X Y v The Queen [2013] VSCA 261

1 The applicant seeks leave to appeal against a sentence of 8 years' imprisonment with a minimum term of 6 years' imprisonment, which was imposed upon him when he pleaded guilty in the County Court to a charge of importing a border controlled precursor, namely pseudoephedrine, an ingredient of methylamphetamine.

2 On 8 September 2011, customers officers intercepted a package containing steel bowls. Pseudoephedrine was concealed between the bowls. On 9 September 2011, customs officers intercepted a package containing DVD players and graphic equalisers in which pseudoephedrine had been concealed.

3 The pseudoephedrine was in cold and flu medication which yielded 3.1 kilograms of pure pseudoephedrine. The value of the precursor was between $300,000 and $600,000 wholesale, and between $5 million and $6.5 million at street level.

4 The applicant was arrested in his car near the house where the second delivery was taking place. Surveillance evidence showed the applicant was in the company of other men near the house in circumstances showing he was involved in and waiting for the delivery. A search of the car revealed an iPhone, cash, a piece of paper containing the consignment numbers, names and addresses of the packages that had been sent to the each of two addresses in Preston in Victoria.

5 An analysis of text messages found on the iPhone shows that between 4 August and 14 September 2011 the applicant was in frequent contact with a number of persons in China and disclosed that the applicant played an active role in managing the importation of the pseudoephedrine. The applicant engaged with suppliers in China, solicited the importation of the packages, made or undertook to make payments for the contents of the packages, and enlisted others to participate in the collection of the packages.

6 The applicant travelled from his home in New South Wales to Preston to assist in the collection of the pseudoephedrine and the applicant made arrangements to sell and deliver the pseudoephedrine to others. The applicant accepted that he knew that the pseudoephedrine would be used to manufacture methylamphetamine.

7 The applicant is 25 years' old. He came to Australia in 2008 and became a permanent resident, obtaining that status in June 2011.

8 The applicant married in Australia a woman of Chinese origin and has three children under the age of five. When he was sentenced, his wife was expecting a fourth child.

9 Counsel for the applicant told the sentencing judge that the applicant had been working at building and construction at the time he was arrested. When he was interviewed by police, the applicant said that he and his wife conducted a toy shop which provided an income of about $60,000 per annum. The applicant had driven from Sydney to Melbourne to commit the offence in a car for which he had paid $67,000 some months earlier.

10 The first ground of the application is that the total effective sentence and the nonparole period are manifestly excessive. Counsel for the applicant said that the amount of the precursor was less than three times the commercial quantity of the substance and relied upon the applicant's plea of guilty, his relative youth, his lack of prior convictions, the fact that the applicant would be separated from his family and the difficulties he faced due to his limited ability to speak English.

11 As to the plea of guilty, I note that the plea was made only shortly prior to a final directions hearing. The offence was committed in circumstances which disclosed a commercial undertaking being conducted in a businesslike manner for profit. The importation was on a significant scale. The maximum sentence of 25 years' imprisonment reflects the gravity with which the offence is viewed by Parliament.

12 In my opinion the sentence was within the discretion of the sentencing judge.

13 The complaint as to the length of the non-parole period was based upon the applicant's youth, his lack of prior convictions, his plea of guilty, and what were said to be his strong prospects of rehabilitation.

14 Notwithstanding these mitigating circumstances, I do not regard a non-parole period representing 75% of the head sentence as beyond that which could be imposed as the minimum term to be served having regard to all the circumstances of the offence, for the non-parole period required a balancing of the various interests of the community against the advantage to the community which release on parole might be thought likely in the circumstances of this case to confer.

15 The second ground of the application is that the sentencing judge erred in finding that the applicant was, 'well up in the hierarchy'. Counsel for the applicant submitted that the sentencing judge was not entitled to proceed on that basis as the place which the applicant occupied in the hierarchy was not known. It was said that the finding impermissibly aggravated the level of the applicant's culpability.

16 I disagree. The offence was importation of the precursor into Australia. In that operation the facts accepted by counsel for the applicant at the plea established that the applicant was actively involved in all the steps necessary to move the precursor into the manufacture of drugs once the substance landed in Australia. The judge's remark that founds the ground was immediately succeeded by the words, 'I accept that you are not at the very top of the ladder'.

In my view, her Honour's description of the applicant's role was accurate.

17 The third ground of the application is as follows:

The learned sentencing judge erred in fact by finding that the applicant had told the police he had paid $67,000 cash for his car months prior to the offence.

18 The applicant told the police that he paid a deposit of $10,000 and later made further payments. Her Honour did say, however:

Whether he pays cash for the car or whether he gets a loan and pays it off, if he is able to afford a car of that value ... and he's working two jobs, the evidentiary support for Dr Grech's view that he has precarious financial circumstances ... just isn't there.

In the light of this statement, I do not think that the earlier state that, 'You said you'd paid $67,000 cash' played any meaningful role in determining the sentence.

The learned sentencing judge erred in rejecting the evidence of Dr Grech that the applicant suffered depression and in finding that there is no evidentiary support for a finding that you suffer from depression.

20 In a report dated 12 December 2012, Dr Grech, a psychologist, said:

[The applicant's] score on a reliable self report scale of impression placed him within a moderately severe clinical range ... with most items at least partially endorsed.

As a result of concern raised by the sentencing judge, Dr Grech made a further report stating that his diagnosis followed the administration of the Beck Inventory Test. It was conceded by Dr Grech that the responses given related to a person's feelings only in the two week period prior to the administration of the test. Dr Grech further stated that it was his 'clinical impression, based on discussions' with the applicant that the depression had been of 'relatively long-standing duration'.

21 Dr Grech's diagnosis was apparently based upon the applicant's account of his emotions and thoughts over a short period of time, which coincided with his lawyer's announcement that he would plead guilty, so that it may be presumed that the applicant was aware of the prospect of a lengthy gaol term. Counsel for the applicant at the plea agreed with the sentencing judge's statement that the Beck Inventory Test is ' ... clearly insufficient to provide a proper foundation for a diagnosis of depression'.

22 Counsel said, 'I don't for one moment suggest that Verdins would apply in any way at all'. The judge's finding might be described as robustly cynical, but in my opinion, it was one that was open to her Honour in the circumstances.

23 The fifth ground of the application is that the sentencing judge erred in finding 'There was no evidence before [her] that would enable [her] to make a finding that you are remorseful'.

24 Her Honour's remark was preceded by the statement that:

The mere fact of the entry of a plea of guilty does not of itself indicate remorse although at times it, together with other circumstances, does demonstrate remorse.

25 Counsel for the applicant in this Court submitted that the judge erred in proceeding upon the basis that it was the mere fact of the plea that established remorse, for the applicant had told Dr Grech that he was ashamed. Counsel for the applicant at the plea, however, when asked by the judge, 'Have you got anything other than the plea of guilty that you rely on for evidence of remorse?' said:

Well, only the plea of guilty and the negotiations that took place with the Commonwealth over a period of time.

I do not consider that the judge can now be criticised for failing to meet a case put for the first time on appeal.

26 The final ground of the application is that the applicant seeks to rely on fresh evidence as to his co-operation with the authorities between the dates of the plea and sentence.

27 In a record of interview made a few days before the sentence was imposed, the applicant identified one of two persons who ran away from the police on the day the applicant was arrested near the place at which the drugs had been delivered, described how he had become involved in the crime and gave physical descriptions and addresses by reference to maps of Sydney of other persons he said were involved in similar offending. The applicant's co-operation was not drawn to the attention of the sentencing judge.

28 Counsel for the respondent has conceded that the co-operation constitutes fresh evidence, which is admissible. See R v Mandala [1999] VSCA 159, [17].

29 Although counsel for the applicant submitted that the interview denoted

I want my sentence cut so I can leave the prison earlier ... I really want to do something to help you for myself as well.

30 While the assistance provided by the applicant was rather limited, it is a matter to be brought to account in the applicant's favour, leading to a discounted sentence, principally to encourage offenders to inform against other offenders and also to reflect the danger to which the applicant may have exposed himself as an informer.

31 Accordingly, I would re-sentence the applicant to be imprisoned for a term of 6 years and fix a minimum term of 4 years' imprisonment.

1. The application for leave to appeal against sentence is granted.

2. The appeal is treated as instituted and heard instanter and is allowed.

3. The sentence of imprisonment imposed below is quashed.

4. In lieu thereof the appellant is sentenced to be imprisoned for a term of 6 years. A non-parole period of 4 years is fixed.

5. Pursuant to s 6AAA of the Sentencing Act 1991 it is declared that but for the plea of guilty a sentence of 9 years' imprisonment with a minimum term of 7 years would have been imposed.

6. The forfeiture order made in the court below is confirmed.

7. It is declared that a period of 183 days (not including this day) is to be

reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

Mr Holdenson QC undertook to arrange to have the sentence explained to the appellant and in particular the matters set out in paras (a) to (d) of s 16F(1) of the Crimes Act 1914 (Cth).