Reported Decision : [2000] 119 A Crim R 100 New South Wales Court of Criminal Appeal CITATION : Regina v Araya [2000] NSWCCA 504 FILE NUMBER(S) : CCA 60549/00 HEARING DATE(S) : 30/11/00 JUDGMENT DATE : 30 November 2000 PARTIES : Regina v Enrique Jynaseo Araya JUDGMENT OF : Wood CJ at CL at 1, 39 & 41; Dunford J at 40; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/2140 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : (Applicant): J S Lloyd QC/J W Fliece (Crown): W Dawe QC SOLICITORS : (Applicant): Foleys (Crown): S E O'Connor CATCHWORDS : SENTENCING - Severity appeal - Applicant convicted under s 25(1) of the Drug Misuse and Trafficking Act, 1985 - erroneously sentenced under s 25(2) of that Act - need for Court to re-sentence. LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 R v Lee (1994-1995) 76 A Crim R 271 R v Clark (CCA, unreported, 15 March 1990) R v Bardo (CCA, unreported, 14 July 1992) CASES CITED: R v Ozer (CCA, unreported, 9 November 1993) R v Sandford (1994) 33 NSWLR 172 R v Cocking [1999] NSWCCA 311 R v Olbrich (1999-2000) 199 CLR 270 DECISION : see paragraph 38 IN THE COURT OF CRIMINAL APPEAL 60549/00 WOOD CJ at CL DUNFORD J CARRUTHERS AJ Thursday 30 November 2000 REGINA v Enrique Jynaseo ARAYA JUDGMENT 1 WOOD CJ AT CL: I will ask Mr Justice Carruthers to give the first judgment. 2 CARRUTHERS AJ: Enrique Jynaseo Araya seeks leave to appeal against sentences imposed upon him by his Honour Judge Luland QC at the Penrith District Court on 9 September 1999. 3 The applicant was arraigned before his Honour and a jury of twelve at Liverpool District Court on 7 June 1999 upon an indictment containing one count in the following terms: "For that he on 18 January 1997 at Bankstown in the State of New South Wales did supply a prohibited drug, namely methylamphetamine, in that he had in his possession an amount of the prohibited drug not less than the large commercial quantity applicable to that drug". 4 This was a count under section 25(2) of the Drug Misuse and Trafficking Act, 1985. The applicant pleaded not guilty and the trial proceeded. 5 Very briefly stated the Crown case was that the applicant was driving a hired Toyota van in Bankstown on 18 January 1997 when the vehicle was stopped by police officers. Upon searching the vehicle the officers found a cooler bag which had a lock on the zipper top. The applicant was searched and police located upon his person keys which opened the lock. In the bag, was located what was later established to be, 1050 grams of methylamphetamine. A set of scales was also found in the bag. 6 Both in an interview with the police and in his evidence at the trial the applicant denied knowledge of the drugs and claimed that the van had been delivered to him at his Canberra home the day before. He said the hiring of the van had been organised by his son and the applicant was merely driving the van to Sydney for a vacation. 7 He said that he saw the bag in the rear of the vehicle as he was loading it to depart from Canberra. He also saw the keys on the floor of the rear seat area and placed them in his pocket. He intended to return the bag and keys at some later stage, he said. 8 He said that during the journey he received a call on his mobile 'phone from an unknown person when he was refuelling at a Goulburn service station. Although the applicant said he had difficulty understanding the caller, he believed that the caller said something about calling upon him when he, the applicant, arrived in Sydney so that the caller could pick up the bag. 9 The applicant said that he believed this must have been the person who had left the bag in the van. 10 At the trial the applicant suffered from the extreme disadvantage that the Crown tendered telephone records which established that there had been no call to the applicant's mobile phone at Goulburn on the day in question. 11 The offence under section 25(2) of the Drug Misuse & Trafficking Act 1985 (which I shall refer to as the Act) is in the following terms: "A person who supplies, or who knowingly takes part in the supply of, an amount of prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence". 12 A commercial quantity of the subject drug is 250 grams. However, as indicated, the applicant was charged under section 25(2) of the Act with possession of a large commercial quantity of this particular prohibited drug. A large commercial quantity of this particular drug is fixed at 2000 grams. In R v Lee (1994-1995) 76 A Crim R 271, this Court discussed the charge of possessing a large commercial quantity, pointing out that the averment of a large commercial quantity is an element of aggravation under the provisions of section 25(2) and should always specifically be pleaded. The offence remains, however, one under section 25(2). 13 Very favourably, it might be thought, to the applicant his Honour directed the jury that they were to return a verdict of not guilty on the charge of possessing not less than a large commercial quantity of the drug because the Crown did not establish that there was evidence upon which the jury could be satisfied, to the requisite degree, that the applicant knew that there was not less than 1000 grams in the bag. 14 It is not necessary for the purposes of this case to discuss the relevant legal principles which determine whether that direction was correct or incorrect. What thereafter happened is somewhat complex. However, it is sufficient, for the present purposes, to say that by reason of the provisions of section 25(3) of the Act, it was open to his Honour to leave to the jury the question whether the Crown had established an offence under section 25(1). That subsection provides that a person who supplies or who knowingly takes part in the supply of a prohibited drug is guilty of an offence. The relevant quantity applicable to this offence is a trafficable quantity which is 3 grams. 15 Thus the jury were required to resolve whether they were satisfied, beyond reasonable doubt, that the Crown had established that the applicant supplied or knowingly took part in the supply of not less than 3 grams of the subject drug and not more than 249 grams. That issue was resolved against the applicant and the jury returned a verdict of guilty of the offence under section 25(1) but, as directed by his Honour, not guilty of the charge under section 25(2). 16 However, when the matter came before his Honour for the first time to deal with the question of sentence, namely on 2 September 1999, it is clear that his Honour, as well as counsel for the Crown and counsel for the applicant, were all under the misapprehension that the jury had convicted the applicant of the offence under section 25(2) of supplying or knowingly taking part in the supply of the prohibited drug being not less than the commercial quantity. 17 That misapprehension continued on 9 September when the matter came back before his Honour for sentence and it is manifestly clear from his Honour's reasons for sentence, that he erroneously believed he was sentencing the applicant for the offence under section 25(2) relating to not less than the commercial quantity instead of the offence under section 25(1) of not less than the trafficable quantity. 18 This means that his Honour treated the maximum custodial sentence as 20 years imprisonment (see section 31(1)(a) and section 33(2)(a) of the Act) in lieu of 15 years imprisonment for the section 25(1) offence (see section 32(1)(c) and (g) of the Act). The problem was further compounded by the fact that his Honour without dissent considered the Judicial Commission statistics in relation to section 25(2) matters, rather than the statistics in relation to section 25(1) matters. It is important to note also that his Honour rejected the contention that the applicant was only a courier. 19 His Honour declined to find that there were special circumstances, and on 9 September 1999 sentenced the applicant to a minimum term of three years imprisonment to commence on 11 June 1999 and to expire on 10 June 2002 and an additional term of one year commencing on 11 June 2002 and expiring on 10 June 2003. 20 The first ground of appeal relied of course on the fact that the applicant was erroneously sentenced on the basis that he was convicted of an offence under section 25(2) in lieu of section 25(1) and accordingly the maximum penalty to which the judge directed his mind exceeded maximum term of imprisonment by five years. 21 Thus, it was submitted that the intervention of this Court was necessarily called for and this Court should re-sentence in the light of the correct maximum term. 22 Secondly, the applicant contends that the total sentence was nevertheless manifestly excessive but specifically that his Honour erred in not finding that there were special circumstances. 23 It was submitted by the applicant that because he was merely in possession of the drugs and was doing a favour for his son, ie acting as courier in transporting the prohibited drug from Canberra to Sydney, the offence was an isolated incident which was out of character for the applicant. 24 Reliance by way of comparative cases was based on Clark (CCA, unreported, 15 March 1990), Bardo (CCA, unreported, 14 July 1992), Ozer (CCA, unreported, 9 November 1993) and Sandford (1994) 33 NSWLR 172. 25 Further, as to the subjective circumstances, the applicant argued that his Honour gave insufficient weight to the significant health problems of the applicant which were outlined in the report of Dr Westmore, forensic psychiatrist, dated 20 August 1999. As I read this report these conditions are substantially of a physical nature, although the applicant is suffering from reactive depression consequential upon his imprisonment. 26 Mr Dawe of Queen's Counsel on behalf of the Crown, in response to the detailed submissions of Mr Lloyd of Queen's Counsel on behalf of the applicant, submitted that despite the fact that his Honour had erred in sentencing on an erroneous basis, the sentence, even if his Honour had addressed it as one under section 25(1) of the Act, was within the permissible range and the Court should apply section 6(3) of the Criminal Appeal Act. Mr Dawe referred in that regard to R v Cocking [1999] NSWCCA 311 and the cases referred to therein. He submitted that the offence was on any view of the most serious kind given the objective facts. 27 Submissions were also directed by Mr Dawe by reference to prior decisions of this Court, and in support of the Crown case, it was submitted that it was perfectly open to the learned sentencing Judge to reject the contention that the applicant was merely acting as a courier. The point was made that at all times the applicant denied that he was aware of the existence of the drugs in his bag and that is an attitude which he takes to this very day. Therefore, the Crown contends that it would not be open to this Court if it is going to re-sentence the applicant to reject the finding of Judge Luland and find that the applicant was merely acting as a courier. 28 It was submitted that there is no evidence of remorse, that the applicant cannot of course get the substantial benefits now flowing by reason of the authorities from a plea of guilty. As to the matters referred to in Dr Westmore's report, the Crown reminded the Court that these matters had been referred to by the sentencing Judge who accepted that they would make the service of a custodial sentence more difficult for the applicant. 29 The particular physical conditions referred to by his Honour were that the applicant suffered from back problems, that he had oesophageal reflux and peptic ulceration. His Honour said, "Whilst I accept these conditions will make his imprisonment more difficult I also have no doubt he would receive proper medical care whilst in prison". 30 One has to bear in mind that his Honour took into account the age of the applicant (who was 49 years of age at the day of sentencing and is now 50 years of age); he has no prior recorded convictions and independently of this offence is a person of prior good character. 31 As to special circumstances, the Crown submitted that this Court should not interfere with his Honour's finding that no special circumstances existed. On the other hand Mr Lloyd for the applicant contended that his Honour erred in this regard, and that there was evidence of special circumstances to be found in the age of the applicant, the fact that this was his first custodial sentence, the health problems adverted to by Dr Westmore, and the good prospects of rehabilitation. These matters, Mr Lloyd submitted should attract a longer than normal additional term than the primary ratio. 32 I am firmly of the view that the intervention of this Court is called for in the circumstances of this case. The applicant has, I believe, an understandable sense of grievance that he was sentenced by reference to a regime which was appropriate to a more serious offence than that with which he was convicted. In particular there was a misapprehension as to the relevant factors to be taken into account, particularly bearing in mind that his Honour took into account the actual weight of the prohibited import and referred to sentencing statistics which were irrelevant to the sentence history of persons under section 25(1) of the Act. 33 That being so, it then becomes necessary for this Court to re-sentence the offender. This Court has now been provided by Mr Lloyd with the relevant Judicial Commission statistics in relation to the section 25(1) offence and the Court has given careful consideration, during argument, to those statistics. They indicate that were this Court to reduce the overall sentence to three years that would place the applicant (so far as pleas of not guilty and one offence under section 25(1)) in the top 40 per cent of offenders. 34 I agree with the Crown that it is inappropriate to classify the applicant as merely a courier bearing in mind the principles enunciated in the High Court in R v Olbrich (1999-2000) 199 CLR 270. 35 It falls to this Court to re-sentence the applicant upon the basis objectively that he was found in possession of this particular prohibited drug in an amount between 3 grams and 249 grams. It is common ground that the Court is entitled to evaluate the seriousness of the offence by reference to the upper end of that range and one is looking therefore to a figure in the order of 249 grams. 36 It is quite unnecessary to repeat the constant references this Court has made to the necessity to bear in mind when sentencing for this offence the element of deterrence. The applicant has strong subjective circumstances but on the other hand there are serious objective circumstances which must be taken into account in the balancing exercise. I do not consider in all the circumstances that his Honour erred in finding that there were no special circumstances. I would not propose that the primary relationship between the full term and the non-parole term should be disturbed, particularly bearing in mind the prior good character of the applicant and his age. I would have thought that the parole period that I would propose would be quite adequate in the circumstances of his case. 37 Balancing the subjective and the objective factors. I would propose the following orders: 38 That leave to appeal be granted. That the appeal be upheld. That the sentence imposed by Judge Luland be quashed and in lieu thereof the applicant be sentenced for the offence under section 25(1) of the Drugs Misuse and Trafficking Act 1985 to a total term of three years imprisonment to date from 11 June 1999 and to expire on 10 June 2002. I would propose that the Court fix a non-parole period of two years and three months to date from 11 June 1999 and to expire on 10 September 2001, upon which date the applicant will be eligible to be released to parole. 39 WOOD CJ AT CL: I agree. 40 DUNFORD J: I also agree. 41 WOOD CJ AT CL: The orders of the Court will be as outlined by Justice Carruthers. ********** 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.