REGINA v. TAN [2001] NSWCCA 219

No. 60851 of 1999 CORAM: DOWD, J. GREG JAMES, J. SMART, AJ.

1 DOWD, J: The court is in a position to give judgment on the appeal and I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: This is an application for leave to appeal against a sentence imposed upon the applicant by Bellear, DCJ. in the District Court of New South Wales on 14 December 1999. 3 The applicant had pleaded guilty before a Magistrate under s.51A of the Justices Act 1902 to a charge of an offence of importing into Australia prohibited imports to which s.233B of the Customs Act 1901 (Cth) applied, to wit narcotic goods consisting of a quantity of 3,4 methylenedioxymethamphetamine (MDMA) commonly known as ecstasy, being not less than the commercial quantity applicable to that drug. 4 When the applicant came forward for sentence he was forty one years old, having been born on 11 May 1958. He came from Malaysia. He was a plumber by occupation. 5 The amount he imported was the sum of some 1.846 grams gross, the pure weight of the drug being some 736 grams. The commercial quantity is .5 kilograms, consequently the applicant had imported some 200 grams above the commercial quantity. The maximum penalty fixed by the Customs Act 1901, s.235, for this offence in this circumstance is life imprisonment. 6 The short facts were that the prisoner was apprehended at the Sydney Kingsford Smith Airport having flown from Kuala Lumpur. His luggage was searched and a body search was conducted which showed that a number of packages were secured about his body and inside his thighs with tape. The packages contained tablets of the forbidden drug. Also located in his possession was some $2,000 in Australian currency. 7 In due course he was spoken to and the learned trial judge summarised the effect of what he said in that interview in his remarks on sentence. 8 He said that he was told the packages contained something described as "shake head drug". He was told that after you take the drug you become "dancy". He collected the packages from somewhere in the centre of Kuala Lumpur. He had been contacted by a person he didn't know on a public telephone. He is not sure who told him to go to the phone box. An envelope containing the wherewithal for him to arrange through a travel agent his flight to Australia had been left for him at a cafe he frequented. He converted the balance of monies into Australian currency, after paying for his airfare and booking his accommodation. He was asked to come to Australia by someone he did not know. Someone he did not know was going to collect the packages from him and he was simply to wait in the De Vere Hotel for someone to contact him and collect the packages. 9 The learned trial judge was of the view, as is apparent from his findings, that the applicant was a bare or mere courier. He was given the benefit of a finding that he had entered the plea of guilty at an early stage and that the early plea was a reflection of his contrition. Further, that the plea had associated with it a substantial utilitarian component so that he had, in the findings of the trial judge, the benefit both of contrition and the saving of time and money to the community. 10 The trial judge, when assessing the level of culpability, considered that the applicant may have been recruited to bring the drugs into Australia for reward on one occasion only. Thus he was recorded as finding the applicant's role met the description of bare or minimum courier. His Honour treated such a person as being at the lower end of the spectrum of culpability. 11 His Honour also, having regard to matters referred to in the interview, held that the prisoner's motive for his role was to gain money for medical attention to be furnished to his mother for whom he apparently cared deeply and that the applicant's personal circumstances had apparently, until this time, been attended by prior good character, which his Honour took into account. He further took into account that the prisoner will suffer additional hardship by reason of being confined for a substantial period of time far away from his family, his culture and the prospects of contact with his loved ones and friends. 12 His Honour referred to the prisoner's family circumstances, his childhood and economic hardship, his recent divorce and the fact that he had custody of the two children of his marriage aged 16 and 14, who are being cared for by his elderly and ill mother. 13 Apparently, although he had attained trade qualifications in Singapore and had worked in France as a construction worker and kitchen hand he was unable there or in Singapore to earn the money necessary in his view to enable his mother to have the treatment to which he referred. 14 Thus it was that he came to commit the offence and thus it was that his Honour found that the prisoner presented to the Probation and Parole Service and to the trial judge as a man who was very committed to his family and was anxious to return to Malaysia to be reunited with them. 15 Notwithstanding all of those matters which his Honour took into account to the prisoner's advantage, his Honour properly had regard to the necessary general and personal deterrent factors and, in particular, to the clear sentencing pattern and the decisions of this court that sentences must be such that those who are involved in the drug trade bringing the commodity into this country for financial gain must be made aware that this country will meet such activities by a consistently tough sentencing policy. 16 His Honour concluded that no sentence other than a full time custodial sentence was appropriate in all the circumstances and that it was necessary to pass in this individual case a sentence of both general and person deterrent. 17 He had regard, of necessity, to reducing the sentence otherwise appropriate for the absence of remissions in this State, in accordance with the application of s.16G of the Crimes Act 1900 and concluded that an appropriate sentence of seven years commencing from the date on which the applicant went into custody, with a non-parole period of four years and six months, should be imposed. 18 The applicant has filed a letter of written submission dated 3 May 2001. That letter raised three matters, the first being that the sentencing judge had failed to take into account the prospect of the applicant being involved in a controlled delivery so as to enable the apprehension of those in Australia who might come to the hotel to collect the drugs. 19 Today he informed us he did not wish to maintain that ground, it having been inserted by mistake in the document by a friend upon whose advice he had relied, he having needed the assistance of someone proficient in English and aware of the system. No such matter or any indication of any such matter had been raised before the trial judge nor was there any evidence before the trial judge that would enable the applicant to take any active role in seeking to have those minded to obtain the drugs from him come to the hotel. On his account he did not know who might call and thus would be unable to make phone calls to have those persons come to the hotel. 20 Secondly, he raised a ground asserting that the trial judge had failed to give considerable weight to the early plea of guilty, previous good character and the hardship he will have to endure in a foreign land, particularly in the context of his mother's deteriorating health. 21 It is sufficient to say that I have already referred to the trial judge taking those very matters into account and giving them substantial weight. 22 He also submitted that the sentence was manifestly excessive. Even taking into account the various matters personal to him and in his favour, that submission is simply not made out. 23 Although he referred to the sentence in the matter of Regina v. Hauser (CCA, unreported 11 December 1997) in which the appellant's original sentence of six years imprisonment with a non-parole period of three and a half years was reduced by this court to a sentence of four and a half years and a non-parole period of two and a half years, the circumstances in that case were entirely different. That was a case which involved an internal courier whose other offences under the Financial Transaction Reports Act 1992 involved small amounts of money utterly unrelated to any drug activity but whose sentence otherwise regarded by the court as appropriate, indeed, lenient, was reduced according to the parity principle because of an even more lenient sentence imposed on a co-accused. Neither that decision nor those to which the Crown has taken us in their written submissions nor those shown in the sentencing statistics assists the applicant's case. 24 It is only if this court is persuaded that the trial judge has fallen into error in the exercise of his sentencing discretion and that some lesser sentence warranted in law should have been passed that the court is entitled in law to interfere with the trial judge's sentence. 25 No such ground has been made out here. 26 I therefore conclude that although the matter having been fully argued, leave to appeal should be granted, the appeal should be dismissed. 27 I would propose orders accordingly. 28 DOWD, J: I agree with the proposed orders and the reasons for those orders of Greg James, J. 29 SMART, AJ: I also agree. 30 DOWD, J: The orders, therefore, will be as proposed by Greg James, J. ********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.