Remarks on sentence
6 In his remarks on sentence Judge Andrew said that the importation consisted of 921.4 grams of pure ecstasy which he treated as a mid-range drug. His Honour considered the applicant was a courier in a significant importation into Australia of a drug which, while not as injurious as heroin or cocaine, nevertheless was of a group which has a deleterious effect on the community generally and individuals specifically. Whatever may be the technical or anecdotal basis for such distinctions this Court has more than once pointed out that the best guide as to the appropriate penalty is that given by the legislature and is dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ; see in particular R v Bimahendali (1999) 109 A CrimR 355 at 362 and R v Nai Poon [2003] NSWCCA 42. The sentencing Judge accepted that the applicant was recruited overseas and that her motivation was to gain some $5,000 by way of a fee.
7 I emphasise the seriousness of the offence for which the applicant was sentenced. She was attempting the illegal importation into Australia of a substance which could harm, irreparably, the lives of many people including young people in a way which the Australian community and indeed the community in her own native country seek to prevent by imposing severe penalties for breach of its prohibition.
8 The applicant was aged 37 years at the date of sentence. She came from a respected, successful, conservative and supportive family all of whom saw this offence as totally out of character. Her mother and sister travelled from America in support of her. After graduating from high school and gaining a degree in business administration the applicant obtained a law degree in 1989 and became a partner in a leading law firm in Florida. She married in 1989 but was divorced in 1995. In 1996 she resigned from the partnership. From then her life appeared to have changed significantly and was dominated by what she described as a spiritual quest and profound awakening. She used ecstasy several times, she said for the purpose of spiritual growth and emotional healing. She built what was described as a successful distributorship of health products but this ultimately was unsuccessful when the supplier changed its product line.
9 By March 2001 her savings were completely depleted, she had no income and had accumulated $40,000 in debt. She said she was extremely distressed about her financial circumstances and did not know how she was going to pay her bills. In March 2001 the possibility of importing ecstasy to Australia presented itself. She said that under extreme financial pressure she did something she would always live to regret. I emphasise that the applicant's choice of means of travel from the time she collected the ecstasy and her method of carrying it were carefully planned and designed to prevent detection.
10 Judge Andrew said:
"She has maintained also that she had 'an awareness of a profound healing and spiritual growth available to people through the responsible use of ecstasy. I thought that though it was against the law, people would actually benefit from what I was going to do.' She says that it is only now, since being in prison that she has come to realise the deleterious effect of ecstasy and of how it is abused.
I have difficulty in accepting that proposition. She is a highly educated, intelligent and worldly person, aware of the illegality of ecstasy and could hardly be described as so naïve as to believe that her importation of ecstasy would be of benefit to the community. I do not accept that evidence. I do however accept her evidence that her motivation stemmed from her financial position and to gain the $5,000 offered to her. I accept her evidence that she was not aware of whom the drugs were purchased from or who they were to be delivered to. She was accompanied by a male person who is also facing a similar charge as this. I accept that her role was that of a courier."
11 His Honour was satisfied that the applicant was deeply remorseful for what she had done. Her early plea and its maintenance were seen as signs of contrition although his Honour recognised that in the circumstances it was an insurmountable Crown case. The sentencing Judge was satisfied that this was a one-off matter in her life and that she would not re-offend. She was a person of unblemished character. Prison would be more than usually arduous for her with no family in Australia. The sentencing Judge observed that it could be said that there would be few other persons of her intellectual capacity in prison. He was satisfied that she had pleaded guilty at the earliest opportunity and took into account "the utilitarian value of that plea" which he assessed as a ten per cent reduction of sentence. Section 16A(2) of the Crimes Act 1914 (Cth) (the Crimes Act) provides that in addition to any other matters "the Court must take into account such of the following matters as are relevant and known to the Court:
(g) if the person has pleaded guilty to the charge in respect of the offence - that fact"
12 In Cameron v The Queen (2002) 76 ALJR 382 at 384-5 paras [11] - [15] the majority of the High Court said that the plea was to be seen, subjectively, as an indication of the willingness of the offender to facilitate the course of justice. However, in R v Sharma (2002) 54 NSWLR 300 at 312 Spigelman CJ, speaking with the agreement of four other members of this Court, and after reviewing the cases including Cameron said of the New South Wales Act:
"50 The Crimes (Sentencing Procedure) Act states that a court 'must', not 'may', take into account a plea. Furthermore, what is required to be taken into account is both 'the fact' of the plea and 'when' it was made. If a lesser penalty is not to be imposed then the court must give reasons.
51 The statutory reference to 'the fact' of the plea, as the matter required to be considered, does not direct attention to the subjective intention of the person pleading guilty. Nor, in my opinion, is the element of timing, reflected in the reference to 'when' a plea was made, a reference only to subjective elements.
52 The mandatory language of s22 of the Crimes (Sentencing Procedure) Act must be followed whether or not by doing so the Court can be seen to 'discriminate', in the sense that word was used in the joint judgment in Cameron, against those who put the Crown to proof. The Court must take the plea into account even if there is no subjective intention to facilitate the administration of justice. However, viewed objectively, there will always be actual, as distinct from intended, facilitation of the administration of justice by reason of 'the fact' of the plea. The use of the word 'must' and the reference to 'the fact' of the plea, strongly suggest that the Parliament was not concerned only with subjective elements. The actual facilitation of the administration of justice was to be regarded as relevant by sentencing judges.
53 To use the language of the Full Court in R v Morton (1986) VR 863 at 867, the Crimes (Sentencing Procedure) Act does not expressly contain 'any direction as to the purposes for which or the circumstances in which a plea of guilty may be taken into account'. However, there is no warrant for limiting such 'purposes' or 'circumstances' so as to restrict the Court's attention to a subjective intention to assist the administration of justice, to the exclusion of the objective value of the plea."
13 The Court held that the sentencing Judge was not restricted in consideration of the plea of guilty to the subjective intention of the person pleading guilty to the exclusion of considerations of the objective value of the plea.
14 The sentencing Judge took into account the character references given on the applicant's behalf, which disclosed that she had during her life helped many other people. While in prison the applicant had assisted with adult education and the library. She was well liked and regarded as a generous and compassionate person. Several people attested to the assistance she had been able to give to others while in prison.
15 The sentencing Judge said that it was axiomatic that, unless special circumstances existed, those who were involved in the trafficking of drugs must face custodial sentences. A serious importation such as that in the present case required condign punishment. The sentencing Judge concluded pursuant to s17A of the Crimes Act that no sentence was appropriate other than one of full time custody. He referred to s16A(1) of the Crimes Act which provides that in determining the sentence to be passed on a federal offender the Court must impose one of a severity appropriate in all of the circumstances of the case. General deterrence must be taken into account although it is not a matter expressly listed in s16A(2) of the Act; R v El Karhani (1990) 21 NSWLR 370. Further s16G of the Act provides that a sentencing court must take into account the absence of remissions in determining the length of the head sentence and adjust it accordingly. Section 16G was repealed by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act 2002 with effect from 16 January 2003. The Crown accepts that, even though s4 of the repealing Act provided that the repeal applied to any sentence imposed on or after the Act's commencement, whether or not the offence was committed before its commencement, as a matter of fairness this Court if re-sentencing the applicant should take account of the absence of remissions in the same way as the sentencing Judge; see R v Schofield [2003] NSWCCA 3 at paras 69 and 164.
16 The sentencing Judge took into account s19A(b)(1) of the Act to the effect that if a sentence is more than three years and the offender is not undergoing a federal term of imprisonment, a single recognisance release order or a single non-parole period must be imposed. He noted that the applicant had been in continual custody since the date of her arrest on 11 April 2001 and backdated the sentence to that date.
17 The sentencing Judge said:
"I am going to pass a sentence which will mean that you will have to serve a minimum of three and a half years in custody. That sentence is structured as follows. You would normally be sentenced to imprisonment for a period of ten years for this offence. That period is reduced to nine years due to your early plea of guilty. Pursuant to s16G of the Commonwealth Crimes Act , that sentence is adjusted to take into account the absence of remissions. You are convicted and sentenced to a term of imprisonment for a period of six years. That sentence shall commence on 11 April 2001 and expire on 10 April 2007. I set a non-parole period of three years and six months to commence on 11 April 2001 and you shall be eligible for parole on 10 October 2004."