REGINA v. CHAPPLE [2001] NSWCCA 183

No. 60112 of 2000 CORAM: HODGSON, JA. GREG JAMES, J. ADAMS, J.

1 GREG JAMES, J: This is an application for leave to appeal against sentences imposed on the applicant in the District Court after pleas of guilty to two charges, one of attempting to obtain possession of a prohibited import, namely a trafficable quantity of cocaine; the other being knowingly concerned in the importation of a trafficable quantity of cocaine. 2 The applicant was sentenced by the learned trial judge on the first count to a sentence of five years penal servitude, with a non-parole period of three and a half years, such sentence to date from 9 June 1999. On the second count, his Honour imposed penal servitude for a fixed term of 12 months from that date. 3 Those offences embraced common elements and referred to the one common transaction of importing. That was the reason why his Honour imposed the fixed term and the sentence on the first count, and then made them concurrent. 4 His Honour noted that the applicant had pleaded guilty and he referred to the circumstances of the offences by finding that, at some stage, the brother of an associate of the applicant, with whom he had a romantic interest in South America, had contacted him and, in consequence, he had obtained post office boxes in a false name and obtained from South America, through the post, the trafficable quantity of cocaine to which I have referred. His Honour noted that quantity as 109.4 grams, with a street value of $21,880. 5 His Honour noted that the accused spoke of the quantity, on admissions made on the plea, as of 79 grams. It seems now to be common ground that the 79 grams figure represents the quantity of pure cocaine; the 109.4 grams figure the gross quantity. For the purposes of the Customs Act 1901 it is to the pure quantity to which reference should be made. 6 When the applicant came forward for sentence before his Honour, he adverted to prior offences and the barbarous circumstances of his imprisonment for them. They confirm that the prisoner has suffered a most tragic life as a result of his involvement in drugs. The conclusion his Honour came to that the prisoner had been addicted to cocaine for many years was an inevitable one. His Honour went so far as to point out that the prisoner's physical appearance was demonstrative of that long term addiction. His Honour remarked upon the difference between this prisoner's case and that of many of those sentenced for such crimes as "these who commit those crimes out of greed". 7 His Honour categorised the prisoner as a principal on his own behalf. By that description his Honour apparently meant that this was a person who had arranged his own importation and was taking the benefit of that importation. Such a description became a matter crucial to his Honour's decision on sentence, as his Honour concluded, by comparison with those whose roles are generally described in the guideline judgment of Regina v. Wong & Leung (1999) 48 NSWLR 430, the prisoner was a person who fell into a category above a courier. His Honour considered the prisoner's culpability should be so described because he is, "after all, at this end of the transaction, the moving and it seems the only force receiving the cocaine here in the mail". 8 His Honour, when he came to calculating the sentence, referred to the applicant as "more than a courier, perhaps marginally so". His Honour seemed to think that the appropriate course, when comparing this man's circumstances with that of those described in Wong & Leung (supra), was to treat him as a principal and thereby liable to have applied to him the range appropriate to couriers, having regard to various of the quantities, plus a year or two for being a principal. His Honour expressed it as "that he be considered for a head sentence at the top of the courier scale, plus a year or two for being a principal", though his Honour was of the view that that might be harsh. 9 His Honour was of the view that the calculations in Wong & Leung (supra) and the figures there referred to, if applied to this prisoner, would lead to a sentence of nine years but, as has been pointed out by the Crown in its submissions, fell into error in that he failed to have regard to that sentence, as expressed in Wong & Leung (supra), having applied to it the s.16G discount customarily of one-third. 10 The Crown conceded that the process by which his Honour dealt with that matter in respect of dealing with the figures as though they had not had the s.16G discount applied to them was in error, but submitted that, of course, that discount, if applied in the way in which his Honour did, would yield a benefit to the prisoner such that the error at least should not result in a sentence reduction to the prisoner's favour in an appeal of this sort. 11 The Crown also conceded that his Honour had erred in passing the sentence in that he ordered the applicant was to be released on entering a recognisance to be of good behaviour at the end of the non-parole period. The Crown's written submissions point out that pursuant to s.19AB(1) of the Crimes Act 1914 (Cth), a sentencing judge must either fix a non-parole period or make a recognisance release order, not do both. 12 In that respect the Crown accepted that the sentencing process had miscarried, although, again, it was submitted that that was not a miscarriage which so tainted what had occurred as to require the setting aside of the sentences his Honour passed. Indeed, it was the Crown's submission that on a consideration of the whole of what his Honour did, even if error might be found, on a re-sentencing exercise the same or a not significantly different result such as would not attract intervention would result so that leave to appeal should not be granted and the appeal upheld. 13 The applicant has submitted that, having regard to his Honour's finding that the applicant's undoubted addiction meant that some quantity of what was imported, "quite possibly the lion's share" of the amount that he was importing, might have been destined for his own use, meant that his Honour had fallen into error at where he placed the applicant's culpability in the scale, even if one did apply the analogy of Wong & Leung (supra), to this somewhat different factual picture. 14 It was also submitted that his Honour had erred in embarking upon a tiered approach to sentencing, whereby individual factors were arithmetically weighed without continuous and consistent regard for the totality of what is after all an intuitive synthesis. Reference in this regard was made to the remarks of McHugh, J. in AB v. The Queen (1999) 73 ALJR at 1385. 15 It was contended that in all of the circumstances his Honour had erred, that he had erred in having regard to too great a quantity, that he had erred in assessing the applicant's role, and that he had erred in failing to give a sufficient discount, as is required by s.16G of the Crimes Act 1901. The discount his Honour had given was of the order of 28.57%. An appropriate discount, so it was submitted, would have been of the order of 33%. 16 It was further submitted that his Honour had erred, even when he had imposed a non-parole period, insofar as that that period was some 70% of the head sentence that he had imposed. The contention is that, notwithstanding the applicant's appalling prior record, which here and overseas included three major prior drug offences, for two of which he had been dealt with in South American countries, in circumstances of what, on the evidence before his Honour, was barbarity, even though this applicant was not to be dissuaded from committing such offences, this offence being remarkably similar to that which he had previously committed in Australia, the 70% was too high and his Honour had fallen into error. 17 It is notable, when considering those matters, that if one starts the sentence calculation with nine years and applies to that a s.16G discount, one reaches a figure of six years and to that six years one would apply such considerations as appropriate in mitigating sentence as have not been embraced in the nine years starting point. 18 Given that, it might well have been that the sentence could have been supported, except that it appears that his Honour specifically found in favour of the applicant for his early plea, yet does not appear, at least to me, to have given to the applicant any such value of that plea, on utilitarian grounds alone, as one would expect, if he had applied to this sentencing exercise the principles referred to in Regina v. Thomson & Houlton. (2000) 49 NSWLR 383. 19 Those principles have already been held by this court today to be principles to which regard should be had, even when sentencing in respect of Commonwealth offences, as these are. 20 What his Honour said concerning the plea was said in the context of his Honour commencing his reasoning process with a starting point of a sentence of nine years, to which his Honour said:- "Discount must be applied by reason of the man's age, the age of his parents, and an entitlement for him to look forward to assisting them in their advanced years some day." 21 Further, his Honour was of the view that the more onerous aspect of a period in custody awaiting sentence required the nine years again to be mitigated. 22 When turning to the guilty plea, he said that it must be regarded, at least in part, as being demonstrative of remorse and contrition, although one cannot lightly dismiss the fact that the case against the applicant was virtually irresistible. His Honour concluded that that latter fact does not deprive him of some benefit not insignificant and that there was some prospect of rehabilitation, but his Honour at no point, other than by noting that the plea was early, gave the prisoner any benefit for the utilitarian considerations involved in the saving of the cost and inconvenience of a trial to the community. 23 Such a benefit would normally be expressed in the range of 10 to 25%. This plea was as early as could conceivably have been entered, and it was not accompanied by a full and frank statement to the police on the occasion of the arrest. Nonetheless, the prisoner did inform the police of circumstances relating to the use of scales, clip lock bags, and the like, found in his premises and related to a prior importation. He was not sentenced with any aggravation of his sentence by reason of that prior importation, but it was on the basis of those admissions and the contamination of those items with the drug that his Honour found that some portion of the drug might be sold. His Honour thereby dealt with him more severely than his Honour would have dealt with a person who had been sentenced solely on the basis that the drug was imported for his own use. 24 It is not at all clear to me that he should not have been dealt with as a person who had imported the drug, either for his own use or to sell, but only to the extent of that required to meet his own addiction. It does not seem to me that admissions of that kind should discount in any way the plea being early and of assistance, to the extent at least of the avoiding of a trial. 25 It would not be inappropriate in those circumstances, then, to apply that 25% discount. That would lead, on its own, without more, to a head sentence of the order of four years. 26 His Honour noted the prospects of rehabilitation and said, noting the prisoner's advances within the custodial system, that a sentence should not crush any late prospects of rehabilitation. He said:- "If he is ever going to rehabilitate from cocaine it will be now. I do not think there will be any further chances for him because he will be released from his non-parole period and if he were to commit any other offences of importation during that time I do not know what sentences he might eventually face." 27 The prisoner gave evidence. The issue was not his willingness to abandon his addiction but his ability, with the assistance of the authorities and medical science, to achieve it in his own case. The non-parole period should afford him some such opportunity as is possible to do what can be done to take that last chance. 28 I am of the view, in those circumstances, that it would not be inappropriate, having regard to the considerations referred to by the High Court in Bugmy v. The Queen (1990) 169 CLR 525 to impose a non-parole period affording the prisoner a substantial opportunity for rehabilitation. I would propose a non-parole period of two and a half years be fixed in respect of the head sentence of four years, and that that sentence be expressed to commence on 9 June 1999, to expire on 8 June 2003, with a non-parole period to expire on 8 December 2001. I would not disturb the second sentence. 29 HODGSON, JA: I agree. The sentencing judge's decision took place prior to the publication of the Court of Criminal Appeal's decision in Thomson & Houlton (supra), although the basic principles had previously been set out in cases such as Winchester (1992) 58 A. Crim. R. 345. The difference that Thomson & Houlton (supra) made, in my understanding, is that it made explicit what was an appropriate prima facie range of discounts, and also made explicit that this particular element of discount could appropriately be specified separately from other discounts, notwithstanding the general position that all matters of discount and amelioration should be taken into account in a global assessment. 30 In relation to the non-parole period, the court has also received evidence of work done and courses undertaken by the applicant during his time so far as spent in custody in relation to this matter, and this does confirm that, despite his addiction and his previous record, there is a prospect of rehabilitation. That is a matter that I take into account also in fixing the period for non-parole. 31 ADAMS, J: I agree with what has fallen from both the learned presiding judge and Greg James, J. 32 HODGSON JA: So the order of the court is leave to appeal is granted and the appeal is upheld in relation to the sentence on count one. In lieu of that sentence, a head sentence is imposed of four years, commencing 9 June 1999, with a non parole period of two and a half years, commencing 9 June 1999 and expiring on 8 December 2001. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.