Regina v Taru [2002] NSWCCA 391

New South Wales Court of Criminal Appeal

CITATION : Regina v Taru [2002] NSWCCA 391 FILE NUMBER(S) : CCA 60595/01 HEARING DATE(S) : 13/09/2002 JUDGMENT DATE : 13 September 2002

PARTIES : Crown Herbert Taru JUDGMENT OF : Levine J at 1; Hidden J at 2; Howie J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0248 LOWER COURT JUDICIAL Backhouse DCJ OFFICER :

COUNSEL : M Bracks - Commonwealth Crown A Francis - Applicant SOLICITORS : Commonwealth Director of Public Prosecutions DJ Humphreys - Applicant CATCHWORDS : CRIMINAL LAW: Sentence appeal - attempt to obtain trafficable quantity of cocaine reasonably suspected of having been imported - offender's role - no question of principle. LEGISLATION CITED : Customs Act, 1901 CASES CITED: R v Wong & Leung (1999) 48 NSWLR 340 DECISION : Leave to appeal granted, appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60595/01

LEVINE J HIDDEN J HOWIE J

Friday 13 September 2002 REGINA v Herbert TARU Judgment 1 LEVINE J: The Court is in a position to deliver judgment in this matter and I ask Hidden J to deliver the first judgment. 2 HIDDEN J: The applicant, Herbert Taru, pleaded guilty in the District Court to a charge of attempting to obtain possession of a trafficable quantity of cocaine which was reasonably suspected of having been imported. That is an offence under s 233B(1)(ca) of the Customs Act 1901 carrying a maximum sentence of twenty five years imprisonment. The sentence her Honour passed was imprisonment for four years and nine months, with a non-parole period of three years. He seeks leave to appeal against that sentence. 3 Shortly stated the facts are these: the applicant had obtained permission from the proprietors of a studio in Campbelltown to receive parcels there which he said would contain sheet music. On 19 October 2000 customs officers intercepted a courier satchel which was addressed to the studio to which I have referred. The satchel was seized and handed to Australian Federal Police. Upon examination it was found to contain 148.8 grams of cocaine of a relatively high purity. The pure amount was 101.8 grams. The police reconstructed the package, leaving a small amount of cocaine in it and sent it on its way, and it was delivered to the address to which it was directed. 4 On 24 October 2000 the applicant took possession of the satchel and in the early evening left the premises, carrying the package, and drove off in his car. He was under surveillance, of course, a fact of which he may have been aware because the manner in which he drove the car suggested he was attempting to evade surveillance. In the event, the police activated their lights, turned on the siren and the applicant made a fairly spirited attempt to escape from them by driving off the road. He lost control of the car and he was arrested. Shortly after his arrest he said to one of the police officers, "What you're looking for is on the floor in the front of my own car wrapped in a black jacket." Indeed, that was where the subject package was found. 5 The matter was listed for trial but the applicant pleaded guilty on the day of trial. The learned sentencing judge discounted the sentence otherwise appropriate by twenty five percent in recognition of the utilitarian value of that plea and also in recognition of the applicant's remorse, which she accepted as genuine. 6 He was twenty four years old at the time of the offence and is now twenty five. He has a minor criminal record involving some drug offences, but they are of little or no significance for present purposes. He made a good subjective case. He has a supportive family. He was educated to higher school certificate standard and had a satisfactory employment record. 7 His father gave evidence from which it is apparent that the applicant is remorseful and had developed an insight into the seriousness of his offence by the time he stood for sentence. 8 While he made no admissions to the police, he did admit his involvement to his father and, indeed, named at least one of the persons to whom the package was to be delivered. 9 Her Honour characterised the applicant's role as being a collector of the drugs. The Crown conceded, and her Honour accepted, that his involvement was to accept delivery of a parcel and pass it onto its ultimate recipient or recipients. 10 In written submissions for the purpose of the present application, Ms Francis of counsel argued that the sentence in fact passed by her Honour failed adequately to reflect the various favourable subjective matters to which I have referred and, in particular, was inadequate to reflect the applicant's limited role in this importation. In oral argument this morning Ms Francis developed her submission as to the significance of the applicant's limited role, relying otherwise on her written submissions in relation to the other matters agitated. 11 Her Honour acceded to the Crown submission that the applicant's role was analogous to that of a courier or a person low in the hierarchy of an importation. It was to that category of offender that this Court referred when it set various guidelines in respect of offences under s 233B in R v Wong & Leung (1999) 48 NSWLR 340. 12 Those guidelines remain useful notwithstanding the subsequent High Court decision arising from that case, because they were expressed to be based on the existing pattern of sentence at the time that the judgment was delivered. Indeed, much of the judgment of the chief Justice was devoted to consideration of other cases and the pattern of sentence which emerged from them. That being so, notwithstanding the High Court decision, it remains fair to say that the range for offences involving low level trafficable quantities, as this case does, for offenders properly classified as couriers or persons low in the hierarchy of the importing organisation is of the order of five to seven years imprisonment. 13 Ms Francis this morning supplied Judicial Commission figures relating to sentences for offences under s 233B involving trafficable quantities of cocaine. Those figures, I must say, do not appear to be inconsistent with the range enunciated in Wong and Leung. 14 It seems to me it is appropriate to analogise the role of this applicant to that of a courier or a person low in the hierarchy of the organisation. Whilst his role was in one sense limited to the delivery of the parcel of its intended recipient, it must be remembered that it was he who arranged the premises at which the parcel was to be received. 15 That being so, it does not appear to me that the sentence passed by her Honour of four years nine months can be said to be manifestly excessive, even allowing for the favourable subjective factors to which Ms Francis has taken us this morning. It is not a lenient sentence, I must say, but it is not one which could be said to be outside the range properly available to her Honour in the exercise of her undoubted discretion. 16 The matter was certainly worthy of argument and I would grant leave to appeal but dismiss the appeal. 17 LEVINE J: I agree with the remarks of Hidden J 18 HOWIE J: I also agree. 19 LEVINE J: The orders will be as proposed by Hidden J. **********