R v "B" [2004] WASCA 1

Court of Appeal (WA)|2004-01-19|Before: Wallwork AJ, McLure J, Templeman J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : R -v- "B" [2004] WASCA 1

Criminal law - Drug smuggling - Cooperation - Crimes Act 1914 (Cwlth) - Crown appeal - Whether proper administration of justice required that lenient sentence should be increased

Appellant : Commonwealth Director of Public Prosecutions

Chua v The Queen [2001] WASCA 353

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227

1 TEMPLEMAN J: I have had the advantage of reading in draft, the reasons to be published by Wallwork AJ. I agree with his Honour that this appeal should be dismissed. But because I have reached that conclusion by a different route, I wish to make the following observations.

2 I do not accept the appellant's principal contention that the learned sentencing Judge erred "in attributing co-operation with the authorities by the (respondent)" (as alleged in ground 3 of the Grounds of Appeal) when there was neither past co-operation, nor the promise of future co-operation of the kind envisaged by s 21E of the Crimes Act 1914 (Cwlth).

3 It is apparent that the Judge did not err: he was well aware that the respondent had not co-operated in the same way as his co-offender, Mr Mashady. This was made plain in the submissions made to his Honour, by prosecuting counsel. Counsel referred to the fact that McLure J, who sentenced Mr Mashady, had "indicated that absent his (Mr Mashady's) promised future co-operation, nine years with a non-parole period of four and a half years would have been appropriate" (AB 19).

4 The notional nine years therefore took account of the fact that Mr Mashady had not only pleaded guilty on the fast track, but also, that he had identified the respondent, who might not otherwise have been apprehended.

"The learned judge who sentenced Mr Mashady considered that he should be sentenced to, in ordinary terms, 9 years' imprisonment with a non parole period of 4 and a half years, but by virtue of the provisions of section 21E of the Crimes Act and his cooperation with the authorities this should be reduced to 7 years with a non parole period of 3 and a half years. The submission is made to me that you are not entitled to similar treatment because you had not cooperated as readily or as quickly.

However, it seems to me that there are other features of your case which are significantly different from the role of Mr Mashady. You did not actually carry the drugs. There is some room for doubt about the extent of your knowledge of just exactly what was involved, although nothing which would extenuate or diminish your criminal liability, but most of all there is your very young age and the fact that since April you have indeed cooperated closely with the authorities."

6 In my view, it is clear from the context that the Judge used the word "co-operated" to refer to the fact that the respondent had pleaded guilty and had thereby facilitated the administration of justice. With respect, it is unfortunate that his Honour expressed himself in those terms. That is because it is important to distinguish between general co-operation in the sense to which he referred, and the special kind of co-operation envisaged by s 16A2(h) and s 21E of the Crimes Act. Co-operation of that kind qualifies an offender for a more substantial discount in the sentence than a plea of guilty alone. A guilty plea is referred to in s 16A(2)(g).

7 It is therefore important, when sentencing an offender under the Crimes Act, to ensure that the terminology used in sentencing remarks follows that used in the Act. If that is not done, the value of the incentive available to an offender if he or she co-operates (in the s 16A(2)(h) and s 21E senses) may be undermined.

8 In the present case, the Judge imposed the same sentence on the respondent as had been imposed on Mr Mashady, because of the particular mitigating factors to which his Honour referred. These were

• the respondent had not actually carried the drugs

• there was "some room for doubt" about the extent of the respondent's knowledge of the enterprise

• the ordeals the respondent had suffered while in the Israeli army

9 The Judge took the view that these factors should mitigate a sentence of 9 years with a non-parole period of 41/2 years, to 7 years with a non-parole period of 31/2 years. Thus, the starting point for the respondent would have been the end-point for Mr Mashady, had he not promised to co-operate in the future. But this notional end-point reflected Mr Mashady's plea of guilty and his past co-operation in identifying the respondent. It may therefore be said that in the interests of parity (and before taking account of distinguishing factors) the respondent's starting

point should have been higher, resulting in an ultimate sentence greater that Mr Mashady's: not equal to it.

10 However, in a Crown appeal against sentence, there are other considerations. In R v Disun [2003] WASCA 47, Anderson J, with whom Murray J and I agreed, said that in these circumstances:

" ... this Court is bound to exercise restraint before interfering with the original sentence. Crown appeals should be a rarity. They raise considerations which are not present in an appeal by an offender seeking a reduction of sentence. As Isaacs J said in Whittaker v The Queen [1928] HCA 28; (1928) 41 CLR 230 at 248 a Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal'. As Brennan, Deane and Gallop JJ said in R v Tait (1979) 46 FLR 386 at 389 'the freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court.'

This Court has consistently said that it will increase the sentence imposed by the primary sentencing court only in exceptional cases - cases in which it is very clear that the proper administration of justice plainly requires that the sentence be increased."

11 In my view, the present case does not fall into that category. Although the sentence imposed on the respondent was undoubtedly lenient, it can be justified by the mitigating factors to which the Judge referred; and without offending against the parity principle. That is because there were so many relevant differences between the circumstances of the respondent and Mr Mashady as to reflect quite different degrees of culpability: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301.

13 MCLURE J: This is a Crown appeal against sentence. On 12 January 2003 the respondent was arrested and charged with one count of aiding, abetting or procuring another, namely Djamshid Paryzad Mashady ("Mashady") to import a commercial quantity of ecstasy into Australia contrary to s 233B of the Customs Act 1901 (Cth).

14 Mashady had made a fast track plea of guilty to importing a commercial quantity of ecstasy into Australia from Amsterdam via Paris and Singapore. The bulk weight of the ecstasy was around 6.9 kilograms and the pure weight was 2.45 kilograms. On 28 April 2003 I sentenced Mashady to a term of imprisonment of 7 years with a non-parole period of 3 and a half years.

15 The respondent's role was to monitor Mashady and report back to the organiser of the importation. The respondent pleaded guilty to the charge of aiding and abetting Mashady. Although the plea of guilty was not a fast track plea, nevertheless it was made at a fairly early stage. The respondent entered a plea of guilty in the Court of Petty Sessions on 10 April 2003, about two weeks after service of the committal brief. The respondent was sentenced by E M Heenan J on 28 July 2003. My sentencing remarks for Mashady were provided to the sentencing Judge who sentenced the respondent to a term of imprisonment of 7 years with a non-parole period of 3 and a half years.

Grounds of Appeal and Role of Appellate Court

16 There are three grounds of appeal. They are firstly, that the sentence was manifestly inadequate; secondly, that the sentencing of the respondent and Mashady infringed the parity principle; and thirdly, that the sentencing Judge erred in attributing to the respondent co-operation with the authorities.

17 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge. However, it is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasoning. Alternatively, error may be inferred if the result is unreasonable or unjust, commonly described in this jurisdiction as the result being manifestly excessive or manifestly inadequate: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

18 It is a general rule that as a Crown appeal against sentence puts a respondent in jeopardy of punishment for a second time (Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295), if the appeal succeeds, a substitute sentence towards the lower end of the range of available sentences should be imposed (Dinsdale v The Queen (supra) at 341; R v Peterson [1984] WAR 329 at 330-331). However, that general rule must, where appropriate, accommodate the rules relating to the sentencing of co-offenders (see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606).

19 It can also be an error of law to impose comparable sentences on co-offenders whose respective circumstances warranted disparate sentences: Lowe v The Queen (supra) at 618.

20 The respondent was 22 at the time he committed the offence. The sentencing Judge found as follows. The respondent was conscripted and saw active service in the Israeli Army. He was profoundly affected by that experience, seeing three close friends die as a result of combat activity. He was given an early discharge from military service following which he spent time in Amsterdam and became a user of drugs, including ecstasy. He incurred a significant drug debt to somebody in Amsterdam and in order to erase that debt he agreed to participate in the offence to which he pleaded guilty. The sentencing Judge then continued as follows (with paragraph numbers and italics added for ease of reference):

1. "[Mashady] admitted to his involvement at an early stage to the authorities at the Perth International terminal ... He then co-operated with the authorities and entered a plea of guilty as part of the fast-track plea system. You did not do this, initially denying involvement, and as a result the prosecution prepared a full brief. It has been submitted to me that you are therefore not entitled to the same degree of leniency or concession that Mr Mashady received because of his cooperation with the authorities.

2. The learned judge who sentenced Mr Mashady considered that he should be sentenced to, in ordinary terms, 9 years' imprisonment with a nonparole period of 4 and a half years, but by virtue of the provisions of section 21E of the Crimes Act and his cooperation with the authorities this should be reduced to 7 years with a nonparole period of 3 and a half years. The submission is made to me that you are not entitled to similar treatment because you had not cooperated as readily or as quickly.

3. However, it seems to me that there are other features of your case which are significantly different from the role of Mr Mashady. You did not actually carry the drugs. There is some room for doubt about the extent of your knowledge of just exactly what was involved, although nothing which would extenuate or diminish your criminal liability, but most of all there is your very young age and the fact that since April you have indeed cooperated closely with the authorities.

4. You have no known criminal record. The immigration authorities have reported to the Department of Justice and the officer who conducted the pre-sentence report that it is likely that if you were released on parole you would be deported. It has been submitted to me that your family are greatly distressed and ashamed at your involvement in the drug scene and your commission of this offence and you face their disapprobation if ever you return to Israel.

5. It seems to me that your very young age, your relative immaturity and the ordeals which you experienced in the army to some extent provide an explanation for your conduct and your vulnerability while in Holland and that while you may not have cooperated as quickly or as readily with the authorities as Mr Mashady, these are countervailing factors.

6. Accordingly, I consider that this is a case where there should be general parity in the imposition of sentences between you and the associated offender. Like the judge who sentenced Mr Mashady, I would in ordinary circumstances impose a sentence of imprisonment of 9 years upon you with a nonparole period of 4 and a half years, but because of your cooperation with the authorities and the other mitigating factors which I have outlined, I propose to treat you on the same basis as Mr Mashady and to impose a sentence of imprisonment of 7 years with a nonparole period of 3 and a half years and to direct that that should date from 12 January 2003."

21 Mashady was a 52 year old Dutch national. He was born in Iran and accepted in Holland as a political refugee in 1988. He had no prior convictions in Western Australia or elsewhere. It was not in dispute that Mashady's participation in the importation was motivated by the need for money for his son who had a serious medical condition requiring surgery.

22 Mashady was convicted of importing into Australia a commercial quantity of ecstasy. His role was that of courier. The respondent was convicted of aiding and abetting the commission of the offence by Mashady. The respondent's role was that of minder. The maximum penalty for the offence committed by the respondent is the same as that for the offence committed by Mashady.

23 At the time of sentencing, Mashady had co-operated with the law enforcement agencies in the investigations relating to the importation. In particular, at the time Mashady was being questioned by authorities at the Perth International Airport he provided them with information which resulted in the apprehension and charging of the respondent. Other aspects of his co-operation are referred to in my sentencing remarks and included providing information relating to the organisers of the importation.

24 After referring to s 16A of the Crimes Act 1914 (Cth) and adopting the so-called intuitive synthesis rather than the two-tiered approach I said:

"Having regard to all relevant matters, including your fast-track plea of guilty, your role in the importation which was that of courier, the matters that motivated your offending conduct - that is, the illness of your son - and your past cooperation with authorities but excluding the matters to which section 21E of the Crimes Act refer, I would have sentenced you to a period of 9 years' imprisonment with a non-parole period of 4 and a half years.

Having regard to the provisions of section 21E of the Crimes Act and to your undertaking to provide continuing assistance to authorities, I propose to reduce the sentence by imposing a head term of 7 years and a non-parole period of 3 and a half years."

25 I turn now to the grounds of appeal. There is an overlap in the grounds relating to co-operation and parity and I propose to deal with them first and together.

26 Section 16A of the Crimes Act identifies the matters to which the Court must have regard when passing sentence. Under s 16A(2), those matters include:

"(g) If the person has pleaded guilty to the charge in respect of the offence - that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or other offences;"

27 Under s 21E(1) of the Crimes Act, if a federal sentence or a federal non-parole period is reduced because an offender "has undertaken to co-operate with law enforcement agencies in proceedings ... relating to any offence" the Court must specify that the sentence is being reduced for that reason and what sentence would have been imposed but for that reduction and if the non-parole period is reduced, specify that it is being reduced for that reason and state what the period would have been but for that reduction.

28 It may be correct to characterise a plea of guilty as an offender co-operating with authorities. However, it is apparent from s 16A(2)(g) and (h) and s 21E of the Crimes Act that a plea of guilty without more is separate and distinct from co-operation in the investigation and prosecution of an offence or offences.

29 Counsel for the respondent did not identify to the sentencing Judge any co-operation by the respondent falling within s 16A(2)(h) or s 21E of the Crimes Act. Indeed, it was accepted that there was no factual foundation for the sentencing Judge to conclude that the respondent had co-operated or would co-operate with law enforcement agencies as contemplated by those provisions (which for the sake of differentiation, I will refer to as "statutory co-operation"). In the course of submissions to the sentencing Judge, made some seven weeks before the respondent was sentenced, the appellant's counsel referred to the Mashady's statutory co-operation and the respondent's lack thereof.

30 I turn now to the sentencing Judge's remarks concerning the co-operation of the respondent compared with Mashady. All relevant paragraphs touching on that matter are set out earlier. The sentencing Judge does not clearly identify the scope of the co-operation to which he refers in paragraphs numbered 1, 2, 3, 5 and 6 of his reasons. However, it is apparent from a reading of the reasons in context, particularly the italicised words in paragraphs numbered 1, 2, 3 and 5 above, that the reference to co-operation with authorities is intended to include the respondent's relatively early plea of guilty. In that regard, Mashady admitted his guilt and pleaded guilty more readily and quickly than the respondent.

31 The appellant says the sentencing Judge's reference to the respondent's "co-operation" is intended to include statutory co-operation by the respondent. I do not accept that submission. The sentencing Judge makes no express reference in his sentencing remarks to statutory co-operation. To the contrary, the language used by the Judge in his sentencing remarks suggests that the only relevant distinguishing factor insofar as co-operation is concerned is that the respondent did not co-operate as readily or quickly as Mashady. From that erroneous conclusion I infer that the sentencing Judge did not have regard to Mashady's past statutory co-operation and the respondent's complete lack thereof. This conclusion is reinforced by the sentencing Judge's reasoning in paragraph numbered 6 of the reasons.

32 Notwithstanding the submissions of counsel for the respondent and for the appellant that the indication from the decided cases was that (without regard to any subjective or mitigating circumstances) the starting point for the offence committed by the respondent would be a term of immediate imprisonment of around 14 years, the sentencing Judge selected a starting point of 9 years with a non-parole period of 4 and a half years. He selected that starting point in the mistaken belief that that was my starting point in sentencing Mashady. However, that was the end point I arrived at for Mashady after taking into account relevant mitigating factors including his fast track plea of guilty, his past co-operation with authorities, and his motivation for participating in the crime, but excluding his s 21E co-operation. In order to achieve parity, the sentencing Judge then reduced the sentence from his starting point to 7 years with a non-parole period of 3 and a half years because of the respondent's co-operation and the other mitigating factors to which he referred.

33 Although the sentencing Judge, correctly in my respectful opinion, recognised the need to have regard to whether there should be parity with Mashady he erred in failing to have regard to a relevant consideration being that the respondent, unlike Mashady, had not relevantly co-operated with law enforcement agencies. That constitutes a material error of law: Postiglione v The Queen (supra) at 309; House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. The sentencing Judge also made a factual error which resulted in him proceeding on the basis that the starting point for Mashady was 9 years. Accordingly, this Court can exercise its own sentencing discretion in substitution if it has the necessary materials: House v The King (supra) at 505. However, it can only intervene if it concludes that a different sentence should have been passed on the respondent: 689(3) of the Criminal Code (WA).

34 The different circumstances of the co-offenders were such as to warrant disparity in the sentences they received. In my opinion, the respondent ought to have received a higher sentence than Mashady. It was conceded by counsel for the respondent before the sentencing Judge, correctly in my view, that the respondent's role was effectively no different to that of Mashady, the respondent having (at least) the same level of culpability or criminality. The sentencing Judge stated that there was room for doubt about the extent of the respondent's knowledge. However, a plea of guilty to aiding and abetting is an admission of knowledge of the material facts of the offence committed by Mashady. There is no relevant difference in circumstances between the co-offenders on this aspect.

35 The primary material difference in the respondent's favour is his youth. On the other hand, on the facts before the sentencing Judge he did not relevantly co-operate with law enforcement agencies and he did not enter a fast track plea of guilty. Statutory co-operation is a significant mitigating factor in crimes of the nature committed by the respondent and Mashady. Securing such co-operation is an important weapon in the difficult task of uncovering such crimes and prosecuting the participants. It is important that it be seen that statutory co-operation is appropriately rewarded.

36 Having regard to all relevant matters before the sentencing Judge and the principles relating to Crown appeals, the appropriate disposition on a Crown appeal would be to equate the respondent's circumstances to those of Mashady save for his future co-operation and impose a term of imprisonment of 9 years with a non-parole period of 4 and a half years.

37 However, before disposing of the appeal, I would give the respondent the opportunity to apply for leave to adduce evidence on the nature and extent of any offer by the respondent to co-operate with authorities. In written submissions filed in the appeal the respondent, by his legal advisers, referred for the first time to an offer having been made on behalf of the respondent on the date of the committal mention to assist the Australian Federal Police. No details of the nature or extent of the co-operation were supplied. It is said the offer was rejected as the information to be provided was already known to the Police. As a result of the timing of service of the submissions, the Crown says it had not had a proper opportunity to take instructions on the matter.

38 As stated by the High Court in Dinsdale v The Queen (supra) at 325, manifest inadequacy is, or not, plainly apparent and is a conclusion which frequently does not admit of amplification. The focus must be on the sentence imposed on the respondent without reference to issues of parity and disclosed errors of fact or law.

39 Having regard to the general standards of sentencing customarily observed with respect to crimes of this nature it is fair to say that a sentence of 7 years with a 3 and a half year non-parole period is properly characterised as lenient. However, in view of my conclusion on the other grounds, it is unnecessary to decide whether it falls outside the permissible range of sentencing discretion to justify the description as manifestly inadequate.

40 I have concluded that the sentencing Judge made an error of law in failing to have regard to Mashady's co-operation in the investigation and prosecution of offences relating to the importation and in the basis for his selection of a starting point of 9 years. Based on the information before the sentencing Judge, I would sentence the respondent to 9 years imprisonment with a non-parole period of 4 and a half years. However, before doing so, I would give the respondent the opportunity to apply for leave to adduce evidence concerning the nature and extent of any relevant offer of co-operation.

41 WALLWORK AJ: These are the reasons for judgment after the hearing of an appeal by the Crown against a sentence which was imposed upon the respondent for his part in a drug smuggling operation.

42 On 3 June 2003, after hearing submissions from the Crown and the offender's counsel, the learned Judge adjourned sentencing until 28 July 2003. On that day his Honour sentenced the respondent to 7 years' imprisonment, with a non-parole period of 31/2 years, backdated to 12 January 2003, when the respondent was taken into custody.

43 The contention is that the sentence was manifestly inadequate in all the circumstances of the case, primarily on the ground that his Honour erred in attributing cooperation with the authorities to the offender. It is said there was no co-operation whatsoever by the offender other than his plea of guilty. Further, it is said that the learned Judge erred in sentencing

the respondent to a similar sentence to that of his co-offender, Mr Mashady, who was sentenced to a term of 7 years with a non-parole period of 3 1/2 years after receiving discount for his fast-track plea of guilty, past cooperation, plus future cooperation (s 21E of the Crimes Act 1914).

44 It is significant that the learned sentencing Judge was given a full copy of the submissions to the Judge who sentenced Mr Mashady; also a copy of her Honour's sentencing remarks. The Judge acknowledged having received those documents. He was then addressed by counsel for the Crown.

45 Concerning the sentence which had been imposed on Mr Mashady, his Honour was told that McLure J had applied the provisions of the Crimes Act, which required an indication by the sentencing Judge what the sentence would have been but for the undertaking to give evidence in the future.

46 His Honour was told that McLure J had considered all the factors put forward in mitigation including Mr Mashady's personal circumstances, and his plea on the fast-track. Then using the intuitive synthesis, her Honour had arrived at a term of 9 years' imprisonment with a parole period of 4 1/2 years. She had then allowed a further discount pursuant to s 21E which "is not applicable here". Counsel said "I draw that to your Honour's attention at this time on the basis that I have been provided with some outline of sentencing submissions by my learned friend".

47 Having referred to the proposed sentencing submissions of the respondent, the prosecuting counsel advised the learned Judge that McLure J had indicated that absent his promised future cooperation, a sentence of 9 years' imprisonment, with a non-parole period of 4 1/2 years would have been an appropriate sentence for Mr Mashady. Counsel told his Honour that counsel for the respondent intended to submit "that the appropriate starting point for considering the sentence of the offender is the sentence imposed upon Mr Mashady, absent his discount for s 21E. Prosecuting counsel then said:

"It is there that the Crown takes issue. Mr Mashady's sentence of 9 years before the future cooperation discount took into consideration the fact that Mr Mashady had made admissions very early on in the piece, had pleaded guilty on the fast-track, had pointed out this offender and, as events transpired, had he not pointed out the offender at that time, this offender would probably have got away simply because as your Honour will recall from the brief, if your Honour has had a chance to look at it, and from the statement of facts, this offender was apprehended just as he was about to get into a taxi upon leaving the airport. Mr Mashady also gave a record of interview and provided a statement detailing his part in the offence.

So the Crown takes issue with the fact that this offender should receive the same sentence that would have been Mr Mashady's, absent the future cooperation. Mr Mashady's past cooperation and mitigating circumstances were, in the Crown's submissions, far more compelling."

48 It is now suggested by the Crown that the Judge who sentenced the respondent may have been under some misapprehension as to exactly how McLure J had arrived at the sentence which was imposed on Mr Mashady. In my opinion, that contention should not be upheld for the reasons which follow.

49 In his submissions to the sentencing Judge, prosecuting counsel advised his Honour that the respondent had no criminal record which was known, but that it was generally the case "which a reading of the various drug importations will show" that people in this situation are recruited as people who have a clean record, so as to avoid suspicion and detection. That in itself - a previous clean record in these circumstances - would have little or no mitigatory effect.

50 Prosecuting counsel made detailed submissions to his Honour anticipating the sentencing submissions on the respondent's behalf, including referring to the decided case of Heryardi v The Queen (1998) 19 WAR 383 and to the reasons of Ipp J in that decision. Counsel urged the Judge to find as a fact that the respondent was clearly a minder looking after the courier to make sure that nothing went wrong. He said there was no allegation that the respondent had had a major, or any part, in the ongoing distribution of the drugs. There was no evidence to that effect, but clearly the respondent's part was to see that the drugs landed safely in Western Australia "and that, in the Crown's submission is another link in the chain of distribution".

51 Counsel referred to the decision of Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370. He told his Honour that there had been a plea of guilty, albeit not on the fast-track, though certainly early on in the piece. He said "there has been no cooperation from the Crown's point of view other than the plea of guilty. There has been no future cooperation".

52 When addressing the Judge in mitigation, counsel for the respondent told him that his submission was that the respondent's role had been to monitor Mr Mashady and report back to the organiser. That although labels were not a good way of expressing the situation, the respondent had been what is sometimes referred to as an overseer on the flight. He had travelled to Australia to expunge a drug debt and his role had been to watch Mr Mashady. His primary submission was that the respondent was, in effect, no different to a courier.

53 The Judge was told that the respondent was then 22 years of age and from about the age of 3 to 12, he had lived on a kibbutz near the Gaza strip. He had a sister who was in the Israeli defence forces and a younger brother, aged 15, who was still at school. His mother was an art teacher in a primary school. His father was a gardener. The respondent had completed year 12 at school. Thereafter, after briefly working to assist his father, had been conscripted into the Israeli defence force. He had served two years and nine months before being discharged just short of the three years, primarily because two of his very close friends had been killed in combat. This had had a profound effect upon the respondent. He had undergone psychological counselling and eventually been discharged three months short of the full three years.

54 It was submitted on the respondent's behalf that he had not known life as an adult other than his time in the army and a brief period after that in Holland, where he had become involved with drugs. He had quickly become significantly in debt, somewhere in the order of 5000 to 6000 Euro. That was equivalent to about AU$12,000.

55 The learned Judge commented that he was quite prepared to accept that the respondent "was a relatively innocent, inadequate person and got led astray in Amsterdam and got himself in a position where he had, or at least he thought he had, little alternative but to participate in a criminal enterprise but he brought $1.5 million worth of amphetamines into Australia, or helped to bring it in". His Honour remarked that the respondent could have produced untold misery and ruin to some scores of Australians. His Honour also said the consequences of importing drugs was devastating to a society. However innocent and tragic were the individual's involvement, society must protect itself against that harm. His Honour also said that a courier's role was a serious one.

56 Counsel for the respondent stressed the fact that the respondent had made a plea of guilty at a relatively early stage. He told the Judge that the respondent had had difficulty in pleading guilty because he had difficulty in admitting to his family, more than anyone else, the fact that he had become involved in a serious offence. The plea of guilty had been entered at the committal mention stage and not later. Reference was made to the decision of Cameron v The Queen (2002) 76 ALJR 382. It was pointed out that Mr Mashady had not been aware of the full extent of the drugs which he had imported.

57 It was stressed for the respondent that parity was important in these cases. Counsel submitted that McLure J had arrived at Mr Mashady's sentence "after taking into account all other mitigating factors of the case and the offender's role, as being a sentence of 9 years' imprisonment, and then a further discount of 2 years being allowed for the future cooperation". Counsel said:

"... ultimately, if your Honour looked at Mashady's sentence, it would appear that the ultimate sentence that would have been imposed would have been somewhere in the order of 14 years with a minimum of 7 years."

"I don't arrive at that figure lightly. Ordinarily your Honour, cases of this sort don't attract discounts of greater than 50 per cent, taking into account all mitigating factors, that is, pleas of guilty, personal circumstances of the offender, past cooperation and the future cooperation expressed pursuant to s 21E, so in my submission Mashady's sentence would have been, absent all those features, somewhere in the order of about 14 years which, when your Honour has a look at the comparative sentences, the table that I have provided your Honour, is in the range of sentences for this sort of offence."

59 Counsel stressed to the Judge that the range of sentences which he had provided was only a guide to his Honour, firstly with respect to the range of sentences which were usually imposed; secondly to invite the Judge to have a look at the discount for pleas of guilty in circumstances similar to that of the respondent; thirdly to draw to his Honour's attention the differentiation between couriers "and what are called overseers". Amongst other cases to which his Honour referred were those involving the previous offences of Diefenbach, Jesowski, Lindke, Schubert, Ruvinovski, Punevski and Mustafa. Those offences included previous sentences in this Court involving drug importations. Reference was also made to the decision in Grimwood v The Queen [2002] WASCA 135.

60 Importantly, the difference in the ages between the respondent and Mr Mashady was highlighted by the respondent's counsel. It was submitted that the respondent was just 22 when the offence was committed whereas Mr Mashady was a man of 51.

61 In reply, counsel for the Crown submitted that the Crown would not take issue with the submission that the role of the respondent was to monitor Mr Mashady and to report back to the organiser. The Judge pointed out that the respondent had been assisting in the importation. Crown counsel stressed that whichever way the Judge decided to sentence it would be in the region of 14 years plus "for a starting point". He also said that the only mitigation the Crown recognised was the plea of guilty. He said that the respondent did not have any of the other substantial mitigating factors with regard to past corporation, which Mr Mashady had. He stressed the compelling mitigating circumstances in Mr Mashady's case.

63 His Honour had prepared detailed sentencing remarks which amongst other things, referred to the respondent's very young age. He referred to the fact that the respondent had seen some of his close friends die as a result of combat activities and that that had affected him profoundly, causing his discharge early from military service. He referred to the fact that due to the respondent's lifestyle in Holland he had incurred a significant drug debt to somebody in the drug world in Amsterdam, and that in order to erase that debt he had "somewhat naively and in a gullible fashion accepted the offer to become involved in this importation by entering into an agreement to shadow a person to Australia and report back by telephone."

64 The learned Judge referred to Mr Mashady and related some of the facts concerning Mr Mashady's involvement in the offence. He referred to the fact that Mr Mashady had admitted his involvement at an early stage and had then cooperated with the authorities and entered a plea of guilty as part of the fast-track system. His Honour said that the respondent had not done this.

65 His Honour then referred to the fact that McLure J had considered that Mr Mashady should be sentenced:

"... to, in ordinary terms, 9 years' imprisonment with a non-parole period of 4 1/2 years but by virtue of the provisions of s 21E of the Crimes Act and his cooperation with the authorities, this should be reduced to 7 years with a non-parole period of 3 1/2 years. The submission is made to me that you are not entitled to similar treatment because you had not cooperated as readily or as quickly."

"However, it seems to me that there are other features of your case which are significantly different from the role of Mashady's. You did not actually carry the drugs. There is room for some doubt about the extent of your knowledge of just exactly what was involved, although nothing which would extenuate or diminish your criminal liability, but most of all there is your very young age and the fact that since April you have indeed cooperated closely with the authorities."

67 His Honour referred to the fact that the respondent had no criminal record and it was likely that if he was released on parole he would be deported. He said:

"It seems to me that you are of very young age, you are relatively immature and the ordeals which you experienced in the army to some extent provide an explanation for your conduct and your vulnerability while in Holland in that while you may not have cooperated as quickly or as readily with the authorities as Mashady, these are countervailing factors."

68 His Honour said that accordingly he considered that this was a case where there should be general parity in the imposition of sentences between the respondent and the associated offender. He said:

"Like the Judge who sentenced Mashady, I would in ordinary circumstances impose the sentence of imprisonment of 9 years upon you with a non-parole period of 4 1/2 years, but because of your cooperation with the authorities and the other mitigating factors which I have outlined, I propose to treat you on the same basis as Mashady and to impose a sentence of imprisonment of 7 years, with a non-parole period of 3 1/2 years and to direct that that should date from 12 January 2003."

69 Although it has been contended that his Honour may have misunderstood the differences between Mr Mashady's cooperation pursuant to s 21E of the Crimes Act and that of the respondent, in my opinion that submission should not be accepted. It is clear that the issue concerning s 21E was fully explained to the Judge. Also the respondent did cooperate with the authorities. To suggest that the word "cooperation" should only be used with respect to future cooperation in the light of s 21E of the Crimes Act, is with respect, in my opinion, not correct. The respondent cooperated in a number of ways with the justice system. The reason that (leaving aside the question of s 21E cooperation) he received a lesser effective sentence than Mr Mashady was because of the features which, in his Honour's words, were "significantly different from the role of Mr Mashady". Those remarks are set out above and I will not repeat them. It appears that his Honour thought Mr Mashady's role in the offence was more serious than that of the respondent; also he took into account the respondent's relative "very young age". That was the reason he reduced the sentence.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (97 paragraphs)

Parties

Cases Cited (13)