Regina v Chanthaboury

The applicant told the police that Caesar was "mad" at him and also at Vergara, because they had spent a lot of money in Miami where they had apparently enjoyed a vacation before going on to Panama and as they could not repay Caesar, they went along with the importation. 5 The first trial commenced on 12 April 1999 and proceeded until the jury was discharged on 28 April 1999. 6 The applicant gave evidence at that trial and whilst he conceded that he imported a suitcase knowing that it contained drugs, he maintained before the jury that he did so as he was acting under duress. He gave evidence that whilst he voluntarily entered into the arrangement with Gus and Caesar to import cocaine into Australia, on 29 July he changed his mind and he told Caesar he would not continue with the importation. This resulted, he told the jury, in threats by Caesar against himself and his girlfriend. 7 The applicant's then girlfriend, Brittnie Simms, was brought out to Australia by the defence and she gave evidence that on about 22 July 1998 her house where she lived with her mother had been shot at. A report of that incident to the police was tendered in the case. She said she had told the applicant about it when she spoke to him on the telephone about 30 July, whilst the applicant was in Panama. 8 The applicant, in cross-examination, said that he had not told the Australian Federal Police following his arrest about that particular matter, that is of Brittnie's house being shot at, because he thought that the police were useless. 9 I understand that following the trial further evidence was obtained relating to Brittnie Simms and it is apparent that that defence would not have been raised at a second trial. 10 This appeal is brought against the severity of the sentence, it being submitted that the judge's discretion miscarried by reason of her failure to make sufficient allowance for the assistance provided by the applicant. 11 The applicant was sentenced by Morgan DCJ. Her Honour also conducted the trial of Vergara who, having pleaded not guilty, was convicted. 12 After allowing a discount for the assistance he gave the authorities, Vergara was sentenced to eight years imprisonment with a non-parole period of five years. 13 Before Morgan DCJ the applicant argued that he was entitled to a greater discount for his assistance to the authorities than was given to Vergara. This submission was rejected and the applicant was sentenced to seven and a half years imprisonment with a non-parole period of four and a half years. It is apparent that the applicant received a discount of six months for his plea of guilty. 14 It is submitted on behalf of the applicant that this Court should be guided by the principles set forth in R v Wong & Leung (1999) 108 A Crim R 531. As the quantity of cocaine imported fell within the mid-high range trafficable quantity and the applicant was a courier the appropriate head sentence was accepted before considering any discount to be in the range of six to ten years. 15 It was further submitted that as the applicant was a first offender, and a relatively young man who had entered a plea it was not appropriate to apply a head sentence at the top of the range. As the applicant had pleaded guilty it was submitted this should entitle him to a discount beyond that allowed for the assistance he gave the authorities. 16 Recognising that the discount given by her Honour was not quantified but assuming the calculation commenced at the top of the Wong & Leung range, with only a ten percent discount for the guilty plea, the discount for assistance, said to be in the order of sixteen percent, was submitted to be inadequate. 17 The court's attention was drawn to the decision in R v K, [2000] NSWCCA 200, where Smart AJ said that a discount of forty percent was unexceptional where the convicted person has given assistance. The assistance in that case was similar to that given in the present case. 18 Her Honour delivered the judgment on sentence on 17 December 1999, the day after judgment was delivered by this Court in Wong & Leong. Her Honour made no reference to that decision and it is likely that it was not drawn to her attention. However, it is plain that this Court, when considering the present application, must have regard to that decision. 19 Wong & Leong provided a guideline judgment which, although not binding, is intended to provide a "sounding board" or a check against the exercise of the sentencing judge's discretion. (see the remarks of Winneke P in R v Ngui & Tiong (2000) 111 A Crim R 593 adopted by Spigelman CJ in R v Karacic, [2001] NSWCCA 12). Further indication of the utility of guideline judgments was given by Wood J in R v Thompson, R v Houlton (2000) 49 NSWLR 383 where he said, agreeing with proposed guidelines in relation to guilty pleas: "Adherence to them in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice." (p 420) 20 In the present case her Honour was required to sentence the applicant having already sentenced Vergara for his involvement in the same enterprise to eight years with a four and a half year non parole period. Presumably this sentence was imposed after allowing a discount for the co-operation Vergara gave to the authorities. As she found that the discount on account of assistance given by the applicant should be the same as Vergara presumably she would have imposed an eight year sentence on the applicant but reduced it by six months having regard to his plea of guilty. 21 The Crown submitted that the sentence should be considered by reference to the applicant's likely knowledge that the cocaine he was carrying was in excess of that which was determined by her Honour being in "the order of one or a little over one kilogram." It was said that but for difficulties in the laboratory the amount would have been significantly higher. It was suggested that this approach was appropriate having regard to the decisions in R v Derbas (1983) 6 Petty Session Review 2881; R v Chow (1987) 30 A Crim R 103; R v Mai & Tran (1992) 60 A Crim R 49; R v Laurentiu & Becheru (1992) 63 A Crim R 402. 22 In my opinion the present case must be determined by reference to the finding of Morgan DCJ as to the quantity of cocaine imported. Her Honour had the benefit of argument in relation to the amount of cocaine, her finding being consistent with the evidence provided by the Crown. The decision in Derbas and the subsequent cases relates to the circumstance where the amount of the drugs recovered has been reduced by the action of the authorities in the course of a controlled delivery and is quite different to the present case. 23 Morgan DCJ determined that both Vergara and the applicant fell within the caregory of being a "bare or mere courier". Acknowledging, as did her Honour, that no particular leniency should be extended to couriers it is important that the sentence imposed have appropriate regard to the guidelines provided in Wong & Leong. 24 There was discussion before this Court as to whether the guidelines provided in Wong & Leong recognised any discount for a plea of guilty. Attention was drawn to the statement by Spigelman CJ, who having identified the utility of providing a range of penalties as a guide to sentencing said "That is not to say that in particular cases, sentences outside the range would not be appropriate. It will frequently be the case, for the reasons already referred to, that a substantial degree of assistance will justify a sentence below the relevant range. There may also be circumstances in which a plea of guilty is entitled to such significant weight as to justify a sentence below the range. The range is not intended to apply to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation, to whom an increment should be applied. These factors are not intended to be exhaustive of the circumstances in which sentences outside the range will not attract the close scrutiny of this Court." 25 It was submitted by the appellant that this passage should be understood as indicating that the sentences suggested as a guide did not have regard to any plea. 26 The Chief Justice has himself commented on this passage indicating that the guidelines which provide a range of appropriate sentences reflect consideration of all relevant factors including pleas of guilty. 27 He made plain that "the guideline makes no assumption one way or another about such matters as whether there was a plea of guilty." R v Karacic (2001) NSWCCA 12 at 8. 28 Accordingly the sentencing judge is required to make appropriate allowance for any plea having regard to the range suggested in the guideline. A lower sentence from within the range may be appropriate where a plea is entered. 29 This Court considered the approach which should be adopted to a plea of guilty applicable to state offences in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The factors of relevance to the sentence imposed arising from the entering of a plea were discussed. In particular the utilitarian benefits of a plea for the efficiency and effectiveness of the criminal justice system were recognised as quite separate from any elements of remorse and contrition. (p 411-412). 30 The present case must be determined under the Crimes Act 1914 (Cth). Accordingly the court was required by s 16A(2)(g) to have regard to the fact that the applicant pleaded guilty. The plea was entered on the first day of the second trial and with the knowledge that the defence pursued at the first trial was not available and accordingly in my opinion it warrants less consideration than if it had been entered before the first trial. Nevertheless it had considerable utilitarian benefit which should be recognised in the sentence imposed. 31 This Court has previously considered the appropriate approach to the sentencing of offenders who have given assistance to the authorities. In R v Cartwright (1989) 17 NSWLR 243 the majority in this Court indicated that there should be a reward for providing assistance "if the offender has genuinely cooperated 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." P 253 (Mahoney JA adopted a different view indicating that the sentencing judge should also take into account whether the information given was effective. See also the discussion by Hunt CJ at CL in R v Raz, unreported, 17 December 1992, Court of Criminal Appeal, 32 In determining the benefit arising from assistance the court indicated that regard should be had to whether or not the disclosure has been frank and honest, and said "the extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. (p 17) Genuine remorse or contrition may in accordance with normal sentencing principles justify greater leniency. 33 Of course, the circumstances of the offender's imprisonment and the need for the sentence to be served in protective custody (as will usually be the case) is also relevant. 34 In the present case the extent of the assistance given by the applicant is set forth in the letter from the Federal Police tendered before Morgan DCJ. It is apparent that he cooperated fully with the police enabling them to obtain evidence which could be used against the person who received the drugs in Australia. 35 The applicant offered to give evidence at this person's trial but as the proceedings against him had not been completed this was not possible. The other person was found not guilty. 36 The police were satisfied that the applicant was honestly attempting to assist police in identifying other persons knowingly concerned in the importation and distribution of cocaine. It is also apparent that the applicant will serve his sentence in protective custody and fears reprisal. 37 In these circumstances I am of the opinion that the applicant was entitled to a considerable reduction in his sentence for the assistance he gave. 38 It is also necessary, as Morgan DCJ did, to have regard to the fact that any sentence would not be subject to remission. (s 16G Crimes Act 1914 (Cth)). 39 I am satisfied that having appropriate regard to the guidelines provided in Wong & Leong the sentence imposed on the applicant was excessive. 40 The range suggested for an offender who is a courier with a trafficable quantity of cocaine between 1 kg - 2 kg is seven to ten years. In my opinion a sentence toward the higher end of the range is appropriate. Although the applicant was only a courier and was found to be carrying in the "order of one or a little over one kilogram" he had a significant role in the enterprise certainly greater than Vergara. Only a modest allowance should be made for the utilitarian value of the plea of guilty having regard to the fact that it was not entered until the first day of the second trial. 41 In my opinion the degree of assistance provided by the applicant was significant and this should be reflected in the sentence. Without consideration of that assistance but having regard to the plea of guilty an appropriate sentence would have been eight and a half years. Having regard to the assistance the sentence should be reduced to six years. The appropriate non parole period is four years. 42 In my opinion leave to appeal against the sentence should be granted. The sentence quashed and in lieu of the sentence imposed the applicant sentenced to six years commencing on 4 August 1998 with a non parole period of four years commencing on the same day. 43 SMART AJ: I agree with McClellan J. ********

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