R v Zehavi [1998] VSCA 81

10. No prior convictions were alleged against the applicant and indeed the prosecution accepted that he had none. The sentencing judge heard a plea in mitigation of penalty which proceeded by way of an agreed summary of facts. Counsel then appearing for the applicant called three witnesses - Raffale Aron, a psychologist, who was the Director of the Gateway Family Counselling Centre, one of the divisions of which provided drug and alcohol counselling; Robert Kline, a director of a company which provided the applicant while on bail with unpaid work and accommodation; and Richard Sabbah, a Rabbi of the Sephardic Jewish congregation in Victoria. The following day, 17 April 1998, the judge sentenced the applicant to be imprisoned for a term of 4 years and fixed a non-parole period of 2 years. He declared that the period of time already spent in custody in respect of the matter was 26 days and directed that that declaration be noted in the records of the County Court.

13. On 27 April 1998 the applicant lodged notice of application for leave to appeal against sentence dated 24 April 1998. Of the grounds specified in the notice as those on which the applicant wished to appeal against sentence the following, with minor grammatical corrections, were those argued:

"1. The Learned Sentencing Judge erred in that he failed to give any or any sufficient weight to the hardship suffered [by] me by reason of [my]:

(a) awaiting plea and sentence in a foreign country; and

(b) serving a sentence of imprisonment in a foreign country.

2. ... 3. The Learned Sentencing Judge erred in that he failed to give sufficient weight to the prospects of my rehabilitation. 4. ... 5. The sentence imposed is, in the circumstances of the case, manifestly excessive."

20. The facts of the offence and the proceedings leading up to the applicant's arraignment, as well as the facts personal to him that were put before the judge, are stated clearly and comprehensively in the first 8½ pages of his Honour's sentencing remarks and it is quite unnecessary to take time to repeat those facts at length here. Rather, I adopt that statement subject to one comment that I shall make later, and content myself with stating a few essential facts only. The applicant, an Israeli national, arrived at Melbourne Airport on 14 February 1997. He had left Tel Aviv on 7 February, spent five days in Amsterdam, and flown from there via London and Manila to Melbourne. He was detained at Melbourne Airport by Customs officers and later at the Royal Melbourne Hospital. At the hospital between 14 and 16 February 1997 inclusive, he expelled per anum 108 pellets. Each pellet contained six tablets, so that 648 tablets were recovered. Their net weight was 116 grams. Analysis showed that the tablets contained ecstasy of an average purity of 39 per cent, so that the total weight of pure ecstasy was 45.24 grams, or 90 times the trafficable quantity. The street value of the tablets recovered lay between $32,000 and $50,000. The applicant was a courier only. He declined when interviewed by the police to disclose the source of the pellets and gave through an interpreter a "no remarks", that is, "no comment", answer to many questions, ultimately indicating that he would give that answer to any further questions about the drugs. When questioned earlier in the Customs line he had falsely answered that he was not carrying anything on his body. The applicant's committal hearing commenced on the first day of hearing, but there was no further cross-examination on the second day of hearing and, when the applicant was committed for trial, he entered a plea of guilty. The one qualification to his Honour's statement that I would make flows from the facts I have just stated. I think that his Honour's finding that the applicant pleaded guilty at the first real opportunity is somewhat favourable to the applicant, having regard to the facts about the committal hearing.

27. It was submitted for the applicant, in reliance on R. v. Bailey (1988) 35 A.Crim.R.458 at 462, R. v. Cohen (unreported, Court of Appeal, 11 May 1998) at pp.3-4 and 7 and R. v. Carey (unreported, Court of Appeal, 13 November 1997) at p.9, that it is a fundamental sentencing principle that circumstances which make the incarceration of a person more burdensome than would otherwise be the case must be taken into account. That principle is not in doubt, though, as Cohen at 7-8 shows, the weight to be accorded to the circumstance varies according to the facts of the particular case. Instances of such circumstances are ill-health (as in Bailey) and service of the sentence in protective custody (as in R. v. Rostom [1996] VicRp 60; [1996] 2 V.R. 97).

30. As regards part (a) of this ground, his Honour accepted that the applicant's time on bail had been spent in a country culturally different to his own and where he was required to remain away from his family. But this general acceptance is to be seen in the context disclosed by the evidence that the applicant was released on bail after 26 days in custody and retained his liberty until the day of sentence; that he had support from parts of the local Jewish community, being provided with constant psychological and religious counselling until his plea; that he worked (in an unpaid capacity) for much of the time of his liberty and was provided with accommodation in return; and that he was visited by his father and a very close family friend while, as I understood it, he was in custody shortly before his bail application. Notwithstanding his Honour's acceptance of the general fact mentioned earlier, he declined to accept that the time spent on bail in those circumstances was a hardship, or - his Honour's language is not clear at this point - at any rate a hardship which should be seen as a mitigatory circumstance. In my view, his Honour did not err in that. He pointed out that the applicant had been allowed bail awaiting trial or plea and sentence in accordance with the criminal justice system which exists in Australia for all who are involved in it whether Australian citizens or foreign nationals, and he thought those who chose to come to Australia to commit criminal offences, let alone serious criminal offences, must accept the consequences of doing so. Those reasons are sound, in my view. They do not involve any disregard of the principle on which the applicant sought to rely, namely that the status of a person as a foreign national can never be taken into account adversely to an offender. The applicant was free, so far as his bail conditions allowed, to pursue the holiday in this culturally and religiously different country that he had earned as a courier, no less than an Australian citizen on bail is free, so far as the bail conditions allow, to go about his or her daily life. It seems to me that, at least in the circumstances here, time spent on bail and how it was spent are matters of minimal, if any, significance to the sentencing disposition. At most, they are part of the background. It is true that any person charged may apply for bail and, if the application is successful and ultimately the person is convicted, the time spent on bail will not count as part of any sentence of imprisonment. That applies to Australian citizens no less than to foreign nationals. I record that Miss Lieder, Q.C. for the applicant disavowed any submission that the time spent by the applicant on bail was equivalent to some period in custody, even though that view of it had been put to the sentencing judge as being held by the applicant.

33. As regards part (b) of ground 1, the sentencing judge accepted that a sentence of imprisonment "would impose hardship above and beyond that normally endured by persons undergoing sentences of imprisonment". This was because of cultural, linguistic and religious differences or isolation and the absence of the support of family and friends. Nevertheless his Honour, to use his own words, adopted the approach indicated in the following passage, possibly obiter but clearly considered, of the judgment of Hunt, J. (with whom Gleeson, C.J. and Lee, C.J. at CL agreed) in R. v. Ferrer-Esis (1991) 55 A.Crim.R. 231 at 239:

"There were a number of subjective facts which the judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to views to the contrary which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance. The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact."

37. The County Court judge, on my reading of not only that part of his sentencing remarks but the whole of them, accorded "not very much weight" to the circumstance now under consideration. True it is that his Honour had said, a little before he referred to the New South Wales case, that the hardship flowing from the service of imprisonment in a foreign prison raises the question "whether" it is a matter to be taken into account in mitigation. But, whilst Miss Lieder this afternoon put a powerful argument to the contrary, I think that that sentence was overtaken by the later reference to the passage from Hunt, J.'s judgment, and that in the end his Honour answered his own question in effect by an answer "yes, but not to any great extent". It is true also, as Miss Lieder pointed out, that Hunt, J. was speaking with reference to the particular facts before him and that he went on to make comments on those facts. Nevertheless, in my view, the County Court judge did not err in expressing the opinion that the fact that incarceration would be more burdensome than it would be for an English-speaking Australian citizen with family and friends nearby was of little mitigatory weight, because the applicant, in entering Australia for the very purpose of committing a serious offence and of doing so at the moment of entry, had taken a calculated risk of suffering incarceration in a foreign prison.

40. In R. v. Binder [1990] VicRp 50; [1990] V.R. 563 Marks, J. (with whom Crockett, J. agreed) said at 569-570 that mere nationality cannot properly be thought to aggravate a crime or provide a foundation for punishment; that, similarly, the degree to which an offender has friends, relatives or ties in Australia is not a factor which can properly influence a sentence adversely to an offender; and that it cannot be suggested that a person with greater ties in Australia could be regarded more favourably on sentence than a person with less or none. The task of the court, Marks, J. said, is to sentence offenders on the basis that they are, in accordance with the rule of law, all equal before the law. The decision of the majority in that case to the effect that it was wrong to decline to fix a minimum term of imprisonment for a foreign national offender when such a term would be fixed for an Australian citizen was approved in The Queen v. Shrestha [1991] HCA 26; (1991) 173 C.L.R. 48. The majority of the High Court made it clear at 70-71 that it was wrong in sentencing to discriminate against prisoners on the grounds of residence or origin. If the applicant's submission be accepted that the status of a person as a foreign national can never be taken into account adversely to an offender in sentencing, his Honour did not, in my view, infringe that principle. He did not in sentencing the applicant treat him any worse than an Australian citizen would have been treated. He simply declined to accept as having very much weight by way of mitigation a circumstance deriving from the applicant's foreign nationality. In other words he simply did not take it into account to any great extent favourably to the applicant as a circumstance deriving from his nationality. There is, I think, much to be said for the view that, in a case, such as the present, of importation by a foreign courier of a narcotic substance in a trafficable quantity, the mitigatory effect ordinarily flowing from the circumstance I have been describing is eliminated by the competing requirements of, in particular, general deterrence and the protection of the Australian community. I should add that, even if his Honour gave the circumstance no weight and was in error to do so, so that specific sentencing error is established, I would, to anticipate, not think fit to pass a different sentence.

44. It was accepted that his Honour referred to the evidence of the witnesses Aron and Sabbah in relation to the applicant's prospects for rehabilitation. That evidence showed not only remorse on the applicant's part but also that he had made considerable progress since coming under the care of those persons, that he had decided to lead a positive and constructive life in this country while on bail and that he was unlikely to re-offend. It was, however, submitted for the applicant that his Honour found that since the evidence showed the achievement of some rehabilitation this reduced the relevance of it as a sentencing factor and that his Honour accordingly had erred in the exercise of his discretion as evidence of rehabilitation, whether already achieved or merely prospective, always remains a feature of sentencing, although rehabilitation is merely one of a number of considerations in the sentencing process and although the weight to be given to it varies from case to case and offence to offence.

47. In my opinion, this assertion of error on the part of the judge proceeds on a false premise. What his Honour said was:

"I accept that the need for special deterrence is much less pronounced in your case because of the progress you have made towards rehabilitation. You must not lose your step, however. In my opinion, the evidence provides a good basis for optimism that the risk of your re-offending is already reduced, and accordingly this is not a high sentencing priority. The issue of your rehabilitation has been referred to. Obviously, given your age and background your return as a productive member of society is important."

51. By the word "this" in the third sentence in that paragraph his Honour, in my view, clearly meant "the need for special deterrence" mentioned in the first sentence, which he had there stated was "much less pronounced". In other words, his Honour was saying that rehabilitation already achieved worked in favour of the applicant by greatly reducing the need for special deterrence to be given effect in determining the sentence. The prospect of rehabilitation of an offender is specifically enumerated in s.16A(2)(n) of the Crimes Act 1914 (Cth) as a matter to be taken into account, where relevant, by a court determining the sentence to be passed upon a federal offender. But it is only one of many such matters. It cannot be doubted that the same two propositions are true of rehabilitation achieved between the date of commission of the offence and the date of sentencing, albeit that that is not as such mentioned in s.16A(2). In my view, the proportion which the minimum term fixed by his Honour bears to the head sentence imposed by him, namely, 50 per cent, clearly reflects the fact that in fixing the minimum term his Honour gave weight to the applicant's rehabilitation, both prospective and achieved, as well as his previous good character, being weight additional to that given when fixing the head sentence. I should add that, in so far as rehabilitation, actual or prospective, may be a mitigatory factor otherwise than as reducing the need for specific deterrence, it is clear, in my view, that his Honour did not overlook it.

58. In support of the submission that the sentence was manifestly excessive in all the circumstances, particular reference was made for the applicant to the circumstance of the imprisonment being more burdensome to him than to a Victorian resident as already discussed. It was said too that the aggravating feature found by the judge, namely, that the internal concealment of the drugs made the offence difficult to detect, also made it one fraught with great personal danger to the courier and was indicative of a degree either of naivety or of desperation on the latter's part. That, it was said, supported the contention urged for him that he was a young man of considerable naivety coming from a sheltered background and therefore was a prey to those wishing to recruit him. It was submitted that the personal circumstances of the applicant in their totality, including matters already mentioned and also the minimal recompense which it was said he was to obtain for the importation and the difficulties and hardship he had undergone whilst awaiting disposition, ought to have resulted in a sentence which, albeit of imprisonment, was not immediately operative. As some six months have by now been served, Miss Lieder was content to submit that sentence should at the least have been suspended except as to six months.

61. I do not accept this submission. In my opinion, notwithstanding the circumstances personal to the applicant referred to earlier, including rehabilitation, and notwithstanding the other personal circumstances mentioned in his Honour's sentencing remarks, the sentence imposed was a moderate one. The offence is a serious offence and, although couriers may be fairly low on the scale of participants, they fulfil an indispensable role in carrying out the offence and sustaining the trade in narcotics with all its pernicious consequences, which are too well-known to require elaboration. The amount imported here was approximately 90 times a trafficable quantity. I cannot regard the fact that the method of concealment was dangerous to the applicant as in any way detracting from the aggravating feature that the method of importation made the offence difficult to detect. The authorities are legion which lay down that general deterrence is ordinarily of prime importance in cases of drug importation. The authorities make it clear that even a first offender, albeit he is but a courier, may properly be gaoled: R. v. Thiagarajah (1989) 41 A.Crim.R. 45 at 49. The offence is so serious and so prevalent that condign punishment is required. The fact that the drug in question was ecstasy rather than heroin does not palliate the offence much, if at all: compare R. v. Carey (unreported, Court of Appeal, 13 November 1997) at pp.9-10 per Winneke, P. The principles relating to drug importation offences to which I have referred apply to foreign nationals importing drugs into this country no less than to Australian citizens doing the same, whether the latter bring the drugs in from abroad or procure others to do that. As to suspension, Miss Lieder pointed out that a suspended sentence does serve general deterrence, referring to R. v. Carter (1997) 91 A.Crim.R. 222 and 229. But she conceded, although it is not necessary to express any final view on this, that, as a practical matter, with a foreign national, total suspension of a sentence of imprisonment for a serious offence might not effect general deterrence. Be that as it may, it cannot be doubted that a sentence of imprisonment for a certain term that is suspended, totally or partially, is more lenient than if there were no suspension, and in my opinion it was well within his Honour's discretion to decide that the term of imprisonment, which he was bound to impose, should be immediately operative. He did not err in not thinking fit, in effect, to suspend the sentence under s.20(1)(b) of the Commonwealth Crimes Act. He was entitled to consider that the circumstances relied on for the applicant did not outweigh the seriousness of this offence, including its covert nature and the quantity of the substance that was imported. In short, I am of the view that, notwithstanding the applicant's age, rehabilitation (achieved and prospective), remorse and blameless background, the sentence was not manifestly excessive and in particular was not so because it was not suspended.

64. This ground fails and the application should, in my view, be dismissed.

77. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.