J. 48The second matter which calls for caution is that the application of a discount for assistance should not result in the imposition of a sentence which is so lenient that it would be: "... disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender". R v Sukkar at [54] per Latham J. 49In considering the assessment of a discount for assistance to authorities, it is also necessary to keep in mind that there may be overlap with other mitigating factors, including a plea of guilty, and an expression of remorse or contrition, as these matters are often part of a "... complex of inter-related considerations": R v Gallagher at 228 per Gleeson CJ. 50I turn then to assessing an appropriate discount for assistance. In so doing, I have regard to a number of particular matters. 51First, the assessment of the AFP officers that the assistance was of "low value" to the AFP, together with the Crown Prosecutor's assessment, as told to the sentencing Judge, that the applicant's conduct was regarded as being of "some assistance" to the Crown. 52Second, on two separate occasions and over many days on each occasion, the applicant gave evidence before a jury. He was examined in chief, and cross-examined. As Bryson JA remarked in R v Sukkar [2005] NSWCCA 55 at [52]: "An offer [of assistance] which actually goes through the fire of a trial has a far stronger claim than assistance which an offender was prepared to but was not called upon to give". 53Third, the applicant having given evidence publicly, and thereby revealing his status as an "informer" and the provider of assistance to authorities, does not give any evidence which suggests that his conditions of imprisonment are any more onerous than other prisoners. On the contrary, his affidavit of 14 June 2012, suggests that since the imposition of this sentence, he has been incarcerated in the general prison population and has had the ordinary access to eduction and medical treatment. He has regular visits from his family. There is no basis for any finding in this case that his conditions of custody have been or are likely to be, more onerous than any other prisoner. 54The applicant's submissions to this Court, specifically eschewed any suggestion that the starting point for the sentence imposed in the District Court was an inappropriate one. There was no ground of appeal which claimed that the sentences actually imposed were manifestly excessive, or that, except for the discounts which were assessed and the way in which they were applied, there was any error in the sentences imposed. 55In respect of accommodating the pleas of guilty, as I have noted above, I would allow 10 per cent on Counts 1 and 2, and 25 per cent on Count 3 for the applicant's willingness to facilitate the course of justice. 56It is then necessary to apply the discount for assistance. In all of the circumstances to which I have referred, and having regard to the authorities such as R v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474 and SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249, where the customary ranges are discussed. I am of the view that each sentence should be discounted by a further 15 per cent to reflect the assistance provided. 57Having regard to the objective criminality involved, and the subjective features of the applicant, which were adequately taken into account by the sentencing Judge. I would agree with the sentencing Judge's starting point for the sentence imposed, before she allowed any discount. I would commence any of the sentences, which this Court should impose, from a similar starting point. As well, no complaint was made about the manner or extent of accumulation of the sentences. Subject to considering, ultimately, the question of totality, I would apply the same accumulation. 58Following the sentencing Judge's approach of starting with the sentence on Count 3, which was the offence to which the applicant pleaded guilty many months before his other pleas, I would sentence the applicant to the following sentences: Count 3: 7 years 6 months to commence on 11 August 2009. This incorporates an overall discount of 40 per cent from the initial starting point; Count 2: 8 years 4 months to commence on 11 August 2010. This incorporates a discount of 30 per cent from the initial starting point, whereas the sentencing judge allowed a discount of 15 per cent; Count 1: 8 years 4 months to commence on 11 February 2011. This also incorporates a discount of 30 per cent from the initial starting point, whereas the sentencing judge allowed a discount of 15 per cent. These sentences would result in an aggregate sentence of 9 years and 10 months commencing on 11 August 2009. This aggregate sentence is constituted by the sentence on Count 1, being 8 years and 4 months, to which must be added the period of accumulation of the other two sentences, which totals 1 year and 6 months. 59Having regard to the principle of totality discussed in Pearce v R [1998] HCA 57; (1998) 194 CLR 610, I am satisfied that in the result, the aggregate sentence of 9 years and 10 months, adequately reflects the whole of the criminality involved. The sentencing Judge did not find any particular circumstance which merited the need for a longer parole period than would ordinarily be customary. No submissions were made which suggested that this approach was wrong. I agree that the sentencing Judge's approach on this issue was correct. 60In my view, an appropriate non-parole period is 7 years and 5 months, commencing on 11 August 2009. This would mean that the first day upon which the applicant will be eligible for release would be 10 January 2017.

Orders 61I propose the following orders: (1)Grant leave to appeal. (2)Appeal allowed. (3)Quash each of the sentences imposed by the District Court of NSW (Syme DCJ) on 16 August 2011. (4)In lieu thereof, Mr Isaac is sentenced as follows: Count 3: a sentence of imprisonment of 7 years and 6 months commencing on 11 August 2009; Count 2: a sentence of imprisonment of 8 years and 4 months commencing on 11 August 2010; Count 1: a sentence of imprisonment of 8 years and 4 months commencing on 11 February 2011. In respect of all counts, Mr Isaac is sentenced to an aggregate sentence of 9 years and 10 months commencing on 11 August 2009 and concluding on 10 June 2019. (5)Fix a minimum non-parole period of 7 years and 5 months commencing on 11 August 2009 and concluding on 10 January 2017, which is the first day upon which Mr Isaac will be entitled to be released.

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