Regina v Bigic [2000] NSWCCA 9 | Case summary

SIMPSON J : 3 On 8 April 1999 following his plea of guilty to a charge of being knowingly concerned in the importation of prohibited imports the applicant was sentenced by Judge Coleman in the District Court to imprisonment for nine years with a non parole period of six years. In arriving at that sentence Judge Coleman took into account the provisions of s 16G of the Crimes Act 1914 (Cth) and made the necessary adjustment. The applicant seeks leave to appeal the sentence imposed. 4 The applicant flew to Melbourne from Los Angeles in February 1998 and drove from there to Sydney in order to meet two women, Diana Popescu and Jennifer Howard, and Thomas Marchando, all of whom travelled by air from Los Angeles arriving in Sydney on 14 February 1998. Strapped to the legs of the two women were a number of packages containing a large quantity of methorphan and methylamphetamine, both substances the importation of which is prohibited by s 233B of the Customs Act 1901 (Cth). On the Crown case Marchando was travelling in company with the two women for security purposes. The two women and Marchando were apprehended at Sydney airport. The women immediately admitted their involvement and co-operated with the investigating authorities. The applicant was arrested at Melbourne airport on 3 March 1998, intending to depart Australia for Los Angeles. 5 Popescu and Howard pleaded guilty to charges of importing not less than the trafficable quantity of the drugs on 24 April 1998 and were sentenced by Judge Morgan, each to imprisonment for three and a half years with a non-parole period of eighteen months. Judge Morgan specified that, but for extensive assistance to and co-operation with the authorities which they had already given and had undertaken to give in relation to the prosecution of the applicant and Marchando, each sentence would have been imprisonment for six years with a non-parole period of four years. 6 Like the applicant, Marchando was charged with being knowingly concerned in the importation. He maintained his plea of guilty until 10 March 1999 when he entered a plea of guilty. Since then he has made two unsuccessful applications for leave to withdraw the plea and contest the charge against him. He sought leave to appeal each refusal in this Court and that application was heard on the same day as the applicant's application for leave to appeal his sentence. Marchando, accordingly, has not yet been sentenced. On 8 March 1999, the day fixed for trial, the applicant entered a plea of guilty to the charge. 7 The present application is founded on two principal grounds. Firstly, the applicant asserts that the sentence is manifestly excessive having regard to the drugs involved and his role in the enterprise. Secondly, he argues that the sentence is disproportionate when considered alongside the sentences imposed upon the two female co-offenders, even taking into account factors such as the reduction they received for co-operation and assistance and their more limited role in the enterprise: R v Lowe (1984) 154 CLR 606. It is convenient to deal with the parity argument first. To do so it is necessary to consider the findings of fact made by Judge Morgan when sentencing the women. It is important to observe that what was said by Judge Morgan in relation to Marchando does not amount to any findings of fact in his case. The facts found by Judge Morgan in relation to the women inevitably include conclusions of fact about Marchando's role and are important for an understanding of the relevant factual bases for the sentences imposed on the applicant and the women, but they are not and cannot be factual findings in relation to Marchando. Further, for the purposes of the parity argument, it is appropriate to consider the sentences that would have been imposed on the co-offenders but for their assistance. The discounts in sentence the co-offenders received should be disregarded when evaluating the strength of the parity argument. The starting point for comparison is the undiscounted sentences. 8 On the basis of the evidence put before her, Judge Morgan accepted that Popescu, in financial difficulties in Los Angeles, had been recruited by Marchando to "take some pills containing amino acids to Australia". Marchando told the women that, should they be questioned by the Customs officials in Australia, the consequence would be no more than "payment of a fee" followed by deportation. The pills were to be strapped to the legs of the two women and for this they were to be paid a total of $US4,000 each. At a preliminary meeting in a Los Angeles hotel Marchando, the applicant, and the women practised strapping packages to the legs of the women. Six days later the women and Marchando left Los Angeles for Australia, the women with the packages of the drugs attached to their legs. On arrival at Sydney Airport the women were apprehended and searched and the drugs were discovered. In total there were approximately 15,800 tablets with a net weight of the two drugs of about 2,255 grams. The combined street value of the drugs was estimated at between $474,000 and $1.1 million. 9 Although she did not expressly say so, it is apparent that Judge Morgan assessed the roles played by the women as at the level of couriers and such a conclusion accords with the facts put before Judge Coleman in the applicant's proceedings. Judge Coleman, sentencing the applicant, accepted that Marchando was a principal in the enterprise and that the applicant was "a mid level participant", with a role less than that of Marchando, greater than that of a courier. 10 Although, in each case, the sentencing judge took into account evidence of subjective matters, it is unnecessary to relate those circumstances here, since they do not impact on the question of parity. So far as I am able to assess them, relatively speaking, the subjective features of the applicant's case were not dissimilar to those of the two women. Certainly, there is insufficient differentiation between them to warrant a marked differential in sentence on that basis. The parity question has to be evaluated by reference to the objective features of the respective cases. 11 The argument put on behalf of the applicant focussed on the non-parole periods of the sentences actually imposed on each of the women, that period being of eighteen months in each. The applicant's non-parole period was of six years, which, as was pointed out on his behalf, is four times greater than those imposed by Judge Morgan. However, as I have mentioned above, it is, in my view, an erroneous approach to start with the sentences imposed on the women as discounted for their assistance. The starting point for comparison purposes must be the sentence that would have been imposed but for their assistance. That, Judge Morgan said, would have been four years - or two thirds of the non-parole period to which the applicant's sentence was subject. The question is whether the relevant circumstances warrant a differential of that magnitude. Essential to this question is the assessment of the relative roles played. There can be no question that the applicant was substantially more involved than either of the women and so much is conceded. That alone justifies a significant differential. 12 Another relevant matter concerns the timing of the pleas of guilty, and the evidence of contrition. Even leaving aside the assistance given by the women, they confessed and pleaded guilty at the first opportunity. The applicant's plea was not entered until the morning of the day fixed for the commencement of the trial. Even then he contested part of the Crown case, challenging the evidence identifying him as one of the participants in the practice session of strapping the packages to the women's legs and put the Crown to proof on that matter, which Judge Coleman eventually found against him. While the applicant is not to be more severely punished for exercising his right to put the Crown to proof of relevant facts, his doing so limits the benefit he might otherwise obtain from his plea, and throws into perspective the extent to which he is truly contrite about his conduct. However, the significance of the co-offenders' pleas of guilty was limited, given that they were apprehended with the drugs still strapped to their legs. 13 In my opinion the more substantial role played by the applicant especially when taken together with the greater benefit to which the women were entitled in relation to the timing of their pleas of guilty is more than sufficient to justify the differential between the undiscounted sentences and the applicant's sentence. The parity argument should fail. 14 The other matter argued concerns the categorisation of the drugs imported and the appropriate levels of penalty in relation to substantial quantities of those drugs. At the urging of both parties Judge Coleman accepted that methorphan was a "mid range" drug. There is no challenge to that finding. There was evidence that dextromethorphan (one of the forms of methorphan, and the form which an expert Crown witness, Professor Starmer, considered was the most likely form of the drug imported in this case) is commonly sold on the streets as Ecstasy. I am satisfied to treat methorphan and methylamphetamine in the way his Honour did, as mid-range drugs, was correct. 15 The sentencing scheme in relation to the importation of prohibited drugs creates distinctions based on the quantities imported. In Schedule VI of the Customs Act is to be found a list of prohibited substances, together with identification of, in each case, a trafficable quantity, and in some cases a commercial quantity. By s 235 different penalties apply depending upon the quantity of the specific drug involved. By this means the legislature itself has created different categories of drugs by reference to their perceived harmfulness to users or to society generally. A trafficable quantity of both methorphan and methylamphetamine is 2 grams. The maximum penalty prescribed by s 235(2)(d) is a fine not exceeding $100,000 or imprisonment for a period not exceeding twenty-five years or both. Schedule VI does not, however, prescribe a commercial quantity in relation to either of these substances. Plainly, the amount of the drugs involved was enormously greater than the trafficable quantity. 16 In a judgment published on 16 December 1999 this Court promulgated a guideline sentence in relation to charges of offences against the Customs Act but limited to offenders who fall within the category of couriers or persons low in the hierarchy (R v Wong and Leung, [1999] NSWCCA 420, unreported). It recognised, in accordance with the Customs Act, five groupings relative to the quantities involved. It is to be observed that that case concerned the importation of heroin, but the guideline promulgated envisaged sentences not only for that drug, but also for importations of cocaine. These, however, must be seen as "high range" drugs. 17 The range promulgated as appropriate to the "high range trafficable quantity" of those drugs was a head sentence of seven to ten years. The amount of drugs that fits within that description is one to one and a half kilograms for heroin, one to two kilograms for cocaine. A low range commercial quantity of heroin (one and a half kilograms - three and a half kilograms of heroin, or two to three and a half kilograms of cocaine) would attract, on the guideline, a head sentence of eight to twelve years. 18 In my opinion caution should be exercised in the present case in attempting to transpose the sentences there promulgated to the present case. Here, the quantity differentiation prescribed by the legislature stops at a trafficable quantity, which is a quantity infinitesimally lower than the amount of the drug in fact imported and, as noted above, the guideline sentence was expressly intended to apply to persons low in the importing hierarchy. That does not include the applicant. 19 Even treating the guideline judgment with the necessary caution, in so far as it is of assistance in the present case, in my opinion it demonstrates that the sentence imposed on the applicant does indeed fall within the appropriate range. Accepting that the drugs with which the applicant was concerned were of a lower order than those to which the guideline applies, it would be appropriate to give some reduction to the sentences proposed in relation to a comparable quantity. A comparable quantity is at the low end of the low range commercial quantity of cocaine, for which the sentence proposed is eight to twelve years. Some increase must be made for the applicant's greater involvement in the organisation. The sentence imposed falls neatly within the approach set out in Wong and Leung. 20 No other reason for interfering with the sentence has been argued or demonstrated. I would grant leave to appeal but dismiss the appeal.

Regina v Bigic

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