Regina v Paliwala

Court of Criminal Appeal (NSW)|2005-06-09|Before: Studdert J, James J, Howie J

CITATION: Regina v Paliwala [2005] NSWCCA 221

JUDGMENT OF: Studdert J at 49; James J at 2; Howie J at 50

DECISION: Leave to appeal granted - appeal against sentence dismissed

Crimes Act (Cth) LEGISLATION CITED: Customs Act (Cth)

The Queen v Olbrich (1999) 199 CLR 270 R v Bezan (2004) 147 A Crim R 430 R v Ferrer-Esis (1991) 55 A Crim R 231 CASES CITED: R v Taru [2002] NSWCCA 391 R v Wong; R v Leung (1999) 48 NSWLR 340 Weininger v The Queen (2003) 212 CLR 629 Wong v The Queen (2001) 207 CLR 584

PARTIES: REGINA v Adam Amilear Hasan Blaxter PALIWALA

G Walsh - Respondent COUNSEL: I McClintock SC - Applicant

Commonweaalth Director of Public Prosecutions - Respondent SOLICITORS: Legal Aid Commission of NSW - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/502

STUDDERT J JAMES J HOWIE J

THURSDAY 9 JUNE 2005 REGINA v ADAM AMILCAR HASAN BLAXTER-PALIWALA Judgment

1 STUDDERT J: The Court is in a position to give judgment now and I ask James J to give the first judgment. 2 JAMES J: Adam Amilcar Hasan Blaxter-Paliwala has applied for leave to appeal against a sentence imposed on him in the District Court on 26 August 2004 by her Honour Judge Latham, as her Honour then was, for an offence of importing prohibited imports, an offence under s233B (1)(b) of the Customs Act (Cth), to which the applicant had pleaded guilty. The prohibited imports consisted of cocaine containing 384.9 grams of pure cocaine. 3 Her Honour imposed a sentence of imprisonment of nine years, commencing on 14 February 2004, the date from which the applicant had been in custody, and made a recognisance release order, that the applicant be released on recognisance on 13 August 2009 after serving five and a half years. 4 The quantity of cocaine greatly exceeded the trafficable quantity applicable to cocaine, which is two grams, and under s235 of the Customs Act the maximum penalty for the offence was imprisonment for 25 years and/or a fine of $500,000. 5 The facts of the offence were briefly summarised by her Honour in her remarks on sentence, in a way which has not been the subject of any criticism on this application. Her Honour said:- "The prisoner was, prior to arriving in Australia on a student visa in 1999, a resident of the United Kingdom. In early 2004 he was residing in Rozelle in shared accommodation, undertaking his final year of a PhD in linguistics at Sydney University. He left Australia on 29 January 2004 to travel to Los Angeles. He returned on 14 February 2004 travelling with a co-offender, one Benjamin James Nicholson, aged 23. He was carrying a khaki green backpack and a large green and purple snowboard bag. The snowboard bag and the board were examined and x-rayed, at which time the prisoner had a conversation with a customs officer, wherein he claimed to have been snowboarding overseas with his friend. When queried about the absence of boots, the prisoner stated they had been stolen. Upon searching the backpack the officer located a small package containing a brown substance. The prisoner said it was a lolly. A further 20 similar packages were found at the bottom of the backpack. When asked about these the prisoner replied, 'I think it's cocaine. I bought it from some guy in L.A. My life is over, isn't it'? The prisoner was later conveyed to St George Hospital where a CT scan revealed a number of foreign objects in the prisoner's body. They were later retrieved and found to contain cocaine. A total of 100 pellets were seized by the AFP including the 21 pellets found in the prisoner's luggage. Those 21 pellets had, according to the prisoner, been vomited up during the flight from Los Angeles and he had placed them in his backpack. The prisoner was discharged from hospital on 16 February, taken to the Sydney Police Centre where he declined to participate in an interview and was charged. He has remained in custody since 14 February this year". 6 Further objective facts found by her Honour in her remarks on sentence included that the cocaine had a value of between $70,000 and $154,000; that the applicant had travelled to the United States on 29 January 2004 for the specific purpose of obtaining drugs for importation into Australia; and that the applicant was to be paid $20,000 for his part in the importation. 7 In her remarks on sentence, her Honour considered the question of whether the applicant should be sentenced as having been a courier or as having played a higher role in the importation of the cocaine. In accordance with the decision of the High Court in The Queen v Olbrich (1999) 199 CLR 270, her Honour held that the onus was on the applicant to establish on the balance of probabilities that he had been merely a courier. 8 There was no evidence from the applicant himself on this issue, because the applicant after his arrest had declined to be interviewed by the Federal Police and the applicant had not given any evidence in the proceedings on sentence. Her Honour found, in favour of the applicant, that she should infer that the applicant was "not a prime mover in the importation and there was in all likelihood another person who financed the enterprise and organised the supply of the cocaine." 9 Some of the subjective circumstances of the applicant are described in a pre-sentence report and other documents which were admitted into evidence in the proceedings on sentence and in evidence that was given in the proceedings on sentence by the applicant's father. The applicant was born on 30 December 1975. He was born in Papua New Guinea and is the child of two university professors. He went to England with his family when he was three years old. He completed his schooling in the United Kingdom in 1994 with very high grades. He attended Cambridge University, graduating with a Bachelor of Arts in 1997. 10 In 1999 the applicant became a student at Sydney University as a PhD candidate in Linguistics. In the year 2000 he was awarded a scholarship but this scholarship ended in December 2003, when the applicant was still a year or more away from completing his doctorate. The cessation of the scholarship precipitated a financial crisis for the applicant. His only income was from some part-time work as a para-legal. Furthermore, a serious breakdown had occurred in the relationship between the applicant and the academic who was supervising his studies towards the doctorate. 11 The applicant relied on the following grounds of appeal: "1. The sentencing judge erred by failing to give sufficient weight to the prisoner's mental state at the time of the offence. 2. The sentencing judge erred in failing to give adequate weight to the evidence relevant to the prisoner's character. 3. The sentencing judge erred in determining that an appropriate range for an importation for the present offence (prior to the repeal of s 16G) including discounts for co-operation, was a head sentence of six to nine years. 4. The sentencing judge erred in adjusting the head sentence as a result of the repeal of s 16G of the Crimes Act 1900 (C'th). 5. In all the circumstances the sentence was manifestly excessive". 12 The grounds of appeal are interrelated and although I will first consider each of the grounds separately, it will not be possible finally to determine whether some of the grounds should be upheld or rejected, without taking into account some of the other grounds.

The sentencing Judge erred by failing to give sufficient weight to the prisoner's mental state at the time of the offence . 13 As I have previously noted, the applicant declined to be interviewed by police after he was arrested and the applicant did not give evidence in the proceedings on sentence. However, a report by Dr Stephen Allnutt, a forensic psychiatrist, who had seen the applicant in prison on 24 June 2004, was admitted into evidence. In this report Dr Allnutt expressed the opinion that in the past the applicant had suffered episodes of depression such that he could be diagnosed as having had a major depressive disorder, for which he had required two periods of psychotherapy, one in England and one in Sydney. According to Dr Allnutt's report, the applicant also described to Dr Allnutt a long history of anxiety about everyday life situations, such as relationships, himself and his performance, and Dr Allnutt considered that the applicant could be diagnosed as suffering from a second disorder, a generalised anxiety disorder. 14 Under the heading in his report, "Mental State at the Material Time that the Alleged Offence Occurred", Dr Allnutt said: "Your client had a pre-existing vulnerability to recurrent depressive episodes as manifested by prior episodes of depression. He also had a pre-existing generalised anxiety disorder that likely had its onset in adolescence. In the time leading up to the alleged offence he was experiencing a number of stressors. He was in a conflicted relationship with his friends, he had just established a relationship with his girlfriend Phoebe and was anxious for that to progress, he had recently lost his laptop and was concerned about his ability to meet his academic obligations, he felt under pressure to meet his PhD obligations, he did not feel supported by his supervisor and he had lost the financial means to pursue his PhD further. He could not approach his father, given his father's circumstances, for financial support. In the context of these stressors he developed a recurrence of symptoms of a depressive disorder with associated anxiety that had its onset sometime in September 2003 and continued to February 2004. He began to develop panic attacks in the context of this episode of depression which likely aggravated his generalised anxiety disorder. With heightened feelings of anxiety he would be prone to exaggerated concern about the consequences of this action. Finding himself in difficult circumstances, depressed and over anxious about his situation, he was approached by an acquaintance with an opportunity to make some money by importing drugs. Having initially agreed, he decided to decline. In declining however he was confronted with the possibility of harm to himself and his family. He was thus caught in a conflict of choices, the consequences of which would have been exaggerated for him by his anxious disposition. Consistent with his generalised anxiety disorder, he became ruminative and highly anxious about the potential consequences both to himself, his friends and his family. He concluded that he had committed himself to this course of action and could not go back without suffering those consequences. Your client was ambivalent; but persisted because of an exaggerated fear of the consequences to himself and others. His depressive and anxiety symptoms would have impacted on his judgment. On balance, it is my view that that, in the absence of his personal circumstances and symptoms of depressive and anxiety disorder, he would have had better capacity to rationalise his situation and remove himself from involvement". 15 In her remarks on sentence, Judge Latham referred to some of the parts of Dr Allnutt's report which I have summarised or quoted and her Honour said, "I accept the evidence constituted by the contents of that report." In her remarks on sentence her Honour said that a case had been put on behalf of the applicant in the proceedings on sentence that "his monumental lapse in judgement in becoming involved in the importation was to be explained by his financial and emotional vulnerability at the time he was recruited." Her Honour commented that it was difficult to believe that a young man of such intelligence and ability as the applicant could have been tempted to join such a criminal enterprise, let alone remain a party to the enterprise over a period of weeks, during which a number of opportunities for the applicant to withdraw from the enterprise must have presented themselves. 16 Her Honour found that the applicant had never been subjected to threats, although she found that he had felt intimidated by the persons who had recruited him. Her Honour concluded that what she described as the "applicant's fragile psychological state" could provide an answer to the question she had previously posed in her remarks on sentence, which I infer was the question of how the applicant could have been tempted to have become, and to have remained, a member of the criminal enterprise but it could not excuse or justify the importation of narcotics for financial reward. 17 On this application it was submitted on behalf of the applicant that his mental condition at the time of committing the offence was relevant and that the sentencing judge, notwithstanding that she had referred to Dr Allnutt's report, had paid insufficient regard to it and, in particular, to Dr Allnutt's opinion that the applicant's depression and anxiety would have impacted on his capacity to make judgements. 18 It was further submitted that the sentence of nine years imposed on the applicant was at the top of the range of sentences of six to nine years stated as a guideline in R v Wong; R v Leung (1999) 48 NSWLR 340 at 366 (142), as applying to couriers of mid level traffickable quantities of drugs, yet the applicant's mental condition at the time of committing the offence should have been regarded as reducing his culpability and should have resulted in the applicant receiving a sentence below the top of the range. 19 I will not at this stage of my judgment finally determine this ground of appeal and I will return to it later in this judgment.

The sentencing Judge erred in failing to give adequate weight to the evidence relevant to the applicant's character . 20 A very large number of testimonials to the applicant's good character were placed before her Honour. The testimonials were given by academics in Australia and overseas in various disciplines, by members of the applicant's immediate family and other relatives of the applicant and by friends or acquaintances of the applicant in Australia and the United Kingdom. In her remarks on sentence her Honour said that the testimonials attested to the shock and dismay produced by the applicant's offence in members of his family, his friends and his associates. In her remarks on sentence her Honour said "his prior good character is not to be disregarded, but it does little to assist the prisoner, given the need of those who would organise the importation of narcotics to employ persons with no criminal convictions as couriers". 21 On this application it was submitted by counsel for the applicant that the testimonials showed, not merely the previous good character of the applicant, but showed that "factors unusual in the normally rational moral conduct of the applicant had been present and active at the time he committed the offence;" that is, the testimonials were sought to be linked to the first ground of appeal. 22 It was further submitted that the way in which the sentencing judge had dealt with the applicant was inconsistent with s16A (2) (m) of the Crimes Act, which requires a sentencing court to take into account the offender's character, and with what was said by Gleeson CJ, McHugh, Gummow and Hayne JJ in their joint judgment in Weininger v The Queen (2003) 212 CLR 629 at 635 (16), where their Honours said that sentencing any federal offender must begin with a consideration of the applicable legislation (in that case, as in this, the Crimes Act) and that "among the matters which the court must take into account, if relevant and known to the court, are 'the character … of the person' (s 16A(2)(m))." 23 It was submitted that, insofar as the sentencing judge may have relied on what was said by Hunt J in R v Ferrer-Esis (1991) 55 A Crim R 231 at 238, what his Honour said should be regarded as inconsistent with s16A(2)(m) of the Crimes Act and with what the majority of the High Court had said at 635(16) of the joint judgment in Weininger. 24 I do not consider that the general provision in section s16A(2)(m) of the Crimes Act or what was said at 635(16) of Weininger, which was simply a reiteration of part of s16A(2)(m), should be regarded as affecting the validity of what Hunt J said in Ferrer-Esis. In Ferrer-Esis Hunt J said at 238: "The judge did take into account the circumstance that the respondent had no previous convictions. That was an error. Couriers are usually selected because they have no criminal records and this court has on many occasions said that the usually leniency extended to first offenders does not ordinarily benefit couriers ." 25 Part 1B of the Commonwealth Crimes Act, which includes section 16A, was in force at the time Ferrrer-Esis was decided and was referred to by Hunt J in his judgment. In Weininger the issue that had arisen was an issue which does not arise in the present case, of whether, despite the fact that the offender had no previous convictions, the sentencing judge was entitled to decline to treat him as not having previously offended, because of an admission made by the offender that he had been involved in a continuing drug importation syndicate. 26 I would reject this ground of appeal as an independent ground of appeal but the applicant's previous good character is relevant to the fifth ground of appeal.

The sentencing judge erred in determining that an appropriate range for an importation for the present offence (prior to the repeal of s16G of the Crimes Act), including discounts for co-operation, was a head sentence of 6 to 9 years .

This ground of appeal was based on a passage in her Honour's remarks on sentence, where her Honour said:- "As the authorities make clear the range of sentences imposed and confirmed for the importation of cocaine in the order of 400 grams by those occupying inferior positions in the drug hierarchy, including discounts for assistance, guilty pleas, and Crown appeals, prior to the repeal of s 16G of the Crimes Act lay between six and nine years. See Moreno NSWCCA Unrep 4 November 1994, Jelks NSWCCA Unrep 1 December 1995, Stenovich NSWCCA Unrep 27 November 1996, and Wong and Leung 1999 NSWCCA 420". 27 It has been accepted by this court that, despite the criticism by the High Court of this court's decision in R v Wong; R v Leung on the successful appeal to the High Court (Wong v The Queen (2001) 207 CLR 584), the ranges of sentences stated by the Court of Criminal Appeal in Wong have a continuing relevance as they were based primarily on pre-existing patterns of sentencing for drug offences - see R v Taru [2002] NSWCCA 391 and R v Bezan (2004) 147 A Crim R 430. 28 On this application it was accepted that in his judgment in Wong the Chief Justice said that a guideline, determined primarily on the basis of existing sentencing patterns, for couriers and persons low in the hierarchy of drug importing organizations, for an importation of a midlevel traffickable quantity of a drug, would be a sentence of 6 to 9 years. 29 However, it was submitted by counsel for the applicant that the sentencing judge had erred, in including in her statement of the range of sentences the words "including discounts for assistance." 30 It was contended that, by including those words in her statement of the range of sentences, her Honour was to be taken as having formed the view that offenders who received a discount for assistance provided by them, and particularly offenders who received a significant discount for assistance provided by them, should still receive sentences within the range of six to nine years, even if at the lower end of that range; so that the lower end of the range would be reserved for offenders who were entitled to receive a significant discount for assistance and that, consequently, the applicant, as an offender who had not provided any assistance, should be sentenced to a sentence at or towards the top of the range. 31 It is correct that in setting the range of six to nine years as a guideline for sentences the Chief Justice did not intend that offenders who had provided a substantial degree of assistance should necessarily receive a sentence within the range. In par 141 of his judgment in Wong (that is the paragraph immediately preceding par 142) the Chief Justice said that it would frequently be the case that a substantial degree of assistance would justify a sentence below the range he was about to announce. 32 Elsewhere in his judgment (at par 83) the Chief Justice said that in setting the guideline, based as it was on existing sentencing patterns (that is, previous sentencing decisions), previous cases in which a significant discount had been given for assistance had been disregarded. 33 However, I am not persuaded that the inclusion of the words "including discounts for assistance" in the sentencing judge's statement of the range of six to nine years shows that the sentencing judge held the erroneous view that an offender who had provided substantial assistance meriting a significant discount should still necessarily receive a sentence of at least six years or that the lower end of the range of six to nine years should be reserved for offenders who had provided assistance meriting a significant discount. 34 I would reject this ground of appeal.

The sentencing judge erred in adjusting the head sentence as a result of the repeal of s16G of the Crimes Act. 35 This ground of appeal was based on part of the sentencing judge's remarks on sentence in which, after referring to the range of sentences stated in Wong, her Honour said:- "However that range arose in a context where s 16G required an adjustment to be made, albeit not mathematically prescribed, and it is no longer permissible to make allowance for the absence of remissions. See R v Mas Rivadavia and El Akkaoui and Aksu [2004] NSWCCA 284". 36 It was submitted by counsel for the applicant that it could be inferred that her Honour had increased the sentence she would otherwise have imposed, because of the repeal of s16G. 37 I do not consider that this ground of appeal should be upheld. 38 I accept that it should be inferred, as counsel submitted, from what her Honour said in her remarks on sentence that she considered that the range of sentences stated in Wong had become less appropriate since the repeal of section 16G and that the range of sentences for the same class of offence would be likely to be higher after the repeal of section 16G. In my opinion, her Honour was not in error in forming such a view. 39 While there has been some disagreement about some aspects of the effect of the repeal of 16G on sentences for Commonwealth offences, there has been general agreement in decisions of this court that the repeal of s16G is likely to result in an increase in sentences, as compared with sentences imposed before the repeal of the section. 40 In Bezan Wood CJ at CL said at paragraph 18: "The effect of the decisions in Studenikin , Dujeu and Mas Rivadavia is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914, and the relevant objectives of sentencing, without giving a s 16G discount". 41 There is likely to be an increase in sentencing patterns as a result of the repeal of s16G for the simple reason that, while s16G was in force, a sentencing court in New South Wales was obliged to adjust downwards the sentence it would otherwise have imposed for a Commonwealth offence in order to take into account the absence of remissions in this State, whereas, since the repeal of section 16G, a sentencing court is no longer directed, or authorised, to make such a downwards adjustment to what it considers to be the appropriate sentence. As a result of the repeal of section 16G, the range of sentences for couriers of a midlevel traffickable quantity of drugs will be higher than six to nine years, although sentences should not be arrived at by applying any specific multiplier.

In all the circumstances the sentence was manifestly excessive . 42 It was submitted by counsel for the applicant that the applicant's commission of the offence was to be explained by the intersection of a number of significant stressors in his personal and academic life and his reaction to those stressors in the context of the applicant having two distinct, but related, mental disorders. It was pointed out that the quantity of the drug was below half the upper limit of the traffickable quantity applicable to cocaine. It was submitted that the offence was out of character for the applicant. It was submitted that significant weight should have been given in the sentencing of the applicant to the applicant's mental condition at the time of the commission of the offence. The applicant's favourable subjective circumstances included an early plea of guilty, contrition and good prospects of rehabilitation. 43 I have earlier set out the objective facts of the offences as found by her Honour and the subjective circumstances of the applicant. 44 As was submitted by the Crown, in assessing the objective seriousness of the offence committed by the applicant account must be taken of the amount of the drug; the value of the drug; the method of importing the drug which was used by the applicant of deliberately concealing the drug internally, making detection more difficult; that the applicant had travelled to the United States for the specific purpose of participating in the importation of drugs; that he had remained a party to the criminal enterprise for a period exceeding two weeks; that at Sydney Airport he had told a number of lies to the authorities with the obvious intention of concealing the commission of the offence; and that he had entered into the offence for the financial motive of obtaining payment of $20,000. 45 As regards the applicant's mental condition at the time of the commission of the offence, I have already drawn attention to the fact that the applicant did not himself give evidence in the proceedings on sentence. In those circumstances the sentencing judge was entitled to give less weight to the opinions of the psychiatrist, which were largely based on a history given to the psychiatrist by the applicant, which was not established by evidence from the applicant himself in the proceedings on sentence, on which the applicant could have been subjected to cross-examination by the Crown. 46 As I have already indicated, the sentence was imposed after the repeal of section 16G of the Crimes Act and after the repeal of s16G of the Crimes Act the sentence imposed on the applicant is no longer to be regarded as being at the top of the range of sentences for the kind of offence committed by the applicant. 47 This ground of appeal cannot be allowed unless I was persuaded that the sentence imposed by her Honour fell outside the upper limit of a proper exercise of her Honour's sentencing discretion. I am not so persuaded. 48 Although I would grant leave to appeal, I would dismiss the appeal against sentence. 49 STUDDERT J: I agree. 50 HOWIE J: I agree with the orders proposed by Mr Justice James, however I wish to make a brief comment about the first ground of appeal in addition to what his Honour has said about it. 51 This seems to me to be the quintessential case where decisions of this court concerning the weight, or lack of weight, to be attributed to an account of the facts and circumstances of an offence given by the offender to a psychiatrist or a probation officer, but not given in evidence, should be applied. 52 A significant consideration in determining the appropriate sentence to be imposed upon the serious criminal conduct of the applicant was the effect of his mental state upon him during the course of his criminal enterprise. In particular, an important consideration in an assessment of the applicant's criminality was the fact that he had, after deciding to embark on a course of importing cocaine, travelled to the United States and stayed there for a period of about two weeks in order to bring the drug into this country. 53 Her Honour was troubled by the fact that, despite the applicant's previous good character, he should embark upon and then continue in such serious criminal activity over a not insignificant period of time. It was in relation to this matter that the psychiatric evidence had particular significance, if it were accepted. 54 The applicant gave the psychiatrist an account that included the fact that, after agreeing to embark on the importation of drugs, he had second thoughts about it but felt he had no recourse but to continue because of his fears of retribution to himself, his friends and his family if he did not continue in the enterprise. 55 The psychiatric report contains a passage in which the psychiatrist referred to both this account and his opinion as to the mental state of the applicant at the time, in a way which, if accepted, would markedly mitigate the applicant's criminal activity. The psychiatrist concluded that, in respect of the continuing involvement of the applicant in the enterprise: "His depressive and anxiety symptoms would have impacted on his judgement. On balance, it is my view that in the absence of his personal circumstances and symptoms [of] depressive and anxiety disorder, he would have had [a] better capacity to rationalise his situation and remove himself from involvement" 56 In my opinion there was no error in the sentencing judge rejecting this opinion in the absence of evidence from the applicant, or otherwise, to support the account given to the psychiatrist. Arguably, in the absence of any capacity of the Crown to test that account or for her Honour to make an assessment of the reliability of the applicant by hearing him give evidence, her Honour would have been in error if she had acted upon that account. 57 It was open to the Judge to accept, as she appears to have done, that the applicant's mental state at the time made him more vulnerable to the inducements offered to embark upon the importation than otherwise might have been the case had the circumstances and his mental condition been otherwise. But her Honour was also entitled to find that his mental state had no more impact upon his offending than this. 58 However, in light of the nature of the criminal enterprise in which he was engaged and the actual conduct of the applicant in bringing a substantial amount of cocaine into the country, albeit as a courier for reward, her Honour was justified in viewing the offence as a serious one and concluding that general deterrence was still a significant aspect of punishment to be reflected in the sentence to be imposed, notwithstanding the applicant's psychiatric disturbance and his otherwise good character. 59 Therefore, I agree with the orders proposed by Justice James. 60 STUDDERT J: The orders of the court are those proposed by Justice James.

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Cases Cited (6)