R v Ricky Gaganjot SINGH

Judgment 1HIS HONOUR: On 14 February last after a jury trial lasting some 15 days, the offender was found guilty of the single charge contained in the indictment presented against her, being that contrary to s 307.1(1) of the Criminal Code 1995 (Cth), on 25 April 2013 at Sydney, she did import a commercial quantity of a border controlled drug, namely methylamphetamine. 2The maximum penalty for this offence is life imprisonment and or 7,500 penalty units. 3The commercial quantity of methylamphetamine relevant to this offence is an amount of 750 grams or higher. In the present matter, there is no issue that the amount of pure methylamphetamine imported was 4.767 kilograms. The bulk amount was 6.9368 kilograms which analysis revealed contained 80.3% pure methylamphetamine.The bulk amount was found inside four chocolate boxes in the offender's luggage which she had brought with her on a flight from Toronto, Canada, via Vancouver. 4At the sentence hearing conducted on 9 May last, there was a dispute as to the facts. The primary area of contention was as to the level of involvement of the offender in the commission of the subject offence. 5In short, the Crown argued that I would be satisfied beyond reasonable doubt that the offender was actually aware that the chocolate boxes found in her luggage which contained the methylamphetamine were filled with some form of illicit substance which she intended to import. 6On the other hand Mr McCrudden, on behalf of the offender, argued that I could not be so satisfied and would find that the offender was reckless as to the importation as defined in the Code. 7In this regard, the Crown case as left to the jury was in the alternative, namely, on the basis of actual knowledge or recklessness on the part of the offender. 8There was no issue that the offender booked her economy class ticket with Air Canada online from her home on 19 April 2013 and picked up the ticket the next day from a travel agent in Toronto, paying at that time some $2,200 Canadian in cash. Her flight was to leave Toronto at 8.20pm on 23 April 2013 and arrive into Sydney at 8.15am on 25 April 2013. Her return flight from Sydney left on 7 May 2013. 9It was also common ground that the offender booked three nights accommodation through an online travel agency the day before she left. Such accommodation was at the Stamford Plaza, Stamford Airport Hotel in Sydney. 10After arriving off her flight on the morning of 25 April 2013, the offender was originally interviewed by Customs officers at Sydney Airport when she denied knowledge of the drugs found but said little else as to the circumstances of the offence. She then spoke to police and made certain offers of assistance to them, a subject to which I will return later, but she declined to give a formal interview. 11Over two months later, in July 2013, the offender provided the Federal Police with an extensive voluntary statement and agreed to be formally interviewed thereafter. She also gave lengthy and detailed evidence at her trial and was in the witness box for almost three days. 12In her voluntary statement and subsequent interview and in her evidence, she maintained that she had agreed to carry certain "gifts" as a favour for a person known as "Sammy" whom she had met some five or so times in Toronto through a friend named Jessica. She said she first met Sammy on 18 April 2013, some six days prior to her day of departure. She said that in Sydney these gifts were to be picked up by persons known to Sammy but not to her after she telephoned him confirming her arrival whereupon he would contact such persons. She only found out that these gifts included the relevant chocolate boxes when she received them in a suitcase she had asked to borrow from Jessica and noticed them inside. She said she needed to borrow a suitcase as her own luggage had been filled with her possessions in preparation of her moving to Vancouver after her return, a matter which I will refer to later. 13It was the offender's position at trial that in effect Sammy was a very good con artist who worked in conjunction with Jessica and whom befriended the offender and tricked her into taking the chocolate boxes to Sydney in the belief that these "gifts" contained only chocolate and that it was not until they were opened by Customs officers in Sydney that the offender realised she had been duped. 14Further, so complete was this deception of the offender that, according to her, at no time was she aware of a risk, substantial or otherwise, that any of the boxes contained an illegal drug or illicit substance. 15It was the Crown's primary position at trial that, in essence, the offender's story was so unbelievable that it should be rejected by the jury whom should find beyond reasonable doubt that she knew there were drugs in the chocolate boxes and she intended to import them. 16As mentioned, the Crown's alternative case was the offender must at the very least have been aware of a substantial risk that one or more of the boxes contained an illicit substance and in the circumstances known to her it was unjustifiable to take that risk and she was therefore reckless in law. 17I do not intend to summarise the evidence of the offender, nor the parties contentions as to facts as contained in MFIs 1 and 2 on sentence. Having sat through all of the evidence, I am strongly suspicious that the offender did know that an illicit substance was inside one or more of the chocolate boxes but I cannot be satisfied of this fact beyond reasonable doubt. 18In this regard, some not insignificant parts of her lengthy description of the events which she said occurred consequent upon being introduced to Sammy were corroborated by her mother and sister whom gave evidence on her behalf. 19The offender also declared the chocolate boxes on her incoming passenger card, although this was after she had been questioned by a Canadian Customs officer during a transit stop at Vancouver Airport about, inter alia, why she had purchased her ticket to Australia shortly before her departure. 20Further, the evidence establishes that the offender paid for her own airline ticket, did not use drugs and was gainfully employed in Canada. She also did not waiver in her evidence despite searching cross-examination and was quite a persuasive witness, at least as to the issue of whether she actually knew what was in the chocolate boxes. 21As I am not satisfied beyond reasonable doubt that the offender did know that an illicit substance was inside one or more of the chocolate boxes and therefore intended to import that substance, on the basis of the jury's verdict, I must find that the offender was reckless as defined. 22However, I am not only satisfied beyond reasonable doubt that she was reckless but that the degree of her recklessness was moderately high and, further, that such recklessness did not arise only after the suitcase containing the chocolate boxes were delivered into the offender's possession as Mr McCrudden argued. 23In this regard the evidence establishes the following matters to the standard mentioned: (i)The offender had only known Sammy for less than a week. (ii)Sammy was introduced to her as being a friend of Jessica's boyfriend whom the offender had never met. (iii)Sammy told her nothing at any point about the "gifts" he wished her to bring to Australia. (iv)Sammy did not deliver the "gifts" to the offender until very shortly before she needed to leave for the airport despite her requesting them several times before this. (v)The offender was told nothing by Sammy about the identity of the persons who were to receive the relevant chocolate boxes in Sydney, nor how to contact them, with the arrangement apparently being that she would contact Sammy upon her arrival and he would then contact them. (vi)The drugs inside the four chocolate boxes in question were in a crystalline form and effectively filled the entire inside of each box and were not insignificantly heavier than their marked weights. The two "Laura Secord" boxes each weighed just under 1.2 kilograms, whereas they were marked "800 grams". The two "Purdy's" boxes weighed just under 2.4 kilograms, whereas they were marked as 2 kilograms. Even if the marked weights were with respect to their next contents the cardboard and the wrappings did not explain such a differential. These facts would be irrelevant if the offender did not handle the boxes at some point about which there is a dispute. The offender said she did not examine the chocolate boxes at all despite, as was accepted by Mr McCrudden in MFI 2, their amateurish wrapping. Indeed, she gave evidence that the boxes could have contained anything at all. She also said that she had no need to touch them as they were in the bottom of the bag when it was delivered to her and she simply packed all her belongings on top of them.I am satisfied beyond reasonable doubt that this was not the case as the CCTV footage of the Customs search clearly shows one of the boxes being removed from close to the top of the bag and some of the offender's possessions being removed after some of the other boxes were taken out. This was also the evidence of the relevant Customs officer. Accordingly, I am similarly satisfied that the offender did handle the boxes at some point which should have revealed something unusual as to their contents because of their weight and or the solid nature of such contents. I am reinforced in this finding by the history recorded by the psychologist, Dr Protulipac, whose report was tendered on behalf of the offender. In it, he records the offender as stating that she had handled the chocolate boxes "whilst adding her belongings into the suitcase." Even if I am wrong in this finding, failing to examine the boxes at all in the circumstances hardly bespeaks a lesser degree of recklessness. (vii)As mentioned the offender was questioned at Vancouver Airport during a transit stop about a number of matters which in my view should have emphasised to her the risk that she had taken. 24In making this finding of a moderately high degree of recklessness, I have taken into account Mr McCrudden's submission that the offender was at a stressful time in her life based on her corroborated evidence that shortly before coming to Australia her father had died and her family was pressuring her to relocate with them from Toronto to Vancouver, thereby moving her away from her employment, friends and her boyfriend. Even after doing so, I remain satisfied beyond reasonable doubt as to this finding. 25As to the issue of presentence custody, the offender has remained in custody since her arrest on 25 April 2013. Accordingly, I intend to backdate the commencement of the sentence imposed below to such date. 26As to the offender's prior criminal history, she was born in Canada on 31 August 1988 and is now 25 years of age. She has no prior history either in that country or in Australia. 27The evidence referred to below also establishes that, apart from the subject offending, she is of excellent character. 28Whilst I have taken these matters into account in her favour, it is well established that the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence than for many other offences, R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]; R v Leroy (1984) 2 NSWLR 441 at [446]-[447]. This principle is of particular relevance in relation to drug couriers where persons with clear records are selected so as not to attract suspicion. 29As to the offender's role, Mr McCrudden submitted that it was likely this was limited to that of a "mule" or courier, whereas, the Crown submitted that her role was that of a principal in the importation even if I determined she was reckless as to the content of the chocolate boxes rather than being actually aware that such contents comprised an illicit substance. 30As to her motivation, Mr McCrudden argued that there was no evidence that the offender was paid or was to be paid for her role and he emphasised the evidence established that she bought her own airline ticket and she had not inconsiderable sums of money available to her courtesy of her three jobs in Canada. In essence, he argued that I should find that the offender's motivation was only to do Sammy "a favour." 31On the other hand, the Crown argued that there was evidence of the offender needing money for her studies as contained in certain text messages she sent to a person called Sadia in late March 2013. 32The Crown also argued that the "common sense" inference to be drawn from the offender's involvement in an importation of methylamphetamine with an agreed street value of almost $4.5 million and an agreed wholesale value of about $1.5 million was for the purpose of profit and I was referred to such decisions as R v Kaldor (2004) 150 A Crim R 271 at [104]. 33In Olbrich v The Queen (1999) 199 CLR 270 the High Court explained that characterising the role of an offender as a "courier" or a "principal" must not obscure the assessment of what the offender did. 34However, in the present matter, whilst I am, as stated, strongly suspicious that the offender's role was greater, I am not satisfied beyond reasonable doubt that what the offender actually did can be characterised as acting as anything more than a courier. In this regard, there is no evidence that she planned the relevant importation or exercised any managerial role or decision making function. 35Nevertheless, whilst it is true that those whose role, as here, can be accurately characterised as that of a courier generally receive a lesser sentence than persons at a higher level in the drug hierarchy (see Tyler v R (2007) 173 A Crim R 458 at [79] - [80]), appellate courts have emphasised that even "minor participants" are essential for the successful importation of drugs and therefore play a significant role in that criminal enterprise thereby rendering it necessary for appropriately salutary sentences to be imposed upon them; R v Turkmani (2002) 133 A Crim R 328. 36As to her motivation, the evidence is such that I am unable to determine what factor or factors operated upon the offender's mind. There is no evidence that she herself had ever been addicted to drugs or indeed ever taken any and therefore she was not acting to support a drug habit. 37Whilst I suspect that she may have stood to profit from the importation, I am not satisfied beyond reasonable doubt that this was the case and therefore this aggravating factor is not proved. 38However, I am also not satisfied on the balance of probabilities that she played her part because she wanted to do a "favour" for Sammy. In short, on the evidence, her motives remain unclear. 39There was also an issue at the sentence hearing as to whether the offender was entitled to a discount for what was said to be assistance to authorities. During questioning by Federal Police on the day of her arrest, the offender offered to help them by, as I understand her evidence, calling Sammy to arrange for those intended to collect the drugs to meet her so that "you guys can catch the real criminals". 40The offender in her voluntary statement also confirmed the telephone numbers of Sammy and Jessica to the police as well as providing Jessica's address and certain other details. 41The offer to lure such persons into a meeting with the offender was refused by the police whom considered it would be ineffective as the offender had already been detained for some hours when it was made which they believed would have made any persons waiting for the offender realise that she had been detained. However, the phone numbers, address and other details later supplied by the offender were communicated by the Federal Police to their counterparts in Canada but nothing eventuated because they were said to comprise "insufficient information." 42Mr McCrudden argued that even though the offender's offers to assist were not taken up and or did not lead anywhere they should still result in some discount on sentence as there was "no authority against this position." 43On the other hand, the Crown referred to me to certain comments made by Justice Bryson, with whom the other Justices agreed, in Sukkar v R [2005] NSWCCA 55 at [52] - [53] which he argued are authority for the proposition that if an offer of assistance has no practical value, a claim for a discount based thereon must fail, although it can be taken into account as an indication of contrition and remorse. In my view, Justice Bryson's comments are not quite as black and white as the Crown contends. 44Further, in R v Nguyen; R v Pham; R v Vu; R v To [2005] NSWCCA 362, Justice Grove, with whom Justices Barr and Howie agreed, at [40] pointed out that in sentencing federal offenders, s 16A(2)(h) of the Crimes Act 1914 (Cth) (the Act) provides that a Court is required to take into account "the degree to which the (offender) has co-operated with law enforcement agencies in the investigation of the offence" as opposed to, as Justice Grove put it, "mere consideration of the consequences of cooperation." 45Further, assistance to authorities takes on particular significance in importation offences because of the "notorious difficulties of detecting the crime of importation"; R v Wong and Leung [1999] NSWCCA 420 at [83]. The community also has a considerable interest in encouraging couriers to implicate others involved; R v Perrier (No. 2) (1990) 59 A Crim R 164. 46In my view, a modest discount of 5% is appropriate in the current circumstances, which I will apply to the sentence that otherwise would have been imposed. 47In addition to the evidence of contrition and remorse which her offers to assist the authorities provide, the materials on sentence contained various expressions of same on behalf of the offender. Whilst I have taken these into account on her behalf, such materials also contain certain statements which indicate a non-acceptance on her part of the jury's verdict, as well as a tendency to blame others, which operate as countervailing considerations. 48The offender's subjective circumstances, all of which I have taken into account, were outlined by her in considerable detail in her voluntary statement to the Federal Police, subsequent interview and also in her evidence before the jury. In addition, her mother and sister during their own evidence before the jury gave evidence on this topic. 49I have also taken into account the matters referred to in the various testimonials tendered on the offender's behalf. 50Further, at the sentence hearing the abovementioned psychological report from Dr Protulipac dated 3 May 2014 was tendered on her behalf, as was a letter written to the Court by the offender herself dated 4 May 2014. 51As mentioned the offender was born in Vancouver on 31 August 1988. She is now approaching her 26th birthday. She is the youngest in a family of four. Her parents migrated from India and she is of Indian descent. She observes a number of Indian traditions whilst also accepting Western norms. Her father was a goldsmith/jeweller and the family was apparently well-off. Her childhood was happy and healthy. Her older siblings are successful law-abiding individuals. 52The offender spent the first 13 years of her life in Vancouver before moving to Nova Scotia and then Montreal for a short period before the family settled in Toronto where she remained living prior to the commission of the subject offence. 53As to her education, she completed her secondary schooling through private Catholic schools and thereafter enrolled in a college doing social work and was apparently still undertaking this course at the time of her arrest. The offender described having undertaken voluntary work which involved her caring for children and others with various disabilities. 54She was also engaged in various forms of employment until her arrest. These comprised her own makeup business, working in a local pizza shop and selling gym memberships. 55As to her personal life, prior to her arrest she had been in a romantic relationship for some ten years with a man of whom her mother did not approve. In fact, in 2012, her father attempted to arrange a marriage for her and she went to India for that purpose spending some two weeks there with that man but she then returned to Canada leaving him there, whereupon she resumed her long-term relationship. 56As mentioned, the offender's father passed away on 9 April 2013, leaving her bereaved and her family, as also mentioned, at that point commenced to pressure her to move from Toronto to Vancouver. 57As to the offender's health, she described this to Dr Protulipac as being "exceptional". She has no prior psychiatric history and there is none in her family. As mentioned, she has never been involved in taking illicit drugs. 58As stated, the offender has been custody since her arrest in April 2013. She was assessed by Dr Protulipac on 3 May 2014. He was of the view that the offender was of average intelligence. She reported having developed "severe mental health problems since her arrest" and had apparently suffered a single episode of psychosis in the form of auditory hallucinations. While she did not report any suicidal ideation, Dr Protulipac opined that her imprisonment had caused "symptoms suggestive of severe depression" and he, in fact, diagnosed her to be suffering a major depressive disorder in accordance with DSM 4. He went on to recommend that she should "continue to attend counselling sessions with a psychologist". 59Dr Protulipac does not suggest that this condition cannot be appropriately treated in custody, but rather that such custody is the cause thereof, coupled with her "feelings of injustice and shame". He also opines that it will be likely to persist whilst ever she remains in custody. 60While some level of depression is a common consequence of incarceration, I have taken the offender's degree thereof and its likely prognosis into account as factors which will make her imprisonment more onerous for her. 61Further, despite some visits from family members, it is clear that the offender will essentially remain separated from her Canadian family throughout the sentence imposed below which also will be more burdensome upon her for this reason. Whilst I have taken this factor into account in her favour, as well, it is clear on the authorities that it is not deserving of much recognition. R v Huang (2000) 113 A Crim R 386; R v Hendricks (2001) 125 A Crim R 303. 62As to the offender's prospects of rehabilitation, even though she maintains her innocence and there are suggestions in the materials that she believes an injustice has been perpetrated upon her, this does not necessarily mean that these are poor. She is still young, comes from a strong family background and continues to have family support. There is no doubt that her incarceration to date has had a deterrent effect upon her. Also, she has already undertaken considerable study in various courses through the Silverwater Women's Correctional Centre Education Unit, including being the first student in that centre to complete Certificate I in Information, Digital Media and Technology which was offered through the South Western Sydney Institute of TAFE. She has also been employed as the assistant librarian in education at Silverwater for a considerable period and has been described as an excellent student by a senior correctional education officer. Further, she does have a worthwhile life to which she can return. 63Whilst Dr Protulipac emphasises the negative long-term psychological effects that imprisonment will have upon her, he nevertheless is of the view that upon her release she "will continue with her education and return to her goals and ambitions". 64Overall, I regard the offender's prospects of rehabilitation as very good, especially if she starts to take more responsibility for her actions. 65As to the objective seriousness of the offending, whilst the offender's role can be correctly characterised as that of a courier, nevertheless, it was still a significant one. I have also found that her level of recklessness was moderately high. Further, the amount of the drugs imported was more than six times the commercial quantity and had a very significant value. 66Overall, I find this offence falls just above the middle of the range of objective seriousness for offences of this type. 67As to the question of deterrence, offences involving the illegal importation of significant quantities of illegal drugs into this country are extremely serious as reflected by the maximum penalty for the current offence. Drugs cause massive problems in our community, destroying lives, breaking up families and encouraging the commission of other serious crime. General deterrence is of the utmost importance in relation to these sorts of offences. Further, specific deterrence must not be forgotten. 68Pursuant to s 17A of the Act, after considering all available sentencing alternatives and bearing in mind all the matters referred to, especially the objective seriousness of the offending, I am satisfied that no other sentence than one of imprisonment is appropriate in all the circumstances of this case. Indeed, this was the position of both parties. 69Pursuant to s 16A(1) of the Act, any sentence that I impose must be of a severity appropriate in all the circumstances of the offence. In doing so, I have had regard to all the matters referred to above, including those contained in s 16A(2) of the Act as are relevant and known to the Court. 70In addition, what is the "severity appropriate" is to be determined having regard to the general principles identified by the High Court in Power v R [1974] HCA 26. 71In arriving at the sentence imposed, I have also been guided by the approach of McHugh J in Markarian v R [2005] HCA 25 at [51]. 72The offender is convicted and sentenced to imprisonment for a period of nine years and six months commencing on 25 April 2013 and expiring on 24 October 2022. 73Pursuant to s 19AB of the Act, I am required to either fix a non-parole period in respect of the sentence imposed or make a recognisance release order unless I decide that neither is appropriate in which case I must give reasons. 74In Hili v R [2010] HCA 45, the High Court confirmed that all of the circumstances, including the non-inclusive matters referred to in s 16A(2) of the Act, must be taken into account in fixing a non-parole period or making a recognisance release order, just as they must be taken into account in imposing a sentence of imprisonment. 75Further, s 16A(1) of the Act again requires the sentencing Court to fix a non parole period or make a recognizance release order that is of a severity appropriate in the all the circumstances of the offence. 76In addition, the High Court in Hili held that there was no "norm" or starting point, whether expressed as a percentage of the sentence or otherwise, for a period of imprisonment that a Federal offender should actually serve before release. The High Court also held that a critical consideration is the determination of the period of imprisonment that justice requires the offender must serve in custody. 77In considering the relevant statutory matters and adopting the approach set out in Power v R, I am mindful of all the matters referred to above. These include, on the one hand, that this is the offender's first time in prison and that she has very good prospects of rehabilitation. To facilitate such rehabilitation, in my view, the offender also needs a longer than normal period of supervision once released into the community. On the other hand, I am again mindful of the overall objective seriousness of the offending. 78In all the circumstances, in my view, justice requires that I set a non-parole period of five years and eight months commencing on 25 April 2013 and expiring on 24 December 2018. 79Ms Singh, I have imposed a total sentence of nine years and six months, commencing from when you first went into custody on 25 April last year. You will be kept in custody for at least five years and eight months from that date, meaning that you will be eligible for parole on Christmas Eve 2018 which is approximately four years and seven months from now. If you are released to parole on that day or a day thereafter, you will still be serving your sentence in the community and you can be returned to custody if you do not comply with the conditions of your parole. You would then continue serving your sentence in custody until it expires on 24 October 2022. 80Do you understand? OFFENDER: I do. HIS HONOUR: Have I made any mistakes as to dates or anything of that nature? MCCRUDDEN: Not that I have noticed, your Honour. HIS HONOUR: Very well.