R v Olbrich [2000] NSWCCA 389

Reported Decision : 117 A Crim R 326

New South Wales Court of Criminal Appeal

CITATION : R v Olbrich [2000] NSWCCA 389 FILE NUMBER(S) : CCA 060800/96 HEARING DATE(S) : 18 May 2000 JUDGMENT DATE : 6 October 2000

PARTIES : Regina v Reinhold Erhard Olbrich JUDGMENT OF : Mason P at 1; Heydon JA at 2; Smart AJ at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0799 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : P Byrne SC & R Burgess R Sutherland & Ms Cinque SOLICITORS : Watsons Commonwealth Director of Public Prosecutions CATCHWORDS : Criminal Law - sentencing - importation of prohibited drug - correct basis of sentencing - fixing of non parole period LEGISLATION CITED : Customs Act 1901 (Cth) Crimes Act 1914 (Cth) R v Olbrich (1998) 45 NSWLR 538 CASES CITED: R v Olbrich (1999) 73 ALJR 1550 R v Wong (1999) 48 NSWLR 340 R v Bernier (1998) 102 A Crim R 44 DECISION : Appeal against sentence allowed in part. The sentence of imprisonment of 8 1/2 years commencing on 16 August 1996 is confirmed. In lieu of the non parole period of 6 years imposed by Howie DCJ the non parole period is fixed at 5 years commencing on 16 August 1996 and expiring on 15 August 2001 at which time the appellant will be eligible for release on parole.

IN THE COURT OF

CRIMINAL APPEAL CCA 060800/96

MASON P HEYDON JA SMART AJ

Friday, 6 October 2000 REGINA v Reinhold Erhard Olbrich JUDGMENT 1 MASON P: I agree with Smart AJ. 2 HEYDON JA: I agree with Smart AJ. 3 SMART AJ: On 6 July 1998 this Court, differently constituted, upheld an appeal by Mr Olbrich against a sentence of imprisonment imposed by Howie DCJ on 20 December 1996 comprising a sentence of imprisonment of 8 ½ years commencing on 16 August 1996 with a non parole period of 6 years. The sentence dated from the day of the offence being the day on which the appellant went into custody. This Court remitted the matter to the District Court to re-sentence the applicant: (1998) 45 NSWLR 538. 4 On 7 October 1999 the High Court upheld an appeal by the Crown against the decision and orders of this Court and remitted the matter to this Court to be dealt with conformably with the reasons of the High Court: (1999) 73 ALJR 1550. 5 The appellant pleaded guilty to importing into Australia a prohibited import to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of heroin not being less than the trafficable quantity applicable to heroin. The offence carries a maximum penalty of 25 years imprisonment and/or a fine of $100,000. The trafficable quantity of heroin is 2 grams. 6 The appellant arrived at Mascot Airport from Thailand via Singapore with 1667.6 grams of white powder containing 1184 grams of pure heroin. The powder was secreted in some bottles and a plastic design board contained in his luggage. The ensuing narrative is taken from the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ. The Statement of Facts placed before the sentencing judge recorded that on the appellant's arrival his luggage was searched by the Australian Customs Service and found to include some bottles containing white powder. That powder reacted positively to a test for heroin. When asked whether he had any more heroin in his bag the appellant replied "Yes, I have one more piece. I know there is some more because someone pays me $15,000." He removed a plastic design board from his brief case. That board had heroin secreted in it. In a further conversation the appellant named a man in Perth to whom he intended to deliver the drugs. The Statement of Facts recorded that at the airport the appellant "indicated his willingness to participate in a controlled delivery of the bottles and design board." However, due to "operational factors and considerations" a controlled delivery from Sydney to the intended destination of the drugs (Perth) was not permitted to proceed. Apparently, such a delivery at such a distance would be too difficult to manage and control and costly. The Statement of Facts concluded by recording that the appellant "is married with three children. He is a German citizen residing in Singapore with his family where he claims, he is an opal dealer. The [appellant] has no previous convictions in Australia." 7 The High Court judgment refers to the appellant as the respondent as he was in that Court. The judgment continues: "On the hearing of the plea, the respondent sought to put further facts before the primary judge. In particular, he tendered an affidavit in which he stated that he had been offered drug courier jobs previously but had refused because he disliked that activity and had no need for the money. According to the respondent's affidavit, he learned, in about August 1996, that his son had been arrested and sentenced to detention in a boys' home in Singapore. When in Thailand at about that time he used heroin for the first time because of the pressure and distress he was feeling. Being desperate for money he agreed to deliver the drug. But he said, in his affidavit, that at the time he agreed to do this he was not aware of the harm that using heroin would cause and that he had only realised its destructive nature after being imprisoned in Australia pending sentence. Prosecuting counsel cross-examined the respondent. In his sentencing remarks the primary judge said of the respondent's evidence, 'I do not believe any of the evidence given by the [respondent] surrounding the circumstances of this offence by which he has sought to mitigate his involvement. His evidence was riddled with inconsistencies, prevarications, and assertions of fact which were themselves inherently unbelievable.'" 8 The judge rejected the submission that it was for the Crown to prove that the appellant was not a courier and had a higher degree of involvement. He held that "[t]o the degree that a courier is given some mitigation by being less culpable for that offence than if he were a principal, it seems to me that the [appellant] must prove that he is less culpable than the objective facts would otherwise indicate." 9 Having rejected the appellant's evidence the judge proceeded as if the appellant had told the police or the court nothing about the circumstances of the event. He applied "normal sentencing principles taking into account the nature of the offence, the maximum penalty and such other matters which are relevant to an assessment of the objective features of a criminal offence." 10 The Court of Criminal Appeal held that the judge had erred in not accepting that the Crown bore the onus of proof beyond reasonable doubt on the issue of the appellant's degree of involvement in the importation. The High Court did not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process. The High Court pointed out that frequently, "it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia." 11 The High Court observed that in some circumstances it may be useful to use shorthand descriptions of different kinds of participation in a single enterprise of importing drugs such as couriers and principals. However, the joint judgement stressed "Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did." 12 The High Court stated that there was nothing which revealed that the appellant was part of a business venture that was organised hierarchically to import drugs into Australia. It said, "All that was known was that the [appellant] asserted that he was to be paid $15,000 for importing the heroin. That is, the [appellant] asserted that the importation of such a large quantity of heroin was for his financial gain rather than for some other purpose such as his own use." 13 The High Court held that if the appellant wished to have his sentence mitigated because he was a courier he bore the burden of proving that fact and failed to do so on the balance of probabilities. 14 The judge after noting that the appellant had supplied the name of the intended receiver of the drugs and revealed the rather simple code necessary to understand the telephone numbers in his address book against the name of this person recorded that the Crown conceded that such a person existed but had claimed privilege in relation to any other material concerning the investigation of the information given by the appellant. 15 The judge stated that the appellant was not to be disadvantaged by the Crown's refusal to give the court information as to the full significance of the material which the appellant provided to the police. The judge regarded the importation as a very professional attempt especially in so far as the drug contained in the white board was concerned. The judge found that the appellant was an intelligent person and a business man with considerable experience in international air travel who knew how to try to avoid attention from the customs officers by the use of his alternative passport which disguised his numerous trips to Thailand and his declaration of some innocuous matters to give him the appearance of being a careful and scrupulously honest traveller. 16 The appellant was born on 1 January 1939 and was thus aged 58 years at the time of sentencing. The judge held that the main mitigating factors were the appellant's plea of guilty and the assistance which he has given to the authorities. The judge thought that the plea of guilty should result in some mitigation of the appellant's sentence although he did not believe that it indicated very much contrition. 17 The plea of guilty was indicated at a very early stage and was entered at an early date enabling a committal for sentence by the magistrate. The appellant submitted that the starting point in considering the sentence imposed should be the guideline judgment of this Court in R v Wong (1999) 48 NSWLR 340. The judge did not have the benefit of that judgment. 18 In that case at 366 the Chief Justice held that in respect of a high range trafficable quantity (1-1.5kgs of heroin) the appropriate sentence of imprisonment was 7 to 10 years in respect of couriers and persons low in the hierarchy of the importing organisation. Bearing in mind that quantity largely guides the length of the sentence it was submitted that any sentence imposed should be at the lower end of the range. For a quantity of (1.184grams) a sentence in the range of 8 to 8 ½ years would not be inappropriate especially as that the judge correctly regarded this importation as a serious example of this type of offence, not only because of the quantity, but because of the cunning involved in the importation. This is upon the assumption that the guideline applies. 19 In my opinion the guideline does not apply because the appellant was not shown to be either a courier or low in the hierarchy. Counsel endeavoured to overcome this objection by pointing to the words of the Chief Justice at 365, "The range is not intended to apply to the principal of an organisation responsible for an importation or a person high in the hierarchy of such an organisation to whom an increment should be applied." 20 It was the appellant's submission that if he were not shown to be either a principal or high in the hierarchy then the range to be applied to him was that for a courier and a person low in the hierarchy of the importing organisation. On the facts accepted by the judge it is simply not known whether the appellant was acting mainly on his own behalf or was part of an organisation. I do not accept that there has to be but one distinction, namely, between those that are high and those who are low in the organisation. In many cases, as indeed in this case, the facts may point to a significant participation in an importation without revealing the full details. 21 I should add one further comment. The discussion of the Chief Justice prior to enunciating the guidelines indicates that he had in mind that the range was appropriate when there was a plea of guilty. 22 The judge did not disclose how he arrived at the sentence imposed. There are a number of ways in which one could consider the sentence imposed and whether it was manifestly excessive. Since the offence was a Commonwealth offence a starting point would be in the order of 16 to 18 years. For present purposes a figure of 17 years could be taken. As remissions are not allowed in New South Wales, s 16G of the Crimes Act 1914 (Cth) applies and the sentence would be reduced to about 11 ½ years. If a further discount is allowed for assistance one could readily reach a figure of 8 ½ years as determined by the judge. It involves a discount of approximately 26%. If the starting point was a little higher then the discount for assistance would be greater. The appellant advocated a discount of at least 40% but that is too high. One in the range of 25% to 33 1/3 % would be reasonable. 23 An alternative way of approaching the matter applying Wong would be to take a starting point of 8 ½ years and then add on an increment to reflect the greater culpability of the appellant. That increment would result in a sentence of 11 ½ to 12 years. An appropriate discount for assistance would then bring the sentence back to about 8 ½ years. The approach to sentence is neither rigid nor mathematical. When all allowances and discounts are given the resulting sentence must still bear a relationship to the criminality involved. 24 Taking into account the early admissions, the early plea of guilty, the assistance to the authorities, the other subjective features and the criminality revealed by the evidence it could not be said that a head sentence of 8 ½ years was manifestly excessive. It is within the permissible range. 25 The next question that arises is the length of the non parole period. In Bernier (1998) 102 A Crim R 44 this Court held that the normal non parole period was in the range of about 60 to 66 2/3% of the head sentence. Bernier had not been decided when the judge imposed the sentence under appeal. The appellant's non parole period is 70.6% of the head sentence and that head sentence was towards the top of the permissible range taking into account the criminality involved and the discounts to be allowed. 26 There are a number of other factors which would lead me to the view that in the present case there should be a lower non parole period. From 16 August 1996 until 31 March 1998 the appellant was classified with an A2 security rating being a maximum security rating. On 31 March 1998 he was classified with a B security rating, a medium security rating, and that took effect on 7 April 1998. 27 It has been explained by the Department of Corrective Services that inmates hold an A2 or B classification security rating until they have been sentenced. While they are on remand they may not progress to a minimum security rating or correctional centre. 28 The appellant has stated that while he has enjoyed a B classification since April 1998 he has been kept in accordance with departmental policy in a maximum security prison. This was not disputed. 29 The materials indicate that the appellant's progress to a less onerous classification has been delayed by the extended appeal process and that overall the conditions of imprisonment which he has endured have been more onerous than could have been foreseen at the time of sentence. 30 The age of the appellant is also a factor of some significance. In the whole of the circumstances the non parole period is excessive and I would substitute a non parole period of 5 years for that imposed. 31 I propose the following orders: