Regina v Barrientos [1999] NSWCCA 1 | Case summary

2 ABADEE J: The applicant seeks leave to appeal against a sentence imposed on 24 October 1997 of eight years with a non parole period of five years to commence on 15 October 1996 and to expire on 14 October 2001. The sentence commenced on the date of the applicant's arrest. 3 On 29 August 1997 the applicant was found guilty by a jury of being knowingly concerned in the importation of not less than the trafficable quantity of (pure) cocaine contrary to s 233B of the Customs Act 1901 (Cth). The quantity was 1.55 kilograms. In his sentencing remarks his Honour referred to the current street value of cocaine as approximately $200 per gram and that the potential street value of the total seizure was approximately $880,000. The wholesale value of two kilograms of uncut cocaine was said to be between $220,000 and $260,000. 4 The maximum penalty for the offence is 25 years imprisonment or a fine of $100,000 or both: s 235(2)(d)(I) of the Customs Act. 5 The facts of the case were comprehensively outlined in his Honour's remarks on sentence. 6 On 1 October 1996 the appellant, a Venezuelan national, arrived in Sydney aboard flight AR 1880 from Caracas, Venezuela via New Zealand. Subsequently, on 14 October 1996 two other Venezuelan nationals Ramon Faneite and his wife Adriana Faneite arrived in Sydney aboard flight AR 1880 from Caracas also via New Zealand. On arrival in Australia the two co-accused, Mr & Mrs Faneite were searched by officers of the Australian Customs Service. They were each found to be wearing a pair of shoes within the soles of which quantities of cocaine were concealed. The gross weight of the cocaine were concealed within Mr Faneite's shoes was 1149.9 grams and within Mrs Faneite's shoes was 993 grams, a total of 2142.9 grams. The total weight of pure cocaine imported was 1553.6 grams. It was in relation to the importation of this amount that the applicant was charged with being knowingly concerned. 7 On 15 October 1996 the members of the Australian Federal Police conducted a controlled delivery of the shoes with the assistance of Mr & Mrs Faneite. The Faneites were taken to a certain hotel in accordance with prior arrangements made in Caracas. Mr Faneite made certain 'phone calls to Caracas. Shortly after midday the appellant telephoned the hotel and spoke to Faneite. He said to Faneite "You brought me a letter" and arranged to meet him outside the hotel 10 minutes later. The appellant then telephoned a number in Caracas. Shortly thereafter the appellant arrived at the hotel where he was subjected to observation and surveillance during the meeting with Mr Faneite. 8 The appellant returned to his car where he obtained a plastic bag which contained a shoe box. He and Mr Faneite then went to the hotel room (where Mr Faneite was booked). The appellant took possession of two pair of shoes which contained at the stage, an inert substance which had earlier been substituted for the cocaine. The appellant gave $20,000 US dollars to Mr Faneite in exchange for the two pair of shoes which had been placed inside the shoe box and placed in the box with the shoes in the plastic bag. 9 Shortly after the appellant was arrested in the bathroom of the hotel room that had been booked. He was speaking into a mobile telephone. The shoes were found on the bed in the box within the plastic bag. The appellant had in his possession $US6,000. Call charge records indicated that the appellant was speaking to a man by the name of Martin, who was subsequently arrested. 10 Following his arrest the appellant made a number of limited admissions. He indicated that he wanted to co-operate with the Australian Federal police. Since a ground of appeal relates to the matter of a failure to give any discount for assistance, I will return later to consider that matter in closer detail. 11 A search warrant executed at the applicant's premises located a piece of paper and a digital organiser linking the applicant to the Faneites 12 His Honour correctly addressed the matter of the level at which the appellant operated in order to determine his culpability, noting that the quality of narcotics involved was substantial being just over 1.5 kilograms of pure cocaine. His Honour concluded that in terms of involvement the appellant was "just above that of a mere courier". His Honour also said (SR at 9): "I do not believe he was the middle man but that of an international courier who took a considerable amount of risks but less than that of the international courier. … I have concluded that he, in the scale of culpability, is a little above that of a mere courier". 13 Two specific ground of appeal are advanced on behalf of the applicant. 14 The first ground is that the sentencing Judge erred in failing to give any discount for assistance said to have been afforded to the authorities by the applicant. 15 The second ground is that his Honour erred in failing to take into account the appellant's prior good character and the absence of prior convictions. 16 The sentencing reasons in the instant case, suggest that the steps taken by his Honour in arriving at the head sentence appear to have been as follows. He considered that the appropriate overall sentence was one of twelve years imprisonment which he reduced to eight years imprisonment by one third because of the absence of remissions in New South Wales. His Honour fixed a non parole period of five years. 17 Before turning to the specific grounds of appeal I will deal with arguments advanced in respect of the sentence imposed. 18 Subject to the grounds of appeal, the appellant did not challenge the sentence as being objectively outside the range of sentences available for this type of offence as approved in decisions of this court see: R v Ferrer-Esis (1991) 55 A Crim R 231 at 239; R v Lawson (CCA 12 December 1997, unreported). Nor did the Crown in its initial written submissions, or in initial oral argument to the Court suggest that the sentence in fact imposed was other than within the sentencing range established by previous authority. 19 Indeed, the Crown's original written submission in terms of the appropriate range of sentences was that the quantity of cocaine which the applicant was knowingly concerned in the importation of, was a substantial trafficable quantity (1,553.6 grams) and was not significantly less than the commercial quantity of (2000 grams). It submitted that in the circumstances where the applicant's role was determined to be more than that of a mere courier the sentence of eight years imposed "was appropriate and within the range" referred to in cases such as Ferrer-Esis; Lawson and R v Bernier (CCA 19 May 1998, unreported). It did not initially submit that the starting point was inadequate, notwithstanding that in the instant case the applicant had pleaded not guilty. The Crown initially also submitted that the ratio of the non parole period to the sentence (62.5%) was at the lower end of the range of 60% to 75% referred to in Ferrer-Esis. On the hearing the Crown sought to alter its submission. The parties were given leave to file written submissions 20 In its supplementary written submissions the Crown now submits that the sentence of eight years imposed is below the range indicated for this type of offence by this Court in the recent decision of R v Robertson (CCA 6 November 1998, unreported). Indeed, it argues that Robertson has clarified the Court's decision in Bernier, and that it reaffirms the Court's decision in Ferrer-Esis. 21 The Crown has now argued that even if the Court was minded to allow some discount for assistance and the absence of a prior criminal record (being the ground of appeal relied upon) then in the result because the applicant's role was greater than a mere courier and having regard to the quantity of cocaine imported, that a sentence of eight years with a non-parole period of five years was a sentence that should not in the result be disturbed. 22 It is appropriate to turn to the authorities. In Ferrer-Esis the Court indicated that the range of sentences for couriers of significant but trafficable quantities of heroin and cocaine was between 8½ and 11 years with minimum terms generally fixed at between 60% and 75% of the head sentence. In Lawson, James J observed that the pattern of sentences imposed on couriers tended to be lower than the range indicated in Ferrer-Esis. In Bernier the Court followed Lawson and held that: "… [T]he pattern of sentence for substantial quantities of drugs identified by Hunt J in Ferrer-Esis (8½ 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. We doubt that 12 years is within that range, but, if it is, it is right at the top of it." (at 9) 23 In the recent decision of R v Chu (CCA 16 October 1998, unreported) Spigelman CJ observed, that it was not clear whether or not in Ferrer-Esis, Hunt J (as he then was) was concerned with setting down a range of cases involving pleas of guilty only. His Honour also observed that Lawson's case indicated that subsequent sentencing to those patterns suggested a somewhat lower range of head sentences for couriers of trafficable quantities than that of 8½ to 11 years identified by Hunt J in Ferrer-Esis. I observe that the decision of Bernier was also referred to in Chu where the Chief Justice perhaps left open the question whether the range of cases not involving pleas of guilty might be different. In the case of Bernier the Court recognised that the norm for non-parole periods is in the range of 60% to 66-2/3%, although as the Chief Justice observed in Chu, there were no fixed ratios and that what "is involved is not some sort of mathematical computation". 24 The Crown's submission that the sentence of eight years imposed by the sentencing judge is below the range as indicated for this type of offence in Ferrer-Esis, and said to have been re-affirmed in Robertson, is a submission challenged by the applicant. The applicant in further written submissions not only relies upon the Crown's initial submission that it was not outside the range but also further argues that the Crown has not referred to any comparable case or sentencing statistics that support its assertion that the sentence is outside the range. There appears to be some merit in these submissions. In respect of the Crown's submission that the sentence was not manifestly excessive, the applicant's counsel is correct when he argued that he had never submitted that the sentence was manifestly excessive. The applicant's submission is that if the sentencing judge erred in failing to give a discount for assistance and for prior good record, then this Court should, unless the sentence is manifestly inadequate, correct the error and give an appropriate reduction in the applicant's sentence. 25 Against this background it is appropriate to return to the decision in Bernier, said to have been clarified in Robertson. 26 The Crown does not submit that the decision in Bernier was wrong. In Chu's case it was not suggested to have been wrong. Indeed in Robertson, Dunford J did not say that Bernier was wrongly decided. In his reasons (at 5) his Honour rather explained the features which "distinguished" Robertson from Bernier including, that the applicant "was much more than a courier" (whereas in the instant case the appellant's role was above that of a "mere courier"). 27 In Robertson Dunford J with whom Beazley JA and Wood CJ at CL agreed, remarked by way of obiter dicta (both the Crown and the applicant agree such on the obiter point): "It was submitted that as a result of Bernier, the range of sentences for couriers of a substantial range of cocaine and heroin had been reduced from what it was said to be at the time that Ferrer-Esis was decided (see also R v Lawson (CCA 12 December 1997) and R v Doan (CCA 27 September 1996)). In my view this is not the case. Bernier was a particular case decided on its peculiar facts to which I have referred, and when these three cases are read as a whole, they should not be taken as indicating a lowering of the range. In my view the range for couriers involved in the importation of substantial quantities of heroin or cocaine, ie, at the upper end of the trafficable or at the lower end of the commercial range under the Customs Act is as stated in Ferrer-Esis, which remains an appropriate benchmark, ie, of 8½ to 11 years, after the adjustment on account of s 16G of the Crimes Act (Cth). Bernier and the other cases referred to should not be understood by sentencing Courts as indicating otherwise." (at 8) 28 On one view it might be thought that this passage is inconsistent with the statement of this Court in Bernier that the range of 8½ to 11 years is appropriate for the importation by couriers of drugs at the lower end of the commercial range not the upper end of the traffickable range, with the Court making a careful distinction between the lower commercial and upper trafficable ranges. 29 This said, it is not necessary to determine whether there is conflict between Bernier and Robertson, so that Bernier no longer reflects the law in the area in which it operates. My reason for so concluding may be further summarised. As I have said the remarks of Dunford J in Robertson appear to be obiter and here accepted by the parties as such. Second, there is nothing in the decision in Robertson that demonstrates that the reasoning process or the statement of the applicable range in Bernier is wrong. In fact in Robertson, Bernier was distinguished on its own facts. Again in Chu this Court referred to Lawson without disapproval, particularly in respect of the norm for non-parole periods. 30 In my view the Crown's submission that Robertson "clarified" the decision in Bernier should be rejected in the terms stated. In any event Robertson is not a decision on s 233B of the Customs Act, and the Court did not, as did the Court in Bernier, analyse the pattern of sentences imposed under that provision. Indeed, in Robertson, Dunford J also considered that the reference to Bernier was not perhaps of value because there was limited in comparing sentences imposed under different sentencing regimes, with different maximum penalties and different demarcation points between trafficable and commercial quantities. Indeed, whereas Bernier was a federal case, Robertson was one involving a sentence for deemed supply of a commercial quantity of cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). 31 The applicant submits that this Court should follow the considered statement about the applicable range of sentences of the importation of cocaine or heroin at the lower end of the commercial range as referred to in Bernier rather than in the dicta in Robertson. I agree that in this case it should do so for the reasons I have stated. In saying this I do not consider that in this case that it necessary to conclude whether there is conflict between Bernier and Robertson which needs resolution. The case of Robertson is distinguishable in any event. 32 In my view a following of the decision in Bernier would not compel the conclusion that the sentence actually imposed on the applicant was outside of the appropriate range as to show that it was below the range for this type of offence. I repeat the Crown's initial submission that the sentence was not outside of the range, nor that Bernier was perhaps incorrectly decided. Indeed, its initial submission (paragraph 10) referred to the decision in Bernier and what as an authority it stood for. The quantity involved in this case is 500 grams below the commercial quantity. The head sentence in the result is in fact only six months lower than the appropriate lower benchmark of 8½ years sentence for quantities at the lower end of the commercial range. 33 Against the background of the detailed analysis it seems to me that if the applicant is able to make good its submissions that his Honour was in error in failing to give a "discount" for assistance and for good character, this Court should correct the error(s) and proceed to re-sentence. 34 I now turn to consider the specific grounds relied upon The first ground: 35 His Honour failed to give any discount for assistance. 36 The applicant accepts that his Honour did take the matter of co-operation into account as required by the Crimes Act 1914 (Cth), but having done so, refused to give any discount on sentence for that matter. He submits that his Honour in effect failed to give effect to the provisions of s 16A(2)(h) of the Crimes Act (Cth). 37 In his sentencing remarks (p 5-6) his Honour referred to the fact that the prisoner had made but limited admissions in a tape recorded interview at the hotel before refusing to answer questions. 38 Later in relation to the matter of assistance his Honour said (SR at 12-13): "On the day of his arrest the prisoner said initially that he wanted to co-operate with the Australian Federal Police and in fact he stated that he was instructed to deliver the shoes containing the inert substance to a person by the name of Zimeon in Dee Why. He then supplied the telephone number of Zimeon to the Australian Federal Police from his digital organiser. The Australian Federal Police carried out a telephone check along with a criminal history check and established that the number was registered to Simon Abianthony, a convicted drug trafficker. A search warrant was subsequently executed at his premises but produced nil result. In R v Peter Dinic (NSW CCA unreported 3 September 1997) his Honour Newman J said 'In dealing with Commonwealth offences it is appropriate that a sentencing judge should consider the benefits which have flown from the assistance provided in assessing what discount (if any) should be given for the sentence to be passed'. In R v Gallagher (1991) 23 NSWLR 220 Gleeson CJ at 232 emphasised that in assessing the discount to be made (if any) for the assistance provided the question of benefit which flowed from such assistance is a relevant matter to be taken into account. I find that assistance was given to an officer at an early stage soon after arrest, but it appears from the evidence that the action by the police to attend immediately was not acted on until some time later. However as to any benefit to accrue from the assistance I am not satisfied that it is warranted in this case." [my emphasis]. 39 His Honour's reasons thus include a finding that the applicant supplied the telephone number of Zimeon from his digital organiser. More significantly is the finding that the applicant has the benefit of an actual finding that "assistance was given to an officer at any early stage". That what was said by the applicant did not turn out to be in fact beneficial does not alter the fact it was given (and it was not suggested that it was other than genuinely given) and otherwise answered the description of assistance. The applicant was providing the first name and telephone number of the person who was to receive the cocaine. 40 The applicant in support of the ground has taken the Court to the Crown's earlier submission to the sentencing judge (AB 148). That submission was to the effect that the "assistance therefore was only of limited intelligence value to the police". That is of course a different proposition to suggesting it was of no value at all. Even information having intelligence value (and intelligence value was conceded) may, in any event, be capable of being viewed as a benefit to the police. In any event the establishment of an actual benefit to the authorities, is not essential, in all cases, as a condition for the making of an allowance 41 The applicant argues that the reason for refusing to allow a discount on sentence was unclear. He submits his Honour failed to give effect to his specific finding in relation to assistance. He argues that a discount should have been allowed to reflect the fact that within one hour of his arrest the appellant had provided the correct telephone number of a more senior person in the cocaine operation; the first name of such person. This information was said to be timely (at 2.30pm shortly after his arrest) even if the appellant did not give the police the full name of the person referred to. It is said that the fact that the Australian Federal police may have been dilatory in using that information could not be attributed to the appellant. This last matter refers to the search warrant being executed (on the day of the applicant's arrest) at Abianthony's address at 9.pm and which produced a nil result. With respect I do not consider, that, without knowing more, it can be said that the Australian Federal police may have been dilatory. The applicant also submits that because the information did not lead to the arrest of Abianthony, that such did not disentitle the appellant from receiving a discount. He relied upon the decision of Hunt CJ at CL in R v Yenice (1994) 72 A Crim R 234 (a decision on s 442B of the Crimes Act 1900 (NSW)) as supporting the proposition that even in respect of federal offences, it cannot be said that no discount should be made for the assistance given where the prisoner has been unable to establish the usefulness of the information provided. It was submitted that even if the information was of intelligence value only, (and the finding went beyond that) that some discount, albeit, not necessarily a very substantial one should have been given to reduce the sentence: see also R v Ward (CCA 29 May 1995, unreported). 42 In Robertson's case (at 6) Dunford J citing Yenice appears to have been accepted at least in terms of s 442B of the Crimes Act (NSW) that an applicant is entitled to some credit for assistance which has genuinely been given, although the fact it does not prove useful, is also a relevant consideration, reducing the extent of the discount. His Honour in referring to R v Dinic (CCA 3 December 1997, unreported) it as an authority that in respect of federal offences the effectiveness and value of the information is to be taken into account. I do not see Dinic as suggesting that once genuine information is given that Dinic denies the allowance of any discount, if it is not effective, or that effectiveness, is a condition for taking it into account. 43 The Crown submits that the authorities emphasise the discretionary nature of the exercise of assessing the value of assistance and rewarding it with some leniency on sentence. 44 As I have said in the instant case it has not been suggested that there was no assistance provided. There is a specific finding to the contrary. Nor is it not suggested there should be no discount at all because the applicant had tailored his disclosures so as to reveal information in possession of the authorities. As was said in the case of R v Cartwright (1989) 17 NSWLR 243 at 253: "Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must of course be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself". 45 In R v Su (1997) 1 VR 1 the Victorian Court of Appeal (at 77) referred to the need to bear in mind that in considering the matter of information provided the significance of the intention of the provider is to be considered. In further stating that the effectiveness of the information was relevant, the Court did not suggest that the effectiveness was a condition for a discount to be given. Indeed, it appears to have considered that in "fixing" a discount whether the information was effective or ineffective, it was proper to take the information into account. The Victoria Court cited with approval the decision in Cartwright. In Su's case it was ultimately held that no discount for assistance was to be allowed, because it was difficult to say whether the trial judge declined to give any weight to the courier's assistance merely on the ground it came nothing. That is not the situation here. There is no mistaking the finding that assistance was forthcoming. Next, the instant case is one where no allowance was made because the information was thought to have produced no benefits. 46 In my view there needs to be recognition of the distinction between on the one hand the giving of no discount at all and on the other, the quantum of discount where an entitlement to some discount is established. Entitlement to a discount does not necessarily depend upon the establishment of whether or not the information supplied turns out in fact to have been effective. It seems to me that the extent of the benefit which flowed from such assistance, is a matter relevant to the evaluation of discount. In this case there was no actual benefit. In the instant case the information given turned out to be useless, at least in terms of any advanced knowledge of the applicant. It turned out, in the light of events, to be of perhaps intelligence value, but that it did so cannot be laid at the feet of the applicant. 47 Thus in the determination of any discount the relevance and importance of the benefits flowing from assistance is important: see also R v Gallagher (1991) 23 NSWLR 220. There is no fixed tariff for assistance given. Where there is significant assistance the amount "customarily given in New South Wales which with few exceptions, appears to range from 20 per cent to 50 per cent": see R v Chu per Spigelman CJ at 6-7. That said, the law does not mandate the identification of a precise discrete quantifiable discount for assistance or that the assistance falls within the range. The matter of that discount or its quantification will depend upon a number of factors and the facts of the particular case under consideration. I do not see the authorities suggesting that once any assistance is found then the allowance for such must reflect a range. The worth of the assistance may take it below the range. Whether it does is a matter of fact to be evaluated in accordance with the proved circumstances of the case. 48 In this case his Honour does appear to have considered that because there was no actual benefit flowing from the early assistance, that a discount for assistance was not called for. In this regard I consider his Honour was in error. His Honour actually found that there was assistance. The Crown had at least conceded before his Honour there was intelligence benefits at least. In my view some allowance for found assistance should have been allowed. 49 In the instant case the applicant has established error on the part of the judge in failing to give some discount for assistance. In my view the discount this Court should give ought not however be a substantial one. The assistance was not extensive at all. In the result no significant benefits flowed from such. In any event it is also to be borne in mind that the telephone number of Zimeon was from the applicant's digital organiser which had been seized from him by the police. The assistance facilitated the obtaining of his number by the police from material which was otherwise available to them. That said the police perhaps acquired it sooner rather than later. Nevertheless, I take into account that it was of significance for the police to have the telephone number or identity, of the person to whom the shoes were to be given to, and that at the time of the arrest the police did not know the identity of the person ultimately responsible for the purchase of the cocaine. 50 The applicant urges a meaningful reduction in sentence - something in the order of 20% to 25% from the total and non parole period. I do not accept this or the need to find any specific percentage in the circumstances of this case. In bringing into account the matter of assistance, no specific discrete quantifiable discount is required or mandated. Section 21E(1) of the Crimes Act (Cth) in effect requires only some identification of the allowance for an undertaking to co-operate, yet to be afforded. The Court is thus relieved of the obligation under s 21E of the Crimes Act (Cth) to in effect quantify any part of the assistance to be rendered by the applicant to the authorities, as that role is now complete. Further, the discount is not in respect of the applicant's offence, in respect of which he pleaded "Not Guilty" but the offence of another. In my view this Court should have regard to the need to allow for some relatively minor assistance in the sense explained and give effect to its view in a re-sentencing. The second ground 51 The second ground is that His Honour erred in failing to take into account the appellant's prior good character and the absence of prior convictions. 52 The applicant relies on the provisions of s 16(A) 2(m) of the Crimes Act (Cth) which provides that the court must take into account in determining the sentence to be passed, the character and antecedents of the person. 53 The appellant had no prior convictions. There was character evidence tendered on his behalf from citizens of Venezuela. 54 In the instant case his Honour said that "[in] this case I propose not to extend leniency to the prisoner on the grounds of having no previous convictions". (SR at 14) His Honour did not explain why. The Crown was unable in terms to identify why factually the applicant's prior good conduct should not have been taken into account in the sentencing exercise. Earlier in his sentencing remarks his Honour had referred to the appellant's absence of criminal history and correctly observed that prior good character is of less significance in drug cases than other cases. To say that something is of less significance does not warrant the view, without more, that it is of no significance at all. This Court has indicated that the absence of a prior record is a matter to which relatively little weight can be given whilst at the same time pointing out that it is not completely irrelevant as a subjective circumstance: see R v Hollins (CCA 31 May 1996, unreported) a case including the factor of favourable antecedents. Further, the recent decision of this Court in R v Behar (CCA 14 October 1998, unreported), a Crown appeal against sentence involving importation of a commercial quantity of Ecstasy into Australia, Spigelman CJ appears to have accepted (at 6) that the respondent's personal record ("subjective factors") were always important in the exercise of the sentencing discretion. 55 Further in Behar the Chief Justice also referred to Wood CJ at CL's views in R v Budiman (CCA 8 September 1998, unreported): "Couriers and others involved in the drug trade additionally have no entitlement to expect that they will be able to rely upon their prior good character for a significant discount on sentence if they happen to be arrested". (at 9) 56 There is a difference between a "significant discount" on the one hand, and on the other hand non allowance of any discount at all. 57 In my view the authorities do not support his Honour's conclusion. Further, his Honour's reasons do not identify a factual basis for not taking into account the applicant's prior good record. That no significant discount was attracted by the prior good record, provided no basis for concluding that the prior good record should not be brought into some account, even though in the result, it might result in little weight being given to it. In my opinion his Honour was in error in extending no leniency at all for the applicant's prior good record. That record was at least, required to be brought into account. Error is also shown in respect of the second ground. 58 The applicant has made good his grounds of appeal and it falls to the Court to re-sentence bringing into account an adjustment to give effect to the degree of the applicant's co-operation: s 16A(1)(h) of the Crimes Act (Cth) and for the applicant's prior good record.. That said, at the end of the day the sentence must nevertheless to be imposed must be of a severity appropriate in all of the circumstances of the offence s 16A(1). 59 Giving effect to these reasons, in my view the head sentence and non parole periods should be reduced by six months and four months respectively. After having regard to the adjustment required by s 16G of the Crimes Act I consider that the appropriate sentence should be seven and a half years imprisonment to date from 15 October 1996, with a non-parole period of four years and eight months commencing on 15 October 1996. 60 I would propose the following orders:- 61 1. Leave to appeal granted. 62 2. Appeal allowed. 63 3. Sentence imposed by Bellear DCJ quashed. 64 4. In lieu thereof, the applicant is sentenced to imprisonment for seven years and six months, commencing on 15 October 1996 with a non-parole period of four years and eight months expiring on 14 June 2001. 65 5. In accordance with s 16F of the Crimes Act (Cth), an explanation of the effect of this sentence is to be provided to the applicant by his legal advisers. IN THE COURT

JUDGMENT 66 HULME J: The applicant in this matter was found guilty of being knowingly concerned in the importation of not less than the trafficable quantity of cocaine. The quantity involved was 1.553.6 kilograms, pure. Its value was estimated at between $220,000 and $260,000 (wholesale) and $880,000 (street value). The sentencing judge described the Applicant's role as "just above that of mere courier". The Applicant seeks leave to appeal against a sentence of 8 years imprisonment with a non-parole period of 5 years, commencing on the date of his arrest imposed by Bellear DCJ. 67 Under the Customs Act a trafficable quantity is 2 grams and offences of the description of that with which the Applicant was charged may involve quantities up to just under 2000 grams. Pursuant to the Customs Act, the maximum penalty for offences of this description is a fine not exceeding $100,000 and imprisonment for 25 years. By reason of the terms of Section 16G of the Crimes Act (Cth), the fact that New South Wales is a state where remissions from prison sentences are not granted, and the adjustment of about one-third commonly made for this fact - El Karhani (1990) 51 A Crim R 123 - this maximum term is effectively reduced to about 16½ to 17 years. 68 I have had the advantage of reading in draft form the Reasons of Abadee J and accordingly I can be brief. I agree with His Honour that Judge Bellear erred in not allowing the Applicant something by way of discount both for his assistance to the authorities and on account of his prior good character. Subject to the matters referred to below, I also agree with His Honour that reductions in the head sentence and non-parole periods of 6 months and 4 months respectively would be appropriate to take account of the entitlement of the Applicant in respect of these matters. 69 However, it does not follow that the appeal should be allowed. Before that occurs this Court must be persuaded that some punishment lower than that ordered by the sentencing judge should have been, or should be, imposed - Turner (unreported CCA, 21 May 1993); Lopez-Alonso (1996) 86 A Crim R 270. In my view this has not been shown. 70 For the purposes of this case I am prepared to assume - although neither this, nor anything I say in these Reasons should be seen as any endorsement of them - that the remarks in Bernier (unreported, CCA, 19 May 1998) that - "The pattern of sentence for substantial quantities of drugs identified by Hunt J in Ferrer-Esis (8½ 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." 71 are correct. However, notwithstanding the matters on which I have found in the Applicant's favour, when regard is had to the quantity involved - 1.55 kg, to the fact that the Applicant's role was judged to be higher, albeit only a little above, that of a courier, and that he pleaded not guilty, no sentence lower than that imposed sufficiently reflects his criminality and the circumstances. 72 That the Court in Bernier had in mind couriers who plead guilty when making the above statement is clear from another passage in the judgment in that case that:- "references in decisions of this Court to a range of sentences in cases of this kind take into account two subjective features which are commonly present: a plea of guilty (usually in the face of a strong Crown case) and an absence of prior convictions." 73 And pleading guilty is of significance. Where an offender admits his guilt and pleads guilty at the first opportunity, even when this is of only utilitarian value, a reduction in sentence which is substantial and seen to be such is warranted - Winchester (1992) 58 A Crim R 345 at 350, Kogelbauer (1992) 65 A Crim R 357 at 359. Also of significance is quantity. Other things being equal, a difference in quantity should be reflected in this sentence - see Warfield (1994) 34 NSWLR 200 at 207F. So should an offender's role, that of a mere courier being at the low end of the spectrum - Olbrich (unreported, CCA, 6 July 1998). 74 Prior to Bernier the leading authorities on the appropriate range of sentences for offenders involved in the importation of trafficable quantities were El Karhani (1990) 51 A Crim R 123 and Ferrer-Esis (1991) 55 A Crim R 231. In the former case, where the quantity involved was 447 grams and the offender, a courier who pleaded guilty, this Court said that it agreed with a submission that "having regard to the 'tariff' for like cases, the severity appropriate in the circumstances of the offence lies somewhere between a (head) sentence of 7 to 12 years". The submission is recorded at page 133-4 of the report where the group under consideration were described as "small-time couriers". The sentence adopted in the circumstances of the particular case was 10 years, reduced to 7 to reflect the requirements of Section 16G (as, no doubt, the "7 to 12" range must be). 75 In Ferrer-Esis, where the drug involved was 1819 grams of cocaine, Hunt J said (at p 237):- "The recognised pattern of sentencing of couriers of substantial quantities of heroin, prior to the commencement of the Sentencing Act 1989 (NSW) … produced head sentences of between 12 and 16 years with minimum terms generally fixed within the order of approximately 60 to 65 per cent of the head sentence. …. "Taking into account the adjustment required by Section 16G, the previous pattern translates into a head sentence of between eight and a half and eleven years." 76 Although the Court in Bernier did not refer to El Karhani and did not suggest that there should be any qualification to what was said in that case, it is a logical consequence of the remarks I have quoted from Bernier that the range in El Karhani should apply to couriers of quantities somewhat larger than those contemplated in El Karhani itself. 77 It is unnecessary in this case to attempt any exhaustive reference to authority but that the sentence imposed on the Respondent is no higher than was required is demonstrated by the following cases, in all of which the offenders were couriers who, with the exception of Chu, pleaded guilty. In Moreno (unreported, CCA, 4 November 1994) this Court said that an applicant who had imported 341 grams of cocaine "could not assert that the sentence imposed (10 years with a non-parole period of 6 years) was not well within the range of the judge's discretion". (In fact, the Court of Criminal Appeal's judgement does not deal expressly with the offender's role. I have had access to the Court file. There is no suggestion Moreno was other than a courier as there would have been had he been sentenced on the basis of a higher role.) 78 In Blass (unreported, CCA, 18 February 1994) where the quantity was 586 grams, the sentencing judge adopted a starting of 10 years, reduced this to 8 for a plea and assistance and then made a further reduction of 2 years for future assistance. This Court said that the sentence was well within the range examined in Ferrer-Esis, El Karhani and Muanchukan (1990) 52 A Crim R 354. In Jelks (unreported, CCA, 1 December 1995) a sentence of 8½ years with a non-parole period of 5 years was regarded as "squarely within the range" for an offence of importing 404 grams. 79 In Zayat (unreported, CCA, 22 November 1996) the judge at first instance worked from a notional head sentence of 12 years prior to the Section 16G discount, and imposed a fixed term of 5 years for the importation of 165 grams of heroin and this Court saw no reason to interfere. In Lee and Ng (unreported, CCA, 20 December 1996) it was said that head sentences of 8 years for the importation by one offender of 301 grams and by the other of 488 grams of heroin was well within the range. In Maman (unreported, CCA, 27 March 1997) where the quantity involved was 461 grams (pure), this Court accepted what had been said in El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123 and said that the appropriate range (prior to the Section 16G discount) was something in the order of 7-12 years. 80 In Montenegro (unreported, CCA, 15 February 1991) this Court re-sentenced the applicant to imprisonment for 6 years with a non-parole period of 3½ years for the importation of over 1.5 kg (pure) of cocaine. The Court did not expose its reasoning process beyond recording an agreement between the Crown and the applicant that a discount of the order of over 50% which the judge at first instance had allowed was generally appropriate in the circumstance of the case for the Applicant's plea and co-operation with the authorities. In Chu (unreported, CCA, 16 October 1998), where the quantity was 851 grams, this Court held that, notwithstanding the later decision of Bernier, in light of the fact the applicant had pleaded not guilty, there was no error in the sentencing judge's selection of a head sentence of 9 years prior to allowing a discount for co-operation. 81 It is proper to recognise however that in Watson (unreported, CCA, 18 September 1998) where the Applicant was to collect at the airport 1.43 kg. (pure) of cocaine from an international courier and transport it within Sydney, this Court said that a sentence of 9 years with a non-parole period of 6 years was at the higher end of the range. The Court referred to Bernier. 82 Although, the assumption I have made concerning the statement in Bernier means that I should recognise that some downward adjustment in the sentences referred to in the cases just referred to may be required for the purposes of comparison, the Applicant's role of being above, albeit just above, that of mere courier, the absence of a plea, and the difference between the quantities involved in most of those cases and in contemplation in El Karhani on the one hand and the 1.55 kilograms with which the Applicant was involved on the other, more than off-sets any such downwards adjustment. 83 The submissions in this case followed a somewhat unusual course. Abadee J has identified some of the features of these but it might be added that the Applicant's original submissions, while addressing the topics of discount for assistance and for the Applicant's prior record at no time adverted to the appropriateness of the sentence itself or to Bernier. The Crown's original submissions did draw attention to Maman and El Karhani, to the quantity involved and the Applicant's role and contended that "the sentence of 8 years imposed on the Applicant was appropriate, and within the range referred to above" but neither set of submissions addressed the consequences of the Court upholding the Applicant's argument that discount was not allowed when it should have been. Both sets of submissions should have. In the Applicant's supplementary submissions it was asked that the Court allow further oral argument if it decided not to follow Bernier. In light of the way that I have approached the matter, the issue of further oral argument does not arise and no further hearing is necessary. 84 In my view because there was substance in some of the matters raised by the Applicant, leave to appeal against sentence should be granted. However the appeal should be dismissed.

Regina v Barrientos

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Judgment (9 paragraphs)

1 SHELLER JA : I agree with the reasons for judgment of Abadee J.

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Legislation Cited (5)

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Cited By (34)