Respondent : Commonwealth Director of Public Prosecutions

Barany [2000] WASCA 240; (2000) 114 A Crim R 426

Bellissimo (1996) 84 A Crim R 465

Darwell (1997) 94 A Crim R 35

Oancea ( 1990) 51 A Crim R 141

R v Boxtel [1994] VicRp 54; (1994) 2 VR 98

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Serrette [2000] WASCA 405; (2000) 118 A Crim R 204

Wong v The Queen ( [2001] HCA 64; 2001) 185 ALR 233

1 STEYTLER J: I agree with the reasons set out by McKechnie J.

2 MILLER J: I agree with the reasons given by McKechnie J. I too would dismiss the appeal and I have nothing to add.

3 MCKECHNIE J: The appellant was convicted after trial of two counts of being knowingly concerned with the importation of ecstasy into Australia. On 8 February 2001 she was sentenced to a term of 14 years' imprisonment on each count, to be served concurrently, with a non-parole period of 7 years. The sentence was backdated from the date on which she was placed into custody.

4 The facts were outlined by Anderson J. I will not repeat them. Significantly, the two couriers had been dealt with earlier. Each pleaded guilty and offered considerable assistance to and cooperation with the authorities. The sentencing Judge in their case commenced with a notional sentence of 15 years which he reduced to 9 years' imprisonment in each case by reason of the plea of guilty and the extensive cooperation.

5 In the present case the trial Judge concluded by saying:

"It is difficult to make any real distinction between you and the two couriers. Whilst you may have been closer to the organisers than they, and in that sense one or two rungs above them in the hierarchy, it was they who actually imported the narcotics, so that in one sense yours was a more responsible role but in another sense it was a lesser role. I think that justice and parity of sentencing is best served if your sentence also starts where theirs began namely, at 15 years."

6 The trial Judge then took into account the appellant's personal circumstances, including the fact, which she had put to him in a letter, that she had felt abandoned since her arrest. He then imposed the sentences of 14 years.

"The sentence was manifestly excessive in the circumstances in that it failed to reflect my personal antecedents and that it now fails to reflect my recent cooperation with the authorities (evidence of which to be supplied)."

8 I will deal with each of the particulars separately. The difficulty in the way of the first particular, that the sentence failed to reflect the personal antecedents, is that the trial Judge did expressly take into account the personal circumstances of the appellant.

9 It is obviously the case that a person caught smuggling may be incarcerated in a foreign country. That is the particular consequence of the crime and little weight can be given to that fact. The trial Judge was correct in equating the appellant's involvement with that of the two other persons, the couriers. Moreover, he was, with respect, correct in the selection of the term of 15 years as an appropriate starting point.

10 It is well-established that generally little weight will be given to the personal circumstances of a drug offender committing this type of offence: Heryadi v The Queen (1998) WAR 383 and Grimwood v The Queen [2002] WASCA 135.

11 In my judgment the trial Judge did not err in his discretion in the imposition of a total sentence of 14 years, nor in the non-parole period of one-half of that term. That sentence should not be disturbed on that ground.

12 The appellant also claims to have engaged in recent cooperation with the authorities. Had this particular been established the original sentence may have been appropriate but it would be accepted there is now fresh or new evidence before this Court which would justify intervention. The difficulty is that the appellant did not, as the grounds promise, supply evidence of her cooperation.

13 The appellant has today, from the bar table, outlined what she says is her cooperation in interviews with particularly two officers from the Dutch police. However, information from the Australian Federal Police, who apparently were not present at the interviews, by request of the appellant, indicates that the cooperation which she gave was not really worth anything at all. They say the neither Dutch authorities nor the Australian Federal Police benefited by any evidence provided by the appellant.

14 Furthermore, it is to be noted that the appellant had the opportunity of cooperating at an appropriate time. She failed to cooperate at any time prior to sentence. I do not consider that the material she has advanced in all the circumstances is of sufficient weight to justify this Court now interfering with an otherwise proper sentence on the basis of claimed cooperation. I would dismiss the appeal.