Jules v R [2007] NSWCCA 243 | Case summary

Each of them except PP had ingested the pellets in Singapore on the day of the flight's departure. PP had been physically unable to swallow them, and had inserted as many as he could into his rectum. 7 On 18 November 2003 the applicant was discharged from St George Hospital and taken to Australian Federal Police Headquarters in Sydney. There he entered into a record of interview. He said that he was born in France but had lived in Bali for the previous five years. He had flown from Bali to Singapore in order to apply for a renewal of his business visa, which had to be done from outside Indonesia. At the Strand Hotel in Singapore he had a chance meeting with two Frenchmen, Jacob and Keram, one of whom he knew slightly from Bali. They asked if he was interested in earning quick money, to which he answered yes. They took him to a bedroom in the hotel and showed him a number of pellets. He was told that if he swallowed 100 pellets he would receive US$10,000. The applicant then booked into the Strand Hotel where he remained overnight. He gave these acquaintances his details and somebody obtained his air ticket to Sydney. The next morning he started to swallow the pellets, and continued to do so until shortly before his departure for the airport. He said that he did it of his own free will knowing that it was illegal to bring cocaine into Australia. He knew no one in Australia. It was his first visit to this country. 8 The applicant was taken into custody and charged with the offence under s 233B of the Customs Act. A similar charge was laid against each of his co-offenders. 9 The applicant pleaded guilty to the charge in the Local Court at an early stage in the proceedings, as did his co-offenders Jacob and Keram. The co-offender King entered a plea of guilty a little later. However Judge Graham found that the timing between them was not markedly different so as to require differential treatment on sentence. The co-offender PP also pleaded guilty to a charge under s 233B of the Customs Act for which he was sentenced some months before the others. On 28 May 2004 Judge Graham sentenced PP to imprisonment for six years with a non-parole period of four years. 10 The remaining co-offenders, including the applicant, were all sentenced at the same, time in September 2004. In his very comprehensive Reasons for Sentence, Judge Graham described in considerable detail the objective circumstances of the offence committed by each of them, as well as their subjective personal circumstances. He noted that the street value of the cocaine imported by the applicant was in the order of $452,000. As to the applicant's personal background, he was then 31 years old. He had been brought up and educated to tertiary standard in France. Some years earlier he had moved to Bali where he had started a shoe design business. This was apparently flourishing when the Bali bombing took place in October 2002. The applicant's main shop was only a few metres from the centre of the bombing. The destruction of most of his stock, coupled with the subsequent downturn in tourism, meant that by late 2003 he had effectively lost his business and was suffering serious financial difficulties. This was the context in which he agreed to bring the pellets of cocaine into Australia. He was genuinely remorseful for his actions, his Honour found. His Honour concluded that "the offender could be regarded as a person generally of good character for whom this offence is out of character." 11 His Honour concluded that the organisers of the criminal enterprise were probably in Singapore, and that the five men who had brought the cocaine to Sydney were acting as couriers. Notwithstanding that there was a difference between the amount imported by each of them, his Honour determined that there should be a parity of sentence between them. All of them, his Honour observed, had ingested or secreted as much of the drug as they were physically able to do. In these circumstances his Honour determined that the difference in weight should make little or no practical difference to the sentence ultimately imposed in each case. 12 His Honour said that when he had sentenced PP, he had commenced with a notional head sentence of nine years from which he deducted approximately 35 per cent. Fifteen per cent of this was deducted for the plea of guilty and the remaining 20 per cent for assistance which PP had offered to provide to the authorities, but which had not been taken up by them. His Honour determined that the sentencing of the remaining four offenders should proceed on a similar basis, with a notional head sentence of nine years subject to deductions for the various pleas of guilty. Deducting 20 per cent on this account from the head sentence of nine years, a sentence of seven years and two months was reached. His Honour determined that this should be adjusted down in order to take account of the subjective or mitigating circumstances of the various offenders. He thus imposed a head sentence in each case of seven years imprisonment. In the case of Jacob, King and the applicant, his Honour determined that the appropriate non-parole period should be 60 per cent of the head sentence, which produced a non-parole period of four years and four months. This was the sentence he proceeded to impose on each of them. A lower non-parole of four years was imposed on the offender Keram who was suffering from hepatitis C and who, his Honour found, would probably have difficulty receiving appropriate treatment in custody. 13 Two of the applicant's co-offenders appealed against the severity of their sentences. The first in point of time was PP. On 14 June 2005 the Court of Criminal Appeal allowed his appeal and quashed his sentence. In lieu thereof he was sentenced to imprisonment for five years and seven months with a non-parole period of three years and four months. (R v PP [2005] NSWCCA 214). Two grounds were raised in support of PP's appeal. One of them, relating to the repealed s 16G of the Crimes Act 1914 (Cth), was rejected by the Court. The other ground concerned the suggested disparity between the sentence imposed on PP and those of his co-offenders. It was this ground which found favour with the Court. Simpson J (with whom McClellan AJA and Rothman J agreed) pointed out that PP's co-offenders received a 20% reduction for their pleas of guilty, whereas he received only 15%. There was no apparent explanation for this disparity. The co-offenders also received the benefit of the rounding down of their sentences by a period of two months, a benefit which was not accorded to PP. Finally, PP's non-parole period was set at 66% of the total sentence, whereas three of his co-offenders (including the applicant) received a non-parole period of 60% of the total sentence. In re-sentencing PP, the Court started with the same notional term of nine years and then applied the same deductions as Judge Graham had done in relation to the co-offenders. Twenty percent was deducted for PP's plea of guilty and a further 20% for assistance. After a rounding down of two months, a head sentence of five years and seven months was reached. Sixty percent of that term was three years and four months, which the Court substituted as PP's non-parole period. 14 The other co-offender to appeal against the severity of his sentence was Paul King. On 11 April 2006 the Court of Criminal Appeal allowed his appeal and quashed the sentence imposed by Judge Graham. In lieu thereof King was sentenced to imprisonment for six years and six months with a non-parole period of four years. (King v Regina [2006] NSWCCA 110). A number of grounds had been raised in support of King's appeal. The only one to find favour with the Court concerned the suggested disparity between the sentence imposed on King and those of Jacob, Keram and the applicant. In this regard, particular emphasis was placed on the fact that the quantity of drugs which King had imported was roughly half that carried by the applicant and Keram, and two-thirds of that carried by Jacob. Beazley JA (with whom Adams and Howie JJ agreed) found that, leaving aside the quantity of drugs imported, there was little in the objective or subjective circumstances relating to each of the offenders which required any differentiation between them on sentencing. She considered that the quantity of the drug imported by the co-offenders was a relevant consideration and should have been treated as such by Judge Graham. She pointed out that there is greater criminality involved in bringing a larger quantity into the country, and that there is a correspondingly greater potential for harm to the Australian community. Moreover, the reward to the individual courier generally depends on the quantity of the drug, which in turn becomes relevant to personal and general deterrence. 15 It was on this basis that the Court allowed the appeal and imposed a lesser sentence than that which had been imposed by Judge Graham. 16 With this background I turn to consider the matters raised on the present appeal. The applicant relied on three grounds of appeal. Two of them raise parity issues. First, he pointed to the perceived disparity between his sentence and the sentences imposed on the co-offenders PP and King following their appeals. Secondly he complained of the disparity between the non-parole periods imposed by Judge Graham on himself and the co-offender Keram. Finally he submitted that, because of a change in policy within the Department of Corrective Services, the circumstances of his imprisonment will be harsher than appeared at the time of his sentence, and that this Court should intervene and impose a lesser sentence. 17 In support of the first ground, the applicant, who was unrepresented in the hearing before us, submitted that he has a justifiable sense of grievance in that his sentence is longer than the sentences imposed on PP and King following their appeals. He pointed to a number of alleged differences between their respective roles in the offence, particularly in relation to the co-offender King, who the applicant suggested was one of the principal organisers of the importation. The problem with this submission is that all this material was before Judge Graham, who found that there was insufficient distinction between the roles played by the five co-offenders to require differential sentencing, a finding which was later confirmed by the Court of Criminal Appeal. The factor which led to King's sentence being reduced on appeal was that he had carried a lesser amount of cocaine into the country. The Court in allowing his appeal rightly said that the quantity of drugs which is imported is a relevant matter on sentence. This being so, the reduction of King's sentence cured a disparity with the applicant's sentence, rather than creating one. 18 The same principle applies in relation to any perceived disparity between the applicant's sentence and PP's sentence after it had been reduced on appeal. The reduction of PP's sentence was designed to bring it into line with the sentences imposed on his co-offenders, including the applicant. The only difference between their respective sentences after PP's appeal was that he had a twenty percent deduction from his head sentence on account of the assistance he had offered. This was a deduction which was not available to the applicant or any of the other co-offenders. 19 I can therefore find no substance in the first ground of appeal. 20 The second ground of appeal can be dealt with briefly. The applicant complains that he has a justifiable sense of grievance because of the lower non-parole period imposed by Judge Graham on his co-offender Keram. But as the applicant acknowledged, Keram had a specific health problem in that he was suffering from hepatitis C. There was evidence before his Honour that this was likely to make incarceration more difficult for him than for other inmates. This, together with some uncertainty as to whether he would receive appropriate medication and treatment in custody, were relevant and appropriate matters to be taken into account in reduction of his non-parole period. 21 I would reject the second ground of appeal. 22 The third ground of appeal relates to the applicant's categorisation within the prison system as an unlawful non-citizen who will be liable to removal from Australia on being released from custody. As a result of a change of policy within the corrective system, embodied in the Commissioner's Memorandum No 2006/28, inmates in this category will not, except in exceptional circumstances, be able to progress beyond C1 Category at any stage of their custody. There are three "C" categories within the corrections system. A category C1 inmate cannot leave the prison confines except in exceptional circumstances. A C2 inmate can leave the prison confines, but with a degree of supervision. A C3 inmate can leave the prison confines without supervision. When the Commissioner's Memorandum came into effect, in March 2006, the applicant had already progressed to C2 classification. He was then returned to C1, where he will remain for the rest of his time in custody, provided there is no further relevant policy change in the meantime. In this category, as the applicant's submissions point out, he is unable to participate in many of the programmes within the correctional system which are designed to promote rehabilitation. He submits that this should have been taken into account on sentence with a consequent reduction in his non-parole period. 23 Judge Graham, when sentencing the applicant, referred to the potential difficulties he faced as a foreign national. His Honour said that little weight should be given to this factor. He adverted to it in terms which were very similar to those used by Hunt CJ at CL in R v Ferrer-Esis (1991) 55 A Crim R 231 at 239: "The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here …. has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact." 24 The applicant submits that the deprivation of his opportunities to participate in rehabilitative programmes places him in a special category which should have been taken into account on sentence. However, as the Crown Prosecutor pointed out, all prisoners are subject to an administrative regime which may change from time to time, as happened in the case of the applicant. Indeed, when he was sentenced no such policy existed, and the applicant was able to move at least to C2 level. 25 The Crown Prosecutor's submissions are, in my view, plainly correct. The policies within the Correctional system relating to the conditions of inmates will not, in the normal course of events, constitute a relevant matter on sentence. Certainly no error has been shown on the part of Judge Graham in this regard, and the change of policy since the applicant was sentenced is not a matter which we can or should take into account on appeal. 26 In my view the third ground of appeal must fail. 27 An extension of time to apply for leave to appeal is necessary in this case. The Crown did not oppose the making of such an order. Accordingly, I would extend the time to apply for leave to appeal, grant leave to appeal but dismiss the appeal.

Jules v R

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Cited By (2)