R v Jain [2004] VSCA 30

Court of Appeal (Vic)|2004-03-04|Before: VINCENT, J.A. and SMITH and COLDREY, A.JJ.A.

Criminal Law - Sentence - Possession of falsified passport - Importation of a commercial quantity of heroin - Manifest Excess - Total effective sentence of ten years within available range - Non-parole period decreased from eight years to seven years.

The applicant, a 28-year-old Indian national, arrived at Melbourne Airport at around 11 p.m. on 7 May 2002 on a Thai Airways flight from Bangkok. He was ticketed to return to that city on 9 May 2002. He proceeded to the baggage hall where he produced to an Australian Customs officer a passport and incoming passenger card in the name of Pasuvathi Chandra Sekaran, a Singaporean citizen. The date of birth was given as 11 September 1966. Subsequent forensic analysis of the passport established that it was a genuine document but that it had been falsified by the insertion of a photograph of the applicant in place of the person to whom the passport had been issued. A search of a suitcase which the applicant identified as his, and which he stated he had personally packed, was conducted. The case was found to contain 95 packages, each with an average weight of 21 grams of heroin and a combined weight of 2,079.98 grams. The average purity of the heroin located was 75 per cent. Accordingly there was a total weight of pure heroin of 1,559.9 grams. Heroin is, of course, a prohibited import. A commercial quantity of that material has been designated at 1.5 kilograms.

The applicant was duly presented before the County Court at Melbourne on one count of possessing a falsified passport contrary to s.9A(1)(f)(i) of the Passports Act 1938, an offence carrying a maximum penalty of two years' imprisonment and/or a fine of $5,000, in addition to one count of importing a commercial quantity of heroin contrary to s.233B(1)(b) of the Customs Act 1901. The latter offence carries a maximum penalty of imprisonment for life and/or a fine of $750,000. Depending upon the method of valuation employed, the imported heroin has been valued at between $2,142,000 to $3,600,000 on the market in Australia.

After hearing a plea in mitigation of penalty, on 20 March 2002 the learned sentencing judge convicted the applicant and imposed a sentence of three months' imprisonment in respect of his possession of a falsified passport. He also recorded a conviction in respect of the importation offence and sentenced the applicant to ten years' imprisonment to be served concurrently. His Honour then fixed a minimum term of eight years before the applicant was to become eligible for parole. His Honour accepted that the applicant acted as courier in what he described as "a well-planned operation"[1] and rejected the explanation proffered on behalf of the applicant for his involvement in this activity; namely that he had encountered a series of financial setbacks and that his sole reward was to be the forgiveness of a debt of some $9,000 owed to a moneylender in Bangkok.

The applicant seeks leave to appeal against the sentence imposed in respect of the importation of the heroin on the sole ground that it was manifestly excessive in the circumstances. In support of this contention reliance has been placed on the limited role performed by the applicant in the importation activity, his plea of guilty which the learned sentencing judge accepted also evidenced remorse, and his good prospects of rehabilitation, bearing in mind the absence of any prior conviction, and his age of 26 years at the time of offending. Each of these matters, it was pointed out, was specifically addressed by the sentencing judge and if indeed they had been taken into account, counsel contended, it was apparent that in their absence an extremely high sentence, well beyond the available range, would almost certainly have been imposed.

I must confess to experiencing some difficulty with this method of reasoning that has become rather popular, it seems, in this Court over recent times when considering the question whether a given sentence can be viewed as manifestly excessive in the circumstances. It suggests that specific periods or proportions of a sentence can be identified as appropriate to designated factors. This Court has for a very long period rejected the notion that sentencing can be conducted in this fashion. Ultimately the sentence involves a balancing and synthesizing of a variety of considerations. There is nothing in the material which suggests that his Honour did not approach his task in that fashion or that he did not address appropriately the circumstances before him in this case. It has not been contended, nor indeed could it be, that he failed to have regard to any relevant sentencing consideration or that he took into account some inappropriate matter or that he dealt with any specific matter in an inappropriate fashion. I observe in this context that he adverted to each of the matters put before him in mitigation of penalty. He noted that the applicant was a well-educated person of above average intelligence and accepted that his conduct on this occasion should be regarded as isolated and uncharacteristic. I would add that I consider his Honour's findings in this regard to be somewhat generous when the applicant's refusal to assist authorities after his arrest is taken into consideration. Nevertheless, his Honour did state, and it must be taken into account:

"In all the circumstances it is somewhat surprising that someone with your intelligence, education and religious background would have become involved in the importation of heroin. No doubt persons such as yourself are prime recruits for those who organise and direct the drug trade to get heroin into this country."

" ... it is people such as yourself who are largely responsible for the availability of heroin in the Australian community, because you are the ones that actually import the drug. You make it possible for the principals to conduct their business here and reap enormous benefits on the suffering of all those who use and become addicted to heroin in the Australian community. No doubt you have already met some of them in prison. Unless people such as yourself lend themselves to this role, then the supply of the drug to the Australian community would be severely curtailed. Those engaged in importing heroin, no matter what their level of participation, must expect condign punishment in which the principles of deterrence are uppermost when they come to be sentenced. Parliament has seen fit to impose the ultimate penalty as far as deprivation of liberty is concerned in relation to this offence, and it is apparent that the law will not be taken seriously unless the courts impose sentences which reflect the gravity of the offending."[2]

Reflecting the approach which has been adopted by this Court on a number of occasions, I would endorse those remarks.

The sentence imposed upon the applicant is clearly a very substantial one, particularly when regard is had to the sentencing statistics with which we have been provided. However, as the Court has pointed out on numerous occasions, such statistics can provide only the most limited assistance in the determination of the appropriateness of a particular sentence in a given case. They contain only the barest of details that do not enable the Court to make any true comparison between the circumstances of the matters listed and the case before the Court. In particular, it is not possible to make any assessment of the significance or presence of either aggravating or mitigating features in those other cases.

In the present matter, it cannot be forgotten that the sentence was imposed for the importation into this country of heroin valued at between $2 million and $3.5 million. The applicant was a well-educated adult and obviously a presentable businessman. He must be taken to have understood very clearly what he was doing. The operation was well planned and carried out with a measure of sophistication involving the use of a false passport. What reward the applicant was to receive and how he came to be involved are unknown. His Honour understandably rejected the applicant's explanation for his involvement in this nefarious and socially destructive trade. He had several thousand dollars in mixed currencies in his possession and a return ticket which would enable him to leave the country almost immediately after he had conducted his business.

8 This is exactly the kind of case in which general deterrence becomes a particularly powerful sentencing consideration. In all of the circumstances I am by no means persuaded that the sentencing judge fell into error in fixing the head sentence that he did.

With respect to the non-parole period fixed by his Honour, the situation presents some difficulty. It has been accepted by Mr Champion, who appears for the Crown, that the non-parole period represented a very high proportion of the sentence. There has been no explanation as to why that should be so in the particular circumstances of this case, and the situation is one which, in my opinion, invites the scrutiny of this Court. I can see no reason why such a relatively short period should have been allowed for parole in the case of a first offender with reasonable prospects of rehabilitation.

Accordingly, whilst I would refuse the application so far as it affects the head sentence of ten years, I would set aside the non-parole period and substitute a non-parole period of seven years in this matter.

The orders of the Court will be that the application for leave to appeal is allowed. The appeal is to be treated as heard and allowed instanter. The sentence imposed by the court below in respect of the count of possessing a falsified passport is re-imposed. The sentence of ten years in respect of the importation of a commercial quantity of heroin is also re-imposed. However, a non-parole period of seven years is substituted. It is directed that each of the sentences imposed commence on this day.

14 It is declared that the period of 667 days which the appellant has undergone is to be reckoned as having been served under the sentences hereby imposed.

MR ARMSTRONG: Would the Court also order that the effect of the non-parole period be explained or caused to be explained to the applicant?

VINCENT, J.A.: Yes, Mr Armstrong, and we delegate that role to you.

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