R v Thomas [1999] VSCA 204

"2. That the learned sentencing judge erred in failing to accord sufficient weight to the following mitigating personal circumstances of the applicant:

(b) the additional burden a term of incarceration would have on the applicant due to his status as a foreign national;

(c) the applicant's mental state, particularly with respect to symptoms of depression and anxiety;

(d) the applicant's habitual use of cocaine as a factor relevant to his commission of the offence;

(e) the absence of relevant prior convictions on the part of the applicant; and

(f) the prospects for the applicant's rehabilitation.

3. That the learned sentencing judge erred in failing to accord sufficient weight to the applicant's early plea of guilty and his cooperation with the investigating authorities.

4. That the learned sentencing judge erred in considering that for the purposes of sentence, the quantity of cocaine imported by the applicant did not differ from offences involving commercial quantities of cocaine falling at the lower range."

Ground 2(b) refers to the fact that the applicant is a Canadian.

27. Before turning to counsel's submissions I shall say something briefly of the circumstances of the offence. On 26th August 1998 the applicant arrived at Melbourne Airport on Qantas Flight QF100 from Aruba. (Aruba is an island in the Caribbean off the coast of Venezuela. It is an autonomous part of the Kingdom of the Netherlands.) While he was waiting to present his passport, a customs dog detected the presence of a narcotic substance. The applicant and his baggage were searched. Inside the pockets of five pairs of jeans and one pair of tracksuit pants were located 12 rectangular packages containing an off-white powder. The applicant admitted that it was cocaine and agreed to assist the Australian Federal Police. He was accordingly allowed to leave the baggage hall and walk through the arrivals area whilst members of the police conducted surveillance. No one approached the applicant in the 15 minutes during which he was in the arrivals area.

30. The applicant then participated in a tape-recorded interview with the police. In summary he said:

* He arrived in Sydney in March 1998 and lived with friends in an apartment at Potts Point. He was an occasional user of drugs, using mainly marijuana and cocaine which he purchased from an unidentified dealer at Kings Cross.

* The dealer introduced him to an unidentified Aruban, who asked the applicant to travel to Aruba, pick up a parcel of drugs and bring them back to Australia. The applicant was initially offered a fee of $15,000 or $20,000 but he negotiated a fee of $50,000.

* The Aruban gave the applicant cash to purchase the required airline ticket, together with a ticket for the person whom he planned to use as his "cover", and also obtained a photograph of the applicant. The photograph was to be provided to other members of the drug ring who would need to identify him.

* The applicant travelled to Canada on 7th August 1998 for a nine-day holiday, after which he flew to Aruba, arriving on 18th August 1998. He was met at the airport and driven to a hotel, where he waited for the best part of a week. He then received a telephone call from another Aruban, who asked him to meet him in the lobby that evening.

* The two men met in the lobby of the hotel as arranged and went outside to the carpark. The Aruban asked the applicant how many pairs of trousers he had with him. The applicant gave him four pairs of trousers and his back pack. He was instructed to be in the carpark at a specific time on the following evening.

* On that evening a third Aruban gave him two brown paper bags. One contained his back pack and the other, which was very heavy, appeared to be filled with trousers. The applicant returned to his hotel room and met up with two more members of the ring, who proceeded to fill his back pack from the contents of the second paper bag.

* The applicant returned to Australia and, as I have mentioned, arrived in Melbourne on 26th August 1998. He was instructed that an unidentified person would meet him at the airport and drive him to Sydney. He was told not to arrive at Kingsford Smith Airport, because it was too risky, and he was promised payment of the $50,000 within 48 hours.

40. Examination of the packages revealed that the off-white powder weighed 2,873.5 grams. On analysis it was found to contain 1,566.3 grams of pure cocaine, the potential street value of which was estimated to be between approximately $1m. and just under $4m.

43. Mr. Kowalski argued ground 4 first. Its foundation was the following exchange, which took place in the course of the plea:

"PROSECUTOR: Your Honour, there are just a couple of factors in this case that I'd like to draw to your attention. Primarily, the quantity of narcotics involved. The prisoner was found to be carrying 1,566.3 grams of pure cocaine.

HIS HONOUR: A commercial quantity is, I think, 2 kilograms, isn't it?

HIS HONOUR: But I think a figure of that amount is being generally characterised by the courts as a 'substantial' amount; would that be right?

PROSECUTOR: That's correct, Your Honour. It's regarded as at the top end of the trafficable range, which is grouped together - - -

HIS HONOUR: It's just over three-quarters of what would constitute a commercial amount.

PROSECUTOR: That's right, and that has been grouped together by courts with the lower end of the commercial range for sentencing purposes.

54. That exchange was to be understood, counsel submitted, in the light of a number of authorities, but in particular R. v. Ferrer-Esis (1991) 55 A.Crim.R. 231 and R. v. Bernier (1998) 102 A.Crim.R. 44. Both are decisions of the New South Wales Court of Criminal Appeal. In the former case, which involved a quantity of cocaine well towards the top of the trafficable range, Hunt, J. referred at 236-237 to a recognized pattern of sentencing for couriers of "substantial" quantities of heroin. His Honour rejected the view that the penalties appropriate to offences involving cocaine should be less than for those involving heroin and said that, taking into account the adjustments required by s.16G, the previous pattern translated into a head sentence of between eight-and-a-half and 11 years for such quantities. Gleeson C.J. and Lee, C.J. at C.L. concurred in his Honour's judgment.

57. In R. v. Bernier the applicant had imported a commercial quantity of cocaine, although it was only slightly above the prescribed amount. The Court was therefore not directly concerned with large trafficable quantities. Their Honours nevertheless observed that the pattern of sentences in recent years for quantities in the upper trafficable range appeared to have been lower than that provisionally recognized in R. v. Ferrer-Esis. They concluded at 49 that -

"the pattern of sentence for substantial quantities of drugs identified by Hunt J in Ferrer-Esis (eight and a half to 11 years) should now be seen as more appropriate for the importation by couriers of drugs in quantities at the lower end of the commercial range."

The conclusion was that a sentence of 12 years' imprisonment with a non-parole period of seven-and-a-half years for importing a pure quantity of 2.04 kilograms of cocaine was, in the circumstances of that case, manifestly excessive.

62. Mr. Kowalski submitted that the prosecutor had invited the judge to apply a range of sentences appropriate for the importation of drugs in quantities at the lower end of the commercial range to the importation of what was no more than a very substantial trafficable amount and that his Honour had acceded to that invitation.

65. In my opinion that submission should be rejected for two reasons. First, the proposition that the judge stated that he understood was only that quantities such as three-quarters of the commercial amount had been grouped together with the lower end of the commercial range for sentencing purposes. In R. v. Bernier itself the Court said at 48, "Inevitably, there will be some overlap between the top of the trafficable range and the bottom of the commercial range." That observation was made in the context of explaining that their Honours had examined the cases dealing with trafficable quantities only in so far as they might be of assistance in determining a range for low commercial quantities and that it was not their function to re-examine the range for trafficable quantities generally.

68. Secondly and more importantly, as Mr. Dickie pointed out, the exchange set out at [ 8] does not stand alone. A little later the following exchange took place:

"PROSECUTOR: [In Ferrer-Esis] the court identified a sentencing pattern for substantial quantities of cocaine, for couriers of substantial quantities and the pattern that they identified in that case was eight and a half to eleven years. In the case of Bernier ---

HIS HONOUR: You're talking about the head sentence there, are you?

PROSECUTOR: That's right, that's right; went on to discuss that case and look at statistics that were provided to them to show what had been done since that pronouncement in Ferrer-Esis. The assertion had been made that the statistics would not bear out that sentence, the eight and a half to eleven year range. They examined the statistics and found that eight to ten was in fact the range within which couriers for substantial quantities of cocaine had been sentenced."

74. The submission at [11] cannot be sustained in the light of that passage and the other references to R. v. Bernier on the plea. I express no opinion on the questions that divided the New South Wales Court of Appeal in R. v. Spiteri [1999] NSWCCA 3. There is no need to do so, at least on this occasion. I note that, in the course of the plea, his Honour correctly observed that every case has to be decided on its own merits. That observation was made in the context of the use to be made of statistics. I would not uphold ground 4.

77. Turning to grounds 2 and 3, which he argued together, Mr. Kowalski conceded that the learned judge referred to all the matters in mitigation put forward on behalf of the applicant but submitted that his Honour had insufficient regard to the factors identified in those grounds. Where complaint is made in terms of weight, as opposed to disregard of a relevant consideration, an appellate court must be especially cautious not to intervene simply because it disagrees with the sentence. In the words of Lowe and Gavan Duffy JJ. in R. v. Taylor and O'Meally [1958] VicRp 46; [1958] V.R. 285 at 289 it must be shown that the judge has clearly given insufficient weight, or excessive weight, to some matter that he or she took into account. Similarly, looking ahead to ground 1, for a sentence to be manifestly excessive it must be obviously, not merely arguably, too severe.

80. The applicant's age was relevant: see R. v. Lawson (1997) 142 F.L.R. 323 at 324-325 and 337-338. Being 21 at the time of the offence does not, however, carry as much weight as it might in other cases. That is partly because of the gravity of the offence, partly because of the pressing need for general deterrence and partly to discourage drug runners from engaging young men or women as couriers on a promise that they will be treated leniently if they are caught. Similar considerations apply to the absence of relevant prior convictions. The applicant's status as a foreign national, in the sense in which Canada must be regarded as a foreign country in the light of the authorities culminating in Sue v. Hill [1999] HCA 30; (1999) 73 A.L.J.R. 1016, was entitled to little weight. His first language is English: the cultural differences are slight: and the additional burden of incarceration deriving from such status is an occupational hazard of bringing prohibited drugs into this country: compare R. v. Ferrer-Esis at 239.

83. The reference in the grounds of appeal to the applicant's mental state is primarily a reference to a history of depression from which the judge accepted that the applicant suffered. He had been hospitalized at the age of 17 and Mr. Watson-Munro, in a report which was tendered on the plea, considered that he exhibited symptoms that needed to be addressed at a professional level. A reading of the evidence as a whole does not, however, disclose such a level of psychiatric illness as to cast doubt on the sentence. It would have been a sentencing error not to take it into account, but it is not shown that the judge failed to give it sufficient weight. The same may be said of the plea of guilty and the applicant's co-operation with the authorities. They are both to his credit and he is entitled to a discount for pragmatic reasons, but he had little option but to plead guilty and his assistance produced no results. I am not persuaded that, having regard to the material adduced on the plea, his Honour gave insufficient weight to the applicant's prospects of rehabilitation.

86. In the course of his sentencing remarks the judge said:

"It was submitted that at the time of apprehension you were addicted to cocaine. I am not satisfied that you were addicted to cocaine, but I am prepared to conclude that you were a poly-drug user, favouring marijuana but using cocaine extensively and habitually. I therefore find that you were in a vulnerable position when you agreed to bring cocaine into this country for a reward of $50,000, your role being that of a courier. However, I am of the view that the main reason for engaging in this criminal activity was greed. You are not unintelligent, and you were well aware of what you were doing."

His Honour accepted that the applicant was not involved in a sophisticated way and in that sense was a simple courier, but it will be recalled, and his Honour was aware, that the applicant had negotiated an increase in his fee. He had also suggested taking a young woman with him as a "cover". He was not like a teenager recruited at a foreign airport and agreeing, on the spur of the moment, to carry drugs in her luggage.

91. It has often been said that the question whether a sentence is manifestly excessive admits of little argument. In the context of this case, grounds 2 and 3 were in effect particulars of manifest excess. Mr. Kowalski put every argument that could fairly be advanced in support of those grounds and ground 1, but I can detect no error in the sentence. I would dismiss the application.