R v Tran

SUPREME COURT OF QUEENSLAND

CITATION: R v Tran [2007] QCA 221

PARTIES: R v TRAN, Anh Kiet (applicant/appellant)

FILE NO/S: CA No 8 of 2007 / SC No 1034 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 13 July 2007

DELIVERED AT: Brisbane

HEARING DATE: 7 June 2007

JUDGES: Keane JA, White and Atkinson JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1.Application for leave to appeal granted / 2.Appeal allowed / 3.Set aside the sentence imposed below / 4.Substitute a sentence of 10 years imprisonment with a fixed non-parole period of 5 years

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERAL PRINCIPLES – whether head sentence of 15 years with a non-parole period of 7 years was excessive for a courier who imported heroin into Australia – whether there should be parity between the Australian States and Territories in sentencing with relation to federal offences / Crimes Act 1914 (Cth), s 16A, s 16G, s 19AB(1) / Criminal Code Act 1995 (Cth), s 307.2 / Judiciary Act 1903 (Cth), s 68(2) / Cameron v The Queen (2002) 209 CLR 339, considered / Mohlasedi v The Queen [2006] WASCA 267, considered / R v Bala [2000] QCA 436; CA No 208 of 2000, 20 October 2000, distinguished / R v Bezan [2004] NSWCCA 342, considered / R v Chai; R v Lim [1998] QCA 187; CA No 65 of 1998 and CA No 76 of 1998, 28 May 1998, distinguished / R v Dang [2004] NSWCCA 269, considered / R v Jain [2004] VSCA 30, considered / R v Kaldor [2004] 151 A Crim R 271; [2004] NSWCCA 425, considered / R v Mirzaee [2004] NSWCCA 315, considered / R v Ngui and Tiong (2000) 1 VR 579, considered / R v Sandford [2006] VSCA 110, considered / R v Tee (1994) 61 SASR 501; [1994] SASC 4434, considered / R v Mokbel [2006] VSC 119, considered. / R v Wong and Leung (1999) 108 A Crim R 531, considered / Serrette v The Queen (2000) 118 A Crim R 204; [2000] WASCA 405, considered / Siganto v The Queen (1998) 194 CLR 656, cited / Wong v The Queen (2001) 207 CLR 584, cited

COUNSEL: AW Moynihan SC for the applicant/appellant / GR Rice for the respondent

SOLICITORS: Legal Aid Queensland for the applicant/appellant / Commonwealth Director of Public Prosecutions for the respondent

KEANE JA: I agree with the orders proposed by Atkinson J and with her Honour's reasons. Gratefully accepting her Honour's summary of the circumstances relevant to the sentence imposed on the applicant, I am able to state the reasons for my concurrence with her Honour's views in brief terms.

The learned sentencing judge imposed a sentence upon the applicant which was intended to be consistent with the decisions of this Court in Chai¹ and Bala.² But this case differs significantly from both those cases in a number of respects. First in importance in this regard is the circumstance that, as Atkinson J has shown, the extent of the applicant's ready facilitation of the administration of justice was substantially greater than that which occurred in either Bala or Chai.

Secondly, this case differs from Bala in that that was a case in which the offender was guilty of a more serious offence, for which life imprisonment was the maximum sentence, rather than 25 years as was the case here. And Chai was a case where the offender was convicted of two offences, and the value of the drugs in question was much greater than in the present case, and the criminality of the offending was therefore greater.

It is to be noted as well that the decisions in Bala and Chai do not support the unqualified and absolute proposition, applied by the learned sentencing judge, that the circumstance that an offender is caught "red-handed" means that "any discount to be allowed in those circumstances [for a plea of guilty] is less than might otherwise be the case".

In Chai, Thomas J (as his Honour then was), with whom Davies JA and Lee J agreed, said:

"… it would seem that in cases of this kind where there is an overwhelming case against the applicant it by no means follows that a plea of guilty will be expected to produce the same level of discount as it may do in some other cases."³

In Bala, the Court followed Chai in this respect.⁴

The principle stated by Thomas J was not expressed in absolute terms, and, in any event, it was expressly confined to the effect of the plea of guilty without regard to other aspects of cooperation by an offender with the administration of justice.⁵ As the decision of the High Court in Cameron v The Queen holds, issues of acceptance of responsibility and remorse apart, the relevant question is really the extent to which the offender's cooperation has facilitated the administration of justice.⁶

In this case, the applicant's contribution to the facilitation of the administration of justice went beyond that involved in a timely plea of guilty. In my respectful opinion, the sentence imposed by the learned primary judge does not reflect the significant differences between this case and the cases of R v Bala and R v Chai. It therefore falls to this Court to sentence the applicant afresh.

Gleeson CJ in Wong v The Queen⁷ said of the administration of criminal justice: "It should be systematically fair, and that involves, amongst other things, reasonable consistency." Where the system of criminal justice is enforced by the judicial power of the Commonwealth, State courts exercising that power should strive for reasonable consistency in the sentences imposed throughout the Commonwealth. That objective will usually require recognition of decisions of other States where those decisions concern like cases.⁸ That objective was made more difficult to achieve by the differences in the corrective services regimes which have, from time to time, applied in the States and Territories.⁹ But as the analysis of Atkinson J shows, decisions by the courts in the other States, especially in New South Wales and Victoria, suggest that a substantial reduction in sentence is necessary to preserve consistency with those decisions.

If one takes the decisions in Bala and Chai as a guide, one must recognise the significantly greater claim to a discount for cooperation with the administration of justice as well as the mitigating force of the circumstances personal to this applicant. The thorough examination by Atkinson J of decisions by the courts of the other States tends to confirm that a substantial reduction, both in the head sentence and the non-parole period, is warranted in this case. I agree that the appropriate sentence in this case is that proposed by Atkinson J.

WHITE J: I have read the reasons for decision of Atkinson J and the concurring reasons of Keane JA and agree with them both.

There are two broad bases for allowing this appeal, both analysed by their Honours – the differences between the present material facts and those in the sentences of Chai¹⁰ and Bala¹¹ upon which the sentencing judge relied; and consistency with like sentences in other jurisdictions in Australia when sentencing under the same Commonwealth legislation.

I accept that this applicant’s cooperation in the administration of justice as set out by Atkinson J, together with differences which made the offences in Chai and Bala more serious, merited a significant reduction in his sentence. When that is considered, together with sentences imposed in other Australian jurisdictions for like offences as analysed by Atkinson J in her reasons, it is clear that the sentence imposed below was excessive and that the appropriate sentence should be that as proposed by her Honour.

ATKINSON J: The applicant was convicted on 7 December 2006 after pleading guilty to one count of importing a marketable quantity of a border controlled drug being heroin contrary to s 307.2 of the Criminal Code Act 1995 (Cth). He was sentenced to 15 years imprisonment with the non-parole period fixed at seven years. One day of pre-sentence custody was declared as time served under the sentence. The ground of appeal is that the sentence is manifestly excessive.

Mr Tran was a courier with no prior criminal record of the type often used by criminal networks because their lack of criminal convictions is thought to lessen the chances of detection and because they are regarded as expendable by those who use them. Tran left Sydney, where he lives, on 21 December 2005 and flew to Vietnam where he stayed until 24 February 2006. From there he flew to Cambodia where he obtained the heroin which was the subject of the charge. On 28 February 2006 he flew from Cambodia arriving in Brisbane on 1 March 2006. On landing, his bags were examined by customs officers who found in them two large clear plastic jars or barrels, wrapped with brown masking tape which covered their contents. The barrels contained cut sections of fish. The jars were x-rayed and as a result further inspected. The skin on the exterior of a number of the pieces of fish had been cut open and then stitched back together. A number of condoms containing heroin had been secreted inside the fish.

The gross weight of the heroin mixture was 2,159.4 grams. The mixture was 68 per cent pure so that the quantity of pure heroin imported was 1,473 grams. Its value was given as in excess of $1,000,000.

The applicant gave an unconvincing explanation to the customs officials that he had bought the fish at a supermarket to use in his restaurant although he did not know what type of fish was in the barrels. He said he had gone to Cambodia to see a friend. His incoming passenger card nominated an address at Inala as his residence. He was unable to explain why another passenger on the plane, whom he claimed not to know, had nominated the same address. He said he had come to Brisbane because he wanted to start a restaurant.

Later that day Mr Tran underwent a formal record of interview with the federal police in the presence of his solicitor. During that formal record of interview he made full admissions as to his criminal conduct. He told the police that while holidaying in Cambodia he met a man named Hai in a bar who offered him $10,000 if he would collect two barrels from a woman at the markets, wrap them in masking tape and bring them to Brisbane where an unidentified person would meet him to exchange the drugs for the money. If he did not meet his contact at the airport he was to go to the address in Inala he had been given. He said that he did not know what was in the barrels but suspected they contained illegal drugs.

The maximum penalty for importing a marketable quantity, that is (2 - 1500 grams) of heroin, is 25 years imprisonment. This is the same maximum penalty as was provided under the legislation it replaced, s 233B of the Customs Act 1901 (Cth), where an amount under 1500 grams was called a trafficable quantity. The maximum penalty for importing a commercial quantity, that is in excess of 1500 grams, is life imprisonment. Mr Tran was convicted of the less serious of those offences as the heroin imported weighed just under 1500 grams.

The applicant’s complaint on appeal was that the sentencing judge failed to adequately moderate the sentence for the matters in mitigation particularly the applicant’s plea of guilty to an ex officio indictment. The applicant argued that setting the non-parole period at seven years failed to moderate the head sentence adequately for the matters in mitigation.

The relevance of a plea of guilty is usually threefold. Firstly it may indicate remorse; secondly, an acceptance of responsibility; and thirdly, and most importantly, the offender’s willingness to facilitate the course of justice: see Cameron v The Queen (2002) 209 CLR 339 at 343 [11] and 345-346 [22]; see also Siganto v The Queen (1998) 194 CLR 656 at 663-664 [22].

Relevant to the question of willingness to facilitate the course of justice is the time at which the plea is entered. In this case, the plea was entered at the first reasonable opportunity to an ex officio indictment. Furthermore, the applicant made full admissions as to his criminal conduct in a formal record of interview on the day he was detained. He gave some information to the police as to others involved in the offending. He had other personal factors in his favour. He had no criminal history and was a 41 year old married man with two young children. He lives in Sydney and he had a good work history.

It was said that the sentence imposed was inconsistent with sentences imposed in Queensland for similar offending. There is no doubt that consistency in sentencing offenders is integral to the criminal justice system and it is the responsibility of State appeal courts, recognising the proper exercise of sentencing discretion by sentencing courts, to ensure that like offenders receive like sentences.¹²

There are three matters which are relevant to sentencing consistency in this case. The first is application of the sentencing principles found in the relevant statute; the second is consistency with sentences imposed on similar offenders within Queensland; and the third, relevant because this is a federal offence, is consistency with sentences imposed upon similar offenders within the various States and Territories of Australia.

Statutory sentencing principles

A sentencing court must consider and apply the relevant sentencing principles imposed by statute. The court, when sentencing a federal offender, is bound by s 16A of the Crimes Act 1914 (Cth) which provides as follows:

“16AMatters to which court to have regard when passing sentence etc.

(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2)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:

(a)the nature and circumstances of the offence;

(b)other offences (if any) that are required or permitted to be taken into account;

(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct;

(d)the personal circumstances of any victim of the offence;

(e)any injury, loss or damage resulting from the offence;

(f)the degree to which the person has shown contrition for the offence:

(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii)in any other manner;

(g)if the person has pleaded guilty to the charge in respect of the offence – that fact;

(h)the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j)the deterrent effect that any sentence or order under consideration may have on the person;

(k)the need to ensure that the person is adequately punished for the offence;

(m)the character, antecedents, age, means and physical or mental condition of the person;

(n)the prospect of rehabilitation of the person;

(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.”

Under s 19AB(1) of the Crimes Act a court that sentences an offender to a term of imprisonment that exceeds three years must fix a non-parole period or make a recognisance release order.

In this case, the applicant argued that the head sentence reflected the seriousness of the offending but it could not be said that setting the non-parole period at just six months under the half-way mark gave adequate weight to the early plea of guilty to an ex officio indictment; the co-operation with law enforcement authorities by admitting his own criminal offending in an interview with police and giving further information, albeit of limited value, to the police on the day his offending was detected; his lack of any criminal history; his age, his family responsibilities and good work history; and the prospects of rehabilitation i.e. that he would be unlikely to offend again. The parole date which was fixed at seven years gave rise to a sentence which was manifestly excessive.

Consistency with sentences in this jurisdiction

The head sentence is similar to those imposed in Queensland on other drug couriers who pleaded guilty to importing heroin contrary to s 233B(1)(b) of the Customs Act. Prohibition on such activity is now found in s 307.2 of the Criminal Code Act 1995 (Cth). However, those cases also contain some significant dissimilarities.

In R v Bala [2000] QCA 436 a sentence of 15 years imprisonment with a parole order after seven years was not disturbed. Bala was also intercepted carrying heroin into Australia concealed in his luggage and pleaded guilty, in his case after a full hand-up committal. However the quantity of heroin imported was far greater, having a net weight of 2.112 kilograms. As it was more than 1.5 kilograms it was a commercial quantity of heroin which is a more serious offence attracting the higher maximum penalty of life imprisonment.

A sentence of 15 years imprisonment with a recommendation for parole after seven years was not disturbed on appeal in R v Chai [1998] QCA 187. Chai pleaded guilty to two counts, one of importing prohibited goods, namely heroin not less than the trafficable quantity, and one of being knowingly concerned in the importation of prohibited imports, namely heroin not less than the trafficable quantity. Like Bala, and unlike Tran, Chai was not an Australian resident or citizen and entered Australia solely for the purpose of engaging in the criminal activity of importing heroin. The total amount of heroin brought in pursuant to the two counts that Chai faced was worth between $1.4 million and $2.1 million although the amount of heroin appears to have been less than the applicant in this case imported. An aggravating factor was that most of the drugs that were carried in by Chai were carried in pellets within his stomach which were only able to be detected by x-raying him.

A comparison with Bala and Chai suggests that a head sentence of 15 years imprisonment with a parole order after seven years was manifestly excessive in this case where Tran was convicted of only one offence, it was the offence of importing a marketable rather than a commercial quantity, and he co-operated in the administration of justice in the manner set out above, by pleading guilty on an ex officio indictment and admitting his criminal offending in an interview with police on the day he was detained.

Consistency in sentencing across Australia

It is also necessary to consider sentences in other Australian States and Territories to endeavour to ensure consistency across Australia.¹³ The court is in such a case exercising its federal jurisdiction pursuant to s 68(2) of the Judiciary Act 1903 (Cth). The Court asked the parties for further submissions on this point.

The Australian Law Reform Commission in its Report 103 Same Crime Same Time: Sentencing of Federal Offenders has recently reported on the disparity of sentencing of federal offenders within Australia. Such disparity is inconsistent with the reasonable consistency which, as Gleeson CJ held in Wong v The Queen,¹⁴ is necessary for systematic fairness. It would seem fair that the sentence imposed on an offender for a federal offence should not depend on which side of a State border he or she happens to offend or, to use an example apposite to drug importation, on which bank of the Tweed (or the Murray) he or she happens to land.

The question of how much attention should be paid by intermediate courts of appeal to decisions of other courts of appeal when considering the sentences given to federal offenders was left open by the majority of the High Court in Wong v The Queen.¹⁵ However the footnoted reference was to Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 recently referred to by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135] for the well known principle that intermediate appellate courts and trial judges should not depart from decisions of intermediate appellate courts in another jurisdiction in Australia on the interpretation of Commonwealth legislation unless convinced that the interpretation is plainly wrong. Similarly, State courts should, in my view, take into account sentences imposed by other courts within the Commonwealth with regard to offences against Commonwealth legislation.¹⁶

The apparent disparity in sentencing in the various States and Territories was in part attributable to s 16G of the Crimes Act which was introduced in 1990 by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). Section 16G provided:

“16G****Federal sentence to be adjusted if no State or Territory remissions laws apply

If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.”

Section 16G reflected the fact that some States and Territories provided for the remission of sentences to be served and others did not. It was intended that the result of the sentences imposed should be similar by taking into account the effect on lengthening sentences where States had abolished an entitlement to remission. The States and Territories in which remissions had been abolished were New South Wales and the ACT in 1989, Victoria in 1991, South Australia in 1994 and the Northern Territory in 1996. Remissions were abolished in Queensland for offences committed after 1 July 2001. Section 16G was repealed by the Crimes Legislation Amendment Act 2002 (Cth) with effect from 17 January 2003. Thus when comparing sentences imposed for like offences in the various States and Territories prior to 17 January 2003, the effect of s 16G must be considered. However since that date, it has had no relevant effect on a comparison between sentences imposed in different jurisdictions.

New South Wales

While the New South Wales Court of Criminal Appeal’s “guideline” judgment in R v Wong and Leung (1999) 108 A Crim R 531 was disapproved by the High Court in Wong v the Queen (2001) 207 CLR 584, the judgment in the Court of Appeal contains some, albeit limited, useful comparative information. Section 3 of Schedule 1 of the judgment set out sentences imposed on offenders in New South Wales who were convicted of importing what is referred to as high range trafficable quantities of heroin or cocaine. The appellant in this case had a similar amount of heroin in his possession when his offending was detected. Those cases range from a low of four years nine months imprisonment with a parole order after three and a half years to a high of ten years imprisonment with a parole order after six and a half years. Section 3 of Schedule 2 sets out two sentences which were imposed or not disturbed by courts of appeal in States other than New South Wales for similar quantities of those drugs. They were a head sentence of nine years with a parole order after four and a half years in South Australia and a head sentence of seven and a half years with a non-parole order after three years and four months in Western Australia.

The comparative information is of limited utility because it related only to the quantity of drug and did not take into account all of the relevant factors which are required by s 16A to be taken into account and was decided before s 16G was repealed. Nevertheless, the quantity of the drug imported is relevant in two ways: it may determine the particular offence committed by the offender and it is one factor relevant to determining how serious an example of the particular offence it may be. Other factors relevant to the seriousness of the offence, such as the role of the offender as a principal in the drug trade or as a mere courier, the knowledge of what is being imported and the reward expected are not taken into account if the range is fixed only by reference to the quantity imported. Nor is the reasoning of a sentencing court revealed by reference only to the length of the sentence imposed.¹⁷

However, subsequent to its decision in the rehearing of the appeal in Wong,¹⁸ the Court of Criminal Appeal in New South Wales has considered a number of appeals against sentence in a number of cases that bear some similarities to the one before this Court. I refer in particular to those which were considered after the repeal of s 16G of the Crimes Act.

In R v Bezan [2004] NSWCCA 342, the appellant was sentenced on appeal to eight years imprisonment with a non-parole period of five years for the importation of a trafficable quantity of heroin in violation of s 233B(1)(b) of the Customs Act. He had personally imported 490 grams of powder containing 260 grams of pure heroin (worth as much as $900,000) in a marble chessboard. The quantity of drug imported was less than that imported by Tran but he was convicted of the offence by a jury, which rejected the appellant’s claims that he had no knowledge of the drugs. He was not merely a courier although, like Tran, he had no criminal history.

The appellant in R v Mirzaee [2004] NSWCCA 315 was sentenced to nine years imprisonment with a non-parole period of six years for the importation of 578 grams of heroin. He pleaded guilty, was approximately 58 years at the time of offence, had produced a false Italian passport at the airport, had three children and no criminal history. He also had some health problems and committed the offence because of financial problems he was experiencing. His non-parole period was reduced to four and a half years on appeal.

A sentence of six and a half years imprisonment with a non-parole period of four years and four months imposed for one count of importing a trafficable quantity of heroin was not disturbed on appeal in R v Dang [2004] NSWCCA 269. Dang was a courier who carried a net weight of 218.6 grams of pure heroin into Sydney from Vietnam. He was remorseful and had no criminal history of relevance. He was not able to assist police by identifying any of the people who engaged him to bring in the drug. He was to be paid $5,000 which he wanted to use to pay medical expenses of a seriously ill relative.

In R v Kaldor [2004] 151 A Crim R 271; [2004] NSWCCA 425, Kaldor was sentenced on a Crown appeal to seven years imprisonment with a non-parole period of four years for the procurement of the importation of 479.3 grams of pure heroin. He was 57 years at the date of offence and had a limited criminal history but had been convicted by a jury. The basic facts were that Kaldor and a friend, G, went to Vietnam for a holiday. On the second last day of their holiday, Kaldor mentioned that he needed to take a guitar back to Australia for someone else. The guitar was delivered in its case shrink wrapped in plastic to their hotel. The guitar was checked in under G's name because Kaldor was over the weight limit for the baggage. At Sydney, Kaldor left the guitar case with his friend and said he needed to go to the toilet. He asked his friend to take the guitar case through Customs. On x-ray, it was discovered that the guitar was filled with bags of heroin. It was not disputed that Kaldor's friend was completely unaware of the presence of the drug.

Victoria

A recent relevant decision regarding the sentencing of a drug courier in the Court of Appeal in Victoria is R v Jain [2004] VSCA 30. Jain was sentenced to ten years imprisonment with a non-parole period of seven years for the more serious offence of importing a commercial quantity of heroin. The amount imported was 1,559.9 kg of pure heroin. He pleaded guilty and showed remorse. He was 26 years old and had no previous criminal history and so was regarded as having good prospects of rehabilitation. He was however uncooperative with the authorities initially, used a false passport, had several thousand dollars in mixed currency on him and a return ticket to enable him to leave the country as soon as his business was transacted. Like Bala this was a more serious case than the present.

Another case which had some similarities was R v Ngui and Tiong (2000) 1 VR 579. The offenders in that case were “bare couriers” who imported 1.25 kg of pure heroin through Melbourne Airport. Not only did they plead guilty but they also took part in a controlled delivery of the drugs so that others were able to be apprehended. While expressing reservations the approach of the Court of Criminal Appeal in New South Wales in R v Wong (1999) 108 A Crim R 531 in producing a “guideline judgment”, Winneke P acknowledged that consistency in sentences imposed for like offences upon like offenders is particularly important where the offences are created by Commonwealth statutes and sentences for such offences are being imposed by courts throughout Australia.¹⁹ Emphasising the significance of the assistance given to the prosecuting authorities by the offenders, the Court of Appeal varied the sentences imposed to a head sentence of five years imprisonment with a non-parole period of three years and four months. In the case before this court, Tran did not exhibit the same level of co-operation as the offenders in that case and that decision was also made prior to the repeal of s 16G of the Crimes Act.

In a more recent case, R v Sandford [2006] VSCA 110, decided after the repeal of s 16G, the Court of Appeal in Victoria upheld a sentence of six years imprisonment with a non-parole period of three and a half years in a case where the applicant counselled and procured a courier to import 386.7 grams of pure heroin from Vietnam. The applicant was a recruiter for others higher in the criminal hierarchy but at a level above a courier. He also initially appealed his conviction. That appeal was withdrawn but suggests, although the judgment on appeal does not explicitly say so, that he was convicted after a trial rather than on a plea of guilty.

An example of a recent sentence imposed in a much more serious case where the accused was convicted after a trial and was an organiser of the drug trade is found in R v Mokbel [2006] VSC 119. Mokbel was convicted by a jury of knowingly being involved in the importation of drugs. Gillard J found that Mokbel was a principal in the importation operation and organised and financed the venture. He was found to be at the highest level. The venture involved the importation of a commercial quantity of just under two kilograms of pure cocaine. He was sentenced to 12 years imprisonment with a parole order after nine years.

South Australia

The Full Court of the Supreme Court of South Australia in R v Tee ²⁰ allowed an appeal against sentence for the importation of a commercial quantity of heroin (rather than, as in the case before this Court, a marketable quantity). The sentence imposed on appeal was 12 years imprisonment with a non-parole period of seven years. Tee pleaded guilty and cooperated with the authorities but his information was of little value. The Court took into account that his head sentence would be further reduced by a third because of remissions. King CJ said that in approaching the correct sentence to be imposed he had regard to “the standards of punishment which have been adopted throughout Australia in regard to offences of this kind.”²¹

Western Australia

Sentences imposed in Western Australia were never relevantly affected by s 16G of the Crimes Act. In Serrette v The Queen (2000) 118 A Crim R 204; [2000] WASCA 405, the Court of Criminal Appeal doubted the usefulness of the decision in R v Wong (1999) 108 A Crim R 531 in determining the correct level of sentence to achieve desirable uniformity in sentencing practice throughout Australia, particularly given the applicability of s 16G in New South Wales and not in Western Australia. The Court preferred to follow its decision in Quach v The Queen [1999] WASCA 210 per Ipp J at [26] (which concerned a State offence of possession of heroin with intent to sell or supply) which had followed an earlier New South Wales decision of Ferrer-Esis v R (1991) 55 A Crim R 231. Serrette pleaded guilty to importing 925.4 grams of pure cocaine and co-operated with the authorities. The applicant had no prior criminal history but was regarded as playing a more significant part in the importation than as a mere courier. A sentence of ten years imprisonment with a non-parole period of six years was not disturbed on appeal.

The decision made by the Western Australian Court of Appeal not to follow Wong (1999) 108 A Crim R 531 was confirmed in Foo v The Queen (2001) 126 A Crim R 486 [75-77] and Johnson v The Queen (2002) 130 A Crim R 563 at [52]-[54]. In doing so it nevertheless recognised the importance of the courts throughout Australia maintaining a common approach to sentencing of offenders against the laws of the Commonwealth.

The applicant in Foo was sentenced on appeal to 17 years imprisonment with a non-parole period of nine years and six months for importing a commercial quantity of heroin. He was found to have imported 1562.5 grams of pure heroin and was not a “mere” courier. Furthermore it was his third conviction for an offence of this type. He was uncooperative with the authorities and was found guilty by a jury.

Johnson imported 805.2 grams of pure MDMA and 131.7 grams of pure cocaine. He was described as an intermediate courier who was to collect the drugs from the importer and pass them on to another in the chain for a significant fee. He had one prior conviction but this was irrelevant to the drug offences. Johnson was sentenced to eight years imprisonment on count 1 which took account of his "fast-track" guilty plea and remorse. On count 2, the cocaine count, he was sentenced to three and a half years. The sentences were to be served cumulatively so that Johnson received a head sentence of eleven and a half years and was not eligible for parole for five and a half years. Both Foo and Johnson had more serious involvement in drug importation than as mere couriers.

The sentence imposed in Mohlasedi v The Queen [2006] WASCA 267 of 18 years imprisonment with a non-parole period of ten years is, at first blush, more difficult to reconcile with the sentences which have been referred to. Mohlasedi was convicted by a jury of importing a trafficable quantity of heroin. The amount imported was 1461.8 grams of pure heroin. He was a flight attendant on South African Airways, had visited Australia on a number of occasions in that capacity and so was well aware of the requirements and procedures of Australian Customs, was aware of the risks of carrying drugs into the country and of the penalties involved as that was set out in his flight crew manual and knew that because he was flight crew he was not required to complete the same detailed documentation as passengers. He made a deliberate and informed decision to import a large quantity of 100 per cent pure heroin. He showed no remorse nor any assistance with the administration of justice by pleading guilty. The Court of Appeal described the sentence as a severe sentence, at the top of the range. What it does show is that the amount of drug imported is only one factor and not necessarily the most important factor to be taken into account in determining the correct sentence to be imposed.

Conclusion

No two cases are ever alike but an analysis of the sentences imposed throughout Australia does provide some assistance in determining the proper level of sentence which should be imposed in this case. Taking into account the statutory regime and sentences imposed for similar offending in Queensland and other States and Territories, it appears that a sentence of 15 years imprisonment with a fixed non-parole period of seven years is manifestly excessive in the circumstances of this case and therefore reveals an error in the exercise of the sentencing discretion. It appears that the previous sentences imposed in Queensland were imposed without full regard to the decisions made in other States and Territories and that the head sentence imposed needs to be moderated to take into account consistency with decisions in other States and Territories.

It therefore falls to this Court to impose a sentence of an appropriate severity taking proper account of previous sentences imposed in Queensland and the decisions of intermediate courts of the other States and Territories and all the factors referred to in s 16A(2) of the Crimes Act.

In particular in this case those matters include:

the maximum penalty applicable to the offence of which he was convicted;

the need for sentences for offences of this type to act as a deterrent;

the difficulty in detecting and preventing offences of this type;

the need for condign punishment for offences of bringing illegal drugs of addiction into Australia;

the serious adverse consequences for the Australian community of offences of this type;

the quantity and type of drug imported into Australia;

the role played by the applicant in the criminal enterprise as a courier rather than as an organiser;

the lack of detailed knowledge of the applicant of what he was carrying;

the fact that it was an isolated offence rather than part of a course of conduct;

how the drugs were hidden;

that he was convicted of one offence only;

the co-operation shown by the applicant in the administration of justice, in particular giving an interview with the police admitting to his offending on the day he was arrested and pleading guilty on an ex-officio indictment;

the information, albeit limited, provided as to his contacts in Cambodia and the phone number he was to contact in Brisbane upon his arrival;

his previous good character and lack of any criminal history;

his previous good work history;

the effect of his incarceration on his family and dependants; and

his prospects of rehabilitation.

I would grant the application for leave to appeal against sentence, allow the appeal, and order that the sentence imposed below be set aside and substitute a sentence of ten years imprisonment with a fixed non-parole period of five years.

Footnotes

1. [1998] QCA 187. ↩

2. [2000] QCA 436. ↩

3. [1998] QCA 187 at 5. ↩

4. R v Bala [2000] QCA 436 at 4. ↩

5. Cf R v Bulger [1990] 2 Qd R 559 esp at 563 – 565. ↩

6. Cameron v The Queen (2002) 209 CLR 339 at 343 – 346 [11] – [22]. ↩

7. (2001) 207 CLR 584. ↩

8. Cf Cameron v The Queen (2002) 209 CLR 339 at 352 [44]. ↩

9. Cf s 16G of the Crimes Act 1914 (Cth). ↩

10. [1998] QCA 187 ↩

11. [2000] QCA 436 ↩

12. Lowe v The Queen (1984) 154 CLR 606 at 610-611; Wong v The Queen (2001) 207 CLR 584 at 591. ↩

13. See Same Crime Same Time: Sentencing of Federal Offenders ALRC Report 103 Recommendation 3-1, 5-1, Chapters 20 and 21; Schedule 2 [142]-[147]. ↩