Regina v Schluenz

SPIGELMAN CJ GROVE J EINFELD AJ

1 SPIGELMAN CJ: I call on Grove J to deliver the first judgment. 2 GROVE J: The appellant was convicted upon an indictment charging that she had attempted to obtain possession of narcotic goods, being more than the trafficable quantity of methylamphetamine, following a trial before Judge Howie (as he then was) and a jury. His Honour sentenced the appellant to a total of seven years imprisonment with a non-parole period of four years. 3 The application seeks reduction of that sentence. In support, certain material concerning the effect of the incarceration of the appellant upon her teenage son has been tendered to the Court, and I will turn to this material but first I will recapitulate the essential circumstances of the offence. 4 These facts were found by the learned sentencing judge and are not the subject of challenge in this Court. On 13 September 1998 a parcel arrived in Australia from the Philippines addressed to Leticia Artiagar, 19 Monterey Street, Monterey through the Federal Express forwarding agency. The documentation included a contact mobile telephone number, 0413 166 285. 5 The package was subjected to a random check by customs officers and there was found a computer hard drive which, upon being dismantled, was found to contain powder analysed as 83.2 grams of pure methylamphetamine. 6 A person named Leticia Artiagar was outside of Australia at this time and did not enter the country until November. The address on the package was that of the appellant. The telephone number related to a service to a mobile phone which the appellant initially told police had been lost, but she later produced it from a lounge chair within which it had been hidden during a police search of her premises. 7 An employee of Federal Express, unaware of the Customs interception, called the number and spoke to the appellant, who identified herself as "Leticia". The appellant telephoned another employee of Federal Express, again masquerading as "Leticia" and gave certain information relevant to the delivery of the package. 8 On 17 September a Federal police officer, assuming the role of a Federal Express employee, delivered the package (from which the drugs had been extracted) to the address where it was received by the appellant. About ten minutes after delivery, the appellant was seen to depart the premises and she was intercepted by police, who found the package in the Saab motor vehicle which she was driving. 9 The appellant gave evidence at trial asserting in substance that she had been duped into receiving the package which she believed contained some medical supply required by a friend. It was noted that after arrest, charge and release to bail, the appellant contacted Federal police and alleged that she was concerned that people were coming to her home in connection with the parcel. Police responded to this and secreted themselves in her premises but nothing of the sort said to have been anticipated in fact transpired. 10 His Honour concluded that the jury had clearly found the appellant's evidence to be dishonest. He expressly found that the appellant was a clever, cunning and devious woman and that the incident just described was an attempt to exculpate herself by manufacturing material which she intended to rely upon at trial. Of course, his Honour correctly did not take this material into account in respect of punishment, but it was relevant to assessing whether weight should be given to character testimonials advanced on her behalf. The appellant had no prior conviction. 11 The appellant was born on 21 December 1956. She was born in the Philippines and arrived here in 1979 to enter a marriage arranged for her by her parents with an older Australian male. The husband was violent and she suffered at his hands. She separated from her husband and obtained Australian citizenship. She came to New South Wales from Queensland in 1985 and met her present husband in 1991. They married in 1997. 12 Her husband is a master mariner and spends little time in Australia, although it has been the practice of the appellant on occasions to meet him in overseas ports, usually in the United States or South Africa, and spend time with him. Her husband supports her and her teenage son financially, but he did not give evidence at trial or in the sentence proceedings. 13 Part of the material tendered today includes an affidavit in which it is said that the appellant has seen her husband only once since her incarceration. He is a German citizen. He called at Emu Plains in October last year. Since then, in June this year, the appellant has been served with documents issued out of the Family Court in which he is seeking a divorce. 14 The learned sentencing judge was unable to form any view of the role played by the appellant in the importation other than that she was to be the recipient of the drug and to commence its dissemination into the community. However, he found that she was substantially involved in an attempt to import methylamphetamine from the Philippines into Australia and, acknowledging the guidance available from Olbrich v The Queen (1999) 199 CLR 270, he assessed her position as "more than a courier but something less than being the person ultimately responsible for the dissemination of the drug to the community". 15 Counsel for the appellant in written submissions expressly indicated that there was no complaint about those findings. 16 It was submitted that the sentence imposed was manifestly excessive. Reference was made to R v Wong and Leung (1999) 48 NSWLR 340 in which this Court promulgated guidelines concerning sentences for couriers and others in the hierarchy of importation of heroin or cocaine. 17 The first observation is that methylamphetamine should be classed as what is described as middle order drug in distinction from heroin and cocaine: R v Bimahendali (1999) 109 A Crim R 355. Low level quantity of the higher order of drugs was defined in Wong and Leung (supra) as between 2 and 200 grams, and it seems to me to be of no assistance to observe as a submission on behalf of the appellant did, that 83.2 grams of pure methylamphetamine was in terms of weight in the lower half of a 2 to 200 gram range. 18 The Court has been assisted, however, by an extensive schedule of decisions of this Court relating to sentences for offences in connection with the importation of methylamphetamine and other mid-range narcotics, most frequently that commonly referred to as Ecstasy. It is not necessary to detail the content of the schedule, but I would express the conclusion that as a matter of range and giving weight to the subjective matters elucidated at trial, I would conclude that the sentence imposed was of a comparatively higher severity, but I would be unpersuaded on that basis alone that this Court should intervene. 19 The appellant argued that there was express error in a remark by his Honour concerning s 16A(2)(p) of the Commonwealth Crimes Act. In the course of his remarks his Honour referred to the requirement that he take into account the effect of the imposition of sentence on members of the offender's family. He observed that this was consistent with the common law situation. In so saying his Honour was correct. (See for example R v Herrera NSWCCA (Unreported 6 June 1997). 20 Complaint is made about his observation that the matter of effect upon family is always a matter taken into account, but only in an exceptional case would such a consideration allow a court to abstain from passing custodial sentence where every other aspect of sentencing required it and the offence is a serious one. 21 For my part, I do not perceive that his Honour has fallen into the error of asserting that s16A(2)(p) is relevant only to a discrimination between custodial and non-custodial sentence. What his Honour said needs to be taken in the context of the whole of what he had to say on the occasion. He had already said that it was a particular concern that there was an absence of persons to look after the teenaged son of the appellant. I would not sustain the argument advanced in this regard. 22 I have already made some reference to the fresh material that was sought to be put before the Court. For my part I would be prepared to look at this material but I should indicate that I have come to the ultimate conclusion that it will not affect the outcome of the proceedings. 23 The material related essentially to the appellant's fifteen-year-old son. As I have said, his situation was not overlooked at the time of sentence, and his Honour expressed great concern that the youth was apparently still attending school but living by himself with little or no support, other than some care at nights from a friend of the appellant. He acknowledged that imprisonment of the appellant would deleteriously affect, in a significant way, the wellbeing and welfare of a child left to fend for itself in the community. He did observe, however, that the appellant apparently had taken no steps to provide for the eventuality of her conviction. 24 Given the material to which I have already referred, it can be concluded that the appellant has no family in Australia other than her son. She has sought the assistance of an organisation called Children of Prisoners to arrange a refuge for him. There are welfare case notes, the entire content of which I need not recite, but there is a notation at least in October last year that at that time the youth had settled down well at Dr Barnado's Kingston House. 25 There have been changes since that time. One significant event appears to have been that the youth had broken his ankle at a railway station and he intermittently was admitted and discharged himself from hospital. The latest information from the fresh material before the Court is in an affidavit which attests that he "no longer lives at the refuge but instead stays at different places, such as his girlfriend's, girlfriend's relatives and friend's places". 26 The appellant's affidavit also attests that her son has been arrested as an accessory to robbery. He has been released on conditional bail and due to appear at Sutherland Children's Court on 21 August. I note that the appellant, however, attests her son has not been in trouble before. 27 The Court has no direct evidence concerning the reference to the girlfriend other than her name and her existence provides scant evidence for assessment of the level of maturity of the youth, although this would seem to be a significant matter when the thrust of argument is that he is in need of care. 28 Pursuant to the present sentence, the appellant is not eligible for consideration for release on parole until March 2004. I would accept as accurate the submission by the appellant's counsel that consideration must be given pursuant to the statute to the effect upon members of the family when setting the period of sentence and also, I apprehend, in specifying the non parole period. 29 Nevertheless, even giving account to the present material, it does not seem to me that anything is shown which is so exceptional as would require the intervention of this Court. Indeed, the needs all would seem to be immediate, but it is not part of the appellant's submission that she should be immediately released as it is clear that such a proposition would in the circumstances be insupportable. 30 The affidavit of the appellant tacitly recognises this situation in its final paragraph which states, "A reduction in my sentence would not only mean that I will be able to look after my son, but also will allow me to properly deal with emotional and physical health concerns". The latter is an omnibus reference to the circumstances that the appellant has been consulting a psychologist about her inability to cope with stress in custody and some physical ailments of hypertension and a non-specific heart-related illness for which she anticipates being referred for consultation. 31 Accordingly, although for present purposes I have looked at the fresh material, it does not persuade me to depart from the view earlier expressed in relation to the submission that the sentence was manifestly excessive. Accordingly, I would propose that leave to appeal be granted but the appeal be dismissed. 32 SPIGELMAN CJ: I agree with the reasons of Grove J. Objection was taken to the admissibility of additional evidence said to be fresh evidence. It is not necessary to finally determine that question. Even if the evidence were admitted it would not make a difference to the result. 33 I agree with the reasons of Grove J and the orders he proposes. 34 EINFELD AJ: I agree with the other members of the Court. 35 SPIGELMAN CJ: The orders are as indicated by Grove J. **********

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