Thursday, 6 February 2003
REGINA v Vichai SCHOFIELD
Judgment
1 HEYDON JA: I agree with Carruthers AJ.
2 HULME J: In this matter I have had the advantage of reading in draft form the Reasons for Judgment of Carruthers AJ. Subject to the matters referred to below and with the exception of his Honour's conclusion as to the appropriate sentence to be imposed on the Respondent - a sentence which should, in my view, be higher - I agree generally with his Honour's remarks. His Honour's detailed reference to the circumstances of the offence and proceedings also removes the need for me to recapitulate them.
3 In my view her Honour erred in her treatment of the Respondent's criminal history. After referring to the most serious prior offence being one of malicious wounding, the fact that the Respondent was serving the parole period of the sentence imposed for that offence at the time off commission of the drug offence which brought him before her, and that that was an "aggravating feature", her Honour continued:-
"However, it should be seen in the context that the offence of malicious wounding is an offence of an entirely different sort to the offence that is before this Court. Otherwise, the matters on the offenders criminal record fall into the category, generally, of driving matters and minor dishonesty matters."
4 The Respondent's criminal record included 3 traffic convictions in 1997 and 4 in 2001. The latter group included one described as "possess thing like Australian driver licence with intent to deceive". In 1996 he was convicted of "possession of implements to enter conveyance" and "possession of offensive implement". In August 2001, one month before the commission of the offence with which Judge Murrell was concerned, he was convicted of "goods in personal custody reasonably suspected of being stolen" and "make false instrument with intent to use". It was in August 2000 he was convicted of malicious wounding and, as the result of a successful appeal, sentenced to periodic detention, with its associated parole period to which reference has been made.
5 The written submissions given to her Honour by the Crown included quotation of the well known passage from Veen v R (No 2) (1988) 164 CLR 465 at 477 to the effect that:-
"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and the protection of society may all indicate that a more severe penalty is warranted."
6 Instead of merely passing the Respondent's record off as "of an entirely different sort" and "generally, of driving matters and minor dishonesty matters", the above summary of the record makes it clear that her Honour should have found that the Respondent was manifesting "a continuing attitude of disobedience of the law" and dealt with him on that basis. See also R v Malcolm McDonald (unreported, CCA, 12 October 1998)
7 A second area of error lay in her Honour's remarks and findings in the following passage:-
"The offender states that he was unaware of the quantity or nature of the substance in the crate. That assertion accords with what the Court knows of the offence. He states that he was asked by a "friend" to help out by going to the premises and assisting in the collection of the drugs, without knowing anything about it. He asserts that he was not to receive any reimbursement whatsoever. There is nothing in the prosecution facts to suggest otherwise, and the nature of the offender's role so far as the prosecution evidence is concerned is quite consistent with these assertions by the offender.
The bottom line is that the offender, knowing that he was carrying drugs, but not knowing the quantity or nature of drugs being transported, conveyed the drugs a short distance under the direction of another person who was the organiser of that part of the operation without receiving any reimbursement for his efforts. This must place him at the very bottom of the pyramid of levels of involvement with offences of this type."
8 The reference in the second of these paragraphs indicates, inter alia, an acceptance of the Respondent's statements referred to in the first paragraph. But those statements were not contained in evidence. The Respondent gave none. They were not contained in a contemporaneous record of interview which might have had indications of truthfulness about it. The Respondent declined to participate in such an interview. They were not even contained in the Pre-sentence Report. If one treats them as having been made by the Respondent, they can only have been made through the mouth of his counsel at the sentencing proceedings presumably during his address on penalty and after the evidence had closed. There seems to be a detailed transcript to that time, a transcript which records, after a witness called on behalf of the Respondent had retired, "CLOSE OF CASE FOR OFFENDER".
9 Made in those circumstances the statements were neither tested nor capable of being tested. Their author was a person whose criminal record showed a number of offences of dishonesty and the statements were made at a time when he had much to gain and nothing to lose by putting before the Court a favourable account which could not be positively disproved. And the fact that "there is nothing in the prosecution case to suggest otherwise", when the likelihood was that the prosecution could have no information on the topics of the Respondent's subjective knowledge, takes the matter no further. Subject to one matter to which I refer below, and even though the rules of evidence did not apply, counsel's statements that the Respondent was ignorant of the nature and quantity of drugs and that he was to receive no remuneration had no probative value and there was no reasonable basis on which they could be, or should have been, accepted.
10 In this regard there is one matter of evidence which was before Judge Murrell SC, additional to that to which Carruthers AJ has referred. The evidence showed that the Falcon WSF 057 in which the Respondent transported the crate containing the drugs was owned by Mr Peter Ling, the Respondent's partner in the café business. When one adds to this the other evidence referred to by Carruthers AJ that Mr Peter Ling's father hired the car in which the co-offender Mr Lee decamped, that the Respondent contributed not only his own efforts but also his vehicle which was driven by someone else throughout the operation, her Honour's acceptance of the Respondent's ignorance and claim of no remuneration becomes even harder to understand.
11 I indicated a moment ago that there was one reservation to my conclusion that the statements that the Respondent was ignorant of the nature and quantity of drugs and that he was to receive no remuneration had no probative value and there was no reasonable basis on which they could be, or should have been, accepted. That reservation arises out of a passage in the judgment of the majority in R v Olbrich (1999) 199 CLR 270 at 281 (omitting a citation):-
"Much of the discussion of fact finding for the purposes of sentencing addresses question of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecutor and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. ( We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion .)" (my emphasis)
12 Uncontested evidence was placed before this Court that "at no stage during the addresses did the solicitor appearing for the Crown raise any objection to the matters being put from the bar table and at no stage did she state there were any factual disputes arising from the matters so put" and it was submitted that it flowed from the remarks I have quoted that her Honour was entitled to make the findings that she did.
13 The first thing that may be said about the parenthesised passage is that it was not necessary for the High Court's decision in R v Olbrich and accordingly not one by which this Court is bound. The second is that, if taken literally, it introduces, without discussion or reasoning, an entirely new dimension into sentencing proceedings.
14 Taken literally, and in light of the rules of natural justice, the passage means that insofar as the necessity for the calling of evidence is an unwillingness of the judge to act on an assertion, the judge is under an obligation during the course of the sentencing proceedings and before the opportunity of calling evidence has passed, to indicate what assertions he or she is not prepared to act upon.
15 Commonly, there are many such assertions, some contained in pre-sentence reports, some in psychological and the like reports (not infrequently canvassing much of the offender's life) and some from the bar table. Commonly the assertions will vary in importance and they are liable to cover the range between inherently probable and inherently improbable. Not infrequently a judge, minded to reserve his decision, will not during the sentencing proceedings in any comprehensive fashion decide which assertions he is not, or may not be, prepared to act upon.
16 But unless the judge informs the parties what he is not disposed to act upon, how can they know that it is necessary to call evidence? It cannot have been the intention of the authors of the passage, so briefly expressed, to impose such an obligation on a sentencing judge.
17 A requirement, or recognition of a requirement, that an opposing party controvert any asserted fact which it is desired to dispute is not so radical a change to sentencing proceedings. Carruthers AJ has drawn attention to the remarks in R v Palu as to the need for parties to identify with particularity the areas of dispute and it is an elementary proposition that opposing parties, both of whom have rights of appeal, can be expected to do so.
18 But even in this respect also, the passage cannot have been intended to be taken literally. It cannot have been intended that however many assertions are put forward from the bar table or in reports tendered, and however improbable, inherently or in the light of other information in the proceedings, any of those assertions may be, the opposing party is bound to formally register his disagreement with them. The High Court cannot have intended to so adapt the old adage that he who asserts must prove into, in sentencing proceedings, "he who must prove need only assert, and the onus is on others to disagree".
19 One is entitled to look at the reality of how sentencing proceedings are conducted. Assertions are, as I have indicated, often very numerous. Presumably most are intended by their makers, or counsel tendering the statements, to be taken into account or acted upon. Not infrequently the statements, or some of them, are not ones which can rationally be acted upon but neither the opposing counsel, who may be crediting the judge with some common sense, nor the judge think it necessary to canvass those matters. If counsel for the Crown is obliged to deal with every assertion of fact just because it is made, often without notice, and whether it should rationally be accepted or not, on pain of the risk of having the matter forever precluded against his client, sentencing proceedings are likely to be significantly prolonged.
20 The proceedings before Judge Murrell in this case provide a good example. Counsel for the Respondent announced that he would not be in a position to call his client. The Respondent was physically present. There was no legal impediment to him being called, so presumably counsel meant that he saw the disadvantages of calling his client as outweighing the advantages and chose not to call him to adduce evidence of the matters to which he could depose. Counsel for the Respondent called no other evidence as to his client's knowledge or as to the circumstances of his participation in the offence and closed his case. It was after the evidence was closed that he apparently made the assertions her Honour relied on.
21 Given their nature - the Respondent's knowledge, extent of involvement and remuneration - that the Respondent had consciously elected to give no evidence on the topics, and was in any event someone with a recent record of dishonesty, it seems to me that the Crown was fairly entitled to think that there was no rational possibility that her Honour would accept what was asserted. They were of a nature such that it was in the highest degree unlikely that in the circumstances of the case the Crown would be in a position to contradict them and, indeed, if the Crown had any evidence on the topics, one would have expected it to have been called during the course of its case in chief during the sentencing proceedings. And the time at which the assertions were made, after evidence had closed and the Crown had addressed, added further to the unlikelihood that they might be accepted. Indeed, although I do not suggest that the situation was irremediable, it was quite inappropriate if not unfair, for those topics to be raised as late as they were.
22 Given the matters referred to in the immediately preceding paragraph, one could not in the circumstances regard silence on the part of the Crown as agreement in any sense and, although I accept that her Honour was theoretically entitled to take account of assertions of fact made at that stage of the proceedings, I do not see that her acceptance of them should be beyond challenge any more than any other conclusion of fact.
23 Nothing I have said is intended to encourage any failure on the part of legal representatives to make perfectly clear what matters of significance are in dispute and, given the importance of the matters asserted, if only out of an abundance of caution, the solicitor appearing for the Crown should have done so in this case. However, it is not in my view either possible or practicable to have a blanket rule as a literal approach to the remarks I have quoted from R v Olbrich would suggest.
24 Neither does a failure to controvert an asserted fact necessarily preclude a challenge in this Court to a trial judge's acceptance of it. The passages quoted by me in R v Kalache [2000] NSWCCA 2 at [213-216] from R v Allpass (1993) 72 A Crim R 561, Malvaso v R (1989) 168 CLR 227 and R v Jermyn (1985) 2 NSWLR 195 support this view. Of course, there are differences in the circumstances under consideration in those cases compared with a challenge under appeal to a previously undisputed matter of fact but while some of those differences argue more strongly against a challenge being, as a matter of discretion, permitted, some argue in the opposite direction.
25 Of course a failure to controvert an asserted fact at first instance will commonly prevent any challenge on appeal succeeding. To make such a challenge only after the opportunity for calling evidence of the asserted fact is past would generally be unfair. Sometimes the absence of challenge will justify the conclusion that the asserted fact was, in effect, common ground. Furthermore, once it be accepted, as it must be, that a judge is entitled in sentencing proceedings to act on assertions of fact unsupported by formal evidence, the absence of any contemporaneous challenge is calculated to make more difficult the task of convincing an appellate court that the judge was in error in the conclusion of fact he reached.
26 In this case, a challenge for the first time in this Court creates no unfairness. The Respondent through his counsel had made a deliberate decision that evidence would not be called to support the assertions. The Crown of course faces the difficulty of persuading this Court that her Honour's factual finding was wrong but I have already indicated why in that respect the challenge should succeed.
27 While I do not accept that her Honour was justified in finding that the Respondent was ignorant of the quantity or nature of the drugs with which he was involved, I accept that there is no evidence that the Respondent had such knowledge. However, I am by no means persuaded that the Respondent's claimed ignorance of the nature and value of the drugs is a matter which is of assistance to him. He was prepared apparently to assist, whatever the nature of the drugs and, subject perhaps to some limits influenced by the weight of the automotive transmission assembly (46 kg) or the crate containing it, whatever the quantity. In those circumstances, I see no reason why, to the extent to which the nature and quantity of the drugs are relevant, his criminality should be measured otherwise than by the nature and quantity with which he was involved.
28 In so concluding I am not unconscious of the remarks of Gaudron, Gummow and Hayne JJ in Wong v R [2001] 207 CLR 584 at [64] that "the greater the offender's knowledge … the heavier the punishment that would ordinarily be exacted". While I do not dissent from that as a general proposition, it seems to me to have no application in this case.
29 Nor do I regard her Honour's findings that the Respondent's participation was without receiving any reimbursement as particularly significant. There was no evidence he was to be remunerated. More importantly, there was no evidence he was to share in the profits dealing in drugs can produce. I doubt whether evidence of some lesser remuneration would cause me to materially change my views as to the sentence appropriate to the Respondent's criminality as revealed by the evidence and am content to proceed on the assumption that he was not in fact, and was not to be, remunerated.
30 In this Court the Crown also criticised her Honour's findings firstly, that the Respondent merely conveyed the drugs a short distance under the direction of another person who was the organiser of that part of the operation and secondly, that he was at the very bottom of the pyramid of levels of involvement with offences of this type. To these one should probably add a later reference wherein her Honour categorised the Respondent's role as "one of a driver. I suppose that is a category of courier, but a fairly lowly category of courier".
31 However, before Judge Murrell the Crown submitted that:-
The Prisoner's role appears to be that of a courier, in that he assisted in picking up the narcotics and driving them to a location where they were discarded.
If the Prisoner wishes to be characterised as a courier in mitigation of his sentence the onus is on him to establish it on the balance of probabilities: R v Olbrich."
32 Given the Respondent's role as disclosed in the Statement of Facts largely detailed by Carruthers AJ, I am not persuaded that her Honour's description of the Respondent's role was, in any sense that matters to the outcome of this appeal, erroneous. Furthermore, insofar as sentences in earlier cases may throw light on what sentence should be imposed on the Respondent, it is the group of cases dealing with couriers and others at, or close to, the bottom end of the spectrum of drug dealing offenders from which one is most likely to gain guidance.
33 I turn then to the question of the sentence itself. So far as presently relevant the Customs Act provides that an attempt to obtain possession of not less than a commercial quantity of Methylenedioxymethamphetamine or Ecstasy renders the offender liable to life imprisonment (and a fine of $750,000). A commercial quantity is 500 grams or more. Where the attempt involves an amount of .5 gram but less than 500 grams (a trafficable quantity) the maximum penalty is imprisonment for, subject to the impact of s16G of the Crimes Act (Cth), 25 years and a fine of $500,000. The effect of s16G is to reduce that maximum to, effectively, about 16½ or 17 years - see R v Bourel (unreported NSWCCA 11 December 1998); El Karhani (1991) 21 NSWLR 370 at 385; Bradley (1997) 137 FLR 314; Doan (unreported, CCA, 27 September 1996); Li (1998) 1 VR 637 at 641-2.
34 The provisions of the Customs Act thus make very clear that Parliament regards dealing in ecstasy very seriously and something to be strongly deterred. No great experience in the courts is needed to see the harm that drugs such as ecstasy do and to know that superior courts also have made it abundantly clear that "stern punishment" - (2001) 207 CLR 584 at [64], or "heavy penalties" - Le Cerf (1976) 8 ALR 349, at 351, should be imposed.
35 Deterrence is to be given chief weight in the sentencing task - Wong v R at [64]. See also the authorities cited in R v El Karhani (1990) 21 NSWLR 370 at 371-2. Furthermore, as was accepted in Schmakowski [2001] NSWCCA 395 at [27-8]:-
"It must be seen that there is a real price to pay for flaunting the laws prohibiting the importation of drugs. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent."
36 To similar effect are the remarks of Simpson J, with whom Meagher JA and Sperling J agreed, in R v Benais and which were quoted with approval in R v Bimahendali at [32]:-
"(23) The escalation in drug use in this country is a matter of notoriety, as is the effect of drug use and abuse on the wider community. While minds may and do differ on policies that should be adopted in relation to drug use and on drug addiction there is, as I perceive it, less controversy about tolerance of imported drugs such as ecstacy.
(24) Governments and government agencies that struggle to control the importation of drugs deserve the support of the courts. Their efforts are diminished where courts fail to give that support. To fail to give the necessary support is to undermine the efforts that have been made by governments and other agencies to control the spread of drug use."
37 The remarks quoted apply equally to those who choose to assist the importers or those who deal with the drugs after importation.
38 A sentence must reflect the objective seriousness of an offence - R v Camilleri (unreported, CCA, 8 February 1990); Dodd (1991) 57 A Crim R 349; R v Whyte [2002] NSWCCA 343 at [157] - and this principle extends to the non-parole period - R v Simpson (2001) 53 NSWLR 704 at [63]; R v Behar (unreported, CCA, 14 October 1998) and the cases there cited.
39 A sentence of imprisonment for a period of 28 months, including a non-parole period of 18 months on someone who gave active assistance in an attempt to possess either 2 kilograms of ecstasy, or an unknown quantity of an unknown, but known to be illegal, drug, gives no recognition to the matters referred to in the immediately preceding paragraphs. The sentence is neither stern, nor heavy, nor an effective deterrent to others. It bears no reasonable relationship to sentences imposed in other cases, which have come before this Court and to a number of which - R v Bowers, R v Budiman, R v Bushell, R v Dinic, R v Hauser and R v Spillane - her Honour was referred. (Attached to these Reasons is a schedule which contains reference to these and other cases. It is accordingly unnecessary to provide their citations here.) A fortiori is there no reasonable relationship when regard is had either to the quantity of drug with which the Respondent was involved or even the simple fact that, as reflected in the charge against him, it was a commercial quantity.