Regina v Brigette Anne VAN DEN AKKER [1999] NSWCCA 426

New South Wales Court of Criminal Appeal CITATION : Regina v Brigette Anne VAN DEN AKKER [1999] NSWCCA 426 FILE NUMBER(S) : CCA 60117/99 HEARING DATE(S) : 3 December 1999 JUDGMENT DATE : 15 December 1999

PARTIES : Regina Brigette Anne Van Den Akker JUDGMENT OF : Wood CJatCL at 1; Sully J at 2; Simpson J at 16

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0589 LOWER COURT JUDICIAL OFFICER : Rummery DCJ

COUNSEL : I. McClintock - Commonwealth DPP P. Lowe - Applicant SOLICITORS : Commonwealth Director of Public Prosecutions Patricia White & Associates - Applicant CATCHWORDS : DECISION : Leave granted to appeal; appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL

60117/99

WOOD CJ at CL SULLY J SIMPSON J

15 December 1999

REGINA v Brigette Anne VAN DEN AKKER

JUDGMENT 1 WOOD CJ at CL: I agree with Sully J.

IN THE COURT OF CRIMINAL APPEAL

60117/99

WOOD CJ at CL SULLY J SIMPSON J

15 December 1999

REGINA v Brigette Anne VAN DEN AKKER

JUDGMENT

2 SULLY J: Miss Brigette Anne Van Den Akker ["the applicant"] applies for leave to appeal against a sentence of imprisonment passed upon her on 11 February 1998 and by his Honour Judge Rummery QC sitting in the District Court at Sydney. 3 The applicant pleaded guilty before his Honour to two charges. The first charge was that the applicant had attempted to export from Australia prohibited exports, namely a quantity of the drug commonly known as ecstasy. The quantity involved was 324.8 grams. Such an offence attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. 4 The second charge was that the applicant, at the same time and place, had attempted to export from Australia a further quantity of ecstasy. The quantity involved was 18.8 grams. Such an offence attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. 5 The facts as found by his Honour are stated as follows in his Honour's remarks on sentence: "The facts in the matter are that as a result of an ongoing Australian Federal Police investigation, Australian Federal Police formed a belief that the prisoner was carrying a quantity of narcotics on her person prior to her boarding a Garuda Airlines flight for Denpasar, Indonesia on 31 May 1998 at Sydney. The prisoner was accordingly searched by Australian Customs Service officers at the airport and was advised that the search was for the purpose of carrying out checks on excess currency leaving the country. At about 7.30 a.m. the prisoner was detained and taken to an interview room where her baggage was searched by customs officers. She was then told that a frisk search was to be carried out and asked whether she had anything on her body. The prisoner then told customs officers that she had "pills" and pulled out a square package containing a number of light brown tablets. She then pointed to various parts of her body where further packages were hidden. With her consent, customs officers conducted a body search and saw that she had a number of packages on her body held in place by her underwear. The prisoner, at the request of customs officers, then removed the remaining packages from her person. In total there were three "A4" sized packages located on the thigh region of both her left and right legs and three smaller packages located about her groin area. The total number of tablets contained in these packages is estimated to be approximately five thousand. A sample of these tablets was tested by customs officers and reacted positively to a presumptive field test for 3, 4 MDMA also commonly known as 'ecstasy'. Members of the Australian Federal Police attended the interview room and spoke to the prisoner who stated that she was carrying a number of tablets she believed to be 'ecstasy'. She was then conveyed to Australian Federal Police Regional Headquarters Sydney. There she obtained legal advice and agreed to participate in a taped record of interview. During the taped record of interview the prisoner made certain admissions. She informed police in the interview that she had received a call in Holland from a man she knows only as "Yves" about two weeks prior to leaving Holland on 15 May 1998. She further said that Yves had asked her to deliver some pills which she identified as "rubbish" from Australia to Holland. The prisoner was then to wait to be contacted by him. The prisoner stated that she believed those pills to be 'ecstasy'. She arrived in Melbourne on 27 May 1998. She stated that she had stayed there with a friend for a few days. She purchased her airline ticket from Melbourne to Sydney on 30 May 1998 and had telephoned Yves to tell him that she intended coming to Sydney. Upon arriving in Sydney the prisoner was met by Yves and accompanied him to a hotel in Kings Cross where she spent the night in his company. She stated that she had received the pills from Yves and placed them around her lower torso. She further stated that Yves had mailed her first two thousand and then later eight hundred plus two hundred for a ticket, those presumably are references to Australian dollars. She believed that she was to be paid a total of $5,000 for taking the 'ecstasy' back to Amsterdam. As to that matter, which certainly appears in the record of interview, I do not accept that that was the prisoner's expectation as to what only she was to get out of this matter as I will come to. Australian Federal Police had in fact been surveilling the person referred to as 'Yves', whose name they believe to be Yves Camus, for a period of time and had obtained a telephone intercept and a listening device warrant in respect of his motel room at the Sebel Town House Elizabeth Bay. The telephone intercepts revealed that Camus telephoned the prisoner in Melbourne at approximately 2.33 am on 30 May 1998 and at this time asked her to travel to Sydney in order to transport drugs back to Amsterdam via Bali. The prisoner travelled to Sydney later that day and a number of conversations between her and Camus were intercepted in the motel room, together with a number of telephone calls made by the prisoner to Amsterdam. The transcripts of these telephone conversations are before the Court. A summary of them is that the prisoner was more than to be a courier. Her conversations reveal an intimate knowledge of the types of drugs which were being sent back to Holland and she appeared to have a considerable knowledge of the monetary arrangements in respect of the drugs and the other people involved in a criminal enterprise." [Remarks on Sentence: 1-4] 6 His Honour sentenced the applicant to imprisonment for 7-1/2 years, and set a non-parole period of 4-1/2 years. 7 In arriving at that sentence his Honour took into account, of course, the relevant subjective features in the applicant's case. Because, as will be seen presently, the grounds relied upon by the applicant are framed very narrowly, I do not think that it is necessary to recapitulate the details of those subjective matters. It is, however, proper to acknowledge that they were matters of substance and proper to be given some real weight in the overall sentencing process. 8 The submissions put for the applicant raise two particular questions for the consideration of this Court. 9 The applicant's first submission is that the sentence passed upon the applicant, "……………..falls comfortably within the range for offences involving importation of narcotics ………………", but is not necessarily appropriate when, as in the case of the applicant, the offence is not one of importation, but of exportation or attempted exportation. The essence of the argument made in support of that proposition is put as follows in the written submissions of learned counsel for the applicant: "Prevalence is not established by the Crown ……………… Arguably, the need to punish offenders involved in drug exportation is not as great as the need to punish for drug importation. For one thing, based on the factual finding of the judge that he could not be satisfied that the drugs were to be re-imported, general deterrence in this case may not be as great (as) if his Honour had found that the drugs were to be re-imported." 10 In my opinion, those submissions ought not to be accepted. The offences committed by the applicant were part of an international criminal enterprise having the objective, no doubt among others, of introducing substantial quantities of prohibited drugs into this country. The attempted exportations of which the applicant was admittedly guilty, were part and parcel of that illicit international enterprise. That consideration, being in my opinion incontrovertible, is sufficient, in my opinion, to dispose of this first submission put in support of the present application. 11 The applicant's second submission raises a simple parity point. The man Camus, to whom reference is made by the learned sentencing Judge in his Honour's remarks on sentence, was dealt with separately from the present applicant, and by a different sentencing Judge. Mr. Camus pleaded guilty to an offence involving a quantity of 736.5 grams of ecstasy. His offence was apt to attract upon conviction a statutory maximum penalty of imprisonment for life. He was sentenced in fact to imprisonment for 8 years with a non-parole period set at 5 years. The Crown appealed against that sentence. In a judgment handed down this morning this Court has allowed that Crown appeal and has increased the head sentence to 10 years, with a non-parole period set at 6 years. 12 For as long as the sentence imposed upon Mr. Camus stood at one of imprisonment for 8 years with a non-parole period set at 5 years, there was, in my opinion, obvious merit in the parity point put forward by the applicant in support of the present application. So much was, indeed, conceded by the Crown. 13 In the events which have happened, the relevant question is now whether the sentence passed upon the applicant is disproportionately heavy by comparison with the adjusted sentence passed upon Mr. Camus. Accepting, as I do, that the relevant culpability of the present applicant must be regarded, on any reasonable view, as having been to some extent less than that of Mr. Camus, I think, nevertheless, that what is now a difference of 2-1/2 years in the respective head sentences removes any justifiable sense of grievance that might otherwise have been felt by the present applicant. 14 I acknowledge yet again the substance of the subjective matters proper to the applicant's case. Sadly, it is necessary to point out yet again that it is the well-known, and well-established, policy of Parliament that all forms of trafficking in prohibited drugs are to be put down with every proper resolve; and that it is the duty of the Courts to give effect to that policy without, so to speak, over-compensating for the unfortunate personal circumstances of particular offenders. 15 In my opinion, the Court should order: