_R v Oprea_

Judgment (64 paragraphs)

[1]

Director of Public Prosecutions (Commonwealth) for the respondent

[2]

[1] McMURDO P: Unlike Keane JA and Chesterman JA, I would grant this application for leave to appeal against sentence and allow the appeal. These are my reasons.

[3]

[2] The applicant, Constantin Oprea, was convicted after a three day trial of attempting to possess a marketable quantity of a border controlled drug, namely cocaine, that was unlawfully imported. His trial was shortened because of admissions he made at the trial, limiting the prosecution to proving the real issues in dispute. He was sentenced to 10 years imprisonment with a non-parole period of six years and six months. He originally appealed against his conviction and applied for leave to appeal against his sentence, but he has since abandoned his appeal against conviction. He now contends only that his sentence was manifestly excessive in the circumstances which, he says, should have been found by the judge at sentence.

[4]

[3] Oprea was 45 at the time of his offending and 46 at sentence. He had a criminal history in New South Wales. In 1982 he was ordered to perform 200 hours community service and to pay $33 compensation for the offence of break, enter and steal. In 1987, he was sentenced to 12 months imprisonment with probation after six months for counts of supplying and possessing heroin. Later that year, he was sentenced to 18 months imprisonment, reduced to six months periodic detention, for possession of a prohibited drug. In 1992, he was fined for possession of a prohibited drug and self-administering a prohibited drug.

[5]

[4] He had no criminal history for 15 years until committing the present offence, the circumstances of which were as follows. On 7 March 2007, Sydney Customs officers intercepted a parcel which had been posted from Costa Rica and was addressed to Daiana Grimes, 235 Jefferson Lane, Palm Beach on Queensland's Gold Coast. No-one of that name resided at that address. The package contained four boxes of chocolates inside each of which was a packet of cocaine concealed under a layer of chocolates. The cocaine weighed 1,975.5 grams and was 75 per cent pure, making a weight of 1,489.7 grams of pure cocaine. The marketable quantity of cocaine under s 314.4 Criminal Code Act 1995 (Cth) is between two and 2,000 grams. Police removed the cocaine, substituted flour, and reconstructed the package with a recording device. It was delivered to 235 Jefferson Lane on 14 March 2007 where an alleged co-offender, Simone Harris, resided. Another resident, Jesse Bradford, took delivery of the package and gave it to Harris. Within a few minutes of receiving the package, Harris unsuccessfully attempted to contact Oprea. Harris and Oprea attempted to contact each other at various times that day. When Oprea finally made contact with Harris, she said, "Big truck pulls up out the front (allegedly a reference to the Australia Post delivery van) ... Yeah and he drops off a Christmas present". They discussed arrangements for Oprea to pick up the "Christmas present" and for Oprea to take Harris to a service station at Worongary to collect her car which was being serviced or repaired there.

[6]

[5] Oprea collected Harris in his car at about 5 pm from 235 Jefferson Lane. Harris put the package in Oprea's car boot. Oprea drove Harris to the Worongary Caltex service station to collect her car. He then went shopping before taking the package to the home of a prosecution witness, Iaon Dobrovolski, at Crestmead. By the time Oprea arrived there, another man by the name of George Costica[1] was present, inferentially by arrangement. Oprea put down the package and said to Costica, "Well, aren't you going to open it? Aren't you curious as to what's in it?" Costica later gave instructions to Dobrovolski to burn the packaging. Oprea left shortly afterwards, empty-handed.

[7]

[6] The charge under Criminal Code (Cth) s 11.1 (Attempt) and s 307.6(1) (Possessing marketable quantities of unlawfully imported border controlled drugs) requires proof that Oprea knew or believed that border controlled drugs were supposed to have been contained in the package.[2] It follows that Oprea was convicted by the jury on this basis.

[8]

[7] The prosecutor at sentence made the following submissions. Oprea was a courier, an essential link in the chain of supply of these illegal drugs from Costa Rica into Australia. There was a commercial basis to his activities. Although there was no evidence of what he received, the judge should draw the inference that Oprea and Harris were receiving something from their involvement in the offence. Oprea was further up the hierarchy of the scheme of importation than Harris. The wholesale value of the cocaine was between $750,000 and $850,000 with a retail street value of about $2 million. The average purity of street cocaine was 35 per cent compared to the 75 per cent purity of the cocaine involved in this offence. The prosecutor handed the judge a schedule of comparable sentences which he submitted supported a head sentence of 15 years imprisonment after a trial.

[9]

[8] Defence counsel at sentence made the following submissions. Oprea was born in Romania and came to Australian in 1980 when he was 18 years of age, as a refugee. He became an Australian citizen in 1984. He had been married for 24 years and had two daughters aged 19 and 16. Whilst at school in Romania, he qualified as a fitter and turner. In his attempts to escape from Romania he had on two occasions been apprehended and bashed by the authorities. On his final and successful attempt to escape, he was shot in the leg. He had a good work history in Australia. He recently ran his own fencing business until suffering a back injury about four years before his sentence. He and his wife were then self-employed in their own business preparing badges for schools and clubs. He had never received unemployment or disability benefits. He was a diabetic but he controlled this illness with oral medication. Defence counsel urged the judge to find that the jury's verdict was consistent with Oprea having only transitory possession of the cocaine in transporting it from Palm Beach to Crestmead. Whilst the jury verdict showed that Oprea knew or believed there was something illicit in the package, it did not necessarily mean he had any particular knowledge that the package contained a large quantity of cocaine. This was supported by Oprea leaving the package in the boot of his car whilst he went shopping and by his relaxed social banter with Costica at Crestmead. After referring to a number of comparable sentences, defence counsel submitted that a head sentence of 15 years imprisonment was outside the range and a sentence of about eight years imprisonment was appropriate.

[10]

[9] In reply, the prosecutor emphasised that, as Oprea physically carried the package for a time, he would have appreciated its weight. This may have given him some indication of the quantity of drugs involved. Unlike many of the matters referred to by defence counsel, Oprea did not plead guilty or assist the authorities and nor was he an addict. Further, some of the sentences said to be comparable were imposed prior to 2002 and so were affected by s 16G Crimes Act 1986 (Cth) which provided that if a federal sentence was to be served in a state prison where state sentences are not subject to remission or reduction, the court imposing the sentence on the federal offence must take that into account in determining the length of the sentence and adjust it accordingly. Section 16G was repealed in 2002 and had no application to Oprea's sentencing.

[11]

[10] After referring to the uncontested facts, the judge made the following observations in sentencing Oprea. There was no evidence of any exchange of money to Oprea's benefit. The jury's guilty verdict meant that Oprea should be sentenced on the basis that he was aware there was some illicit drug in the package. The weight of the package, its origin in Costa Rica, and Oprea's handling of it led to the conclusion that Oprea knew the package contained an illicit drug and he probably knew that it was "a non-trivial amount and part of a more significant exercise than may otherwise be the case where couriers are asked to take illicit drugs from one place to another". It was appropriate to sentence Oprea as a courier, but on the basis that he knew there was an illicit drug in the parcel and this was part of an operation which was a significant importation into Australia of a large amount of valuable cocaine.

[12]

[11] The judge also noted the following matters. The maximum penalty for the offence was 25 years imprisonment. A deterrent penalty was required because of the difficulty in detecting and preventing offences of this kind and the significant consequences to the Australian community of bringing illegal addictive drugs into Australia. Oprea was not, however, an organiser of the importation. He was not shown to have any detailed knowledge of the contents of the package, although he well knew its contents included an illegal drug of a not insignificant amount. The judge referred to Oprea's personal history and circumstances and to the cases of R v Tran,[3] R v Otto,[4] R v Bernier[5] and R v Thomas[6] which the parties suggested were comparable. Oprea did not have the mitigating benefit of a plea of guilty. In all these circumstances, a sentence of 10 years imprisonment with a non-parole period of six and a half years was appropriate.

[13]

[12] Mr McMillan, who appears for the applicant, submits that the judge erred in concluding that Oprea probably knew the package contained a non-trivial amount of a border controlled drug and was "part of a more significant exercise than may otherwise be the case where couriers are asked to take illicit drugs from one place to another". The leisurely journey Oprea took from 235 Jefferson Lane, Palm Beach, to Crestmead and his remaining at the Crestmead house and engaging in social chit-chat were inconsistent with him knowing that he was in possession of a large quantity of illicit drugs. The fact that Oprea carried the package and was aware of its weight had no relevance unless Oprea knew the nature, quantity and purity of the drug. There was no evidence he was aware of any of those matters. The cases to which his Honour referred, when applied to the very limited involvement of Oprea in this offence, did not justify the sentence imposed.

[14]

[13] The jury's guilty verdict, which is no longer challenged in this application, means that the jury were satisfied beyond reasonable doubt that Oprea knew or believed that border controlled drugs were supposed to have been contained in the package.[7] The judge was entitled to form his own view of the facts at sentence, consistent with the jury's verdict: Cheung v The Queen.[8] Under s 132C Evidence Act 1977 (Qld), the judge could find facts at sentence if satisfied of them on the balance of probabilities, with the degree of satisfaction required rising with the level of adverse consequences of the fact to the offender. The judge was entitled to infer from Oprea's conduct, in light of and consistent with, the jury verdict that Oprea knew he was part of significant importation of what was supposed to be a marketable quantity of the border controlled drug, cocaine. In the absence of any mitigating explanation from Oprea, the judge was entitled to conclude from the jury verdict and the evidence that Oprea was generally aware of the quantity and nature of the drug involved or was recklessly indifferent to it: R v To[9] and R v Chedid.[10]

[15]

[14] The judge was also entitled to sentence Oprea on the basis that he was a courier of the drug. There is persuasive authority that the culpability of a domestic courier or collector of recently imported drugs is regarded as comparable to the culpability of an international courier: see Laurentiu and Becheru v R[11] where Wood J (Sharpe J agreeing) noted that there was no:

[16]

"distinction, in logic or common sense, between the criminality of a courier and of the person who collects the drugs from him after arrival in the place of importation, or for that matter, of the person who packs or delivers the drugs to the courier in their place of origin ...

[17]

Every bit-player participating in the importation/distribution chain, whether dispatcher, courier, clearer, warehouser or street dealer, is essential to the evil trade in drugs. Without their participation no drugs can be moved or sold, there are no profits, and the hidden financiers and principals who share the vast profits of the illicit trade with the workhorses, to limit their own exposure, would disappear."[12]

[18]

[15] It cannot be a mitigating factor that offenders involved in the importation of drugs are not demonstrated to know the nature and value of the drugs because they have chosen not to cooperate with the authorities. The criminality of such offenders must be measured by the nature and quantity of drugs with which they were involved: R v Schofield.[13] That is not to say, of course, that bit-players are sentenced as the "Mr Bigs" of drug importation, but they must be sentenced to significant deterrent penalties reflecting the drugs which they are helping to import.

[19]

[16] This Court recognised in R v Tran[14] that, when sentencing federal offenders, Queensland courts can take into account comparable sentences imposed by other Australian intermediate courts of appeal. Tran cautioned, however, that Queensland sentencing courts must be careful to ensure when considering interstate sentences that they are comparing like with like.[15] State courts in sentencing federal offenders tend to be influenced by the sentencing regimes apposite in that state. It is, for example, common in federal sentencing in states other than Queensland, for offences involving the importation of drugs for a parole release date to be set after 60 to 65 per cent, even where the offender has pleaded guilty and cooperated with the authorities. See, for example, Okeke v R[16] and Serrette v R.[17] By contrast, ordinarily when Queensland offenders are sentenced, a parole eligibility date is not set after the half way point unless there is a compelling reason to delay it. This is to encourage the rehabilitation of offenders: R v Griinke,[18] R v Whelan,[19] R v Hundric[20] and R v Torrens.[21]

[20]

[17] In the Queensland case of Tran, the offender pleaded guilty to acting as a courier in the importation of 1,473 grams of pure heroin in barrels of fish on a flight from Cambodia. He was 41 years old, had no previous convictions and had a good work history. He was initially sentenced to 15 years imprisonment with a non-parole period fixed at seven years. On appeal, his sentence was reduced to 10 years imprisonment with a non-parole period of five years. Tran confessed on the day of arrest and offered information about others involved.

[21]

[18] In the Queensland case of R v Mokoena,[22] the offender pleaded guilty to importing a marketable quantity of heroin. He did so by ingesting 80 pellets containing 497.5 grams of pure heroin in Dubai, on his way to Australia. He was to be paid $10,000 upon arrival here. He committed the offence to pay off debts. He cooperated very substantially with police, was remorseful and indicated an early plea of guilty. He was sentenced to nine years imprisonment with a non-parole period of four years and nine months. This Court refused his application for leave to appeal.

[22]

[19] Determining the appropriate sentence for Oprea was a difficult task because of the limited information available as to his involvement in and knowledge of the importation of the cocaine which police intercepted and substituted with flour. Oprea transported the package, which he thought contained illicit drugs, from Palm Beach to Crestmead. The maximum penalty for this offence was 25 years imprisonment. Oprea was a mature man with some relevant criminal history, although he had not been convicted of any offences for 15 years. He could not benefit from his refusal to assist the authorities. He had to be sentenced on the basis that he was a knowing participant, for profit, in the attempted possession of what he thought was a border controlled drug, namely, 1,489.7 grams of pure cocaine with a wholesale value of at least $750,000 and a street value of $2 million. The judge, rightly in my view, considered that Oprea was more involved than his co-offender Harris but less involved than his co-offender Costica. I find comparing this case to Tran and Mokoena of limited use. Tran and Mokoena played a far more active role in the importation of border controlled drugs for profit than did Oprea. On the other hand, Oprea (unlike Tran and Mokoena) did not cooperate with the authorities, either by pleading guilty or by passing on information about others involved. Nor did Oprea have Tran's and Mokoena's mitigating explanations as to how they came to be involved in this evil business. Oprea had to be sentenced to a heavy deterrent penalty for his attempt to possess a significant quantity of the recently imported border controlled drug, cocaine, valued at up to $2 million. He also had to be sentenced in accordance with the sentencing principles stated in s 16A Crimes Act 1914 (Cth).

[23]

[20] Although this matter was not discussed at sentence, it was of some limited significance that Oprea did cooperate with the authorities in the way his trial was conducted. Oprea admitted crucial facts which saved the prosecution the difficulty and expense of proving them, namely:

[24]

"1. On 7 March 2007 a package sent by international parcel post from Costa Rica arrived in Australia at Sydney. It was addressed to Daiana GRIMES of 235 Jefferson Lane, Palm Beach 4221, Queensland, Australia.

[25]

Upon arrival the package was inspected by Customs Officers. It contained four boxes each labelled 'Bon o Bon' chocolates. Customs Officers opened one of the boxes and found inside a number of individually wrapped chocolates and a 'Foodsaver' bag wrapped in clear tape. Preliminary testing on the contents of the 'Foodsaver' bag indicated the presence of cocaine.
The package and its contents were transferred to Australian Federal Police for further examination and investigation.
Subsequent examination revealed that each of the four "Bon o Bon" chocolate boxes contained impure cocaine. The total amount of impure cocaine recovered from the boxes was 1,975.5 grams. The cocaine was approximately 75% pure. The total pure weight of cocaine was 1,489.7 grams.
On 14 March 2007, the reconstructed package was delivered to 235 Jefferson Lane Palm Beach. A male occupant of the house, Jesse Bradford, took initial delivery of the package and then gave it to Simone Harris who was present at the time.
The package from Costa Rica was inside the plastic box that Harris placed in the boot of the Holden Commodore at approximately 5:05pm on 14 March 2007."

[26]

[21] Unfortunately, the learned sentencing judge was not asked to consider this factor as a mitigating feature. As this was not canvassed at first instance, it is not clear how much court time and public resources were saved through Oprea's admissions at trial. They obviously resulted in some savings to the community. Those charged with criminal offences should be encouraged to admit non-contentious matters at trial, thereby saving the prosecuting authorities the trouble and expense of proving them. This can be achieved by giving an appropriate discount, if convicted, at sentence. Any discount will depend on the extent of the resulting savings to the authorities and the community. The judge's omission to do so in this case is plainly because his Honour was not asked to do so, but it is a matter deserving of some specific, modest mitigating benefit in the sentence subsequently imposed.

[27]

[22] Every case turns on its own facts and none of the comparable decisions to which this Court has been referred is closely apposite to the unusual facts of this case. The abuse of drugs like cocaine places a heavy burden on Australian society. The sentencing judge rightly recognised that Oprea's conduct deserved a correspondingly heavy penalty to deter Oprea and others from committing such serious offences. But the review of the cases to which this Court was referred persuades me that the sentence imposed was beyond the appropriate range, taking into account Oprea's role in the offence; his limited co-operation in making sensible admissions at his trial; and his solid work history. A sentence of nine years imprisonment with a non-parole period of four years and six months provides the necessary deterrence to Oprea and those like him who might try to become involved in the possession of significant quantities of valuable, recently imported, border controlled drugs like cocaine.

[28]

[23] I would grant the application for leave to appeal, allow the appeal and vary the sentence imposed by substituting nine years for 10 years and four and a half years for six and a half years. I would otherwise confirm the sentence imposed at first instance.

[29]

[24] KEANE JA: The President has comprehensively stated the circumstances of this offence and the grounds of the application for leave to appeal. Accordingly, I am able to proceed directly to a discussion of the matters on which the decision of this Court must turn. On those matters, I am respectfully of a different view to that taken by her Honour.

[30]

[25] As to whether the learned sentencing judge could be said to have erred in failing to recognise the applicant's "limited cooperation in making sensible admissions at trial", I am respectfully of the view that the sentencing judge was not obliged to take that matter into account in the circumstances of this case. It is certainly not open to this Court to conclude that his Honour erred in failing to do so.

[31]

[26] There was no submission made to the learned sentencing judge that the admissions made by the applicant at trial should have been taken into account by way of reduction of his sentence. Indeed, no submission was made to this Court that there was some real utilitarian value in these admissions which should have been, but was not, reflected in the sentence imposed on him.

[32]

[27] It is certainly not apparent from the record that the witnesses necessary to give the evidence the subject of the admissions had not been marshalled prior to trial so as to be available to give evidence. One cannot gauge the real nature and extent of the utilitarian value of the submissions, but the fact that no-one thought to suggest to the learned sentencing judge that the making of the admissions was deserving of recognition by way of moderation of his sentence tends to suggest that the admissions may not have been of any substantial utilitarian value to the administration of justice.

[33]

[28] In these circumstances, this Court cannot regard the absence of a "credit" for the applicant's admissions at trial as an error which warrants the fresh exercise of the sentencing discretion.

[34]

[29] As to the proposition that the sentence was manifestly excessive because of a failure to recognise the applicant's limited role in the offence, it seems to me, with respect, that to so describe the applicant's role is to fail to give adequate recognition to the fact that he was a necessary part of an international network engaged in the importation of cocaine.[23] The cocaine in question had a retail street value of about $2 million. That much is known about the applicant's offending. It is enough to establish that the applicant's offending was integral to the importation of a large amount of cocaine from an overseas source. The gravity of the offence and the importance of the applicant's role is in no way diminished because the applicant played his part in the importation only locally and because the remuneration, if any, received by the applicant is unknown.

[35]

[30] That no more is known about the circumstances of the applicant's offending is due to the circumstance that he has remained steadfast in his silence about the network of which he was a part and the precise nature of his role in that network. Of course, the applicant should not be subjected to a harsher punishment than would otherwise be appropriate to the criminality of his offence because he has not chosen to cooperate with the authorities by disclosing details of the nature and extent of his role; nevertheless, he is not to be rewarded by the administration of justice for his loyalty to his co-offenders. His failure to disclose the circumstances of his involvement in this importation means that a sentencing court cannot give him the benefit given to those who, like the offenders in Tran and Mokoena,[24] are prepared to disclose the nature and extent of their role in the criminal enterprise.

[36]

[31] When one adds to these circumstances the fact that the applicant does have a relevant criminal history, his case compares distinctly unfavourably with that of Tran who had no previous convictions and confessed immediately on his apprehension. Tran gave information to the authorities about others involved in the importation. Tran pleaded guilty and was sentenced to 10 years imprisonment with a non-parole period of five years by this Court.

[37]

[32] In my respectful opinion, reference to the sentence which this Court imposed in Tran confirms that the sentence imposed by the learned sentencing judge was within the range of sentences reasonably available in this case. I am respectfully unable to see how the cases reviewed by the President establish that the sentence imposed in this case was outside the range of a sound exercise of the sentencing discretion. Both the applicant and Tran acted as couriers in the operation involving the importation of a large quantity of a border controlled drug. The observations of Wood J in Laurentiu & Becheru v The Queen[25] that no logical or common sense distinction can be drawn in terms of their criminality seem to me to apply here.

[38]

[33] In my respectful opinion, the sentence imposed on the applicant by the learned sentencing judge was not affected by error. There is no occasion for intervention by this Court.

[39]

[34] I would refuse the application for leave to appeal.

[40]

[1] In much of the material before this Court "Costika" has been used.

[41]

[2] See Criminal Code s 11.1(3) (intention and knowledge relevant to an attempt) and s 5.2(2) (a person has intention with respect to a circumstance if he or she believes that it exists or will exist).

[42]

[3] [2007] QCA 221.

[43]

[4] [2005] NSWCCA 333.

[44]

[5] (1998) 102 A Crim R 44.

[45]

[6] [1999] VSCA 204.

[46]

[7] See [6] of these reasons.

[47]

[8] [2001] HCA 67; (2001) 209 CLR 1.

[48]

[9] [2007] NSWCCA 200; (2007) 172 A Crim R 121, Handley AJA at [2], Hulme J at [17]-[18] and Hall J at [98].

[49]

[10] [1993] QCA 543, Davies JA, with whom McPerson JA and Thomas J agreed, at [9]. See also R v Kevenaar [2004] NSWCCA 210; (2004) 148 A Crim R 155 at [77] and R v Kaldor (2004) 158 A Crim R 271 at [103] - [104].

[50]

[11] (1992) 63 A Crim R 402, Wood J at 417.

[51]

[12] See also R v Taru [2002] NSWCCA 391 at [14], and cf Huang v R [2000] NSWCCA 238; (2000) 113 A Crim R 386 and MacGregor v R [2000] NSWCCA 552; (2000) 120 A Crim R 24.

[52]

[13] [2003] NSWCCA 3; (2003) 138 A Crim R 19, Hulme J at [27]-[28], Carruthers AJ, Heydon JA agreeing, at [150].

[53]

[14] [2007] QCA 221; (2007) 172 A Crim 436, Keane JA at [8], Atkinson J at [31]-[33], White J agreeing with both.

[54]

[15] R v Tran [2007] QCA 221; (2007) 172 A Crim 436, Keane JA at [8].

[55]

[16] [2005] NSWCCA 444, where a sentence of nine years imprisonment with a non-parole period of six years was imposed for importing a total weight of 386.1 grams of pure cocaine.

[56]

[17] [2000] WASCA 405, where an importer of 925.4 grams of pure cocaine concealed in shoes in his luggage was sentenced to 10 years imprisonment with a non-parole period of six years. He received $10,000 payment for his part in the crime.

[57]

[18] [1972] 1 Qd R 196.

[58]

[59]

[60]

[61]

[62]

[23] Cf Laurentiu & Becheru v The Queen (1992) 63 A Crim R 402 at 417.