Court of Appeal (WA)|2001-12-20|Before: Steytler J

Iskandar v The Queen [2001] WASCA 409 (20 December 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ISKANDAR -v- THE QUEEN [2001] WASCA 409

Appeal against sentence - Importation of narcotics - Fast-track plea - Nine and a half years' imprisonment manifestly excessive - Appropriate sentence discount for fasttrack plea - Assistance rendered and future promised assistance - Mitigating circumstances - Lesser sentence imposed

Respondent : Commonwealth Director of Public Prosecutions

Barany v The Queen [2000] WASCA 240

R v Bellissimo (1996) 84 A Crim R 465

House v The Queen [1936] HCA 40; (1936) 55 CLR 499

Little v The Queen [2001] WASCA 87

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Quach v The Queen [1999] WASCA 210

R v Cartwright (1989) 17 NSWLR 243

R v Verschuren (1996) 91 A Crim R 1

1 STEYTLER J: I have had the advantage of reading, in draft, the reasons for decision of Olsson AUJ. I agree with him that leave to appeal should be granted and that the appeal should be allowed.

2 I would not, myself, be prepared to say that the applicant should have been given a discount, for her fast-track plea of guilty, of not less than 25 per cent, even taking into account the weighty considerations of policy to which reference has been made by Olsson AUJ. The amount of the discount to be given is, in the end, a matter of discretion which will depend upon the facts and circumstances of the individual case and the range of 25 to 35 per cent specified in Radebe v The Queen [2001] WASCA 254 at [28] is only a general guide which might be departed from in appropriate circumstances. Here the applicant was caught "red handed", carrying a very large quantity of a dangerous and socially destructive drug in a body pack. There was consequently no real room for anything other than a plea of guilty. While it is still important, for sound policy reasons, to reward a person who pleads guilty on the fast-track in such cases, and while the range will ordinarily be that identified in Radebe and in Little v The Queen [2001] WASCA 87, much will depend upon the circumstances of the individual case including (without intending any limitation) the nature of the offence, the strength of the Crown case, the starting point for the purpose of calculating the sentence and the need to "ensure that the ultimate sentencing result is not so far out of touch with the circumstances of the particular offence and offender, that it constitutes an affront to community standards" (as to which see R v Gallagher (1991) 23 NSWLR 220 at 232, per Gleeson CJ).

3 However it does seem to me that a total discount of around 32 per cent, in respect of both the fast-track plea of guilty and the applicant's co-operation with the police, was so low as to be outside an appropriate range.

4 Here the co-operation has been, and promises still to be, of real value to the police and prosecuting authorities. The difficulties in successfully detecting and prosecuting major drug offenders is notorious, as is the risk associated with the provision of information in such cases. It is consequently important for the courts, where the co-operation is valuable, to acknowledge it appropriately. (See Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 239.)

5 There is nothing new in the fact of acknowledging co-operation by means of a significant reduction in sentence. So, for example, in Hayes v The Queen [1981] WAR 252, Burt CJ (with whose reasons Wickham and

Kennedy JJ were in agreement) mentioned (at 254) that it appeared from a number of the reported cases that co-operation had resulted in a reduction of 50 per cent or even more. Similar comments were made by Brinsden J in R v Breuer & Chaney (1986) 32 A Crim R 1 at 9 and again in R v Epiha (1987) 32 A Crim R 12 at 19. Other examples of significant reductions are mentioned in a useful collection of the cases compiled by Wells J in R v Golding (1980) 24 SASR 161.

6 Of course, a discretion to acknowledge co-operation is not a matter of mathematics, governed by "tariffs" derived from other cases. As has been pointed out by Gleeson CJ in Gallagher, above, at 230, the fact of co-operation is only one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.

7 I agree with Olsson AUJ that, in all of the circumstances of this case, a more appropriate discount for the applicant's fast-track plea of guilty and co-operation would, having regard, in particular, for the valuable nature of the co-operation, have been one of 50 per cent. While that is a very substantial discount from the starting point of 7 years' imprisonment, it is not so substantial, in the circumstances of this case, as to constitute the resulting head sentence of 7 years' imprisonment an affront to community standards.

8 I also agree with Olsson AUJ that, in resentencing the applicant, it is appropriate to fix a non-parole period of 3 years and 7 months, to run from 17 May 2001, the date upon which she was first imprisoned. Were it not for the increased hardship which the applicant faces in being imprisoned in a foreign country in which she has language difficulties and also as a consequence of her ill-health, I would have been inclined to fix a somewhat higher non-parole period.

9 The upshot of the aforegoing is that I, too, would give leave to appeal, uphold the appeal, quash the sentence imposed by the learned sentencing Judge and substitute for it a sentence of 7 years' imprisonment, to run from 17 May 2001, with a non-parole period of 3 years and 7 months.

10 WHITE AUJ: I have read in draft the reasons to be published by Olsson AUJ and I agree with his Honour's reasons.

11 OLSSON AUJ: Mira Iskandar, an Indonesian national (to whom I shall refer as "the appellant"), seeks leave to appeal against a sentence imposed on her consequent upon a plea of guilty to a charge that, on 17 May 2001, at Perth, she imported into Australia a prohibited import to which s 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of methylamphetamine being not less than the trafficable quantity applicable to that substance.

12 Her plea was entered in accordance with the fast-track system and she was sentenced by a District Court Judge to a term of 9 and a half years' imprisonment, with a non-parole period of 5 years. The learned sentencing Judge took, as his starting point, a term of 14 years, which he reduced to 12 years in recognition of the appellant's early plea and personal mitigating factors. He then further reduced the term to 9 and a half years in respect of her promised future co-operation in respect of the prosecution of other alleged offenders.

13 It is complained that the sentence imposed is manifestly excessive, in that it does not reflect adequate discounts for the fast-track plea, the assistance already rendered and also future promised assistance to the authorities in relation to charges brought against the offenders. The appellant further seeks to adduce evidence of facts concerning her health, which have manifested themselves since she was sentenced, as an additional mitigating factor.

14 The relevant narrative facts are not in dispute.

15 The appellant is 35 years of age and lives in a de facto relationship in Jakarta. She has been employed as a shop assistant and has assisted in supporting her family with her earnings.

16 It appears that she had come to Australia on one occasion prior to the offence and, in a social context, met a person to whom she referred as "Nanna". That person is said to be an alleged offender called Marlan, who told her that he was coming up to Indonesia in the future and would then catch up with her.

17 The learned sentencing Judge was told that Marlan did subsequently go to Indonesia and, whilst there, made preliminary overtures to her concerning drug importation into Australia. She was initially reluctant but, after a series of conversations, which also involved an associate of Marlan in Indonesia (referred to as "Bobby" and "Sebastian"), she agreed to participate. She was required to recruit another Indonesian (the co-offender Soewandi) as a co-courier and was promised $10,000 for her part in the enterprise. An initial payment of $1000 for expenses was made to her at one point.

18 In the result, the appellant and Soewandi (her former boyfriend) arrived at Perth International Airport on Qantas flight QF 72 on the afternoon of 17 May 2001. Both were intercepted in the Customs Hall and searched by ACS officials. It was found that each of them was carrying body packs containing a substantial quantity of high grade methylamphetamine. In the case of the appellant, she was carrying almost 1.1 kilograms of a white crystalline substance which, on analysis, was found to contain 902.9 grams of pure drug. She also had possession, in her luggage, of two additional small parcels of the drug. The importation by her involved a total of 982.2 grams of pure methylamphetamine. The importation by the co-offender Soewandi was of 921.6 grams of pure methylamphetamine.

19 The learned sentencing Judge was informed that the retail value of each of the two importations was of the order of in excess of $AUD2 million.

20 Upon apprehension at the airport, the appellant readily admitted her offence and fully co-operated with the authorities, although, at that time, she made no mention of the two separate packages in her luggage. Quite apart from giving full information as to how the importation had come about, she freely agreed to assist in making a controlled delivery to the intended recipients of an inert substance substituted for the drug.

21 Her instructions had been to proceed from the airport, after arrival, to a room booked for her at the Burswood Hotel and there await Marlan's arrival. She did so with Soewandi. Agents of the Australian Police Force ("APF") maintained a surveillance operation in relation to the room and it was also equipped to tape any conservations which occurred.

22 At about 9.50 am the next morning, Marlan came to the appellant's room. He was followed a few minutes later by another alleged offender named Chua. Both Marlan and Chua were arrested shortly after leaving the Burswood Hotel. The controlled delivery substance, as well as the two small packages of amphetamine which had been in the appellant's luggage were found in their possession. They are currently awaiting trial on separate charges against them. The appellant has signed an undertaking to give evidence against them, as contemplated by s 21E of the Crimes Act 1914 (Cth).

23 In the course of sentencing submissions, a letter written by the AFP testifying to the assistance rendered by the appellant was placed before the learned sentencing Judge. Copies were made available to the members of this Court for perusal. It is plainly inappropriate, for obvious reasons, to refer in detail, in these reasons, to the content of that letter. Suffice to say the co-operation by the appellant with the AFP was important, valuable and instrumental in closing down or seriously disrupting a substantial illegal importation syndicate and the apprehension of other offenders.

24 The appellant presented as a person who had no prior record of offending and had previously led an industrious and respectable life. It is clear that, being a person of modest means, she was tempted to do what she did by the promise of the $AUD10,000, which she did not ever receive.

25 It is apparent that, having regard to the gravity of the offences, the learned sentencing Judge took 14 years' imprisonment as his nominal starting point. Bearing in mind the knowing involvement of the appellant, her admitted realisation that her conduct would constitute a serious criminal offence and the large street value of the drug imported, there can be no doubt that such a starting point was appropriate. Indeed, I did not take Mr Bowden, counsel for the appellant, to contend otherwise.

26 The practical effect of the sentence discounts allowed by the learned sentencing Judge has been to give the appellant a total reduction of the order of 32 per cent, of which just over 14 per cent is attributable to the fast-track plea.

27 With respect, it seems to me that the discounts allowed are substantially less than those warranted by the applicable authorities - a situation conceded by Mr Dembo, counsel for the Crown.

28 As was said by McKechnie J in Radebe v The Queen [2001] WASCA 254 par [28]:

"Following Little [Little v The Queen [2001] WASCA 87], it is likely to be an unusual case where a sentence for a fast track plea of guilty will not be reduced by at least 25 per cent, following the plea of guilty."

29 He made the point that there are reasons of high policy why it is appropriate for courts to give a discount of sentence or, in some cases, an alternative to a sentence of imprisonment, for an early plea of guilty. An early plea, in the context of the fast-track system in particular, should always be rewarded, "not because of any virtue in the individual, but as an acknowledgement that the early plea of guilty has a beneficial effect in an overcrowded criminal justice system".

30 Whilst, as Mr Dembo stressed, this was a case in which the Crown case was extremely strong - the appellant was caught red-handed - such a situation is not to deny her the full benefit of opting for the fast-track system, as was clearly accepted in Little v The Queen (supra) at par [13]. The rationale for a substantial discount on a plea within that system is primarily founded on a recognition of co-operation on the part of the offender, by facilitating the administration of justice. The discount to be given, inter alia, takes into account the formal acknowledgement of guilt before any witness statements are prepared, or exhibits other than a record of interview or other statement to the police, are provided. This results in significant savings to the criminal justice system including the police service, prosecuting authority and court systems alike.

31 Little v The Queen, at par [13], confirms that discounts for pleas in the fast-track system usually range from 25 to 35 per cent, dependent on the circumstances. Such a range is not ungenerous, but it may fairly be said that the efficacy of the system depends upon a faithful adherence to it. No doubt, generally speaking, if an offender is caught red-handed and the plea is no more than an acceptance of the inevitable, that fact will normally indicate selection of a figure at or towards the bottom end of the range. However, it is difficult to perceive how, logically, it can warrant an approach in disconformity with the range, absent some very exceptional circumstances.

32 In my opinion, the discount attributable to the plea in the instant case should, in conformity with Radebe v The Queen, have been not less than 25 per cent for the plea alone. The situation was no more generically unusual than those in either Little or Radebe.

33 There remains the issue concerning the proper allowance to be made for past and promised future assistance to the AFP and prosecuting authority.

34 Particularly in serious drug cases, the courts have long taken the view that, such are the difficulties attendant on successful detection and prosecution of major drug offenders and the very real risks associated with co-operation by their associates with the authorities, that very generous incentives must normally be made available to potential informers in order to secure their assistance.

35 Successive decisions of this and other courts have made it abundantly clear that, in cases in which an offender has provided full, frank and accurate information to the authorities which does, in fact, lead to the successful detection and prosecution of operators at a substantial level in the drug scene, then very substantial sentence discounts are warranted. This is especially so when the offender participates in a controlled supply or sale situation, thereby leading to the apprehension of other persons involved in the relevant activity. It is not to be forgotten that co-operation of that type, by its very nature, is fraught with the danger that the other offenders may well realise why it was that their activities were detected and seek to exact retribution on the informer.

36 So it is that sentence discounts of up to 50 per cent have been not uncommon in such circumstances (see, for example, R v Breuer and Chaney (1986) 32 A Crim R 1 at 9, R v Epiha (1987) 32 A Crim R 12 at 19, R v Gallagher (1991) 23 NSWLR 220 at 226, and "X" v The Queen [2000] WASCA 355 at par [19].

37 At the risk of being accused of some degree of self-justification, I would suggest that what fell from Deane and McHugh JJ in Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 239 is, conceptually, directly in point in a situation such as that now before the Court.

38 No doubt, in the final analysis, it is, nevertheless, important to maintain a proper sense of proportion, to give due cognisance to the dictum of Gleeson CJ in Gallagher at 232. He there commented that "any discount arrived at must, on the one hand, properly reflect the above considerations, yet, on the other, ensure that the ultimate sentencing result is not so far out of touch with the circumstances of the particular offence and offender, that it constitutes an affront to community standards".

39 Whilst, with respect, such a conceptual approach is obviously sound, its practical application is not without difficulty. What is inherently involved is a balancing of ideals which are necessarily in tension with one another. It is really a question of the price which the community is prepared to pay in order to bring major drug offenders to justice. I venture to suggest that the community interest is best served by a degree of sentence discount generosity which, in a particular case, is seen as a fair price to achieve a practical end result accepted by the relevant authorities as a significant gain in the war against drug importation.

40 Be that as it may, there was nothing in the circumstances of the present case which could have justified a denial to the appellant of the full fruits of her ready assistance to the authorities and promise to give evidence, in a situation which must put her at future risk.

41 In my opinion, a total discount of the order of 32 per cent in a situation in which a minimum of 25 per cent was, in any event, warranted for the fast-track plea alone, can scarcely be said to accord due recognition to the significance and extent of the appellant's co-operation with and assistance to the authorities. With all due respect to the learned sentencing Judge, it seems to me that both percentage discounts applied constituted an error in sentencing principle.

42 I would, accordingly, grant leave to appeal, allow the appeal and set aside the sentence imposed.

43 It then falls to this Court to sentence the appellant afresh.

44 In doing so, a question arises as to the significance to be attached to the health problems which have been experienced by the appellant whilst in custody as a sentenced prisoner as a consequence of the operative treatment which she has undergone and the sequelae of it.

45 There is no doubt that a sentencing court is entitled to take into account, as a mitigating factor, circumstances such as this (see R v Morgan (1996) 87 A Crim R 104 at 107, R v Smith (1987) 27 A Crim R 315 at 317).

46 There can be no question that, since her incarceration, the appellant has had a difficult and stressful time through no fault of her own. She is currently required to use a colostomy bag. It is said that her mobility is restricted to the point that she has to move about the prison in a wheel chair, with the assistance of other prisoners.

47 Although that be so, the material which has been placed before the Court is far from definitive as to her future prognosis. The medical report written by Dr Speldewinde, seems to indicate that, by about the end of February 2002, the appellant will have a further operation to remove the need for the colostomy.

48 All that can be said with certainty at this stage is that, over a period of four to six months, the appellant, who seems to speak limited English, will have had a much harder than usual time in serving her custodial sentence. That is a factor which the Court can, in a general way, take into account in formulating a sentencing strategy.

49 Bearing that in mind and having regard to the other considerations identified above, I see no justification for denying the appellant a full 50 per cent discount in the instant case, without prejudice to any potential future considerations pursuant to the provisions of s 21E of the Crimes Act.

50 In compliance with the requirements of that section I would structure the sentencing approach in this manner. The commencement point should be a sentence of 14 years, which must be reduced by 35 per cent for the plea within the fast-track system and past co-operation plus a further 15 per cent in recognition of the assistance promised by the appellant to the authorities. The resultant head sentence is a term of 7 years, to run from 17 May 2001.

51 I see no reason to depart from the approximate proportion of non-parole period to head sentence arrived at by the learned sentencing Judge. I would therefore fix a non-parole period of three years and seven months, also to run from 17 May 2001.

Iskandar v The Queen [2001] WASCA 409

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Iskandar v The Queen [2001] WASCA 409 (20 December 2001)

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