Legault v R

Judgment 1BATHURST CJ: I have had the advantage of reading in draft the reasons of Adams J and R A Hulme J. 2By contending that the sentence was manifestly excessive the applicant was submitting that it was unreasonable and plainly unjust: Hili v R; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59]. 3Because of the reliance placed on sentencing statistics in this case it must be emphasised that appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate is not justified simply because the result is materially different from sentences imposed in other cases: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]. Such statistics can do no more than provide a yardstick against which to examine a proposed sentence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [303]-[305]. 4In the present case each of Adams J and R A Hulme J have set out the factors relevant to the objective seriousness of the offence and the applicant's subjective circumstances. Taking all those factors into account I agree that the sentence imposed was not manifestly excessive. 5I agree with the orders proposed by Adams J. 6ADAMS J: Introduction 7The applicant was convicted on his plea of guilty on 13 March 2013 on one count of importing a commercial quantity of methamphetamine on 26 October 2012 contrary to subsection 307.1(1) of the Criminal Code Act 1995 (Cth) and sentenced to a term of 9 years and 4 months with a non-parole period of 6 years to date from 26 October 2012. The learned sentencing judge applied a discount of 25 per cent to reflect the assistance afforded by the plea of guilty so that the starting point for the sentence was a head sentence of 12 years and 6 months, the result being rounded down slightly. The maximum penalty for this offence is life imprisonment and/or 7500 penalty units. 8The applicant appeals on the single ground that the sentence is manifestly excessive. Facts 9The applicant did not give evidence in the sentence proceedings. The facts surrounding the commission of the offence are set out in the reasons of the learned sentencing judge and were not controversial. The following is largely drawn from that account. On 26 October 2012 the applicant arrived at Mascot International Airport from Vancouver. On enquiry by a customs officer he said, in effect, he was travelling as a tourist. When his suitcase was x-rayed a false bottom was disclosed containing irregular packages which, on scanning, returned a positive result for methylamphetamine. The packages contained a white crystalline substance weighing just over 2,780 grams, the pure weight of amphetamine being 2,033.9 grams. The commercial quantity stipulated for this drug is 750 grams. The applicant was arrested just before 4pm and declined to take part in an interview which, as his Honour observed, was his right. 10The applicant's DNA was not found on the contents of the suitcase or on either of the packages concealed in it. Although it appeared that someone had, as the sentencing judge said, "gone to a lot of trouble preparing the suitcase and hiding the drugs and endeavouring to avoid detection. It does not appear that the [applicant] was involved in that process at least". The applicant was travelling with a person listed as his emergency contact who was also carrying packages of drugs concealed in a false bottom in her suitcase. The applicant's Canadian passport had been issued on 12 July 2012. This fact and that he was travelling with an accomplice also carrying drugs showed that there had been a substantial level of pre-planning and organisation in relation to the venture generally, although his Honour did not regard the applicant as responsible for this. 11The applicant told a psychologist whose report was tendered on his behalf that he had incurred debts for the purchase of drugs and feared reprisals if he did not repay the money, and accepted the opportunity offered to repay his debt by transporting the luggage to Australia. He said that he would have been beaten up had he not repaid his drug debt and feared that physical assault might have rendered him a paraplegic. The sentencing judge noted, in respect of the applicant's statement about his motivation for the offence, that it was basically a self-serving statement and thus one to which little weight could be attached. He accepted the applicant needed money for one reason or another. Prior criminal record 12The applicant, who was 29 years of age as at the date of the offence, had been convicted in the juvenile court in 1997 and 2000, receiving probation for assault with a weapon, theft of higher than an amount of $5,000, theft with breaking and entering and criminal harassment. Other entries included, in May 2003, theft in an amount less than $5,000 and damage in an amount less than $5,000 for which he was fined and placed on probation. In 2003 he also was placed on probation for the possession of substances with intent of trafficking and, in 2005, breaking and entering with intent. His Honour said of this record that it denied the applicant "leniency that would otherwise be available to a person who had an unblemished record". No issue was taken with this categorisation. Subjective features 13The following personal history is taken from the psychologist's report. The applicant stopped attending school at the age of 15 after he had been seriously assaulted with an axe, requiring him to spend something over six weeks in hospital and six months in a physical rehabilitation program, needing to occasionally take morphine medication to manage the pain of his back. The neighbourhood in which he grew up was a violent one and the applicant had witnessed a stabbing when he was aged six or seven and also someone being shot dead at this time. The psychologist thought the applicant gave a psychologically plausible account of his history and concluded that his psychosocial development was impeded by learning problems at school and severely impaired by the assault he suffered at the age of 15 which left him with chronic pain and post-traumatic stress disorder. The applicant said he coped with his distress by smoking marijuana and relying to some extent on methamphetamines and ecstasy. He entered into a relationship which, however, became strained and broke down about three months before the offence. He said that, after this, his psychological health deteriorated and his use of illicit drugs increased. He told the psychologist that he was sorry for transporting drugs and it was good that the officer apprehended him. He said, "I made a mistake". He expressed a goal of improving himself in gaol by remaining abstinent from drugs, and learning English and work skills. The applicant has a young son, born in 2008 with whom he talks from time to time by telephone, and finds the separation stressful. 14A psychiatric report of March 2008 confirmed the details of the attack on the applicant and the resulting continuing physical and psychological problems. His permanent deficits were estimated at 15 per cent of (as I take it) normal functioning. 15The sentencing judge mentioned other subjective material which supported the submission (accepted by his Honour) that the applicant had good prospects for rehabilitation. His Honour accepted that the applicant had been seriously assaulted at about the age of 15 with consequential post-traumatic stress disorder. He did not accept that the applicant's mental state contributed to his undertaking the offence or that it rendered him an inappropriate vehicle for general deterrence. On the other hand, his Honour accepted that the applicant's gaol time would be more onerous because of his mental condition. The offence was committed for financial gain. It appears that his Honour did not accept as reliable the applicant's statement of remorse to the psychologist, stating that he did not find any evidence of remorse and attributing his plea of guilty to the fact that he was caught red-handed. 16The sentencing judge took into account the hardship to the applicant by virtue of his isolation from his son and his mother. Submissions 17Mr Corish of counsel for the applicant did not dispute the findings of fact made by the sentencing judge both as to the objective circumstances of the offence and the applicant's subjective circumstances. However, he submitted that his Honour was in error in considering that the non-parole period of 6 years "is the minimum that could possibly accommodate the gravity of the offence". He submitted that the statistics relating to sentences for the applicant's offence and a number of judgments in this Court indicated, taken together with the circumstances, that the sentence was manifestly excessive. 18Mr Corish referred to several judgments in this Court and one in the District Court. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 McClellan CJ at CL considered the sentences imposed in a large number of cases concerned with offences of the present kind, dividing them helpfully (if I may say so) into four categories. The fourth group was as follows - "[215] In this group the head sentences range from 6.25 years through to 8 years, while the non-parole periods range from around 3 to 4.5 years. The cases are roughly split between those in which the offenders pleaded guilty and those in which they pleaded not guilty. Quantities of drugs range from 1 kg to 30 kg and offenders occupy roles variously described as instigators, overseers, collectors and couriers. Many offenders in this group had good antecedents and no prior convictions." It was submitted by Mr Corish that the applicant fell within this category, indeed towards the lower end of it given that he pleaded guilty, had a quantity of drugs close to the lower end of the specified range and occupied a role which could not be fairly described as rising to that of instigator or overseer. Although the sentencing judge eschewed describing his role, in this context he would plainly have been a courier. On the other hand, as Mr Corish concedes, the plaintiff did not enjoy unblemished antecedents. 19Mr Corish referred us to Speer v R [2004] NSWCCA 118, where the appellant had been sentenced to imprisonment for 16 years with a non-parole period of 10 years on his plea of guilty for importing a commercial quantity of heroin, the gross of which was almost 3.5 kilograms of which a little over 2.5 kilograms was pure heroin. The commercial quantity is 1.5 kilograms. The maximum penalty is the same as for the present case. The circumstances of the offence were similar to this case, the applicant having brought into Mascot Airport a suitcase within the walls of which the heroin was found. The case needed to be dismantled in order to retrieve the packages. It was conceded by the Crown that Speer was a courier and his involvement was at "a fairly low level". The plea was late and, accordingly, the discount allowed by the Court on resentencing was 10 per cent. This Court substituted a sentence of 9 years with a non-parole period of 6 years. 20The other case pointed to by Mr Corish is R v Basri [2009] NSWDC 398. Ms Basri brought 3.04 kilograms of a heroin mixture, containing 1.88 kilograms of pure heroin to Australia concealed in a suitcase. She assisted police in a controlled delivery of the heroin. Her role was that of a courier. Ms Basri was 39 years of age at the time of sentence, having been convicted following trial. She may have suffered some level of traumatic brain injury with long-lasting sequelae, with intellectual functioning assessed as being in the extremely low range (in the eighth percentile). The sentencing judge was sceptical that her level of intellectual impoverishment was quite so extreme given evidence that she was able to function well above the capacity of persons at the assessed level. She had no prior criminal convictions. The sentencing judge thought her contrition, though imperfect, existed at some level and prospects of rehabilitation were good. The starting point for her sentence was 7 ½ years imprisonment, reduced by a 30 per cent discount for assistance. The non-parole period was 3 years and 3 months. Mr Corish submitted that the applicant should have received a sentence less severe than this (I assume in respect of the starting point). 21The JIRS statistics relating to sentences for this offence were tendered in the sentencing proceedings. At that time they showed that 9 of 15 offenders (60%) were sentenced to terms of 7 years or less with terms of 9 (1 offender), 10 (3 offenders) and 15 years (2 offenders) being imposed on the offender each. Twelve offenders were sentenced to non-parole periods of 5 years or less with only three offenders being sentenced to non-parole periods of greater than 6 years. On the appeal, Mr Corish tendered the then current version (to 30 June 2014) which dealt with 33 cases of importing commercial quantities of methamphetamine. He submitted it was significant that the table showed 54% of offenders received a non-parole period of 4 years or less. I note that thirty-three per cent of non-parole periods were 6 years or more and the same percentage of overall sentences were of 10 years imprisonment or more. Mr Corish accepted that the statistics have limited utility but submitted that they provide some support for his contention, in substance, that the sentence here was excessive in that they showed most offenders received lighter sentences than the applicant. 22It should be noted that the statistics for importations of commercial quantities of all border controlled drugs or plants (the most appropriate category) as at 30 June 2014 (86 cases), the percentage of non-parole periods of six years or more is 45% and that of overall sentences of 10 years or more was 42%, with only 35% of non-parole periods being 4 years or less. The latest table (100 offenders) shows this trend to have continued as at 30 September 2014. 23Mr Corish also submitted that, although he accepted the applicant's history of mental and physical issues did not of itself reduce the need for general deterrence, it did reduce his moral culpability. 24The Crown prosecutor submitted that the sentence was within the judge's discretion and cited, inter alia, R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525 (importation of 3025.5 grams of cocaine, 2136.8 grams pure cocaine - commercial quantity 2 kilograms - resulting in a sentence, after 25% discount, of 10 years 6 months, and a 7 years non-parole period). He contended that the statistics did not demonstrate that the sentence under appeal was outside the sentencing discretion. Consideration 25It is true that there are cases where the difference between the sentence imposed and the statistical range of a significant number of offences of the same kind is so marked as to at least raise the question whether the particular sentence is within the discretionary range or confirm a conclusion drawn otherwise that the sentence is excessive (or, for that matter, unjustifiably lenient). The statistics here are only capable of real (if limited) significance if Mr Corish made good his contention that the applicant's offence was objectively well within the lower end of criminality and there were significantly favourable subjective features. Certainly, he was no or little more than a courier but the quantity of drugs he carried into Australia was considerable, whilst his subjective features were only marginally favourable. Furthermore, the lack of information about the underlying cases at all events must give the statistics only very limited utility. Also, considerable care needs to be taken when comparing non-parole periods, since the reasons for determining non-parole periods will vary significantly and somewhat unpredictably from case to case. In the result, it seems to me that the statistics relied on by Mr Corish do not raise any question mark about the severity of the applicant's sentence. 26So far as Speer is concerned, it appears that the Court accepted that Speer was remorseful and his prospects of rehabilitation were good. It also needs to be borne in mind that a commercial quantity of heroin is stipulated at 1.5 kilograms so that Speer's importation was very much at the lower end of this category whilst the commercial quantity of methamphetamine is half this amount, namely 0.75 kilograms. The fourth category listed in McClellan CJ at CL's judgment in de la Rosa shows no more than there are cases in which sentences for importing commercial quantities of drugs are less than that imposed on this applicant. 27Given the sentencing judge's conclusion, which was open, that the applicant's mental condition did not contribute in a material way to the commission of the offence and the lack of any evidence that his physical condition did so, the submission that either reduced his moral culpability cannot be accepted. Even if it should have been given some weight, that would not have indicated, in my view, that the sentence was excessive. Conclusion 28Although I would agree that the sentence imposed on the applicant is severe and above the mean statistical range for importing a commercial quantity of methamphetamine, I am not satisfied that it was so severe as to demonstrate that the sentencing judge's discretion miscarried. Accordingly, I propose that leave to appeal be granted, but the appeal be dismissed. 29R A HULME J: I am grateful for the summary of all of the facts and circumstances of the case provided in the judgment of Adams J. 30As I understand the case for the applicant, it is contended that the sentence is manifestly excessive when regard is had to the criminality being at the "lower end of the range" for this type of offence and the applicant's subjective circumstances (physical and mental ill health, early plea of guilty, and more onerous custodial conditions). The reliance upon statistics and other cases was not said to establish the conclusion of manifest excess but to confirm it. 31This is a case involving the importation of almost three times the commercial quantity of methylamphetamine. I appreciate that the upper end of the commercial range is infinite but 2033.9 grams of the drug is not insignificant. The sentencing judge found that the planning and organisation that went into the venture "must have been quite substantial". He accepted that the offence was committed for "substantial financial gain". I do not accept the applicant's characterisation of such an offence as being at the "lower end of the range". 32The sentencing judge made a number of favourable findings as to the applicant's subjective circumstances. There is no contention of patent error. An allowance of 25 per cent was made for the early plea of guilty. However, there was no evidence of remorse and the applicant was disentitled to leniency on account of his criminal history. He was, however, found to have "fair" to "good" rehabilitation prospects. There was no assertion that the judge was in error in finding that general deterrence and the need to impose adequate punishment were significant considerations. 33Counsel accepted that the statistics and the cases to which reference was made do not, on their own, make good the contention that the sentence is manifestly excessive. I have come to the view that the applicant has failed at the first level of the argument which was put in terms that the sentence was "self-evidently excessive". 34I agree with orders proposed by Adams J.