R v Mokoena

Commonwealth Director of Public Prosecutions for the respondent

[1] HOLMES JA: The applicant seeks leave to appeal against a sentence of nine years imprisonment, with a non-parole period of four years and nine months, imposed in respect of one count of importing a marketable quantity of heroin, contrary to s 307.2 of the Criminal Code 1995 (Cth). The maximum penalty for that offence is 25 years imprisonment.

[2] The applicant, who is from South Africa, arrived at Brisbane International Airport on a flight from Hong Kong. He aroused the suspicion of Customs officers because his abdomen was unusually taut and protruding, and because he gave an unconvincing account of what he was doing in the country. In consequence, he was subjected to an internal search and subsequent radiological examination which detected foreign objects secreted in his body. Ultimately, 80 pellets containing heroin were recovered. The applicant confessed to Federal Police officers that he had swallowed the pellets and was to be paid $10,000 when they were delivered. The pellets were found to contain 891.6 grams of brown powder, which on analysis had a purity of 55.8 per cent, yielding 497.5 grams of heroin. Its street value was said to be just under $1,000,000.

[3] The applicant was 29 years old, without previous convictions, when he was arrested in August 2007. He was, his counsel submitted, remorseful. He made full admissions, co-operated with the police very substantially, and made it clear from the outset that he would plead guilty. He was married with a nine year old son and an infant, born since he was placed in custody in Australia. He was HIV positive and was receiving anti-viral medication in custody. In South Africa, he had worked as a casino croupier and as a taxi driver, but had incurred debts. To meet those debts and to obtain money to support his wife, children and elderly grandmother, he accepted an offer of payment for acting as a courier. A chaplain at the correctional centre where he was incarcerated provided a reference for him in very positive terms. The applicant's wife also wrote a letter setting out her difficulties without his support and speaking to his previous good character and remorse.

[4] The learned sentencing judge reviewed the applicant's background, as I have described it. She outlined the factors in the applicant's favour, including his remorse and acceptance of responsibility, and the favourable references from the chaplain and his wife, and took into account his HIV positive condition. Her Honour accepted that the plea of guilty was timely and that the applicant had co-operated as far as he could with the authorities.

[5] The prosecutor had referred the learned sentencing judge to the decision of R v Tran[1] and to some single judge decisions, including Umenyi[2]; in the latter case, a term of imprisonment for nine and a half years with a non-parole period of five years was imposed in respect of an importation of a similar amount of heroin concealed in a suitcase. The learned judge noted statements in some of the judgments to which she was referred to the effect that good character and relative youth did not assume great significance in such cases; nor did the fact that serving a prison sentence was harder for a prisoner in a strange country far from his family. She placed particular reliance on Umenyi, but noted that the co-operation in that case was not of the proportions of that given by the applicant. Taking the mitigating factors into consideration, she imposed the sentence of nine years imprisonment with a non-parole period of four years and nine months.

[6] The applicant complained here of some supposed errors or assumptions of fact by the prosecutor. He said that the prosecutor had described him trying to get under a customs barrier, with the implication that he was trying to flee, and had represented him as having brought the drugs from Dubai when, in reality, he had received them in China. As to the first, the applicant interrupted the sentencing judge to explain that he was simply trying to take a shortcut and the learned judge seems to have accepted that; as to the second, the error was not challenged by his counsel. In any event, both are entirely inconsequential.

[7] The applicant also took issue with the street value of the drug asserted at sentence, but that was not the subject of any challenge at the time. He said, too, that it was not made clear that his co-operation had started from the very beginning with his engagement with airport staff; but again, that was not the subject of evidence or submission at sentence. It would seem, in any event, to have very little bearing, when the crucial aspect of his co-operation was that given to the Federal Police, which was properly put before the sentencing judge in letter form.

[8] The applicant contended that the learned sentencing judge did not give appropriate weight to his co-operation, his remorse, his early plea of guilty, his health status, his present situation, his distance from his family and emotional support, the references put before her and the fact that he was a first time offender. In particular, he took issue with the way in which the mitigating factors were recognised in the sentence, with the non-parole period set at four years and nine months; that is, about 53 per cent of the way through the sentence. That form of sentence - with eligibility for parole set beyond the half-way mark - departs from usual sentencing practice in Queensland on a plea of guilty.[3] The learned sentencing judge, however, was informed by the prosecutor that it was generally accepted, in sentencing for Commonwealth drug offences, that an appropriate range for the non-parole period was between 60 and 66 per cent of the head sentence.

[9] Section 19AB of the Crimes Act 1914 (Cth) requires the court, in respect of a person convicted of a federal offence for which a sentence in excess of three years is imposed, to fix a non-parole period or make a recognizance release order, unless it decides that neither order is appropriate. The section does not provide any criteria by which the non-parole period is to be determined. Nor are any parameters set for it, other than the requirement in s 19AF that it not extend beyond the end of the sentence, as reduced by any remissions.

[10] At this Court's request, counsel for the respondent undertook to provide some information as to the practice of setting non-parole periods for Commonwealth drug offences at a point beyond the half-way mark of the sentence. An examination of sentence appeals from other jurisdictions bears out the statement of the prosecutor below. In R v Selim[4], for example, the New South Wales Court of Criminal Appeal observed,

"There is no rigid rule as to the proportion that a non-parole period should bear to the head sentence, but more often than not the non-parole period is more than fifty percent of the head sentence and is ordinarily of the order of 60% to 66 2/3% of it."[5]

Similar comments can be found elsewhere in the judgments of the New South Wales Court of Criminal Appeal.[6] The practice has been consistently applied in other states.[7] It does not seem, however, that any similar uniformity has developed in respect of Commonwealth offences which do not involve drugs.[8]

[11] The practice of setting non-parole periods in drug importation cases at around the two-thirds mark seems to have originated in New South Wales, where the idea of "truth in sentencing" reached its zenith with s 28A of the Probation and Parole Act 1983 (NSW). That section required a non-parole period for a serious offence to be at least three-quarters of the head sentence unless the court determined that the circumstances justified a shorter period. Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) currently requires for all offences where imprisonment is imposed that, in the absence of special circumstances, the ratio of the non-parole period to the balance of the sentence be at least 2:1.

[12] In contrast, in Queensland for many years, eligibility for parole for a prisoner not serving a life term, or (since 1997) not subject to a serious violent offence declaration, commenced, in the absence of an order, after the prisoner had served half of his term of imprisonment.[9] That regime still applies, albeit to a more limited class of prisoner.[10] As a result, the tendency has been to recognise mitigating factors such as co-operation with the authorities by setting a non-parole date earlier than that statutory half-way mark. But that statutory position has no application, direct or indirect, to the process of fixing a non-parole period for a Federal offence.[11] The setting of the non-parole period is, of course, a matter of individual discretion; but at the same time, in exercising Federal jurisdiction, consistency with decisions in other jurisdictions is, as this Court observed in R v Tran[12], desirable.

[13] The applicant submitted that the schedule of cases on which the prosecutor relied at sentence included many which were not relevant because some involved no co-operation, or less than he had given, and others more drugs than he had carried. But while it is certainly true that not many of the cases in the schedule turned on identical facts to those here, it did not mean that they could not afford guidance as to the appropriate range. Umenyi was clearly relevant. The point of distinction, the lack of co-operation by the accused in that case, was identified and taken into account by the learned judge. The applicant referred to two cases involving drug offences under State legislation, but they were not, for obvious reasons, of use as comparatives.

[14] R v Tran was one of the sentencing decisions involving broadly comparable circumstances to which the learned sentencing judge was referred. In Tran, this Court was considering a sentence of 15 years imprisonment, with a non-parole period of seven years, imposed on a courier who brought 2,159.4 grams of powder containing 1,473 grams of pure heroin into the country, cunningly concealed in fish pieces. The street value was said to exceed $1,000,000. The applicant had been offered $10,000 to deliver the drugs. He was 41 years old with two young children and had no previous convictions. He was a Sydney resident with a good work history.

[15] This Court, after a review of sentences imposed in other states, set aside the sentence passed as manifestly excessive. Its reasons for doing so were that the applicant was convicted of only one offence, which involved importing a marketable rather than a commercial quantity, and had co-operated in the administration of justice by pleading guilty on an ex-officio indictment and admitting his offences immediately he was detained. A sentence of 10 years imprisonment with a fixed non-parole period of five years was substituted. The applicant sought to argue that Tran was not relevant because it involved a greater quantity of heroin and less co-operation; but as already pointed out, variations in the underlying facts do not mean that a case is not of assistance.

[16] Counsel for the respondent here referred us to a second comparable appellate decision, of the New South Wales Court of Criminal Appeal in R v Mirzaee[13]. In that case, an Iranian citizen arrived with a suitcase containing a false compartment in which was found a package weighing 1,076 grams of white powder. It proved to contain 578 grams of heroin. The appellant there was almost 60 years old. He had three teenage children and had been driven to the crime by financial hardship. He had no previous convictions and had entered his plea of guilty at the earliest opportunity. He suffered from a heart condition which required monitoring and occasional hospitalisation for chest pain. The Court of Criminal Appeal found there had been error in the sentencing process below and exercised the sentencing discretion afresh. It imposed a sentence of nine years imprisonment with a non-parole period of four and a half years.

[17] In light of those decisions, and the authorities reviewed in R v Tran, the head sentence of nine years imprisonment imposed here was unremarkable. The setting of a non-parole period of 53 per cent of the sentence was not mandated by legislation, but was consistent with the practice in other drug importation cases, in this State and others, of setting the non-parole period beyond the half-way mark of the head sentence, at a point to be determined by the circumstances of the case. In the interests of comity between courts exercising Federal jurisdiction, that practice was properly followed. It is patent from the learned judge's sentencing remarks that she properly took account of all the mitigating factors in the applicant's favour. She might have made a greater allowance for the applicant's co-operation, but it was a matter of discretion. The sentence as a whole is not shown to be manifestly excessive, nor did the learned judge make any error in the exercise of her sentencing discretion.

[18] I would dismiss the application for leave to appeal against sentence.

[19] FRASER JA: I have had the advantage of reading the reasons for judgment of Holmes JA. I agree that the application should be refused for those reasons.

[1] (2007) 172 A Crim R 436; [2007] QCA 221.

[3] See R v Kitson [2008] QCA 86 and the authorities cited therein.

[4] [1998] NSWSC 165.

[6] R v Bernier (1998) 102 A Crim R 44 at 49; R v Viana [2001] NSWCCA 171.

[7] See, eg, R v Phong [2005] VSCA 149; (2005) 12 VR 17; R v Thomas [1999] VSCA 204; R v Ngui and Tiong [2000] VSCA 78; (2000) 1 VR 579; Mustafa v R (2002) 133 A Crim R 133; R v Cheng [1999] SASC 175; (1999) 73 SASR 502.

[8] R v Robertson [2008] QCA 164 at [18].

[9] Corrective Services Act 1988 (Qld), s 166(1)(d); Corrective Services Act 2000 (Qld), s 135(2)(e).

[10] Corrective Services Act 2006 (Qld), s 184.

[11] R v To & Do, ex parte Director of Public Prosecutions (Cth) [1998] QCA 106; [1999] 2 Qd R 166 at 170.

[13] [2004] NSWCCA 315.