R v Marshall [2000] VSCA 167

10. On 2 September 1999 the learned judge sentenced the applicant to four-and-a-half years' imprisonment on count 1, and six months' imprisonment on each of counts 2 and 3. All sentences were directed to commence on 2 September 1999 and his Honour directed that the applicant serve a minimum of three years' imprisonment before becoming eligible for parole.

13. The applicant now seeks leave to appeal against sentence, the sole ground of his application being that the sentence imposed is manifestly excessive.

16. The circumstances giving rise to these offences, taken from an agreed summary of facts which was before the sentencing judge, were as follows. The applicant arrived at Tullamarine Airport at 8.45 a.m. on 11 May 1999 on a flight from Los Angeles. At the airport a customs officer selected him for an intuitive search and when his baggage was examined a black and silver anorak jacket was found in it, the customs officers becoming suspicious of it because of its weight. Examination of the jacket showed that inside it was a rectangular package in white wadding and black tape located between the inner and outer lining of the jacket. The package contained a large number of tablets and examination of them indicated the presence of the narcotic substance known as MDMA or Ecstasy. The applicant was arrested and cautioned, and later removed a small plastic bag containing nine tablets, brown resinous matter and dry green vegetable matter from the front of his jeans.

19. The applicant was questioned by Federal Police and admitted that the packet taken from the front of his jeans contained cannabis, cannabis resin and Ecstasy. He said that the drugs were for his own personal use and that he had had them for over a week. He said as to the package of tablets inside his jacket that he had had the jacket for a few months and bought it in England. Asked how the tablets came to be in his jacket or what they were, he made no comment. He said that he had financed his overseas holidays from work, selling a motor bike and with his tax return. The main purpose of his holiday had been to visit his fiancee in Romania and get a visa for her to come to Australia. Asked whether there was anything further he wished to say, he said, "Just that I've been very stupid, extremely stupid and made decisions when in a - not in a rational mind." ... "I'm saying the whole experience is a chapter in my life which has been very stupid."

22. The jacket, the two groups of tablets, the brown resinous matter and the dry green vegetable matter were all subsequently examined by the Forensic Services Section of the Federal Police. Analysis indicated that in addition to the three plastic bags of tablets removed from the lower back area of the jacket, the jacket contained lumps in the areas of the upper back and upper right breast; two packages of tablets were found in the upper back and packages were found in the upper breast area. A total of 4,500 tablets were found in seven plastic packages concealed in the jacket.

25. Samples were subsequently analysed by the Australian Government Analytical Laboratories and that analysis showed that the brown resinous matter contained 1.82 grams of cannabis resin and the dry green vegetable matter, 1.21 grams of cannabis. The total quantity of pure MDMA (Ecstasy) in the 4,500 tablets found in the jacket was 402.4 grams. Under s.4 of Schedule 6 of the Customs Act 1901, a trafficable quantity of Ecstasy is .50 grams. The estimated street value of the 4,500 Ecstasy tablets if sold in single tablet quantities in Victoria was between $40 and $60 per tablet, giving a total value between $180,000 and $270,000.

28. The maximum penalty for importing a trafficable quantity of Ecstasy was at the relevant time a fine of $100,000 or 25 years' imprisonment or both and the maximum penalties in relation to importing less than a trafficable quantity of cannabis resin and cannabis were then a fine of $2,000 or two years' imprisonment or both.

31. The ground of manifest excess is usually capable of short statement and speedy resolution, but this is an unusual case. There was evidence before the sentencing judge which established that the applicant had suffered for several years from bipolar disorder, a mental illness characterised by alternating periods of depression and mania, and which was debilitating him prior to and at the time of the offences. The principal submission made by Mr Tehan on his behalf in this Court was that the judge failed fully to appreciate this contention and it was submitted that that failure could be demonstrated in identifiable ways in the sentencing reasons.

34. Mr Tehan's submission was that the applicant's bipolar disorder was a severe psychiatric illness of an ongoing nature and this was established from the following facts. His medical condition had manifested itself against a background of family turmoil in 1983 when he was 20. There was a family history of the illness, since his father and uncle and possibly also his brother had suffered from it. The applicant had shown himself in the past to be honest, reliable and hard-working, and became adept at concealing his illness by throwing himself into hard work. By 1994-95, however, he was suffering mood swings more and more often and had been prescribed anti-depressant medication and was on sickness benefits. In November 1995 he separated from his wife, after which he became significantly depressed and at times suicidal. He was said to have exhibited classic signs of bipolar disorder in terms of mood swings, irrational thoughts and being disconnected from his emotions. He resorted to drug and alcohol abuse to cope with his illness and tried to contain his mood swings with cannabis. In 1997 the applicant travelled to Europe where he met and fell in love with a Romanian girl, Nina. He worked in Ireland and returned to Romania to be with her, then returned to Australia to work but again visited Nina in May 1998. When he returned to Australia in January 1999 he was said to have been in an absolutely manic episode and according to the evidence of his sister she was then really concerned about his level of sanity. She said he was quite ill, his moods would fluctuate from being elated, erratic, irritable, and out of control to an extreme state of depression. Against this background he returned to Romania in March 1999 hoping to bring Nina to Australia. Unfortunately they were both detained in Yugoslavia, and he was unable to achieve her migration, and became extremely distressed in consequence. In these circumstances he travelled to Amsterdam en route to England and Australia and started on a binge of drugs and alcohol. In Amsterdam he went to a café which had been recommended to him as a place where people in the building industry went and there met people who he said were very sympathetic to his situation. The people there said that they could help him and he in turn agreed to assist them to bring the drugs into Australia. He was unable to tell the Federal Police who these people were, saying that he knew one person as "John" and that was all he knew. The case put by his counsel to the sentencing judge was that the applicant was then in a hyper-manic, depressed, oscillating phase where his moral culpability was affected substantially. When his Honour asked how the tablets had got into his coat, the applicant's counsel replied that they were put there by his "friends".

37. In these circumstances Mr Tehan submitted that the applicant was shown to have a serious psychiatric illness which was plainly relevant to the exercise of the sentencing discretion. He relied on a series of cases beginning with R. v. Anderson[1]; Champion[2]; R. v. Tsiaras[3]; R. v. Richards & Gregory[4]; and R. v. Yaldiz[5]. In this line of cases it is established that when general deterrence is a relevant consideration in a sentencing exercise, less weight should be given to it in the case of an offender suffering from a mental disorder or severe intellectual handicap; Letteri[6]. In Champion, Kirby, P. said[7] that in circumstances of this kind the principles of general deterrence operate "in a way that is sensibly moderated to the particular circumstances of their case". In Yaldiz, Winneke, A.C.J. said[8] -

"Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused."

41. In the present case there is no doubt that the judge accepted the evidence of the applicant's bipolar disorder and, having referred to the medical evidence, said the following -

"[The prosecutor] accepted that the evidence about your psychiatric condition justified the court in accordance with legal principle sensibly moderating the component of specific and general deterrence in the sentence in your case. The evidence of Dr Walton and your sister justifies that conclusion and I agree with your counsel's submission on this point and I shall implement it, but I must put that psychiatric state into perspective. There is no suggestion that your mental condition prevented you from having awareness of the wrongfulness of your conduct. Your effort at secreting the drugs is a relevant consideration and whilst drug use does impact upon your criminality, I am unconvinced that the truth surrounding this large and disturbing importation has been revealed and I believe I can be forgiven for not treating seriously your explanation regarding the circumstances of the consignment of this drug."

45. The judge made reference to the applicant's two prior convictions as having no real significance in the sentencing process and referred to his plea of guilty, his impressive work record, and the character evidence given by his wife, his sister and Mr Hopgood and further established by the written references provided in support. The judge also referred to the applicant's prospects of rehabilitation. Mr Tehan's submission was, however, that the judge failed adequately to ameliorate the application of the principles of deterrence in this case and failed properly to take into account his mental condition in so far as the circumstances of the offence were concerned. He argued that the applicant's mind was greatly debilitated at the time of the offences and he was then seriously manic. It was submitted that on all the materials the judge should have accepted that the applicant's mental state was seriously affected by bipolar disorder at the time of the offences.

48. In this Court, Mr Parsons for the Crown in his written submissions accepted that the applicant was suffering from bipolar mood disorder for which he had been prescribed anti-depressant medication and that there was evidence before the judge that the applicant's capacity to exercise consistent judgment was quite seriously compromised by his illness, a condition further aggravated by his substance abuse at the time. But, it was said, the judge had fully appreciated all these circumstances and taken into account the evidence given about the applicant's psychiatric condition.

51. The case is, I think, a difficult one. The sentence imposed is, in all the circumstances, a stern one when allowance is made for sensible moderation of the factors of specific and general deterrence. Reference to the table of sentences provided by the Crown relating to importing similar amounts of Ecstasy provides support for this view. The applicant's difficulty is, however, that the judge clearly considered that the applicant had failed to tell anything like the truth to the Federal Police, and the version of events which his counsel (on instructions, of course) put to the judge several months later showed that the applicant was persisting in a version of the circumstances of his offending which his Honour simply did not accept. According to the applicant he met his supplier in a bar, he knew only his Christian name, and no arrangement had been made for contacting him when he arrived in Melbourne to collect this very valuable quantity of drugs. I think his Honour was perfectly entitled to take the view that "the truth surrounding this large and disturbing importation" had not been revealed, and that he should not treat seriously the applicant's explanation regarding the circumstances of the consignment of the drug. As to the passage from Yaldiz cited above, it was submitted by the prosecutor during the plea that the applicant was aware of what he was doing and that what he'd done was wrong. This submission was based on the applicant's answers to police questions and Dr Walton's report and not, I think, really challenged by defence counsel. Dr Walton's opinion was that the applicant's disorder had not reached a stage where a defence of impairment was available, but that "his capacity to exercise consistent judgment was quite seriously compromised by the illness, further aggravated by his substance abuse at the time".

54. Accordingly, the judge had to balance the fact that he accepted the evidence of the applicant's bipolar disorder as requiring general and specific deterrence to be sensibly moderated and as reducing to some extent the applicant's culpability, against a variety of countervailing considerations. The importation was indeed large and disturbing and the value of the Ecstasy imported was substantial. The crime was a very serious one and lack of relevant prior convictions is of less significance in the case of drug couriers - who are often chosen because they have no prior criminal history.[9] As Winneke, P. said of the drug Ecstasy in Carey[10], recent events "have demonstrated just how harmful the substance can be to the health of young members of the community even when taken in small quantities"; and his Honour's justifiable scepticism as to the applicant's truthfulness would have entitled him, in the process of "sensible moderation", to regard specific deterrence as still important, and to question the applicant's remorse and prospects of rehabilitation.

57. In all these circumstances, I do not think the sentence imposed can be said to be beyond range. Had the applicant not been suffering from bipolar disorder, a significantly longer sentence might well have been imposed. It has often been said that this Court does not intervene merely because a member of it takes the view that a lesser sentence should have been imposed.

60. It follows that I do not think the sentence imposed was manifestly excessive and I would dismiss the application

75. The judgment of the Court is that the application for leave to appeal against sentence is dismissed.

[6] Unreported, Court of Criminal Appeal, NSW, per Badgery-Parker, J. (with whom Gleeson, C.J. and Sheller, J.A. agreed) at 14.

[9] R. v. Leroy (1984) 2 N.S.W.L.R.440, at 446-7.