New South Wales Court of Criminal Appeal CITATION : Regina v Benais [1999] NSWCCA 236 FILE NUMBER(S) : CCA 60396/98 HEARING DATE(S) : Monday 26 July 1999 JUDGMENT DATE : 26 July 1999 PARTIES : Regina Youval Benais JUDGMENT OF : Simpson J at 2; Meagher JA at 29; Sperling J at 30 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0449 LOWER COURT JUDICIAL OFFICER : Viney DCJ COUNSEL : M J Agius SC, M M McHugh S R Norrish SOLICITORS : Cth DPP Legal Aid Commission of NSW CATCHWORDS : CRIMINAL LAW; importing a trafficable quantity of prohibited imports; ecstasy; application for leave to appeal out of time granted; application to appeal against sentence granted; appeal dismissed. ACTS CITED : Crimes Act (Cth) 1914 CASES CITED: Regina v Michel Francois Dizel, unreported, 23 August 1996 DECISION : Application for leave to appeal out of time granted; application to appeal against sentence granted; appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60396/99 MEAGHER JA SIMPSON J SPERLING J Monday 26 July 1999 REGINA v Youval BENAIS JUDGMENT 1 MEAGHER JA: I will ask Justice Simpson to give the first judgment. 2 SIMPSON J: On 27 May 1997, the applicant entered a plea of guilty in the Local Court to a charge of importing a trafficable quantity of prohibited imports contrary to section 233B of the Customs Act. The prohibited import was the drug commonly known as Ecstasy, the short form chemical reference to which is MDMA or MDEA. 3 On 13 November 1997, the applicant adhered to his plea in the District Court. The maximum sentence applicable to the offence is imprisonment for twenty-five years. On 13 November 1997 Judge Viney sentenced the applicant to imprisonment for six years with a non-parole period of three years. 4 He did this after considering the provisions of section 16G of the Crimes Act 1914 (Cth) which requires a New South Wales court sentencing under Commonwealth legislation to adjust the sentence to take into account the absence of remissions in the sentencing system. Absent that consideration the head sentence would have been one of nine years. 5 The applicant seeks leave to appeal the sentence asserting that it is manifestly excessive when all relevant circumstances are taken into account. 6 The offence was committed on 5 April 1997. The applicant imported 1,560 tablets containing 61 grams of the pure drug. 120 capsules, each containing between five and ten tablets, were imported in the applicant's clothing or luggage. The remainder he had ingested and were carried within his body and were recovered whilst he was hospitalised under surveillance. 7 The sentencing judge accepted an account of the applicant's involvement and the circumstances given by the applicant. He was born on 26 August 1969. He was twenty-seven years of age at the time of the offence, twenty-eight at sentencing. He was born in Israel but, when he was three years of age, his father deserted the family and the applicant, with his mother and sister, moved to France, where they are now citizens. 8 The applicant's mother was able to support the family until arthritis brought her employment as a secretary to an end and the applicant left school without qualifications and took up employment. He spent several years working in a travel agency until economic circumstances forced his retrenchment. 9 Prior to that time, whilst still in employment, the applicant began using drugs and this use continued after his retrenchment although with less expensive drugs. 10 Notwithstanding his drug use and even after his retrenchment, the applicant continued financially to support his mother who by this time was living in extremely straitened circumstances. 11 On a trip to India, the applicant met a man called Robert, who subsequently persuaded the applicant to travel to Amsterdam, take possession of the drugs, and travel to Australia with them where he was to meet Robert and effect delivery. For this service the applicant was to receive a sum equivalent to about $A7,000. 12 The applicant was apprehended on arrival. He made immediate admissions and has never departed from acknowledgment of his guilt. 13 He gave evidence in the sentencing proceedings essentially to the effect of the outline I have already given. His sister travelled from Paris for the purpose of supporting her brother and two friends, resident in France, but who had been travelling in Indonesia, also travelled to Sydney to give supporting evidence. 14 The sentencing judge accepted that the applicant was of previously good character and was devoted to the care and support of his mother. An interesting feature of the evidence was that, although by the date of the sentencing proceedings the applicant had been in custody for seven months, his mother was still unaware of his predicament and it was intended to continue to protect her from that knowledge. 15 His Honour accepted that the role of the applicant was as a courier and that Ecstasy is a mid-range drug. On behalf of the applicant, it was argued that his Honour gave inadequate weight to four matters resulting in the imposition of a sentence that was excessive in the circumstances. 16 The first of these was the quantity of the drug involved. This was 61 grams. A trafficable quantity, the amount relevant for present purposes, is half a gram. The commercial quantity, the next relevant quantity, is half a kilogram. The amount therefore was well above the minimum trafficable quantity and very much below a commercial quantity. 17 The judge was very conscious of the quantity of the drug involved, setting it out in detail at an early stage in his remarks on sentence. Equally, he acknowledged, on more than one occasion, the applicant's early plea of guilty and his accepted contrition, identified not only by the plea but also his prior clear record. He outlined in some detail the circumstances in which the applicant came to commit the offence. He found that, although his motivation was financial, it was need, not greed, that prompted the commission of the offence. 18 It cannot therefore be said that his Honour overlooked any of those matters. The applicant's argument depends, as it must, on persuading the court that the sentence was so excessive as to demonstrate that one or more of the matters was or were given insufficient weight. In order to do so, the applicant points to the starting point of nine years, arguing that such a sentence is demonstrably excessive. 19 Particular reference was made during the course of argument to the absence of any prior criminal convictions, the plea of guilty, the role of the applicant in the commission of the offence and, as I have mentioned, the quantity of the drug. 20 I am unable to agree that the starting point of nine years was excessive. 21 There is much in this case that engenders sympathy for the applicant. He has been monumentally foolish. His Honour accepted that, having regard to his own and his mother's financial circumstances, his motivation was not, as is often the case, greed. 22 It is not unusual for this court to be confronted with cases that demand sympathy and it is frequently so where drugs are involved. Sympathy for offenders can not dictate the result. Judge Viney treated the applicant with as much sympathy as was appropriate in the circumstances. 23 The escalation in drug use in this country is a matter of notoriety, as is the effect of drug use and abuse on the wider community. While minds may and do differ on policies that should be adopted in relation to drug use and on drug addiction there is, as I perceive it, less controversy about tolerance of imported drugs such as Ecstasy. 24 Governments and government agencies that struggle to control the importation of drugs deserve the support of the courts. Their efforts are diminished where courts fail to give that support. To fail to give the necessary support is to undermine the efforts that have been made by governments and other agencies to control the spread of drug use. 25 Sympathetic as one may be to a young man who has been inveigled into a crime of these dimensions, it would be wrong for the Court to fail to accord the appropriate punishment. I am not persuaded that the starting point of nine years was inappropriate for this offence. General deterrence assumes a significant part in the sentencing decision. 26 Both counsel in written submissions referred to previously decided cases in this court. The applicant referred to Regina v Michel Francois Dizel, unreported, 23 August 1996, pointing particularly to the fact that in that case the applicant had been found guilty of another offence of importing drugs into Japan. The distinction between the two cases is reflected in the sentence in that case which was of ten years with a non-parole period of seven and a half years. 27 Further, the quantity of drugs in that case was about 40 grams or two-thirds of the quantity that the applicant in this case imported. 28 The cases to which reference has been made have a common theme which is the need for general deterrence in cases of drug importation. Having read the decisions to which we have been referred, I am not persuaded that any error has been demonstrated. 29 I propose that leave be granted to appeal out of time, leave be granted to appeal but the appeal be dismissed. 30 MEAGHER JA: I agree. 31 SPERLING J: I agree. I would add only that a factor which has also been in mind for consideration is that a non-parole period of fifty per cent of the head sentence was a liberal exercise of discretion on the part of the sentencing Judge which is to be taken into account in assessing the overall effect of the sentence. 32 I agree with the Orders proposed and with her Honour's reasons. 33 MEAGHER JA: The Orders of the Court therefore are the Orders proposed by Her Honour. ********** 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.