Court of Appeal (WA)|2003-09-18|Before: Malcolm CJ

Parry v The Queen [2003] WASCA 222 (18 September 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : PARRY -v- THE QUEEN [2003] WASCA 222

Criminal law - Sentencing - Drug importation - Heroin - 224.4 grams pure - Trafficable quantity - Sentence of 10 years with non-parole period of 5 years and 6 months affirmed - Parity - Weight to be given to personal circumstances - Health considerations - Hepatitis C - Fresh evidence as to effect of incarceration - Admissibility - Principles

Customs Act 1901 (Cth), s 233B(1)(d)

Application for leave to appeal against sentence granted

Respondent : Commonwealth Director of Public Prosecutions

Linou v Haynes (1988) 47 SASR 172

Lowndes v The Queen [1999] HCA 29; 195 CLR 665

R v Baldwin [2001] NSWCCA 320

R v Dowe, unreported; NSWCCA; BC9505319; 1 September 1995

R v Geoghegan [2000] NSWCCA 93

R v Kogelbauer (1992) 65 A Crim R 357

R v Maarbani [2001] NSWCCA 509

R v MacGowan (1986) 42 SASR 580

R v Peuna, unreported; NSWCCA; BC9203094; 23 July 1992

R v Santamaria [2001] SASC 391

Sinanovic v The Queen [1998] HCA 40; (1998) 154 ALR 702

1 MALCOLM CJ: On 2 May 2003, the Court heard an application by the applicant for leave to appeal against a sentence of 10 years with a non-parole period of 5 years and 6 months imposed in the District Court on 28 March 2002 in respect of an offence against s 233B(1)(d) of the Customs Act 1901 (Cth). The offence was that between 1 June 1999 and 19 December 1999 at Perth and elsewhere, the applicant was knowingly concerned in the importation into Australia of prohibited imports, namely, a trafficable quantity of heroin. The hearing was then adjourned until 26 May 2003 for the purpose of obtaining a medical report concerning the applicant's medical condition, the treatment which was available within the prison in relation to that condition, the prognosis for the applicant if the treatment was not made available to him, the prospects of success in remedying the condition if the treatment was made available and over what period of time it was recommended the treatment should take place with some estimate of the likely costs.

2 In the result, it was not possible to resume the hearing on 26 May 2003 and the matter was further adjourned to 3 June 2003. On the evidence heard on 3 June 2003, as a result of the applicant obtaining the benefit of a criminal justice visa, there would no longer be any obstacle to the applicant obtaining the treatment which was considered necessary within the prison system. Consequently, there was a reasonable expectation that whatever treatment was necessary for his condition would be made available to the applicant.

3 The decision was then reserved. Because of my absence overseas from 28 June to 28 July 2003, the delivery of judgment in this case was delayed. In the meantime, by a letter dated 23 July 2003, the applicant requested that the hearing of his application be reopened on the ground that certain information which had been presented to the Court by the Crown was "inaccurate and misleading". By a letter dated 28 July 2003 to the Deputy Director of Commonwealth Public Prosecutions, the applicant maintained that he was still unable to receive treatment for his hepatitis C.

4 By a letter from my Associate dated 31 July 2003, the applicant was informed that if he sought to further reopen the hearing of his appeal and intended to present new evidence, he should file an application formally seeking leave to reopen supported by an affidavit setting out the facts and circumstances upon which he intended to rely upon. By a further letter dated 25 August 2003, it was pointed out that the proper procedure was to file a Form 1 Application which could be found in Sch 1 of the Criminal Procedure Rules 2000. Further, as set out in Sch 7 of the Criminal Procedure Rules, the application should be filed with a supporting affidavit detailing the new evidence he wished to rely upon. It was also pointed out that the applicant should take the necessary steps to file an application within 10 days of the date of the letter. The necessary application dated 2 September 2003 supported by an affidavit sworn on the same date was subsequently filed.

5 The application was listed for hearing on 12 September 2003. The applicant complied with the requirements of the Court, after some delay, by filing an affidavit sworn on 2 September 2003 together with an application to reopen the hearing.

6 The applicant suffers from hepatitis C. He contends that he was sentenced on the basis that he would receive treatment for his condition while in prison in Western Australia. At the hearing of his application for leave to appeal, he contended that he had since been informed that the necessary treatment was not available to him while serving his sentence in prison, because of his status as an illegal immigrant. By a letter dated 28 July 2003 to the Deputy Director of the Commonwealth Public Prosecutions in Western Australia, the applicant maintains that he was still unable to obtain treatment for his hepatitis C, although a criminal justice visa had been obtained to enable him to remain in Australia for the purpose of serving his sentence.

7 It appears that the applicant is not in perfect health. This was recognised by the sentencing Judge. He suffers from a degree of lameness and rheumatism in the right leg and has a number of other problems. All of his problems which are susceptible of treatment, can be treated within the prison system with the exception, apparently, of hepatitis C. When he was arguing his application, the applicant placed information before the Court to the effect that there was only one anti-viral drug known to be effective in the treatment of hepatitis C, namely, Ribavirin with Interferon Alfa-2b. He said that this treatment was being denied to him. He maintained that had it been known that he would be denied the treatment he needed, his sentence, or at least the non-parole part of it would have been reduced.

8 This Court has no power to direct the prison authorities concerning the manner in which they discharge their responsibilities in relation to the provision of appropriate medical treatment to a prisoner. If, however, a prisoner may suffer or be exposed to gravely adverse effects on his health by reason of imprisonment or the conditions under which he is imprisoned, that may have an impact upon the length of the sentence imposed, but it is not open to the Court to intervene on the basis of

subsequent events. Having regard to decisions such as R v Eliasen (1991) 53 A Crim R 391 at 394; R v Anderson (1997) 92 A Crim R 348; and Li v The Queen [2000] WASCA 340, the Court has also permitted the applicant to reopen on an earlier occasion.

9 In my opinion, it has not been demonstrated that there is any new matter which this Court ought to take into account in relation to the sentence imposed upon the applicant. I agree with Anderson J that the applicant's condition of hepatitis C does not deserve any special weight as an ameliorating factor. It has not been established that his health will be unduly threatened if his incarceration continues in accordance with the sentence which he has received. I also agree with Anderson J that it has not been shown that imprisonment will have any significant effect on his disease or that people with his condition suffer greater hardship through imprisonment than other inmates. Finally, I agree that no case has been made out for the intervention of this Court.

10 While I would grant the application for leave to appeal, I would dismiss the appeal.

11 ANDERSON J: This is an application for leave to appeal against a sentence passed in the District Court on 28 March 2002 in respect to an offence against s 233B(1)(d) of the Customs Act 1901 (Cth): that between 1 June 1999 and 19 December 1999 at Perth and elsewhere the applicant was knowingly concerned in the importation into Australia of prohibited imports namely a trafficable quantity of heroin.

12 The applicant was convicted after a trial before Macknay DCJ and a jury. The quantity of heroin which was seized weighed 314.4 grams. It was 71 per cent pure, making a net pure total of 224.4 grams or approximately 112 times the trafficable quantity of 2 grams. The street value was said to have been between $375,000 and $400,000. The maximum penalty to which the applicant was liable was 25 years' imprisonment or a fine of $110,000 or both. The applicant was sentenced to 10 years with a non-parole period of 5 years and 6 months back dated to the date of his arrest on 19 December 1999.

13 The Crown case was that the heroin was actually imported from Thailand by a Swiss national named Hans Urben, who became the main

Crown witness. It was the Crown case that Urben had been recruited in Thailand by a person named Gretta and introduced to the applicant as someone who would be prepared to act as a courier under the applicant's supervision. Urben had been settled in Thailand for several years, as had the applicant, but they were not known to each other. After Gretta made the introduction there were meetings and discussions between the applicant and Urben and Urben agreed to take a consignment of heroin to Australia. Urben said he only ever knew the applicant by the name of Steve Jackson. The Crown case was that the applicant arranged and paid for Urben to fly back to Switzerland to procure a new passport. According to Urben this was part of the pre-planning. His current passport showed travel to and from Thailand. With a new passport Urben would be able to present himself to Australian customs officials as a tourist travelling from Switzerland.

14 It was Urben's evidence that on Urben's return from Switzerland the applicant arranged an Australian entry visa and purchased an airfare to Australia for him. The heroin which was to be carried into Australia had been made up into 125 small rubber packages and Gretta and the applicant instructed Urben to swallow as many of the packages as he could. This Urben did with some difficulty. He was not able to swallow all of them and hid some in the tubing frame of his backpack. It was his evidence that the applicant provided him with medication to settle his stomach and retard bowel action and he received instructions from the applicant as to dosages. According to Urben the applicant then gave him instruction as to what to do when he arrived in Australia, including where to stay, and gave him money for expenses. Urben gave evidence that the arrangement was that the applicant would follow Urben to Australia after a few days and take delivery of the heroin from Urben and pay Urben $10,000 after the applicant had sold enough heroin in Australia to raise that amount of money.

15 Urben arrived at Perth International Airport on 11 December 1999, passed through customs and booked into the Ocean View Lodge hotel at Fremantle as directed by the applicant. A day or two later he fell extremely ill due to some of the packages which were still in his body breaking open. Hotel staff arranged for him to be taken by ambulance to Fremantle Hospital where hospital staff became suspicious and notified the police. Emergency stomach surgery was performed and so much of the heroin as had not been rendered irrecoverable, was extracted from his body. Urben remained very ill in hospital for some time, during which he was kept under observation by police officers. By 18 December he had recovered sufficiently to be questioned and he readily co-operated by admitting his involvement and implicating the applicant, naming him as Steve Jackson. He informed the police of the applicant's imminent arrival.

16 Acting on Urben's information police commenced surveillance at the airport and on 19 December observed the applicant's arrival under his true name of John Parry. They followed him to the Ocean View Lodge where the applicant booked in as John Parry. Police had forewarned the hotel staff that a police operation was underway and had obtained their co-operation. After booking in, the applicant made inquiries as to the whereabouts of Urben. Police arranged for Urben to telephone the Ocean View Lodge from his hospital bed, which he did during the afternoon of 19 December 1999. The call was recorded by a police surveillance device. According to the transcript of the call, Urben asked whether there were any messages for him and whether anyone had called at the hotel to visit him. The staff member told him that a Steve Jackson had telephoned for him and that there was also a John Parry staying at the hotel "who's looking to see you". The staff member, in collusion with the police, asked Urben if he would like to speak to John Parry. It is not without significance that Urben replied that he did not know that name. The staff member then asked him if he would like to speak to Steve Jackson and Urben said that he would. There was evidence that the staff member, still acting in collusion with the police, approached the applicant (John Parry) and told him Urben was on the phone for him. The applicant took the phone and there was a short conversation between them in which Urben referred to the applicant as "Steve" until the applicant told him not to call him Steve but to call him John. By pre-arrangement with the police Urben told the applicant that he had been run over by a car in a hit and run incident and was in hospital under treatment for injuries sustained in that way.

17 The transcript of the intercept indicates that this was received with alarm by the applicant. There was evidence that he went straight away to Fremantle Hospital. During the hospital visit, which was also recorded, the applicant asked Urben questions and made remarks from which it was open to conclude that, consistently with what Urben had told police and would later say in court, the applicant was implicated in the venture as an organiser and as the collector at this end. For example, he asked of Urben:

18 By pre-arrangement with the police, Urben told the applicant that the "gear" was hidden in the ceiling of his locked hotel room. The evidence was that the applicant returned immediately to the hotel where he was arrested while seeking to gain access to Urben's room.

19 Urben pleaded guilty to importing and was sentenced by O'Brien DCJ in the District Court to a maximum term of 7 years and 4 months' imprisonment with a minimum of 5 years. The Judge indicated that the sentencing range was 10 to 15 years and that the starting point should be 12 years. Her Honour reduced that by 40 per cent to reflect Urben's fast track (early) plea of guilty and his considerable co-operation with the police. Urben appealed against that sentence. The appeal was successful but only to the extent that the minimum term of 5 years was reduced to 4 years and 9 months, to conform to the statutory requirement that the minimum term must be not more than two-thirds of the head sentence. In all other respects the sentence was affirmed: X v The Queen [2000] WASCA 355.

The applicant's application for leave to appeal

20 As has been said, the applicant was sentenced to 10 years with a minimum of 5 years and 6 months. The prosecutor had submitted that parity principles were not applicable because the applicant's role was different from and significantly greater than Urben's and they had been convicted of different offences. However Macknay DCJ held that notwithstanding the differences between the two cases it was appropriate that in sentencing the applicant he should have regard for the sentence which Urben had received, essentially because they were co-offenders in the same criminal enterprise. In my respectful opinion that was the correct approach. Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Dawson and Guadron JJ at 301 - 302. This did not of course mean that the head sentences and non-parole periods had to be the same. As was pointed out in Postiglione in the passage referred to, and as Macknay DCJ correctly recognised, parity is not necessarily a question of equality but a question of proportionality, having regard to the different circumstances of the co-offenders and their different degrees of criminality. As to the latter consideration Macknay DCJ said:

"I'm satisfied that your involvement ... and hence culpability, is at least the equal if not greater than that of Urben and that the conversation that you had with him unequivocally reveals that, when set against the surrounding circumstances and your actions both prior and subsequent."

21 The applicant appeared in person and argued the application for leave to appeal against his sentence himself. The grounds of appeal were originally 11 in number but at the start of the hearing the applicant was granted leave to amend the grounds of appeal to the following:

1. Erroneously attributed a greater level of culpability to the applicant than proven by the inconclusive recorded conversation and the applicant's dealings with Urben on 19 December 1999. Further his Honour failed to properly examine the gist of that conversation and the available facts to ascertain the applicant's true level of culpability and accordingly, imposed a sentence, which leaves the applicant with a justifiable and legitimate sense of grievance.

2. Failed to give sufficient weight to the applicant's personal circumstances, that is:

(a) His poor health physical and psychological.

(b) The level of isolation likely to be experienced by the applicant during a lengthy term of imprisonment in that his family are not in Australia; and the level of hardship likely to be experienced by the applicant's family overseas. That is both in the UK and Thailand.

(c) His evidence of rehabilitation.

(d) His sick mother.

(e) His addiction and the part that addiction played in his offending behaviour.

(f) That he was a first offender.

(g) His positive antecedents.

3. The Honourable Judge erred - there was no requirement for a non-parole period of 55 per cent of the head sentence.

4. Erred in that he did not apply the parity principle to the non-parole period.

5. New evidence has now come into existence giving rise to a need for appellate intervention in relation to the sentence imposed upon the applicant."

22 The applicant handed up a document entitled "Outline of submissions for appeal against sentence". This is an extremely detailed document of 35 pages. In addition he handed up a number of lengthy affidavits containing further submissions and argument and relied also on a document which had been prepared by his counsel after trial entitled "Sentencing Submission" which is of some 16 pages. His "Outline of submissions for appeal against sentence" is cross-reference to the trial transcript and to the "Sentencing Submission" which in turn is cross-referenced to the trial transcript. He also presented a list of no less than 52 authorities.

23 The main argument in support of the first ground of appeal is that the Judge could not reasonably conclude from the recorded hospital conversation and the applicant's conduct on the day of his arrest that the applicant's level of culpability was the same as or greater than that of Urben. In his written submissions the applicant analysed the transcript of the hospital conversation part by part, almost sentence by sentence, with extensive cross referencing to the trial transcript. He contended that, properly understood, the exchanges between him and Urben and his own behaviour that day really prove that he was innocent of involvement in the importation.

24 Of course this submission flies in the face of the applicant's conviction and for that reason alone it would have to be rejected. It is inconsistent with the verdict of the jury. In any event the submission must be rejected on the merits. As best I understand the applicant's case on appeal, it is that the evidence referred to by Macknay DCJ shows no more than that he was trying to look after Urben as a "trusted associate", as he put it, knowing that Urben had brought heroin into the country and believing that Urben was at risk and unable to look out for himself. He submitted that a proper appreciation of the hospital conversation reveals nothing more incriminating than that he believed Urben might still have some of the heroin left, which the applicant might be able to use to satisfy his own craving. He said that apart from this the surveillance evidence shows that he was simply concerned to protect Urben from possible detection by the police and from being robbed of the heroin by others who might know of Urben's activities. I am unable to accept these submissions. There are a number of recorded exchanges between the two men which do, as Macknay DCJ said, unequivocally incriminate the applicant, and which show that he and Urben were anything but "trusted associates". It is sufficient to point to a few examples.

25 During the first call the applicant became obviously angry with Urben for getting into the predicament that he was in. His language was not that of a sympathetic friend. He became angry, too, with Urben for calling him Steve, saying "Listen, stop calling me Steve, it's fucking John". This is not the language of a concerned friend offering assistance. During this call the applicant also said "You know, and I'm doing this for my sister, Ok", which is a clear acknowledgement that, whatever he was doing, he was not doing it for Urben. There was no connection between Urben and the applicant's sister, who lived in England with her family.

26 The tape of the hospital visit records that the applicant pressed Urben to hand over the keys to Urben's hotel room and also his passport, saying with respect to the passport "It's better I take it out for safety, yeah". Urben told him he did not know where the keys were and that the passport was "in the hospital somewhere." The transcript shows that the applicant then tried (unsuccessfully) to persuade a nurse to find Urben's passport and give it to the applicant. His efforts to get the keys to Urben's room and to take possession of Urben's passport are explicable only on the basis that not only was the applicant trying to get hold of the heroin, but also that he did not trust Urben.

27 The applicant told Urben more than once that an appointment had been arranged to show the "gear" to third parties. He is recorded as telling Urben that people were coming to inspect it "in about 40 minutes", and that matters were urgent because "they're coming tonight to look at the, the big deal, yeah." This shows that the applicant had his own agenda with respect to the heroin.

28 As to the question he asked of Urben almost as soon as he arrived at the hospital: "OK Hans, where is the gear" the applicant said that this was prompted by innocent curiosity, and by the hope that Urben may still have a little left for him. This is implausible, to say the least. The question was not of that character. It was a terse demand.

29 The applicant is recorded as telling Urben that the reason he had told Urben not to call him "Steve" was because he had used a false passport to enter Australia in the name of John Parry, thus untruthfully implying that John Parry was a false name. It is impossible to reconcile this with the applicant's case that he and Urben were trusted associates. If they were, Urben would have known that the applicant's real name is John Parry. At all events the applicant would have had no reason to deceive Urben in this regard.

30 Suffice to say the recorded conversations and the conduct of the applicant clearly reveal that the applicant was very anxious to take the whole consignment out of Urben's control, that he had made arrangements independently of Urben to show it to other people and that, until this had been accomplished, he wanted to hold Urben's passport.

31 The applicant sought to account for the discrepancy between what he said and did on 19 December and what he says the situation really was, on the basis that he was sleep deprived, jet lagged, confused and paranoid; and that he was having severe withdrawal symptoms and was in desperate need of a fix. He argued that this is the explanation for what might otherwise seem to be guilty conduct. Even if it is still open to the applicant to make these submissions in the face of his conviction, which it is not, I do not see that the evidence taken as a whole reflects any such thing.

32 In judging the applicant's level of culpability Macknay DCJ was not confined to the evidence of the surveillance tapes, telling though that evidence was. His Honour was entitled to, and he plainly did, have regard to the whole of the evidence and in particular Urben's evidence as to the dealings between the two. That evidence was to the effect that whilst Urben was the courier and thus the importer, it was the applicant who organised the importation and who was to be the collector and distributor.

33 In his written submissions the applicant argued, with many references to the trial transcript, that Urben was an untruthful witness and that the applicant should not be sentenced on the basis of Urben's account of the applicant's role in the importation. It is too late to make that submission now. The Crown case was based on Urben's evidence and it follows from the jury's verdict that they accepted Urben as a truthful witness. The Judge was obliged to act on that.

34 In my opinion, Macknay DCJ was entitled to make the finding which he did, namely that the applicant's level of culpability was "at least the equal if not greater than that of Urben." With respect, I think this finding is, if anything, favourable to the applicant.

36 The pre-sentence report reveals that the applicant was born in England to English parents and is of the age of 38 years. He had a troubled relationship with his father who died some years ago, but a fairly close relationship with his mother until leaving home at the age of about 18 years. He is intelligent, well educated and has teaching qualifications but appears to have led a rather restless life, moving from country to country. He has worked as an English foreign language teacher in Thailand, Japan, the Middle East and Sri Lanka for about the last 15 years. As has been mentioned he has a sister living in England. Whilst it would appear they do not see much of each other there seems to be a bond between them. Since the applicant was sentenced his mother has died. She had a long illness and this, and her demise, affected the applicant deeply. He is not married but at the time of his arrest he had been living in a de facto relationship for two or three years. He has a daughter by that union who would now be of the age of about three years, perhaps a little younger. It would appear that this child was born after the applicant was placed in custody, so he has not met her. The applicant states in his written submissions that the child is a diabetic for which she requires medication. He maintains regular contact with the child's mother and intends to resume the relationship on his release and return to Thailand. Apparently the mother is able to work and support the child and provide for her medical needs, although the applicant is concerned about the mother's form of employment.

37 The applicant has not managed to accumulate any worthwhile assets and was reported as having "nil savings" at the time of his interview for the pre-sentence report. He explained to the author of that report that this was due to his drug habit which is now of long standing. His drugs of preference are amphetamines and heroin. He has been addicted to heroin for some seven years but claims to have overcome this addiction since his incarceration. Notwithstanding his history of heavy substance abuse it is reported that he has no criminal record. The applicant appears not to be in perfect health, as Macknay DCJ recognised. He suffers from a degree of lameness and rheumatism in the right leg as the legacy of a road accident, he has high blood pressure, an anxiety stress disorder, liver damage consistent with abuse of alcohol; and he has hepatitis C. To the extent that they can be treated, all these conditions with the exception of his hepatitis C are under treatment in prison and there is no evidence that he needs a level of treatment that is not available in prison. The matter of the applicant's hepatitis C is the subject of the fifth ground of appeal and will be dealt with later.

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, as to which more must be said later.

42 As to rehabilitation Macknay DCJ referred to written character references, which we have also seen, and a letter from Hakea Prison testifying to the fact that the applicant was behaving in an exemplary manner at the prison. For this he was entitled to credit and is something that may lead the Court to conclude that the minimum term in particular need not be as long as it might otherwise be. Once again however the mitigatory effect of good character and good prison behaviour while on remand awaiting trial and sentence is limited and I am by no means persuaded that it has not been given proper weight. It has to be measured against the objective circumstances of the offending behaviour and, as with all mitigatory matters, the allowance that may be made cannot be allowed to result in an unduly lenient sentence having regard to the criminality involved in that behaviour. R v W [2002] NSWCCA 192; (2002) 129 A Crim R 400 per Simpson J at [27] and [28]. There was a high level of criminality in this carefully planned and apparently well funded and potentially highly lucrative venture, which so nearly succeeded. A substantial quantity of pure heroin was brought in. Its capacity for harm was great. The applicant played a leading role in the planning and organising, which took place over an extended period.

43 As to remorse, his Honour accepted that the applicant was remorseful to a degree although I think the evidence of true remorse is really quite insubstantial. There is of course a distinction between regretting being caught and regretting the offending behaviour; and the conduct of the applicant's defence at trial and the submissions that he has made to this Court would suggest that most of the applicant's regret falls into the first category. As has been observed, his appeal against his sentence was focussed on what really is a claim of innocence. That is hardly indicative of true remorse, the first element of which is an acceptance of guilt. This apparent unwillingness to face up to the fact that he has committed a serious offence was reflected in the conduct of his defence at trial. Urben was cross-examined by the applicant's counsel on the basis that Urben had told the applicant that Urben was involved in a plot with Thai military figures to bring heroin into Australia; and that the applicant simply came to Australia in the hope of procuring some of this heroin for his own use if Urben should succeed in importing it. This was flatly denied by Urben. The applicant then elected not to give evidence in support of this story and finally abandoned it. His case ultimately was that he knew nothing about any importation of heroin by Urben. He changed his tune yet again when interviewed by the author of the pre-sentence report. As the learned sentencing Judge remarked:

"Your trial took an unusual course in that during a lengthy cross-examination of Urben [your] counsel put to him on your behalf that Urben had informed you in Thailand that he intended to come to this country for the purpose of selling drugs for the Thai military but that you were not involved in their importation and further that Urben had been aware that you had visited him in hospital for the purpose of obtaining some heroin for your own use and that Urben had been aware that you were dying for some heroin because you needed a fix. You then elected not to give evidence and counsel then reversed your position and put to the jury that the version given by you to police officers in the course of a video record of interview to the effect that you had no knowledge of any involvement by Urben with heroin at all was correct ... you have now told the author of the pre-sentence report that you were aware of the importation and had arranged to access the heroin on its arrival for your own use. You had of course earlier in the course of the trial on the voir dire given evidence that you were aware of the heroin and had tried to obtain some from Urben."

44 I would observe that the author of the pre-sentence report also expressed the opinion that the applicant's responses at interview "appear[ed] to indicate regret for being caught rather than genuine feelings of remorse..."

45 It may be accepted that the applicant became involved in this offence in order to finance his own craving for heroin; and that the indications are that he has overcome his addiction. This too is a relevant consideration in arriving at a proper sentence. It would indicate that not quite so much emphasis need be placed on personal deterrence. However once again I think it has been fully allowed for in the overall sentence bearing in mind the very important sentencing objectives of punishment and general deterrence.

46 The other matters of a subjective nature that are relied in mitigation do not carry the case for leniency any further. They relate to the applicant's family in England - now only, I think, his sister. He has been away from England for many years and there is no question of hardship arising out of a continuing separation.

Grounds 3 and 4 - non-parole period and parity

48 Grounds 3 and 4 can be dealt with together. The propositions which they intend to reflect are firstly that a non-parole period of 55 per cent of the head sentence is excessive when compared with the non-parole period set in similar cases and secondly the principles of parity require that the applicant's non-parole period should be no greater than Urben's non-parole period of 4 years and 6 months.

49 As to the first proposition the applicant placed a good deal of reliance on the case of Ngyuen v The Queen [2001] WASCA 119, in which the mother and sole carer of three children aged 6, 12 and 14 years became involved in the importation of a large amount of heroin of high purity, for which she received a sentence of 8 years with a non-parole period of 3 years and 7 months or 40 per cent of the head sentence. This was indeed, with respect, a lenient sentence, but it was a very different case from the instant case. Ms Ngyuen's only proven involvement was to sign a delivery receipt with a false signature when requested to do so by a police officer posing as a postman. The parcel of heroin, which was addressed to her drug dealer partner, had been intercepted by police and delivered to the couple's home. They both came to the door but Ms Ngyuen's partner did not accept the invitation to sign for it. Apparently Ms Ngyuen stepped forward and did so, but not with her usual signature. The Crown case was that this conduct implicated her in the importation offence and the verdict of guilty meant that the jury accepted that this was so. Ms Ngyuen's partner was also convicted and received a sentence of 12 years. There was evidence that he was the prime mover and that Ms Ngyuen did not gain directly from the importation although she stood to gain indirectly, through the enrichment of her partner. However their relationship terminated very soon afterwards. Due to the incarceration of both adults the three children were left without a parental carer. Although arrangements were made for a business partner of Ms Ngyuen to provide the children with accommodation he was not capable of controlling them or properly attending to their needs. There was no other support for them and there was evidence that the children were experiencing extreme emotional hardship and were becoming anti-social, and generally hostile. In the Court of Criminal Appeal Wallwork J described it as "an exceptional case". By a majority (Malcolm CJ and Wallwork J, Pidgeon J dissenting) the Court decided to release Ms Ngyuen, she having served only 7 months of her sentence. The case must be regarded as truly exceptional. The differences between it and this case need no adumbration.

50 There are other cases to which the applicant has referred which may suggest that the non-parole part of his sentence is on the high side. In R v Thom [2001] WASCA 322; (2001) 126 A Crim R 196 the offender had imported almost exactly the same amount of pure heroin (225 grams) as was imported in this case. A starting point of 13 years was affirmed by the Court of Criminal appeal as appropriate. The offender had entered a plea of guilty at the earliest opportunity and had later assisted the authorities. This earned him a total discount of 35 per cent. A non-parole period of 5 years and 6 months, or just under 65 per cent of the discounted head sentence was set. On appeal the head sentence was confirmed but the non-parole period was reduced to 50 per cent. In fixing that period it is evident that the Court took into account the fact that the offender was truly remorseful as evidenced by his plea and co-operation, that he had a business, a wife and three young children in Thailand and that his co-operation with the authorities placed him at some risk of harm in prison.

51 Against these cases it must be said that non-parole periods of 55 per cent are quite commonly fixed in this State and non-parole periods of above 60 per cent are not unusual.

52 The best guide however is Urben's case. As has been noted the Court of Criminal Appeal affirmed the approach of the learned judge in that case. In sentencing Urben, O'Brien DCJ said that the authorities indicated a starting point of between 10 and 15 years and the Court of Criminal Appeal did not disagree with that. The starting point which her Honour adopted for Urben was 12 years and this too was upheld. Macknay DCJ took the same starting point, and, as I have respectfully indicated, I think that this was rather lenient. It is the whole sentence which must be looked at, not just the non-parole period. Once again it is Urben's case which must provide the sentencing benchmark and Urben's non-parole period after appeal is a little less than 65 per cent of his head sentence. I think it is therefore impossible to contend that the applicant's sentence is too severe in any respect.

53 Concerning the question of parity the applicant's case is that his non-parole period should be the same as Urben's in the sense that it should be the same number of years. This is a misconception. As has already been explained parity is a question of proportionality rather than equality. Expressed as a proportion of his head sentence the applicant's non-parole period is significantly less than that fixed in Urben's case.

Ground 5 - The applicant's condition of hepatitis C

54 Under this ground the applicant requested leave to place material before the court which, he said, showed that the full ramifications of the fact that he has hepatitis C were not appreciated at the time when he was sentenced. He submitted that later events have thrown a new light on the significance of his state of health and the availability of treatment in prison. He said that his disease needed to be treated in order to prevent it advancing to an incurable stage, and that there was only one anti-viral drug known to be effective, namely Ribavirin with Interferon Alfa-2b. He placed information before us which indicated that treatment with this drug was being denied to him. He had been told that this was because he was an "illegal immigrant". It was his submission that therefore he is burdened with a special hardship, especially as his fellow prisoners suffering from the same condition are receiving treatment. His submission was that, if it had been appreciated at the time of his sentence that his disease needed to be treated and that he would be denied treatment while in prison in Australia, his punishment or at least the non-parole part of it would have been reduced.

55 Whilst the court will not intervene in the manner in which the prison authorities discharge their responsibility to provide proper medical attention to prisoners (R v Bailey [1988] HCA 19; (1988) 34 A Crim R 154) it is well settled that where imprisonment will be a significantly greater burden on an offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health, punishment may be ameliorated. R v Smith (1987) 44 SASR 587. However there is another fundamental rule, which is not to be overlooked. That rule was stated by Winneke P in R v WEF [1998] 2 VR 385 at 388 - 389 in the following terms:

"In normal circumstances, if it is suggested that subsequent events have made ... a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative mercy and not a matter for an appellate court."

56 See to the same effect R v O'Shea (1982) 8 A Crim R 219. It is therefore not open to the Court of Criminal Appeal to intervene on the basis of events which have occurred since the imposition of the sentence but the Court does have the power to receive fresh evidence of matters that were in existence at the time of the imposition of the sentence but which were not known to the sentencing judge, or which explains facts which were before the sentencing judge so as to put them in a new light. R v Eliasen (1991) 53 A Crim R 391 at 394; R v Anderson (1997) 92 A Crim R 348; Li v The Queen [2000] WASCA 340.

57 With these principles and this distinction in mind we adjourned the hearing of the application in order to give the parties an opportunity to place further information before us as to exactly what was the state of the applicant's disease, what treatment he actually did require, whether that treatment was available to him in prison and what would be the consequences for his state of health if imprisonment prevented him from receiving it. The Court considered this course to be appropriate because there was information before Macknay DCJ that the applicant was infected with hepatitis C, and the matters raised before us by the applicant suggested that his Honour may not have been informed of the true significance of incarceration for a person suffering from that condition.

58 Further information was provided on 3 June 2003 through a written report of the consultant hepatologist Dr R Marley of the Department of Health at Sir Charles Gairdner Hospital and through the oral evidence of Dr R T Chapman and Dr P R Hames. Dr Chapman is the director of health services for the Department of Justice and Dr Hames is an officer in that department with experience in the treatment of hepatitis C. The evidence established the following.

59 The drug Ribavirin with Interferon is highly specialised, extremely expensive and is a drug which is classified under s 100 of the Pharmaceutical Benefits Act. This means that treatment with the drug is closely monitored and its availability is restricted. It is not available for the treatment of unlawful non-citizens. The applicant was in that category until 30 May 2003. On that date (which was after the first day of the hearing of this appeal) he was issued with a special criminal justice visa the effect of which is that his presence in Australia is not unlawful for as long as he is in prison. Therefore he is no longer ineligible for treatment with the drug on the ground that he is a non-citizen. Nevertheless the treatment is only available at all under the highly specialised drugs program provided for in Pharmaceutical Benefits Act. Whilst chronic hepatitis C, of the genotype from which the applicant suffers, qualifies for treatment under that program, only patients suffering from that condition who meet specified clinical criteria may receive the treatment. In other words, the patient must qualify for treatment on medical grounds extending beyond the fact that he or she has the disease. This involves, amongst other tests, a liver biopsy. This procedure involves extracting a sample of liver tissue. This is not without risk and is not lightly to be undertaken. Hepatitis C is a chronic disease, which progresses very slowly. Blood tests have established that the applicant's disease is in the early stages. Its advance can be monitored by regular blood tests. Although it is likely to continue to advance if untreated, it is not expected to deteriorate to any significant extent in the next five years or so. There is no evidence that incarceration will cause the disease to progress more rapidly or that the symptoms of the disease make prison significantly

harder to bear. Whether the applicant has reached the stage at which it would be prudent to do a liver biopsy in order to determine whether he qualifies on clinical grounds for treatment under the highly specialised drugs program is a matter for medical assessment. That is the position in every case of hepatitis C. The applicant's imprisonment does not prevent such an assessment being made, nor does it prevent the applicant from receiving any treatment that may be indicated.

60 At the applicant's request by way of an application to reopen the hearing the Court reconvened on 12 September 2003 when the applicant once again made further submissions and presented additional information relating to the above issues. However, I am not persuaded that this material advances his case in any way. Such difficulties as may confront the applicant in obtaining positive treatment for his condition are not related to his status as a prisoner. They would appear to be administrative in nature, arising from the general restrictions on access to the particular treatment programme. There is nothing to indicate that the applicant is in any different position from any other person seeking access to the programme.

61 I am not persuaded that the material which we now have before us throws a different light on the circumstances which existed at the time when sentence was passed. The applicant's condition of hepatitis C does not deserve special weight as an ameliorating factor because it has not been established that his health will be unduly threatened if his incarceration continues in accordance with the sentence which he received. It has not been shown that imprisonment will have any significant impact on the applicant's disease or that people with his condition suffer greater hardship through imprisonment than do ordinary gaol inmates. No case has been made out for the intervention of this Court.

62 I would grant the application for leave to appeal but dismiss the appeal.

63 MCKECHNIE J: For the reasons expressed by Malcolm CJ and Anderson J, I would dismiss this appeal.

Procedure Rules 2000

Parry v The Queen [2003] WASCA 222

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (112 paragraphs)

Parry v The Queen [2003] WASCA 222 (18 September 2003)

The applicant's application for leave to appeal

Grounds 3 and 4 - non-parole period and parity

Ground 5 - The applicant's condition of hepatitis C

Parties

Legislation Cited (1)

Cases Cited (13)