13 The Crown submitted that the sentence of six years imprisonment taken by his Honour as appropriate, apart from the question of assistance, was too low, and that the reduction for assistance was excessive. Certainly in combination, it was submitted, the result was that the sentence of three years and nine months was manifestly inadequate.
14 While I regard the starting figure of six years as one on the low side and consider that a higher figure could have been adopted without justifiable complaint, I do not regard the opening figure of six years as of itself appellably inadequate. The six years was at the bottom of the range indicated in R v Wong, but the respondent was a casual courier, and while she was acting for profit to herself and the drug trade significantly depends on couriers such as she, and while general deterrence is an important consideration, the respondent's culpability was at the lower end of the spectrum. I am of that view notwithstanding the Crown's submission that because of the amount of cocaine involved the respondent should not be regarded as at the bottom of the range of six years to nine years. The amount involved was above the bottom of the bracket to which the six to nine years applied, but taking the respondent's part together with that ingredient in assessing where she was to be placed in the range, I do not think that it can be said to have been wrong to have started with the six years.
15 Importantly, in my view, the sentencing judge made no finding as to the respondent's belief that what she was carrying was marijuana rather than cocaine, at the relevant points in his reasoning referring to carrying narcotics. As I read his Honour's reasons, he implicitly accepted that the respondent had the belief she professed in the material put before his Honour. In my view the respondent was entitled to be sentenced, in the particular circumstances of this case, on the basis that her culpability was coloured by a belief that what she was carrying was marijuana rather than cocaine, and that to my mind contributes to the availability of the starting point of six years.
16 The respondent's immediate acknowledgment of her offence and her prompt plea of guilty may have been borne of recognition that she could not resist a finding of guilty, at least to the importation of a narcotic, but nonetheless the contrition as found weighed in her favour. I do not think the Crown suggested to the contrary. The sentencing Judge properly paid little regard to the absence of prior convictions. The weight to be given to the respondent serving her sentence in what was for her a foreign country separated from her family and without friends in Australia must have been small. She could not really complain, as when entering Australia carrying narcotics she was exposing herself to the inevitable consequence of conviction for her offence (see R v Ferrer-Esis (1991) 55 A Crim R 231 at 239).
17 While it may be that his Honour overstated it in calling the subjective matters powerful, there were certainly subjective matters of some weight properly to be borne in mind in the task his Honour was engaged in. His Honour properly reminded himself, after so describing the subjective matters, of the seriousness of the offence. In my view, the role played by the respondent, her plea, and proper account of the subjective considerations thus far mentioned did permit the view that a sentence of six years imprisonment, apart from assistance, was appropriate, although I repeat that it may have been at the low end of what was available.
18 Going then to assistance, the Crown rightly emphasised there is no fixed tariff for reduction by reason of assistance, as was said, amongst other places, in R v Cartwright (1989) 17 NSWLR 243 at 255. As was explained in R v Cartwright at 252-3, the extent of the reduction will depend to a large extent upon the genuineness of the offender who has co-operated with the authorities, whether or not the information supplied turns out to be of use. The Crown emphasised before us that the information provided by the respondent had not been corroborated and that it provided little assistance to the police investigation, but that tended rather to overlook the significance of the respondent's offer of assistance by participating in a controlled delivery. The sentencing Judge clearly considered the respondent's co operation in that respect to be genuine. Although, as the Crown said, it was untested, the reason why it was untested at the time was because of the ubiquitous operational reasons. If that co-operation was genuine, it seems to me difficult to proceed on the basis that the provision of information was other than genuine, and it must be asked what more the respondent could have done.
19 The reduction at which his Honour arrived was 37.5 per cent. While it was a significant reduction, I do not feel able to conclude it was outside the range open to his Honour.
20 It must, of course, be asked whether in combination a low starting point and a high discount level led to a sentence which was manifestly inadequate. It must also be asked whether, after all relevant considerations have been taken into account, the objective gravity of the offence called for such a sentence that the sentence imposed was manifestly inadequate.
21 It is not enough that this Court considers a higher sentence could have been imposed, or that a slightly higher sentence should have been imposed. The Court must be persuaded of manifest inadequacy. I think the sentence was a low sentence, but I do not think it was a sentence which can be described as manifestly inadequate. In my opinion, therefore, the appeal should be dismissed.
22 WOOD CJ at CL: In my view, the sentence was manifestly inadequate. However, for the reason later mentioned, I agree with the order proposed. I do, however, wish to add some comments of my own in relation to the sentence.
23 Although the guideline judgment in Wong & Leung is not to be regarded as laying down a rigid framework, that would operate as a binding precedent from which judges cannot depart, it needs to be respected as a considered decision of this court as the appropriate level of sentence for a serious category of narcotic offence. It establishes the need for a consistent approach to sentencing that ensures a level of punishment appropriate for the seriousness of offences of this kind which pose such a significant threat to the community, particularly to the more youthful section of it. It also affirms the need for a significant element of general deterrence (see also Benais (1999) NSW CCA 236).
24 Sentencing judges must not lose sight of the following principles when sentencing for such offences:
(a) Prior good character and relative youth are of reduced significance since they are matters, which the organisers of the heroin and cocaine trade use to their advantage, in order to avoid attracting suspicion in relation to those who carry those substances across immigration and customs barrier upon their behalf. (See Leroy (1984) 2 NSWLR 441 at 446/7 and Lawson, Wu and Thapa NSW CCA 12 December 1997).
(b) The subjective circumstances of an offender standing for sentence need to be kept in context, and not given such an undue weight as result in a sentence that is disproportionate to the objective seriousness of the criminality involved. (See Dodd (1991) 57 A Crim R 349 at 354; Stead 99 NSW CCA 4 and Zayat NSW CCA 22 November 1996.
(c) For foreign offenders, the fact of their separation from their homeland and family is of very little relevance. Those who choose to run the risk of bringing drugs into this country must accept the consequences of being imprisoned here, with all the disadvantages entailed. (See Ferrer-Esis (1991) 55 A Crim R 231 at 239 and Chu (1998) NSW CCA 16 October 1998.
(d) Those involved in an importation for purely financial gain or for greed, can expect little in the way of leniency.
(e) The discount allowed for assistance must not be such as to result in a sentence that is disproportionate to the offence, or that is likely to cause affront to the community: See Chu (1998) NSW CCA 16 October 1998 and Gallagher (1991) 23 NSWLR 220.
(f) There is no reason to extend particular leniency to those who perform the task of personally carrying narcotics into the country, because without them the trade in those substances will collapse. (See Laurentiu and Becheru NSW CCA 1 October 1992, Budiman NSW CCA 8 September 1998, and Behar NSW CCA 14 October 1998.)
25 The respondent here was entitled to a discount for the assistance she offered to the authorities, even though, as events turned out, it was not of any real value. She was also entitled to a discount for her contrition and for the utilitarian value of her earlier plea of guilty, albeit a conviction was inevitable.
26 However, even allowing for these matters I am of the view, for similar reasons to those expressed in Ceissman last Friday, that his Honour allowed himself to be diverted by the respondent's subjective circumstances and then pronounced a sentence that was manifestly inadequate.
27 In particular, the privileged family background of the respondent was not a matter that could be properly called in aid by her.
28 The other matter that seems to have swayed his Honour was the somewhat general evidence led concerning the evil doctrines of apartheid that fractured the South African community, and concerning the social upheaval that followed transformation. There can be no doubt that those were significant events having terrible consequences for very many people. However, there was nothing in the evidence led to suggest that they had any particular impact upon the respondent individually, such as to entitle her to leniency.
29 Furthermore, the so called absence of "satisfactory personal relationships" which seemed to have attracted his Honour's attention, were neither exceptional or such as to amount to a circumstance mitigating against sentence.
30 I am of the view that while the respondent did inform the police, when interviewed following her arrest, that she believed that she was importing cannabis, the relevance of that was diminished by the circumstance that it was the offence with which she was charged to which she pleaded guilty. The fact of that plea may be taken as an admission by her of the essential elements charged. She was to be sentenced upon the basis that she had imported into this country not cannabis but cocaine.
31 Notwithstanding my concerns as to the leniency of the sentence pronounced, and the need for judges to maintain a consistently strong stance in this area of criminality in order to deter those tempted to bring narcotic drugs into the country, I am prepared to join in the order proposed but solely by reason of the discretion attaching to a Crown appeal.
32 SIMPSON J: I agree with the order for the reasons given by the presiding Judge. I agree with the summary of relevant principles stated by Wood CJ at CL but I do not agree with his conclusion that the sentence was manifestly inadequate. The sentence was lenient and the discount generous, but I think in combination they were within the range of leniency availed of by the judge.
33 GILES JA: The order of the court is the appeal is dismissed.