R v Shepherd

Court of Criminal Appeal (NSW)|2003-10-16|Before: Tobias JA, Howie J, Shaw J

CITATION : R v Shepherd [2003] NSWCCA 287 HEARING DATE(S) : 29/09/2003 JUDGMENT DATE : 16 October 2003

JUDGMENT OF : Tobias JA at 1; Howie J at 2; Shaw J at 29 DECISION : Application for leave to appeal is granted and the appeal is allowed. The sentence should be quashed and in lieu the applicant should be sentenced to imprisonment for 11 years 6 months with a non-parole period of 7 years 4 months to date from 5 December 2001. The non-parole period is to expire on 4 April 2009, the date upon which the applicant is eligible to be released to parole.

CATCHWORDS : Criminal Law and Procedure - appeal against severity of sentence - discount allowed by sentencing judge was inadequate and resulted in an excessive sentence. Customs Act 1901 - s 233B(1)(d) LEGISLATION CITED : Justices Act 1902 (now repealed) - s 51A Crimes Act 1914 - ss 16A, 16G, 21E R v Meggett (1999) 107 A Crim R 157 R v Bushell (NSWCCA, 7 August 1998, unreported) CASES CITED : Chan (2002) 128 A Crim R 119 Budiman (1998) 102 A Crim R 411 Pang (1999) 105 A Crim R 474 PARTIES : Regina v Maurice Charles Shepherd FILE NUMBER(S) : CCA 60173/03 COUNSEL : Ms M. Cinque - Crown Mr M. Crowley - Applicant SOLICITORS : Commonwealth Director of Public Prosecutions - Crown Forshaws Neill Solicitors - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0839 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60173/03

TOBIAS JA HOWIE J SHAW J

THURSDAY 16 OCTOBER 2003 REGINA v MAURICE CHARLES SHEPHERD Judgment 1 TOBIAS JA: I agree with Howie J. 2 HOWIE J: The applicant seeks leave to appeal against a sentence imposed upon him by Judge Gibson QC in the District Court on a charge of being knowingly concerned in the importation of not less than a commercial quantity of a drug shortly referred to as MDMA or ecstasy. This is an offence contrary to s 233B(1)(d) of the Customs Act and carries a maximum penalty of a fine of $750,000 or life imprisonment or both. A commercial quantity of ecstasy is 0.5 kilograms. 3 On 8 November 2002 his Honour sentenced the applicant to imprisonment for 14 years to date from 5 December 2001 and specified a non-parole period of 9 years to commence on the same date and to expire 4 December 2010. The matter was listed before his Honour again on 14 November 2002 on an application of the Crown for clarification of his Honour's sentencing remarks. I will return to that matter shortly but what occurred on that date did not affect the sentence imposed. 4 The applicant had pleaded guilty to the charge in the Local Court on 7 August 2002 and was committed for sentence to the District Court under s 51A of the Justices Act (now repealed). He adhered to his plea before Judge Gibson on 24 October 2002. 5 In evidence before his Honour was a statement of facts tendered by the Crown without objection save one matter to which it will be unnecessary to refer. In brief the facts can be stated as follows. The drug to be imported was 34.401 kilograms of ecstasy contained in 480,000 tablets weighing 123.75 kilograms. The applicant, who ran an importing and exporting business, agreed with a friend and business associate, the co-offender Prasad, to assist him in the importation. The applicant knew that Prasad owed a considerable sum of money to a person named Choi and that he intended to carry out the importation in order to repay him. Prasad also owed money to the applicant and was going to pay him $25,000 for his assistance. 6 The drug was hidden in freezer panels packed into crates and placed in a shipping container. The container vessel left Antwerp on 15 October 2001 and arrived in Brisbane on 17 November 2001. The applicant provided Prasad with documents relating to the importation of the container and fabricated invoices and a declaration for the purpose of obtaining custom's clearance of it. The applicant made arrangements with the shipping company for delivery of the container to factory premises that he had leased earlier. On 20 November customs officers searched the container and located the drugs. They removed all but 13,000 tablets that were to remain in the container for the purpose of a controlled delivery. 7 On 23 November 2001 the container was delivered to the factory unit and the applicant was there to open the premises and to aid a co-offender, Bourke, in unpacking the container. He also assisted in loading some of the panels onto a truck that Bourke brought to the premises. The balance of the contents of the container was to be stored in the unit until the crates could be removed some time later. 8 Shortly after taking delivery of the panels, the co-offenders discovered that the drugs were missing. On 29 November the applicant sold the remaining panels that were in the unit. In early December the applicant was inquiring about payment from Prasad but was told there was a delay. The applicant supplied copies of the documentation relating to the importation of the container to Prasad so that the persons who were to receive the drugs could attempt to find out what happened to them. 9 Police intervened to search the factory premises on 5 December 2001. The applicant was present during part of the search and told police that the contents of the container had been a pre-fabricated freezer kit and had been sold. He said that he had paid for custom's clearance himself and that he expected to make between $10,000 and $12,000. In a recorded interview with police on 5 January, the applicant said that he was unaware that the shipment was to contain drugs, although he knew that it would involve contraband. He admitted that he had fabricated documents to have the container cleared from customs. 10 The applicant gave evidence before the sentencing judge during which he said that Prasad had told him that he and his family had been threatened and that he owed a large amount of money to various persons. He said Prasad was depressed and that the only way he could buy time was to co-operate with the persons importing the drugs. The applicant's evidence was that he was to be paid money only to reduce the debt owed to him by Prasad. He said that he did not know what drug was to be imported or the amount. He stated that his motivation for being involved was the repayment of the debt and to assist Prasad. 11 In the course of his remarks on sentence, Judge Gibson described the role of the applicant in the importation and his criminality as follows:

Counsel has submitted that though it was a very serious offence, it was towards the lower end of the scale and it was only a mid-level drug, and he should be dealt with on the same basis as a courier. I do not agree. The prisoner made a cold-blooded decision to become involved in the importation of drugs. He knew not what they were or the quantity involved, and he cared not, as long as he got his money. He made his own price. He said it was partly because of his friendship for Prasad. I do not believe him. True it is that if he had not known Prasad, he would probably not have been approached, but it was his own greed that was the real reason for his involvement.

His part was a part that was vital to the importation and without his expertise in the forging of the various documents and his familiarity with the appropriate procedures, there would have been much more difficulty occasioned in landing the materials and he, in my view, is an importer of goods. The fact that he was not to be involved in any subsequent disposal of the goods does not diminish his involvement. He was a key figure in the importation. 12 It was submitted on behalf of the applicant that during the course of his remarks on sentence Judge Gibson made a number of factual errors that resulted in him overestimating the applicant's role in the importation and hence the criminality of his conduct. It was argued that his Honour erred in describing the applicant's role as "vital to the importation" and in concluding that the applicant was "a key figure in the importation". It was submitted that his Honour ought not to have rejected the applicant's evidence that he was assisting in the importation through friendship with Prasad nor found that the applicant acted out of greed. 13 I do not believe that, if there were errors of fact, they were of such significance as to have affected a proper assessment of the sentence to be imposed on the applicant in light of the degree and seriousness of his conduct in assisting in the importation. The applicant's criminality arises from the fact that he was prepared, for whatever gain or other motive, to play a significant role in the importation of what he must have known to be a very substantial quantity of drugs. He had agreed to become involved in the importation in March 2001. He was an active participant from August until December 2001 by taking steps to facilitate the clearance of the container through the shipping company and customs. He had permitted premises that he had leased to be used to receive the container and to store some of its contents. The applicant was there when the container was delivered. He assisted in the removal of some of the contents, clearly believing that they contained drugs, and the loading of them onto a truck to commence their distribution. 14 In my view it was well open to his Honour to determine that the role played by the applicant in this particular importation was vital whether or not others persons involved had successfully imported drugs on other occasions by a similar method. The importers needed someone to fulfil this role if the importation was to be successful and the applicant was prepared to undertake the task. Nor was it unfair for the sentencing judge to describe the applicant as a key figure in the importation: the importation depended upon the container being cleared through customs and released without the drugs being found, and the applicant had the expertise to achieve that result. In light of the applicant's conduct and the size of the importation in which he was involved, I do not see any significance in the fact that he may have been motivated by assisting Prasad, if that were the case, rather than greed as found by his Honour. The fact that, on his version, he was prepared to do what he did for a $25,000 reduction in a debt owed to him is hardly mitigating. The applicant's criminality lies largely in what he did rather than why he did it. 15 The applicant's submission is that, by reason of his limited participation in the importation, his role should be identified as being "above a mere courier but below mid-level executive or organiser". This was the description given to the role of the offender by Wood CJ at CL in R v Meggett (1999) 107 A Crim R 157. Further, it is submitted that the applicant's role was less significant than the offender in that case. For my part, I see little value in this sort of exercise. The conduct of the offender being sentenced in Meggett was to captain a Boston whaler being sailed from Panama to Australia with a large quantity of cocaine. I do not believe that there is any purpose to be served in seeking to compare the criminality of that offender with that of the applicant for the purposes of assessing what sentence should have been imposed upon the applicant. 16 Nor is it always useful to compare different importations on the basis of the amount or type of drug being imported with a view to establishing what sentence should have been imposed upon a particular offender. However, the applicant relies upon the fact that the drug being imported in Meggett was over 171 kilograms of cocaine, more than 85 times the commercial quantity for that drug. But when the offence concerns a very large quantity of drug, here almost 70 times the commercial quantity, variations in the amount of drug imported cease to have significant impact on the issue of parity of sentence. 17 In any event this exercise of comparing sentences imposed upon other offenders for different importations to support a submission that the applicant's sentence was excessive has frequently been the subject of criticism in this Court; see for example R v Bushell (NSWCCA, 7 August 1998, unreported). There is a range of sentences available to a sentencing judge who has a wide discretion to choose a sentence that is appropriate to the facts and circumstances of the particular case. The comparison of sentences can be important to determine whether there is an established range of sentences for the offence for which sentence is being imposed or, in this Court, to determine whether the sentence imposed is unjustifiably outside that range. But ultimately the question for the sentencing judge and this Court is determined by the particular facts and circumstances of the matter before the court when viewed against the legislative regime for sentencing an offence of that type. 18 The applicant was aged 44 years at the time of being sentenced and has no relevant criminal history. A report by a psychologist was in evidence before his Honour, as was a detailed personal history of the applicant. There is little in that material of relevance to the sentencing task in the present case except that the applicant is revealed to be an intelligent, industrious person with the wherewithal to live a law-abiding life if he chooses to do so. 19 The most significant mitigating factors of a subjective nature were the plea of guilty before a magistrate and that he was prepared to give evidence against others involved in the importation, including Prasad. Towards the end of his sentencing remarks, Judge Gibson stated:

I take into consideration all matters under 16A of the Commonwealth Crimes Act relevant to the charges against him. I make a deduction from the sentence I would otherwise have imposed of approximately thirty percent in accordance with s 16G of the Crimes Act , and the non-parole period I will set will be in the range of sixty to sixty-six percent as mentioned in Bernier's case. I allow a period of three years off the head sentence for the assistance referred to in exhibit C5 and the promise to give evidence, and I deduct twenty percent for the plea.

His Honour then imposed the sentence, to which I referred at the commencement of this judgment. The non-parole period was sixty-four per cent of the head sentence. 20 On 14 November his Honour was asked to elucidate the steps he took to arrive at the sentence and stated:

I allow twenty percent for the plea and the assistance rendered as described in and quantified in C5 and I deduct three years from the head sentence that I imposed for his promise to give evidence in the future.

His Honour then clarified with the Crown that the sentence that would have been imposed, but for the future assistance, was 17 years imprisonment with a non-parole period of 10 years and 11 months. 21 The applicant submits that the sentence was manifestly excessive because the starting point must have been too high and insufficient discount was given for the assistance, both past and future. It was argued that the starting sentence must have been approximately 34 years before the discounts were applied and that this was too great, especially having regard to the starting point in Meggitt of 30 years. 22 The respondent on the other hand argues that the starting point was approximately 32 years with a reduction to 21.3 years for the discount under s 16G of the Crimes Act (Cth). There was then, according to the Crown, a reduction of twenty percent for the plea and assistance and then a further reduction of 3 years for the future assistance. 23 It has been held that there is no particular order in which the discounts are to be applied nor do they need to be applied as distinct and separate entities rather than as a single reduction: Chan (2002) 128 A Crim R 119. Nor is there any need for the sentencing judge to state the particular starting point before the discounts are applied: Budiman (1998) 102 A Crim R 411. The only requirement is that found in s 21E of the Crimes Act: the sentencing judge is to specify what the sentence and non-parole period would have been but for the promise of future assistance. 24 The applicant argues that the discount for assistance was too low and not in keeping with general practice. Reliance is placed upon the decision in Pang (1999) 105 A Crim R 474. In that case it was held that there was no fixed tariff in relation to a discount for assistance but that it is usually between twenty and fifty per cent. There the sentencing judge had allowed a discount of twenty-five per cent but on appeal a discount of fifty per cent was given. However, two matters should be noted; firstly, in accordance with what was then the practice, there was no separate discount given for the plea of guilty and, secondly, the discount for future assistance was twenty per cent. The applicant also points to the course taken by the Chief Judge in Meggett. His Honour allowed a discount of 50 per cent to encompass both the early plea and past and future assistance. The assistance in that case went beyond that relating to the offence for which the offender was to be sentenced and was in the nature of general intelligence. The discount for future assistance was 37 per cent. 25 During the course of oral argument Mr Crowley, who appeared for the applicant, refined his written submissions. He contended that, if it were determined that the starting point of the sentence, about 32 years, was at the top of the available range and the total discount, thirty-three per cent, was at the bottom of the range, the result is an excessive sentence unjustified by any of the objective or subjective factors present. The Crown fairly conceded that the discount that the applicant might have expected in light of the totality of his plea and assistance would normally be about fifty per cent. The Crown also accepted that the starting sentence was at the very top of the range. 26 The material, relating to the applicant's assistance to the authorities that was before the sentencing judge, reveals that his assistance went beyond that concerned with the offence for which he was to be sentenced. It is unnecessary to refer to it in detail. It also indicated that the authorities considered that the applicant had given full and frank disclosure in relation to his role and that of others in the importation of the drugs. At the hearing of the appeal fresh evidence was tendered by the Crown to the effect that the applicant had been continuing to comply with his undertaking to assist the prosecution. We were invited to consider this material if we found error on the part of the sentencing judge. 27 There was further material received by the Court, with leave, after judgment was reserved. It was a letter from an investigative agency of the Commonwealth that was, for reasons unrelated to the applicant, unavailable at the hearing of the appeal and that sets out the applicant's continuing assistance of a general nature. The overall assistance provided by the applicant is described as "moderate". It confirms my view that the discount allowed by his Honour was inadequate in all of the circumstances of the present case and resulted in an excessive sentence. The appropriate discount to reflect the plea and past and future assistance is forty-five per cent. Therefore, this Court must resentence the applicant. Taking into account the matters in s 16A and 16G of the Crimes Act (Cth), I believe that the applicant should be sentenced to imprisonment for 11 years 6 months with a non-parole period of 7 years 4 months. For the purposes of s 21E, the sentence, which would have been imposed but for the undertaking to give future assistance, is imprisonment for 16 years 9 months with a non-parole period of 10 years 9 months. 28 I propose that the application for leave to appeal be granted and the appeal be allowed. The sentence should be quashed and in lieu the applicant should be sentenced to imprisonment for 11 years 6 months with a non-parole period of 7 years 4 months to date from 5 December 2001. The non-parole period is to expire on 4 April 2009, the date upon which the applicant is eligible to be released to parole. 29 SHAW J: I agree with Howie J.

Last Modified: 10/17/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Judgment (14 paragraphs)

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