Woodrum v R

Court of Criminal Appeal (NSW)|2019-10-30|Before: Gleeson JA, Harrison J, Cavanagh J

Judgment

GLEESON JA: I agree with Harrison J.
HARRISON J: Denise Marie Woodrum seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the sentence imposed upon her by Wass DCJ sitting in the District Court of New South Wales at Sydney on 6 September 2018. Ms Woodrum pleaded guilty on 31 January 2018 in the Local Court to importing a marketable quantity of cocaine on or about 4 August 2017, contrary to s 307.2(1) of the Criminal Code 1995. The maximum penalty for that offence is imprisonment for 25 years and/or 5,000 penalty units. Ms Woodrum was sentenced to a term of imprisonment of 7 years and 6 months commencing on 4 August 2017 and expiring on 3 February 2025 with a non-parole period of 4 years and 6 months expiring on 3 February 2022.
It is accepted by the Crown that her Honour sentenced Ms Woodrum upon an erroneous understanding or statement concerning the amount by which the cocaine that she imported exceeded the amount prescribed as a marketable quantity. Although the error favoured Ms Woodrum, the Crown conceded that in such circumstances she should be re-sentenced by this Court: see, for example, Greentree v R [2018] NSWCCA 227 at [9].
In the light of the Crown's concession, it is strictly unnecessary to consider the particular grounds of appeal upon which Ms Woodrum originally relied. It is sufficient to observe that Ms Woodrum contends that her Honour's sentence was manifestly excessive and that upon a re-exercise of the sentencing discretion by this Court in accordance with Kentwell v R (2014) 252 CLR 601; [2014] HCA 37, it would find that a lesser sentence is warranted in law.

State of mind

In her remarks on sentence her Honour rejected the Crown's submission that Ms Woodrum knew that she had a border controlled drug in her possession. Her Honour instead came to the following conclusion: "The relevant question is in my view whether or not I ought to find actual knowledge, considering not only whether or not the evidence supports such a finding beyond reasonable doubt but also whether or not in any event I would not make such a finding, given that the offender by her plea has admitted recklessness and no more, rendering the position sought by the Crown, potentially falling foul of the principles enunciated in Di Simoni. I am of the view that, for reasons that will be apparent, the offender ought be sentenced on the basis that she was highly reckless as to whether or not she was importing a border controlled drug. It is accepted on behalf of the offender that she acted with a high degree of recklessness."
In re-sentencing Ms Woodrum, I consider that she ought to be sentenced upon the basis that she was reckless as to the presence of a border controlled drug secreted in her luggage when she entered Australia.

Amount of cocaine involved

In assessing this issue, her Honour said this in her remarks on sentence: "I take into account the amount and purity of the cocaine involved. I am of the view that weight and purity of the drug will be of less importance where an offender has little control over the fact. It was submitted that the amount imported was not of her choosing and that she did not know how much she was carrying. This submission was at least in part based on her statement to the Australian Border Force at the time of her entry into Australia 'how much did they put in the shoes?' That evidence in my view establishes that the offender knew that there was something in the shoes that had been put there by others and she was inquiring as to how much had been secreted. I have no way of knowing however as she did not give evidence, whether or not the amount of cocaine actually imported by her is or is not in line with her expectation and as such I am not prepared to make a positive finding in her favour that she had no control over what she was bringing in. And whilst she is to be sentenced on the basis of her recklessness as opposed to her knowledge, that does not mean that I am obliged to make a positive finding in her favour regarding her lack of knowledge of the weight and quantity [sic, quality] of the drug to be imported and I decline to do so. I have approached the sentencing exercise on the basis that there is no evidence either way about what she knew about the weight or quality of what she was bringing in and that she was entirely reckless as to the details of what she had. I accept that there is no evidence to the effect that she did know the amount or quality of the drug, or that she had any role to play in deciding how much cocaine would be put in the luggage. I accept that there is no evidence to establish how the cocaine was sourced or the offender's role in that process. I accept that there was no evidence that she had any material role in distributing the cocaine once it has made its way to Australia. I have sentenced her on that basis. It does not mean however, as I have said, that positive findings can be made in respect of those matters."
Having regard to the circumstances of this case, I see no reason to depart from her Honour's conclusions with respect to these matters.

Motivation for the offending

By way of contrast, but with great respect to her Honour's opinion, I am unable to accept her conclusion that a significant influence in Ms Woodrum's motivation for doing what she did was unrelated to the deception practised upon her by the character referred to as Hendrik Cornelius. In order to understand my view, it is necessary to note what her Honour said about this in the following terms: "There is little doubt that there was some kind of relationship between the offender and the person referred to as Cornelius. So much is apparent from the personal text messages. It is also accepted, despite the longstanding and intimate nature of the text messages, that the two had never met. Absent any testable evidence from the offender, and where I have doubts about the veracity of her accounts given to the authorities, and in her letter, and as indicated by the information she has given to others as evidenced in the tendered testimonials, I am being asked to accept that, unknown to the offender, the relationship was not genuine and was created via the internet to dupe the offender, who was at the time vulnerable and unwitting in handing over significant sums of money and ultimately to commit the crime for which I am to sentence her, on a promise of a future together. The references tendered on the offender's behalf suggest that the offender was prevailed upon to commit this offence with little or no knowledge of what she was doing and that she was otherwise an honest and honourable person in respect of actions in the offending. There is no indication in any of the references that the authors had been told that; the offender knew that she was not importing artefacts; that the story given by her had changed, such that she must have been highly suspicious about what she was bringing first into the US and then into Australia; that she was so suspicious as to inquire about whether or not she was importing drugs prior to importing them and was given little credible explanation; that she made reference to the presence of drug detection dogs during the trip; and she was seemingly a willing participant in whatever was occurring, reckless as to whether or not she was importing a border controlled drug; that she lied to customs about her intentions; and finally that she was acting in concert, or at least regarded herself as 'serving together' with her co-accused rather than being overborne. The references are therefore in my view, based on a limited and perhaps unreliable, understanding of the offender's actions and state of mind. The limited account given by the offender, as exposed in the references, also has a bearing on the extent to which I accept that the offender is genuinely remorseful for her actions and whether she has any real insight into her offending, despite that being articulated in the testimonials and indeed in her own letter, a matter to which I will return. I am unable to conclude that there was an imbalance of power between the offender and those for whom she was bringing the drugs into Australia. Indeed the matters to which I have referred establish that the offender was an all too willing participant in bringing into Australia the goods which she was asked to bring in an expectation of financial reward, a matter to which I will also return, and reckless to the possibility, in fact I find highly suspicious, that she was bringing illegal drugs into the country. Her comment 'how much did they put in the shoes?' prior to being told she had returned positive test for cocaine is further evidence of that fact. Having regard to the Crown's concession and to the contents of the references, there is acceptable evidence that prior to the offending the offender was in some financial difficulty and that she was the kind of naïve and gullible person who might be vulnerable to the approaches made by persons, including the man known as Cornelius. I also accept that the offender was, prior to the offending, somewhat socially isolated, making her more likely to undertake the trips she did. However the offender in my view falls short of establishing reliably, even on the balance of probabilities, that that was the material motivation for her committing the offence, particularly where there is clear evidence of her financial gain. The text message from the offender states that she was happy to 'serve with' Cornelius, which on its face shows a certain equality between the two and which the offender does not wish to explain. There is no particular reason to accept the offender's self-serving third party statements regarding the fact that she was put upon by others, where she does not wish to give evidence and be tested upon it and where, when stopped by custom's officers, she lied on a number of issues regarding her involvement in the crime. In those circumstances I do not accept that she was groomed or persuaded by others, such that she was overborne. However I do accept that generally speaking the offender was the kind of person who was vulnerable and more gullible than most, and was financially stretched and socially isolated, which potentially rendered her more open to the romantic advances of the kind that have been shown in the text messages, and made her more likely to commit the offence that she did."
Having regard to all of the evidence, it seems to me that Ms Woodrum was indeed considerably influenced by the prospect of some continuing relationship with the character she knew as Hendrik Cornelius. Ms Woodrum referred to him in the handwritten letter that she provided as some of the material she relied on in the sentencing proceedings. Part of her letter said this: "I am a caring person and was asked to support Hendrick Cornelius for medical bills with regard to his son who was in a coma in Dubai from a car accident. Obveously [sic] he conned me. He said it was a loan and would pay me back. As a result he put me into bankruptcy then pulled me into bringing museum clothes into AU for which I was to sign off on paperwork to complete the transaction. Vincent gave me one bag and put extra in my other personal bag before I boarded the plane. I had packed my own carry-on bag and when I got to the hotel in Florida I saw that it was not antiques. I asked Hendrick if there were drugs, he said no and that those clothes are worth more than you know. When I got to AU my soul is scared [sic, scarred?] and caused me serious remorse. This is something I regret now after knowing he wanted me to support him so we could have a future together. He duped me with love and affection. He wanted me to work with him where he had a house in Beverly Hills. I am still suffering the consequences of his actions, however, with karma someday this will get back at him. Even after he hacked my Facebook and was asking for money from people including Judy Christopher, Carol Huttendorf and others. …I will no longer give way to requests from those who I have not been in contact with personally and will never allow this to happen again."
Several testimonials were tendered on Ms Woodrum's behalf which spoke to her naiveté. The Crown maintained, consistently with authority, that little weight should be given to such evidence, especially where an offender does not give evidence. In many circumstances, that submission would have much force. In the present circumstances, however, it must in my view yield to the uncontested facts. Ms Woodrum was clearly duped by a character who she had never met, peddling a story that no-one should believe, embroidered with the promise of an inherently improbable romantic ending, to an otherwise vulnerable woman whose financial situation had been exacerbated by medical bills incurred in the United States for which she had no or insufficient insurance and which led to her losing her employment and ultimately her bankruptcy. It is a mistake in my opinion to conflate the fact that Ms Woodrum would appear to have lied to customs officers at the airport when first apprehended with the notion that she participated in her crime on an equal footing with Hendrik Cornelius. Her guileless behaviour when confronted at the airport, together with her telephone messages to him, do not bespeak someone who was Mr Cornelius' equal. Whatever Ms Woodrum's comment about being happy to serve with him might have meant, it does not in my view show equality so much as romantic, even sycophantic, deference.
The passage extracted from her Honour's remarks on sentence dealing with Ms Woodrum's motivation for her offending concentrate to some extent upon matters going to her arguable lack of remorse. By her plea Ms Woodrum has accepted that she took part in the importation of a border controlled drug. Limited evidence of remorse, if that is accepted, may operate against Ms Woodrum but should not be used as a basis for concluding that she was not significantly influenced by a shrewd stranger with whom she expected to enjoy something considerably more enduring than a short-term commercial relationship.
I also take account of the fact that Ms Woodrum's motivation for committing the offence was to an extent generated by her depleted financial position caused by sending money she could not afford to the same Mr Cornelius with whom she hoped to commence a relationship. Ms Woodrum was in my view very much the junior partner in this curious enterprise. Her moral culpability is correspondingly reduced.

Financial Motivation

Her Honour considered Ms Woodrum's financial motivation in the following extract from her remarks on sentence: "The offender says in the documents that she made significant payments to the person she believed to be Cornelius on the strength of what is now accepted to be entirely dubious grounds. Given there is no independent evidence to support such an assertion and where payments were said to have been made via Western Union where a paper trail would no doubt exist, without corroborative evidence I do not accept the full extent of her statements regarding unrelated payments to the person she had contact with online. She also purports to be bankrupt without the provision of any supporting documentation. A text message appears to contain a reference to payments which was to be regarded as a loan, being sought by the offender from her father at the behest of Cornelius. There is finally evidence that due to illness, the offender's employment was disrupted making her financial position more precarious. On any reliable evidence, the full extent of the offender's financial pressures, at the time of her offending, remains unknown. However I accept, to some extent, that at the time of the offending the offender was financially pressed. So much was accepted by the Crown. As clearly indicated by her text to the person known as Stacy, as early as 25 July 2017 that 'the whole trip was paid for and will get additional payment for work'. I find that the offender carried out the offence for financial gain."
In my opinion, the evidence to which her Honour refers requires close scrutiny. It is unclear from whom or when Ms Woodrum's anticipated payment would be made. There is no evidence to indicate how much Ms Woodrum had been promised, if indeed her expectation ever rose that high, or that she could have had any confidence that her expectation would be met. It is patently clear that to the extent that Ms Woodrum placed any confidence in the promises made to her by Mr Cornelius, that confidence was misplaced. Any realistic or objective assessment of the situation inevitably suggests that Ms Woodrum was never likely to receive anything at all for her role and that fact should be taken into account in assessing the significance of financial reward for sentencing purposes. Unlike her Honour, I do not consider that Ms Woodrum's text message to a person known as "Stacy" in July 2017 saying that "the whole trip was paid for and will get additional payment for work" is reliable support for the suggestion that she carried out her role in the offence for financial gain. This factor must in my view be considered against the certain prospect that Ms Woodrum was being deceived by Mr Cornelius and that her inability to recognise or accept that fact should inform the real extent of her criminality.

Objective seriousness - conclusions

I consider that this offence falls well below the middle of the range of objective seriousness. Ms Woodrum was not involved in the conception or planning of this crime. She did not source the drugs nor prepare them for export. By her plea she recognises that she was aware that she was carrying a border controlled drug. However, Ms Woodrum was clearly duped by her controller in what has unfortunately become a common and cynical way used by importers to reduce or eliminate personal risk of detection.

Criminal record and good character

Her Honour said this about this topic: "The offender is an American citizen who has no recorded criminal history either here or in the US. I accept that she is otherwise of extremely good character as set out in her references and I take into account in her favour, including a leniency that I extend to a first offender. However those who set out to import significant amounts of border controlled drugs such as cocaine for which there is a considerable profit motive, rely on the criminal acts of those with no criminal histories so as not to draw attention as they seek to enter other countries. It is accepted that good character is less relevant in cases of this kind."
It is the task of this Court to re-sentence Ms Woodrum, not to offer a commentary on her Honour's remarks. I should observe, however, that I would not depreciate Ms Woodrum's good character and wholly uneventful criminal record upon the basis that she might for that reason have been more able to pass through customs procedures with a lower risk of detection. It may be otherwise in circumstances where an offender could be shown actively to have promoted his or her value to a prospective criminal enterprise by touting a suitability based upon such matters. There is no evidence that Ms Woodrum did so. I am not prepared to accept that good character is less relevant for these reasons in the particular circumstances of this case. Ms Woodrum's references speak with one voice about her lack of criminal antecedents and gullibility. These are not matters for which she should receive only limited credit simply because the crime is calculated to generate considerable profits. That is especially so in this case, where I am not prepared to accept that Ms Woodrum was likely to participate in the distribution of any profits at all.

Subjective factors

Ms Woodrum has a very strong subjective case. Her Honour referred to this in some detail as follows: "The offender is 51. She was 50 at the time of the offending. She is the younger of two sisters born to her parents in Illinois, USA. Her sister died as an infant prior to her birth. Her mother became significantly depressed and suffered what appears to be post-traumatic stress disorder as a result of this loss. The offender's father left the home when the offender was seven and I accept that this worsened her mother's fragile mental state. The offender described her mother as being crazy and abusive, including physical abuse and locking her in a room for hours as punishment, a matter that I take into account. In addition to that her mother used to make her eat large amounts of food to the point where she would vomit. She said that her mother spent much of her time sleeping and I accept that, and the fact that the offender had responsibilities to undertake household tasks. As a result of those matters, and due to her mother than [sic] marrying a veteran also with PTSD, she went to live with her father at the age of 13. She saw him regularly after her parents divorced and her contact with him increased over time. The offender described her father as generally supportive but that he was often working and they did not spend much time together. The offender remained with her father until she was 19. She returned to living with him whilst completing a Master's degree. She otherwise lived with her husband and more recently has lived alone after that union dissolved. The offender was married for 15 years, the relationship began to break down in 2006 and they divorced in 2010. The offender described the relationship as initially positive but said that her husband had run up debts. She acknowledged a couple of incidents of physical violence and verbal abuse which I take into account. She has remained single since the dissolution of her marriage and has no children. EDUCATION AND EMPLOYMENT The offender made a sound progression through formal schooling. She achieved above average grades and did not report any learning problems. She undertook a range of extracurricular activities, received a reward from the National Honour Society and was Valedictorian. She made few friendships and most of those were gained through her pursuits. She spent much of her spare time studying. Similarly she described being in her own world as an adult with limited time to spend with others due to work and household responsibilities. She completed an Associate and then a Bachelor degree in science, she completed a Masters degree in Business Administration in 1995. She had a strong employment history that has comprised various roles including maintaining a business with her then husband in marketing, in accounts and administration, and in substitute teaching for additional work. She held part-time roles while studying. She also completed a certificate in Business Administration Technology in 2009. Those matters are to her credit. She is resourceful, industrious and not unintelligent. She joined a women's religious organisation, known as the Adorers of the Blood of Christ, seven years ago. She has been involved in various retreats and conferences representing that organisation. She describes losing her role in accounts and administration in late 2016 due to poor health, noting that she was away from work for an extended period. Once her health improved she was performing four roles including substitute teaching, sales, secretarial work and obtaining royalties from a health product. All of those matters are to her credit. She declared herself bankrupt in 2017 due to increasing financial problems, matters which I have already gone to."
These findings are not controversial. I also consider that they ought to be taken into account favourably to Ms Woodrum.

General deterrence

General deterrence is particularly relevant to offences of this kind. Even accepting that Ms Woodrum was not involved in the planning of this crime, her recruitment occurred at a stage when quiet contemplation of the consequences of being apprehended was both possible and likely. This is to be contrasted with offences that occur spontaneously or reactively when a reasoned assessment of risks cannot necessarily be assumed. Moreover, the use of couriers for the purpose of carrying drugs into Australia is well publicised and the outcome for those contemplating similar participation should be unambiguously indicated.

Consideration

Counsel for Ms Woodrum emphasised that the starting point for the sentence imposed by her Honour was imprisonment for 10 years, prior to the application of the 25 percent discount for her early guilty plea. He submitted that such a starting point in this case was "extreme". Judicial Commission of New South Wales statistics for offences against s 307.2(1) of the Criminal Code for the period between 1 July 2013 and 30 June 2018 indicate that only 2 offenders received a sentence for this offence of 10 years. These statistics indicate that the median head sentence was 6 years with non-parole periods of between 3 years and 3 years and 6 months.
This Court was also referred to several comparable cases decided in both the District Court of New South Wales and on appeal to this Court, as well as in other jurisdictions. On one view, her Honour's sentence was not generally out of step with the sentences imposed in those cases. However, reference to a series of decisions relied upon by the Crown suggests that her Honour's decision was too severe: see, for example, Bertilone v R (2009) 231 FLR 383; [2009] WASCA 149 [NPP 2 years and 6 months]; Di Tommaso v R [2010] VSCA 178 [imprisonment for 30 months, released after serving 18 months]; Chang v R [2011] NSWCCA 182 [NPP 2 years and 9 months]; R v Sutton [2013] QCA 151 [NPP 2 years and 6 months]. In referring to these cases and sentencing statistics I have not overlooked the caution to be exercised in drawing anything more from them than limited circumstantial guidance.
In my opinion, the sentence imposed upon Ms Woodrum was unreasonable and plainly unjust when regard is had to her strong subjective case and prior good character in the context of having been inveigled into performing her role in the expectation of a romantic outcome.
Some distinct flavour of this influence, and Ms Woodrum's rather stunning naiveté, can be gleaned from exchanged text messages passing between her and Mr Cornelius, including one sent by her on 11 July 2017, some three weeks before she entered Australia with the cocaine in her luggage: "My loyalty toward you will never end…The days that I wake up without a text, or a call or an indication that you're around I end up dragging my feet all day with a sunk heart and dark mood. If you only Knew how Anxious, Happy, Energetic, Ambitious, Eager, light Hearted and Fearless I feel when you touch my life somehow someway once a day I REMAIN IN LOVE!!!! Can you promise you will never leave me? I want to be together always no matter what "family first". You are my Only and First true Family!!! All My Love Darling. Sweet Dreams!"
Mr Cornelius had earlier written to Ms Woodrum on 29 April 2017, 30 April 2017 and 1 May 2017 respectively in these terms: "I never thought that I will ever be in love again. I'm so happy that I met you, now my life is complete. Good morning my dear and I am wishing you an astonishing day. … My love we would both sit down and decide where would live and settle down for the rest of our lives. … Do you imagine how happy I am When I wake up every morning And know that you are mine And I am yours. Have a beautiful morning my sweetheart."
It is common ground that Ms Woodrum had neither met nor spoken to Hendrik Cornelius at any time.
In my opinion, the deception practised upon Ms Woodrum is clear and significant. It importantly informs the assessment of her moral culpability. The matter can be tested by asking whether it appears likely that a person with Ms Woodrum's impeccable background and strong subjective circumstances would have been inclined to engage in serious criminal activity with "Hendrik Cornelius" in the absence of some expectation, however unlikely this may appear to a detached and rational observer, of a future romantic association with him. I consider that such a prospect is almost non-existent.
I also take account of the fact that Ms Woodrum has never before been imprisoned and that her first such experience is in a foreign land separated geographically from her family and friends. In my opinion, Ms Woodrum has excellent prospects of rehabilitation and is unlikely ever to re-offend. There is a corresponding lack of any need for specific deterrence.
In all of the circumstances, I consider that the following orders should be made: 1. Grant Ms Woodrum leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed upon her by Wass DCJ on 6 September 2018. 4. In lieu thereof, sentence Ms Woodrum to a non-parole period of imprisonment of 3 years commencing on 4 August 2017 and expiring on 3 August 2020 with a balance of term of 2 years expiring on 3 August 2022.
CAVANAGH J: I agree with Harrison J.

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