New South Wales Court of Criminal Appeal CITATION : R v Schmakowski [2001] NSWCCA 395 FILE NUMBER(S) : CCA 60181/00 HEARING DATE(S) : 28 September 2001 JUDGMENT DATE : 28 September 2001 PARTIES : Regina Reinhard Schmakowski JUDGMENT OF : Heydon JA at 1; Wood CJ at CL at 2; Carruthers AJ at 33 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0465 LOWER COURT JUDICIAL McGuire DCJ OFFICER : COUNSEL : Crown: M. Allnutt Applicant: P.Byrne SC SOLICITORS : C'wealth DPP D J Humprheys CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - importation of trafficable quantity of ecstasy - whether sentence manifestly excessive - whether failure to take into account utilitarian value of plea, assistance to authorities and contrition - whether starting point of sentence too high - consideration of objective and subjective circumstances - no error of law - appeal dismissed. CASES CITED: Customs Act 1901 s 233B(1)(b) DECISION : Leave to appeal granted; Appeal dismissed - 8 - IN THE COURT OF CRIMINAL APPEAL 60328/01 HEYDON JA WOOD CJ AT CL CARRUTHERS AJ FRIDAY 28 SEPTEMBER 2001 REGINA v REINHARD SCHMAKOWSKI JUDGMENT 1 HEYDON JA: I ask Wood CJ at CL to give the first judgment. 2 WOOD CJ at CL: On 24 March 2000 the applicant was sentenced by his Honour Judge Maguire in the District Court for an offence of importing a trafficable quantity of MDMA or Ecstasy, contrary to s 233B(1)(b) of the Customs Act 1901. The sentence imposed was one of eight years with a non-parole period of four years and nine months. 3 The pure quantity of the drugs involved was 410 grams, that is 90 grams less than the commercial quantity applicable for this substance. The wholesale value of the importation was assessed to be in the order of $240,000. The applicant now seeks leave to appeal against the sentence. Facts 4 The applicant was a German citizen, aged forty-three years, with no prior convictions, who was a resident in Indonesia. He was contacted by telephone and offered $5000 Australian to transport drugs to Australia. Upon agreeing to this arrangement an airline ticket was provided for him to fly to Amsterdam. After arriving there he was given a body pack fitted with three compartments, each of which held a plastic clip-sealed bag containing the drugs in tablet form. He left Amsterdam for Sydney on 21 May 1999 and arrived at Sydney Kingsford-Smith Airport the following day. After being selected for a frisk search, the body pack was found by members of the Australian Customs Service. 5 During a subsequent interview he disclosed that arrangements had been made for him to book into either the Hilton Hotel or the Nikko Hotel, where he was to await instructions for delivery of the drugs. Enquiry of these hotels found that a reservation had been made for him at the Nikko Hotel. Thereafter, under the supervision of the AFP, arrangements were made for him to assist in a controlled delivery. 6 Over the ensuing three days he remained at the hotel and assisted police in answering phone calls made to his room. The operation did not, however, prove fruitful. It appears that he had expected that this would be the case, as he informed the Australian Federal Police agents from the outset that it was too late to effect a controlled delivery. 7 When formally interviewed by police on 24 May 1999 he provided detailed admissions concerning the offence. He entered a plea of guilty when taken before the Local Court and was committed for sentence. He adhered to his plea in the District Court and was sentenced upon the basis that he had pleaded guilty at the first available opportunity. 8 It was the applicant's account that his involvement in this exercise had commenced with an unexpected telephone call from someone whom he did not know but who, in some unidentified way, had become aware that he travelled frequently to Australia on business. In this regard, it appears that he had a history of working in the banking and financial industries in Germany and Indonesia. His reason for accepting the offer, he said, was connected with the fact that he had suffered some financial reverses in Indonesia and had recently been the victim of a robbery in which he had lost some US$15,000. 9 The applicant had, in fact, made some twelve or so earlier flights to and from Australia over the nine months preceding his arrest, each of which had been paid for in cash. He had $13,750 in Australian currency in his possession. He denied ever having carried drugs into this country before. The learned sentencing Judge accepted that there was no evidence to the contrary of that assertion. It was the applicant's case that he was simply a courier who was carrying drugs on instructions and that he should be sentenced as such. 10 His Honour made it plain, before proceeding to sentence, that he was unable to accept such a proposition, even though the Crown was, apparently, content to have the applicant sentenced upon that basis. He invited the applicant to adduce any further evidence which he deemed fit to make the proposition good. Neither the applicant nor the Crown took up the opportunity so offered. As a result, his Honour said that he had no confidence in the applicant's version of events, and simply did not accept his account as to how he became involved, or as to the extent of his involvement. The reasons which he gave for that conclusion were spelled out cogently and in detail. I am not persuaded that his assessment was incorrect. 11 His Honour noted that, in these circumstances the evidence did not allow him to make an accurate assessment of the precise nature of the applicant's involvement in the importation. Accordingly, his Honour said: "I will simply deal with him as a person guilty of importing the subject drugs on the occasion in question. As was stated in Regina v Storey (1998) 1 VR 359 at 369: 'A sentencing Judge may not take facts into account in a way that is adverse to the interests of the accused unless the facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the Judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.' No question arises of me making any findings adverse to the interests of the accused." 12 No complaint was made and nor could it properly have been made, that his Honour fell into error in dealing with the objective criminality of the applicant as an importer, rather than as a mere courier. In fact, the case was one which fell precisely into the category of case discussed in Olbrich (1999) 199 CLR 270, where it was recognised that the utility of attempting to categorise the role of the offender was limited by the extent to which the material facts were known. 13 Moreover, as this Court has made clear in Pilley (1991) 56 A Crim R 202, it was for his Honour alone to determine the relevant facts in conformity with the essential elements of the crime which the plea established. 14 In the course of pronouncing sentence, his Honour observed: " ... in view of the fac t that he was caught red-handed with the drugs strapped to his person, his conviction would appear to have been inevitable. His plea of guilty has of course saved the expense of a trial. However, this is not a matter in which a plea of guilty attracts a major discount." 15 The observation reflected what had been said in Ferrer-Eisis (1991) 55 A Crim R 231 and Ellis (1986) 6 NSWLR 603. 16 Later his Honour recorded, after noting the subjective circumstances mentioned in the reports prepared by Dr Roberts and by the Probation & Parole Officer: "He will receive the consideration to which he is entitled by reason of his clear criminal history, his admissions and his prompt plea and the co-operation which he afforded to the police." 17 It is in relation to this aspect of the reasons for sentence that the applicant submits there was an error of law. In summary, it is submitted that his Honour failed to reflect in the sentence, the utilitarian value of the plea, the applicant's attempts to assist the authorities, and the contrition which he had demonstrated, with the consequence that the sentence was manifestly excessive. Additionally, it was submitted that the starting point of sixteen years, which his Honour must have adopted, assuming an allowance of approximately one-third for the absence of remissions, and a discount of twenty-five per cent for the subjective circumstances, was too high, when compared with the maximum available sentence of twenty-five years, and when compared with the sentencing statistics. 18 The sentence was pronounced before the guideline judgment in Thomson and Houlton (2000) 49 NSWLR 383 the reasoning of which, it has been accepted, is generally applicable to sentencing for Commonwealth offences: Bugeja NSW CCA 11 May 2001. However, so far as that decision is relied upon in support of the existence of an obligation, on the part of sentencing Judges, to quantify expressly the discount given for the plea, and for other matters such as assistance, then that is to introduce into the sentence a wholly inappropriate mathematical approach: Pearce (1998) 104 CLR 610 at 624. 19 The relevant portion of the guideline was, in fact, expressed in advisory, rather than mandatory terms, as follows: "(ii) sentencing Judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate." 20 The case is not one where his Honour appears to me to have fallen into the error noted in Carter (2001) NSW CCA 245 of diminishing the utilitarian value of the plea for the reason that the applicant's conviction was inevitable. More relevant in an evaluation of the worth of the plea is the consideration that any trial would have been exceedingly short, given the circumstances of the applicant's arrest and his subsequent admissions. 21 Ultimately, the question in an appeal such as the present, is whether the sentencing order as a whole was excessive to the point of disclosing error of law. This requires a consideration of the objective and subjective circumstances of the case, including those relevant to the fact and timing of the plea, and the nature and extent of any assistance offered or given. 22 In the present appeal, three cases were identified by the applicant as indicative of a proper range for a case involving a trafficable quantity of MDMA, an early plea and assistance. They were the decisions in Hauser NSW CCA 11 December 1997, Bowers (1997) 97 A Crim R 461 and Bourel NSW CCA 11 December 1998. By reference to these decisions, and assuming a discount in the order of twenty-five per cent, it was submitted that the sentence here imposed should have been in the order of six years with a non-parole period of three and a half years. 23 I am not persuaded that the decisions relied upon by the applicant are of much assistance. They represent a small proportion of the many cases which have now been dealt with at first instance, or upon appeal, in relation to the importation of Ecstasy, since the case of Schaal which came before me in 1989 and which seems to have occupied the vanguard so far as this substance is concerned. 24 Similarly, I am not persuaded that the sentencing statistics are of much assistance. First, it may be noted that those which have been provided embrace a period which closes in March 2000. Over the last eighteen months there have been many other cases involving this substance. Moreover, as has been pointed out many times in this Court, sentencing statistics provide no more than a general indication against which the subjective and objective circumstances of each case must be weighed. 25 Further, while the quantity of the drug involved remains relevant for sentencing purposes, this is but one factor, the significance of the gulf between trafficable and commercial quantities lessening the more a case moves, as does the present case, into the high range for a trafficable quantity: See Spillane (1999) NSW CCA 280 at par 14 per Hidden J and also Doan NSW CCA 27 September 1996 where Hunt CJ at CL rejected the notion that sentencing for offences of this kind were to be approached by reference to some precise mathematical relationship between the sentence and the amount of drugs involved. 26 The offence of which the applicant stood convicted, his Honour appropriately noted, was a most serious crime being one which had been committed 'for sheer greed' and being one for which the question of both personal and general deterrence loomed large. 27 One paragraph of his Honour's remarks on sentence are pertinent, since it has unqualified support in the very many judgments which this Court regrettably finds it is necessary to deliver in relation to foreign nationals who elect to run drugs into this country, for example Muanchukingkan (1990) 52 A Crim R 354 and Laurentiu and Becheru NSW CCA 1 October 1992. It is the passage in which his Honour said: "It must be seen that there is a real price to pay for flaunting the laws prohibiting the importation of drugs. Judicial officers have a responsibility to fix sentences which are designed not only to punish but to serve as an effective deterrent." 28 I cannot but concur wholeheartedly with that view. The reward/risk ratio for drug importers is high but those who are caught must expect condign sentences for a form of conduct which is inimical to the interests of this country and which is driven by nothing other than naked self-interest. Offenders such as the present must be taken to have been aware of the risk of being detained in custody in a foreign gaol. The hardships associated with that consequence, although not to be ignored, have limited significance. 29 I am not persuaded that the sentence in this case, while heavy, was outside a legitimate exercise of sentencing discretion. In particular I consider that an exercise of the kind undertaken in Bourel in which a sentencing pattern was sought to be derived from a collection of cases, involving a wide range of objective and subjective circumstances, is fraught with the same difficulty as that identified in the use of sentencing statistics. If viewed as providing an indicative range, then some assistance may be provided. However, sentencing remains individual and every case must be considered in the light of the objective seriousness of the offence and the maximum penalty prescribed by the legislature, as well as in the light of the subjective circumstances of the offender. 30 I would grant leave to appeal but I would dismiss the appeal. 31 HEYDON JA: I agree with Wood CJ at CL. 32 CARRUTHERS AJ: I also agree. 33 HEYDON JA: The orders of the Court will be as proposed by Wood CJ at CL. ********** 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.