Regina v Naomi Lynne Joan CONSIDINE

Judgment 1EMMETT JA: I agree with RS Hulme AJ. 2PRICE J: I agree with RS Hulme AJ. 3RS HULME AJ: The Director of Public Prosecutions (Cth) appeals against a sentence imposed on 6 September 2012 by McLoughlin SC DCJ on the Respondent in respect of a charge of aiding and abetting the attempted possession of a commercial quantity of a border controlled drug namely cocaine. According to the Agreed Statement of Facts tendered during the sentencing hearing, the pure weight of the cocaine was 3.173 kilograms (something over 1.5 times the minimum commercial quantity), the wholesale value of the cocaine imported was about $1,000,000 and its street value between $2.3 and $2.5 million. 4The maximum period of imprisonment to which the Respondent rendered herself liable is imprisonment for life. The sentence imposed was of imprisonment of 1 year and 8 months commencing on 29 August 2012, his Honour ordering the Respondent's release on 28 February 2013 conditional on her entering into a recognisance. His Honour arrived at the sentence he imposed by adopting a starting point of 2½ years. 5The Notice of Appeal was filed on 5 October 2012 and notified to the Respondent on or about 9 October. The sole ground of appeal is that the sentence is manifestly inadequate. 6The circumstances of the applicant's offending are principally to be found detailed in an Agreed Statement of Facts. In summary they are as follows. In December 2010 and January 2011 one Faridani was involved in organising an importation of cocaine from Canada to Australia, the plan being that the drugs would be concealed in some kitchen items included in a larger shipment. Faridani recruited Elvin Karan to assist by, inter alia, locating a suitable consignee. Karan knew the Respondent's de-facto partner and the Respondent was given the role. The address for the Respondent nominated on the consignment was that of her mother. 7In early January 2011 the consignment arrived. Karan asked the Respondent whether there was a letter for her at her mother's. The Respondent checked, found there was, obtained the letter and gave it to Karan. During the following few days there were a number of meetings between the persons I have named, including the Respondent. Arrangements were made for Toll Dnata a freight service business to become involved. 8On 11 January 2011 while Faridani and the Respondent's partner were parked nearby Karan and the Respondent entered Toll Dnata's premises. The Respondent produced the appropriate documentation and four boxes containing the consignment (by then somewhat changed by the Customs authorities) were loaded into Karan's car and all parties departed. Later that day Faridani and two other associates were arrested in possession of those parts of the consignment which had included the cocaine. 9During the evening of 11 January 2011 the Respondent participated in a number of phone calls to Karan in the course of which she said, inter alia: - "I didn't do it for no reason, I was doing it for the money and whilst two grand isn't nothing man", "I'm waiting for my money that I'm waiting for and it's not coming because everyone's fucking me around saying..., I didn't put my name down to do it...", and "so I knew that everyone was trying to get past it for two grand and that's it, that's the, that was the, that was the deal". 10On 12 January 2011 the Respondent presented herself at the Australian Federal Police's headquarters where she participated in a recorded interview. In the course of that interview the Respondent suggested that when originally asked to be the consignee as she had a "clean ID" she refused, that then her identity and her mother's address had been used without her knowledge and once that happened she had no choice but to participate as she felt scared and intimidated by Faridani. 11To some degree the Respondent maintained the account of having participated in the offence as the result of duress up to and including evidence she gave during the sentencing hearing. However McLoughlin DCJ rejected this evidence saying, "I do not accept that there was the duress to which the offender speaks, and I accept that she became involved in the commission of this offence for money albeit a small amount." 12Other findings of his Honour to which reference should be made are as follows. The Respondent was born in January 1988 and has no prior convictions. She had real prospects of rehabilitation and her plea and assistance were indications of remorse and contrition. Her involvement was towards the bottom of criminal activity when compared to that of Karan and Faridani. 13His Honour also directed considerable attention to the Respondent's subjective circumstances. Her mother was incapable of looking after her and DOCS placed the Respondent with her grandmother when she was 6. Except for a period when she had been kidnapped by her mother when aged 10, leading to court proceedings, the Respondent was brought up by her grandmother until she was 14. At that age the grandmother was killed in an accident and DOCS then required that the Respondent be cared for by with her mother. The pair were homeless for the next 2 years often sleeping in trains to Newcastle and Wollongong. For a period she and her mother then had accommodation in a hostel. The Respondent's mother fell pregnant but then imposed on the Respondent the responsibility of looking after the child. 14At age 19 the Respondent formed a relationship with a partner of her own. She bore 3 children of her own, aged in mid-2012, 4 years, 2 years and 8 months. Shortly before the first child was born her partner was sentenced to 9 months imprisonment for drink driving and soon afterwards the Respondent's mother evicted the Respondent and her child from where they had been living together. Thereafter the Respondent lived variously with her partner's mother, in crisis accommodation and in Housing Department accommodation. With the assistance of his mother the Respondent's partner, who had not been in constant employment, could look after the children. 15His Honour said that the Respondent, who gave evidence before him, presented as somewhat naïve and vulnerable. His Honour accepted that the Respondent suffered from anxiety and low self-esteem and unresolved grief and anger arising from the death of her grandmother and needed counselling. He accepted the opinion of a forensic psychiatrist that:- "Incarceration would no doubt weigh more heavily on Ms Considine by virtue of her emotional vulnerability, previous separations from family members and losses, and the impact of being separated from her three young children. Ms Considine is also likely to experience much hardship in a custodial environment, due to the stresses typically encountered in custodial centres and the separation from her children." 16That incarceration would exacerbate the Respondent's current symptoms was also the opinion of a psychologist that his Honour accepted. 17In March 2012, i.e. shortly after her arrest, the Respondent commenced a Positive Lifestyle Program with the Salvation Army, this being the first time she had ever had counselling. The Salvation Army chaplain recorded that the Respondent had committed herself to the program, been responsive, open and honest. 18In arriving at the sentence he imposed, his Honour allowed the Respondent a discount of some 33 1/3% to reflect her plea of guilty and some assistance, albeit providing no indication of how much of the discount related to these several factors. In the circumstances of the case the discount seems high but before his Honour the Crown had conceded a discount in the order of 25 to 30% was appropriate, a concession from which in this Court the Crown did not seek to resile. 19Mention should be made also of sentences imposed on Faridani and Karan. After allowing a discount of 40% for a plea of guilty and assistance McLoughlin DCJ sentenced Faridani to imprisonment for 7 years and 4 months including a non parole period of 4 years and 10 months. Faridani was aged 27 at the time, he had no prior convictions and was regarded as having had a significant managerial role in the attempted importation. 20After allowing a discount of 25% for his plea, contrition and assistance McLoughlin DCJ sentenced Karan to imprisonment for 3 years and 9 months including a non-parole period of 2 years and 6 months. His Honour accepted that Karan's role was at a lower level than that of Faridani but above that of the Respondent. In R v Karan [2013] NSWCCA 53 this Court took the view that the discount of 25% was manifestly excessive, and that both his Honour's starting point, pre discount, of 7 years and the ultimate sentence were manifestly inadequate and re-sentenced Karan to imprisonment for a non parole period of 6 years including a non parole of period of 4 years. 21The principles which govern the sentencing of those who offend the laws against the importation of drugs have been stated on many occasions and it is unnecessary to repeat them. It is sufficient to mention by way of example R v Nguyen; R v Pham [2010] NSWCCA 238 at [72]. 22The principles to be applied in cases where it is contended that a sentence is manifestly inadequate are also well known. Interference by this Court is not justified simply because the sentence imposed differs from that which the judges of this Court would have imposed or because it differs markedly from sentences imposed in other cases. "Intervention is warranted only where the difference is such that , in all the circumstances, the appellate court concludes that there must have been some misapplication of principle" - Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 605 [58]. 23Though of course not determinative in any particular case, some guidance as to an appropriate level of sentences for offenders is provided by the summary set forth in R v Wong & Leung [1999] NSWCCA 420; (1999) NSWLR 340 at [142] and, more significantly, by the cases that led to that summary - see Tyler v R [2007] 173 A Crim R 458 at [136]. So also is an earlier and in some respects more detailed review I had conducted in R v Spiteri (1999) NSWCCA 3. As Simpson J pointed out in Tyler v R, also necessary to be borne in mind is the repeal of s 16G of the Crimes Act 1914 (Cth) which previously required a court sentencing Commonwealth offenders to take into account (and thereby moderate the sentence) by reason of the absence of remissions available in NSW. 24I am of course conscious of the criticism made by the High Court in Wong v R (2001) 207 CLR 584 of giving too much weight to the quantity of drugs involved in an offence, particularly where an offender may not have known of the quantity. However it does not seem to me that an offender, such as the Respondent, who seems to have been content to lend her assistance to whatever quantity and type of drugs her co-offenders chose to import (limited perhaps only by the method of importation), is entitled to much leniency on the ground of her ignorance. 25In R v Wong, at [42] the Chief Justice concluded that the sentences he considered suggested that a pattern of periods of imprisonment of 8 to 12 years for couriers and other persons low in the hierarchy of illegal drug importing organisations. My research in R v Spiteri suggested the pattern was higher. 26However, grouping or characterisation of offenders has its risks. It is always important to reflect on what it was a particular offender did. The Respondent's role in the instant case was significantly less than that of a run of the mill courier and of much lesser duration than in the case of the vast bulk of offenders. It would not be appropriate to simply apply the range of sentences mentioned in R v Wong to her. 27On the other hand, the Respondent's role was an essential one. The nature of the importation required that there be a consignee. By agreeing to fulfil that role the Respondent allowed others to remove themselves some (though as things turned out, not a great) distance from the importation. The importance of such persons at the lower level of involvement has long been recognised by the courts - see e.g. Le Cerf (1976) 8 ALR 349 at 351 where it was said: "It is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were not middlemen and underlings, there would be no top men in an organisation. If an organisation is starved of recruits it must collapse. ... The simple truth, that a man who participates in such an organisation at any level - I repeat at any level - must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organised crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive." 28The approach there enunciated has received endorsement in this Court on numerous occasions - see e.g. the cases cited in R v Markarian [2003] NSWCCA 8 at [26]. 29The Respondent's criminality was deliberately undertaken for reward. It was designed to assist in the commission of a serious crime and calculated to assist in the commission of, having regard to the quantity involved, a very serious one. 30And while the Respondent's subjective circumstances can fairly be regarded as extreme, the need in this area to discourage others who might be tempted by the prospect of easy money leads to the view that the sentence under appeal was manifestly inadequate. The undiscounted starting point of the sentence should have been at least 3 years 6 months, resulting in a term of 2 years 4 months imprisonment, with 14 months to be served in custody prior to recognizance release. 31This court in the exercise of its jurisdiction under s 5D Criminal Appeal Act 1912 has a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. The primary purpose of Crown appeals against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 465-466 [1]-[2]. The exercise of the residual discretion is not confined to double jeopardy: R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7. 32The Court may receive evidence of what has happened between the time of sentence and the hearing of the appeal in deciding whether or not the discretion should be exercised: R v Deng [2007] NSWCCA 216, (2007) 176 A Crim R 1. An affidavit of the respondent was read. In that affidavit the Respondent deposed to being, in consequence of the Crown appeal, deprived to a greater or lesser degree of a number of usual activities including courses available in prison and to increasing depression in consequence of the uncertainty the appeal created. The Respondent said also that her incarceration had weakened to an appreciable degree her youngest child's bond to her. 33Whilst serving the six months of her sentence in custody, the respondent took positive steps towards rehabilitation. Released on 28 February 2013, she has been reunited with her children and partner. She has focussed her attention on finding employment - she has never previously been employed - establishing a regular routine for her children, and recommencing sessions with her psychologist. The respondent has applied for a traineeship in childcare and has obtained voluntary work at a childcare centre. She participates in a Positive Parenting Class, takes her son to school each day, and helps him with his home reading. 34In my view, to return the respondent to custody in such circumstances would do nothing to assist the Respondent towards rehabilitation. The Court should exercise its discretion not to re-sentence and should dismiss the Crown appeal.