Solicitors for appellant: Director of Public Prosecutions

Counsel for respondent: Mr P N Waye with Mr R C Bleechmore

JUDGE1 LEGOE ACJ This is an application for leave to appeal by the Director of Public Prosecutions for the Commonwealth against a sentence imposed in the District Court for the crime of importing a prohibited import, namely, heroin, contrary to s.233B(1)(b) of the Customs Act (1901). The sentence imposed by the learned sentencing judge was imprisonment for eight years with a non-parole period of four years.

The respondent is a resident of Singapore. He was in financial difficulties. He came into contact with a person from Bangkok and agreed to act as the courier for the purpose of bringing a quantity of heroin into Australia. He was to receive the sum of ten thousand Australian dollars as his reward.

He carried the heroin in his pockets, on his body and in his shoes. He was apprehended at the Adelaide Airport and was found to be carrying 2,003 grams of heroin. There was evidence that that quantity of heroin possesses a value of between $600,000 and just over five million dollars, depending upon the manner of its sale and distribution. I infer that the amount which the respondent's principals might have expected to gain from the transaction was in the region of $600,000 and so the respondent's reward was only a small proportion of that amount.

The respondent co-operated with the police. He told them what he knew about the origin and modus operandi of the transaction but, in truth, he did not know a great deal; he was merely a courier and was, as one might expect, kept in ignorance of most of the relevant matters, including the true identity, no doubt, of his principals.

The assessment of the information which he was able to give made by the police is contained in a letter from the Australian Federal Police to the Director of Public Prosecutions, which was before the learned sentencing judge. Some detail is given in the letter as to the information given by the respondent. It was assessed in the following way: "On Tuesday, 15 June 1993, after Tee's first appearance and

after negotiations with Tee's solicitor, Mr Michael Waye, Tee agreed to take part in an induced interview with a view

to securing Tee as a witness in relation to the prosecution of Louey. Tee took part in that interview and supplied the information as detailed in the preceding paragraph. Tee was not in possession of any information that could be used or was of assistance in the prosecution of Louey. The information supplied by Tee in relation to his Bangkok controller, Jimmy Yeo, is unable to be assessed at this time, as no results of any enquires have been received."

I mention that Louey was the person suspected of being or believed to be the Australian dealer to whom the heroin was to go.

Before the learned sentencing judge, counsel for the prosecution furnished the judge with the following assessment of the information which had been provided by the respondent. He said: "I think, as my friend has pointed out, Tee was simply kept in the dark, for want of a better term, in this operation as a courier, and because of that, the information he has given the police, even if it was given in good faith, has not

resulted in the arrest of any further offenders. He was unable to identify any co-accused, nor was he able to give evidence at subsequent trials of co-accused. In fact, the matters disclosed in the interview have not, in fact, led to any new or further lines of investigation in Australia."

The respondent pleaded not guilty to the charge in the District Court. There had been some negotiations at the committal stage as to whether a plea of guilty to a charge of possession might be accepted by the Director of Public Prosecutions. There was also a problem about what was said to have been a duplicitous information, but, in the end, the respondent pleaded guilty in the District Court before a date for trial had been fixed.

This was a grave crime. The quantity of heroin was very considerable. The seriousness with which the legislature views crimes involving the importation of heroin and like drugs is indicated by the maximum sentence of life imprisonment which is provided. The courts have recognised that deterrence is of primary importance in framing an appropriate sentence for crimes of this kind.

It is the clear policy of the legislature to deter the importation of illegal drugs into Australia. The courts are expected to play their part in implementing the policy by imposing sentences which will operate as a realistic deterrent to persons who are tempted to engage in this trade.

It is well-known that there are drug merchants operating in other countries, particularly countries from which illegal drugs originate, who seek to make very substantial profits by the export of those drugs to Australia and other like countries. Their ability to do that depends upon the availability of couriers who are prepared to take the risks involved in order to gain the financial rewards which are associated with this trade. There is a clear need, therefore, for the courts to impose sentences which will operate as an effective counterbalance in the minds of persons who are tempted to be couriers, to the financial rewards which can be offered them by the drug merchants in other countries.

The learned sentencing judge expressed awareness of the importance of deterrence in relation to this type of crime, in his remarks to the respondent when passing sentence. His Honor then went on to indicate that were it not for the plea of guilty and the respondent's co-operation, he would have imposed a sentence of 12 years imprisonment with a non-parole period of 6 years. He reduced that to the sentence which was actually imposed, in recognition of that plea of guilty and the co-operation with the police.

There are cases in which the courts reward an informer whose information is effective in combating crime, and bringing about the apprehension and conviction of serious offenders, by making very considerable reductions in the sentences which would otherwise be imposed. That reward is offered as part of the process of combating crime. The purpose is to induce criminals in other cases, to co-operate with the authorities in a way which will be effective in combating crime. It is not a recognition of merit on the part of the offender, so much as an inducement to others to do likewise. Rewards of that nature are therefore available only to offenders who are in a position to communicate information to the authorities which is of value for that purpose.

In the present case, the learned judge seemed to approach the matter somewhat differently. He said addressing the respondent when passing sentence, "However, since your arrest, you have co-operated with the authorities, and have told them all of what you do know. You could do no more than tell all you know. If you did not know as much as some, or perhaps as much as the authorities had hoped for, you should not be expected to suffer so far as penalty is concerned on that account. Information you have given to the authorities might yet result in other prosecutions here or elsewhere, but it is too early to tell."

In truth, on the information which was put before the learned sentencing judge, there really seems little or no prospect of any information given by the respondent resulting in effective prosecutions in Australia, and so far as one can judge, elsewhere either. I think that the learned judge was in error, in suggesting, as His Honor appears to have done, that the respondent was entitled to a discount for the sort of information which he offered, of the same order as if he had been in possession of information which would have been more effective in combating crime, and in leading to the apprehension and prosecution of criminals.

I refer to the way in which this issue was treated by the Court of Criminal Appeal in Western Australia in the case of Lau Pohing v R, which was an unreported decision delivered on 31 May 1993. In that case Pidgeon J delivering the leading judgment for the Court of Criminal Appeal said, "If the information given does in fact lead to the arrest of a participant substantially involved in the enterprise, that fact must be reflected in sentencing. If a person does not have that information, and for that reason is unable to give it, then he cannot receive that extra discount. It would erode the very reason for the discount which was equally available to a person that was prepared to co-operate, and did not have any knowledge to enable him to so co-operate."

I refer also to R v Ferrer-Esis, (1991) 55 A Crim R 231, a decision of the Court of Criminal Appeal of New South Wales, where Hunt J, delivering a leading judgment said, "The judge appears to have taken into account in mitigation, the fact there was not much more the respondent could do than he did, as regards co-operation with the authorities. The fact is that the respondent did nothing at all by way of co-operation. There can be no discount afforded in accordance with the authorities, if no co-operation was in fact given, however much the particular prisoner may have been prepared to co-operate if he could."

The principle established by those cases is that the sort of discount which is afforded to an informer for giving information which effectively leads to combating criminal activity, or the apprehension and effective prosecution of criminals, is available only to a person who has information which is so effective, and communicates that information to the authorities. If he does not have that information he cannot gain the discount. I think that the principle upon which the judge acted in that regard is therefore erroneous.

Mr Waye, who appeared for the respondent before us, referred to s.21E of the Crimes Act of the Commonwealth. That section, however, has no application to the present case. There is no evidence of any undertaking of the kind referred to in s.21E, and in that regard I refer to R v Burns Scholes and Tietze, a judgment of the Court of Criminal Appeal of Victoria, unreported and delivered on 9 November 1992. The learned sentencing judge did not purport to reduce the sentence by reason of a consideration mentioned in s.21E.

The question in the present case is whether the sentence imposed by the learned sentencing judge is inadequate to the extent necessary to attract the intervention of a Court of Criminal Appeal, and whether the circumstances are such as will incline this court to intervene on a prosecution appeal. Having regard to the principles upon which prosecution appeals are dealt with, and I refer in this respect to the well-known cases of which Osenkowski 5 A Crim R 394 was the first, as I have said, it is of primary importance that sentencing standards be maintained for this type of offence, and that those standards be maintained at a level which will operate as an effective deterrent to persons who might be tempted to act as couriers in bringing dangerous drugs into this country.

Having regard to that goal, and having regard to the standards of punishment which have been adopted throughout Australia in regard to offences of this kind, and to the maximum prescribed by the statute, I have reached the conclusion that the point at which the learned judge started, namely, a sentence of 12 years imprisonment, was far too low. I think that if it were not for the plea of guilty, and the co-operation with the police, for which the respondent was undoubtedly entitled to some reduction, a sentence of 16 years imprisonment would have been the proper sentence for this crime.

The plea of guilty and the co-operation with the police were factors of importance to be taken into account. It is true that the respondent was caught red-handed, and it might seem had little prospect of mounting a successful defence. Nevertheless, even a person with an overwhelming prosecution case against him can put the State to the expense of trial. One of the purposes of the discount for a plea of guilty is to encourage persons who have little or no prospect of success, and who are conscious of their guilt, to confess their guilt, thereby saving the State the expense of trial, and freeing the criminal court lists of cases which should not require trial.

I think, therefore, that there has to be a significant discount for the plea of guilty, as well as for such co-operation as he was able to give the police. There is no doubt he told the police all he knew, although that was so little as not to be of much value in combating crime. Although, for the reasons which I have given, the appellant could not be given the substantial allowance which is given to valuable informers, he was entitled to some allowance for his co-operation. By reason of the plea and the co-operation, I would have thought that the initial figure of 16 years should be reduced to 12 years. A non-parole period would then have to be fixed.

The head sentence attracts good conduct remissions of up to a third. The non-parole period does not attract good conduct remissions, pursuant to s.19AG of the Commonwealth Crimes Act. It follows that the non-parole period should be somewhat less than the head sentence reduced by one-third.

Having reached the conclusion that the sentence is inadequate it becomes necessary to consider whether this court ought to intervene on a prosecution appeal. I have reached the conclusion that it should. I acknowledge the reasons which have frequently been expressed by this court and by other courts, why an appellate court should not intervene as a matter of course in prosecution appeals when the sentence is considered to be inadequate. But I think that the paramount importance of maintaining standards of punishment which send clear signals to persons in other countries as to what awaits them in this country if they are apprehended for offences of this kind, makes it imperative that this court intervene in the present case.

I would therefore grant leave to appeal. I would allow the appeal. I would substitute for the sentence which was imposed, a sentence of imprisonment for 12 years. As I have said, the non-parole period has to be less than that sentence reduced by a third, that is to say, less than 8 years. I do not think, however, great scope for parole is required in a case such as this. The real purpose of the sentence is deterrence. Rehabilitation is not a material consideration. It is to be expected indeed that this respondent being a foreign national and a foreign resident, will not remain, or indeed be allowed to remain, in this country during his parole. In those circumstances, I consider that the non-parole period should be 7 years. I would allow the appeal for the purpose of substituting that sentence for the sentence imposed by the learned sentencing judge.