New South Wales Court of Criminal Appeal CITATION : R v Power [1999] NSWCCA 25 FILE NUMBER(S) : CCA 60019/98 HEARING DATE(S) : 5 March 1999 JUDGMENT DATE : 5 March 1999 PARTIES : Brett Wayne Power (Applicant) Regina (Cth) (Respondent) JUDGMENT OF : Grove J at 23; Dunford J at 1; Greg James J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0464 LOWER COURT JUDICIAL OFFICER : Luland DCJ COUNSEL : S. Norrish QC (Applicant) P. Hastings QC & G. Tabuteau (Respondent/Crown) SOLICITORS : Ross Hill & Associates (Applicant) Director of Public Prosecutions (Cth) (Respondent/Crown) CATCHWORDS : Sentencing; Drug importation; Ecstasy; Commercial quantity; Middleman Customs Act 1901 ACTS CITED : ss 233B(1)(c) and 235(2)(c) Crimes Act 1914 s 16G R v Bowers (CCA - unreported - 20 June 1997) CASES CITED: R v WHS (CCA - unreported - 27 March 1995) R v Olbrich (CCA - unreported - 6 July 1998) R v Kelly (1993) 30 NSWLR 64 DECISION : Leave to appeal granted, appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60019/98 GROVE J DUNFORD J GREG JAMES J Friday, 5 MARCH 1999 R v Brett Wayne POWER JUDGMENT 1 DUNFORD J. This is an application for leave to appeal against the severity of a sentence of imprisonment for nine years with a non-parole period of five and a half years imposed on the applicant by his Honour Judge Luland QC in the District Court at Sydney on 9 January 1998 following his plea of guilty to a charge of being in possession of not less than a commercial quantity of a prohibited import, namely, methylenedioxymethamphetamine, commonly known as MDMA or Ecstasy. The charge was laid under s 233B(1)(c) of the Customs Act 1901 and carries a maximum penalty of life imprisonment: s 235(2)(c). The commercial quantity for the purposes of the Act is 500 grams, and the amount involved here comprised a net weight of the drug of 1,056.5 grams, consisting of approximately 16,000 tablets with an estimated street value of $1.12 million. 2 Briefly the facts were that on Thursday 3 April 1997 Leendert van Hofwegan arrived at Sydney Airport from Holland carrying suitcases in which were subsequently found the large number of MDMA tablets. Van Hofwegan told police that a friend of his, named Meindert De Groot had offered to pay him 5,000 Dutch guilders, approximately $A3,000, to take the bags to Brisbane where a man using the name "Jeffery" would collect the bags from him. He was told that Jeffery would have the other half of a 10 guilder note which he had been given. Van Hofwegan was told that there was something in the bags which De Groot did not want the authorities to find out about. 3 On his arrest van Hofwegan agreed to co-operate. He telephoned De Groot and arranged to deliver the suitcases in Sydney and was told Jeffery would come to him at the CB Hotel, Pitt Street, Sydney, where he was booked in. Van Hofwegan had agreed to take part in a controlled delivery under the auspices of the Australian Federal Police. 4 On 4 April the applicant booked an airline ticket using the name "Brett Ward" from Ballina to Sydney and left his own mobile phone number as a contact number. At 6.20 pm that day he was observed walking through the CB Hotel and subsequently he asked the hotel receptionist for room 11. There was no room 11, but he was given other room numbers and went to a room on the first level of the hotel bearing the number room 1011. He ascertained that the person in that room was not the person he was looking for, so he then left the hotel and made a phone call from a public telephone nearby. Records of calls from that phone indicated that it was a call to Holland. 5 He returned to the hotel and advised the receptionist that the man he was supposed to meet was staying at the hotel and was a Dutch national. On being told that there was a guest with the name Hovagan (sic) staying in room 2010, the applicant agreed that would be the man he was looking for. He went to room 2010, spoke to van Hofwegan and entered the room. The applicant and van Hofwegan had a conversation in the room in which the applicant introduced himself as coming "from Jeffery". He asked van Hofwegan on two occasions how many (tablets) there were, and Hofwegan replied he did not pack the bags and did not know how many. The applicant told van Hofwegan he would come back to the hotel the following day between nine and ten to give him some money. The conversation was partially recorded pursuant to a duly authorised listening device, and when the applicant left the room with the two suitcases he was detained by police. 6 He gave permission to police to search his home address at Centennial Park where a piece of paper was found bearing his handwriting on which were written various details, including the number of the 10 guilder note, the address of the hotel, the flight number of the flight from Ballina to Sydney and other figures. The applicant otherwise declined to be interviewed by police. 7 On the sentencing proceedings the applicant gave evidence that he had known a man by the name of "John Jeffreys" for approximately eighteen months prior to the commission of the offence, having met him socially, and that through Jeffreys in early December 1996 he had met a man by the name of Ante Ella, who was Dutch. He said that in discussions with Ella he had mentioned that he had previously been married to a Dutch person, and Ella provided him with a telephone number to call him if he ever visited Europe and needed a place to stay. 8 He said that on 4 April he was rung by John Jeffreys at his father's home at Broken Head near Ballina where he had gone to attend his father's birthday celebrations and Jeffreys asked him if he would pick up some suitcases from a hotel in Sydney, which suitcases would contain Ecstasy. He came to Sydney and had lunch with Jeffreys at a hotel in Paddington. He was told to collect the bags at the CB Hotel and deliver them to another hotel with a view to subsequently delivering the keys of the second hotel room to Jeffreys and telling Jeffreys which hotel it was. He was also told to telephone Ella if he had any problems because Jeffreys would not be available or contactable again until after 8 pm that evening. He was also given the serial number of the bank note purportedly to be matched with the number being carried by the courier. He said he had been offered $1,500 for his role. 9 He described going to the hotel and asking for a man in room 11 and being told there was no such room. He said that he therefore left the hotel and called the number that he had been given for Ella from a pay phone across the road, and was rung back by Ella on his girlfriend's mobile phone then in his possession and told that the room would be booked in the name of van Hofwegan, and thus he was able to return to the CB Hotel and check on the booking for a Dutch person, which led him to room 2010. 10 The applicant was cross-examined by the Crown Prosecutor about the circumstances in which he first met Jeffreys and indeed as to the very existence of John Jeffreys. He said that, although he had the phone number of Ella because he had a habit of writing down phone numbers when he was given them, he did not have the phone number of John Jeffreys, as he had never written it down and he was unable to identify any one of his friends or acquaintances who could give evidence as to the existence of the said John Jeffreys. He also said that he was fearful of supplying any details which might lead to the identity of Mr Jeffreys because of his experiences in gaol and his knowledge from such gaol experience that if he were to inform on anyone, his life would be in danger; although he conceded he had not received any threats directly or indirectly from Mr Jeffreys. 11 In sentencing the applicant his Honour, after stating the facts, said that he found the applicant's evidence unconvincing and he rejected his story about acting on behalf of John Jeffreys, and said there were a number of reasons for not accepting the applicant's version, some of which he identified. He then went on and said:- "Having rejected the prisoner's version, I am left with the situation that the prisoner collected the valuable drugs, that he had details of where they were to be collected, and identification details. I accept the prisoner was in the vicinity of Brisbane in expectation of the drugs going there but made later arrangements to come to Sydney after he was contacted by someone. When he was in Sydney he had the number of the person in Holland with knowledge of the transaction. On this evidence I am satisfied the prisoner was not merely a local courier or collection agent but was involved at a higher level than that of a courier and I regard him to be in the position of a middleman in the enterprise." 12 Having regard to what had been said by this Court in R -v- Bowers (CCA - unreported - 20 June 1997) and having heard expert evidence on the subject, his Honour found that Ecstasy is a toxic drug of dependence resulting in some ill-health consequences for some users with a potential for long-term brain damage, but that it was not comparable to heroin and cocaine, and should for sentencing purposes continue to be regarded as a middle range drug. There is no challenge to this particular finding. 13 His Honour referred to a number of subjective factors relevant to the applicant, such as his age, upbringing, education, the fact that at nineteen he had met a Dutch woman and married her three years later but that he had separated from her after a further twelve months, that he had then travelled to Holland and entered into another relationship with another Dutch woman, but that on his return to Australia some eight or nine months earlier he had met his then current girlfriend and was said to have achieved a measure of stability due to the positive relationship. At the time of his arrest he was working as a security guard and said to be an excellent employee. In a Pre Sentence Report the probation officer had suggested that immaturity, lack of direction, personality issues and possibly the thought of some easy money may all have contributed to the applicant's offence. There was no evidence that he was using, or had used, illicit drugs. 14 A number of submissions were advanced in support of the application for leave to appeal and I shall deal with them seriatim. It was firstly submitted that the sentencing judge erred in determining that the applicant was not merely a local courier or collection agent but was involved at a higher level than that of a courier and was a middleman in the enterprise. Sentence appeals are not appeals by way of rehearing, and in order to succeed it is necessary to show error on the part of the sentencing judge. It follows that this Court's power to intervene on the sentencing judge's findings of fact are carefully circumscribed and it can only do so if there is no evidence to support a particular finding, if the evidence is all one way, or if the judge has misdirected himself: R -v- WHS (CCA - unreported - 27 March 1995) and cases there cited; see also R -v- Kelly (1993) 30 NSWLR 64 at 66. 15 In my view there was ample material before his Honour to both disbelieve the applicant and reach the conclusion that he did, that he was more than a mere courier and was a middleman in the enterprise. His Honour noted a number of reasons for not accepting his evidence and, as I say, some of them are set out in his judgment. I have read the whole of the evidence given by the applicant, including the cross-examination, for myself, and based only on the printed word, without the advantage of seeing and hearing him in person as his Honour had, I would not believe him either. 16 This submission was somewhat expanded in oral submissions, because it was submitted that even if his Honour was justified in disbelieving the applicant, that merely left a vacuum and did not provide positive evidence to justify the finding that he was more than a mere courier or collection agent, and that his Honour's finding was based on speculation in this regard, and we were referred to the recent decision of this Court in R -v- Olbrich (CCA - unreported - 6 July 1998) which is the most recent authority to the effect that in sentencing proceedings, matters of aggravation, in the sense of anything which goes beyond the admission of the ingredients of the offence implied in the plea of guilty, must be proved beyond reasonable doubt; and it was submitted that there was insufficient material for his Honour to be satisfied to that standard that this applicant was more than a mere courier or collection agent. 17 In my view there was sufficient material to make such a finding by reason of a considerable quantity of circumstantial evidence, apart from disbelieving the applicant about the existence and/or role of John Jeffreys. These matters included the fact that when the courier, van Hofwegan, arrived in Sydney on 3 April he had instructions that he should travel to Brisbane where he would be contacted by Jeffery, the applicant lived in Sydney, but on 4 April was at Broken Head near Byron Bay in the far north of New South Wales, very close to Brisbane, and when the courier was arrested and the controlled delivery was set up for Sydney, the applicant flew to Sydney that very day, travelling under a false name. When he arrived at the hotel he had difficulty locating van Hofwegan, but he nevertheless persevered, including making a telephone call to a person obviously very involved with the operation overseas, until he could establish contact with van Hofwegan. In addition, a search of the applicant and his residence revealed various documents containing information about the courier, his location and the serial number of the foreign currency bank note to be used as identification, written in code. Furthermore, the consignment of Ecstasy originated in Holland, a country with which the applicant had ties, to which I had already referred. 18 If the principal was merely looking for a collection agent to take delivery of a consignment in Sydney, one wonders why he would choose someone who was not in Sydney at the time, but was up near Ballina. Moreover, if he was merely a courier and the principal did not wish to be contacted so as to avoid association with the enterprise, one would have expected that as courier he would be directed to contact some other middleman if anything went wrong, and as the delivery was in Sydney one would expect such other middleman contact to be someone in Sydney with local knowledge, not someone on the other side of the world; which raises the further question of why would any principal have a mere courier telephoning a virtual stranger overseas; if anything went wrong, it was going to go wrong here, and one would need someone with local knowledge to overcome what difficulties might arise. In my opinion, the finding that the applicant was more than a mere courier or collection agent was well open to his Honour, there was ample evidence to support such a finding, and there is nothing in his Honour's reasons to suggest that he applied an incorrect standard of proof. 19 The second substantial submission was that the disparity in sentence between that imposed on the applicant and that imposed on van Hofwegan, even allowing for the latter's co-operation, was unreasonable and gives rise to a justifiable sense of grievance. In effect van Hofwegan received two years discount for his co-operation. But his Honour, who was the sentencing judge in both cases, started from a higher figure in this case because of his finding that this applicant played a more significant role. His starting point, before the discount provided for by s 16G of the Commonwealth Crimes Act, in the case of van Hofwegan was eleven years which, by the application of that section, was reduced by seven and a half; in the applicant's case it was thirteen years, which was reduced to nine. As I say, van Hofwegan then received a further two years discount because of his substantial co-operation. 20 Not only had van Hofwegan given full co-operation to the police from the time of his arrest and co-operated in setting up, and participating in, the controlled delivery resulting in the arrest of the applicant, but he had also offered future assistance to the authorities, not only here, but also in Holland. On any view of the facts van Hofwegan was a mere courier and the applicant was fixed with the finding by the trial judge that he was something more. Having regard to the applicant's greater role and the fact that he was not entitled to any discount for assistance, I would regard the discrepancy in the sentences was well justified. 21 The third submission was that his Honour failed to give adequate weight to the plea of guilty, particularly in determining that the applicant had failed to show "true remorse" or contrition for his offence. His Honour noted that the applicant was entitled to credit for his plea of guilty, but the amount of credit to which he was therefore entitled was significantly reduced because he was caught red-handed. His Honour's finding that he was not satisfied that the applicant had shown true remorse was, I believe, justified on the evidence. True it is that the applicant had said that he was sorry, but that was mainly in the context of sorry for the upset and disgrace that he had caused his family. In any event, it is easy for anyone standing for sentence to say they are sorry, but in my view, as was apparently the view of his Honour, he had not demonstrated any remorse by disclosing any information about the true extent of his role or the involvement of others. One way of showing remorse is to tell the truth about one's own involvement. Failure to do so is not a justification for increasing the sentence, but it means that the mere plea of guilty by a person caught red-handed is not evidence of remorse. The written submissions referred to some matters in the probation officer's report to which I have referred which were said to show genuine remorse, but in my view they were irrelevant to that issue. 22 Accordingly, the three particular challenges to the sentence fail, and having regard to all the circumstances I am satisfied that the sentence imposed was well within the range of a proper exercise of the sentencing discretion. I would therefore grant leave to appeal but dismiss the appeal. 23 GROVE J. I agree with Dunford J 24 GREG JAMES J. I agree with the orders proposed. In particular, I do so since it appears to me that there was evidence on which his Honour was fully entitled to reach the conclusion that he did. 25 GROVE J. The orders of the Court will therefore be as proposed by Dunford J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.