New South Wales Court of Criminal Appeal CITATION : Tyler v Regina [2002] NSWCCA 272 FILE NUMBER(S) : CCA 60119/02 HEARING DATE(S) : 07-06-02 JUDGMENT DATE : 7 June 2002 PARTIES : Regina Heather Suzanne Tyler JUDGMENT OF : O'Keefe J at 1; James J at 21; Carruthers AJ at 22 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/1045 LOWER COURT JUDICIAL Kinchington DCJ OFFICER : COUNSEL : Appellant - in person Respondent - Ms M Cinque SOLICITORS : Appellant - in person Respondent - DPP - Sydney CATCHWORDS : Criminal law - Drug importation - MDMA or ecstasy - Commercial quantity - Involvement in importation for money - Not mere courier, but not principal - Prospects of rehabilitation not taken into account by trial Judge - Relevant error - Review of sentence - Conditional parole LEGISLATION CITED : Commonwealth Crimes Act 1914 Proceeds of Crime Act 1991 CASES CITED: Regina v Olbrick (1999) 73 ALJR 1550 DECISION : 1. Leave to appeal be granted; 2. Appeal allowed; 3. Sentence quashed and in lieu thereof there be substituted a term of imprisonment for six years expiring on 27 July 2007 with a non?parole period of three and a quarter years so the applicant will become eligible for release on parole on 27 October 2004, such parole to be subject to a condition that the applicant attend and complete a full time drug rehabilitation programme to commence on the day on which she is admitted to parole and that in the event that she fails so to do, her parole be revoked. - 7 -IN THE COURT OF CRIMINAL APPEAL 060119/02 O'KEEFE J GREG JAMES J CARRUTHERS AJ FRIDAY, 7 JUNE 2002 REGINA v HEATHER SUZANNE TYLER Judgment 1 O'KEEFE J: Heather Suzanne Tyler (the applicant) was sentenced by Judge Kinchington (the judge) in the District Court on 15 February 2002 on a charge of having imported into Australia a commercial quantity of 34 methylenedioxi-methylamphetamine (commonly knows as ecstasy or MDMA) on 28 July 2001. 2 The sentence imposed was seven and a half years with a non-parole period of four and a half years. In addition an order was made under s 19 of the Proceeds of Crime Act for the forfeiture of $US500 that was found on the applicant at the time of her arrest. In fixing the sentence the judge took into account an offence of making a false statement in respect of a passport contrary to the Passports Act 1938. 3 The quantity of the drug involved was a gross weight of 3,426.3 grams. It was in the form of 13,917 tablets concealed in the false bottom of a sports bag which formed part of the applicant's luggage. 4 On analysis, the quantity of pure MDMA was found to be 947.6 grams. It had an estimated street value of between $695,850 to $974,190. A commercial quantity of MDMA is 500 grams. The maximum penalty provided for the importation is imprisonment for life and/or a fine of $750,000. 5 Whilst the applicant's luggage was being x-rayed, she was seen to deposit an Australian passport, which had been issued in her name, in a bin in the quarantine area. The applicant had previously declared that the passport so deposited had been stolen on 29 May 2001. As a consequence, she obtained a new passport and it is the charge in respect of false declaration concerning her earlier passport that was placed on the schedule referred to above. 6 The applicant is a single person who is now almost 30 years of age. She has had a good education. Since leaving school she has been in continuous but itinerant employment, because of her extensive travelling. 7 Although she has a minor criminal record, being a conviction for larceny in 1990, the judge did not, and correctly so in my view, take it into account in fixing her sentence. She claimed that whilst in a living in "squat" in Amsterdam, Holland, she was approached by a male person who lived in the same premises. He offered her $5,000 to bring the narcotics the subject of the principle charge back to Australia. She also said that she obtained possession of the drugs in Paris. 8 The applicant was represented by counsel at her sentence hearing. At that hearing she elected to give no evidence, as was her entitlement. However, this left the judge with a paucity of evidence in relation to the extent of the involvement of the applicant in the criminal enterprise in question. From the evidence before him he drew the inference that she was more than a mere courier. 9 It was incumbent on the applicant to prove, but only on the balance of probabilities, that she should be regarded as a courier, since such a degree of involvement in the criminal enterprise could be a factor to be taken into account in mitigation of penalty. That being merely a courier may be a matter in mitigation of sentence is clear from the decision of the High Court in Regina v Olbrick (199), in which Gleeson CJ, Gaudron, Hayne and Callinan JJ said: "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. Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful inquiry, it was one that could not be pursued in this matter because there was no evidence about it." The judge accepted that the applicant: "(a) was genuinely sorry for, and deeply ashamed of, her behaviour; (b) was a person who would be unlikely to involve herself in like criminal activity again; (c) pleaded guilty to the relevant charge at the earlier possible time, but; (d) had a substance abuse problem which she was unwilling or unable to acknowledge and; (e) had given minimal assistance to the authorities." 10 In fixing the sentence the judge applied the principles set out in Pt 1B of the Commonwealth Crimes Act 1914. He correctly determined that a custodial sentence was appropriate to the criminality involved in the principle offence which he correctly characterised as "one of the most serious offences under Commonwealth law." Appropriately he had regard to the concept of general deterrence which is important in view of the seriousness of the offence, the difficulty in detecting its commission and the damage that narcotics such as MDMA do in our society. 11 In determining the role played by the applicant in connection with the importation, the judge noted that he had but little information and that the paucity of information was because the applicant herself had said very little, as was her right, about the operation which underlay the importation. She claimed she had been given the bag by an unnamed friend and she was to be paid $8,000 by another unnamed person to whom she was to hand the bag in which the drugs were secreted following her arrival in Sydney. 12 It was clear from the statement made by the applicant that her involvement was for the money. Faced with this situation, the judge concluded that the material before him did not tend to indicate that the applicant was one of the principals in the operation, but by the same token it did not allow him to determine anything more than that she was the importer. 13 At the sentence hearing, a schedule of sentences was produced from an examination of which the judge Kinchington concluded that head sentences ranging between seven and 10 years were appropriate when the quantity of the narcotic in question lay between 0.7 and 1.0 kilograms. 14 He then noted the applicant's entitlement to a discount on the sentence because of her early plea and the nominal assistance she gave to the authorities. However, he did not quantify the extent of the discount given on this account, nor did he, in fixing the head sentence or in determining the period of non-parole, advert to the prospects of rehabilitation revealed in the evidence before him. 15 There were three reports that were material to the question of the rehabilitation of the applicant. One was from a psychologist, Ms Barrier. The judge adverted to this report in his remarks on sentence, but only to that part of it which recommended that the applicant should undergo counselling for her drug use and in relation to her poor self image. He did not refer to that part of the psychologist's report which dealt with the desire of the applicant, "to undertake... drug education and counselling." Furthermore, nowhere in his remarks on sentence does the judge refer to the assessment by Major Connie Hindle, Court and Prison Chaplain, which supports, "a time of rehabilitation (as) a part of (her) sentence," for which Major Hindle clearly thought the applicant to be an appropriate subject. Nor did the judge advert to the assessment by Ron Brown, Prison Assessment Officer, who, "assessed (the applicant) as suitable for the Salvation Army Bridge Programme in relation to (her) drug problem." Mr Brown formed the view, as did the counsellor with whom the applicant had been working at Mulawa Correctional Centre, that the applicant had, "the necessary motivation to undertake this programme and find benefit in it." 16 The fact that the judge did not advert to any of this evidence is, in my opinion, a significant oversight which is material to the fixing to the head sentence and, even more particularly, to the determination of the non-parole period. 17 In my opinion the foregoing was a relevant error in the sentencing process. That being so, it is open to this Court to review both the head sentence and the non-parole period. 18 The offence committed by the applicant was serious; one of the more serious offences in the realm of offences against the laws of the Commonwealth. Furthermore, the amount of the drug involved was substantial and the means taken to avoid detection were quite sophisticated. The applicant engaged in the criminal enterprise for money, but in her favour are the findings as to her contrition, her plea of guilty, her shame and the unlikelihood that she would involve herself in like criminal activity again. 19 Furthermore, in assessing both the head sentence and the non-parole period, regard must be had to the prospects of rehabilitation of the applicant which, on the evidence before the court, would appear to be reasonably good. 20 When these factors are combined with the plea of guilty for which the applicant should, in my opinion, receive a discount on sentence in the order of 20 percent, I am of the opinion that an appropriate head sentence would be six years and that, subject to an appropriate condition as to the attendance of the applicant at an approved, full-time residential drug rehabilitation programme, it would be appropriate to fix the non-parole period at three and a quarter years. The condition which should attach to such parole should be that the applicant be required to attend and complete an approved full-time residential drug rehabilitation programme and that in the event she fails to attend, or to continue in the programme, her parole be revoked. In the light of the foregoing, I would propose orders as follows: 1. Leave to appeal be granted. 2. Appeal allowed. 3. Sentence quashed and in lieu thereof there be substituted a term of imprisonment for six years expiring on 27 July 2007 with a non-parole period of three and a quarter years so the applicant will become eligible for release on parole on 27 October 2004, such parole to be subject to a condition that the applicant attend and complete a full-time drug rehabilitation programme to commence on the day on which she is admitted to parole and that in the event that she fails so to do, her parole be revoked. 21 GREG JAMES J: I agree with the orders as proposed by his Honour and with the reasons he has given. 22 CARRUTHERS AJ: I agree. 23 O'KEEFE J: The court has taken a view that it should give to you an opportunity to better yourself. Your sentence has been reduced by a year and your non-parole period by one and a quarter years. That is a very substantial reduction. It involves this court reposing a considerable amount of confidence or trust in you. 24 The life that you will live is yours. If you wish to destroy it, it is yours to destroy. If you wish to make something of your life, this is an opportunity to do so. 25 Please, in your own interests, make use of what has been offered to you. Dig yourself out of the hole into which you seem to have jumped with full vigor. 26 What happens to you between now and the time of parole, will determine whether or not you are granted parole at the earliest available date. If you engage in inappropriate activities in prison, you will not be released on parole on the first available date. But if you remain at a good prisoner - and if I could suggest undertake such programmes of drug rehabilitation, alcohol rehabilitation (which does not seem to be a problem for you but they go hand in hand), and in relation to your self image - it will mean that if you then enter upon the drug rehabilitation programme, your prospects of success will be so much the greater. It is in your hands. 27 The orders of the court will be as proposed above. ********** 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.