Characterisation of applicant's criminality
6 I turn first to the contention that his Honour mischaracterised the criminality of the applicant. After discussing The Queen v Olbrich (1999) 199 CLR 270, his Honour said:
What this prisoner did was effect an importation which, without him, would not have taken place, at least at that time. One may hypothesise that somebody else would have been found, some other time may have been the occasion but the fact is that in terms of this importation he was the central character . Without him and the drugs wrapped around his waist this substance would not have reached Australian shores on 17 November 2000. [My emphasis added]
7 His Honour continued, and I quote this because it is important for the purpose of understanding Freeman DCJ's reasoning and also the way in which the applicant puts his case on appeal. His Honour said:
I accept that there is no evidence that he was involved in manufacture or acquisition and that he was not likely to be involved in disseminating it, other than perhaps to a single collector in Australia, but I am concerned with the importation not the other elements which surround it both before and after the act of bringing it in.
8 On behalf of the applicant, Mr Boulten submits that his Honour erred in not taking into account the circumstances enumerated in that passage as mitigating factors.
9 I do not see that the judge's remarks should be so understood. His Honour did not ignore the particular factors in coming to the sentence that he imposed on the applicant. In effect what his Honour did, in my view properly, was to dismiss those factors as aggravating features of the offence.
10 It is plain that his Honour was characterising the applicant's role as a principal in the importation. His Honour accepted, as I have said, that the applicant was not involved in the manufacture or acquisition of the drug, nor likely to be involved in dissemination, except for the initial delivery in Australia.
11 It is submitted on behalf of the applicant that on the evidence the applicant had a limited role in the enterprise and was 'merely a courier'. This, it was submitted, was the extent of his involvement. It follows, in the submission of Mr Boulten, that his Honour's starting point of 15 years was too high and that the applicant was entitled to some reduction for being a mere courier.
12 In the sense that the applicant carried the goods to Australia, he was a courier. But this does not mean that he cannot also be a principal. Clearly he was a principal in the importation of the drug and his Honour was entitled to describe the applicant as 'the central character' in the importation.
13 His Honour's approach is entirely consistent with Olbrich. Their Honours (Gleeson CJ, Gaudron, Hayne and Callinan JJ) provided useful comment on the distinction between 'couriers' and 'principals' and what they had to say is I believe apposite to repeat here.
14 Their Honours said (at 279 - 280):
19. Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act . One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between "couriers" and "principals" may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as "courier" or a "principal" must not obscure the assessment of what the offender did.
20. There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender's criminality. But there was no evidence, one way or the other, to suggest that this was such a case. There was nothing before the primary judge which revealed that the respondent was part of any business venture of that kind. All that was known was that the respondent asserted that he was to be paid $15,000 for importing the heroin. That is, the respondent asserted that the importation of such a large quantity of heroin was for his financial gain rather than for some other purpose such as his own use.
21. Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful inquiry, it was one that could not be pursued in this matter because there was no evidence about it.
15 In my opinion no error has been demonstrated and this ground of appeal must fail.