R v Bimahendali

Upon his arrival in Sydney he resided as a guest at the home of an Indonesian acquaintance named Tobugus Andereas Shaldon and his wife Lilly Wattie Swosantio at unit 5, 64 Beachamp Road, Hillsdale. The applicant and Mr. Shaldon had attended the same high school in Indonesia in about 1987. Some two weeks later the applicant procured a place of residence for himself at flat 5, 57 Church Street, Randwick.

On 14 March 1998 a female Indonesian National by the name of Christy De Gois, entered Australia via Sydney airport. From about 21 March 1998 the applicant moved to rental premises at unit 25, 300B Burns Bay Road, Lane Cove.

On 23 March 1998 a telephone service in the name of the applicant was connected to the Burns Bay Road apartment. Mr. Shaldon and Ms Swosantio visited the applicant at his Randwick address and subsequently at the address at Lane Cove on a number of occasions.

In about April 1998 Mr. Shaldon and Ms Swosantio attended a barbecue hosted by the applicant at Burns Bay Road. Ms Swosantio informed him that her cousin was involved in the importation of clothing into Australia and that she had been asked to assume responsibility for the marketing of the goods. A few weeks later Mr Shaldon and Ms Swosantio again visited the applicant at Burns Bay Road. He inquired of Ms Swosantio as to how clothing might be imported into Australia and the cost of doing so. She informed him that she used DHL an international courier service.

Records maintained by the Roads and Traffic Authority show that a miscellaneous or identity licence was issued in the name of Christie De Gois on 8 April 1998. The address of Christie De Gois is recorded as 25/300B Burns Bay Road, Lane Cove.

In about May or June 1998 the applicant introduced a person by the name of Indira to Mr Shaldon and Ms Swosantio. Department of Immigration records show that Christie De Gois departed Australia on 13 June 1998.

In mid August Mr. Shaldon received a telephone call from Indira. The person Indira inquired as to whether Mr. Shaldon was prepared to accept delivery of a package on his behalf. Mr. Shaldon declined.

On 19 August 1998 a package was lodged with DHL World Wide Express in Djakarta for air shipment to Sydney. Details of the consignor were stated on the airway bill as Rudy Sentoso JL Turnate No 35 Djakarta, Indonesia for delivery to Chris De Gois at 5/64 Beachamp Road, Hillsdale. The total weight of the package was 9.5 kilograms. It contained a number of items of mens clothing. These items were individually wrapped in clear plastic and each had a manufacturer's label attached. The consignor stated on the airway bill that the goods were intended as a gift and that they had a declared value of US$36.

Concealed within the waist band of a pair of jeans and within the lining of one of the jackets were some 48 small clip sealed plastic sachets wrapped in carbon paper affixed with clear adhesive tape. Within each sachet was an amount of loose transparent crystals weighing some 97.4 grams. The crystals consisted of approximately 82 per cent methylamphetamine weighing in pure form 80.1 grams. The package was landed at Sydney Airport on 20 August 1998 and placed in a DHL bond store at Mascot to await customs clearance.

On 21 August 1998 officers of the Australian Customs Service examined the package at the bond store. The crystals were detected and a narcotic field test confirmed the presence of methylamphetamine. Later that day custody of the packages and contents was transferred to the Australian Federal Police. The package was subsequently reconstructed by AFP officers to resemble its original condition, except for the crystals which had been removed and replaced with a controlled delivery sample of 23.8 grams comprising19.8 grams of pure methylamphetamine secreted within one of the jackets. Also concealed within the package was a listening device and transmitter monitored by the AFP.

On about 23 August 1998 Mr Shaldon received a telephone call from the applicant. He asked if he could have a package sent to his address. Mr Shaldon said that he could. On the morning of 24 August Mr Shaldon received another telephone call from the applicant asking him to make inquiries of DHL with a view to ascertaining whether the expected parcel had arrived. The applicant quoted a number that was said to be the relevant consignment number. Mr. Shaldon asked his wife to make the appropriate inquiries of DHL. She did so and was informed that the parcel would be delivered to Beachamp Road and that it had to be signed for.

On 27 August about 11.30 in the morning members of the AFP posing as DHL employees attempted unsuccessfully to deliver the intercepted package to unit 5, 64 Beachamp Road, Hillsdale. At 7.50am. the next day the officers again attempted to deliver the package. On this occasion Mr. Shaldon opened the door, and took possession of the package. At about 9.00 am, Mr Shaldon received a telephone call from the applicant. Mr. Shaldon told him that the package had arrived and that he would to take it with him to his place of work that morning. About 9.44 am, Mr Shaldon exited the apartment and placed the package in his car. As he was about to leave he was approached by Federal Police. He was escorted back to the unit. At 10.25am the applicant again telephoned Mr Shaldon. At the behest of the officers, Mr Shaldon said that he'd been unable to start his car. The applicant said that he was on his way.

About 10.45 am the applicant arrived by taxi outside the block of units. He asked the driver to wait. He entered the premises and asked whether any other person was at home. Mr Shaldon picked up the package off the floor where it had been previously placed by police and handed it to the applicant. Again at the behest of police he asked who had sent the package and the applicant replied "Rudy". Mr Shaldon asked what was in the parcel, the applicant replied "clothes". The listening device installed in the package recorded parts of these conversations.

Upon reaching the waiting taxi the applicant was arrested by Federal Police who were maintaining surveillance. In his possession was the package from Indonesia and amongst other things keys to his apartment at Burns Bay Road, and a mobile phone. When he was asked by Federal Agent Burgess why he was there he replied "No, I don't know because my friend write - he just tell me, he ring me up, you got a parcel here, he asked me to pick it up, that's all, I don't know". He denied being aware that the package contained drugs. A little later he explained, "Yeah, you know, it's my friend from Indonesia he gives me a ring, right, asked me to pick up the jacket".

4 Based upon these facts his Honour found the applicant to be "a prime mover if not the prime mover" in the commission of the offence. His criminality over the relevant period was assessed as significant. In his favour were three brief references from employers, none of whom was previously aware of the offence, and a further reference from the manager of Industry at Silverwater Corrections Centre praising the work of the applicant while waiting trial. The prisoner, who was aged thirty-one years at the time of the offence, did not give evidence, and his Honour appropriately observed that little more of a subjective nature could be said about him. 5 In accordance with S17A of the Crimes Act 1914 (Cth) his Honour was satisfied having regard to the nature and seriousness of the offence, that no sentence other than one of imprisonment was appropriate. His Honour noted that he had made allowance for the absence of any system of remissions in this State, as was required by S16G, and that he had paid regard to the various matters specified in S16A of the Act as requiring attention. There is no reason to suppose that his Honour, as an experienced trial Judge, overlooked any relevant matter, and there is no error in sentencing principle on the face of the record.

Role of the Applicant 6 It was submitted that his Honour erred in finding that the applicant was a "prime mover if not the prime mover" in the offence, and in particular, in placing too much reliance on the evidence of events preceding the importation. Reference was made, in this regard to the caution expressed in Olbrich (1999) 166 ALR 330 as follows: (14) "It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate. … (16) There is a very practical reason for concluding that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs. Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia." 7 To these passages should be added the further observations at: "(17) Further, there is no statutory requirement that a trial judge make such inquiries. Because the offence to which the respondent pleaded guilty was a 'federal offence' the primary judge was bound, in sentencing the respondent, to apply the relevant provisions of the Crimes Act 1914 (Cth). Section 16A(2)(a) of that Act requires a sentencing judge to take into account, so far as 'known to the court', the nature and circumstances of the offence . The reference to what is 'known to the court' is very important and mirrors what would be the position in the absence of statutory provision. (18) Finally, inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation. The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged. It seems, however, that the intended purpose of the inquiries which the Court of Criminal Appeal had in mind was to determine the involvement of the respondent 'in any overall scheme for importing drugs into Australia.' It is desirable to turn, in this connection, to the distinction between 'couriers' and 'principals' that was relied on at first instance. (19) Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on the one from that imposed on another. In that context, a distinction between "couriers" and "principals" may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a "courier" or "principal" must not obscure the assessment of what the offender did .

8 While identification of the precise nature of an offender's role in an importation, compared with the possible role of the others involved in it, is not an essential aspect of the sentencing process, and while caution needs to be exercised in dividing offenders into distinct categories of courier, principal and so on, it does not follow that a sentencing court should refrain from a determination of the objective seriousness of the offender's conduct in the light of proven facts as to what he has done. Olbrich does not, to my mind, suggest otherwise. Indeed the contrary is suggested by the passage at par 21: (21) Whether other stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on to him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. …"

9 In the present case, the finding that the applicant was at least a prime mover was well open. The circumstance that he made inquiries as to the means of importing goods into Australia, and that it was precisely those means that were used when subsequently the methylamphetamine was imported and received by him was more than a coincidence. At all critical times he was involved in the events designed to effect the importation. For example it was he who introduced Indira to Shaldon and Swasantio. Following arrival in Sydney of the package containing the drugs, it was he who asked Shaldon whether he could have a package sent to his address, it was he who provided Shaldon with the necessary consignment number, and it was he who make arrangements to collect the package from Shaldon. 10 In the course of the sentencing proceeding, his Counsel conceded that the inference was open that he had dreamed up the idea of the importation, upon impulse, at the time of the initial inquiry of his friends. Those were the persons who were later used by him as the collection agents. The concession as to the inference was well made by Counsel. In my view it was the sole rational inference open. 11 It is not to be overlooked that sentence appeals in this Court are not appeals by way of rehearing. In order to succeed, error on the part of the sentencing Judge must be shown. Findings of fact are open to review only if there is no evidence to support a challenged finding, or if the evidence is all one way, or if the Judge has relevantly misdirected himself concerning the fact finding process: Kelly (1993) 30 NSWLR 64 at 66; WHS NSW CCA 27 March 1995 and Power (1999) NSW CCA 25. 12 The present case does not answer any of these criteria, and the challenge in this regard is accordingly not made good.

Scale of Seriousness 13 Counsel for the appellant next sought to address an argument that methylamphetamine like ecstasy, should be regarded as a mid-range drug; but that since the trafficable quantity of ecstasy under the Customs Act was 0.5gms, (or one quarter of that for methylamphetamine), an offence under the Customs Act involving methylamphetamine should be regarded as somewhat less serious than one involving ecstasy. 14 It is true that ecstasy has been consistently treated by this Court as a mid-range drug: Budiman (1988) 102 A CrimR 411; Moore and Wiebe NSW CCA 11 August 1992; Bowers (1997) 97 A Crim R 461; Bushell NSWCCA 7 August 1998; Spillane (1999) NSWCCA 280 and Bourel NSW CCA 11 December 1998. 15 There is also authority in Cronn and Bladon (1983) 34 SASR 555 and Cuddy (1988) 37 A CrimR 226 for treating methylamphetamine as a mid range drug, i.e. as more dangerous or habit forming than cannabis, but less so than heroin or cocaine. 16 However, I am quite unpersuaded that it is appropriate, let alone helpful, to attempt any greater gradation of seriousness between drugs falling into the broad categories of soft drugs (eg cannabis) middle range drugs (amphetamines in their various forms) and high range drugs (heroin and cocaine). In the absence of detailed expert evidence based on pharmacological and toxicological studies as to their addictive qualities, risks of overdose, the incidence of drug induced psychosis and other psycho-social effects, no such exercise could profitably or responsibly be undertaken by the Court. Moreover, such an exercise would become extremely problematic given the constant introduction of new designer drugs and of their analogues. 17 Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ. I am fortified by this view, which is similar to that which I expressed in Schaal 8 September 1989, by the circumstance that in Martinez (1984) 6 Cr App R (S) 364 and Wijs (1998) 2 CR APP R 436 an argument to the contrary was rejected by the UK Court of Appeal. 18 I would similarly dismiss the proposition that sentences for offences under the Customs Act relating to trafficable quantities of methylamphetamine should be generally lower than those for similar offences involving trafficable quantities of ecstasy. No good reason exists, so far as I can see, for any such differentiation between substances which have similar clinical properties. If a pattern of sentencing has emerged in the District Court, which would support some difference in treatment of offences depending on whether they involve ecstasy and methylamphetamine, or any other drugs within the amphetamine family, then it is in my view unsoundly based.

Sentence manifestly excessive 19 It was next submitted that the sentence was outside the legitimate range for offences involving trafficable quantities of methylamphetamine or of ecstasy. Reliance was placed on the sentencing statistics for offences involving the importation of trafficable quantities of methylamphetamine decided in the District Court, which revealed a range of total sentences of imprisonment between four years and five years. For offences involving quantities of ecstasy, the range of full terms was between forty-two months and eight years. The statistics are, however, of limited value having regard to the fact that the case population was confined to six matters (methylamphetamines) and eighteen matters (ecstasy) respectively. 20 These statistics were supplemented by reference to the reasons for sentence in relation to four cases involving methylamphetamine decided in the District Court, noted in the Schedule below, and a number of decisions at appellate level concerning ecstasy, which are also noted in the Schedule. 21 As a mid range drug it is to be expected that sentences for Customs Act offences involving ecstasy, methylamphetamine and other analogues or variations within the amphetamine family, would generally be somewhat less than those imposed for the high range drugs of heroin and cocaine: See Dizel NSW CCA 23 August 1996) and Bowers (1997) 97 A CrimR 461. Nevertheless, dealings in each of the middle range drugs remain extremely serious offences, as is indicated by the significant maximum penalties prescribed, both in relation to trafficable quantities of methylamphetamine and of ecstasy, and for commercial quantities of ecstasy. 22 I am unable to place any significance on the absence of a prescribed commercial quantity for methylamphetamine. Presumably it was an oversight, which should be redressed, since no reason exists in logic or in drug law enforcement policy for leaving this substance as an offence incapable of attracting the higher penalty under subsection 235(2)c). To do so risks rendering it a potentially more inviting proposition for large scale drug importers. 23 No argument was advanced, on this application, that for sentence comparison purposes, a notional 'commercial' range should be assumed for methylamphetamine whether, in an equivalent amount of 0.5 kgs, or at a level of 2kgs, maintaining a proportional parity referable to the trafficable quantities prescribed for each (0.5grams and 2 grams respectively). I would not regard such an exercise as available in logic or at law. What is more important in any given case is whether the sentencing exercise relates to a trafficable or commercial quantity of the substance involved, since that is the determinant against which the maximum available sentence is set. 24 Subject to that threshold consideration, there is also a danger in attaching too much weight to the single factor of quantity both in the initial sentencing exercise and upon review when, by reference to patterns of sentencing, comparable cases are considered. Reference to quantity and to wholesale or street values are relevant considerations so far as they may help in the determination of the objective criminality of the offender when set against the maximum penalty prescribed. 25 However, quantity is but one factor; and to rely upon it alone falls into the difficulty noted by Greg James J in Soonius NSW CCA 29 May 1998, where his Honour observed the "very provisions of the Crimes Act 1914 (Cth), and in particular S16A, speak against such a simplistic approach. The quantity involved must be considered along with all the matters to which the Court's attention is directed by the Act and by principle." 26 Similarly, in Doan NSW CCA 27 September 1996, Postiglione (1991) 57 A CrimR 301 and Bourel NSW CCA 11 December 1998, it was pointed out that while the quantity is a relevant factor for consideration, the sentencing exercise should not be undertaken upon a basis that is simply proportionate to quantity. 27 The sense of this can be seen in the circumstance that often the quantity of drug is a matter over which those other than the principals have little control. More often than not it is not even known to those who carry it across customs barriers, collect it, or warehouse it. 28 The nature and extent of their involvement in any such venture, and consideration of questions such as whether their objective was monetary gain, and whether they joined in a well organised commercial operation, is likely to provide a much better guide to their objective criminality than any mathematical exercise dependent upon bare weighing of the drugs that happen to be seized, subject always to the question whether the quantity involved qualifies as a trafficable or commercial quantity.

29 The decision in Carey (1997) 97 A CrimR 552 is instructive in that the Court there said that the nationwide review of the authorities concerning the offence of importing a commercial quantity of ecstasy that it had conducted, had not established a range. It was made clear that the case under review was also not to stand as a tariff marker because of the exceptional mitigatory facts involved, including the exceedingly high degree of productive co-operation provided. This caution is apposite, as analysis of the cases noted in the Schedule to this judgment shows a wide variation in outcome dependent upon the individual objective and subjective circumstances. 30 The decisions noted in that Schedule do not, to my mind, display any sentencing pattern of a kind that would support the applicant's submission. The present case was one involving importation of over forty times the prescribed trafficable quantity and it was one in which the applicant played a key role. It cannot be dismissed as falling at the low end of the range of seriousness for cases involving a trafficable quantity, nor can it be regarded other than as a carefully planned scheme conducted for personal gain, to introduce a prohibited drug into this country, with all the mischief that entails. 31 It was one which called for a significant component of general and personal deterrence in accordance with the well established principles discussed in Muanchukinghan (1990) 52 A Crim R 354, El Karhani (1990) 21 NSWLR 370; Thiagrajah (1989) 41 A CrimR 45, Moore and Wiebe NSW CCA 11 August 1992, and Budiman (1998) 102 A CrimR 411. 32 I would adopt the observations of Simpson J (with whom Meagher JA and Sperling J agreed in Benais (1999) NSW CCA 236: "(23) The escalation in drug use in this country is a matter of notoriety, as is the effect of drug use and abuse on the wider community. While minds may and do differ on policies that should be adopted in relation to drug use and on drug addiction there is, as I perceive it, less controversy about tolerance of imported drugs such as ecstasy. (24) Governments and government agencies that struggle to control the importation of drugs deserve the support of the courts. Their efforts are diminished where courts fail to give that support. To fail to give the necessary support is to undermine the efforts that have been made by governments and other agencies to control the spread of drug use."

These observations are equally applicable to methylamphetamine. 33 For the reasons given, and after making allowance for a reduction of about one third in accordance with S 16G of the Act in respect of the assumed starting point, I am quite unpersuaded that the sentence was outside a legitimate exercise of sentencing discretion. 34 In the result, I would give leave to appeal, but would dismiss the appeal. 35 SULLY J: I agree with the judgment of Wood CJ at CL. 36 SIMPSON J: I agree with the judgment of Wood CJ at Cl,and with his reasons therefor.

District Court - methylamphetamine 37 The first instance sentences were as follows:

Javilloner P.J. Phelan DCJ 15 August 1986 - plea of guilty, "low range consignee" of a package containing 12 grams, considerable contrition since offender surrendered himself after leaving the country - 12 Months periodic detention.

Gutierrez Sides DCJ, 16 October 1997. Plea of guilty after trial began, collector of package containing 39.2 grams, - Two years imprisonment, release on recognisance after fifteen months.

Vuki Gibson DCJ, 10 September 1998 - plea of guilty, courier, - over 100 times the trafficable quantity, heroin habit - head sentence five years non parole period two years;

Tinana Latham DCJ, 6 May 1999 - plea of guilty assistant role in the collection of parcel 21.1 grams, user, commercial importation, - 2 years imprisonment, release on recognisance after six months;

Flores & Lasala Luland QC DCJ, 12 November 1999 - 58.4 grams - Flores plea of guilty during trial, - assisted in arranging importation - two years imprisonment, release on recognisance after fifteen months; Lasala - guilty after trial, allowed his premises to be used for delivery of the drug - imprisonment for 12 months, release on recognisance after six months.

38 Reference was also made to a series of decisions at appellate level concerning dealings in the substance ecstasy, prosecuted under the Customs Act. They included:

Dizel NSW CCA 23 August 1996 - plea of guilty, courier, 40.9 grams, (trafficable quantity) prior drug convictions, appeal against sentence of 10 years imprisonment and NPP 7 and a half years dismissed.

Bowers (1997) 97 A CrimR 461, plea of guilty, courier, 719.2 grams, offered to assist in controlled delivery - sentence of eight and a half years imprisonment with a non parole period of four and a half years not excessive.

Hauser NSW CCA 11 December 1997 - plea of guilty to attempt to gain possession of a commercial quantity, (601 grams) junior partner, limited co-operation - six years full term with non parole period three and a half years, held to be well within sentencing discretion, but reduced to four and a half years with non parole period of two years on the grounds of parity.

Dinic (1997) 149 ALR 488 - guilty plea, middleman, 159.4grams, assistance given, sentence of five years with non parole period three years held to be lenient

Carey (1997) 97 A CrimR 552, (Vic. Court of Appeal), plea of guilty, commercial quantity (2kgs), considerable assistance in controlled delivery and other persuasive subjective features- starting point prior to reduction for assistance ten years - reduced to six years and non parole period three and a half years.

Soonius NSW CCA 29 May 1998, convicted after trial, courier, commercial quantity (3.34kgs), offer of future assistance, psychiatric component, resentenced to nine years imprisonment, non parole period five years three months

Bushell NSW CCA 7 August 1998, found guilty at trial, 331.86 grams, courier, health problems, assistance provided, sentence of seven years with non parole period four years held not to be excessive.

Budiman (1998) 102 A CrimR 411 convicted after trial, commercial quantity, (591 grams) courier, received package, limited assistance, eight years three months with non parole period of six years three months, held not outside the range.

Behar NSW CCA 14 October 1998, plea of guilty, commercial quantity, (1.231kgs) courier, substantial discount for co-operation, strong subjective circumstances, Crown appeal, trial Judge indicated that but for assistance sentence would have been one of ten years with non parole period four years - sentence of six years with non parole period eighteen months increased to one of six years imprisonment with a non parole period of thirty months. Assumed starting point of 10 years said to be too low before S16G reduction and discount for co-operation, but double jeopardy principle applied.

Bourel NSW CCA 11 December 1998 - convicted after trial, two counts trafficable quantity (331grams), financier - appeal against sentence 7 years with NPP four and a half years dismissed.

Spillane (1999) NSW CCA 280 - guilty plea - courier, high range trafficable quantity (447.3grams), limited assistance, resentenced to six years with non parole period three and a half years.

Slatinec (1999) NSW CCA 2 - guilty plea, middleman, role unclear, but not a principal, 1214 grams "Eden", (a drug analogue of ecstasy) - sentence which would have been one of thirteen years with non parole period nine years, reduced to eight years with non parole period of five years, because of further assistance provided in respect of a gaol murder.

Power (1999) NSW CCA 25, guilty plea, commercial quantity (1056.5grams), middleman, sentence of nine years with a non parole period five and a half years held to be well within range.

Benais (1999) NSW CCA 236 - guilty plea, courier, trafficable quantity, (61 grams) sentence 6 years with NPP 3 years held to be within range. **********

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