R v Burling & Gill [2011] QCA 51

Judgment (75 paragraphs)

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the applicants were convicted of one count of importing a commercial quantity of MDMA - where Burling was sentenced to 12 years imprisonment with a non-parole period fixed at seven years and three months - where Gill was sentenced to nine years imprisonment with a non-parole period fixed at five years and six months - where the applicants argued that the trial judge erred in considering that there was a "norm" for setting a non-parole period at 60-66 per cent of the head sentence - whether the court should re-sentence the applicants in light of the decision in Hili v The Queen; Jones v The Queen (2010) 272 ALR 465; [2010] HCA 45 - whether the sentence imposed was manifestly excessive

[2]

Crimes Act 1914 (Cth), s 16A, s 21E

[3]

Grimwood v The Queen [2002] WASCA 135, cited

[4]

Hili v The Queen; Jones v The Queen (2010) 272 ALR 465; [2010] HCA 45, considered

[5]

Melikian v The Queen [2008] NSWCCA 156, cited

[6]

R v Chandler [2010] QCA 21, cited

[7]

R v Jimson [2009] QCA 183, cited

[8]

R v Kevenaar (2004) 148 A Crim R 155; [2004] NSWCCA 210, cited

[9]

R v Oprea [2009] QCA 184, cited

[10]

R v Ruha, Ruha & Harris; ex parte Commonwealth DPP (2010) 198 A Crim R 430; [2010] QCA 10, considered

[11]

R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited

[12]

Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247, cited

[13]

Director of Public Prosecutions (Commonwealth) for the respondent

[14]

[1] MARGARET McMURDO P: On 25 November 2010, this Court dismissed the applicants' appeals against their convictions of importing a commercial quantity of ecstasy. The Court gave the parties leave to make further submissions as to the applications for leave to appeal against sentence in light of the recent decision of Hili v The Queen; Jones v The Queen.[1] Both Burling and Gill originally contended that their sentences were manifestly excessive. Burling was sentenced to 12 years imprisonment with a non-parole period fixed at seven years and three months. Gill was sentenced to nine years imprisonment with a non-parole period fixed at five years and six months. Burling also contended that the primary judge erred in finding that she assisted in packaging the drugs and sentencing her on that basis. Both applicants in their supplementary submissions contended that the sentencing judge erred in effectively considering that the "norm" for setting a non-parole period in sentences imposed under the Crimes Act 1914 (Cth) was at 60-66 per cent of the head sentence. In Hili, the High Court emphasised that there was no such "norm"; the setting of the non-parole period requires an exercise of discretion, taking into account and balancing the mitigating and exacerbating circumstances. The applicants each submit that this Court should resentence them and vary their sentences by substituting a non-parole period fixed at 50 per cent of their head sentences.

[15]

[2] As to this most recent contention, I agree with Chesterman JA's reasons for rejecting it. The interchange between the prosecutor and the sentencing judge made clear that each well understood that the sentencing discretion in this case was not circumscribed by the concept of a "norm" that the non-parole period should be at least 60 per cent of the head sentence.

[16]

[3] I turn now to consider the applicants' contentions that their sentences were manifestly excessive and that, in Burling's case, the judge sentenced her on an incorrect basis.

[17]

[4] Burling was 39 at the time of the offence and 42 at sentence. Gill was 42 at the time of the offence and 45 at sentence. Neither had prior convictions.

[18]

[5] The prosecutor at sentence submitted that the appropriate penalties were, in Burling's case, a head sentence of about 12 years imprisonment with a non-parole period set at about 60 per cent of that sentence; and, in Gill's case, a sentence of between seven to 10 years imprisonment with a non-parole period fixed again at about 60 per cent of that sentence.

[19]

[6] Burling's counsel at sentence emphasised the following matters. After indicating some intention to co-operate with the authorities, Burling was physically attacked on three occasions whilst on bail. During the attacks she was told to keep her mouth shut. For these reasons, she was unable to co-operate with the authorities. She involved herself in this offending through her spousal relationship with Dehghani. He was a domineering and overbearing man. She should be sentenced as nothing more than a "knowing spouse"; an "amateur". At the time of sentence, she was caring for her young grandchild, her child to Dehghani, and another school-aged child. Burling had been ill-served by her former legal representative, Mr Di Carlo, who had divulged to the Australian Federal Police confidential information regarding her instructions to him in order to assist Dehghani for whom Mr Di Carlo was also acting. An appropriate head sentence was 12 years imprisonment, but with parole release after 50 per cent because of Burling's attempts to co-operate with the authorities. Burling's counsel made no other submissions as to any particular factual basis on which her sentence should be imposed.

[20]

[7] Gill's counsel at sentence made the following submissions. Her tragic life included physical and sexual abuse by those who should have cared for her. An unhappy marriage to a controlling man followed. Her youngest child was 15 at sentence. Her 21 year old daughter had a history of depression, was diagnosed as bi-polar and had a two year old child. Her daughter was incapable of looking after the toddler, who had a range of significant physical defects known as CHARGE Syndrome. Gill was the child's sole carer. Gill had a solid work history in unskilled employment. She was vulnerable to Dehghani's advances. In all the circumstances, a sentence of nine years or a little less was appropriate, with a parole release date set at about one-third of the head sentence because of the particularly significant impact her imprisonment would have on her family, especially her severely disabled grandchild. Counsel made no other submissions as to any particular basis on which she should be sentenced.

[21]

[8] In sentencing Burling, the judge made the following comments. After noting Burling's antecedents, he observed that Dehghani was her de facto partner at the time of the offence. She travelled with him and her children to the UK in January 2007 where Dehghani secured approximately 80,000 ecstasy tablets weighing about 26 kilos and containing 5.2193 kilos of pure MDMA. The importation was more than 10 times the commercial quantity under the legislation. Burling and Dehghani vacuum sealed the drugs and secreted them in toy boxes inside four larger boxes which they despatched by post from two separate post offices in London to Gill at her residence near Ipswich. They had arranged that Gill, for financial reward, would accept and retain the drugs despatched to her residence. She was to be paid between $20,000 and $30,000 for the first delivery.

[22]

[9] Dehghani claimed a corrupt customs officer would ensure the intercepted parcels avoided Customs detection. But the drugs were detected by Customs in Brisbane. They were replaced with other material and put into reconstructed boxes and delivered to Gill. When Dehghani and Burling arrived back in Australia their possessions were searched. Dehghani was found to be in possession of despatch dockets from the post offices in the UK. Burling's role, though substantial and voluntary, was less than Dehghani's, who actually sourced the drugs and was to organise their distribution in Australia. Burling's role was nevertheless considerable. Dehghani was a domineering man with a particularly nasty disposition. He expected Burling to fall in with his plans but he did not coerce her. She recruited Gill. Burling packaged and despatched the drugs; she used her previous name; and she subsequently removed labels after collecting the packages from Gill. This was a huge importation of drugs which would have retailed for more than $1.5 million at street level.

[23]

[10] The judge observed that Dehghani was sentenced for this offence, together with money-laundering offences, to 10 years 10 months imprisonment with a non-parole period of six years and six months. Dehghani's sentence was reduced for his co-operation under s 21E Crimes Act 1914 (Cth) from 15 years with a non-parole period of nine years. Dehghani's overall criminality was substantially greater than Burling's. But she did not have the mitigating advantage of a plea of guilty or substantial co-operation. To secure parity with Dehghani, a 12 year sentence was appropriate, although lenient. After taking into account the matters referred to in

[24]

s 16A Crimes Act 1914 (Cth) and Burling's family situation, the judge fixed a non-parole period of seven years and three months, that is, at about 60 per cent of the head sentence.

[25]

[11] In sentencing Gill, the judge made the following comments. After noting Gill's antecedents, he observed that Gill agreed with Burling and Dehghani to have delivered to her residence parcels containing ecstasy tablets in return for between $20,000 to $30,000 for the first delivery. Further payments were to be made for any subsequent deliveries. This was a substantial sum of money for her at a time when she was in a financially tight situation. She attempted to conceal the boxes which were delivered to her home and addressed to her. She placed them in a spare room amongst other items, removing labels, and positioning them to avoid observation from a casual visitor. She enlisted the 19 year old Simich to help and he removed the boxes to his house. He had recently lost his father and was vulnerable. Gill made efforts not to leave fingerprints. She used an amateurish code when telephoning Dehghani to notify him of the arrival of the boxes. She must have realised that she had received a large quantity of drugs destined for distribution into the community.

[26]

[12] His Honour noted the matters set out in s 16A Crimes Act and Gill's upbringing and family situation. The care of her high-needs baby granddaughter would have to become the responsibility of the State because deterrence was an important consideration in sentencing. R v Oprea[2] was comparable. The maximum penalty was life imprisonment. The judge imposed a sentence of nine years imprisonment with parole after five and a half years, that is, at about 60 per cent of the head sentence.

[27]

[13] Both Burling and Gill were mature women without previous convictions. Both had families who would suffer from their imprisonment. But, as the primary judge noted, those matters were of little weight when sentencing those convicted of such a serious offence. The importation of ecstasy tablets in commercial quantities is regarded by the federal government as amongst the most serious of crimes. It carries a maximum penalty of life imprisonment. It is a crime which is difficult and costly to detect. Deterrent sentences must be imposed on those convicted of it. Neither Burling nor Gill showed remorse. Nor did they have the mitigating benefit of co-operation with the authorities. Burling's claim at sentence, that she may have co-operated with the authorities but was unable to do so as she was intimidated whilst on bail, was not a weighty mitigating feature in this case. Further, neither Burling nor Gill had the mitigating benefit of an early plea of guilty. Burling's role in the importation was more significant than that of Gill.

[28]

[14] True it is that, critical to the assessment of the criminality of an offender who is to be sentenced in an illegal drug network is finding the offender's role and level of criminality. In determining the appropriate sentence, this may be a more important factor than the quantity of drugs involved: Melikian v The Queen.[3] Courts have long recognised, for example, that low level couriers generally receive a lesser sentence than those at a higher level in the drug hierarchy: Tyler v The Queen.[4] The judge was not asked by any party to make any particular factual findings at sentence. All the findings made by the judge were well open on the evidence, including the finding that Burling was involved with Dehghani in the dispatch of the drugs. It is clear from his Honour's sentencing remarks that he was entirely familiar with the role played by each of Dehghani, Burling and Gill in this importation. Although the roles of Burling and Gill were less than Dehghani's role, his co-operation with the authorities was, at least at the time of his sentence, considerable. Both Burling and Gill played significant roles in the importation. Gill's role, although less than Dehghani and Burling's, was vital to the success of the importation. The primary judge's sentences recognised the different roles of all three offenders. His Honour did not sentence either applicant on any incorrect factual or legal basis.

[29]

[15] Any improper behaviour by Burling's former barrister, Mr Di Carlo, was not a matter which could mitigate her sentence. It is a matter which she should take up with the Legal Services Commission if she wishes to pursue it.

[30]

[16] The sentence imposed on Burling displayed appropriate parity with the sentence imposed on Dehghani. It was also supported by R v Kevenaar[5] and Grimwood v The Queen.[6] The sentence imposed on Gill showed appropriate parity, allowing for the additional mitigating features in her case, with the sentences imposed on Dehghani and Burling. It was supported by the sentences imposed in Oprea; R v Tran[7] and R v Jimson.[8]

[31]

[17] Although a non-parole period could have been set in both Burling's and Gill's case at 50 per cent of their head sentences, the sentences in fact imposed, with a non-parole period set at about 60 per cent in each case, did not make the sentences manifestly excessive.

[32]

[18] It follows that each application for leave to appeal against sentence must be refused.

[33]

[19] CHESTERMAN JA: On 21 December 2010 the court dismissed each applicant's appeal against conviction but deferred giving judgment on their applications for leave to appeal against sentence pending the receipt of any further submissions the parties wished to make arising out of the decision of the High Court in Hili v R; Jones v R [2010] HCA 45. Further submissions were delivered.

[34]

[20] The initial written submission was brief. It was that:

[35]

"... the ... Chief Justice sentenced ... on an incorrect basis. His Honour ... accepted the account of Dehghani to find that (Burling) was involved in negotiating with Gill as well as the packaging and shipment of the drugs. Given the lack of credibility of Dehghani ... (Burling) ought to have been sentenced on the basis that her role was less than this. ... a head sentence of between 10 to 12 years' imprisonment with release after service (sic) 5 to 6 years should be substituted."

[36]

[21] In oral argument counsel for this applicant did not expand upon the written outline and conceded that "a 12 year sentence ... was within ... range ... ." No submission was made with respect to the length of the non-parole period.

[37]

[22] The complaint that the Chief Justice sentenced on a wrong factual basis cannot be sustained. The applicant was sentenced after a trial in which facts relevant to the importation of the ecstasy tablets were thoroughly explored. The Chief Justice was well aware that the co-offender Dehghani was an unreliable and untrustworthy witness. His Honour's charge to the jury warned of that very consideration. After verdict and before sentence counsel who then appeared for the applicant did not advance any particular view of the facts of the applicant's involvement in the importation different to that found by the Chief Justice.

[38]

[23] This basis for challenging sentence has not been made out.

[39]

[24] In the supplementary submissions counsel for Burling submitted that in fixing a non-parole period equal to 60 per cent of the head sentence the Chief Justice had fallen into the error corrected by the High Court in Hili (at 44):

[40]

"... there neither is, nor should be, a judicially determined norm or starting point ... for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. More particularly, these are reasons enough to conclude that it is wrong to say ... "that the 'norm' for a period of mandatory imprisonment under ... Commonwealth legislation is between 60 and 66 %, which figure will be affected by special circumstances applicable to a particular offender"."

[41]

[25] Counsel referred particularly to the remark of the prosecutor at sentence:

[42]

"... that in the preponderance of federal offences involving the importation of drugs, that absent some particular mitigating (circumstance), of which there wouldn't really appear to be one in this case, a nonparole period of 60 per cent, or sometimes more, is a very (common?) outcome."

[43]

[26] The remark, and the fact that the non-parole period was equivalent to that proportion of the head sentence is relied on for the submission that the Chief Justice had fixed the non-parole period in accordance with the "norm" so that the sentencing discretion miscarried. The submission continued that the head sentence of 12 years was a sufficient deterrent and that "there was no need to fix the non-parole period beyond the halfway point of the sentence." It is said as well that the non-parole period did not reflect the finding that Dehghani was a "domineering man with a particularly nasty disposition and that he expected (Burling) to fall in with his plans".

[44]

[27] The starting point for the submission cannot be made out when regard is had to what transpired during sentencing submissions. The Chief Justice was referred to R v Ruha, Ruha & Harris; ex parte Commonwealth DPP [2010] QCA 10 which had been expressly approved by the High Court in Hili and to R v Chandler [2010] QCA 21, an appeal which followed Ruha and in which the Chief Justice presided. It was after reference had been made to those authorities that the prosecutor made the remark quoted. But the prosecutor said immediately before that statement that the phenomenon described was something that was "observe(d) empirically ...".

[45]

[28] This, I think, is no more than a reflection of the observation made by the High Court in Hili [54].

[46]

"... a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. ... "Sentencing patterns are ... of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that had been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence." ...."

[47]

[29] There is no substance in the submission that either the prosecutor or the Chief Justice was mistaken as to the relevant principle or mistakenly thought that there was some convention that the non-parole period should be between 60 per cent and two thirds of the head sentence. In Chandler it was said:

[48]

"[18] In R v Ruha, Ruha & Harris; ex parte Cth DPP, this Court reviewed extensively the authorities before and after R v CAK & CAL relating to the statutory sentencing scheme applicable to Commonwealth offences under the Crimes Act 1914 (Cth). At the conclusion of that examination, this Court summarised the position in the following terms:

[49]

"... Sentencing judges should take into account decisions which are sufficiently like the subject case to shed light on the proper sentence. That includes comparable decisions both in Queensland and in the other States and the Territories which shed light upon the proper orders, although sentencing judges should also take into account that both the head sentence and order for early release in such cases might have been influenced by inconsistent local sentencing practices which must be put to one side in sentencing for Commonwealth offences (It is not necessary in these appeals to consider the considerable complexities which may be thrown up in cases where it is necessary to impose sentences both for State and Commonwealth offences).

[50]

In the end, the proportion which the period to be served in prison bears to the whole term is not itself a separate and distinct object of any part of the sentencing exercise. Rather, it is the result of the sentencing judge's discretionary determination of both the appropriate sentence of imprisonment and the appropriate terms of the recognizance release order after taking into account all of the circumstances of the offence, rather than by applying or making adjustments to any rule of thumb."

[51]

[19] The underlying value of equality under the law is best served by reference to the guidance afforded by authoritative sentences of this Court or of the Courts of other States and Territories which concern comparable cases. In this way a sentencing judge may seek to achieve reasonable consistency in the overall sentence. In the light of the clarification afforded by the decision in R v Ruha, Ruha & Harris; ex parte Cth DPP, it can now be said that a sentencing judge should take into account comparable decisions of this State and of the other States and Territories bearing in mind that a non-parole period (which may reflect the influence of local sentencing practices influenced by local corrective services regimes) is an integral aspect of the sentence. Consequently, the issue for this Court in this case is whether the sentence which was imposed by the learned sentencing judge is manifestly excessive bearing in mind both the severity of the head sentence and the length of the non-parole period."

[52]

The Chief Justice was in fact referred to relevant comparable cases.

[53]

[30] Dehghani had been sentenced to a term of 10 years and 10 months' imprisonment with a non-parole period of six years and six months. The sentence had been reduced because of his promise to co-operate in the prosecution of his co-offenders: s 21E of the Crimes Act 1914 (Cth). But for that he would have been sentenced to a term of 15 years' imprisonment with a non-parole period of nine years.

[54]

[31] In passing sentence on the applicants the Chief Justice expressed concern that there had to be parity between the sentences imposed taking into account the lesser degree of Burling's criminality compared to Dehghani's, and the lesser culpability still of Gill's offending compared to the others. The Chief Justice expressed a view that 12 years' imprisonment was lenient in the circumstances but that no more could be imposed given Dehghani's sentence. The fixing of a non-parole period for Burling was part of the exercise in achieving parity. There was the same relative reduction in head sentence and non-parole period between the three offenders. It was this consideration, not the existence of some "norm", which led to the same proportionality in length of non-parole period in the three sentences.

[55]

[32] It is not submitted that the Chief Justice overlooked any relevant consideration or took any irrelevant one into account. It is not submitted that his Honour overlooked the circumstances of the offending or of the offender. Nor is it said that his Honour's assessment of the roles of the applicants and of Dehghani inter se was wrong, or that his Honour misapprehended the relative criminality of the offenders.

[56]

[33] In the end all that is said is that a sentence of 12 years' imprisonment with a non-parole period of six years should have been imposed. In the absence of demonstrated error in the exercise of the sentencing discretion the submission cannot be accepted. The application cannot succeed by showing only that a shorter non-parole period might have been appropriate. The applicant must demonstrate that the sentence imposed is disproportionate to the offending and the circumstances of the offender or that some discernable error in the exercise of the sentencing discretion has occurred.

[57]

[34] Neither has been made out. The application for leave to appeal against sentence should be refused.

[58]

[35] The applicant Gill was sentenced to nine years' imprisonment with release on parole fixed after she had served five years and six months. The submissions made initially on her behalf accepted that a term of nine years' imprisonment was within the appropriate range but contended that Gill's:

[59]

"... unblemished previous history, limited role, vulnerability to Dehghani's direction, the incarceration's effect on her family and delay since the commission of the offence warrant a shorter non-parole period."

[60]

[36] The supplementary submissions advanced on behalf of Gill are to the same effect as those made on behalf of Burling. They should be rejected for the same reasons. The Chief Justice did not fix a non-parole period by reference to a "norm of 60 per cent of head sentence". His Honour expressly referred to the need to treat the fixing of Gill's non-parole period in the same manner as Burling's had been fixed. His Honour's concern was with parity not some abstract "norm". The Chief Justice did not overlook the factors personal to the applicant which are relied upon in the submission. His Honour expressly referred to them and noted that he considered the matters made relevant by s 16A of the Crimes Act.

[61]

[37] Gill has not demonstrated any error in the exercise of the sentencing discretion. Indeed no attempt to show such an error was made. Once it is understood that the Chief Justice did not proceed by reference to "the norm" any criticism of the sentence lacks substance.

[62]

[38] It is, perhaps, worth pointing out two factors relevant to both applications. The first is that having criticised the sentences on the basis that the non-parole periods were fixed by reference to an impermissible norm the applicants sought to have the non-parole period fixed by reference to what is the "norm" recognised by state sentencing legislation.

[63]

[39] The second factor is that the submissions advanced on behalf of both applicants emphasise their personal circumstances, social and financial disadvantage, subservience to Dehghani in the case of Burling and their good character apart from the commission of this offence. It is submitted that these factors should have mitigated the length of the non-parole period included in the sentences.

[64]

[40] The answer lies in the need to impose sentences of such severity as to deter likeminded others from embarking upon the pernicious activity of dealing in drugs. The drugs in question are rightly described as dangerous. They corrode the fabric of society. Deterrence is needed not just in the form of substantial head sentences but also in the length of time an offender must spend in actual custody.

[65]

[41] It is a melancholy fact that it is just such people as the applicants who are tempted by the huge profits to be made from successful large scale drug transactions to participate in them. The need for deterrence outweighs any consideration of personal hardship.

[66]

[42] The application for leave to appeal against sentence should be refused.

[67]

[43] PHILIPPIDES J: I agree for the reasons stated by Chesterman JA, and the additional reasons of the President, that each application for leave to appeal against sentence should be refused.

[68]

[1] (2010) 272 ALR 465; [2010] HCA 45.

[69]

[2] [2009] QCA 184.

[70]

[3] [2008] NSWCCA 156, [42].

[71]

[4] [2007] NSWCCA 247; (2007) 173 A Crim R 458, [79]-[80]; [2007] NSWCCA 247.

[72]

[5] (2004) 148 A Crim R 155; [2004] NSWCCA 210.

[73]

[6] [2002] WASCA 135.