R v Ceissman [2001] NSWCCA 73 | Case summary

R v Ceissman [2001] NSWCCA 73 | Case summary | Zoe

1 WOOD CJ at CL: On 6 October 2000, the respondent pleaded guilty, in the District Court, to a charge under s 233B(1)(d) of the Customs Act 1901 (Commonwealth) for being knowingly concerned in the importation of a quantity of cocaine, being not less than the trafficable quantity applicable for that substance. Following that plea, he was sentenced by Solomon DCJ to a term of imprisonment of three years, with a non-parole period of eighteen months. 2 The Commonwealth Director of Public Prosecutions now appeals against that decision pursuant to s 5D of the Criminal Appeal Act 1912, upon the grounds of leniency and also to correct an error in the formulation of the sentencing order, so far as non-parole period was fixed rather than the recognisance release order that was required by s 19AC of the Crimes Act 1914 (Commonwealth). 3 On 18 January 2000, a package addressed to the respondent was intercepted at the Australia Post Mail Handling Unit at Mascot. Concealed within a teddy bear, inside this package, was an amount of cocaine powder with a pure net weight of 344.4 grams, the street value of which was estimated to be between $137,000 and $172,000. 4 On 21 January, Australian Federal Police Agents arranged for a controlled delivery of the package to the respondent. When they later executed a search warrant at his home, the package, and the teddy bear which had been removed from it, were located. 5 In a recorded interview, the respondent admitted that he had signed for the package and had removed the teddy bear from it. He also admitted that he had known something was coming, that he had received two telephone calls that day relating to it, and that he had suspected that there were drugs in the bear, as well as in other toys contained within similar parcels that he had received on several prior occasions. 6 He acknowledged that he had received payments in the sum of $50 for receiving these packages and for holding them until they were picked up. He also acknowledged that he had remitted to the United States of America monies provided by the people who ultimately collected the packages. 7 Although uncertain of the number of times on which this had occurred, he acknowledged that sums in the order of $9000 had been involved in the various bank transfers that he had arranged. Whether on this occasion he had remitted monies for the consignment was not shown. In his favour, the matter may be properly approached upon the basis that his role for this transaction was confined to receiving and holding the package until collected from him. 8 In his remarks on sentence, Solomon DCJ correctly noted that the offence was serious, a circumstance reflected in the penalty provided by the Customs Act. His Honour also noted that there was a need to deter others by indicating that those, who deal in the trafficking of cocaine, would be severely dealt with and that cocaine causes many problems to the community. So much is self-evident and it has been the subject of consistent judicial pronouncement. 9 His Honour acknowledged the guideline judgment of this Court in Wong and Leung (1999) 108 A Crim R 531, but decided, it would seem by a reference to the subjective circumstances of the respondent, that this case fell "clearly outside" the guideline. 10 The guidelines in Wong and Leung, it is to be observed, were set primarily on the basis of existing sentencing patterns, and were intended to apply to couriers and persons low in the hierarchy of importing organisations. In relation to mid level traffickable quantities (200 grams to one kilogram), a range within which the present case falls, the guideline was one of imprisonment for six to nine years. A schedule of 133 decisions provided by the appellant in this appeal supports the sentencing pattern identified. 11 The guideline, it may be noted, takes into account the absence of remissions in this State, a matter requiring adjustment in accordance with s 16G of the Crimes Act 1914: See Harvey (2000) NSW CCA 253 and Irusta (2000) NSW CCA 391. 12 It is not entirely clear, so far as his Honour observed in his closing remarks on sentence, that he had made allowance on this account, whether these decisions were fully appreciated. If by this remark he meant that he had further discounted the guideline by reason of s 16G, then there would have been an error in principle. 13 In departing from the range suggested as appropriate for a mid range traffickable quantity, his Honour observed that the decision in Wong v. Leung was "merely to be used as a guideline". This is to understate to some degree, its effect as a considered pronouncement of this Court. It is true that guideline judgments are not meant to be applied rigidly in every case or to lay down binding precedent from which there is never to be a departure. They are, however, intended to be indicative of the range of sentence that was regarded as appropriate by this Court following its considered examination of the authorities and of sentencing principle. See Jurisic (1998) 45 NSWLR 209 at 220, and Chua (2001) NSW CCA 50 at par 19 per Heydon J. 14 While a sentencing Judge does retain a discretion within the guidelines, including a discretion to depart from them, if the particular circumstances of the case justify (see Wong and Leung per Spigelman CJ at 555-556), this Court does expect the reasoning for such a departure to be articulated with some precision. 15 It also expects such a departure to be well based in fact and to pay respect to proper sentencing principles. It is not to be overlooked that an important purpose of a guideline judgment is to promote greater consistency in sentencing, and that an equally important purpose is to promote the general element of deterrence: See Henry (1999) 46 NSWLR 346 at 359, and 386 to 387; and see also Cadd (1997) 94 A Crim R 466 at 511. 16 This latter consideration is of particular significance in narcotics cases (see Wong v. Leung at 553), having regard to the consistent line of authority as to the need for sentences, in such cases, to reflect both individual and general deterrence. That line of authority goes back as far as Tait (1979) 46 FLR 386 at 399, and has been taken up in decisions such as Benais (1999) NSW CCA 236; Stead (1999) NSW CCA 41; Laurentiu and Becheru NSW CCA 1 October 1992; Manchukingkan NSW CCA 20 December 1990; Budiman NSW CCA 8 September 1998; and El Karhani (1990) 21 NSWLR 370. These decisions also confirm the point that no particular leniency is to be extended to those who perform lesser tasks in the importation chain since, without their active co-operation and assistance, the trade in narcotics would collapse. 17 Before parting from the indicative effect of guidelines in Wong and Leung, it is necessary to acknowledge that it applies to cases dealt with following conviction, as well as those dealt with upon a plea of guilty. No assumption was made one way or another in that regard. See Karacic (2001) NSW CCA 12 at par 50, and in Ngui (2000) 111 A Crim R 593 at par 17. They do recognise explicitly that there will be cases such as Chua (2001) NSW CCA 50, where the plea of guilty is entered in circumstances sufficient to justify a sentence below the range. 18 The present case is, however, quite unlike Chua, in that the respondent's conviction was inevitable, and while his plea did have a significant utilitarian value, it was not a case of him providing admissions or assistance that were essential to the prosecution case. 19 The critical question, it seems to me, in the light of these decisions, and of the significant departure from the guideline, is whether that departure was sufficiently explained and justified by reference to the subjective facts. In my view, it was not justified, and I can only assume that his Honour allowed himself to be unduly swayed by an overly sympathetic view of the respondent's background, and also failed to give proper effect to the need for general deterrence. 20 The respondent did have a deprived background, and had suffered an undeniable personal tragedy relating to the use of drugs by his parents, which resulted in their deaths when he was only eleven years of age. It was, however, to my mind, a considerable over-statement for his Honour to have described the case in terms suggesting that it involved a tragic background that was absolutely unique so far as he was aware. 21 It was certainly proper for his Honour to have taken into account, and to have given appropriate weight to the subjective circumstances referable to the applicant, including: (a) His early plea; (b) The existence of the remorse that was apparent from the interview; (c) The fact that he had undertaken the responsibility of caring for his young brother and for a time, his young cousin, despite his relative youth; (d) his not unfavourable criminal antecedents and his attempts to work, although I note that his Honour's description of him having performed "sterling work in the community" appears to have had no factual basis; (e) The assessment of Mr Taylor, a clinical psychologist, that he suffers from a condition which he described somewhat vaguely as a "rather depressive and passive-aggressive personality adjustment" as well as symptoms of an anxiety disorder that Mr. Taylor thought reactive to his current legal situation;

22 These matters do, however, need to be kept in context. In that regard, it appears to me that the extent to which a responsible attitude to life was demonstrated by the fact of his assumption of care for the younger brother, needs to be qualified by the fact of his involvement in drug trafficking, an activity which poses such an obvious and significant risk for every young member of the community. 23 Those matters also needed to be considered in the light of the wider sentencing principles applicable to those engaged in serious trafficking in narcotics. 24 What his Honour appears to have significantly overlooked was the fact that this was not an isolated lapse by the respondent. He had lent himself to an ongoing system of importation in which he played an important role in the reception of the drugs once they arrived in this country and their delivery to those whose interest was to place them in the marketplace. Although, as I have observed, it was not shown that he had actually handled the monies involved in this case in the purchase and postage of the drugs involved, on his own admission, he had performed that task in relation to other importations. 25 His involvement in this activity was not due to any personal addiction to drugs, but it was one undertaken purely for financial gain, albeit in a paltry sum, to supplement the welfare payments that he was receiving for himself and his younger brother. 26 Of course, he is not to be sentenced for any wider criminality than that to which he pleaded guilty, but equally, the present case cannot be dismissed as an isolated lapse on his part. 27 As was made clear in Olbrich (1999) 108 A Crim R 464, it remained relevant to have regard to what it was that the evidence disclosed as to the respondent's activities in respect of this importation. It was important in particular that his Honour avoid falling into the trap of categorising him in a way that risked obscuring that assessment. In this case, it seems to me, his participation in the importation was essential to its success. 28 His Honour seems to have overlooked these several important considerations and to have fallen into error by the generalisation that the respondent was "at the very low end of the importation" without specifically considering exactly what it was that he had done. 29 Next, it appears to me that his Honour was at risk of mis-applying the decision in Fernando (1992) 76 A Crim R 58, referred to with approval in Stone (1995) 84 A Crim R 218. As I endeavoured to explain in Fernando, the eight propositions there enunciated were not intended to mitigate the punishment of persons of Aboriginal descent, but rather to highlight those circumstances that may explain or throw light upon the particular offence, or upon the circumstances of the particular offender which are, referable to their Aboriginality, particularly in the context of offences arising from the abuse of alcohol. 30 The present is not such a case, nor is it one which needs to be understood as having occurred in a particular local or rural setting, or one involving an offender from a remote community for whom imprisonment would be unduly harsh because it was to be served in an environment that was foreign to him or her. 31 That Fernando is not to be regarded as a decision justifying special leniency, merely because of the Aboriginality of the offender, was recognised in Hickey NSW CCA 27 September 1994 where Simpson J noted that the first of the propositions stated by me in that decision "is that sentencing principles are non-discriminatory in that they apply to all accused without differentiating by reason of the offender's membership of a particular racial or ethnic group". This proposition is however varied by the recognition that those factors which constitute the disadvantage, and which may arise by reason of membership of the particular group, may have a role to play in the sentencing determination. 32 The principles stated should not be elevated so as to create a special class of persons for whom leniency is inevitably to be extended, irrespective of the objective and special circumstances of the case. To do so would itself be discriminatory of others. 33 In the instant case, I am unable to see the existence of any factor arising from the fact that the respondent's grandfather was part aboriginal, that would, in accordance with Fernando, attract special consideration. That does not mean that his subjective circumstances were to be ignored or diminished. It simply means that Fernando did not require the application of any consideration additional to those applicable in every case of an offender with a deprived background. 34 It also appears to me that his Honour attached undue weight to the respondent's youth and good character. Again, it is not to be overlooked that youth and the possession of a prior clear record, while of relevance, are of less significance in drug trafficking and importation offences, than in other cases: as to youth, see Lawson, Wu and Thapa (1997) 98 A Crim R 463 and as to prior character see Ferrer-Esis (1991) 55 A Crim R 231 at 236. 35 Regrettably it is often the case that organisers within the drug trade will deliberately recruit young people and people of prior good character to perform the overt acts that are required for a successful importation so as to reduce the risk of detection of the operation. For that reason the deterrence aspect is important. 36 It next appears to me that his Honour gave undue weight to the effect of the respondent's sentence upon his brother. While this is a matter to be taken into account by reason of s 16(2)(p) of the Crimes Act 1914, it is not a provision which alters the Common Law principle that the effect of a sentence upon an offender's family is relevant only in exceptional circumstances. See Adami (1989) 42 A Crim R 88; Sinclair (1990) 51 A Crim R 418 at 430; and Carmody (1998) 100 A Crim R 41 at 45. 37 As Gleeson CJ pointed out in Edwards (1996) 90 A Crim R 510 at 515, there is nothing unusual in sending to prison offenders who are bread winners or who have the responsibility for the care and support of children. See also Chan (1999) NSW CCA 103, and Bednarz (2000) NSW CCA 533 where Simpson J observed that the Common Law rule was no meaningless incantation, and that it was essential that third party hardship be taken into account only in cases that were truly exceptional. 38 I can in fact see no such hardship in this case given the age of the respondent's brother and the fact that he has left school and is in receipt of welfare benefits on his own account. 39 Finally, it appears to me that his Honour may have made a double allowance for the subjective circumstances by reducing the term of the total sentence for the mitigating circumstances, and by then fixing what he referred to as a "non-parole period" of eighteen months, equivalent to only fifty per cent of that term. By reason of the length of the head sentence which he fixed, the case was one that would have required a recognisance release order at the end of the period of eighteen months rather than the fixing of a non-parole period. 40 Irrespective of that error, I can see no good reason for a departure from the usual range for a non-parole period of between sixty and sixty-six per cent, that being the range suggested as appropriate in El Karhani (1990) 21 NSWLR 370; Bernier (1998) 102 A Crim R 44 at 49; and Pang (1999) 106 A Crim R 474. 41 The instant case was not one in which the respondent required help to overcome a problem of drug or alcohol addiction. Nor was it one where there were present features such as special hardship attributable to the manner in which the sentence would be served, or where there was a special need for post-release supervision, or any other circumstance that would justify the fixing of a non-parole period less than sixty per cent of the overall term. 42 A sentencing Judge must not overlook the fact that release on parole has a special significance and purpose. It is not intended merely as a method of extending additional leniency for mitigating circumstances, that are more properly taken into account in fixing the head sentence. 43 It remained important for his Honour, in this case, to maintain a reasonable proportionality between the sentencing order made, and the circumstances of the offence viewed objectively, and not to allow the subjective circumstances to outweigh its established seriousness: Rushby (1977) 1 NSWLR 594 at 597-598; Readman (1990) 47 ACrimR 181 at 185; Dodd (1991) 57 ACrimR 349 at 354; and Hallocoglu (1992) 29 NSWLR 67 at 79. 44 In summary, I can only assume that his Honour lost sight of this important consideration, and failed to give effect to the sentencing policy that requires deterrence sentencing for serious drug offences, and also allowed his assessment of the subjective circumstances to distract him both in fixing the head sentence and the non-parole period. Manifest leniency and failure to give effect to the sentencing principles to which his Honour noted at the outset have in my view been shown. 45 The extent of the leniency is such that this Court should, in my assessment, refrain from exercising the discretion which is available to it to allow a sentence, even though erroneous, to stand. 46 I accept that the subjective circumstances were such as to permit some departure from the low end of the guideline but nowhere near as great a departure as that involved in the sentencing order here. The principle of double jeopardy applies that requires this Court on a Crown appeal to impose "the least sentence that could properly have been imposed upon the respondent at first instance": Rose NSWCCA 23 May 1996 at 3; Howland (1999) NSWCCA 10 at para 7. 47 Clearly, a sentence of full time custody was required that was of a severity appropriate to all the circumstances of the case and, in particular, to those specified in S16A (2) of the Crimes Act 1914, the relevant ones of which have been mentioned above. 48 I would propose that the sentence below be quashed and that the respondent be sentenced, for the offence to which he pleaded guilty, to four and a half years imprisonment to date from 6 October 2000 and to expire on 5 April 2005. I would fix a non-parole period of two years and nine months, similarly to date from 6 October 1990 and to expire on 5 July 2003. 49 IPP AJA: I agree. 50 SIMPSON J: I disagree. No doubt, guideline judgments play an important role in achieving consistency in sentencing. Regrettably the circumstances in which offences are committed, and the circumstances of offenders, lack consistency. For this reason, it has been repeatedly emphasised that guideline judgments are to be applied flexibly. They are not intended to operate as a strait-jacket on a sentencing judge. They are not intended to override the discretion and, indeed, the obligation a sentencing judge has to balance all the competing factors that go into a sentencing decision. See R v Jurisic (1998) 45 NSWLR 209 at 220 C - 221 E (per Spigelman CJ); R v Henry and Others [1999] NSWCCA 111, 12 May 1999; 46 NSWLR 346 at paras 169-170, 175, 210, 270-271; R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340 at para 141. 51 These passages are not formulaic, empty incantations. They have true substance and content. Exceptional cases are to be treated exceptionally. I accept that drug offences are serious and need to be treated seriously. Notwithstanding those observations, the circumstances of this case are exceptional, and this case should be treated exceptionally. 52 Having regard to the views of the other members of the Bench, it is appropriate to state those factors that make this an exceptional case. 53 First: the youth of the respondent. He was barely 20 at the time of the offence. Youth is a factor that, in appropriate circumstances, may be taken into account in a sentencing decision. I appreciate that special considerations apply when youthful offenders commit drug offences. They are not, however, deprived of the opportunity to rely on their youth. Here, the respondent's youth must be taken into consideration, in conjunction with the circumstances of his life to date - to which I will shortly refer - and the remarkable absence of any significant criminal history. 54 Despite the most inauspicious of beginnings, he has in the past been found guilty only of maliciously destroying property, for which a bond was imposed; driving with a suspended driver's licence, for which he was fined, and disqualified; and having custody of a knife in a public place, in respect of which no conviction was recorded. In the circumstances of his life, that is a quite remarkable record. Subsequent to this offence he was involved in an assault whilst acting in protection of his young brother. 55 Second: the respondent's personal background and circumstances. He grew up in extreme poverty. He was the eldest child of drug-addicted parents. The relatives with whom he was placed were his grandparents. His grandmother died when he was 10 years old. Within the next year, in separate events but within a couple of weeks of one another, both parents died of drug overdoses. He witnessed both of these deaths. Prior to their deaths, he had witnessed a number of overdoses and, on two occasions, had called ambulances for his parents. On another occasion, he witnessed his grandfather using CPR to revive his father. When he was 14, his grandfather died. 56 Both parents were imprisoned on a few occasions because of their drug addictions, and his mother worked as a prostitute. He witnessed serious physical violence between his parents. Unsurprisingly, these circumstances impacted upon his emotional wellbeing and on his behaviour as a child. His education suffered. This combination of circumstances is available to be taken into account in mitigation of the respondent's criminal culpability not because he is Aboriginal, but because, in the manner outlined by Wood J, as he then was, in R v Fernando (1992) 76 ACrimR 58, of the combination of circumstances of deprivation. 57 Third: given the circumstances, the respondent has shown a surprising level of responsibility. He does not consume alcohol to excess. He does not use drugs, although he has used some cannabis in the past. For more than a year as at the time of sentencing, he had taken on quasi-parental responsibility for his young brother; for even longer, he had provided a home to a young cousin (aged 12) who was rendered homeless by the imprisonment of his father. 58 Ironically, the Crown has argued that the respondent's very resilience operates against him. In my view, he deserves credit for his conduct and responsibility to date. It seems that, on the Crown case, he would have been better off had he earlier succumbed to the tragic circumstances of his background. 59 Fourth: although the motivation for the crime was financial this was no case of greed, as is sometimes seen in this court. The respondent was, as the sentencing judge accepted, to be paid a sum of $50 for his part in this offence. He was living and supporting his brother in poverty. $50 represented a considerable sum to him. It was described by the Crown Prosecutor in this Court as "paltry", and the very paltriness of the sum that he was to receive reflects his circumstances at the time. In my opinion, it also reflects his role in the importation. 60 Fifth: I have already referred to the respondent's prior relatively good record but it stands as an independent factor for which he is entitled to credit. 61 Sixth: the evidence of his psychological and physical condition - the respondent described himself emotionally as "a wreck", and this is hardly surprising in the circumstances I have briefly recounted. A psychological report suggested, again unsurprisingly, that he was suffering from an anxiety disorder resulting from the drug charge, and some instability in his personality functioning, as a result of the family dysfunction in his formative years. He was described as vulnerable and impulsive, with poorly developed behavioural and emotional controls. He suffered significant injuries at the age of nine in a motor vehicle accident, and still suffers asthma and severe headaches as a result. He has undergone surgery for a number of bone fractures. 62 Seventh: the respondent gave evidence in the sentencing proceedings, which the sentencing judge obviously accepted as truthful. It is consistent with what was contained in the reports and referred to in the judgment. 63 Eighth: the sentencing judge, who is a very experienced judge, twice described the respondent's background as the most tragic he had ever seen. In my opinion, this Court should not lightly depart from such a finding nor its implications. In a shorthand fashion, it evokes the Fernando principles. 64 Ninth: the court was dealing with a single instance of an offence only. True it is, there was some evidence of a course of conduct, but that is relevant only to negate any possible claim that there was an isolated occurrence. No such claim was made in the District Court or in this Court. 65 Tenth: the statement of facts, put before the sentencing judge by the Crown, demonstrates that the respondent played a limited role in this importation. 66 Eleventh: the respondent pleaded guilty at an early stage. If he were being sentenced as a state offender, on the authority of R v Thomson and Houlton [2000] NSWCCA 309, he would be entitled to a discount of up to 25 percent of the sentence imposed. While that judgment does not apply to Commonwealth offenders, it is of some assistance in determination of the appropriate weight to be given to an early plea of guilty. In this respect, I appreciate that the case against the respondent was overwhelming, but that is not a matter that affects the Thomson and Houlton decision. 67 The next matter I wish to refer to concerns Crown appeals. It is well established that Crown appeals should be rare and should only be lodged after the DPP has had regard to all relevant factors: Griffiths v R (1977) 137 CLR 293, at 310 per Barwick CJ, p329 per Murphy J; see also R v Tait and Bartley (1979) 46 FLR 386; R v Osenkowski (1982) 30 SASR 212; R v Allpass (1993) 72 A Crim R 561; R v Crowdey [1999] NSWCCA 24, unreported 5 March 1999; R v Baker [2000] NSWCCA 85, unreported, 17 March 2000. 68 In the last mentioned case (Baker) Spigelman CJ drew attention to the particular difficulty that confronts the Crown in presenting an argument that depends upon the weight given or not given to particular relevant circumstances. That is this case. The essence of the Crown's argument was that excessive weight was given to the subjective circumstances. It was from that, and from the departure from the guideline sentences promulgated in Wong and Leung, that the Crown sought to have the Court conclude that the sentence imposed was manifestly inadequate. In my opinion, on proper analysis, the Crown submission depended upon too rigid an application of the guideline without appropriate regard to the flexibility that necessarily accompanies the application of guideline judgments. 69 In R v Lattouf (unreported, CCA, 12 December 1996) Mahoney JA said: "If justice is not individual, it is nothing." This was an exceptional case that warranted, and indeed called for, individualised justice. In my opinion, the sentencing judge is not only well within the limits of his legitimate discretion in sentencing the respondent; the sentence imposed was, in all the circumstances, eminently fair and reasonable. As I understand the Crown's submissions - and certainly the oral submissions - no challenge was made to the proportion between the head sentence and the non-parole period and, accordingly, I make no comment on that. 70 Subject only to the appropriate adjustment to the non-parole period stated in the sentence, I would dismiss the Crown appeal. 71 IPP AJA: The order of the Court will be as indicated by Justice Wood. **********

R v Ceissman

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