R v QUANSAH [2000] NSWCCA 64 | Case summary

3 BARR J: This is a Crown appeal against what is said to be the inadequacy of a sentence imposed on the respondent in the District Court. On 23 July 1999 the respondent pleaded guilty to a charge of importing into Australia not less than the trafficable quantity of cocaine. On 28 September 1999 Williams DCJ sentenced him to four years and eight months' imprisonment, commencing on 10 June 1999, the day of his arrest, and fixed a non-parole period of two years six months. 4 The maximum penalty for the offence is twenty-five years' imprisonment or a fine of up to $100,000 or both. 5 On 10 June 1999 the respondent arrived at Sydney Kingsford Smith airport on a flight from Tahiti. In his luggage was a wooden statue containing 2.985 kilograms of a cocaine mixture, the equivalent of 643.7 grams of pure cocaine. 6 The respondent was taken into police custody and admitted that the statue contained narcotics but declined to specify what sort. He denied concealing the drug. He said that he had purchased the statue near Santiago with the drugs already packed and hidden within it. He said the drugs were solely for his own use. Later on he admitted that the contents were cocaine and said that he had paid $2,000 for the statue and had been told at the time of purchase that it contained one to one and a half kilograms. He repeated that it was for his own use. 7 He had on him a business card which bore what was apparently the name of an organisation, Seguel Holdings. It contained his name and a description as sales director together with a Maroubra post office box number and a mobile telephone number. 8 The respondent also possessed a Commonwealth Bank keycard issued in the name of Mr D Seguel. 9 Police officers were unable to find a listing of Seguel Holdings as a company or a business name or to identify any business actually trading under that name. They searched the respondent's apartment in Sydney and found among other things a piece of paper bearing the name Dario Seguel and an address in Santiago, Chile. There was also an address book with an entry in the name Marie and Dario and a business card styled "Seguel Holdings - Marie A Christia - Director. 10 The post office box listed on the card found on the respondent turned out to be leased in the name of Marie A Christia. 11 Further inquiries showed that the respondent had travelled from Sydney to Chile four times between October 1998 and January 1999, staying two or three weeks on each occasion. 12 The respondent gave evidence before the sentencing judge. He said that he had begun using cocaine about two years previously. It was not long before he came to depend on its use. He met a man called Dario Seguel and his fiancée Marie Christia in Sydney and they became good friends. Eventually he found that they had business interests. One was to run an hotel in Miami. Another was to build an Australia theme pub in Santiago, Chile. They also intended to open up bottle shops in South America. 13 He began to work for them and that explained how he came to travel to South America for the periods that I have mentioned. On an occasion or occasions he took with him samples of Australian beer and wine. Seguel Holdings paid for his fares, accommodation and incidentals and supplied him with the keycard that was found. 14 He said that Mr Seguel ordinarily lived in Maroubra. 15 The visit from which he was returning when he was arrested was undertaken to finalise some licences. By that time he was using between five and ten grams of cocaine per week. He was borrowing in order to purchase it and was in financial trouble. Whilst he was in a town in Chile whose name he could not remember he was introduced to a man in a nightclub. That led to his introduction to persons who were prepared to sell him cocaine, which he was attempting to buy for his own use. He asked for one kilogram and they said that it would cost $2,000. When he went to collect the drug they told him that they had given him a little bit more than one kilogram. The cocaine was already wrapped and packed inside the statue and he had no practical means of examining it. He always believed that he had about a kilogram or a kilogram and a half and he always intended to use it all himself. 16 Ms Marie Christia gave evidence. She said that she was the fiancée of Dario Seguel. He had a business called Seguel Holdings. That organisation carried on business in South America but not in Australia. She was not a director of the business in Australia. Mr Seguel ordinarily lived in Sydney but at the time of sentence was absent in South America for an extended period. The respondent had worked for the business and had travelled to South America for the business. Seguel Holdings had paid his fares and expenses. It was not concerned in the importation of cocaine. 17 His Honour disbelieved most of the evidence of the respondent and of Ms Christia. He did not accept that the prior visits to South America had taken place for the purposes described by the respondent. He accepted that Mr Seguel existed, but was not satisfied that he funded the respondent's travels or provided him with a keycard. 18 Although his Honour suspected that persons other than the respondent were involved in the importation of cocaine, the evidence fell short of proof. The evidence of the respondent's prior visits to South America did nothing to explain the part played by the respondent in the importation of which he was convicted. 19 His Honour rejected the evidence of the respondent that he believed that there was no more than one or one and a half kilograms of cocaine in the statue and that he intended to use it all himself. He accepted, however, that the respondent was addicted to the use of cocaine and that he would have used some of it for himself. 20 In a pre-sentence report which was tendered the respondent is recorded as having told the Probation and Parole officer that the offences (sic) were committed to fund the respondent's own drug use. 21 Having reviewed his findings about these matters, his Honour said this - The findings I have made above and the prisoner's admissions put him not in the category of a courier but as the principal who organised the importation. Whilst I may suspect that others were also involved there is no direct or believable evidence to satisfy me of that even on the balance of probabilities. 22 His Honour went on to deal with other matters and then returned to the subject, saying - The difficulty I have with this matter is that where in the hierarchy the prisoner should be placed, bearing in mind that a more serious alleged involvement has not been proved. In my view what can be established is that the prisoner intended to use some of the drug himself but was probably going to sell the rest. 23 His Honour referred to certain cases relied on by the Crown and continued - None of the comparative verdicts submitted by the Crown are really on point. They basically deal with persons who have admitted they were involved in a chain of supply in one form or another. That is not the case here, either proved by the prosecution or indeed alleged by the defence. 24 In R v Olbrich [1999] HCA 54 Gleeson CJ, Gaudron, Hayne and Callinan JJ did not accept that the identification of the precise nature of an accused's involvement in an act of importing a prohibited import is an essential aspect of the sentencing process. Their Honours said [at para 14] - It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate. 25 Their Honours went on to refer to the distinction between couriers and principals and observed that where several persons are charged concerning an importation it will be necessary to identify the relative roles of the actors in order to impose differential sentences in a principled way. That will from time to time lead to the categorisation of some offenders as principals and others as couriers. But the categorisation of an offender as a principal or as a courier must not obscure the assessment of what the offender did. 26 It was submitted on behalf of the Crown in the present appeal that, given his Honour's findings that the respondent was a principal who organised the importation and that there was insufficient evidence to establish that others were involved, the respondent should be treated as a "sole trader". I would resist the addition of such an expression to the terminology which already accompanies the sentencing process. In my opinion, the labelling of roles may be useful in assessing the part and criminality of an offender, but it might also divert the Court from its primary duty of describing the part played by the offender as extensively and precisely as the evidence will allow. 27 It is not clear what his Honour meant in his reference to the difficulty of ascertaining where in the hierarchy the respondent should be placed, given that his Honour had already found that the respondent was the principal who organised the importation and that the evidence did not enable a finding that anybody else was involved. In my opinion the respondent fell to be sentenced as one who had organised the purchase of the cocaine in South America, had purchased it and had imported it. The amount that he imported was the amount he intended to import. The pure cocaine content was 643.7 grams. He would have supplied the greater part to others after reserving some for his own use. 28 In R v Wong & Leung [1999] NSWCCA 420 this Court said that ordinarily a bare courier who pleads guilty to importing a quantity of the drug within the range with which we are here concerned should receive a head sentence of between six and nine years, after allowance for the lack of remissions in New South Wales. That range is only a guide, of course, and in appropriate circumstances it may be proper to impose a greater or lesser sentence. 29 The respondent is a thirty-one year old separated man. He has a good work history. He pleaded guilty. His Honour found in his favour that his addiction to the use of cocaine would have made it more difficult to resist the temptation to become involved in the importation. The substantial untruths he told to the sentencing judge explain why his Honour made no finding of remorse. 30 In my opinion the sentence imposed was manifestly inadequate, particularly the non-parole period of two and a half years. It would have been insufficient to reflect the respondent's criminality as a bare courier. As it was, his role was more substantial than that. Because this is a Crown appeal, the sentence which I propose is somewhat less than ought to have been imposed at first instance. 31 I propose the following orders -

R v QUANSAH

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