Court of Appeal (WA)|2006-12-05|Before: Smith JA

Mohlasedi v The Queen [2006] WASCA 267 (5 December 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MOHLASEDI -v- THE QUEEN [2006] WASCA 267

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Appeal against sentence - Appellant convicted after trial of importing in excess of trafficable quantity of heroin - 18 years' imprisonment with nonparole period of 10 years - Appellant a South African national - Member of airline cabin crew - Ill and dependent mother in South Africa - Whether sentence manifestly excessive

Respondent : Commonwealth Director of Public Prosecutions

Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 270

Foster and D'Anna (1992) 59 A Crim R 14

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

Parry v The Queen [2003] WASCA 222

Quach v The Queen [1999] WASCA 210

R v Hafner [2002] WASCA 211

R v Storey [1998] 1 VR 359

R v Tait & Bartley (1979) 46 FLR 386

Jarvis v The Queen (1993) 20 WAR 201

1 ROBERTS-SMITH JA: This is an appeal against sentence of 18 years' imprisonment with a non-parole period of 10 years, for a single offence of importing in excess of a trafficable quantity of heroin into Australia, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The amount of heroin concerned was 1,461.8 grams of pure heroin, with a street value between $3.9 and $5.1 million. The appellant had pleaded not guilty. He was convicted on 4 August 2005 after trial before Yeats DCJ and a jury in the District Court at Perth.

2 The appellant's grounds of appeal (as amended by leave at the hearing of the appeal) are:

"The sentence of the Learned Sentencing Judge was manifestly excessive and the Learned Sentencing Judge erred in law and in fact in:

1. treating this offence at the highest level of criminality when there was no finding made as to Applicant's role in the importation and, in particular, that he was a principal in the enterprise.

2. sentencing [sic the] Applicant primarily on the basis of the quantity and purity of the drug;

3. considering that irrelevant considerations, namely, the fact that the Applicant had lied on oath (based on the jury's verdict), was a member of airline cabin crew and had been to Australia before were aggravating factors in the sentencing of Applicant;

4. failing to take into account the (accepted) effect that the sentence would have on the Applicant's mother who was dependent on him and in ill health (s 16A(2)(p) Crimes Act 1914); and

5. failing to give any reasons for not discounting the sentence by 50% and, in particular, failing to take into account the Applicant's conduct since his incarceration which indicated good prospects of rehabilitation (s 16A(2)(n) Crimes Act)."

3 The appellant was a flight attendant on South African Airways and arrived in Perth on 8 August 2004 on a flight from Johannesburg. As he was moving into the Customs area he was observed trying to avoid the sniffer dogs. Customs officers took him aside and searched his luggage. During the course of the search, Customs officers located beige coloured women's support underwear. When asked about that, the appellant said that sewn within the two pairs of underwear was cocaine. Upon further questioning he acknowledged there were other drugs which he had imported and they were in a body pack attached to his body.

4 In an interview by Federal Police, he said he had previously been approached in South Africa by a female, who he claimed he could not identify other than by a first name, who asked him to deliver "pap" (a type of South African porridge or maize meal). He claimed he was to be paid 20,000 rand to bring the porridge into Australia for the female's relatives, although he told police he was suspicious that it might be drugs.

5 During the course of the trial he gave evidence and denied telling police that he was to be paid 20,000 rand but maintained he thought he was bringing in foodstuffs.

6 The applicant was born in Soweto in 1972 and was 33 years old at the date of sentencing. His father was a policeman, which apparently caused problems for him. At trial he described an incident when he was 15 years old, where he and his classmates were detained by police in South Africa and he was tortured by white policemen before being released.

7 According to the information before the sentencing Judge, when the appellant finished school he supported himself by doing odd jobs until 1994 when he gained his employment with South African Airways.

8 He has four children, the oldest is aged 16, to three different women and he was in a relationship with another woman in South Africa at the date of his arrest.

9 There was evidence before her Honour that the appellant suffered abuse over about three years during his teenage years and she was also informed that he experienced and witnessed considerable violence, particularly racial violence, in South Africa. That included seeing his father being shot at close range for being a police officer and another police officer being tortured and killed.

10 During his time with South African Airways the appellant was earning a gross pay of over $11,337 as cabin crew and supplemented his income by purchasing clothing from overseas to take back to South Africa for sale and by selling duty free items.

11 In her sentencing remarks the Judge said it had been difficult for her, looking at what the appellant said on his oath, much of which she considered to be false evidence. She did accept he had expressed to the police officers a keenness to catch the man who was to collect the drugs. They had arranged for him to telephone his Australian contact, but telephone calls had to be made to South Africa first and that was not done until later in the day and nothing came of it.

12 Her Honour accepted that the appellant did assist in the smooth running of the trial. She also referred to material before her about the health of the appellant's mother. She had, in particular, a medical report and a letter from the mother. She accepted that the appellant's mother was dependent upon him for monetary support and for the house in which she lives and that she had no other source of income. The mother suffers from chronic osteoarthritis and severe hypertension and recently had been diagnosed with congestive cardiac failure. Her Honour said that she accepted that with that background and his mother's problems and his inability to assist her, the appellant's imprisonment would be more difficult for him. However, she said that was not a matter that could have any weight at all "really" in sentencing him because he was a man who had chosen to come to Australia and commit the offence and when people come to Australia and do that, the fact they leave behind problems among their own families cannot be a matter that can be taken into account in mitigation.

13 Her Honour noted that while the appellant had been in remand for about a year, he had received counselling related to separation from his family and for his childhood sexual abuse. He had problems with alcohol abuse but did not himself use other drugs.

14 The sentencing Judge noted that the maximum penalty for the offence was 25 years' imprisonment or a fine of $550,000 or both.

15 She noted the amount of heroin involved was marginally under a commercial quantity and so was at the very upper end of a trafficable quantity under the Customs Act.

16 Her Honour referred to evidence at the trial that the street value of the heroin in Perth as at the date of its importation, would have been between $3.9 million and $5.1 million, depending upon the manner in which it was sold.

17 Her Honour said she believed it added to the seriousness of the offending that the appellant was at the time a member of an airline cabin crew and that this was the twelfth occasion that he had entered Australia. She said he was well aware of the Customs requirements and of the risks of carrying parcels for other people and he well knew the penalties for importing drugs. She said she also had to take into account that the offence was one which was very difficult to detect and in such circumstances called for a deterrent penalty. She said that in cases of such large scale drug trafficking the deterrent aspect of punishment is of primary importance (referring to R v Tait & Bartley (1979) 24 ALR 473; 46 FLR 386 and Darwell (1997) 94 A Crim R 35). Her Honour accepted that the High Court case of Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 ("Wong (HC)") made it clear that the quantity or weight of a prohibited drug is not necessarily the most important factor, but she said nevertheless it clearly is of considerable importance. She then said (BAB 5):

"When as in this case I'm dealing with an offender who has consciously and deliberately brought this extremely large quantity of heroin into Australia and when I take into account the terrible consequences to the community, not just in Western Australia but throughout Australia, from the importation of such a large amount of pure heroin it seems to me that this offence moves to the very top of the range for sentences for importation of trafficable quantities of heroin."

18 Her Honour said that she had reviewed all of the matters adumbrated in s 16A(2) of the Crimes Act (Cth). She said it was difficult to be certain of the nature and circumstances of the offence because the appellant originally spoke to police in a video-taped record of interview but then at trial on his oath denied many of the matters that he had admitted to them. She noted specifically, that in his evidence the appellant had said that he thought he was bringing "pap" into Australia and was not aware until after he had gone through Customs and was tested that he was carrying drugs. She observed that by its verdict the jury had completely negatived that and she was satisfied beyond reasonable doubt that he never believed he was bringing porridge into Australia in such an elaborate and carefully hidden manner. Neither did her Honour accept the appellant's evidence that a woman he did not know well, but had just met in a bar, asked him to bring packages of food to people in Perth on her behalf. She said that everything about the case, his background, his employment as a cabin attendant with South African Airways and his circumstances, indicated to her that he was knowingly and willingly involved and that he brought the large amount of heroin into Australia for his own commercial gain.

19 The sentencing Judge said the appellant had shown no remorse at trial, nor was there any evidence of it from the letter he had written or the pre-sentence report, other than about the serious trouble he was in.

20 The primary sentencing principle, in her Honour's view, was the need for deterrence and to ensure the appellant was adequately punished for the offence. She accepted that the lengthy period of imprisonment which was obviously required, would have a devastating effect on the appellant's family, and particularly his mother in South Africa, but there was little to mitigate from the offence of intentionally bringing into Australia this extremely large quantity of heroin.

21 Her Honour referred to Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313, Thom [2001] WASCA 322; (2001) 126 A Crim 196, R v Hafner [2002] WASCA 211 and a number of sentences referred to in Parry v The Queen [2003] WASCA 222 and observed that she had been struck by the fact that the amount of pure heroin in this case was much greater than the amounts in any of those.

22 She concluded that whilst she accepted the amount of heroin was not necessarily the only important factor, nonetheless when there was, as she had found here, an intentional importation of such an extremely large amount of pure heroin and there was little in the appellant's circumstances that mitigated in any way, a sentence of 18 years was appropriate. She said she was required to fix a non-parole period and without further elaboration fixed a period of 10 years' imprisonment.

23 As drafted, there is only one ground of appeal, but with five particulars. Furthermore, the ground expresses two different notions. The first is that the sentence was manifestly excessive. The second complains of specific error in the ways then particularised. It is important that grounds of appeal be clearly, concisely and succinctly expressed (r 32(4)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA)). The imposition of sentence is an exercise of judicial discretion. The exercise of that discretion may be shown to have miscarried in two ways. The first is where specific error of material fact or legal principle is demonstrated. The second is the "residual category" which is described as manifest inadequacy or manifest excess. In the latter case, appellate intervention is not justified simply because the sentence is markedly different from other cases, but only where the difference is such as to lead to a conclusion that there must have been some error of principle, even though it cannot be identified from the reasons given (House v The King [1936] HCA 40; (1936) 55 CLR 499; Wong (HC) (supra) per Gaudron, Gummow and Hayne JJ at [58]).

24 It is necessary to begin with a consideration of the principles ordinarily applicable and the range of sentences customarily imposed, in sentencing for offences of this kind.

25 The logical starting point so far as principle is concerned is with R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 and Wong (HC) (supra).

26 In Olbrich, the respondent had been sentenced to 81/2 years' imprisonment with a non-parole period of 6 years, on one count of importing not less than the trafficable quantity of heroin. He had given evidence before the primary Judge that he was only acting as a courier. The Judge rejected his evidence, holding that to the degree a courier was accorded some mitigation by being less culpable than if he were a principal, the respondent had to prove he was less culpable than the objective facts otherwise indicated. As he had not done so, "normal sentencing principles" had to be applied. The New South Wales Court of Criminal Appeal held that was a wrong approach, quashed the sentence and remitted the case for re-sentencing. The High Court upheld a Crown appeal, holding that the primary Judge had not erred.

27 The majority (Gleeson CJ, Gaudron, Hayne and Callinan JJ) emphasised that sentencing decisions will be affected particularly by a sentencing Judge's conclusion about what the offender did and by their history and other personal circumstances. Identification of the precise nature of an accused's involvement in an importation of a prohibited drug is not an essential aspect of the sentencing process ([13]). The categorisation of the role of an offender may be relevant, but the utility of such an exercise is necessarily limited by the extent to which the material facts are known ([14]).

28 The majority pointed out ([16]) that there is a very practical reason why a sentencing Judge is not obliged to inquire about the course of events before or after the importation of drugs. It is that prosecuting authorities will very rarely know. In addition, there is no statutory requirement that a sentencing Judge make such inquiries, and in any event, what was done or intended to be done after importation will not always be relevant to sentencing for the crime of importation. Their Honours enjoined caution be exercised about the use of terminology. Characterising an offender as a "courier" or "principal" must not obscure the assessment of what the offender did ([19]). Nonetheless, where it is clear an importation is part of a business operation organised hierarchically, a distinction between courier and principal might be useful to indicate where the offender fitted into the hierarchy, which, in turn, might assist in identifying the nature of their criminality ([20]).

29 Their Honours rejected the contention ([24]) that a Judge who is not satisfied of some matter urged in mitigation of an offender must, nevertheless, sentence the offender on the basis which accepts the accuracy of the matter unless the prosecution proves to the contrary beyond reasonable doubt. The correct position is that articulated in R v Storey [1998] 1 VR 359, 369, namely that a sentencing Judge:

"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."

30 In Olbrich, their Honours held the prosecution had not submitted the sentence should be increased beyond that called for by the objective facts (which were that the respondent was a 58-year-old first offender who pleaded guilty to importing more than 1.1 kilograms of heroin); rather the respondent had submitted the sentence which would otherwise be imposed should be mitigated because he was "a courier". He bore the burden of proving that fact and had failed to do so.

31 In passing, I note Olbrich was sentenced to 81/2 years' imprisonment in relation to importation of 1.6 kilograms of powder which contained 1.184 kilograms of pure heroin. Section 16G of the Crimes Act 1914 (Cth) applied at that time. That stipulated that if a federal sentence was to be served in an Australian jurisdiction where sentences were not subject to remission or reduction, the court imposing sentence must take that into account and make an appropriate adjustment. The courts had rejected the notion that a sentencing formula should be applied in determining the discount under s 16G, instead taking the view that a discretion should be exercised to allow a sentencing Judge to modify the discount in an appropriate case (Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 270; R v Li [1998] 1 VR 637). Nevertheless, in practice, the application of s 16G almost invariably resulted in a reduction of one-third (R v Kevenaar [2004] NSWCCA 210; (2004) 148 A Crim R 155 per Hulme J at [46] - [48]). Section 16G was repealed with respect from 6 January 2003 (Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth). Section 16G was applied in Olbrich (supra), (noted by Kirby J at [39]). Although the actual reduction is not stated, it was presumably one-third, in conformity with the usual practice. That would make an effective head sentence of 12 years 10 months.

32 In Wong (HC), the two appellants had been convicted in the District Court of New South Wales of being knowingly concerned in the importation of not less than the commercial quantity of heroin (13.462 kilograms of powder, or 9.356 kilograms of pure heroin) contrary to s 233B of the Crimes Act. Each was sentenced to 12 years' imprisonment with a non-parole period of 7 years. The DPP appealed. The Court of Criminal Appeal allowed the appeals and substituted sentences of 14 years' imprisonment with non-parole periods of 9 years. The Court also set out "guidelines" for sentencing those involved in the importation of prohibited drugs. The appellants' appeal to the High Court succeeded. The majority (Gaudron, Gummow, Kirby and Hayne JJ) held the selection in the guidelines of the weight of the drug as the chief factor in sentencing for such offences was a fundamental departure from sentencing principles, and was inconsistent with s 16A of the Crimes Act 1914 (Cth). The guidelines had materially affected the decision of the Court of Criminal Appeal which therefore had to be set aside.

33 In their joint judgment (at [57]), Gaudron, Gummow and Hayne JJ emphasised the importance of statements of principles guiding the exercise of the judicial sentencing discretion. Because it is statements of principle which give rise to binding precedent and actual sentences themselves do not, it is wrong to speak of "quantitative aspects" of discretionary decisions (as the Court of Criminal Appeal had done). Thus, their Honours added ([59]):

"Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."

34 Their Honours identified ([64]) like features as bearing upon the formulation of applicable principles in relation to offences of this kind. Those included the difficulty of detection (which suggest deterrence is to be given chief weight in sentencing) and the great social consequences that follow from the commission of such offences (which feature suggests that stern punishment will be warranted in almost every case). Relevant features also include those which differentiate between cases, such as the quantity of the drug involved, the extent of the offender's knowledge, the offender's role and the reward which the offender hoped to gain. Their Honours observed that generally the greater the extent to which these features were evident in a particular case, the heavier would be the punishment ordinarily imposed. They reiterated that all of these features, and others, including those mentioned in Pt 1B of the Crimes Act, should be taken into account in formulating applicable principles and stressed that to focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice.

35 As to the weight of the narcotic imported, their Honours said ([67]):

"The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities (Customs Act, s 235). No doubt, within both of those categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing a sentence?" (Emphasis added)

36 In their Honours' opinion, the selection of the weight of narcotic as (usually or perhaps even always being) the chief factor to be taken into account represented a departure from fundamental principles. However, that was the starting point taken by the Court of Criminal Appeal. Furthermore (at [74] - [77]):

"[74] ... the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' (R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 365 [141]) to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

[75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis' (R v Williscroft ]1975] VR 292 at 300, per Adam and Crockett JJ. See also R v Thomson (2000) 49 NSWLR 383). This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

[76] In R v Thomson (2000) 49 NSWLR 383 at 396-411 [54]-[113], Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach (R v Geddes (1936) 36 SR (NSW) 554 at 555, per Jordan CJ; R v Gallagher (1991) 23 NSWLR 220 at 227-228, per Gleeson CJ;; at 233-234, per Hunt J; R v Beavan (unreported; Court of Criminal Appeal (NSW); 22 August 1991); R v Winchester (1992) 58 A Crim R 345 at 350, per Hunt CJ at CL; R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300; R v Young [1990] VicRp 84; [1990] VR 951 at 955-956; R v Perrier [No 2] [1991] VicRp 38; [1991] 1 VR 717; R v O'Brien (1991) 55 A Crim R 410; R v Nagy [1992] VicRp 45; [1992] 1 VR 637; R v Harman [1989] 1 Qd R 414 at 421, per de Jersey J; R v Corrigan [1994] 2 Qd R 415; Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186; cf R v Sutherland (unreported; Court of Criminal Appeal (SA); 16 November 1992); R v Harris [1992] SASC 3624; (1992) 59 SASR 300; Verschuren v The Queen (1996) 17 WAR 467). In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 121-122 [15]- [18], per McHugh J; at 156 [115], per Hayne J expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view (AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 148-149 [99]- [100]). We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher (1991) 23 NSWLR 220 at 228 when he said that:

'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.'

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.

[77] The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment."

37 It is important to appreciate that their Honours in Wong were dealing with "guidelines" of general application which purported to mark the weight of the drug as usually, or even always, the primary determinant of the gravity of offences involving the importation of prohibited drugs. Their remarks were directed to the effect of stating that as a general guideline, and to the constraints which that imposed on the exercise of discretion and the exclusion of other relevant matters from consideration. In my opinion their Honours were not saying that the weight (and purity) of the drug is not a relevant consideration, nor even that it could not be a, or perhaps the, primary feature in a particular case, so long as all other relevant considerations were taken into account.

38 Before leaving Wong (HC), I note that on remittal to the New South Wales Court of Criminal Appeal, that Court (Sully J, Wood CJ at CL and Greg Jones J concurring) again upheld the Crown appeal (Wong [2002] NSWCCA 169; (2002) 127 A Crim R 243). Sully J said that he would have thought that at first instance a head sentence in the order of 16 years "at least", and a non-parole period in the order of 11 years "at least", were called for after the adjustment required by s 16G of the Crimes Act (which suggest a head sentence of about 24 years and a non-parole period of about 16 years 6 months before just adjustment). His Honour concluded the putative head sentence of 14 years should stand, but allowing for "triple jeopardy" and changes in the personal circumstances of the offenders, rather than increasing the non-parole period from 7 to 9 years, it should be increased from 7 to 8 years. That was the decision of the court.

39 It may be observed that in that case, the appellants did not plead guilty but were convicted after trial; they were knowingly concerned in the importation of 9.356 kilograms of pure heroin; they were found to be major participants in the distribution chain and their level of objective criminality was of a similar order as that of a "principal". There was otherwise little of relevance to sentencing that was known about them. Thus, the quantity of heroin imported and their roles in the importation were the dominant factors in any proper approach to fixing their sentences (Wong (HC), per Gleeson CJ at [24]).

40 The first way in which it is here contended the sentencing Judge erred is said to be in treating the offence "at the highest level of criminality" when she made no particular finding about the appellant's involvement and the circumstances such as would place him at the top of the range, and yet, it is submitted, her Honour imposed a sentence at the top of the range. It is submitted the appellant was sentenced "as if he were a principal involved in the importation, the organisation of the drug and so on". Ms Prince submitted that for someone in the appellant's position the appropriate range would be the 11 to 15 years suggested in Quach v The Queen [1999] WASCA 210, and conceded that as the appellant was being sentenced after trial "it would probably be towards the upper end of that". She submitted 15 years could have been appropriate but 18 years is significantly more than that and is manifestly excessive.

41 The range of 11 to 15 years' imprisonment suggested in Quach was said to be in respect of a courier close to the source of importation and at the higher end of the scale of responsibility. But that begs further examination.

42 In that case the applicant had pleaded not guilty. He was found guilty after trial, on one count of possession of heroin with intent to sell or supply contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA), and was sentenced to 15 years' imprisonment. An order was made that he be eligible for parole. The offence was committed in 1996. The applicant arrived in Perth by bus from New South Wales. He was searched by police who found a cassette player in his luggage. There were three packages contained in the cassette player. They were wrapped in plastic bags and tape and smeared with a thick, sweet-smelling, honey-like substance, which would have prevented sniffer dogs detecting what was in the packages. They contained 653 grams of heroin in block form, ranging in purity from 58 to 63 per cent. It had an estimated street value of $650,000. The applicant's fingerprints were found on the inside wrapping of two of the packages. At his trial, the applicant testified that he had come to Western Australia for a holiday, that a friend had given him the cassette player to bring to Perth as a gift for that person's friend, and he had no knowledge of the heroin.

43 The sentencing Judge had concluded the appellant should be dealt with at the higher range of penalties for couriers. Ipp J (Wallwork and White JJ agreeing), said that the applicant's role in wrapping the carefully packaged cache, as evidenced by his fingerprints on the inner wrapping, was significant. As his Honour said, it did not necessarily follow that because the applicant was involved in the wrapping he was therefore more than a courier, but involvement to that extent indicated he carried a greater degree of responsibility than being a mere conduit. He actively participated in the methods employed to avoid detection and his fingerprints indicated knowledge on his part of the large quantity of heroin involved. Further, the rock form of the heroin indicated it was obtained from individuals close to the source of importation.

44 The Court of Criminal Appeal also held the sentencing Judge to have been correct in finding the seriousness of the offence far outweighed any personal matters of mitigation. As Ipp J observed (ibid [13]):

"The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force. See, for example Darwell v The Queen (1997) 94 A Crim R 35, Heryadi v The Queen (1998) 98 A Crim R 578, and Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998."

45 Dealing with a ground that the sentence was manifestly excessive, Ipp J canvassed a large number of cases to which reference had been made in argument, noting that it is difficult to determine appropriate ranges for offences of this kind as there are so many variable factors, and that to describe an offender as a courier can be an inadequate categorisation because there are many different kinds of couriers with different degrees of criminal responsibility attaching to each.

46 Having reviewed the cases, his Honour concluded ([26]) a sentencing range of 11 to 15 years' imprisonment was appropriate for cases involving possession of heroin with intent to sell or supply, involving quantities of between 600 to 700 grams, having a purity of between about 55-65 per cent, where the offender is a courier who is well aware of the quantity and quality of the heroin, who actively participates in attempting to conceal it from detection, who commits the offence for commercial gain (and not solely to finance an addiction) and who is close to the source of importation. Ipp J made further comment about the effect of a "range". He pointed out (at [27]) that a range established by an appellate court does not take effect like a statute but is merely a guide to appropriate sentences. It is not an exact measure and its limits are flexible rather than rigid and the mere fact that a sentence exceeds the range by a relatively small amount does not mean it is susceptible to being overturned on appeal.

47 Of course the sentence of 15 years upheld in Quach was imposed prior to the 2003 amendments to the Sentencing Act. It equates to a sentence of 10 years' imprisonment imposed after 31 August 2003. Likewise, the range of 11 to 15 years equates to a post-transitional range of approximately 71/2 to 10 years.

48 It may be observed that the quantity of heroin in the instant case was almost 11/2 kilograms, more than twice the amount in Quach, and was 100 per cent pure heroin. Here counsel for the appellant said it should not be accepted that he was a courier who was well aware of the quantity and quality of the heroin in his possession. However, it is clear from what he told the Customs' officers and police that he was well aware that he was carrying prohibited drugs. Likewise, he did bring the heroin into Australia and was a courier, and that he was the person who imported it and was to pass it on to someone else. Objectively, he must necessarily have been aware of the quantity he was bringing in (it was not, for example, concealed in something which would have prevented him knowing that). Ms Prince accepted that he clearly participated in attempting to conceal the heroin from detection and that he committed the offence for commercial gain and not to finance an addiction. Here, the quantity, purity and potential value of the heroin lead to a conclusion that the appellant was close to the source of the drug.

49 There is no doubt this was a severe sentence, and was at the top of the range, but I am not persuaded it was outside the range of a proper exercise of her Honour's sentencing discretion. True it is that her Honour made no finding that the appellant was a principal in the enterprise or the organisation, but she was in no position to do so given his denials of knowledge. That being so, she was obliged to sentence him on the basis of the objective facts, as I have just outlined them. When considered in light of Wong, Parry and Quach and the cases discussed there, her Honour was justified in concluding the objective facts called for a sentence of this order. Whilst I may well have imposed a less severe sentence - particularly in light of the fact the appellant is a foreign national having to serve a very long sentence in Australia - I cannot say the sentence imposed by her Honour is outside the range.

50 As to the particular point of the appellant's role, Olbrich makes it clear there was an evidentiary onus on the appellant to satisfy the court he stood lower in the hierarchy, or level of criminal culpability, than examination of the objective facts shows. He did not discharge that onus.

51 These conclusions dispose of particulars 1 and 2.

52 Particular 3 asserts the sentencing exercise was infected by reliance on irrelevant considerations.

53 I cannot accept the proposition that the sentencing Judge took into account adversely to the appellant in sentencing, that he had lied on oath. Nowhere did she say that. What she did say was that it was difficult to ascertain the circumstances of the appellant's involvement because he had given one account to police but another in evidence on his trial, and that the jury had necessarily disbelieved his testimony. Those observations were simply statements of fact. They were self-evidently correct. Counsel for the appellant was unable to point to any passage in which her Honour said anything to suggest she was imposing a more severe sentence because the appellant had lied on oath.

54 Next it is submitted that her Honour erred in finding the seriousness of the offence was exacerbated by the fact the appellant was a member of airline cabin crew and had been to Australia before. What her Honour said (AB 5) was:

"I believe it adds to the seriousness of this offending that the offender was at the time a member of an airline cabin crew. This was the 12th occasion when he had entered Australia. He was well aware of the customs requirements and of the risks of carrying parcels for other people. He well knew the penalties for importing drugs. I also take into account that this is an offence which is very difficult to detect and in such circumstances a deterrent penalty is called for."

55 I see no error in this. The fact that the appellant was a member of an airline cabin crew and had been to Australia on 12 previous occasions, indicates a familiarity with Australian Customs' requirements and processes. The appellant was not a neophyte; he knew the risks involved. There was evidence at trial that his crew manual (which had been seized) clearly spelled out his obligations, including not to import drugs nor to carry goods for anyone else. He knew the penalties for importing drugs into Australia. There was also evidence that airline crew were not required to complete the same detailed documentation as passengers and that their passage through Customs could be quicker. Against the background of the appellant's knowledge of these matters, his deliberate decision to import a substantial quantity of a prohibited drug took on a more seriously criminal aspect than might have been the case had they been largely or wholly absent.

56 The contention that her Honour failed to take into account the effect the appellant's sentence would have on his mother, who was dependent on him and in ill health, has not been made out. She expressly adverted to this factor. She acknowledged that the appellant's mother had health issues and was dependent on him for monetary support and the house in which she lives, and that she had no other source of income. Her Honour noted the appellant's mother suffers from chronic osteoarthritis and severe hypertension and recently had been diagnosed with congestive cardiac failure. She accepted, with that background, knowing of his mother's problems and his inability to assist her, the appellant's imprisonment would be more difficult for him, but she said that was not a matter that could have any weight at all really in sentencing him because he had chosen to come to Australia and commit this offence. Later, she added that she accepted that imprisonment would have a devastating effect on the appellant's family, and particularly his mother in South Africa.

57 In support of this submission, Ms Prince relied on Parry and Thom. I do not think those cases assist the appellant. In Parry the applicant had been sentenced to 10 years' imprisonment with a non-parole period of 5 years 6 months on one count of being knowingly concerned in importing a trafficable quantity of heroin. He had pleaded not guilty and was sentenced after trial. The case involved 314.4 grams of heroin of 71 per cent purity, making a net pure total of 224.4 grams. The street value was between $375,000 and $400,000. The applicant and an accomplice had actually organised another co-offender to import the drugs. One of the grounds of appeal was that the sentencing Judge had failed to give sufficient weight to the applicant's personal circumstances, including his poor health (he had hepatitis C) and others, of which Anderson J (with whom Malcolm CJ and McKechnie J agreed) said ([38] - [41]):

"38 Leaving aside the applicant's hepatitis C, the subjective matters put forward by the applicant in support of his argument that he should have received a lower sentence or at least a lower minimum term are essentially his good antecedents, the hardship that his incarceration in Australia will occasion to his family overseas including, at the time, his seriously ill mother, the hardship to him of isolation and separation from his family, imperfect physical and/or mental health, his drug addiction as the explanation for his offending, his remorse and evidence of rehabilitation.

39 Each of these matters was expressly referred to by Macknay DCJ in his sentencing reasons, so obviously his Honour did not overlook any of them. The argument that he failed to give them sufficient weight is based firstly on the proposition that the Judge did not dwell on them and secondly that the sentence itself reflects a failure to accord them proper weight. In my opinion all of the matters personal to the applicant which were relevant to his sentence were referred to in terms which indicate that they were given appropriate consideration. As to whether in the end they were given enough weight, it is settled that, although always relevant to the exercise of sentencing discretion, personal circumstances will not usually ameliorate to a significant degree a sentence which is appropriate to the objective circumstances of this form of criminal activity. The relevant penalties set out in the Customs Act are very severe. It is plainly the policy of the legislature that firm punishment is to be imposed on people who deal in trafficable quantities of prohibited drugs. The Court is obliged to exercise the sentencing discretion which is entrusted to it having proper regard for that policy. As was pointed out in R v Peel (1971) 1 NSWLR 247 at 262:

'In determining the proper penalty ... the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug'.

40 There is no need to set out again the reasons why importation of trafficable quantities of extremely harmful drugs is not to be viewed with tolerance; and why ordinarily it is spending idle time to argue that personal circumstances and antecedents should significantly mitigate the sentence. The reasons have been stated again and again in the cases, some of which are R v Bellissimo (1996) 84 A Crim R 465 at 471; R v Darwell (1997) 94 A Crim R 35; Heryadi v The Queen (1998) 19 WAR 383 and Quach v The Queen [1999] WASCA 210 at [13]. As Murray J said in Grimwood v The Queen [2002] WASCA 135 at [13], in a judgment with which Steytler and Miller JJ agreed:

'The cases are legion in which it has been held that in such circumstances the primary aim of the Court will be to endeavour to protect the community by imposing punishment of a severity calculated to ... deter the offender and others from the commission of such offences.'

41 It can safely be said, I hope, that matters personal to a convicted drug trafficker will not usually excite sufficient sympathy to result in a significant reduction in his or her sentence. This is not such a case. There are not many extenuating circumstances. With the possible exception of the hepatitis C disease which, as I say, will be dealt with under the fifth ground, none of the subjective matters take the case out of the ordinary, so to speak. As has been observed, the applicant's various medical and psychological conditions, apart, perhaps, from his hepatitis C, are receiving attention in prison. They are not serious or unusual illnesses on any view. It has not been shown that incarceration is having, or is likely to have, a gravely deleterious affect on them, or is causing grave hardship to the applicant, such as to call for an especially merciful sentence. As to the hardship to himself and his family arising from his imprisonment here, imprisonment in a foreign country is a usual and self induced consequence of smuggling into a foreign country, as was pointed out by McKechnie J in Soh v The Queen [2003] WASCA 29 at [9]. The extra hardship must be recognised, of course. It is, no doubt, a real thing and the Crimes Act 1914 (Cth), s 16A(2)(p) provides that the sentencing court must take into account 'the probable effect that any sentence... would have on any of the person's family or dependants'. I am not, however, persuaded that it has not been fully allowed for in the sentence as a whole, especially the non-parole period ..."

The court granted leave to appeal but dismissed the appeal.

58 In Thom the appellant had pleaded guilty to importing 314.1 grams of heroin of 71 per cent purity. The quantity of pure heroin was 225 grams. He was sentenced to 8 years 6 months' imprisonment with a non-parole period of 5 years 6 months. His sentence would have been 13 years' imprisonment but was reduced on account of his fast-track plea of guilty and for significant co-operation with the authorities. The grounds of appeal included a complaint that the sentence was crushing, having regard to the appellant's age, health, his isolation from his family in Thailand and the hardships likely to be experienced by his family as a result. Another ground complained the non-parole period amounting to 65 per cent of the head sentence was excessive and there "was no requirement" for a non-parole period any greater than 50 per cent of the head sentence. The appellant had been living in Thailand for 25 years. He had a Thai wife. He had stepchildren and step-grandchildren there. Malcolm CJ (Steytler J and Burchett AUJ concurring), referring to Darwell (1997) 94 A Crim R 35, 39, Quach (supra) and Foster and D'Anna (1992) 59 A Crim R 14, held the head sentence was "well within the range of a sound discretionary judgment", but that having regard to the fact the appellant's family and restaurant business were in Thailand, service of his sentence in Western Australia would be a hardship, especially given his financial situation and the risks to which he would be exposed by virtue of his co-operation with the authorities, and the Commissioner at first instance had erred when he considered a non-parole period of two-thirds of the sentence was necessary. The court reduced the non-parole period to 4 years 3 months, being 50 per cent of the head sentence.

59 There was no statement of principle articulated in respect of the effect of the hardship to the appellant and his family from his incarceration. The case was therefore simply an example of that factor mitigating punishment in the particular circumstances of the case, at least in relation to the non-parole period.

60 Ms Prince's submission was that like Parry and Thom, the present was a case in which her Honour ought to have taken this factor into account. However, her Honour did take it into account. She referred to it quite clearly. But she concluded that having regard to the seriousness of the offence as shown by its objective circumstances, she could give it virtually no weight. She was entitled to take that view. It was one plainly open to her. To say a sentencing Judge failed to take a relevant matter into account at all, is one thing. That would be a failure to comply with s 16A of the Crimes Act. To say the Judge took the relevant matter into account but gave it little, inadequate or no weight, is quite another thing - and alleged error of that kind is extremely difficult to make out. It has not been made out here. It cannot be said the exercise of her Honour's sentencing discretion miscarried in this way.

61 I come to the ground concerning the non-parole period.

62 The gravamen of this is said to be that her Honour did not fix this at 50 per cent of the head sentence, but gave no reason for setting it higher. Counsel for the appellant said it had been accepted by the prosecutor before the sentencing Judge that 50 per cent was the "usual" figure. She referred to what the Crown prosecutor had said (at GAB 15):

"The non-parole period - you are no longer limited either way. It used to be a maximum of two-thirds. There's no limit either way. Generally the non-parole periods have been around 50 per cent but you're not married to that situation as well. Its entirely a discretionary matter for you."

and she submitted that if the discretion was going to be extended beyond that, reasons should have been given. They had not been given here, so there was a lack of transparency. The further submission here is that given "all the circumstances and the materials and so-on", this was a matter in which rehabilitation loomed large and the determination of the non-parole period ought to have been the subject of reasons, albeit brief.

63 Mr Dembo, for the respondent, drew our attention to the written submissions on sentence which had been before her Honour. In his written submissions he had said (AB 34 [18]):

"18. Under federal law the sentencing court, in determining the minimum term of imprisonment, will fix a term that justice requires the offender to serve, having regard to all of the circumstances of the offence (see, for example Oancea (1990) 51 A Crim R 141). Generally the non-parole period would be between 50% and two thirds of the head sentence although the Court is not limited either way. Any discounts, notional if using the two-stage approach, must come off the notional head

sentence not the non-parole period (R v El Karhani (1990) 21 NSWLR 370)."

64 I do not accept the appellant's submission that separate reasons must be given when a sentencing Judge sets a non-parole period greater than 50 per cent of the head sentence. There is no statutory constraint to that effect and nor does judicial authority limit the exercise of the sentencing discretion in that way. There is no "normal" nor prima facie standard of 50 per cent of a head sentence for a non-parole period. The determination of a non-parole period when sentencing Commonwealth offenders is part of the exercise of the sentencing discretion generally. The purpose of fixing a minimum term to be served is to allow for mitigation of punishment in favour of rehabilitation through conditional freedom once the offender has served the minimum time that a Judge determines justice requires to be served having regard to all the circumstances of the offending (Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 536; R v Shrestha [1991] HCA 26; (1991) 173 CLR 48, 63; Oancea ( 1990) 51 A Crim R 141).

65 Her Honour gave reasons for sentence generally. I would take those as encompassing both the head sentence and the non-parole period. Those two elements of the sentence were the product of the "instinctive synthesis" approach approved by the High Court in Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048.

66 Here, the non-parole period was 55 per cent of the head sentence. That clearly recognised the appellant's prospects of rehabilitation. The appellant has not demonstrated error here.

Court (Court of Appeal) Rules 2005

Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002

Mohlasedi v The Queen [2006] WASCA 267

At a glance

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Mohlasedi v The Queen [2006] WASCA 267 (5 December 2006)

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