R v Mandala [1999] VSCA 159

Court of Appeal (Vic)|1999-09-22|Before: WINNEKE, P., TADGELL and PHILLIPS, JJ.A.

The applicant who was born on 6 January 1976 in Indonesia is now 23 years of age.

After a committal which proceeded by way of hand-up brief an indictment was filed in the County Court on 8 February 1999 containing three counts charging that on or about 13 July 1998 at Melbourne Airport, Tullamarine the applicant did contrary to s.233B(1)(b) of the Customs Act 1901 import into Australia prohibited goods. Count 1 charged the importation of narcotic goods consisting of not less than a trafficable quantity of methylenedioxymethamphetamine, being the narcotic substance known as Ecstasy; Count 2, importing not less than a trafficable quantity of the narcotic substance methylamphetamine and Count 3, importing a quantity of the narcotic substance amphetamine. The maximum penalty for conviction on Count 1 or 2 was a fine of $100,000 or imprisonment for 25 years or both. The maximum penalty for conviction on Count 3 was a fine of $2,000 or imprisonment for two years or both.

On the same day, 8 February, the applicant was arraigned on the indictment and pleaded guilty to each count. The applicant is a student in this country with no prior convictions. A plea was made by counsel in mitigation during which a forensic psychologist gave evidence of his assessment of the applicant and his recommendations for treatment for a drug problem, and his gambling. The applicant's father gave evidence and two others also gave character evidence on behalf of the applicant. One of these gave evidence of his offer to the applicant of a place at his drug rehabilitation centre in Indonesia.

On 19 February the judge sentenced the applicant to four years' imprisonment on Count 1, 18 months' imprisonment on Count 2 and six months' imprisonment on Count 3. It was directed that all sentences commence on 19 February 1999 which had the effect of making them all concurrent. The total effective sentence was, therefore, of four years' imprisonment. A non-parole period was fixed of two years and nine months. A period of 19 days was declared as already served under the sentences imposed.

The applicant now seeks leave to appeal against sentence. According to the grounds first stated in the notice of application the sentence was manifestly excessive and the judge erred in finding that the applicant was a principal in connection with the offences.

The day before this application was first listed for hearing the Registrar gave the applicant leave to amend his notice to add two further grounds of appeal: first, that the sentence did not reflect the applicant's co-operation with and assistance to the police, and second, that the learned sentencing judge erred in treating Ecstasy as a drug in the same category as heroin and cocaine.

The background to these offences may be briefly described. On 13 July 1998 at Melbourne Airport the applicant was intercepted by officers of the Australian Customs Service after arriving on a Qantas flight from Jakarta. The applicant was travelling with a friend Ibrahim and both were directed to the baggage examination area. Subsequently a full search of the applicant's luggage was conducted. During that search customs officers located a number of plastic containers which when X-rayed were found to contain some foreign objects. Upon examination various bottles were found to contain tablets in varying colours and sizes and a preliminary analysis of a sample of the tablets showed the presence of prohibited narcotics. Upon fuller analysis various tablets were found to contain a number of different narcotic substances including Ecstasy, amphetamine and methylamphetamine or a combination of those substances mixed with other items including caffeine, ketamine and ephedrine. There was a total of 1,962 tablets containing 93.6 grams of Ecstasy, 54.7 grams of methylamphetamine and .2 grams of amphetamine. At a street price of $45 to $50 per tablet, that meant that the tablets which the applicant imported had a street value of more than $88,000.

As the Crown pointed out, in relation to the quantity imported of each of the drugs named in Counts 1 and 2, the amount imported far exceeded the legislative prescription of a trafficable quantity. When the applicant's luggage was first searched and the plastic containers were found to contain foreign bodies, the applicant denied all knowledge of what was in them saying that he had been given them to give to somebody else, that is that he was a courier, and that the recipient was waiting outside the customs area.

When being interviewed by police later on the same day the applicant told them that he had been given the containers by three men in Jakarta while he, the applicant, was staying at a hotel. (This last statement was in contrast with the evidence given to the trial judge by the applicant's father who insisted that he was staying at the family home). The applicant told the police that he was to pass the items on to one Alan in Melbourne whom he had met at a disco in Melbourne and who had asked him before he left Melbourne for Jakarta to pick up a gift from his friends in Indonesia. The applicant conceded that he thought that it might be Ecstasy. He had taken Ecstasy himself perhaps once every two weeks.

As the interview progressed a somewhat different complexion was put on things. Alan, it appeared, was a friend of the applicant's. Anticipating the applicant's journey home to Indonesia on a visit, Alan had asked the applicant if he could buy some Ecstasy in Indonesia because it was cheap there. Alan had offered him $10,000 for every 1,000 tablets he brought in. While the applicant was back in Jakarta Alan had telephoned him on his mobile telephone to ask him if he "could do it", but the applicant had then stated that he only had A$3,000 in the bank. They then discussed how much could be purchased for this price and the applicant said that he would try. He did not receive any money from Alan beforehand and Alan did not tell him where to get the drugs. Apparently the applicant located the source for himself. The three men who packed the various bottles in the hotel room did so as he watched them. He paid another between $3,000 and $4,000 for the deal. His plan was to arrive in Australia, contact Alan and give him the Ecstasy. He would then get the money for it and return to Indonesia.

As the judge said in his sentencing remarks when speaking of the applicant's record of interview:

"Next you involved your travelling companion .... then you spoke of delivering the drugs to Alan and returning to Indonesia. Your parents did not expect you to return. Next you were vague about Alan's whereabouts and activities. Towards the end of the interview, you displayed an accurate knowledge of the street price of Ecstasy in Melbourne".

No doubt it was the very uncertainty produced by the different versions given by the applicant of what had led to his offending that gave rise to the applicant's complaint in the grounds of appeal that the learned sentencing judge had fallen into error in treating him as a principal and not just as a courier - though as at present advised, given the considerations to which the learned sentencing judge referred in his sentencing remarks, I should have thought that there was nothing in that complaint. In the event, however, it is unnecessary for me to express any final opinion on any of the grounds taken but for one, and that relating to the applicant's co-operation and assistance with the police.

I refer to ground 3, being the first of the added grounds. That asserts that the sentences imposed below do not reflect the applicant's co-operation and assistance to police. Yet this was a topic canvassed on the plea, prosecuting counsel conceding expressly that during his interview with Federal Police at about the time of his arrest the applicant had provided a telephone number which had led to a train of enquiry, and applicant's counsel saying that he did not "put it any higher than that". It is true that in the course of the plea His Honour appears at times to have been somewhat dismissive of the applicant's assistance to the Federal Police and it is now said that His Honour must have undervalued that co-operation and assistance. But in the course of his sentencing remarks the judge said:

"It is conceded that you have been of some assistance to the authorities and that also must be taken into account."

In my opinion, nothing to the contrary can be shown. It does appear that the judge took into account what he was told of the applicant's co-operation and assistance and no error in that regard can be demonstrated.

But matters do not end there. When seeking to amend the notice of application to add ground 3 on 1 September last, the applicant relied on the affidavit of his solicitor, Bernard Balmer, exhibiting a letter dated 31 August from the Victoria Police purporting to describe the extent to which the applicant had co-operated with them. This morning counsel sought to add to this material a further letter dated 22 September 1999 (which through the need for some haste has not been put on affidavit, though the Crown makes no point in that regard). The applicant submitted that we should have regard to this further evidence and by reference to it conclude that the learned judge did not have the full picture before him when sentencing.

He rested his submission that we should admit this material on two grounds. First, he submitted that this was additional evidence of a continuing course of co-operation extending both before and after the plea and sentencing below and as such should be admitted for the further light it cast on a matter which was before the judge, the nature and extent of which was not then fully appreciated. He relied on the line of cases which includes Eliasen (1991) 53 A.Crim.R. 391 and many others. Suffice it to say that I was not at all persuaded that we should admit the further evidence on that basis.

The alternative submission rested on the discretion to receive evidence that ought to have been but was not before the sentencing judge, the evidence being then admitted to avoid a miscarriage of justice. Counsel referred in this connection to Knights (1993) 70 A.Crim.R. 105. See also Babic (1997) 93 A.Crim.R. 254 at 256, Goodwin (1990) 51 A.Crim.R. 328 and Fordham (1997) 98 A.Crim.R. 359. When we heard from Mr Armstrong, who appeared for the Crown, it emerged that there were two quite discrete episodes of assistance, the first with Federal Police originating at the time of the record of interview and the second with State police originating from a contact initiated by the applicant himself not long before his plea. The sentencing judge was told of the first and, as I say, as at present advised I think no error was demonstrated in that regard. But the sentencing judge was not told of the second. Nor, it must be added, was Mr Armstrong aware of it (he being prosecuting counsel below) or the very experienced senior counsel who appeared for the applicant on the plea. Yet, as Mr Armstrong frankly conceded, had the sentencing judge been made aware of it, it must have had a significant impact on sentences otherwise imposed.

In my opinion this calls for the admission of the evidence upon which the applicant now seeks to rely and the setting aside of the sentences imposed, not for error below but because the judge was not aware of the facts now relied upon, the non-disclosure of which, on the concession made, had a direct bearing on the sentences which were imposed. On that basis it now falls to this Court to re-exercise the sentencing discretion. I must say that for myself I do not regard the sentences imposed below as falling outside the range of sentences which might properly have been imposed, but in view of the concession made by counsel for the Crown justice requires sentences less severe.

There are, moreover, many factors that go in mitigation. They are mentioned in the comprehensive sentencing remarks of the judge below. They include in addition to the applicant's co-operation with the Federal Police and, as we now know, the Victoria Police, the youth of the offender, his absence of any previous convictions and the evidence of his previous good character as attested to by the various witnesses. The psychologist described the applicant as grossly immature and without good judgment. He comes from a good home, has not had a disadvantaged background and there seems no reason to suppose that he does not have good prospects for rehabilitation. Further, being a foreigner in this country it can be expected that he will find prison a particular hardship. He has a supportive family. There is the plea of guilty and the fact that he is repentant. The plea of guilty may be no more than an acceptance of inevitability of conviction, but the judge took it as some evidence of remorse and it cannot be said that he was wrong.

In referring to the factors going in mitigation, I do not overlook the seriousness of the offences to which the applicant pleaded guilty and all of the circumstances of the offending. I have had regard to the maximum penalties which are laid down by Parliament. In doing so I correct the slip made below; the maximum penalty for the offence charged in Count 3 is as I described it earlier, and not four years' imprisonment and a $4,000 fine as the judge was told.

In all the circumstances, I would re-sentence the applicant as follows: on Count 1, that he serve three years' imprisonment; on Count 2, that he serve 15 months' imprisonment and on Count 3 one months' imprisonment. The sentences should be served concurrently and I would fix two years as the time to be served before the applicant can be released.

My intention in saying this is that the periods I have specified should be counted from the date when the sentences were first passed, that is from 19 February 1999. I would hear counsel on the best means of achieving that result under the Federal legislation. If necessary, the days already served must be adjusted.

I agree with the orders which have been proposed by Phillips, J.A. insofar as those orders can be effectuated in accordance with the legislation. I do so for the reasons which Phillips J.A. has given. Although the sentencing discretion has been reopened for the reasons which His Honour gives, and thus this Court becomes empowered to fix sentences which it thinks appropriate to these offences, we cannot properly exercise that discretion, I think, by ordering a non-custodial sentence of the type that was suggested to the judge below. This Court has for a very long time now sought to make it clear to those who import drugs into this country for sale they can expect condign punishment if they are caught running the risk.

The youth of the Australian community has been ravaged by drugs and the courts must impose penalties which will have the effect of deterring all those who might be like-minded to this applicant. This Court recently expressed these views very carefully in the case of Berisha [ 1999] V.S.C.A. 112. Speaking for myself, I am conscious of the youth of this applicant, his previous good record and the difficulties which he has clearly met in being separated from his family in this country. I am also conscious of the shame which he has clearly brought upon himself and more particularly upon his family who are obviously good people and who appear to be wholly supportive of him. All those matters were present to the mind of the trial judge who imposed sentences which could by no means be said to be outside the range for crimes of this nature. The Legislature has placed the importation of "ecstasy" on the same "rung of the ladder" as the importation of heroin and, indeed, has prescribed lesser quantities of the drug as "commercial quantities" and "trafficable quantities".

For the reasons which His Honour below gave, it is not possible for this Court, or any Court in this State, except in the most exceptional circumstances, to impose other than gaol terms to be served immediately for crimes of this nature. For those reasons I agree with the order proposed by Phillips, J.A.

I too agree with the orders proposed by Phillips, J.A. and for the reasons he has assigned. I would merely add this: In the course of his sentencing remarks the learned judge said, and I quote, "it is now accepted that Ecstasy is an extremely dangerous drug even when taken in small quantities and, indeed, should be put in the same category as heroin and cocaine."

There was a great deal of debate on the part of counsel for the applicant when making this application this morning about the acceptability of that statement. I should say that I am not at present myself prepared to subscribe to the conclusion which His Honour stated. Nevertheless it might, in given circumstances, be appropriate to equate an offence involving amphetamine or derivatives of it or Ecstasy with an offence involving heroin or cocaine. It seems to me that there is the necessity for some evidence to be given in a case before anything quite so certain as that which is stated by the judge can be asserted with confidence.

(Discussion ensued.)

(Short adjournment.)

WINNEKE, P.:

Having regard to the provisions of the Commonwealth Crimes Act the Court is required to make what is termed a recognizance release order.

Accordingly, the formal orders of the Court will be as follows:

1. The application for leave to appeal against sentence is allowed;

2. The appeal is treated as having been instituted and heard instanter, it too is allowed;

3. The sentences imposed below are set aside and in lieu thereof we impose the following sentences: On Count 1, a period of three years' imprisonment; on Count 2, a period of 15 months' imprisonment, and on Count 3, a period of one months' imprisonment.

We direct that each of the sentences will commence from today's date, that is 22 September 1999, and that means that they will be served concurrently.

We note that each sentence has been adjusted to take account of the provisions of s.16G of the Crimes Act (Commonwealth). The Court declares pursuant to the provisions of s.16E(2) of the Commonwealth Crimes Act that the applicant has already served a period of 235 days pursuant to the sentences which we have imposed. We direct that our declaration of the period of days so served be noted in the records of the Court.

The Court orders that after the applicant has served a period of two years of the sentences imposed he is to be released on a recognizance which we fix in the sum of $1,000 on condition that he be of good behaviour for a period of 12 months after the date of release. We explain to you, Mr Mandala - stand up, if you would, please . Do you understand what I'm saying to you?

We explain to you that you will have to serve the remainder of the period of custody which we have imposed, that is a period which started 235 days ago, and will continue until two years has expired. Do you understand that?

When that period has expired, you will be released on a recognizance. That really means that you are bound by the order for a further period of 12 months to be of good behaviour. Do you understand that?

Whether you are back in Indonesia or remain in this country that order will still bind you, you follow? So you still must be of good behaviour once you are released for a further period of 12 months. You understand all of that?

If you breach that condition the Court or the authorities can call you back for breach of the good behaviour bond and you will be dealt with in accordance with the provisions of the statute. Do you understand that?

So you must be of good behaviour for 12 months after you are released. Are you prepared to enter into a recognizance release order of that sort?

(Recognizance release order signed.)

(Discussion ensued.)

WINNEKE, P.:

Mr Mandala, do you understand everything that's occurred? You have got to go back and serve out your two years custody, so it will be two years from today less the 235 days that you have done, so that will be about 15 months, I suppose, or a little bit more, then you will be released and you will be under an obligation for another 12 months to be of good behaviour. Okay? When you are released you make sure you are of good behaviour otherwise we will deal with you again.

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