94 HIDDEN J: This is an appeal by the Crown against the asserted inadequacy of a sentence imposed upon the respondent in respect of a charge of importing an amount of cocaine in excess of the commercial quantity: an offence under s233B(1)(b) of the Customs Act 1901 carrying a maximum sentence of life imprisonment. The respondent was found guilty after a trial in the District Court before Shadbolt DCJ and a jury, and was sentenced to imprisonment for 14 years with a non-parole period of 8 years.
Facts
95 The respondent, an American citizen, despatched a horse carriage and ramp from Nicaragua to Australia to be delivered to the address of a friend of his at Londonderry, west of Sydney. The items arrived at Sydney on 22 April 1996. An inspection by Customs officers located 12 packages containing cocaine secreted in the ramp. The substance in the packages was of a bulk weight of just under 12 kilograms, yielding 8.3 kilograms of pure cocaine. The commercial quantity for that drug is 2 kilograms. Officers of the Australian Federal Police replaced most of the drug with plaster of Paris and allowed the goods to proceed to the transporter's premises at Prospect.
96 The respondent arrived in Australia on 11 May 1996. A few days later he attended the transporter's premises and arranged for delivery of the goods to the Londonderry address. Some weeks later he arranged for the transfer of the ramp to a shed at South Wentworthville. He was arrested on 14 June 1996 and made no admissions.
97 At trial the respondent gave an elaborate and improbable account of his involvement with the carriage and ramp, and it is unnecessary to recount it in detail. Its effect was that he had been persuaded by a man in Nicaragua to consign these items to Australia for an apparently legitimate purpose, but that man must have duped him by concealing cocaine in the ramp without his knowledge. His Honour described the jury's rejection of this story as "hardly surprising".
98 His Honour characterised the respondent's criminality in this way:
99 As far as I can ascertain, the prisoner was not driven to this crime by need, association or duress. No mental factors acted to drive him to it. It required for its commission cunning, time and planning. It was entirely wilful and utterly without mitigation. It was done solely for the money; a mere criminal commercial enterprise. As far as can be ascertained, he was no mere courier. He dispatched the goods in the container. He eventually met the goods when they had been delivered to premises outside Sydney and he, no doubt, was to pass it on when the coast was clear. If he was not the sole financier, he certainly was some sort of partner in the enterprise and as such more culpable than those who merely act as mules to bring drugs to this country.
100 His Honour added, "He has shown no contrition and has put the State to a lengthy and expensive trial."
Subjective case
101 The respondent was aged 47 at the time of the offence and is now 49. He was born in Malta, one of a large family. The family migrated to Australia when he was five years old. It would seem that he had a stable upbringing. When he was fourteen the family moved to the United States, where he completed his education. He qualified as a textile designer and worked successfully for many years in that calling, and also as a sculptor. He is a single man with no children.
102 The respondent has no prior convictions. Character evidence strongly favourable to him was given by his brother and sister-in-law who live in Sydney. A report of Dr Bruce Westmore, forensic psychiatrist, found no evidence of mental illness or personality disorder and, as his Honour observed, provided no explanation for his criminal conduct.
The Appeal
103 For the Crown, the appeal was argued by the Commonwealth Director of Public Prosecutions, Mr Martin QC, leading Mr Mayne. He submitted that both the head sentence and the non-parole period were manifestly inadequate. He provided three schedules of sentences in other cases which, he submitted, might provide some guidance.
104 The first schedule contained ten cases, either in this Court or the District Court, involving the importation of cocaine in quantities ranging from 2 to 7 kilograms. The offenders were couriers, most of whom had pleaded guilty. Head sentences ranged from 7 to 12 years with non-parole periods of 4 to 8 years.
105 The second schedule contained eight cases, again in this Court and the District Court, involving the importation of heroin in quantities also ranging from 2 to 7 kilograms. (The commercial quantity for heroin is 1.5 kilograms and this Court has held that offences involving cocaine should not be treated more leniently than those involving heroin.) In all cases the offenders were couriers who had pleaded guilty. Here head sentences ranged from 5½ to 12 years with non-parole periods, again, from 4 to 8 years. In both schedules the lower sentences, for the most part, had been passed upon persons who had provided assistance to the authorities.
106 The third schedule contained only four cases, each of them decisions of this Court, involving principals in the importation of cocaine or heroin in quantities ranging from 2 to 10 kilograms. They are Ong & Chau (unreported, 20 December 1996), Kissner (1993) 69 A Crim R 83, Pereira (1991) 57 A Crim R 46, and Lim (unreported, 26 June 1996). In the first three cases, head sentences ranged between 12 and 13 years and non-parole periods between 8 and 9 years. In Lim , this Court affirmed a sentence of 18 years with a non-parole period of 13½ years, but that was a particularly serious case involving two separate importations together with firearms offences. I put it aside as of no relevance to the decision in this case.
107 Mr Byrne SC, for the respondent, produced Judicial Commission sentencing statistics in respect of the importation of commercial quantities of cocaine, from which it appears that a head sentence of 14 years is at the top of the recorded range and a non-parole period of 8 years is close to it. The Director supplemented this information with similar sentencing figures in relation to the importation of commercial quantities of heroin. Not surprisingly, they are based upon a larger sample. Those figures in respect of all offenders show that a head sentence of 14 years is high in the range, but by no means at the top of it, and a non-parole period of 8 years is towards the middle of the range. As one would expect, both the 14 year head sentence and the 8 year non-parole period sit somewhat higher in the scale for offenders who have pleaded guilty, and somewhat lower for those who have not.
108 On a number of occasions this Court has expressed its appreciation of the Judicial Commission statistics, while acknowledging their obvious limitations. The figures to which I have referred are for offences involving commercial quantities of cocaine and heroin generally. They disclose neither the quantity involved in each case nor the role of the offender in the importation. The Court is also assisted by schedules of comparable cases, such as those provided by the Director. However, it need hardly be repeated that information of this kind provides no more than a guide, and in no way detracts from the uniqueness of each sentencing exercise.
109 After the hearing, the Director supplied to us further schedules of cases in which head sentences of more than 14 years and non-parole periods of more than 8 years had been set for offences involving heroin, some of which were not contained in the Judicial Commission statistics. Most are decisions of this Court, but the schedules included sentences at first instance in the Supreme Court and the District Court. The role of all the offenders was that of a principal, or something close to it, acting for profit. We were also referred to a case involving cocaine which apparently had escaped the statistician's attention: R v Lara-Gomez (CCA, unreported, 24 April 1996) in which the Court declined to interfere with a sentence of 18 years with a non-parole period of 13 years, where the quantity involved was a staggering 77 kilograms. In view of that quantity, the case is of no relevance here. The same can be said of most of the heroin cases, which also involved very large amounts (38 to 69 kilograms).
110 However, I have given close attention to those cases involving smaller quantities of heroin, in most cases less than the quantity of cocaine in the present case. A list of those cases, with a summary of their salient features, is attached to this judgment. An examination of them soon establishes that they can be distinguished from the present case on one or more of several bases. Some involved multiple offences. In some, the offenders were engaged in the distribution of imported heroin in this country (and were dealt with for offences under the Drug Misuse and Trafficking Act 1985). Some offenders had significant criminal records. Insofar as these cases might bear upon the question of the appropriate non-parole period, it must be remembered that in four of them the offenders were dealt with by the imposition of minimum and additional terms under the Sentencing Act 1989, rather than under Pt 1B of the Crimes Act 1914 (Cth).
111 The Director's submission was that the sentence as a whole fails to recognise the quantity of cocaine involved, the respondent's role in its importation, and the absence of mitigating features. The significance of the part played by an offender in an importation was spelled out by Hunt CJ at CL in Raz (CCA, unreported, 17 December 1992) at pp6-7 of the judgment:
112 It is always relevant in the sentencing process to know just where a person guilty of importing drugs into Australia, or of being knowingly concerned in their importation, stands in relation to the organisation for which he commits that offence. He may have been recruited either here or overseas to bring the drugs into Australia for reward on one occasion only, and to hand them over to someone here. Such a person is the 'bare or mere courier', and that is at one end of the spectrum of culpability. At the other end is the principal of the organisation, or other senior person, who recruited the courier or who organised the supply of the drugs overseas or their distribution locally. In between there are many levels. But all are relevant in assessing the culpability of the person who is guilty of one or the other of those offences, and thus the sentence which is appropriate to that culpability.
113 The Director argued that the sentence passed upon the respondent was more appropriate for a mere courier of such a substantial quantity of cocaine. He was prepared (albeit begrudgingly) to reason from such parameters as were set by this Court in the recent decision of Bernier (unreported, 19 May 1998). (I should mention, in passing, that he rattled his sabre about that decision without, however, asking us to reconsider it.) In Bernier this Court expressed the view that the range of 8½ to 11 years identified by Hunt J in Ferrer-Esis (1991) 55 A Crim R 231 at 236-7 for couriers of "substantial" quantities of cocaine or heroin should be seen as more appropriate for offences involving quantities at the lower end of the commercial range. In the case of cocaine, that lower end would embrace amounts up to about 3.5 kilograms. The range of sentence assumed that the offender had pleaded guilty and was of prior good character. The Director argued that, as the quantity of this case (8.3 kilograms) is so much greater than the lower end of the commercial range, a 14 year sentence would have been appropriate for a courier enjoying those other favourable features. Taking into account that the respondent was a principal (allowing for some elasticity in that term) who had pleaded not guilty, he argued, the sentence is clearly inadequate.
114 In Bernier (at p8), the Court also considered a series of cases involving the importation of quantities of cocaine in the low commercial or high trafficable ranges where the offender might be described as a principal. They resulted in head sentences between 9 and 14 years (with non-parole periods of 6 to 10 years). With one exception, they are decisions of this Court. In most cases the offender had pleaded guilty and had no prior convictions and, in a few of them, there had been assistance to the authorities. Those cases also involved quantities of the drug significantly less than this case.
115 Accordingly, the quantity of cocaine imported is the salient feature distinguishing the present case from all those considered in Bernier . The Director placed this quantity, loosely, in the middle of the commercial range and submitted that a principal in the importation of such a quantity should attract a head sentence in the order of 15 to 20 years. The offender's plea would be a material matter in determining his or her position in that range.
116 The logic of that proposition is apparent and, if sentencing were a more mathematical and less intuitive undertaking, it might well be persuasive. However, although the Director has referred us to a number of cases, none of them involved a sentence of that order in circumstances relevantly similar to the present case. The most that can be said is that, if his Honour had passed a sentence greater than 14 years, it might have withstood appellate challenge by the respondent. It is quite another matter to say that this sentence is manifestly inadequate, requiring the correction of this Court on a Crown appeal. I am far from persuaded that it is.
117 The Director also submitted that, even if the head sentence were to stand, the non-parole period of 8 years bears an unusually low ratio to that sentence and fails to reflect his Honour's findings as to the respondent's criminality and the lack of mitigating features. He referred to the undoubted punitive element in a non-parole period, relying on a passage in the judgment of Badgery-Parker J in R v Drazkiewicz (CCA, unreported, 23 November 1993). After referring to Bugmy v The Queen (1990) 169 CLR 525 and Deakin v The Queen (1984) 58 ALJR 367, his Honour went on (at p7):
118 There is no tariff which dictates what should be the non-parole period, but it is important to remember in determining a non-parole period that it must be of sufficient length to ensure that the sentence reflects the criminality involved and does not lose the very important significant element of general deterrence which is particularly important in relation to drug importation cases.
119 In Bernier (at p9) the Court considered the relationship of non-parole period to head sentence, noting the difficulty of that task "given the variety of factors to be considered". The Court concluded that "the norm" for non-parole periods was about sixty to sixty-six and two thirds per cent of the head sentence. It was observed that the matter should be approached with "caution and flexibility" as the process "is not mathematical or rigid, and often requires a finely tuned assessment".
120 A factor which the Court considered material, and which is relevant for present purposes, is the length of the head sentence. A long sentence may call for a non-parole period of a lower proportion than would a shorter sentence. Particularly is this so where the offence is uncharacteristic and the offender's background does not demonstrate "any ingrained criminal tendency": cf Griffiths v The Queen (1989) 167 CLR 372, per Brennan and Dawson JJ at 379. The respondent's non-parole period is a little under sixty per cent of the head sentence, and His Honour was entitled to moderate it in the light of the fact that he was a mature man who, prior to this offence, had led a blameless and productive life. Again, it may have been open to his Honour to have fixed a longer period, but it cannot be said that 8 years is manifestly inadequate.
121 Accordingly, neither the head sentence nor the non-parole period could be said to be so inadequate as to call for this Court's intervention on a Crown appeal. It is timely to remember the special place which that form of appeal occupies in our criminal jurisprudence, demanding a restraint which has been affirmed time and again in judgments of the High Court, this Court, and other courts of criminal appeal throughout the country. Those statements of principle are so familiar as to require no repetition here. This case is not the stuff of which Crown appeals are made.
122 The appeal should be dismissed.
123 Since this judgment was drafted we have been referred by the Director to the recent decision of this Court in R v Robertson (unreported, 6 November 1998). The leading judgment was given by Dunford J, with whom Beazley JA and Wood CJ at CL agreed. It seems that Bernier (supra) had been relied upon in argument in that case, although it was concerned with a charge of supplying a commercial quantity of cocaine under the State legislation. Dunford J observed (at p8) that Bernier had not recognised a lowering of the range for couriers of substantial quantities of cocaine and heroin since Ferrer-Esis (1991) 55 A Crim R 231.
124 Earlier in this judgment I summarised the effect of Bernier . I was a member of the Court which decided that case and I see no reason to depart from my analysis of it. Certainly, this was how it was viewed by Spigelman CJ, with whom McInerney and Sperling JJ agreed, in R v Chu (CCA, unreported 16 October 1998 at pp4-5): see also R v Behar (CCA unreported 14 October 1998) per Spigelman CJ at p13. Recently, the same view was taken by Abadee J, with whom Sheller JA agreed in R v Barrientos [1999] NSWCCA 1 at paras 18-32. As I have said, the Director did not ask us to reconsider Bernier . In any event, while it provided a framework for the argument, that decision could in no way be determinative of the present case.
125 I have also had the benefit of reading in draft the judgment of Hulme J. Like Greg James J, I do not think that it is appropriate in this case to re-examine patterns of sentence in this area. Quite apart from that, I am still not persuaded that the sentence we are considering is manifestly inadequate. My conclusion that this appeal should be dismissed remains unchanged.
126