Court of Appeal (WA)|2003-08-13|Before: Murray ACJ

"P" v The Queen [2003] WASCA 180 (13 August 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : "P" -v- THE QUEEN [2003] WASCA 180

Criminal law and procedure - Appeal against sentence - Whether sentencing Judge erred in imposing minimum term of twothirds of head term - Turns on own facts

Respondent : Commonwealth Director of Public Prosecutions

B (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950482; 15 August 1995

Boxtel v The Queen [1994] VicRp 54; [1994] 2 VR 98

Grimwood v The Queen [2002] WASCA 135

Heryadi v The Queen (1998) 19 WAR 383

R v Bellissimo (1996) 84 A Crim R 465

R v El Karhani (1990) 51 A Crim R 123

R v Peterson [1984] WAR 329

Thompson v The Queen [1999] HCA 43; (1999) 73 ALJR 1319

1 MURRAY J: I agree with the reasons of Steytler J and have nothing to add. I would refuse leave to appeal.

2 ANDERSON J: I agree with Steytler J that leave to appeal should be refused for the reasons given by him.

3 STEYTLER J: The applicant was convicted of importing heroin into Australia, contrary to s 233B of the Customs Act 1901 (Cth). The amount of pure heroin imported by him was 214.9 grams out of a gross weight of 597.3 grams. The sentencing Judge accepted that the heroin had a street value of about $600,000. She sentenced him to a period of 7-1/2 years' imprisonment with a minimum term of 5 years. He seeks leave to appeal against that sentence.

4 There is only one ground of appeal. That is that the sentencing Judge erred in law in finding that a non-parole period of 66 and two-thirds per cent of the head sentence was required in that she "erred in the exercise of ... [her] discretion in failing to have proper regard to the likely effect of the non-parole period on the totality of the sentence; and ... there was no requirement for a non-parole period any greater than 50 per cent of the head sentence."

5 The applicant lived in Romania and had dual citizenship of that country and of Israel. He was 31 years old at the time of sentencing. He had, until shortly prior to his arrest, been a full-time student, studying sports medicine at a Romanian university. Earlier, he had borrowed an amount of $13,000 in order to fund an operation required by his ill father and also to start up a restaurant. By the time of the commission of the offence, the restaurant business had failed and he was unable to repay the loan. Under pressure from the lender of the money, he agreed to carry drugs into Australia in return for which the debt would be forgiven. Threats had been made to his family in regard to his failure to repay the debt.

6 After some difficulty and expense on the part of the lender, the applicant obtained a visa to travel to Australia and did so. He flew from Budapest via Johannesburg. Upon his arrival in Perth, he was selected for a "frisk" search. He thereupon advised the customs officers that he was carrying something in his underpants. A package of heroin was found in his underpants, which had been modified by the insertion of a resin overlay. Also, his boots contained false inner soles and heroin was found in them. He was interviewed by police officers and made admissions with

respect to receiving the packages of heroin from a person in Budapest. The applicant agreed to take part in a controlled delivery, but no-one turned up to collect the heroin. In a second interview with the police, the applicant provided further details of his meeting with the person from whom he had obtained the heroin in Budapest.

7 The applicant later pleaded guilty at the first available opportunity.

8 The applicant is divorced from his wife and has no children. He is engaged to be married, but at the time of the commission of the offence, his fiancée knew nothing about his involvement in the importation of the heroin. His personal history was described by the sentencing Judge as unremarkable. He had no criminal convictions. He was not a drug addict.

9 The sentencing Judge, after reciting these, and other, facts, went on to consider to what extent the applicant's sentence should be discounted by reason of his cooperation with the authorities. Earlier, when outlining what had been the extent of the applicant's cooperation, she had mentioned that his present intention was "not to testify". It seems that she then had before her a report prepared by a Federal Police officer which read as follows:

"Upon his arrest on 28 July 2001, the defendant offered limited cooperation to assist Police with enquiries, but assisted in attempts to undertake a controlled delivery.

The controlled delivery was unsuccessful for indeterminate reasons.

He has since pleaded guilty at the first opportunity available and fast tracked sentencing.

Police have since arrest made enquiries whether the defendant would be willing to provide further assistance inn [sic] relation to the Australian connection of the syndicate he imported narcotics for. He has assisted Police and provided details of the syndicate members in Australia. He is not prepared to give evidence against those syndicate members.

... [P] is a single male with no visible means of support. He frequently travels and has visited a number of different countries."

10 While the sentencing judge noted that the applicant's cooperation was limited by what was said to be his unwillingness to give evidence against syndicate members, she considered that a significant discount should nonetheless be given in respect of his cooperation. She said, in that respect, that she considered an appropriate sentence to be one of 12-1/2 years' imprisonment, but that she would reduce that by 40 per cent in order to take into account both the early plea of guilty and the applicant's cooperation. That brought the sentence down to 7 years and 6 months' imprisonment. However, she said, she considered that the minimum time that justice required to be served before eligibility for release on parole was a period of 5 years.

11 As will be apparent, the applicant takes no issue with the head sentence imposed. I have said that the sole ground of appeal relates to the imposition of the non-parole period of two thirds of the head sentence. It is true that a non-parole period of that proportion is greater than is customarily ordered in this State. However, a sentencing Judge has an undoubted discretion to set a non-parole period at two-thirds of the head term, where that is appropriate: s 19AA and 19AF of the Crimes Act 1914 (Cth) and s 95 of the Sentencing Act 1995 (WA) and non-parole periods of about two-thirds of the head sentence are sometimes set (see, for example "X" v The Queen [2000] WASCA 355). The question for decision is consequently whether or not her Honour erred in the exercise of her discretion in setting that period in this case.

12 The applicant relied, in support of his contentions that her Honour did so err, upon the case of R v Thom [2001] WASCA 322; (2001) 126 A Crim R 196. There the appellant had pleaded guilty, on the fast-track system, to charges of importing 225 grams of pure heroin and to possession of a false passport. He was then 49 years old and had a family and a business in Thailand, although he was an Australian citizen. The sentencing Judge considered that a starting point of 13 years' imprisonment for the importation of the heroin was appropriate and, after allowing for a discount of 35 per cent for the early plea of guilty and for cooperation, reduced that sentence to one of 8 years and 6 months' imprisonment with a non-parole period of 5 years and 6 months' imprisonment. A concurrent sentence of 1 year's imprisonment was imposed in respect of the passport offence. The appellant had previous convictions in respect of drug-related offences.

13 The Court of Criminal Appeal declined to interfere with the head sentence imposed but, having regard to the fact that the applicant's wife and children lived in Thailand, and that his business was located in Bangkok, considered that service of his sentence in Western Australia would be a particular hardship, especially given his financial situation and risks to which he would be exposed by virtue of his cooperation with the authorities, and reduced the non-parole period to one of 4 years and 3 months' imprisonment. The appellant's cooperation had taken the form of three attempts by him to make contact with the person who was to have been the recipient of some of the heroin and also the making of a number of telephone calls to Thailand in an attempt to contact the supplier of the heroin.

14 In this case the applicant, who appeared in person, contends that his situation is precisely similar to that of Thom. He says that he, too, will find it difficult to be imprisoned in Australia when his father, and his fiancée, are in Romania. He said that his father is still ill and has undergone two operations on his liver. He said also that he had provided as much cooperation as he could to the authorities. In this last respect he said that the sentencing Judge was misinformed when she was told that he had refused to testify against Australian members of the drug syndicate. He said that he had, in fact, offered to testify against those persons, but had heard nothing further. He had refused (and still refuses) to give evidence against the Romanian supplier of the heroin because of fears for the safety of his father.

15 Putting to one side, for the moment, the applicant's contention that the sentencing Judge was misinformed about his level of cooperation, I am unable to accept that the trial Judge made any error in the exercise of her discretion. The head sentence of 7-1/2 years' imprisonment imposed by the sentencing Judge was, in my opinion, generous, even given the early plea of guilty (in the face of overwhelming evidence) and the level of co-operation offered by the applicant. The quantity of heroin imported by him was substantial and the applicant had gone to considerable difficulties in order to import it. I have mentioned that he had difficulties in obtaining a visa to Australia. He first travelled to Sweden, from where he applied for a visa, but this was denied. He then sent his passport to Germany and made a further application. Once again, this was denied. He was then advised that he might find it easier to gain entry to New Zealand and then apply for a visa into Australia. He gained entry into New Zealand, but, once again, was refused entry into Australia. He returned to Romania and, from there, went to Israel. Because he had citizenship of both Romania and Israel, he applied for a new Israeli passport. He believed that by doing so he could conceal the fact that he had previously been refused entry to Australia. He was right in that belief. Using that passport he was able to obtain a visa to Australia. He then returned to Romania and took possession of the drugs for importation. I have already mentioned the sophisticated manner in which the drugs were concealed.

16 The length of the non-parole period fixed by the sentencing Judge has to be looked at in the light of the whole of the circumstances, including the relatively generous head sentence set by the sentencing Judge. Also, while it is true that the applicant's father does appear to be in ill health, there is nothing to suggest that he cannot adequately be cared for in the applicant's absence. There is nothing before us to say whether or not the applicant's relationship with his fiancée subsists. There is consequently nothing in these factors, taken together with the others to which I have referred and the undoubted hardship which will be suffered by the applicant in serving his sentence away from his home country, which could be said to vitiate the exercise of the sentencing Judge's discretion. Sight should not be lost of the fact that the discretion which the law commits to sentencing Judges is of vital importance in the administration of our criminal justice system and that a Court of Criminal Appeal may not substitute its own opinion for that of a sentencing Judge merely because it would have exercised its discretion in a different manner: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, at 671-672; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, at 329.

17 As to the applicant's reliance upon the case of Thom, that case is, of course, one of many in this area of the law. To take but one other example, in "X" v The Queen above, the applicant, a Swiss national and a resident of Thailand, pleaded guilty to an offence of importing into Australia some 224.2 grams of pure heroin. At the request of a person in Thailand he had travelled from Thailand to Switzerland to obtain a new passport. He had then returned to Bangkok where he obtained the heroin and took it to Perth. He had arranged to meet the supplier in Perth and to hand the heroin over to him in return for a fee of $10,000 plus the payment of his expenses. On being arrested he cooperated fully with the police, participating in a meeting with the supplier which was secretly tape-recorded. The sentencing Judge fixed a starting point of 12 years' imprisonment and reduced that to a period of 7 years and 4 months to allow for the early plea of guilty and the applicant's cooperation with the police. She fixed a minimum term of 5 years' imprisonment. On a subsequent appeal the Court of Criminal Appeal declined to interfere with the head sentence. More importantly, for present purposes, the Court was prepared to alter the non-parole period only by a period of 3 months, to a period of 4 years and 9 months. This was done solely to conform to the statutory requirement that the minimum term should not exceed two-thirds of the head sentence. It is consequently apparent that each of those cases, as with all such cases, turned upon its own facts and circumstances. Neither is determinative of this case.

18 That leaves the issue of what is now said by the applicant to be the misinformation which was provided to the sentencing Judge as to his level of cooperation with the police. It is enough for me to say, in that respect, that even assuming that the applicant's level of cooperation was as he now describes it to be (the respondent disputes this, contending that his cooperation was very limited indeed), and assuming also that the sentencing Judge's discretion miscarried as a consequence of the misinformation provided to her, I would not, in all of the circumstances of the case, be prepared to impose any different head sentence or non-parole period. I am unable to accept that the requirements of justice would be satisfied by any lesser sentence or shorter non-parole period. There would consequently be no utility in a grant of leave to appeal (see s 689(3) of the Criminal Code) and I would refuse leave to appeal.

"P" v The Queen [2003] WASCA 180

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"P" v The Queen [2003] WASCA 180 (13 August 2003)

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