King v Regina

Court of Criminal Appeal (NSW)|2006-04-11|Before: Beazley JA, Adams J, Howie J, Adams JA, Howie JA

JUDGMENT OF: Beazley JA at 1; Adams J at 56; Howie J at 57

DECISION: Application for leave to appeal granted, appeal allowed. Sentence imposed quashed and in lieu thereof the applicant is sentenced to imprisonment for a term of 6 years and 6 months commencing 14 November 2003, with a non- parole period of 4 years expiring on 13 November 2007.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - sentence - drug trafficking - parity principle - severity of sentence compared with sentences imposed on co-offenders - whether lesser criminality in importing lesser amount of narcotics - sentencing judge erred in failing to differentiate between offenders on quantity. CRIMINAL LAW - appeal - severity of sentence - drug trafficking - justifiable sense of grievance.

LEGISLATION CITED: Customs Act 1901 (Cth) - s 233B

Postiglione v The Queen (1997) 189 CLR 295 CASES CITED: Wong v The Queen (2002) 207 CLR 584 Lowe v The Queen (1984) 154 CLR 606

COUNSEL: W. Abraham - Crown In Person - Applicant

SOLICITORS: Commonwealth DPP - Crown In Person - Applicant

IN THE COURT OF criminal appeal CCA 2005/1001

BEAZLEY JA ADAMS JA HOWIE JA

TUESDAY 11 APRIL 2006 KING v. REGINA JUDGMENT 1 BEAZLEY JA: The applicant was convicted of a charge of importing into Australia a prohibited substance, namely, cocaine being not less than the trafficable quantity, contrary to the provisions of s.233B of the Customs Act 1901 (Cth). The quantity of drug imported was 215.6g (253.1g gross), having a street value of $246,000.00. The maximum penalty for the offence is a fine not exceeding $500,000.00 or imprisonment for a period not exceeding 25 years, or both. 2 The applicant, who was arrested on 14 November 2003, shortly after his arrival in Australia, pleaded guilty to the charge. He was sentenced on 16 September 2004 by Graham DCJ to imprisonment for a period of 7 years with a non-parole period of 4 years and 4 months, the sentence commencing from the date he was taken into custody, namely on the day of his arrest (14 November 2003).

Sentences imposed 3 The applicant was one of a group of five offenders who brought cocaine into the country on that day. The co-offenders were all foreign nationals. Although the sentencing judge considered that there was a measure of organisation and co-ordination amongst the five offenders, his Honour proceeded upon the basis that the individual offenders were charged, and were to be sentenced, on the basis of their respective participation in the drug importation, with the offence being confined to the precise quantity that each offender brought in individually. 4 Graham DCJ sentenced PP on 28 May 2004. The other four offenders were sentenced on 16 September 2004 at the same time as the applicant. 5 PP was sentenced to a period of 6 years imprisonment with a non-parole period of 4 years. PP was granted leave to appeal from the severity of that sentence. The appeal was allowed and the sentence quashed. In lieu, PP was sentenced to a term of imprisonment of 5 years and 7 months, with a non-parole period of 3 years and 4 months, expiring on 13 March 2007. 6 Jules and Jacob were sentenced to 7 years imprisonment with a non-parole period of 4 years and 4 months. These sentences were the same as that imposed upon the applicant. 7 Keram was likewise sentenced to a term of imprisonment of 7 years, but with a lower non-parole period of 4 years. The reason for the disparity in the non-parole period specified for Keram was because of his accepted ill health.

Factual overview 8 The evidence before Graham DCJ established that the applicant flew from Sydney to Bali on 9 November 2003. From there he flew to Singapore, for the specific purpose of engaging in this offence. Between 10 and 13 November 2003 the applicant swallowed 50 pellets of cocaine. The other offenders similarly swallowed or otherwise internally concealed different quantities of cocaine at about the same time. 9 The five offenders travelled to Australia on the same flight. The applicant's luggage was chosen for baggage examination. That examination revealed that the baggage bore an identification tag in the name of Jules. The applicant's airline ticket was subsequently located in Jules' wallet. 10 Although an examination of the applicant's luggage produced no result, traces of cocaine were found in his suitcase and wallet. The applicant told Customs officers that this may have been deposited in his suitcase prior to it being packed. A frisk search of the applicant revealed nothing. The applicant consented to an internal search but denied that he was concealing any drugs. However a scan taken at St George Hospital revealed the presence of foreign objects in his digestive tract. Over the following day the applicant passed 50 oblong shaped pellets. These were subsequently analysed as containing cocaine. 11 The applicant formally entered a plea of guilty on 10 September 2004, approximately a week before he was sentenced. However, he had made it clear at least from 5 March 2004, when the matter first came before the District Court, of his intention to plead guilty and the matter proceeded through the Court on the basis that it was a sentence matter. The trial judge therefore treated the plea as if it had been entered on 5 March 2004, which "in practical terms, only slightly delayed the process of acknowledging … guilt". 12 Each of the co-offenders also pleaded guilty and had done so at an earlier stage than did the applicant. In each case the pleas had been entered in the Local Court once the Crown brief of evidence was furnished and the precise nature and purity of the cocaine was ascertained. However, his Honour considered in practical terms that there was little difference in the utilitarian value of the pleas of the co-offenders and that of the applicant. 13 The trial judge sentenced each of the offenders on the basis that each was a courier and that each had been induced to take part in the enterprise by personal circumstances that tended to mitigate his involvement. The detail of those circumstances was fully explored by the sentencing judge in his Remarks on Sentence. In short, each had financial pressures of varying degrees. In the case of the applicant, he was in a considerable amount of debt due to the failure of the surf tour businesses that he owned and operated. The business failure was caused in large measure by the downturn in the tourist industry following the terrorist attack in America on 11 September 2001, and then again by the Bali bombing in 2002.

14 His Honour treated the applicant's involvement in the importation as being at the level of a "mere courier", but nonetheless considered that there was "a measure of planning and deliberation about [the applicant's offence] which [was] not a feature of all of the offenders". This finding was based upon the fact that the applicant had travelled to Singapore for the express purpose of engaging in this offence and had travelled there on a prior occasion for the same purpose but in circumstances where that planned offence was not carried through. 15 In the case of Jules and Keram, Graham DCJ found that they did not become involved in the offence until they were in Singapore, each having gone there for an independent and legitimate purpose. His Honour found that Jacob's trip to Singapore had involved both a legitimate purpose as well as an intention to engage in a drug smuggling offence. In the case of PP, his Honour made a finding that he had travelled to Singapore for the express purpose of engaging in the drug importation.

Issues on the appeal 16 The applicant contends that Graham DCJ's sentencing discretion miscarried in the following respects:

His Honour erred in finding that the applicant's criminality was equal to or greater than that of the four co-offenders.

His Honour erred in failing to have sufficient regard to the applicant's subjective circumstances, in particular, his previous good character, his insignificant criminal record, and the extraordinary circumstances leading the applicant to committing the offence.

His Honour erred by giving excessive consideration to the timing of the pleas of guilty of the other co-offenders and the measure of cooperation extended by the co-offenders prior to their pleas of guilty.

His Honour erred in calculating the sentence for the applicant to be the same as the co-offenders, Jules and Jacob, and more than that of the co-offenders PP and Keram.

His Honour's sentencing discretion miscarried because the applicant was left with a justifiable sense of grievance due to the severity of his sentence compared to the sentences imposed on the co-offenders. 17 It is convenient to deal first with Ground 5.

Ground 5: parity 18 The applicant alleges that he was left with a justifiable sense of grievance due to the severity of his sentence compared with the sentences imposed on the co-offenders. Those principles were discussed in Postiglione v The Queen (1997) 189 CLR 295, especially at 301 where Dawson and Gaudron JJ said: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. … However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'". 19 In this case, the question of parity has to be considered both in relation to the sentence imposed on Jules, Jacob and Keram on the one hand and PP on the other. One of the significant differences between the applicant and the other offenders was the quantity of drug imported. This is demonstrated in the following table:

Keram 100 pellets 518.5g gross 385.7g pure purity 74.4% Jules 100 pellets 520.1g gross 396.3g pure purity 76.2% Jacob 73 pellets 386.1g gross 331.3g pure purity 85% King 50 pellets 253.1g gross 215.6 pure purity 85.2% PP 35 pellets 175.2g gross 140.3 pure purity 80.1% 20 Before dealing with the question of parity therefore, it is necessary to have a fuller understanding of the role that the weight of the drugs has in the sentencing of an offender charged with an offence relating to narcotic drugs; in this case, with the importation of such drugs. 21 Graham DCJ dealt with the significance that the quantity of drug imported should have in the sentencing process in his Remarks on Sentence at p.25: "In considering the quantity of the drug involved, counsel have submitted, as part of an argument for parity with the offender [PP], that the weight of the narcotics imported ought not be regarded as a chief factor in sentencing for this kind of offence. The Crown accepts that is a correct legal proposition, but points to the qualification, that is that it is, nevertheless, a matter which can have significance. As was said by the High Court in Wong … in general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would be exacted. Significantly, in relation to the present case, and insofar as the guidelines which were struck down by the High Court in Wong have retained some continuing relevance (eg, as indicative of a range or pattern of sentencing), the case of [PP] fell within the lower range outlined by the Court of Criminal Appeal in Wong , while the offenders here all fall within the next step or category of ranges identified in those previous guidelines. On the other hand, the quantities range between 140 and almost 400 grams, but each represents, as has been pointed out in the submissions, all that could be ingested or otherwise secreted in the person by each of the offenders. In that sense they each brought in as much as they could bring in. Nevertheless, some significance might properly attach to the difference in weight but, in the end, it seems that it would make very little practical difference to the sentence ultimately imposed in each case." 22 The portion of his Honour's Remarks on Sentence emphasised above was drawn from the joint judgment (Gaudron, Gummow and Hayne JJ) in Wong v The Queen (2002) 207 CLR 584 at [64]. Later, at [67], their Honours dealt with the significance that the weight of narcotic had in the sentencing process. Their Honours first referred to the importance that had been attached to the weight of the narcotic by Parliament distinguishing between the maximum sentence that may be imposed for offences involving trafficable quantities compared with commercial quantities. Their Honours then considered the question whether weight was generally the chief factor to be taken into account in the sentencing process. This question was relevant as the Court of Criminal Appeal had treated weight as the chief factor to be taken into account in Wong. Their Honours consideration of this question was as follows: "68. It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders." 23 In this case, Graham DCJ did not place much importance on the quantity of drug imported. Rather he considered that the overall criminality of each was reflected in the fact that the individual offenders had imported as much of the drug as could be ingested or secreted in the person. When that was taken into account, together with the individual circumstances to which his Honour had regard in relation to each offender, his Honour considered that the difference in weight of the drug brought in by each was not of sufficient significance as to make any difference to the ultimate sentence imposed. 24 It is this process of reasoning by his Honour that leads me to the view that the relevance that the weight of the drug imported ought to have had in the sentencing process has to be viewed having regard to the principles of parity. That involves a consideration of the facts and circumstances that his Honour took into account in relation to each offender. In this regard, it is necessary to consider the factors relevant to the offenders Jules, Jacob and Keram on the one hand and PP on the other, as compared to the factors relevant to the applicant. These considerations will necessarily overlap with the matters raised in the other grounds of appeal and which I deal with below.

Parity in relation to Jules, Jacob and Keram 25 It will be remembered that Jules, Jacob and Keram all pleaded guilty in the Local Court after the Crown's brief of evidence had been delivered. The applicant did not plead guilty until shortly prior to the sentence hearing. However, his Honour accepted that the applicant had indicated his intention to plead guilty from the time that the matter was before the District Court and that there was little practical difference between the time that the applicant pleaded guilty and the time that the other offenders did so. 26 His Honour sentenced each on the basis that he was a courier. His Honour found however that there were some differences in the circumstances in which each had entered upon the criminal enterprise. He accepted that in the case of Jules, the approach to carry the drugs had only occurred in Singapore. Jules was otherwise there for the legitimate purpose of renewing his Indonesian visa. Jacob, for his part, had initially been approached in Indonesia but had only decided to take up the offer of taking drugs to Australia shortly before he went to Singapore, also for the purpose of renewing his visa. His Honour found, in relation to Keram, that there was little credible explanation as to his level of involvement, including the precise circumstances in which he agreed to participate in the importation. His Honour considered however that there was a likelihood of some prior planning. By contrast, his Honour found that there was a measure of planning and deliberation in the case of the applicant (see Remarks on Sentence p.90) for the reasons discussed at [14] above. Although the applicant challenges his Honour's findings in these respects, they were findings open to him on the evidence and in my opinion, were the only findings the Court could have made. 27 His Honour found that the personal circumstances of each of the four offenders with whom he dealt on 16 September 2004 were such that each was vulnerable to an offer of payment should they carry out the importation. Each was in difficult financial circumstances for a variety of reasons, and each was emotionally fragile, again for a variety of reasons, at the time. Again, in my opinion, it was open to his Honour to consider that the circumstances of each was roughly similar, notwithstanding the personal differences giving rise to the vulnerability of each. 28 His Honour considered that the prospects of re-offending in the case of each of the accused was minimal, and, it followed, that the prospects of rehabilitation were good. 29 His Honour was also satisfied on the evidence, and on this there could be no doubt, that each of the accused was aware that he was to bring into Australia a quantity of cocaine. It appears that each was to receive about the same payment per pellet for the importation. 30 None of the four offenders dealt with on 16 September 2004 had any relevant prior criminal history. 31 Each of the four offenders consented to the internal searches that led to the discovery of the drugs. This was so even though each had denied that he was carrying any drugs at the time. Once the drugs were detected, Jules, Jacob and Keram made statements to the police. The information they provided to the police varied one from the other, and later during the course of the court proceedings, including the sentencing hearing, they each had different versions again, as to what had happened. The differences are spelt out in his Honour's Remarks on Sentence. His Honour considered that by the time each had come to give evidence, they were endeavouring to minimise their own role and the roles of each other in the organisation of the importation. 32 His Honour found that Jules had given some limited co-operation to the authorities, as evidenced by his consent to being searched and that he also admitted his guilt. His Honour noted however that the assistance was limited by the different information given to the police as compared to that given earlier in the investigation. Likewise, his Honour found that Jacob had given some assistance to the police, including making admissions, in addition to consenting to being searched. 33 As I have already mentioned, his Honour was particularly dissatisfied with the evidence given by Keram. Apart from Keram's consent to being searched, his Honour found the different stories that he gave to the police, the probation officer and in Court were such that he was an unsatisfactory witness. It can be inferred from this that his Honour gave little weight to any assistance to the authorities. 34 The applicant however had not made any statements to the police and accordingly, apart from consenting to being searched, had not provided assistance to the authorities. 35 It will be apparent from the above that leaving aside the quantity of drugs imported, there was relatively little in the objective and subjective circumstances relating to each of the offenders that required any differentiation between them so far as sentencing was concerned. That being so, the question directly arises as to whether the different weight of narcotic that each brought in should play any role in the sentence that ought to have been imposed on each. 36 His Honour approached the matter in the way I have already outlined, namely, on the basis that each had brought in as much as he could secrete in his body. In the case of Jules, Jacob and Keram, the evidence was that each was given a quantity of 100 pellets. Jacob only managed to swallow 73. The applicant brought in 50 pellets. 37 That finding, that each had brought in as much as he could secrete in his body, is not correct in relation to the applicant. The only evidence in relation to his importation was that he brought in a quantity of 50 pellets. There was no evidence that he was supposed to, or could have, imported or was asked to import 100 pellets. In those circumstances, I am of the opinion that the weight of the drug imported by the applicant was a relevant consideration and should have been dealt with as such by his Honour. It follows on that reasoning that it was not, in the circumstances, sufficient for his Honour to conclude that although some significance might properly be attached to the difference in quantity, in the end that factor would make little practical difference to the sentence ultimately posed. 38 The only significant difference between the applicant and the co-offenders Jules, Jacob and Keram was his Honour's finding about the increased measure of planning and organisation on the applicant's part. That was a finding that differentiated the applicant from Jules. However, his Honour made a finding of some prior knowledge on the part of Jacob in terms that were not significantly different from the applicant's position. Perhaps it might be said that Jacob's decision to participate in the importation was more spontaneous, being made shortly prior to travelling. Nonetheless, Jacob went to Singapore with a purpose of participating in the drug importation. It is not known when the applicant first agreed to participate in this particular importation. But whenever it was, he and Jacob had an opportunity to either resist becoming involved or to pull out prior to travelling to Singapore. Neither did so. No finding was made as to the degree of planning that was involved on the part of Keram, although it is clear that his Honour also considered that his agreement was not opportunistically obtained in the same way as was the case with Jules. 39 Given those differences, I am not satisfied that the degree of planning that his Honour found in the applicant's case balanced out the quantity of drug imported, which in his case was 50% less than was the case of Keram and Jules and almost 25% less than was the case with Jacob. In my opinion, that objective circumstance required some different treatment. There are a number of reasons for this. There is greater criminality involved in bringing a larger quantity into the country. This was recognised in general terms by the High Court in Wong in the statement quoted by his Honour. The amount of harm potentially done to the Australian community is greater the greater the quantity of drug involved. The reward to the individual for agreeing to engage in the criminal behaviour is usually dependent upon the quantity of drug. That in turn is relevant both to personal and general deterrence. 40 It follows in my opinion that his Honour erred in failing to differentiate between the offenders in relation to quantity and in failing to do so, the applicant has a proper sense of grievance in the sense discussed in Lowe v The Queen (1984) 154 CLR 606 and Postiglione. It follows that there should be some variation in the sentence imposed upon the applicant so as to reflect the difference in criminality involved. Before deciding what variation ought be made, it is necessary to consider whether there is any sense of grievance that flowed having regard to the sentence imposed on PP.

Parity in relation to PP 41 PP was sentenced by Graham DCJ on 28 May 2004. PP appealed (R v PP [2005] NSWCCA 214). On 14 June 2005, the Court of Criminal Appeal varied the sentence imposed by Graham DCJ and sentenced him in lieu to imprisonment for 5 years and 7 months with a non-parole period of 3 years and 4 months. The sentence commenced on the date of arrest, namely 14 November 2003. The non-parole period expired on 13 March 2007. 42 The Court of Criminal Appeal found that Graham DCJ erred in a number of respects in the sentence imposed on PP as compared to the sentences imposed upon the co-offenders. In the first place his Honour allowed a discount of 20% for the pleas of guilty entered by Jules, Jacob, Keram and the applicant. However, he only allowed a discount of 15% for PP's plea of guilty, notwithstanding that it had been entered at the same time as the pleas by Jules, Jacob and Keram. There was no explanation given by his Honour as to why a different discount had been applied and the Court of Criminal Appeal found that there was no basis for doing so. 43 Next, Graham DCJ, in sentencing the co-offenders rounded down the sentence after giving a discount of 20% from 7 years 2 months to 7 years. As the Court of Criminal Appeal pointed out (at [34]), this immediately gave the co-offenders the benefit of an additional 2 months reduction. No rounding down was effected in the sentence imposed on PP after the reduction of 15% for the plea of guilty. The Court of Criminal Appeal found no basis for that difference in approach. 44 The Court of Criminal Appeal next found that there was no basis for differentiating between PP and his co-offenders in relation to fixing the non-parole period. In the case of PP, Graham DCJ had affixed the non-parole period at 66% of the total sentence. However, the period fixed for the non-parole period of the sentences imposed on Jules, Jacob and the applicant was 60% for the non-parole period and 40% for the parole period. 45 Finally, PP had provided assistance to the authorities in a way that was far more significant than was the assistance provided by the other four co-offenders. In PP's case, Graham DCJ had considered that PP's assistance ought to be reflected in a reduction in his sentence of 20%. He made no deduction in the sentence of the Jules, Jacob, Keram and the applicant. Notwithstanding, the actual result in sentencing was that PP's non-parole period imposed by Graham DCJ was only 4 months less than that imposed in respect of Jules, Jacob and the applicant and was the same as that imposed in the case of Keram. The Court of Criminal Appeal considered (at [37]), that there was "a real public interest ... in correcting this error". 46 There are thus two significant differences between the considerations relevant to PP and to the applicant. The first is the assistance given to the police by PP. The second relates to the quantity of drug imported. Nothing more needs to be said in relation to the assistance given to the police. That differentiates PP's case significantly from that of the applicant and any question of parity between PP and the applicant will need to take that into consideration. There is a question however whether the quantity of drugs imported by PP should also be a point of differentiation. 47 PP brought in a quantity of pellets approximately 30% less (or a pure quantity of approximately 35% less) than did the applicant. The Court of Criminal Appeal accepted that there was some merit in the sentencing judge's view that the lesser quantity did not indicate a lower level of moral culpability, given that it was intended that he should also bring in 100 pellets. The Court concluded however that the quantity of the drug was a relevant consideration. This Court, when considering questions of parity as between the applicant and PP should therefore also give significance to the difference in quantity. 48 It follows, that the applicant can have no sense of grievance in relation to the sentence imposed on PP. 49 Notwithstanding this conclusion, it follows from what I have said in relation to the co-offenders Jules, Jacob and Keram that this ground of appeal has been made out so that the applicant will need to be re-sentenced by this Court. In this regard PP's sentence remains relevant in determining what sentence ought to be imposed upon the applicant, PP being entitled to be sentenced to a lesser period of imprisonment than the applicant. 50 The remaining grounds of appeal can, therefore, be considered briefly.

Grounds 1 and 2 51 In my opinion, the applicant has failed to establish that his Honour erred in his findings relating to the specific subjective circumstances of each of the offenders, or in the manner in which he dealt with their degree of prior involvement in the planned importation prior to arrival in Singapore. There were differences between the various co-offenders in these respects. However, the differences were not of such a nature as to require any different overall treatment by the trial judge. 52 To the extent that there may have been any slight differences in either the subjective or objective circumstances of the offenders the sentencing judge was entitled, within the exercise of his discretion, to find that the appropriate sentence in each case should be the same. In other words, it was within his Honour's sentencing discretion to assess the overall criminality of the co-offenders together with the respective subjective matters of each, as warranting the same sentence of imprisonment. Likewise, it was within his Honour's sentencing discretion to determine that there should be some differentiation in the non-parole period specified for Keram having regard to his ill health.

Ground 3 53 Nor was there any error in the manner in which the trial judge dealt with the timing of the pleas of guilty. The other co-offenders all pleaded guilty at a time earlier than the applicant. Nonetheless, the trial judge treated the applicant's plea as having been made in a timely manner and as having the same utilitarian value as the pleas of Jules, Jacob and Keram. This complaint is totally misconceived.

Re sentence 54 I have already expressed the view that the difference in the circumstances of the applicant in bringing in a lesser quantity of drug than Jules, Jacob and Keram should reflect itself in a lesser sentence. Having regard to the differentiation that thereby needs to be made and having regard to the sentence that was imposed on PP, I am of the opinion that the sentence that ought to be imposed is a sentence of 6 years and 6 months commencing on 14 November 2003, with a non-parole period of 4 years expiring on 13 November 2007. 55 Accordingly I propose the following orders:

Application for leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed by Graham DCJ quashed; and in lieu thereof the applicant be sentenced to imprisonment for a term of 6 years and 6 months commencing 14 November 2003, with a non-parole period of 4 years expiring on 13 November 2007. 56 ADAMS J: I agree with Beazley JA. 57 HOWIE J: I agree with Beazley JA. **********

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