R v Meloh [2001] NSWCCA 211 | Case summary

MONDAY 21 MAY 2001 REGINA v ANDREW MELOH JUDGMENT 1 SPIGELMAN CJ: I invite Justice Howie to deliver the judgment. 2 HOWIE J: The applicant seeks leave to appeal against the sentence imposed by his Honour Judge Goldring following the applicant pleading guilty on 25 August 2000 to an indictment alleging an offence contrary to s 233B(1)(d) of the Customs Act 1901. The applicant was charged that between about 10 March 2000 and 22 March 2000, he was knowingly concerned in the importation of not less than the trafficable quantity of 3, 4 methlenedioxymethamphetamine, a drug which is commonly known as MDMA or ecstasy. This offence carries a maximum penalty of imprisonment for 25 years, together with a fine of $500,000. 3 On 19 October 2000 Judge Goldring sentenced the applicant to six years imprisonment, with a non-parole period of four and a half years, both of which were to date from 22 March 2000. The non-parole period specified is to expire on 21 September 2004, the date upon which the applicant will be eligible for consideration for release to parole. 4 Because of the limited basis upon which the applicant complains of the sentence imposed upon him, being that the non-parole period is excessive, and because the respondent accepts that the sentencing judge erred in this regard, it is unnecessary to do more than summarise the facts very briefly. 5 On 10 March 2000, Dutch customs intercepted a package that was being consigned to Lynne Newman at an address in Randwick and on which the applicant's mobile telephone number appeared as the contact number. When inspected, the package was found to contain a stereo speaker, inside which were two clip-seal plastic bags filled with the ecstasy tablets. There were 5,300 tablets weighing 1,542.8 grams and the net weight of the MDMA was calculated as 471.5 grams. The Australian Federal Police were notified and an agent took possession of the package in Holland and returned with it to Australia. 6 On 22 March, an AFP agent made a controlled delivery of the package to the addressee who said she was receiving it on behalf of the applicant. A short time later the applicant arranged for her to deliver the package to him at his home in Redfern. Later that day the applicant took delivery of the package, as arranged, and shortly thereafter was observed leaving the house with it. The police followed the applicant, but when he realised he was under surveillance, he left the package in a doorway and then ran off. He was arrested after a short chase. 7 The applicant participated in a recorded interview in which he denied any knowledge of the existence of the drug in the package. He did not give evidence at the sentencing hearing, but Judge Goldring accepted the following account of the applicant's involvement in the importation of the drug. In October 1999 the applicant left Sierra Leone as a refugee and travelled to Australia on a false South African passport. He paid US$1,100 for the passport, on the understanding that in addition he would receive parcels sent to him in Australia. The sentencing judge accepted that the applicant was a refugee and, as such, was vulnerable to pressure to cooperate in illegal activities. 8 In sentencing the applicant, Judge Goldring noted that ecstasy was a middle order drug. He observed that, according to the guideline judgment in Wong and Leung (1999) 108 A Crim R 531, the range of sentence for persons convicted under s 233B for an offence involving a high level trafficable quantity of heroin or cocaine was between seven and ten years. His Honour reasoned that for a high level trafficable quantity of ecstasy, this range should be between four and a half and seven years. His Honour found that although the applicant was not at the bottom level of seriousness, he was "a low level operative in the hierarchically organised structure of this operation". He also took into account the fact that the applicant expressed remorse and indeed had pleaded guilty at the first available opportunity. 9 The applicant does not complain about the head sentence, but contends that the non-parole period is excessive, according to what is normally considered to be the appropriate range of non-parole periods for sentences relating to the importation of drugs under the Customs Act. The applicant relies upon decisions of this Court in which it has been indicated that, generally speaking, the appropriate non-parole period will fall within the range of between 60 per cent and 66 and two-thirds per cent of the head sentence, see for example, Bernier (1998) 102 A Crim R 44; R v Behar (CCA unreported 14 October 1998); and R v Acosta (1999) NSWCCA 334. 10 In the present case the non-parole period is 75 per cent of the head sentence. Such a proportion between the head sentence and non-parole period might not be unusual for sentences imposed under the provisions of the Crimes (Sentencing) Procedure Act because of the terms of s 44(2) of that Act, but it will be only in rare cases that such a non-parole period will be appropriate for federal offences. It has been held by this Court that generally a non-parole period of this length will only be justified in more serious cases where the prospects of rehabilitation are considered poor: Sitt (1998) 102 A Crim R 428 at 432. 11 At the sentencing proceedings before Judge Goldring the Crown relied upon written submissions that acknowledged that the normal range of non-parole period for federal matters was as I have already indicated. However, his Honour did not refer to this matter during the course of his reasons; nor did he indicate anything about the nature of the offence, the applicant's role in the importation, or his personal circumstances that would normally justify a non-parole period outside the usual range. His Honour noted that the correctional authorities had provided a reference in relation to the applicant's performance in custody while on remand. 12 When imposing sentence, his Honour stated in view of the applicant's subjective circumstances, he would impose a non-parole period of three and a half years to commence on 22 March 2000 and to expire on 21 September 2004. When it was pointed out to his Honour that there was a discrepancy between the non-parole period imposed and the expiry date of that period, his Honour indicated that he had intended the non-parole period to be four and a half years. 13 The Crown has fairly conceded that the non-parole period is too high, given the length of head sentence and the particular facts of this matter. The applicant is aged 35 years and was working in casual cleaning and labouring work after arriving in Australia in 1999. The sentencing judge accepted that he became involved in the importation in order to obtain a passport for his sister, so that she might also leave war-torn Somalia as he had done. His Honour accepted the applicant was contrite. 14 In my opinion, the applicant has established that the non-parole period was excessive in all the circumstances of this case, according to decisions of this Court as to what should be the normal range of non-parole periods in such cases. In my view this Court should give leave and intervene. On the basis that we might be required to re-sentence the applicant, we have received material as to the applicant's conduct while in custody. He is presently employed in the Textile Business Unit of the prison where he is housed and has been found to be conscientious and positive in his attitude to his work. He has undertaken courses in the prison and with TAFE. There was evidence of this nature before the sentencing judge and the material before this Court indicates that his efforts at rehabilitation have continued up to the present time. 15 I propose that the application for leave to appeal be granted, the appeal allowed and the sentence imposed be quashed so far as the non-parole period is concerned. In lieu, a non-parole period of three years, seven months should be specified, which is to commence on 22 March 2000, and to expire on 21 October 2003. 16 SPIGELMAN CJ: I concur. 17 HULME J: I am unable to agree. In my view the appeal should be dismissed. 18 By a series of steps supported individually by authority, the appellant has established success in his appeal. The result is that someone who came to Australia with the apparent intention of participating in offences, and who was not at the bottom of a drug hierarchy, but somewhat higher up, is likely to suffer but 3½ years in gaol and a total sentence of six years, for an offence for which Parliament has provided a maximum penalty of 25 years imprisonment or, once the discount required by s16G of the Crimes Act (Cth) is taken into account, 16½ or 17 years - see the cases referred to by me in Spiteri [1999] NSWCCA 3. The result provides little by way of general deterrence to others against participating in similar offences, or against the principals behind such offences organising similar activities. Given that general deterrence is an important factor in the determination of proper sentences for drug offences - see R v Wong and Leung [1999] NSWCCA 420; (1999) 108 A Crim R 531 at 535, R v Benais [1999] NSWCCA 236 at [28], R v Colin [2000] NSWCCA 236, Krakouer (1999) A Crim R 408 - an approach the sentencing judge expressly sought to give effect to, the result requires that an examination be conducted of the steps leading to it. 19 In the first place, the sentencing judge took as the starting point the guideline judgment in R v Wong and Leung where this Court indicated that a head sentence of seven to ten years is appropriate for couriers importing a high range trafficable quantity of heroin or cocaine. Then, on the basis of what this Court said in Budiman (1998) 102 A Crim R 411 to the effect that ecstasy is regarded as a drug of lesser seriousness, his Honour concluded that the guidelines should be discounted to something like 4½ to 7 years. 20 Although he found that the Applicant was a "low level operative in the hierarchically organised structure" his Honour also found that he was "not just a courier" and someone who "did organise the actual importation", and "a person whose involvement was far greater than simply carrying a prohibited import from one place to another", his Honour concluded that the appropriate sentence was a term of 6 years with a non-parole period of 4½ years. 21 Now, upon the basis of authorities which show that the non-parole period as a proportion of the total sentence does not accord with the 60-66 2/3 generally applied in the case of federal offences, this Court is asked to bring down the four and a half year term to something which does accord, i.e. about 3½ years. 22 Compared against what Parliament has provided, I doubt the justification for saying that the range of sentences for couriers of ecstasy in high trafficable quantities should be as low as 4½ to 7 years. But even accepting that range, given that the Applicant's criminality was more than that of a mere courier, his Honour's choice of 6 years with a non-parole period of 4½ years was lenient in the extreme. 23 The Court was referred to the decisions of Bernier (1998) 102 A Crim R 44 at 49, Stitt (1998) 102 A Crim R 428 at 432 and Acosta [1999] NSWCCA 334 wherein there are contained statements along the lines that "… the norm for non-parole periods is in the range of about 60 per cent to 66 and two-thirds per cent" and "periods of 75 per cent being rare and limited to the more serious cases where the prospects of rehabilitation have not been considered good". 24 For my part, I would challenge the appropriateness of the 60 to 66 and two thirds per cent. In the first place, the adoption of such a narrow range is inconsistent with statements in or quoted in Bernier (at 49), and Stitt (at 432) to the effect that there should be flexibility in fixing both a head sentence and a non-parole period and not an arbitrary formula or ratio between the two. 25 In the second, that proportion is inconsistent with the approach of Hunt J in R v Paull (1990) 20 NSWLR 427. In that case his Honour in fact imposed a non-parole period which was almost 80 per cent of the head sentence. He recognised that prior to the changing in sentencing regime in this state, the general run of non-parole periods was of the order of 60 per cent of the head sentence, but said quite expressly that while 16G of the Crimes Act should operate, and does operate to bring down the head sentence from that nominated by Parliament, that section does not in its terms operate to bring down the non-parole period. 26 (Since this judgment was delivered, and in the course of its revision, it has come to my attention that while this view of S16G was endorsed by this Court in DPP v El Karhani (1990) 21 NSWLR 370, it was there held that the non-parole period was to be determined by reference to the head sentence after the s16G adjustment was made. My reliance on the approach of Hunt J was therefore erroneous.) 27 Although the Crown has conceded that, because of the relativity between the head sentence and non-parole period, there is error in the latter, that concession, in my view should not have been made. Even if the relativity should have been between 60 and 66 2/3 percent of the head sentence, at most all the departure from that range proves is that either the head sentence or the non-parole period is wrong. 28 In light of the Appellant's criminality and the need for general deterrence in this area, the non-parole period should not be reduced. If anything should be changed to correct what is perceived to be an error it should be the head sentence, increased to what I would have thought a more appropriate punishment. However, there being no Crown appeal this cannot be achieved. The Appellant's appeal should be dismissed. 29 SPIGELMAN CJ: The order of the court is as indicated by Justice Howie. ************

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R v Meloh

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