Ground 2 - the applicant has a justifiable sense of grievance when considering the sentence imposed upon the co-accused, Mr Wong.
37 The applicant submits that she has a justifiable sense of grievance having regard to the sentence imposed on Mr Wong. Reference was made to R v Postiglione (1996-97) 189 CLR 295. It is submitted that the applicant's actions involve a lesser degree of criminality than Mr Wong and her subjective case was such that a lesser head sentence should have been imposed on her than was imposed on Mr Wong. It is further submitted that the applicant's age and her dependent, submissive relationship with Mr Wong placed her in a difficult situation, particularly as she was pregnant to him. In the circumstances, her culpability was significantly reduced.
38 Emphasis is placed on the fact that although the applicant was carrying a greater quantity of heroin than Mr Wong, this was a matter of chance and the difference in quantity, being about 360 grams, is not significant. It is submitted that the difference was not readily discernible and did not reflect on the applicant's culpability.
39 It is further submitted that in Wong v The Queen (2001) 207 CLR 584 at [67-70], Gaudron, Gummow and Hayne JJ recognised that not all offenders will know or even suspect how much pure narcotic is to be imported and that it was not uncommon for importers to know nothing about what they are dealing with, except that it is a quantity of narcotics. Accordingly, it is submitted that a sentencing judge will be more concerned to identify the level of the offender's knowledge about the importation. Other information about the kind and size of the reward promised will also be as important in fixing sentence. The weight of a narcotic imported is given statutory significance by Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities. Within those ranges weight is relevant but is not determinative. The applicant stresses that their Honours said at [70]:
"The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle."
40 I accept that the fact that the applicant was carrying a greater quantity of heroin than Mr Wong was a matter of chance. However, in undertaking the criminal activity the applicant must have known that she was committing a very serious offence which carried with it the prospect, if apprehended, of a significant gaol sentence. It must be remembered that she entered a plea, abandoning the defence of duress, and she fell to be sentenced on that basis. The legislature has determined that the offence which the applicant committed carries a significantly greater maximum penalty, life imprisonment, than the offence committed by Mr Wong which carries a maximum term of twenty-five years.
41 In this respect it is important to remember the passage in the joint judgment in Wong v The Queen commencing at para 67 where their Honours said:
"The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentences that may be imposed for offences involving traffickable and commercial quantities. No doubt, within both of those categories the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. But is weight generally the chief factor to be taken into account in fixing the sentence?"
42 In these circumstances, it would be a rare case in which the appropriate sentence did not reflect the fact that the legislature has imposed a different and more severe penalty regime for the offence committed by the applicant. By imposing the same head sentence on both the applicant and Mr Wong, her Honour has adequately reflected the part which chance played in the applicant carrying the greater quantity of heroin.
43 Although the applicant committed the more serious offence, it is apparent that her personal circumstances, and her degree of culpability, pointed to the need to carefully consider the term of her imprisonment. The trial judge recognised this fact and reduced the non-parole period so that the applicant will serve eighteen months less in prison than Mr Wong. In the circumstances, I am satisfied that by approaching the sentences as she did the sentencing judge appropriately exercised her discretion and no error is revealed.
44 In my opinion, leave to appeal should be granted but the appeal should be dismissed.
45 ADAMS J: The facts of this case have been briefly but adequately set out in the judgment of the Chief Judge at Common Law and I gratefully adopt his Honour's account. However, in the circumstances of this exceptional case I am unable, with unfeigned respect, to agree with either his Honour's analysis or his conclusion as to the disposal of this appeal.
46 Let me deal firstly with the analysis.
47 The applicant's evidence was (and it was not sought to be disputed or controverted) that she was brought by her boyfriend, the co-accused, to a hotel room where they expected to be given money for the purpose of acquiring what was called "water goods". Whatever that was it was not drugs, and it appears to have been accepted it was not illegal conduct that was proposed. The boyfriend resisted when informed that they were to take white powder, plainly drugs, into Australia. He was beaten in her presence, she was threatened with rape and dreadful consequences to her family. There was no reason to suppose that these threats were not entirely serious. Drugs were strapped onto her person in the company of her partner, she was taken to the airport, and ultimately placed on the aircraft, she was continuously unwell and very uncomfortable during the flight because of her pregnant state and the tightness with which the parcel carrying the heroin had been attached to her. She was still terrified as she came through Customs in Sydney. She was still in the company of her partner. There was no question of any financial reward for her actions.
48 The learned trial judge found, having heard the applicant, as follows -
"Both offenders gave evidence on sentence. I am satisfied on the balance of probabilities that the offences were brought about by threats of actual violence falling short of a defence of duress."
49 The offenders recognised by their pleas that the defence of duress was not available.
50 The unusual finding of the learned sentencing judge needs to be unpacked a little. The learned Crown Prosecutor in this Court has submitted that by her plea the applicant admitted that her bringing these drugs into Australia was voluntary. It was voluntary, but only in the rather limited sense that the term has in the law as to duress, since it appears to have been accepted that, although the threats were real and grave, although she was still affected by her fear of them at the material times, and although it was those threats and her fears that caused her to bring the drugs here, she had, in the course of the flight to Australia and, perhaps, on her arrival at the terminal, nevertheless "a reasonable opportunity to render the threats ineffective": see R v Williamson [1972] 2 NSWLR 281 at 3000. It impossible otherwise sensibly to see how the plea of guilty and the applicant's evidence can be reconciled. The finding of the learned sentencing judge indicates that the reason for the applicant's involvement in this crime was the applicant's fear, induced by substantial and grave threats made not only to her and her boyfriend but also to her family. She imported these drugs, therefore, not because of any hoped for financial reward but to avoid suffering extreme violence.
51 The criminal law can only go so far in controlling people's activities. I venture to say there would be many people in the community who are not criminals and who regard themselves as honourable people who, if they been themselves in same circumstances as this applicant, would have found it very difficult indeed to resist the terrifying threats that had been made to her and would have complied with the unlawful demands, even if there was - at some points - a reasonable opportunity to seek the assistance of law enforcement authorities. The difficulty facing someone in the applicant's position having to make this judgment call, especially once she came to Australia - in a strange place and an alienating environment where she did not speak the language - can scarcely be overstated. She was friendless and alone, except for the presence of her boyfriend who had also been subjected both to violence when he first protested and threats of further violence if he did not co-operate. There were no chances for reflection before she was placed on the flight and very few thereafter.
52 Some people in the applicant's position might well have had the fortitude to have reported the fact that she had been required to carry drugs. Many ordinary members of the public, perhaps even with greater personal resources than this particular offender, would find that extremely difficult to do. The law deals with realities, not with fictions and should deal with substance, not form, especially in the area of sentencing. If we accept fiction instead of reality, the law then becomes by that an instrument of injustice.
53 In my view this finding of fact by her Honour the learned sentencing Judge meant that the sentence which should be imposed should have been be at the very bottom of the possible range of sentences. The true culpability of the applicant was almost as low as it could get. She stood in marked contrast to almost every other courier seen in the courts, whose intentional breaking of the law is motivated by the hope of financial gain. Her crime must therefore be seen as considerably less in culpability than these, more conventional, couriers. Her Honour did not approach this matter in that way. I think it fair to say that, having come to the conclusion about the threats, and other conclusions which I will mention shortly, her Honour attempted to give a sentence which was at the bottom of the statistical range that had hitherto been imposed for cases of importation of commercial quantity by couriers acting for reward. In my respectful view that was a fundamental error. What was necessary in this case was that her Honour should have assessed the actual criminality and moral culpability of this applicant in the light of what most ordinary members of the public in the applicant's position would have felt themselves able to do and by comparison with sentences passed on couriers who fell into a class of considerably greater culpability. Since to do so should have produced a sentence significantly below that which was imposed, it seems with respect that the learned sentencing judge erred either in her assessment of the bottom of the available discretionary range or the true extent of the objective circumstances as found. In particular, the apparent acknowledgement of this principle by varying only (or substantially only) the non-parole period below the statutory ratio was wrong in principle. The special circumstances of this case certainly justified a significant downward adjustment in this respect but this derived from the subjective circumstances (to which I shall come in a moment). But the matters to which I have drawn attention required a much lower non-parole period by reference to the objective circumstances, with an additional allowance to take into account the special circumstances. In my opinion, the objective character of the crime can never be a "special circumstance" for the purposes of s44 of the Crimes (Sentencing Procedure) Act 1999.
54 It follows from what I have said that the balance of the term was manifestly excessive or, looked at globally, the overall sentence was manifestly excessive.
55 I have, therefore, concluded with respect that the learned sentencing judge approached the sentencing task in this case incorrectly in a fundamental way. This was an exceptional case. It fell close to the bottom of the range of criminal culpability, quite apart from any comparison with Wong.
56 I move to the comparative position between this applicant and her co-accused. The learned sentencing judge said:
"Whilst I recognise that foreign nationals cannot expect leniency if they come into this country purely to commit serious offences, in my view Miss Liu's situation is such that it would be appropriate to reduce the non-parole period to 50 percent of the head sentence. In addition her criminality is less than Wong's, even though she imported just over the commercial quantity of heroin. She was not in debt, and did not stand to gain anything financially. She was brought into the situation by Wong's gambling debt and subsequent actions. These factors justify the same head sentence for each offender."
57 I make the observation that it seems to be completely at odds with her Honour's findings about the applicant's reasons for carrying the heroin into Australia to treat them as being "purely to commit serious offences".
58 Having regard to the matters that I have just mentioned, as well as the facts that that Wong was the instigator, and not she, that she stood to gain nothing, whilst he at least was paying off his gambling debts, that she was very much under Wong's influence, being ten years younger than him, submissive both by aspects of her personalty and her culture to his demands, and also that the time pregnant to him, the criminality of this offender was markedly less than that of Wong's and should have been reflected in a substantially lesser sentence.
59 As I understand it the argument that proposes that the same head sentence for each offender was justified is primarily founded upon the fact that having imported a commercial quantity of heroin as distinct from a trafficable quantity of heroin she committed a more serious offence. In one sense that is correct. It rendered her liable to a higher maximum. It rendered her liable also to be treated as more seriously culpable, but it only rendered her liable to those conclusions. In my view those matters do not in this case, especially having regard to the fact that she was only 82 grams over the commercial quantity, render her in any sensible way more or equally criminal than Wong. In my opinion, the conclusion is inescapable that, despite her liability to a heavier sentence, the applicant was very much less culpable than Wong as a matter of substance and reality. It is not all reflected by the sentences imposed, either the head sentence or the non-parole period. The factors identified by the learned sentencing judge required that the applicant should have received substantially lower head sentence than Wong, and that in failing to do so the applicant has a justifiable sense of grievance. To my mind - and with unfeigned respect to those with whom I am in disagreement - the sentence passed on this applicant was gravely unjust when compared to that passed on Wong.
60 Thus the sentence and the non-parole period were manifestly excessive, both when considered on their own and by comparison with the sentence passed on Wong.
61 Let me come to the subjective circumstances of the case. A number of psychological reports were tendered at the proceedings. The applicant's psychological condition was complicated by the enormously stressful circumstances in which she found herself, from which she felt (not unreasonably) unable to extricate herself, and which also rendered her liable to harsh punishment. That alone would understandably provoke in her a multitude of emotional difficulties. The unquestioned evidence in the sentencing proceedings was that the applicant was, and had for some time before sentence, been suffering from a Major Depressive Disorder. (I interpolate that the applicant was arrested on 8 August 2002 and gave birth to her son on 10 March 2003.) Tendered in the proceedings was a thorough and measured psychological report by Ms Watson. It stated the following:
"The offender's clinical presentation is primarily a function of the protracted separation from her child having been removed from her care within hours of his birth, following which she has had intermittent access through the previous two years whilst remanded in custody. The protracted separation during which visitation arrangements have consisted of some two hours weekly fails to facilitate the opportunity for healthy mother/child bonding and attachment, and deserving to determine great anguish and emotional turmoil to the offender. Her growing perception of losing touch and irreparable damage to the relationship with her child is further causing an exacerbation of major depressive disorder.
The prominent distress, worry and guilt in relation to her inability to provide care and nurture to her infant child is a major contributing factor to her recurrent depressed mood, and is in accordance with research suggesting that the incarcerated mother's mental health is substantially attributable to the impact of separation on the mother and child relationship, and the inability to undertake rearing and maternal responsibilities."
62 That is psychological language. In ordinary language this woman has been through purgatory. I do not think that even those who, if I may say so with respect to the language of the learned presiding judge, regard the bringing of drugs into this country with abhorrence, would think that this treatment should, in all justice, have been meted out to this applicant. Nor do I think that giving these factors a major influence in sentencing this applicant is extending any leniency to her: it is merely acknowledging what justice requires. Even if it be thought lenient to reduce the sentence to what I have proposed (which I do not accept), to be lenient in this case is appropriate and, the circumstances being exceptional, will not adversely affect the due administration of the laws protecting us from the importation of drugs. What rather it will do is to show that are cases when humanity can recognise the unequal effects of the law on the individual and will not press punishment to the point of cruelty. I do not accept that applying humane principles is not an integral part of criminal justice, in some way exceptional or secondary and to be noticed in only the extraordinary case. They are fundamental and lie at its very heart, else it loses the very character of justice. Of course, humane considerations apply to victims or potential victims as well as the offender. The balance is not easy to strike. But, in principle, the dictates of humanity are by no means peripheral in the sentencing of offenders, for all that other considerations must also apply. In this case, my profound (but, I hope, respectful) disagreement with the other judges who have considered this applicant's sentence does not suggest that I consider that they have not taken these dictates into account. But I have been unable for myself to reconcile the outcome imposed at first instance and left untouched in this Court with any outcome that gives due weight to them.
63 In this case the mother has been separated from her child because she was in gaol on remand. Her newborn son was taken from her an hour after birth. That child was placed with foster parents. It seems to me an indictment of our notions of justice that the opportunity for mothers to be with their children is available to sentenced women but not to those on remand who are, in the eye of the law, presumed to be innocent. I have no doubt, and it seems accepted, the foster parents are loving, caring, people. But they are not Chinese. They speak English. Their cultural assumptions and conduct are different in significant ways from those of the child's parents and natural community. The way in which the child understands himself, his relationship to his parents, his relationship to the world are significantly different from those which he would have had if he were with a Chinese family, let alone his mother. This has added an additional exquisite refinement to the cruelty in this case, a cruelty which no-one deliberately imposed, a cruelty which has just happened because of the circumstances but which is not one whit less cruel because it is unintentional. In my view, it should have been brought to an end when the applicant was sentenced in the District Court. I cannot agree that the circumstances of the applicant's offence or the just limits on this Court's discretion require that, at this stage, it should not be brought to an end.
64 There is a follow-up report by Ms Watson which has become part of the papers here. It deals with the fact that now at least this applicant and her child can be together in Jacaranda House. That situation is far from ideal. Firstly they are mostly Caucasians who are there, and Caucasian children, and not surprisingly her son sees himself as Caucasian. It is difficult for the applicant, whose English language is limited and whose contact with her baby from such an early age for something like two crucial years was so little and so unsatisfactory. This is what Ms Watson says:
"Although the reunification of Ms Liu and [her infant son], represents maximal benefit for the child's healthy development, the prison environment in general is not a healthy environment for young children. The provision of parental care and nurturance is not an easy task within the constraints of the prison environment, and the development of young children is retarded by the restricted access to varied stimuli in the prison environment. Furthermore, the current assessment indicates Ms Liu is experiencing ongoing psychological disturbance and emotional fragility of a clinical degree [that is to say medically evident] the nature of which places her in a precarious position, and has significant implications for both the child's emotional development and the mother's mental health."
65 I do not doubt that the learned sentencing judge significantly reduced the sentence in light of these circumstances from that which her Honour would otherwise have passed. However, the extenuating objective circumstances and the subjective factors, both very unusual, required a much greater downward adjustment in the sentence which, absent these features, was appropriate. Moreover, this was one of those exceptional cases in which the effect of the applicant's imprisonment on her child should have been taken into account as well as its effects on the applicant.
66 For these reasons, I am respectfully unable to agree with my colleagues that there was no error of analysis or conclusion in the sentence passed on the applicant.
67 It is unnecessary for me to specify what non-parole period would have been appropriate. What I would propose in these circumstances, however, is that leave to appeal should be granted, the appeal be allowed and the sentence quashed. When this matter was heard, I proposed that this Court should substitute an overall sentence of five years imprisonment with a non-parole period that would have expired on that day. Editing this judgment for publication has led me to reconsider that proposal. I have formed the view that the appropriate sentence that should have been passed at first instance was one of a fixed term of two years commencing on 8 August 2003.
68 HOEBEN J: In this matter I accept the circumstances were most unusual and quite sad. These circumstances were, however, fully considered and assessed by her honour, the sentencing judge. Accordingly, I am not persuaded that error has been identified in her Honour's judgment. I agree with Justice McClellan and the orders which he proposes.
69 McCLELLAN CJ at CL: The orders of the Court will be as I have indicated.
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