Melville v R

Court of Criminal Appeal (NSW)|2020-07-15|Before: Johnson J, Price J, Wright J

Solicitors: Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2017/00032918 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 13 June 2019 Before: Huggett DCJ File Number(s): 2017/00032918

Background

The applicant pleaded guilty in the Local Court to one offence of importing a marketable quantity of a border controlled drug, namely 274.9 g of cocaine, contrary to s 307.2(1) of the Criminal Code (Cth). This offence carries a maximum penalty of 25 years imprisonment and/or a fine of 5,000 penalty units. He was committed for sentence to the District Court.
On 13 June 2019, Huggett DCJ imposed on the applicant a sentence of imprisonment for 5 years, commencing on 13 May 2019 and expiring on 12 May 2024, with a non-parole period of 3 years, commencing on 13 May 2019 and to expire on 12 May 2022.

Grounds of appeal

In his notice of application for leave to appeal, the applicant seeks to rely on eight grounds of appeal, which he formulated as follows: "1. The trial Judge, Judge Sarah Huggett handed down, under the prevailing circumstances, an unreasonably long sentence. 2. It was the first offence committed by the offender. 3. The offender is most remorseful of his actions. 4. The offender fully cooperated with the authorities upon his arrest, and his subsequent detention. 5. The offender immediately pleaded guilty in response to the charge. 6. The offender was in continual employment whilst awaiting sentence. 7. The offender has acknowledged the error of his ways and will not reoffend. 8. The offender will undertake any rehabilitation courses, if available."
The applicant was not legally represented. In the circumstances of the present case and from the applicant's oral submissions, it appeared that his substantive ground of appeal was ground 1, that the sentence was "unreasonably long" or manifestly excessive, having regard to: 1. the matters raised in grounds 2 to 8; and 2. the contention that he was a mere courier and did not play a role in preparing the drugs for importation.

The proceedings on sentence

At the sentence hearing, the applicant's counsel did not object to the agreed statement of facts included in the Crown Bundle (Ex 1), although the document was headed "Draft Agreed Statement of Facts". Nor did she contend to the contrary when the Crown stated that "I understand the agreed facts are how we're proceeding with this matter". This was said after the sentencing judge had pointed out that some of the information given by the applicant to the psychologist was inconsistent with information the applicant had provided to police. In addition, the written submissions on sentence on behalf of the applicant referred to relevant paragraphs of the statement of agreed facts (at pars 1(b) and (c) and 2(a)) and did not seek to depart from the facts as stated in that document. Huggett DCJ also expressly recorded in her remarks on sentence that the facts of the offence were not in dispute and were set out in a statement of agreed facts.
Thus, it was beyond dispute that the proceedings on sentence were conducted on the basis that the facts were as recorded in the agreed statement of facts.

Remarks on sentence

After noting that the applicant had pleaded guilty to one offence of importing a marketable quantity of a border controlled drug, 274.9 g of pure cocaine, contrary to s 307.2(1) of the Criminal Code, the learned sentencing judge noted the maximum penalty for the offence of 25 years' imprisonment and/or a fine of 5,000 penalty units. Her Honour also adverted to the requirement to have regard to the matters in Pt 1B of the Crimes Act 1914 (Cth) when sentencing the applicant.
The facts as found by the sentencing judge are summarised in the paragraphs which follow.
On 30 January 2017, the applicant, an Australian citizen, arrived at Sydney Airport from Peru. He had completed an incoming passenger card indicating that he was not bringing any illicit drugs into Australia. Following his belongings being randomly selected by Border Force officers, they were examined and returned a positive reading for cocaine. The applicant then consented to an internal non-medical scan, which revealed rounded objects throughout his colon. He was taken to hospital by Australian Federal Police (AFP) officers and, upon a further scan, it was revealed he had many foreign objects in his abdomen.
The applicant stated to AFP officers that he had been out of Australia for five months, having spent part of the time in New Zealand and part in Peru and that he was importing cocaine internally and not under duress. He said that he had purchased 350 g of cocaine for $AUD1,500 in Peru and that he was the person responsible for getting the cocaine into his body. He told the officers that he had booked his return trip to Australia some five days earlier at a cost of $USD3,600 and that he was carrying medication used to treat diarrhoea.
Eventually, 75 pellets were passed by the applicant and another three pellets were found in his sock. The pellets were wrapped in cling wrap plastic.
In a later interview with AFP officers, the applicant stated that he owed his father $20,000 and he purchased the cocaine two days before he travelled for $USD1,700. When he received the cocaine it was in powder form and he wrapped it in Glad Wrap and used scales to weigh each pellet so that they weighed approximately 3½ to 4 g each. He said that he wrapped the substance about 20 or 30 times and tested one pellet and it worked okay. He then ingested the other pellets. He stated that he did not have a contact in Sydney to give the cocaine to but he was simply going to try and sell it to someone somewhere.
The crystalline powder in the pellets was found to weigh 344.1 g with a purity of 79.9%, yielding 274.9 g of pure cocaine. The drugs were recovered by police.
Her Honour found that the applicant was acting alone and planned the importation over a five day period. During that period: he booked a return flight to Australia for the purpose of importing a border controlled drug; he sourced cocaine in Peru; he weighed and packaged it into digestible amounts by wrapping it in cling wrap and ingested or inserted the pellets into his body in various ways thereby concealing the cocaine; he bought medication to prevent diarrhoea; and, he boarded the flight from Peru bound for Sydney. The learned sentencing judge found that his planning was far more sophisticated than might be the case with concealment in a bag or suitcase.
The quantity involved was found to be well above the marketable quantity for cocaine as a border controlled drug, 2 g, but significantly below the commercial quantity, 2 kg. [1] Huggett DCJ accepted that the applicant was aware in approximate terms of the quantity of cocaine he was importing because he had sourced and ingested it. It was also found that the applicant intended to repackage and resell the cocaine for a profit on his return to Sydney and that he participated in the offence voluntarily and deliberately. His role was described by her Honour as "crucial".
Her Honour found that the offence was committed purely for financial reward because he owed a debt of some $20,000 to his father and the offence was an easy way to pay off the debt rather than paying off the debt by lawful means.
The sentencing judge concluded that the offence was a serious one.
As to the applicant's subjective circumstances, it was noted that the applicant was born in 1975 and was aged 44 at the time of sentencing. He was raised in Dubbo but he reported that, after his parents separated and his mother remarried, his step father was physically and verbally abusive towards him. As a result, he left home and attended boarding school in Sydney on a scholarship for the last two years of his schooling. Although his relationship with his mother was reported to be distant, he has a very strong and loving relationship with his father.
The applicant has had a variety of jobs in different countries, including landscaping, massage therapy and personal assistant roles, and restaurant work. He was found to be generally in good physical health and it was accepted that the report of Dr Emma Collins, a psychologist, did not reveal any mental health conditions or disorders.
The sentencing judge recorded that the applicant's drug use commenced at around the age of 16 when he moved to Sydney, originally smoking marijuana, but progressed to ecstasy, cocaine and LSD. It was said that the drug use was recreational and in a social context. In addition, the applicant gambled, mainly in a social context, sometimes beyond what he could afford.
It was noted that the applicant had been in custody for 30 days before being released on bail and that he had been on bail for about two years at the time of sentencing.
As to remorse, her Honour observed that the applicant had not given any evidence in relation to being remorseful, but he had expressed his remorse to others. The pre-sentence report stated that he appeared to minimise the seriousness of his behaviour and demonstrated little insight into the impact of his offence on the community. Nonetheless, the sentencing judge noted that the applicant acknowledged his guilt at the earliest opportunity, which could be seen as some evidence of remorse. Accordingly, she was prepared to accept that, on balance, the applicant was "somewhat remorseful" but aspects of his remorse related to feelings of shame and regret for himself given his then current predicament.
It was accepted that the applicant had no criminal history and was entitled to a degree of leniency on that account.
The sentencing judge noted that the pre-sentence report assessed the applicant as being in the medium to low category for re-offending and that he had reported lifestyle changes including securing work in Australia and a desire to settle down.
Her Honour also took into account the letters before the Court which commented that the applicant was "a changed man who has learnt his lesson". She concluded: "In my view his lack of criminal history, coupled with his early plea and the steps he has taken since his arrest to address aspects of his life that have led to his offending, are positive indicators that the present offence is out of character and I am prepared to find he has good prospects of rehabilitation and is low risk of re-offending."
Huggett DCJ allowed a 25% discount for his plea of guilty. As to the degree to which he co-operated with law enforcement agencies in the investigation of his offence, her Honour noted the admissions made at about the time of his arrest and said that "in that very limited way he co-operated" and she made a "minor allowance" in his favour to recognise that feature but "otherwise there has been no relevant cooperation".
Her Honour considered general deterrence was fundamental in sentencing an offender who imported border controlled drugs and considered that personal deterrence was also relevant in the present case and required "a sentence with real consequences".
The learned sentencing judge considered the comparable cases with which she had been provided but noted that they revealed no "fixed tariff" and that the objective and subjective circumstances varied. Nonetheless, a common policy emerged that such offences were serious and were to be deterred. Her Honour concluded that, having regard to the serious nature of the offence and the need to ensure adequate punishment and to denounce the applicant's conduct, imprisonment was the only appropriate sentence. She stated that the non-parole period was what she considered to be the minimum period of imprisonment justice required the applicant to serve having regard to all relevant circumstances.
The sentence and the non-parole period referred to above were imposed.

Submissions on the application for leave to appeal

The applicant provided short written submissions which, in substance, drew attention to the fact that: 1. he had been in continual employment while on bail; 2. he had maintained a drug free lifestyle since his arrest and undertook to remain drug free; and 3. he would undertake any rehabilitation and training courses "as required and if available".
These and the other matters referred to in the grounds of appeal were relied upon to establish that the sentence was manifestly excessive.
During oral submissions, the applicant also sought to contend that he was not the person who prepared the cocaine or weighed and wrapped it. His contention was that he "was purely just a courier" and he was not "the mastermind behind this stuff up … It was just an act of desperation." On this basis, it was submitted in effect that the sentence was manifestly excessive in light of other cases where the sentence was less when the person involved was just a courier.
It was pointed out during the hearing that these factual contentions were inconsistent with the undisputed facts contained in the statement of agreed facts which was before Huggett DCJ in the proceedings on sentence. The applicant accepted that this was so.
The Crown submitted that the applicant had not established that the sentence was unreasonable or plainly unjust. It was also contended that the sentencing judge had considered all of the specific matters referred to in the applicant's grounds of appeal and her Honour had allowed appropriate discounts for the plea of guilty and limited assistance, and had sentenced leniently in light of the applicant's lack of a criminal record.
It was further submitted that the sentence imposed was within the range of sentences available such that it could not be concluded that there had been some misapplication of principle.

Consideration

The substance of the applicant's appeal was that his sentence was "unreasonably long" or manifestly excessive. He sought to establish this conclusion by drawing attention to the matters raised in grounds 2 to 8, and by contending that he was a mere courier and was not involved in preparing the drugs for importation.
The principles concerning whether a sentence is manifestly excessive are well established: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (Obeid) at [443]. For present purposes, those that are most relevant are: 1. in order to succeed on the ground that a sentence is manifestly excessive, an applicant must establish that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Obeid at [443]; 2. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid at [443]; and 3. Intervention is warranted only when the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Obeid at [443].
For an offence which carries a maximum penalty of 25 years imprisonment, the applicant received a sentence of 5 years with a non-parole period of 3 years. Taking into account the 25% discount for the plea of guilty, the notional starting point for the sentence was 6 years 8 months. This was consistent with the unchallenged finding that the offence was a serious one but mitigated by the applicant's subjective circumstances.
The applicant did not challenge any of Huggett DCJ's findings concerning his subjective circumstances. In this regard, the learned sentencing judge expressly took into account, inter alia, the following subjective matters, as revealed in her Honour's remarks on sentence: (a) it was the first offence committed by the applicant, in the sense that he had no prior criminal record, and he was consequently entitled to a degree of leniency; (b) there was some degree of remorse on the applicant's part; (c) the applicant had co-operated with enforcement authorities but this was, however, described as "very limited" nonetheless it still attracted a "minor allowance"; (d) the applicant pleaded guilty early for which he received a 25% discount; (e) the applicant changed his lifestyle, including securing work in Australia while on bail awaiting sentence; (f) letters stated that the applicant was a changed man who had learnt his lesson and the sentencing judge found that his risk of re-offending was low; and, (g) her Honour found that the applicant had good prospects of rehabilitation.
Thus, it can be seen that the sentencing judge made findings concerning, and took into account, all of the matters raised by the applicant in grounds 2 to 8 of the grounds of appeal. Further, there was no error in how her Honour addressed any of those circumstances.
In light of the objective seriousness of the offending and the applicant's subjective circumstances, the sentence imposed on the applicant was well within the appropriate range of sentences open to Huggett DCJ in this case.
As to the applicant's contention that he was purely just a courier and had not prepared, weighed or wrapped the cocaine and, consequently, the sentence imposed should be concluded to be manifestly excessive, this submission should be rejected.
The proceedings on sentence were conducted, and the applicant was sentenced, on the basis of his plea of guilty and on the basis that the relevant facts concerning the offending were undisputed and were as set out in the statement of agreed facts.
The general principle is that a party to proceedings, whether criminal or civil, is bound by the conduct of his or her counsel at trial: R v Birks (1990) 19 NSWLR 677 at 683 (Gleeson CJ); TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8] (Gleeson CJ) and [74] (McHugh J). There may be circumstances where a miscarriage of justice occurs by reason of incompetent representation in sentence proceedings and, in such cases, this Court may intervene and, for example, allow further material relevant to sentence to be admitted: Yi Hong Puan v R [2009] NSWCCA 194 at [54] (Howie J) and see also Tsiakas v R [2015] NSWCCA 187 at [44] (Beech-Jones J) and the authorities there cited.
In the present case, however, there was no ground of appeal to the effect that the applicant's counsel conducted the proceedings on sentence in such a fashion as to render the general principle inapplicable or to justify the intervention of this Court. Nor, on the material before this Court, including the record of the proceedings on sentence, was there any substantial foundation for advancing such a ground.
In all the circumstances, it was not open to the applicant to seek to rely on a different factual case on appeal from that put forward and accepted by his counsel during the proceedings on sentence.
Finally, as to whether comparable cases supported the conclusion that his sentence was unreasonable or plainly unjust, the applicant's submission was that there were: "a few other cases where the sentence was less when the persons involved were just a courier. But yeah they are rare. The sentences are rare between the most common is the one that I was given between two to three years".
In addition, the 5 comparable cases identified by the Crown (at AB49-50) disclose that the sentences in those cases relevantly ranged between: 1. 5 years with a non-parole period of 2 years 6 months in R v Sutton [2013] QCA 151, which involved an offender who imported a marketable quantity of cocaine (127.2 g) secreted internally, who pleaded guilty, who intended to use the cocaine for personal use and to sell to friends and whose criminality was held to be less than if he had been a courier on behalf of others; and 2. 6 years with a non-parole period of 3 years 9 months in Tyn v R [2009] NSWCCA 146 which involved an offender who imported a marketable quantity of heroin (242.3 g) secreted internally, who pleaded guilty, who had a limited criminal record, and who explained that she owed a debt of about $20,000 and her family were threatened by her creditors.
Having regard to the comparable cases identified in this matter and the particular facts and circumstances of this case, I do not accept that the applicant has shown that the sentence of 5 years with a non-parole period of 3 years imposed on him was unreasonably long or plainly unjust so as to be manifestly excessive, as contended under ground 1. Further, I am not satisfied that there was any error by the learned sentencing judge in relation to the matters referred to in grounds 2 to 8. Nor should it be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the remarks on sentence.
Accordingly, none of the grounds relied upon by the applicant should be upheld.

Another matter

During oral submissions, the Crown, very properly since the applicant was not legally represented, drew attention to the fact that the sentencing judge did not expressly refer to the utilitarian value of the plea of guilty in the remarks on sentence. Nonetheless, her Honour allowed a discount of 25% for the plea.
The Crown's written submissions on sentence, at pars 17 to 20, expressly referred to the decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and quoted passages from the judgment. In addition, the Crown submitted that the sentencing judge was entitled to take into account the utilitarian value of the plea and conceded that the plea was entered at the earliest opportunity. On this basis, it was contended that the applicant was entitled to a discount. However, it was further submitted by the Crown that the plea of guilty should be regarded as recognition of the inevitable.
The applicant's written submissions on sentence included, under the heading "Guilty plea: S 16A(2)(g)": "(a) Early guilty plea: 25% discount".
Although the sentencing judge noted at the beginning of the proceedings on sentence that the applicant had pleaded guilty in the Local Court, the discount to be allowed for the early guilty plea was not the subject of any oral submissions before her Honour.
The fact that a discount of 25% was to be allowed for the plea of guilty was explicitly referred to in remarks on sentence, as outlined above. In addition, after formally convicting the applicant and before she announced the sentence, her Honour said: "Having taken into account his plea of guilty and the other matters referred to in these remarks, I impose a sentence of ….".
In all the circumstances and particularly having regard to both parties' written submissions to her Honour, it appears to me that it should be accepted that the sentencing judge did take into account the utilitarian value of the plea of guilty in allowing the discount of 25% as she did. Thus, there was no error in that regard.

Conclusion

As the proposed grounds of appeal included one that was arguable, I would grant leave to appeal. However, for all the reasons stated above, I would dismiss the appeal.
Accordingly, the orders that I propose are: 1. The applicant has leave to appeal. 2. The appeal is dismissed.

Endnote

Schedule 4, item 41 of the Criminal Code Regulations 2002 (Cth) specified the commercial and marketable quantities, 2 kg and 2 g respectively, for cocaine as "a border controlled drug" at the relevant time. After 9 April 2019, these same quantities were specified for cocaine as a border controlled drug in Item 43 of Sch 2 to the Criminal Code Regulations 2019 (Cth). A different quantity, 250 g, was and is specified as the marketable quantity of cocaine as "a controlled drug" in Sch 3, Item 67 of the 2002 Regulations and in Sch 1, item 67 of the 2019 Regulations.

Amendments 21 August 2020 - End of document, taken off Associate's judgment certification. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2020

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