Regina v Aussem

60028/00 SPIGELMAN CJ NEWMAN J ADAMS J

1 NEWMAN J: This is an appeal brought by the Crown against the alleged inadequacy of sentence passed by Williams DCJ in the District Court on 15 December 1999 and a cross-appeal brought by the respondent on the basis that error had occurred in his Honour's remarks on sentence particularly relating to the imposition of the head sentence. 2 The facts of the matter may be simply expressed in so far as the commission of the relevant offences is concerned. The respondent was apprehended at Sydney airport on 23 May 1999 and found to be carrying on his body a powdered substance which weighed some 4.666 kilograms which on analysis was revealed to contain pure cocaine in the weight of 2.96 kilograms. 3 The offence charged was that the respondent had offended s 233B(1)(b) of the Customs Act 1901 (Cth) in that he had brought in a quantity of cocaine which was not less than the commercial quantity of cocaine. 4 The respondent, who is of German extraction, had been living in South America for a number of years and the source of the cocaine was in South America. Once he was apprehended the respondent proceeded to co-operate fully with the Customs authorities. 5 That co-operation included the respondent being placed at personal risk, he having conversations with one of the conspirators to the importation which were recorded by way of a recording device on his body. A matter obviously leading to great personal hazards as far as the respondent is concerned. 6 Suffice it for me to say that as a consequence of his co-operation the contact man in Australia for the operation, one Sergio Daniel Irusta, was apprehended. Not only apprehended but has now pleaded guilty and was sentenced on 14 April this year in the District Court to a head sentence of six years with a non parole period of four years. 7 The head of the operations in South America, on the evidence before Judge Williams, who is known variously as either Nunez or Varillas has been extradited from South America and this Court understands he is proposing to plead guilty before the District Court on 7 and 8 August next. 8 Pursuant to s 21E of the Crimes Act Cth the respondent has promised to give evidence in relation to those sentence proceedings. His promise, I might say, was more widespread, being an undertaking to give evidence against Irusta and Varillas (Nunez) even if the matter had gone to a full trial. It may be seen at once that the past assistance given by the respondent was considerable. Equally his promise of future assistance by way of giving evidence is not an inconsequential matter. 9 I turn then to the sentence which was imposed by Williams DCJ. His Honour, in the course of his remarks on sentence, in setting the head sentence of eight years adverted to the co-operation which has been given by the respondent to the law enforcement agencies. Not only that, he took into account the plea of guilty and the fact that the respondent has pulmonary difficulties of some moment. His Honour concluded: "It seems to me that taking all these factors into account and making the appropriate deduction under s 16G and taking into account the questions of general deterrence and the like the appropriate head sentence in this matter is one of eight years imprisonment with a non-parole period of five years.

His Honour then went on to say: "I discount the non-parole period by fifty per cent for future assistance and there will therefore be a non-parole period of two and a half years to date from 23 May 1999. He will therefore be eligible for release on parole on 22 November in the year 2001." 10 The Crown submits that his Honour in dealing with the matter, while bound to take into account under the Commonwealth legislation any future assistance which the respondent had undertaken to give to authorities, erred in dealing with the matter by making a single deduction of fifty percent from the non-parole period of five years. 11 It should be noted that this Court in Regina v Wong in determining the appropriate guidelines in dealing with matters of this type recommended that a head sentence of eight to twelve years was appropriate for a case involving a breach of s 233(1)(b) of the Customs Act where the quantity of cocaine being a commercial quantity was between 2 and 3.5 kilograms. 12 That range being eight to twelve years it seems to me that his Honour did in fact err in dealing with the question of discount for future assistance. 13 As I have said it is plain from s 21E that he was obliged so to do and when one examines the authorities dealing with assistance given involving the Customs Act it was appropriate for his Honour to make a discount for future assistance. 14 Where I believe his Honour was wrong is that his Honour made a single deduction and related that single deduction to the non-parole period which he had set and, in my view, correctly set having regard to the proportion between the non-parole period and the head sentence. 15 Further, I am of the view that a discount of fifty percent for future assistance was also a matter of error. Plainly enough the past assistance given by the respondent was assistance of a type which demanded a substantial discount. 16 We do not know (and there is no criticism that can be made of his Honour for not so stating) what head sentence his Honour would have imposed prior to making a discount. In view of the quantity of cocaine which was almost three kilos, it is reasonable to assume that without discounting the head sentence imposed would have been the high end of the range for offences of this type as indicated in this Court's judgment in Wong. 17 What, in my view, his Honour should have done was to make a discrete discount from the head sentence for future assistance and to make a discount in the same figure from the non-parole period that otherwise would have been set. It is for these reasons that I have concluded that his Honour fell into error and this Court should interfere. 18 Submissions were made that if this Court were to interfere, we should take into account a number of factors including a deterioration in the health of the respondent since his incarceration and evidence has been proffered to this Court that that in fact is the case. 19 However, in his remarks on sentence his Honour did in my view fully, take into account the health problems suffered by the respondent and in my view there is no change in the basis upon which his health problems should be taken into account in redetermining sentence. 20 A submission was also made that in the light of the sentence imposed upon Irusta, the respondent would have a justifiable sense of grievance having regard to the fact that it was his efforts which led to Irusta's apprehension and if this Court were to increase his sentence in any way either by way of non-parole period or by way of head sentence thus a justifiable sense of grievance would be had by the respondent. 21 However, the fact is that Irusta did not in fact get his hands upon any cocaine and, indeed, may I say at the moment the sentence imposed in the District Court is the subject of appeal to this Court. 22 Accordingly, I do not believe this is a case, if this Court were to interfere and increase either the head sentence or non-parole period, that the respondent would feel a justifiable sense of grievance. 23 Looking at the matter in this light, I am of the view that this Court should interfere and I am of the view that the head sentence of eight years imposed by his Honour should be discounted by twenty-five percent that is reduced to six years. The consequential non-parole period of four years which would follow upon the imposition of such a head sentence should, in my view, be further discounted by twenty-five percent which gives rise to a sentence of three years. 24 In so doing I have taken into account the principles of double jeopardy. Had I not taken those principles into account, I would myself have imposed, if dealing with the matter afresh, a much more significant sentence but, having taken into account as I have said matters of double jeopardy, I am of the view that a sentence of the type which I have indicated should be imposed. 25 I propose the following sentencing orders:

2. Sentence of his Williams DCJ of 15 December 1999 be set aside and in lieu thereof a head sentence of six years be substituted for the head sentence of eight years. A non-parole period of three years be substituted in lieu of the non-parole period of two years six months. The non-parole period would commence on 23 May 1999 and expire on 22 May 2002. 26 SPIGELMAN CJ: I agree and confirm, for the purposes of s 21E of the Crimes Act 1914 that, but for the future assistance offered by the respondent to the Crown, the sentence which would have been imposed would have been a head sentence of eight years and a non-parole period of four years. 27 ADAMS J: I agree with the orders proposed and with Newman J's reasons for them. 28 SPIGELMAN CJ: The orders of the court are as indicated by Newman J.

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