Customs Act 1901 (Cth) s 233B(1)(b) and s 235(2)(d)(i)

Leave to appeal granted in respect of the minimum term and term reduced to 4 years and 3 months

Applicant : Unrepresented Criminal Appellants Scheme

Respondent : Commonwealth Director of Public Prosecutions

Heryadi (1998) 98 A Crim R 578

Oancea (1990) 51 A Crim R 141

Paunovic (1990) 51 A Crim R 174

1 MALCOLM CJ: This was an application for leave to appeal against sentence. On 18 September 2000 the applicant was convicted in the District Court following his plea of guilty on the fast track system in respect of two counts in an indictment, namely:

"[O]n the 31st day of May 2000 at Broome in the State of Western Australia MICHAEL JAMES THOM imported into Australia a prohibited import to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to that narcotic substance, contrary to section 233B(1)(b) of the Customs Act 1901.

2. AND ... on the 31st day of May 2000 at Broome in the said State MICHAEL JAMES THOM did without reasonable excuse have in his possession within Australia a passport issued by the government of a foreign country, namely the United Kingdom, passport numbered 019683543 in the name of Hugh Henry Cummings, which passport had been falsified in that the photograph of Michael James Thom was attached to the passport, in contravention of section 9A(f)(i) of the Passports Act 1938 (Cwlth)."

2 The quantity of heroin admixture imported was 314.1 grams of heroin admixture of about 71% purity. The quantity of pure heroin was 225 grams in two parcels. Pursuant to Sch VI of the Customs Act 1901 (Cth), the trafficable quantity of heroin is 2 grams pure. The maximum penalty for the offence was imprisonment for 25 years or a fine of $110,000 or both: s 235(2)(d)(i) of the Customs Act. The maximum penalty for an offence against s 9A(f)(i) of the Passport Act 1938 (Cth) is imprisonment for two years or a fine of $5,500.

3 The applicant was sentenced to imprisonment for 8 years and 6 months with a non-parole of 5 years and 6 months in respect of the importation of the heroin. He was also sentenced to imprisonment for one year in respect of the passport offence. The latter sentence was ordered to be served concurrently. The applicant was given a discount of 10% for his early plea of guilty and the discount was increased to 35% to take account of his co-operation with the authorities. The sentence was arrived at by the adoption of a starting point of imprisonment for 13 years for the heroin offence.

4 The applicant was represented in the District Court and a plea in mitigation was made on his behalf. Counsel for the applicant accepted the facts as stated by counsel for the Crown.

5 The applicant's original application for leave to appeal was made in person on the grounds that the sentence was manifestly excessive and crushing. It appears that he was unable to obtain legal aid. He has since been assisted by the Unrepresented Criminal Appellants Scheme. Amended grounds of appeal against sentence were filed by the applicant on 19 February 2001. These contend that:

(1) The sentence was manifestly excessive having regard to various matters set out by way of particulars;

(2) The discretion of the learned sentencing Judge miscarried in that he failed to have proper regard to:

(i) the applicant's level of co-operation with the authorities;

(ii) the level of the potential danger to the applicant and his family as a result of such co-operation;

(3) The sentence imposed was crushing having regard to the applicant's age, health and his isolation from his family in Thailand together with the hardship likely to be experienced by his family as a result; and

(4) There was an error of law by the learned Judge in finding that a non-parole period of 65% of the sentence was "required" in that:

(i) the learned Judge erred in the exercise of his discretion in failing to have proper regard to the likely effect of the non-parole period on the totality of the sentence; and

(ii) there was no requirement for a non-parole period any greater than 50% of the head sentence.

6 At the time of the commission of the offence the applicant was aged 49 having been born in New South Wales on 25 March 1951. He was an Australian citizen, but had been living in Thailand for the last 25 years where he runs a restaurant business. He married his Thai wife in June 1979 in Singapore. He has a stepchild and two stepgrandchildren living in Thailand with his wife.

7 The facts as they were stated to the Court by counsel for the Commonwealth Crown were accepted by counsel who represented the applicant at the time of sentencing and made a plea of mitigation on his behalf. The relevant facts as found by the learned Commissioner were as follows:

"At the time of your arrival you were travelling on a United Kingdom passport issued in the name of Hugh Henry Cummings. That passport, as I have mentioned when I referred to the second of the two offences, is of course a false passport.

The photograph on the passport was a photograph of yourself, therefore on the face of it there was an attempt to present a passport which you knew to be false as a valid passport for yourself and in the name of someone else. Upon your arrival you were processed through the Australian Customs Service checkpoints and you then proceeded to check your baggage. You then entered the baggage line where your passport was again checked. On the second examination the officer who examined the passport noted a number of irregularities within the security part of the passport. You were asked a number of questions by customs officers and in particular questions as to whether you had packed your bags and whether you knew what was in the bags, to which you answered yes to both of those inquiries.

The baggage was then searched by customs officers and that search revealed a concealed compartment in the bottom of the suitcase and two plastic bags were found, both bags containing white powder and this white powder was subsequently analysed and found to be heroin. The net weight of the heroin in one of the bags was 190.8 grams with a purity of 71.6 per cent. When one applies that percentage purity to the gross weight, there was a weight of pure heroin in that particular bag of 136.6 grams. The net weight of the heroin in the other bag was 123.3 grams with a purity of 71.9 per cent.

When one applies that percentage purity to the gross weight, the pure weight of heroin in this second bag was 88.6 grams. So when one adds up the total of 88.6 and 136.6 grams the total in the two bags was an amount of 225.2 grams of heroin. Subsequent to the white powder having been seized you were then taken and interviewed by members of the Australian Federal Police and that interview took place on 4 June this year.

You also agreed to assist members of the Australian Federal Police with inquiries. The nature of the assistance provided to the Australian Federal Police involved three attempts to make contact with the person you stated was the intended recipient of some of the heroin that was located in the bags. In addition to that, you made five telephone calls overseas, as I understand it, to the supplier of the heroin in Thailand. There were a total of eight attempts to contact the intended recipient and also the supplier of the heroin.

As I understand it, those eight attempts took place over a period of 5 days and none of the attempts, whether it be an attempt to contact the intended recipient or the supplier, met with any success."

8 The learned Commissioner then referred to the seriousness of the offence, the maximum penalties available, the harm caused by trafficking in heroin and the fact that in such cases the principal consideration in sentencing is general deterrence. It is unnecessary in the context of this case to repeat what the learned Commissioner said except to say that there is no ground of appeal which challenges what the learned Commissioner said about the harm which is caused by the traffic in heroin.

9 In Darwell (1997) 94 A Crim R 35 at 39, I suggested an analysis of the hierarchy involved in a typical drug importation, namely, the producer or organiser of the heroin to be imported, the courier and the recipient or wholesale distributor in Australia. In his record of interview the applicant admitted that he had previously visited Perth and had possessed heroin for sale. He had obtained possession of heroin from a person named "Sammy" whom he said he visited to discuss "possible future drug business". He was acquainted with at least one other major distributor whom he said he had known for some 25 years.

10 In the present case, the amount of heroin involved was 110 times the trafficable quantity. The wholesale value was estimated at A$30,000. If packaged and sold on the street or otherwise by retail, the value was estimated at between A$2.2 million to A$3.6 million, depending on the manner in which the heroin would be cut. In Quach v R [1999] WASCA 210 at [13] Ipp J (with whom Wallwork and White JJ agreed) said:

"The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force. See, for example Darwell v The Queen (1997) 94 A Crim R 35, Heryadi v The Queen (1998) 98 A Crim R 578, and Musarri v R, unreported; CCA SCt of WA; Library No 980662; 17 November 1998."

11 Ipp J went on to consider the range of sentences imposed in a number of cases. He prefaced this with the following remarks at [14] with which I agree:

"It is difficult to determine appropriate ranges for offences of this kind as there are so many variable factors. Much depends upon quantity, purity and value of the heroin. The offender's position in the hierarchy of supply is crucial, but this too usually needs close definition. To describe the offender as a courier, can be an inadequate categorisation. There are many different kinds of couriers with different degrees of criminal responsibility attaching to each. I shall, nevertheless, refer to some of the cases in an attempt to determine whether the particular sentence imposed was within range."

12 Ipp J then referred to the sentences imposed in a number of cases: Cottrell (1989) 42 A Crim R 31 to Gasteau v R [1999] WASCA 153, which supported a conclusion that for cases of this kind the majority of the decided cases supported a sentence of imprisonment for 15 years as being within discretion, although there were some decisions to the contrary. Ipp J went on to say at [26] - [27]:

"I shall therefore proceed to express my view as to what would be an appropriate range for cases involving possession of heroin with intent to sell or supply, involving quantities of between about 600 to 700 grams, having a purity of between about 55% to 65%, where the offender is a courier who is well aware of the quantity and quality of the heroin in his possession, who actively participates in attempting to conceal the heroin from detection, who commits the offence for commercial gain (and not solely to finance an addiction), and who is close to the source of importation. In my opinion, the appropriate range of sentences for cases of this kind is between 11 to 15 years' imprisonment. I have come to this conclusion after taking into account the various sentences to which I have referred above, the maximum term of imprisonment laid down by Parliament, the importance in the drug chain of a courier of the kind described, and considerations of the kind mentioned by Owen J in La Rosa, namely that there is 'considerable justification for "firming up" sentences generally for offences involving drug trafficking'.

In the context of this case, I think that further comments need to be made about the effect of a 'range'. A range established by an appellate court does not take effect like a statute. It is merely a guide to appropriate sentences. By its nature, it is not an exact measure and its limits are flexible rather than rigid. The mere fact that a sentence exceeds the range by a relatively small amount does not mean that the sentence is susceptible to being overturned on appeal: see Taylor v R, unreported; CCA SCt of WA; Library No 980152, 6 April 1998 (per Ipp J, with whose reasons on this issue Pidgeon J agreed). Appellate courts have consistently indicated their unwillingness to intervene when sentences depart only by relatively insignificant amounts from what is ordinarily regarded as apposite."

13 It was submitted by counsel for the Crown to the learned Commissioner in this case that the appropriate sentence would be one in the range of 11 to 15 years. In my opinion, it needs to be borne in mind that the range of sentences in a comprehensive review of the cases made by Ipp J was related to the importation of quantities of heroin between about 600 to 700 grams, having a purity of between 55% to 65%, ie, a range of 330 - 455 grams of pure heroin. In the present case, the quantity of pure heroin was 225 grams. The wholesale price expected was $70,000 - $80,000 which the applicant was to pay to the supplier in Thailand. The applicant said he was to receive a payment of $30,000, of which $20,000 was to be credited to him by the supplier to extinguish a debt owed by the applicant to the supplier in respect of a loan made when the applicant's restaurant ran into financial difficulties, following the Asian financial crisis of 1997-1998. This would leave the applicant with $10,000. The learned Commissioner, however, was not persuaded that the money was borrowed because of problems to do with the applicant's restaurant. As the learned Commissioner put it:

"There has been reference in the record of interview by yourself about some other deal in Thailand in the drug trade which was the origin for the debt which caused you to import this drug into Australia."

14 In Foster and D'Anna (1992) 59 A Crim R 14, as the Commissioner observed, the two offenders in that case imported 147.8 grams of heroin, which was the equivalent of 102 grams of pure heroin. There were early pleas of guilty and co-operation with the authorities by both offenders. The learned sentencing Judge in that case adopted a starting point of 14 years.

15 In the present case the learned Commissioner adopted a starting point of 13 years. It was from that starting point that the discount of 10% was applied for the plea of guilty on the fast track system, taking into account the strength of the case against the applicant. There was then an additional discount of 25% for the applicant's co-operation with the authorities, making a total discount of 35%, resulting in a sentence of 8 years and 6 months.

16 The applicant had a record of prior convictions as an adult dating back to 1969. Significantly, he had prior convictions in New South Wales for possessing an unspecified prohibited import in 1973, one count of possessing a prohibited import, namely, heroin in 1978, one count of possession of heroin in Thailand in 1982 for which he was sentenced in May 1983, and two counts of supplying heroin in New South Wales in 1987.

17 In my opinion, given the seriousness of the offence and the authority to which I have referred, the sentence imposed was well within the range of a sound discretionary judgment.

18 It remains to consider the question of the minimum term.

19 The learned Commissioner said in relation to the minimum term:

"Now, in my view, the nonparole period that is appropriate in your case is 5 years and 6 months and I fix a nonparole period in that time.

It's to be noted that 5 years and 6 months represents about 65 per cent of the head term of 8 years and 6 months so it is slightly below the two thirds that's necessary and so there is a balance of just over a third of the sentence that would be present when you're released at the end of serving 5 years and 6 months."

20 In my opinion, having regard to the facts that the applicant's family is in Thailand and his restaurant business was located in Bangkok; service by him of the sentence in Western Australia will be a hardship, especially given his financial situation and the risks to which he will be exposed by virtue of his co-operation with the authorities, I am of the opinion that the learned Commissioner was in error insofar as he considered that a non-parole period of two thirds of the sentence was necessary. In my opinion, the circumstances to which I referred reveal an error in the exercise of discretion in relation to the fixing of the non-parole period. As a consequence, while I would not interfere with the head sentence, I consider that leave to appeal should be granted, the appeal dismissed in relation to the head sentence, but the appeal allowed and the sentence imposed varied by a reduction of the non-parole period from 5 years and 6 months to 4 years and 3 months.

21 STEYTLER J: I have had the advantage of reading the reasons for decision of the Chief Justice. I agree with them and have nothing to add.

22 BURCHETT AUJ: I agree with the orders proposed by the Chief Justice, for the reasons his Honour gives.