Sintat v R

Court of Criminal Appeal (NSW)|2018-07-25|Before: Hoeben CJ, Price J, Davies J

Judgment

HOEBEN CJ at CL: The Court is in a position to give judgment now and I will ask Price J to give the first judgment.
PRICE J: The applicant pleaded guilty in the Local Court to a charge of importing a marketable quantity of a border controlled drug, namely cocaine, contrary to ss 307.2(1) and 11.2A of the Criminal Code Act 1995 (Cth). She adhered to her plea in the District Court and was sentenced by Buscombe DCJ ("the judge") on 6 October 2017, to 3 years imprisonment, commencing on 7 August 2016 and expiring on 6 August 2019. The judge ordered pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the applicant be released after serving two years upon entering into a recognizance in the amount of $100 on the condition that she be of good behaviour for a period of 2 years.
The applicant is eligible for release on 6 August 2018.
Cedric Duflaut, a co-offender, was also charged with importing a marketable quantity of cocaine contrary to s 307.2(1) and 11.2A of the Criminal Code. He was sentenced by the judge to imprisonment for 5 years 6 months, commencing on 6 August 2016 and expiring on 5 February 2022, with a non-parole period of 3 years 8 months. The non-parole period expires on 5 April 2020.

Factual background

A statement of facts was tendered by the Crown and the applicant, and Mr Duflaut gave evidence before the judge. The following findings of fact were made by his Honour: 1. On 22 July 2016, Mr Duflaut was in communication with the applicant and asked her if she would "Like to make a little trip to Australia beginning in August." 1. Initially the applicant said no because she did not have a passport. 2. Mr Duflaut told her "I need to take gold with me, take it there, but you need to hide it well because it is forbidden to take pure gold in quantity. So that's why I need a girl to put it either in her vagina or bum. Don't worry, it is not a massive quantity. Would you be up for it? We could meet later to talk further." 3. The applicant indicated she was interested. 4. Mr Duflaut stated he needed to be in Australia by 2 or 3 August. 5. They agreed to meet. 1. On 25 July 2016, there was a message exchange in which the applicant indicated she was, "totally in for the plan", and Mr Duflaut asked her if she had, "done the fittings". The applicant responded "no, I haven't practiced", stated the size was not the issue but expressed concern about the weight. Mr Duflaut was to assist with the applicant obtaining a passport. 2. On 1 August 2016, there was a message exchange in which they discussed how long they would be in Australia and Mr Duflaut said, "For the gold do you like it long or wide?" The applicant responded, "Wide, can't you make a ball?" There were exchanges about how the substance was to be packaged. 3. On 2 August 2016, Mr Duflaut sent the applicant a photograph of the package and she responded "I can handle it". 4. On 2 and 3 August 2016, Mr Duflaut was in contact with a person, "Deamon", who was in Australia and was involved in organising the travel. There was a delay in organising the travel and the messages indicated that there were others involved in organising the importation. 5. On 3 August 2016, there was a message exchange in which Mr Duflaut stated he was waiting for the ticket confirmation. The applicant requested Mr Duflaut pick her up to which Mr Duflaut replied: "Are you able to go there? Honestly, it would make things easier for me since I will have the stuff and all. I would have liked to avoid picking you up because I will have the stuff with me, I don't want to get caught by the cops". The applicant replied "Um, I see, I see." 6. The applicant and Mr Duflaut left Paris on board a Qatar flight which arrived in Sydney on the afternoon of 7 August 2016. 7. The applicant was spoken to by a Border Force officer and stated that she and Mr Duflaut were friends, they intended to stay in Australia for 30 days, they would stay with Mr Duflaut's friends in Waterloo, she did not have a return ticket and she had 1,000 Euros for her holiday. A number of mobile phones were found in their luggage. 8. A body scan of the applicant revealed an anomaly. The applicant then stated she had something inside her that was not drugs, it was gold and she did not see the contents of the package. 9. The applicant participated in an interview in which she stated she was given the package by Mr Duflaut, she believed it was gold and she inserted it into her vagina. She removed the item. 10. The concealment contained 95.5 grams of cocaine of a purity of 66.5%. The pure weight of the cocaine was 63.5 grams.
During her evidence, the applicant testified that she had felt the package she placed in her vagina but denied that she knew it was a drug.
A submission was made to the judge that applicant was never told the substance was cocaine or "white gold", and she was reckless as to the nature of the substance she imported. His Honour rejected this submission and was satisfied the applicant knew that she was importing a drug and not gold.
The judge found the applicant did not have an organising role and could be described as a courier. His Honour observed that the applicant did communicate with Mr Duflaut in relation to the size and weight of the package, so that she was able to secret it in the way that she did, but that could not elevate her role to being above that of a courier. His Honour concluded that the applicant engaged in the importation for financial gain although there was nothing in the evidence to support a finding that she did so for anything other than a free trip to Australia.
His Honour observed that "…the courier role in drug importations is a serious role because such people who are willing to take the risk to import drugs are essential to the success of drug importations". The applicant's offence was found by the judge to be "…well below the mid-range level of objective seriousness".

The applicant's subjective circumstances

The applicant was born on 7 November 1987 and was 29 years old when sentenced. The written material tendered in her case included a report from Susan Hawil, a psychologist, four character references, and a letter of apology written by the applicant.
The applicant was born in Cameroon and migrated to France at the age of two. She was adopted by her aunt at the age of five due to her mother's illness and inability to care for her. The psychologist reported that the applicant had disclosed an unstable upbringing due to frequent family conflict. The applicant completed a Year 12 equivalent of High School education and obtained a Professional Certificate in Early Education in France. She had worked in a number of positions, her last employment being as a full-time Kindergarten teacher in France which she left to travel to Australia.
The psychologist considered that the applicant met the criteria for a diagnosis of an unspecified anxiety disorder which was in the moderate range. The applicant was assessed to fall within the low/moderate range of re-offending.
The applicant has no prior offences in Australia or France.
The judge considered that given the applicant's evidence about her knowledge, which he rejected, there was limited remorse. His Honour found she had good prospects of rehabilitation.
His Honour had regard to the impact of the applicant's imprisonment on her family.

The appeal

The notice of appeal identifies two grounds: "(1) His Honour the Sentencing Judge erred in not allowing a discount for the utilitarian value of the plea of guilty. (2) His Honour erred in the manner in which he dealt with the weight of the border controlled drug."
The Crown accepts that ground 1 of the appeal has been established. During his sentencing remarks, his Honour said: "The [applicant] entered a plea of guilty when the matter was still in the Local Court. The Crown case was a strong one, but I consider, by her plea of guilty, she did facilitate the course of justice."
The sentencing proceedings before the judge were heard before the decisions of this Court in Xiao v R [1] ("Xiao") and Jinde Huang aka Wei Liu v R. [2] In Xiao, this Court held at [278] that in sentencing proceedings governed by s 16A of the Crimes Act, a sentencing judge is entitled to take the utilitarian value of a guilty plea into account. However, whilst it is desirable that the level of the discount be specified in the interests of transparency, there was no obligation for a sentencing judge to do so.
His Honour neither referred to the utilitarian value of the plea, nor did he specify a level of discount. In failing to do so, his Honour should not be criticised as he was applying the practice that was commonly considered to apply at the time to the sentencing of Federal Offenders, which confined a plea of guilty to considerations of facilitating the course of justice and remorse.
By failing to refer to the utilitarian value of the plea, his Honour did not have regard to that factor and error has been demonstrated. It follows that ground 1 of the appeal has been established. Accordingly, it will be necessary to exercise the sentencing discretion afresh.
In ground 2 of the appeal, the applicant complains that the judge erred in assessing the objective seriousness of the offence as his Honour referred to the quantity of the prohibited drug, which was 63.5 grams of pure cocaine, as being "…a little less than one-third of the upper limit of the marketable quantity".
It is common ground that the marketable quantity of cocaine is 2 grams and the commercial quantity is 2000 grams. One third of the upper limit of the marketable quantity would be approximately 666 grams. The Crown accepts that his Honour was incorrect in stating that the amount of 63.5 grams is a "little less" than this amount.
The applicant points out that the amount of the drug that she imported into Australia was, in fact, only three per cent of the upper limit of the marketable quantity of cocaine. The applicant contends that in failing to properly assess where on the scale of offending covered by the section the weight of the drug fell, the judge erred.
As this Court is obliged to re-sentence the applicant, this submission will be considered on re-sentence.

Submissions on re-sentence

The applicant submits that her subjective case is powerful, that despite her unfortunate and unsettled upbringing, she appears before the Court as a person of prior good character, has no prior convictions and has excellent prospects for rehabilitation. The applicant submits that if this Court proceeds to re-sentence, a sentence of "time-served" ought to be imposed as she has been in custody since 7 August 2016.
The Crown contends that no lesser sentence than that imposed by the judge is warranted.

Re-sentence?

As specific error has been identified, it is this Court's duty to re-sentence "…unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed". [3]
The maximum penalty for the offence is 25 years imprisonment and/or 5,000 penalty units. This legislative guidepost is to be borne in mind when considering the appropriate sentence, having regard to the objective circumstances of the offence and the applicant's subjective case. No evidence has been placed before this Court of events that have occurred since the sentencing hearing before the judge.
In determining the sentence to be passed, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. [4] In addition to any other matters, the Court is obliged to take into account such of those matters in s 16A(2) of the Crimes Act that are relevant and known to the Court.
The applicant brought into Australia 95.5 grams of cocaine of a purity of 66.5% by secreting the drug in her private body parts. It appears that she was persuaded to do so by Mr Duflaut for a modest reward which may have amounted to no more than the trip to Australia. Her role in the importation was confined to being a courier but she knew she was bringing into Australia a prohibited drug and the size of the importation. Her role was critical to the success of the importation.
The pure weight of the cocaine was 63.5 grams which is well in excess of the marketable quantity of cocaine. The applicant argued that the judge's misstatement quoted at [21] above demonstrated that he had not properly considered the objective seriousness of the offence which was assessed by the judge to be well below the mid-range.
In the exercise of my sentencing discretion having regard to the quantity of cocaine, the applicant's role as a courier, her knowledge that she was importing a drug and the size of the importation, and the modest reward for her participation, I agree with his Honour's assessment that the objective seriousness of the offence fell well below the mid-range.
The difficulties of detecting prohibited drugs being imported into Australia with the serious consequences that follow to our society have often been stated. As his Honour observed, "…drugs such as cocaine are having a terrible effect on our society and cause untold damage to it". In sentencing the applicant chief weight is to be given to general deterrence. [5]
Specific deterrence is a consideration of only limited significance as the applicant is unlikely to re-offend.
Neither the Crown nor the applicant challenged the judge's findings that there was limited remorse and the applicant has good prospects of rehabilitation. The judge noted that the applicant has had limited contact with her family which was likely to continue during her sentence. His Honour had regard to the impact of the applicant's incarceration on her family. I take these matters into account in determining the appropriate sentence.
I give modest weight to the applicant's good character and lack of a prior criminal history as this is an offence involving drugs and persons with clear records are often selected to be couriers so as not to attract suspicion. [6]
I would allow a discount of 25% for the utilitarian benefit of the plea of guilty that was entered in the Local Court.
Although no complaint has been raised by the applicant arising from the sentence imposed by the judge on Mr Duflaut, it is necessary for this Court on re-sentence to ensure that there is no marked disparity in the sentences. The judge categorised Mr Duflaut's role in the importation "…as a low level organiser and minder of the courier" whose organisational role was more serious than a courier. His Honour assessed Mr Duflaut's role as being below the mid-range level of objective seriousness. Mr Duflaut had no prior criminal history in Australia or in France. He was 36 years of age at the time of sentence.
There are material differences in the respective cases of the applicant and Mr Duflaut which justify the disparity in the sentences imposed on the co-offenders.
I am of the view that the mandatory period of imprisonment of 2 years imposed by the judge is the minimum period that the applicant should spend in custody to appropriately reflect the criminality of her offending.
Giving weight to all relevant factors and in the exercise of my sentencing discretion, I am satisfied that no different sentence than the sentence imposed by the judge should have been passed.
I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
HOEBEN CJ at CL: I agree
DAVIES J: I also agree with Price J.
HOEBEN CJ at CL: The orders of the Court will be those proposed
by Price J.

Endnotes

[2018] NSWCCA 4.
[2018] NSWCCA 70.
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [35].
Crimes Act 1900 (NSW) s 16A(1).
R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72]; Wong v the Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64].
R v Lopez-Alonso (1996) 86 A Crim R 270.

Amendments 01 August 2018 - System format only 18 October 2018 - paragraph [2] 6 October 2017 substituted for 29 September 2017 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. Decision last updated: 18 October 2018

Crimes Act 1900(NSW)s 16A(1).

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