Criminal law - Sentence - Importation of heroin - Minimum term in excess of 2/3 of head term - Whether this complied with statutory requirements

Crimes Act 1914 (Cth), s 19AA(1)

Sentencing Act 1995 (WA), s 95

Minimum term varied from 5 years to 4 years 9 months

Respondent : Commonwealth Director of Public Prosecutions

Cottrell (1989) A Crim R 31

Ferrer-Essis (1991) 55 A Crim R 213

Quach v The Queen [1999] WASCA 210

R v Tait & Bartley (1979) 24 ALR 473

1 PIDGEON J: I agree with the reasons to be published by Parker J and the orders proposed.

2 WALLWORK J: On 31 March 2000 the applicant was sentenced for an offence of bringing 105 packages of heroin into Australia. The heroin weighed 224.2 grams and was said to be worth between $375,000 and $400,000. The amount of drug involved was 110 times the maximum trafficable quantity. The applicant was to have received $10,000 for bringing the drug into Australia.

3 In his sentencing remarks the learned Judge told the applicant that the appropriate and just sentence for the offence was 12 years imprisonment. Her Honour discounted that term by 40 per cent due to the fact that the applicant had pleaded guilty at the earliest opportunity and had cooperated with the authorities. The applicant now applies for leave to appeal on the sole ground that in all the circumstances, the 40 per cent discount was not sufficient.

4 The learned Judge said that the arrangement which the applicant had made with the supplier had not been a spur of the moment transaction. The applicant had been approached by the supplier and had told the supplier he wanted to think about it. He had then agreed to take part in the offence. He had travelled to Switzerland to obtain a new passport.

5 The arrangement was that the applicant would bring the heroin into Australia and then contact the supplier. The applicant was to play no part in the distribution of the heroin in Australia. He was caught red-handed in Fremantle when he became ill due to having swallowed the heroin. He thereafter cooperated with the authorities.

6 The Judge said that the applicant had cooperated and would continue to cooperate with the authorities in the prosecution of the supplier who had enlisted the applicant as a courier. Her Honour did not detail the cooperation which had been given and made an order prohibiting publication of the details of the cooperation "... save for the fact that you have cooperated". In her Honour's view that prohibition should continue. I agree with that view, except that due to the nature of the application in my view the applicant can best be protected by referring to him as "X" in any future publications.

7 The applicant was 44 years of age at the time of sentencing. His role in the enterprise had been solely as a courier. He had no prior criminal convictions. He had been born in Switzerland and had gone to live in Thailand when he was about 36 years of age. He was involved in a

relationship and had three children between the ages of 3 and 6 years. He had been working in Thailand as an electrician. He had pleaded guilty on the fast-track system.

8 With respect to the fast-track plea of guilty the learned Judge said:

"... that alone attracts a discount in your sentence of between 25 and 35 per cent."

9 Concerning the aspect of cooperation with the authorities, the Judge said:

"Factors relevant to the granting of a discount include the public interest and that offenders should be encouraged to supply information to the authorities which will assist to bring other offenders to justice. The motive for cooperation is irrelevant. The extent of the discount will depend to a large extent on the willingness with which the cooperation is provided."

10 The applicant had genuinely cooperated with the authorities.

11 The Judge said that other matters to take into account were any threat to the applicant's safety and the conditions under which he would serve his sentence. The Judge said she had no information about those matters but inferred that the applicant might be at some risk and that his conditions of imprisonment might be more onerous because of his cooperation.

"Your early plea of guilty and your cooperation warrants a significant discount. Your plea of guilty is of some limited mitigation given that you were caught red-handed."

13 In my view it appears from those last-mentioned remarks that the learned Judge did not give the applicant sufficient credit for his plea of guilty on the fast-track system because her Honour described it as "of some limited mitigation". The main effect of a plea of guilty on the fast-track is the saving to the State of the considerable expense and preparation which is involved in a trial, whether or not the offender is caught red-handed. An unnecessary trial also causes other trials to be delayed with the added stress that those delays cause to victims of crime.

14 After having said that a plea of guilty on the fast-track system "alone attracts a discount in your sentence of between 20 and 35 per cent", the learned Judge discounted the 12 year sentence by 40 per cent because of the fast-track plea of guilty and the applicant's cooperation with the authorities.

15 With respect to the question of cooperation with the authorities, in R v Perrier (No 2) [1991] VicRp 38; (1991) 1 VR 717 at 725, McGarvie J said:

"The position changes once a courier is detected with heroin ... that is the time that the courier's conduct is most susceptible to being influenced by the criminal law. It is in the public interest that at that stage the criminal law exerts its maximum influence so as to lead a courier to follow self-interest by implicating other traffickers. This is best done if the criminal law faces a courier with a clear and compelling alternative: a heavy sentence if there is no cooperation, as against a very substantial reduction in sentence if cooperation is forthcoming and other traffickers are implicated. The incentive to the heroin courier to cooperate in implicating other traffickers needs to be a very high one. Those who control the cruel heroin trade are persons greatly to be feared. Experience has shown that those who inform against them face high and continuing risks of murder or serious injury. As informers requiring the isolation involved in protective custody, their conditions of serving whatever sentence they receive are particularly harsh. If their homeland is overseas, they are likely to serve the sentence without receiving any visits from friends or relatives. The reluctance of couriers to do other than protect the principal traffickers and seek to deny they have themselves committed an offence is notorious. For these reasons I consider that it should become known to those associated with the drug trade that in a case such as this, the courier faces a heavy sentence unless cooperation is forthcoming, but if there is cooperation which results in the conviction of a principal trafficker, a courier who admits the offence and pleads guilty might well have the period of sentence reduced by about two-thirds. Of course, the effective operation of such an incentive depends on there being a safe system of witness protection to guard the courier."

16 In this case counsel for the Crown advised this Court that there was no issue taken with the fact that the applicant had cooperated with the authorities and continued to cooperate. He had been proofed and his cooperation appeared to be genuine. The court was advised that after he had been apprehended and was in hospital, the applicant had made a

necessary telephone call following which the principal offender had come to the hospital. Then the applicant had tape-recorded their conversation.

17 The co-offender had come from Thailand. Counsel for the Crown advised that had it not been for the applicant, the co-offender might not have been detected. It was conceded that the only way the co-offender had been apprehended was due to the co-operation of the applicant. The co-offender had planned to take part in the distribution of the drugs in Australia.

18 In R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ discussed how the discount for cooperation should be considered by sentencing Judges. Applying his Honour's reasoning and that which has been quoted above from Justice McGarvie, it is my view that the applicant was not given a sufficient discount for his fast-track plea and comprehensive cooperation with the authorities, which cooperation resulted in the principal offender being apprehended. If the applicant was given a 20 per cent discount for his plea of guilty and another 30 per cent for his cooperation with the authorities, the total discount would be 50 per cent. In my view that would be a reasonable discount in this case. The 40 per cent discount was not sufficient.

19 I would grant leave, allow the appeal and vary the sentence by allowing a discount of 50 per cent from the starting point of the 12 year sentence concerning which there was no complaint. The result would be that the applicant would receive a term of 6 years imprisonment. Applying the two-third percentage which was applied by the learned sentencing Judge to arrive at the minimum term, the minimum term would then be a term of 4 years imprisonment which would be back-dated to 13 December 1999 as was the original sentence.

20 PARKER J: The applicant seeks leave to appeal against a sentence of 7 years 4 months, with a minimum period of 5 years imprisonment, imposed on him in the District Court on 31 March 2000 by O'Brien DCJ. The applicant had pleaded guilty to an offence of importing into Australia some 314.4 grams of a mixture containing heroin which was of a 71 per cent purity, ie the pure heroin imported by the applicant was some 224.2 grams. Pursuant to the Customs Act 1901 the trafficable quantity of heroin is 2 grams pure.

21 The applicant is a Swiss national and a resident of Thailand. He travelled to Perth by air on 11 December 1999. On 13 December 1999 the applicant was found in an unsteady and disorientated condition. He was admitted to hospital and some 53 packages each weighing between 4 and

5 grams containing the heroin mixture were removed from his body. A further 50 packages were located in his personal effects and in the frame of his backpack.

22 When first interviewed the applicant readily admitted his importation of the heroin which he said he had undertaken at the request of a person he knew in Thailand and whom he identified to the police. He said that at the request of this person he had travelled from Thailand to Switzerland to obtain a new passport. He had then returned to Bangkok and there obtained the packaged heroin from this person and arranged that he would meet this person again in Perth where he was to hand over the heroin. It was the applicant's account that he was to receive $10,000 for his importation, his expenses also being met.

23 The applicant further agreed to assist the investigating authorities. By arrangement with the police he telephoned the person whom he had identified, and who had travelled separately to Perth, and encouraged that person to visit him in hospital. When that visit occurred he cooperated in a secret tape recording of the conversation that transpired. The other person has since been charged with his part in the importation and at the time of the hearing of this application he was awaiting committal proceedings. The applicant has agreed with the police that he will give evidence against the other person.

24 The principal contention advanced by the applicant Was that the sentence of 7 years 4 months was manifestly excessive and failed adequately to reflect the applicant's early and fast track plea of guilty and the extent and consequences of his cooperation with the investigating authorities. It is submitted that her Honour ought, in effect, have allowed a 50 per cent reduction in what otherwise would have been the appropriate sentence whereas her Honour in effect allowed approximately a 40 per cent reduction.

25 In her sentencing comments, having dealt with the circumstances of the offence, the applicant's personal circumstances, the applicant's cooperation with the police and having noted the fast track plea of guilty, all in terms to which no objection is taken, her Honour noted that for an importation of this nature a sentence in the order of 10 to 15 years imprisonment would be appropriate. Her Honour then fixed on a starting point of 12 years imprisonment having regard to the circumstances of this case and this offender. No objection is taken to the starting point of 12 years. I would observe in this respect that it is certainly not a sentence which is excessive or even toward the upper end of the appropriate sentencing range so that it is not surprising that the applicant makes no submission in this respect. Her Honour also noted that for pleas of guilty discounts have between 20 and 35 per cent in the sentence have been allowed, although her Honour then noted that the circumstances of the present case were such that the plea of guilty was entered against the background of an almost inevitable conviction as the applicant was detected virtually red-handed. Her Honour then observed that a significant discount from what otherwise would be an appropriate sentence was warranted on the authorities because of the cooperation of the applicant with the authorities, the nature of and consequences that cooperation having been expressly noted by her Honour.

26 It was by this process that her Honour came to fix on a sentence of 7 years and 4 months which is close to a reduction of 40 per cent from the starting point of 12 years imprisonment which her Honour identified. In terms of mathematical precision a sentence of 7 years and 2 months would have more accurately reflected a 40 per cent reduction, but her Honour fixed on 7 years and 4 months and I would not see the difference as material. The issue, squarely raised by this appeal, is whether her Honour erred in failing to attach a greater significance to the combined effect of the early fast track-plea of guilty and the cooperation of the applicant when she determined on a sentence of 7 years and 4 months imprisonment.

27 Many decisions of this Court and of other courts in Australia have sought to make it clear that there is no fixed formula or "tariff" when recognising an early plea of guilty in the sentencing process. There are many factors which will weigh differently according to the particular circumstances of the case. As her Honour correctly observed, the motive of the applicant in pleading guilty will not exclude the appropriateness of some recognition of an early plea of guilty. A plea of guilty which is entered as a consequence of genuine contrition and remorse, however, will usually warrant a more favourable recognition. Hence, as a number of cases have made clear, a plea of guilty which is only entered late in the course of proceedings and a plea of guilty which is entered in the face of a strong prosecution case will warrant less recognition than an early plea of guilty or a plea entered where the prosecution case has some significant difficulties or uncertainties; see Doherty v R, unreported; CCA SCt of WA; Library No 970518; 14 October 1997, Foster v D'Anna (1992) 59 A Crim R 14, Lim v R, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 and Heryadi v R (1998) 98 A Crim R 578 at 584. In the present case the applicant pleaded guilty effectively at the earliest opportunity and was committed for sentence on the fast-track system. On the other hand his plea of guilty was in the face of the virtual inevitability of conviction given the strength of the prosecution case. In these circumstances even a reduction in the order of 25 per cent would be generous.

28 The authorities and commonsense dictate the appropriateness of clear and significant reduction being given in the sentencing process where there is cooperation with the investigating authorities. Necessarily, the nature and the circumstances of that cooperation and its consequences for the offender and the authorities will differ significantly between individual cases and these differences will be reflected in the degree of recognition which is appropriate. Nevertheless, there are strong public policy considerations in favour of some substantial reduction being given. In the present case it is clear that some substantial discount from what otherwise would be an appropriate sentence was called for as the applicant willingly gave what is accepted to be full and frank information to the investigating authorities. This led them to identify and arrest the co-offender. Further, the applicant has undertaken to give evidence against the co-offender at his trial. It may be properly concluded that the co-offender was at least one step higher up the chain of organisation in the importation of narcotics into Australia than the applicant, which is a factor that weighs in the applicant's favour. It is also important to recognise that by virtue of this cooperation the applicant may well expose himself to difficulty, if not danger, as he serves his own sentence, and even thereafter. The appropriateness of these matters justifying a substantial discount has been recognised in decisions such as R v Dinic (1997) 149 ALR 488, Duffy v R (1996) 85 A Crim R 456, R v Cartwright (1989) 17 NSWLR 243 and R v Gallagher (1991) 23 NSWLR 220.

29 Even so, the sentencing Judge is required to keep in mind that notwithstanding full and frank and material cooperation and assistance, the offender is to be sentenced for the criminal conduct committed by that person. As Gleeson CJ, as he then was, said in R v Gallagher (supra) at 232:

"Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards."

30 In this application it is not submitted that her Honour mistook or failed to have regard to the relevant principles or that she misdirected herself as to any material matter of fact. It is the applicant's case that, in the result, an effective reduction of some 40 per cent was not a sufficient recognition of his early plea of guilty and the nature and consequences of his cooperation.

31 The principles upon which this Court would approach an appeal against the sentence in these circumstances have been long established. As it was said by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allow extrinsic or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.:

Further, in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 72 the High Court emphasised:

"Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic; House v The King. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."

Hence, in the present case, the applicant presents his case on the basis of the third kind of error identified in House v The King. As was made clear in Dinsdale v The Queen [2000] HCA 54 at [5] in a case such as this it is only if the sentence imposed is outside an appropriate range of sentencing discretion so as to be manifestly wrong that it is open to this Court to "pass such other sentence warranted in law ... in substitution" for the sentence imposed by the sentencing Judge; s 689(3) of the Criminal Code. In the absence of such manifest error this Court is without power to interfere with the sentence passed below. Her Honour did recognise the fast track plea of guilty and the cooperation of the applicant by a substantial reduction of some 40 per cent from the sentence which her Honour would otherwise have imposed. Her Honour did not seek specifically to ascribe any particular discount to the plea of guilty or to the cooperation. In this respect I have noted already the observation of her Honour that a discount of some 25 - 35 per cent had been allowed in some cases for a plea of guilty, but when her Honour's observations are read in full it is clear, in my view, that she was not intending by that reference to indicate that she would allow a discount in that order in the circumstances of the present case.

32 As was pointed out in R v Gallagher (supra) at 228 a plea of guilty and cooperation with the investigating authorities are not necessarily unconnected considerations as Gleeson CJ said at 228:

"In this case, for example, the appellant was entitled to receive, and receive, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It is also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical."

However, I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so. For reasons earlier stated, there may be many cases in which it is either impossible or inappropriate to take that course. Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by "tariffs" derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all of the considerations of policy which governs sentencing as an aspect of the administration of justice." (emphasis added)

In the present case, while it was open as a matter of discretion to her Honour to have sought to identify separately the recognition she considered appropriate to the plea of guilty and the cooperation with the authorities, in my view the two were clearly closely interrelated and there would have been a clear artificiality and arbitrariness in any such attempt.

33 An assessment of the degree of recognition or discount which is justified in the circumstances of this case is not at all a straightforward matter and there is some scope for differences of opinion in the legitimate exercise of the sentencing discretion. For my part, I am not able to conclude that the reduction of some 4 years and 8 months, from the starting point of a sentence of 12 years imprisonment which her Honour fixed upon, was outside the appropriate range of sentencing discretion so as to manifest error on the part of her Honour. It may be thought by some to be toward the lower end of the appropriate range and that a more generous discount could have been justified, but even so there is, in my view, absent any clear and manifest error in the result. In my respectful view, a discount in the order of 50 per cent, which is contended for, would have been a quite generous recognition of the appropriate considerations in the particular circumstances of this case.

34 For these reasons I am not persuaded that the applicant has demonstrated that there was manifest error by the sentencing Judge in the imposition of the head term of 7 years and 4 months imprisonment.

35 There is a further ground of appeal. This concerns the minimum term of five years determined by her Honour. It is accepted by both the applicant and the respondent that, by virtue of s 19AA(1) of the Crimes Act 1914 (Cth) and s 95 of the Sentencing Act 1995 (WA), her Honour was required to fix a minimum term that was not in excess of two-thirds of the head sentence. The minimum term determined by her Honour of five years is slightly in excess of two-thirds of the head sentence. Hence, her Honour has erred in law in imposing a minimum term of five years.

36 It therefore falls to this Court to re-exercise the sentencing discretion in respect of the minimum term. The minimum term was required to be fixed having regard to s 19AA(1) of the Crimes Act and having regard to the minimum time that the Court determines that justice requires must be served in all the circumstances of the case; Oancea (1990) A Crim R 141.

37 In light of those principles, and having regard to the approach taken by the sentencing Judge and the statutory requirements, in my view, it would be appropriate to fix a minimum term of 4 years and 9 months, rather than 5 years.

38 For these reasons I would grant leave to appeal and allow the appeal, but only to the extent that the minimum term fixed should be varied from 5 years imprisonment to 4 years and 9 months imprisonment. The head term will remain unchanged at 7 years and 4 months and, as indicated by her Honour, service of that sentence should date from 13 December 1999 when the applicant was first taken into custody in respect of this offence.