New South Wales Court of Criminal Appeal CITATION : R v DLH [2000] NSWCCA 376 FILE NUMBER(S) : CCA 60187/00 HEARING DATE(S) : 01/09/00 JUDGMENT DATE : 1 September 2000 PARTIES : Regina- Applicant DLH- Respondent JUDGMENT OF : Dowd J at 1; Bell J at 26; Simpson J at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/3019 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER : COUNSEL : Mr GJ Bellew- Applicant Ms C Lyons- Respondent SOLICITORS : Commonwealth Director of Public Prosecutions- Applicant Peter Bouzanis & Associates- Respondent CATCHWORDS : Sentence appeal - Inadequate sentence - Knowingly concerned in the importation of a prohibited drug LEGISLATION CITED : Customs Act 1901 (Cth) Crimes Act 1914 (Cth) CASES CITED: R v Baker [2000] NSWCCA 85. DECISION : 1. Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL SIMPSON J DOWD J BELL J Friday 1st September 2000 N60187/00 REGINA v DLH JUDGMENT 1 DOWD J: This is an appeal by the Crown against inadequacy of sentence. The respondent pleaded guilty to an offence under s233B(1)(d) of the Customs Act 1901 (Cth) ("the Act"), of being knowingly concerned in the importation of a prohibited drug to which s233 of the Act applied, namely, a traffickable quantity of cocaine. A traffickable quantity of cocaine is two grams, a commercial quantity is two kilograms. 2 The quantity of pure cocaine in these proceedings was 1153.4 grams. The penalty for this offence is imprisonment for twenty-five years or a fine of $100,000, or both. 3 The facts are that on 31 January 1999, customs officers took two parcels from a Qantas aircraft which had arrived in Sydney, being consigned by a courier company addressed to the respondent. The consignor was from Ecuador. The parcels were handed to the Australian Federal Police, who were anticipating the arrival of the parcels, having earlier been intercepted by the US Drug Enforcement Agency. 4 A controlled operation under s15M of the Crimes Act 1914 (Cth) was issued on 22 January 1999. The parcels contained audio tape reels with a quantity of paste largely made up of cocaine. The gross weight of the cocaine within that paste was 1755 grams, achieving a purity of 1153.4 grams. 5 An Australian Federal Police officer dressed as a courier, attended the premises of the respondent at Burwood, who accepted delivery of the parcel. That evening, pursuant to a search warrant, Australian Federal Police officers located the parcel, still unopened, at the premises. The respondent, who was the premises, was conveyed to the Australian Federal Police headquarters for interview. He made full admissions. The respondent agreed to co-operate with the police in further inquiries, and continued in the controlled operation. 6 An associate of the respondent, Carlos Flores, entered the respondent's unit, and had a conversation with him in Spanish. This conversation was recorded. The respondent refused to hand over the parcels until the promised money was received. That evening, Flores returned to the respondent's unit, opened the parcel and took possession of the boxes in exchange for $12,000 in cash, which was ultimately retrieved by the Australian Federal Police. Flores was apprehended and charged. 7 An undertaking pursuant to s21E of the Crimes Act 1914 (Cth) was signed by the respondent, and a letter as to assistance was provided to the respondent. 8 Her Honour, Ainslie-Wallace DCJ, on sentence, set out that Flores and the applicant were offered the opportunity through one Zuluaga to receive money to improve his life by taking delivery of the parcel. Zuluaga subsequently told him that the parcel would contain cocaine, and that the respondent would receive twelve thousand dollars in cash. The arrangements were made largely by Zuluaga. 9 Flores was initially arraigned on a charge of being knowingly concerned with the importation, to which he pleaded not guilty. Flores subsequently pleaded guilty to attempting to take possession of a prohibited drug, on which he was to be sentenced, but he then withdrew the plea of guilty, and he was at time of sentence to be tried subsequent to the sentencing of the respondent. It was, however, clear that the respondent had co-operated when interviewed, and that he had rendered significant high-level information, and had participated in the controlled operation and agreed to give evidence against Zuluaga, who had, at sentence, also then been charged. 10 Her Honour found the respondent had given maximum assistance to the authorities through his actions and intended actions, for which Her Honour indicated that the court could impose a significantly reduced overall sentence, and a reduced non-parole period. Her Honour said that but for the assistance, she would have imposed a sentence of five years with a non-parole period of three years, particularly in light of the respondent's involvement in the Colombian community, where his personal safety was at great risk. 11 In terms of subjective factors, Her Honour found that the respondent was fifty-two years of age, with no prior criminal history. He had had problems arising from the separation of his parents, where he had been sent to boarding schools overseas. There was also psychiatric evidence which demonstrated that the respondent had suffered from untreated depression for many years. 12 The respondent had from his first arrival in Australia at twenty-one years of age, alcohol and amphetamine dependence problems. Those problems culminated in the use of heroin in 1991, from which the respondent then moved to a methadone programme. At the time of sentencing, the respondent was receiving some ninety milligrams a day. 13 The respondent had made several suicide attempts, and Her Honour found that he was particularly vulnerable at the time of the offence, he then having been just released from hospital for one of the suicide attempts. He was also in poor health, in particular, he suffered from Osteoporosis and Hepatitis C. 14 The evidence of the psychiatrist, Dr Canaris, of the respndent's chronic major depression, was supported by a report of the Chairman of the respondent's housing co-operative as to the respondent being vague and out of touch with reality. 15 Her Honour accepted that the respondent was unlikely to re-offend, that there was clear remorse and regret for his actions, and that he was in terror of prison. Her Honour found that because of the suicide attempts and his mental condition, that the issue of general deterrence was of less relevance. 16 Her Honour took into account the plea of guilty. The respondent was likely to spend his time in prison, in protective custody, which is more onerous than the mainstream prison community, and took into account all the matters contained in s16A of the Crimes Act. 17 Her Honour imposed a full sentence of four years, although she ordered that the respondent was to be released after serving twelve months from 25 January 2000. 18 The respondent's participation was in the nature of being the letterbox, he was an integral part of the transaction, and the Crown has referred to, in emphasising the objective seriousness of the offence, those authorities which relate to the respondent's participation. It was of a low order in the hierarchy of the drug transaction. 19 The respondent had the benefit of Her Honour taking into account all of those subjective factors of his mental illness, his hardship of custody, his age for the first time in custody, his sad deprived life and his ostracism in the community. And, as has been put by counsel for the respondent, it is not often that such significant assistance is given. 20 The Court has been advised by the Crown that it is not put that the head sentence here is indicative of error. Indeed, it is my view that the head sentence was indeed quite appropriate for someone in the circumstances of the respondent, and the assistance that he had been given and the offer of assistance that he had been provided. 21 It must be remembered that in the authority of the R v Baker [2000] NSWCCA 85, His Honour the Chief Justice Spigelman said at para 19: "The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction. Nevertheless, successful Crown appeals should be rare. This is particularly so with respect to the category of appeals in which no particular error can be identified in the sentencing process, and the Crown must rely on assertion of manifest inadequacy as a basis for a conclusion that some error of principle must occur." 22 What the Crown has put here is that it is the total sentence, that is the four years together with the one year non-parole period, which is the error. It was submitted that in departing from the usual ratio of between sixty per cent and sixty-six and two-third per cent, that this is indicative of error on the part of Her Honour. The Crown further points out that Her Honour did not articulate extensive reasons for that departure. 23 It is however clear in my view, that it is proper in the particular circumstances of this respondent that there be a non-parole period which in fact is lower than the usual ratio, and one rarely sees a set of circumstances such as those of the respondent that would justify going below the normal ratio. In my view this clearly is such a case. 24 However, in reducing to the extent that Her Honour has to twenty-five per cent, the sentence is indicative of error in that it is manifestly inadequate. Twenty-five per cent is significantly lower, notwithstanding all of the subjective factors, than is appropriate for such a serious offence as this. 25 Although, in considering the total sentence and what in my view is a manifestly low non-parole period, this Court should take into account the principles of double jeopardy, the fact that the respondent has now served a significant part of the existing non-parole period and is within almost six months of being released on parole, that notwithstanding the significant objective seriousness of this offence, a very large quantity of cocaine, in the subjective circumstances, I am of the view that this Court should exercise its discretion notwithstanding the error and should dismiss the appeal. 26 BELL J: I agree. 27 SIMPSON J: I also agree. The order of the Court accordingly will be that the Crown appeal is dismissed. oOo 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.