Reported Decision : 125 A Crim R 487 New South Wales Court of Criminal Appeal CITATION : R v Efendi [2001] NSWCCA 391 FILE NUMBER(S) : CCA 60226/99 HEARING DATE(S) : 28 September 2001 JUDGMENT DATE : 28 September 2001 PARTIES : Amran Efendi (Appellant) Regina (Respondent) JUDGMENT OF : Heydon JA at 1, 23; Wood CJ at CL at 21; Carruthers AJ at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0746 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER : COUNSEL : Ms C A Davenport (Appellant) Mr M G Allnutt (Respondent) SOLICITORS : Hovan & Co (Appellant) Commonwealth DPP (Respondent) LEGISLATION CITED : Customs Act 1901 R v Olbrich (1999) 199 CLR 270 R v Wong & Leung (1999) 108 A Crim R 531 CASES CITED: R v Bowers (1997) 97 A Crim R 461 R v Thompson & Houlton (2000) 49 NSWLR 383 R v Hauser (CCA, unreported, 11 December 1997) R v Schaal (unreported, Supreme Court of New South Wales, Wood J, 8 September 1989) DECISION : Leave to appeal granted; appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60226/99 HEYDON JA WOOD CJ at CL CARRUTHERS AJ Friday, 28 September 2001 R v Amran EFENDI Judgment 1 HEYDON JA: The applicant was tried before Ainslie-Wallace DCJ and a jury on 17-20 and 22-25 February 1999 on two counts. The first was: "On 23 August 1998 at Sydney New South Wales [the applicant] did import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of 3,4- Methylenedioxymethamphetamine (MDMA) being not less than the commercial quantity applicable … ." That drug is commonly called "Ecstasy". The second count was: "On 23 August 1998 at Sydney New South Wales [the applicant] did import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of Methylamphetamine being not less than the trafficable quantity applicable … ." That drug is commonly called "Speed". 2 On 25 February 1999 the jury convicted the applicant on both counts. 3 On 7 May 1999 he was sentenced. In relation to the conviction on the first count he was sentenced to imprisonment for ten years. The sentence was to commence on 23 August 1998 and was to expire on 22 August 2008. The sentencing judge fixed a non-parole period of six years. The maximum sentence for the relevant offence is life imprisonment. In relation to the conviction on the second count he was sentenced to a fixed term of five years. It was to commence on 23 August 1998 and was to expire on 22 August 2003. It is to be served concurrently with the first sentence. The maximum sentence for the latter offence is imprisonment not exceeding twenty–five years and a fine not exceeding $100,000. 4 The Notice of Appeal indicated that the appeal was against both conviction and sentence. A notice abandoning the appeal against conviction was filed in court. 5 The submissions advanced in support of the application for leave to appeal against the sentences did not dispute the factual findings of the sentencing judge recorded in her remarks upon sentence. 6 The trial judge said: "The prisoner is … an Indonesian national. He arrived at Sydney International Airport on 23 August 1998. As part of his luggage, the prisoner was carrying a box which contained an exercise machine. … He was searched and amongst other things, the stepper was x-rayed and it was discovered that it contained point eight of a kilogram pure of the drug MDMA. This is about one and a half times the commercial quantity. The stepper also contained ten point seven grams pure quantity of speed. The trafficable quantity is two grams. Both drugs were in tablet form and were concealed in the hollow legs of the machine. The tablets had been inserted into the machine and then the opening through which they were inserted blocked with material and tin foil. During the trial, there was no dispute that the drugs were contained in the stepper, nor was there a dispute that the stepper was brought into Australia by the prisoner. The dispute in the trial was whether the prisoner intended to bring the drugs into the country. The prisoner maintained at the trial and still maintains, according to the pre-sentence report, that he was coming to Australia for a holiday and while at the airport was approached by an elderly woman who, after enquiring where he was going asked whether the prisoner would take the stepper to her son, who was living in Australia. The prisoner agreed to bring the stepper into Australia. He said he took steps to ensure that the stepper contained no food because he knew it was prohibited to bring food into the country. He was given one hundred dollars for his trouble by the elderly woman. He was not told the name of the person to whom he was to deliver the machine. He was told that he would be met by the woman's son on his arrival. The accused, when searched, was found to be carrying $3,100 in cash. His wallet contained two SIM cards. He was carrying a mobile phone. He had one night's accommodation booked at the Airport Hilton Hotel and it was booked for the night of his arrival. His ticket was endorsed with a return to Jakarta on 24 August. When arrested and charged, the prisoner made no admissions and has maintained his innocence of the importation. I am satisfied that there is no evidence which would support a finding that the prisoner was acting other than as a courier for the drugs and I make that finding beyond reasonable doubt. It seems that he was paid $3,000 for his role in bringing drugs into Australia. There was no submission put on sentence that his role was other than as a mere courier. The prisoner has no prior criminal history. On sentence was tendered a document which was translated in court and which was a certificate from the Indonesian authorities to the effect that the prisoner has no prior convictions, nor has he any outstanding charges against him. The evidence of the prisoner at the trial was that he was a self-employed person. Counsel for the prisoner indicated that although he made attempts, he has been unable to secure references from work colleagues of the prisoner. Of course, prior good character, while important, attracts less significance in cases of importation because couriers are usually chosen because they have no convictions. I accept that the court cannot offer the usual leniency for first offenders in these cases. That is not to say that his prior good character is meaningless, but that it is not accorded the usual weight. The prisoner is a man of some thirty-nine years and was born on 17 January 1960. According to the pre-sentence report he is married, although separated from his wife. He has two young children aged five and eight, who live with their mother. Prior to coming to Australia, he lived with his mother and is said to have some financial responsibility for her, which he took on after the death of his father. At the trial, the prisoner gave evidence that he has some financial responsibility for his wife and children. His incarceration will necessarily mean that this financial support will not be available for his family. While this is a matter which I take into account in determining sentence, the hardship which flows or might flow to his family cannot be said to be extreme, nor the circumstances exceptional. He is said to have attended school and the evidence on the trial was that he was self-employed as a broker of cars and houses. The prisoner did not give evidence on the plea nor was there any submission put on which I might find that he expresses any contrition. This is, of course, consistent with his maintenance of his innocence of the crime. It is impossible, given the plea of not guilty and the prisoner's maintaining that he was merely bringing a gift into Australia as a favour, to say much as to the prospect of rehabilitation. The prisoner has no ties in Australia and does not speak much English. He is said to be isolated within the prison. It follows, perhaps, that it is unlikely that he will be visited by members of his family while in prison. He has no friends in Australia who might visit him. That being the case, it will no doubt make his incarceration all the more difficult. I also take into account that although he speaks some English, it is not the prisoner's first language and this may well serve to make his imprisonment more difficult than for an English speaker. Nonetheless, the prospect of imprisonment in a foreign gaol must have been well within his contemplation when he attempted to bring the drugs into Australia. The court must sentence to take into account the seriousness of the crime and in a way so as to deter the prisoner from re-offending and also to send a strong message to those in the community who would be of like mind to the prisoner. There is no need for me to enlarge further on the seriousness with which the legislature, the courts and the community regard the crime of this prisoner. This was a calculated crime and it must be seen by the community and by others who may be tempted to engage in similar conduct that the courts regard this crime as serious and if the circumstances are appropriate that salutary punishment will be forthcoming. In fixing sentence, I have had regard to the fact that the prisoner will serve the sentence imposed and that he will not receive the benefits of remissions or reductions in his sentence. I have taken into account the various objective and subjective matters, to which I have referred. I have considered various sentencing options available to me, which fall short of a full-time custodial sentence. I do not believe that in all the circumstances of this case, punishment short of a full-time custodial sentence is appropriate. I have also considered whether the sentence that I propose to impose reflects adequate punishment for the prisoner. I was invited by counsel for the prisoner to indicate the sentence which I would impose before I considered the matters referred to in Section 16G. To that end, I was referred to the Crown v Boudiman, unreported, 8 September 1998 in which a submission was made that by failing to nominate a starting point on sentence the Court of Criminal Appeal was unable to determine whether an appropriate allowance had been made having regard to section 16G. Sentencing is not an exercise amenable to mathematical formula. There is often a degree of overlap in consideration of discretionary matters. In the result, I decline to nominate a starting point. I have however, considered the matters contained in section 16G as they are appropriate to this matter, whether they have been specifically mentioned in these reasons or not. Ecstasy is a mid-range drug and must be considered in a category in terms of harm, below that of heroin and cocaine and I take this into account on sentencing." 7 The first point made on behalf of the applicant was as follows: "The applicant is an Indonesian national who speaks little English. He has an estranged wife and two children living in Indonesia. He has financial responsibility for his wife and children as well as his mother, who also lives in Indonesia. He was a man of prior good character and was 39 years old at the time of sentence." 8 The applicant's family position, his lack of fluency in English, his age and his prior good character were all matters specifically taken into account by the sentencing judge. Those matters, whether considered separately or together, do not point to any error in the sentencing process. 9 The principal submission advanced on behalf of the applicant commenced with the proposition that the sentencing judge "found that his role was that of a mere courier". The submission then referred to R v Olbrich (1999) 199 CLR 270. In that case at [19]-[20] Gleeson CJ, Gaudron, Hayne and Callinan JJ said: "Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. 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. There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender's criminality. But there was no evidence, one way or the other, to suggest that this was such a case. There was nothing before the primary judge which revealed that the respondent was part of any business venture of that kind. All that was known was that the respondent asserted that he was to be paid $15,000 for importing the heroin That is, the respondent 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." 10 The applicant's submissions proceeded thus: "Since her Honour sentenced the applicant, the guideline judgment relating to the importation of heroin and cocaine has been handed down ( R v Wong & Leung (1999) 108 A Crim R 531). Whilst that judgment relates to the role of couriers and persons low in the hierarchy of the importing organizations of heroin and cocaine, analogies can be drawn in respect of other drugs such as Ecstasy, which is categorised as a mid-range drug. In respect of a low range commercial quantity of heroin or cocaine, the full term sentence range is set between 8-12 years. It is submitted that, in the case of a mid-range drug such as Ecstasy, that range should be significantly lower. This submission is supported by the sentencing statistics of the Judicial Commission. Those statistics, which cover a whole range of amounts within the commercial quantity of Ecstasy, reveal that a head sentence of 10 years is the second highest imposed upon any offender for the importation of the commercial quantity of Ecstasy, and the highest imposed upon a person pleading 'not guilty' and who has no prior convictions." 11 In answer, the Crown submitted: "In R v Bowers (1997) 97 A Crim R 461 the applicant Pleaded Guilty to importing some 7000 tablets with a pure weight of 719.2 grams. The applicant was sentenced as a courier. The applicant Pleaded Guilty at an early stage and offered assistance to Police, which was not taken up. He was sentenced to eight and half years with non-parole period of four and half years. Section 16G Crimes Act 1914 was taken into account. Allowing some 20% on discount for the utilitarian basis of Plea (although clearly not a matter specifically discussed in that case – the Plea was seen in light of the strength of the Crown Case – now see R v Thompson & Houlton 49 NSWLR 383) a head sentence in excess of 10 years for this sort of offence seems appropriate. Bowers was cited with approval in R v Hauser (CCA unreported 11 December 1997) where the Court indicated that eight and one half years on a plea of Guilty with no prior convictions, after allowing for adjustment under s 16G and being a 'mere courier' was an appropriate sentence. In this matter it is submitted that a head sentence of 10 years is well within the appropriate range bearing in mind the range of sentences approved in cases where there has been an early Plea of Guilty, no prior convictions and with assistance offered. This applicant has been convicted by a jury and has not provided any assistance allowing for discount on sentence. Other subjective factors have been taken into account by Her Honour. None allow for significant reduction in sentence in the circumstances as presented. The Respondent submits that there has been no demonstrable error in Her Honour's sentencing of the applicant. It is further submitted that Her Honour extended some leniency in her imposition of a non-parole period of 60% of the head sentence. There is no demonstrable error in Her Honour's sentencing in the second count." 12 It is necessary to correct one aspect of the Crown's submissions. In R v Hauser the Court of Criminal Appeal did not of its own motion state the proposition which it is said by the Crown to have indicated. All it did was cite, without disapproval, what the Court of Criminal Appeal said in R v Bowers. In that case the Court of Criminal Appeal, despite identifying various errors in the sentencing judge's approach, held that a sentence of eight and a half years imprisonment with a non-parole period of four and a half years was a proper one. The accused there had made admissions to the police at the first available opportunity and pleaded guilty (though since he was arrested at the airport with the drugs taped to his body he had little choice). He placed no impediment in the path of the police inquiries. From an early stage the accused had offered assistance by participating in a controlled delivery of the drugs he had imported; without fault on his part, the authorities were precluded from acting upon this offer. In all those respects the accused in R v Bowers merited considerably more lenient treatment than the present applicant. Further, the quantity of ecstasy imported was rather greater in R v Bowers than here. Hence R v Bowers does suggest that the present sentences, even if high, are not outside the range of a sound sentencing discretion, because without the mitigating factors applicable in that case, a head sentence significantly greater than eight and a half years would have been regarded as appropriate. 13 The applicant's submission is in effect that there is no direct analogy between the eight-twelve year sentence range established by R v Wong & Leung (1999) 108 A Crim R 531 for low range commercial quantities of heroin and cocaine, because they are not "mid-range" drugs, but Ecstasy is regarded as a mid-range drug. For that reason it was submitted that the sentencing range for Ecstasy should be lower. Stress was placed on the fact that the quantity involved was 874 grams, less than double the minimum commercial quantity, and it was submitted that this was not in the high range of commercial quantities. 14 It is certainly common to describe Ecstasy as a mid-range drug. But it does not follow that the importation of Ecstasy is less serious than the importation of cocaine. The proposition that the importation of Ecstasy is less serious than the importation of cocaine is inconsistent with R v Schaal (unreported, Supreme Court of New South Wales, Wood J, 8 September 1989) a case frequently referred to without disapproval by this Court. In that case Wood J said the following about Ecstasy: There is evidence which suggests that over-dosage leads to hallucinations, that heavy use may be neuro-toxic and that there is a rapid onset of tolerance with unpleasant side effects if use is more than episodic. When synthesised in back yard laboratories, as is commonly the case with illegal designer preparations, the risk of impurity and of harmful side effects are substantial and obvious. … MDMA must be regarded as joining cocaine and other designer drugs, particularly those which fall within the description of hallucinogenic as a new and serious threat to the community. The profit to be made from these substances and the risk that poses for the corruption of law enforcement officers and other officials is obvious. It would be unrealistic for me to conclude that Ecstasy is other than an illegal substance in vogue within a vastly complex and changing drug scene which unfortunately attracts the young and to which drug related crime inevitably becomes attached." Cocaine is a drug which can cause very great damage to its users. It seems that even in 1989 that was perceived to be the case for Ecstasy also. Since 1989 nothing has happened to change that perception. 15 The proposition that Ecstasy importation is less serious than cocaine importation, at least in the eyes of the Commonwealth Parliament, is also inconsistent with the fact that the maximum penalty of life imprisonment for importing commercial quantities is the same as the maximum penalty for importing commercial quantities of cocaine (and heroin). 16 Accordingly the guidelines in R v Wong & Leung should not be discounted in considering the appropriate sentence for Ecstasy importation. 17 So far as the sentencing statistics reveal that the sentence under consideration in this application is the highest ever imposed on a person without prior convictions who pleaded not guilty, it must be remembered that the statistics handed up relate to a period ending in March 2000. There have been many convictions in relation to the importation of Ecstasy in the last eighteen months which are not reflected in those statistics. In any event, sentencing statistics provide no more than a general indication against which the objective and subjective circumstances of a particular case must be considered. It must also be remembered that the top of the range has to be marked by some figure. If this sentence marks the top of the relevant range, that does not of itself reveal error on the part of the sentencing judge. Error might be revealed if all other sentences were significantly below the sentence under consideration, but this has not been demonstrated to be the case. 18 In my opinion it has not been shown that the sentence imposed in relation to the first conviction was beyond the top of the relevant range. 19 No separate submission was directed to the sentence in relation to the second conviction, save for this: it was submitted that the non-parole period for the first conviction in relation to Ecstasy should be adjusted so as to conform to the five year fixed term sentence in relation to the Speed conviction. The suggestion, in effect, was that an eight and a half year head sentence and a five year non-parole period would meet the justice of the case. In view of what has been said about the first conviction, nothing more need be said about the sentence for the second. 20 The application for leave to appeal should be granted but the appeal should be dismissed. 21 WOOD CJ at CL: I agree. 22 CARRUTHERS AJ: I also agree. 23 HEYDON JA: The orders of the court will be those proposed earlier. ********** 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.