Reported Decision : 147 A Crim R 430 New South Wales Court of Criminal Appeal CITATION : Regina v Bezan [2004] NSWCCA 342 HEARING DATE(S) : 21/9/04 JUDGMENT DATE : 13 October 2004 JUDGMENT OF : Wood CJ at CL at 1; Buddin J at 41; Shaw J at 42 DECISION : 1. Crown appeal allowed; 2. Sentence below set aside; 3. In lieu, sentence the Respondent to imprisonment for 8 years to commence from 24 August 2003, and to expire on 23 August 2011; 4. Set a non-parole period of 5 years to date from 24 August 2003, and to expire on 23 August 2008, which will be his earliest parole release eligibility date. CATCHWORDS : CRIMINAL LAW - Crown appeal - import trafficable quantity of heroin - plea of not guilty - whether effect properly given to the consequences of the repeal of s 16G of the Crimes Act - whether the sentence imposed was objectively inadequate having regard to the seriousness of the offence - role of the Respondent in the importation - comparable sentences passed in like cases - appeal allowed. Crimes Act 1914 (Cth) LEGISLATION CITED : Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) Customs Act 1901 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 Olbrich v The Queen (1999) 73 ALJR 1550 R v Bavadra (2000) 115 A Crim R 152 R v Dujeu [2004] NSWCCA 164 R v El Karhani (1990) 51 A Crim R 123 R v Kevenaar [2004] NSWCCA 210 R v Laurentiu and Becheru (1992) 63 A Crim R 402 R v Maclay (1990) 19 NSWLR 112 CASES CITED : R v Mas Rivadavia [2004] NSWCCA 284 R v Pont (2000) 121 A Crim R 302 R v Quoc Phang Dang [2004] NSWCCA 265 R v Saxon (1996) 86 A Crim R 353 R v Studenikin [2004] NSWCCA 164 R v Van Ich Dang [2004] NSWCCA 269 R v Whyte (2002) 55 NSWLR 252 Regina v Wong and Leung (1999) 48 NSWLR 340 R v Wong and Ng (1988) 39 A Crim R 1 Wong v The Queen (2001) 207 CLR 584 PARTIES : Regina Motjaba Bezan FILE NUMBER(S) : CCA CCAP 2004/1716; (formerly 60083/04) COUNSEL : R Bromwich (Crown) A Cook (Respondent) SOLICITORS : S Kavanagh (Crown) S E O'Connor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/1128 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER : - 1 - IN THE COURT OF CRIMINAL APPEAL CCAP 2004/1716 (formerly 60083/04) WOOD CJ at CL BUDDIN J SHAW J Wednesday 13 October 2004 Regina v Motjaba Bezan Judgment 1 WOOD CJ at CL: The Respondent pleaded not guilty in the District Court to one count of importing, on 24 August 2003, a trafficable quantity of heroin contrary to s 233B(1)(b) of the Customs Act 1901. His trial before Judge Hosking SC and a jury commenced on Monday 16 February 2004 and concluded with a guilty verdict on 19 February 2004. 2 The Respondent was sentenced to imprisonment for 5 years and 6 months with a non-parole period of 3 years and 3 months, both commencing on 24 August 2003, the date upon which the Respondent was first remanded in custody. Facts 3 At about 7:40 PM on Sunday 24 August 2003, the Respondent arrived at Sydney Kingsford Smith International Airport, aboard flight MH-133 from Kuala Lumpur. He was travelling on an Australian passport and carried luggage that included a cardboard bag containing a stone/marble chessboard that was packed in foam. 4 The chessboard was subjected to examination by the Australian Customs Service after the Respondent had been processed through the Customs barrier. The chessboard had obvious cracks across its back and smelt strongly of glue. It was ion scanned and x-rayed and then opened by Customs Officers, who located brown powder inside a plastic bag within the chessboard. The powder was tested and reacted positively to the presence of heroin. 5 The Respondent initially agreed to participate in a taped record of interview with Australian Federal Police officers but shortly after the interview commenced he declined to answer questions. Before doing so he stated that he had bought the chessboard in Pakistan as a gift for his son. 6 The Australian Federal Police Physical Evidence Team examined the chessboard and found that it contained 490 g of brown powder. This powder tested positive to heroin. Upon formal analysis it was found to have a purity of 53% and a net pure weight of 260 g. It was said to have had a potential street value as high as $900,000. While his Honour found the Respondent was the importer, he also found that he would not have been likely to have received a sum anywhere near as great as that. 7 The only issue at trial was knowledge, it having been the defence case that he had gone to Iran, via Pakistan, to further the cause of militant Iranian rebels attempting to overthrow the Iranian government, not through violence, but through dissemination of literature. In finding the Respondent guilty, the jury necessarily rejected his claim that he knew nothing of the heroin in the chessboard, as well as his related claim that it must have been placed there by the Iranian secret police in an attempt to undermine his revolutionary work as a "freedom fighter". 8 The trafficable quantity of heroin ranges between 2 gms and 1.5 Kg and his Honour appropriately found that although the amount here involved was "towards the lower end of that scale it was certainly well into that applicable scale". 9 The maximum penalty applicable to the offence of which the Respondent was convicted was imprisonment not exceeding 25 years or a fine of $500,000 or both. As his Honour observed the mere stating of the penalties indicates the seriousness with which the legislature regards the offence. 10 Appropriately his Honour found that although the heroin might not have been worth $900,000 to the Respondent, it would still have been worth a considerable amount of money, and the offence, objectively, was a "very serious offence indeed", requiring a sentence of commensurate severity. Subjective Circumstances 11 The Respondent is an Australian citizen, who was born in Tehran, Iran on 16 September 1959 and who was aged 44 years when he appeared for trial. He is divorced and has a son who lives with his ex-wife. He was employed part-time as a wrestling coach at the Iranian Community Centre. He was studying English on a part-time basis and he had no prior convictions. He came to Australia in 1999 as a political refugee, having made an escape from Iran to Pakistan. Before leaving Iran he had, at one time, been arrested and imprisoned for his political views. THE GROUNDS OF APPEAL 12 The Crown appeals against the sentence imposed upon the ground of manifest inadequacy, contending that: (a) effect was not properly given to the consequences which follow from the repeal of s 16G of the Crimes Act ; and (b) the sentence imposed was objectively inadequate having regard to the seriousness of the offence, taking into account the role of the Respondent as an importer and the comparable sentences which had been passed in like cases. The Repeal of s 16G of the Crimes Act 1914 (Cth) 13 On 19 December 2002, assent was given to the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth). That Act provided, inter alia, for the removal of s 16G from the Crimes Act 1914 (Cth), with effect from 16 January 2003. That section had required a discount to be given in the case of offenders sentenced for Federal offences in States and Territories which did not have a system for remissions. The present offence took place well after the repeal of s 16G took effect, and the section, accordingly, had no application. 14 At the time of sentencing consideration had not been given, at an appellate level, to the consequences of the repeal of s 16G for the future sentencing of Federal offenders. All that his Honour said in relation to this aspect of the case was: "I take into account that s 16G of the Crimes Act 1914 has now been repealed and that at least on one view of it the effect of the repeal of that section means that, if anything, sentences should be increased in relation to such offences by comparison to sentences imposed before the repeal in January 2003 of s 16G." 15 Earlier his Honour had stated: "In terms of the applicable sentencing range, I have had regard to the comments and observations of the New South Wales Court of Criminal Appeal in the case of Queen v Wong and Leung 1999 108 ACR 531 at 556. In particular, I have also considered three authorities helpfully provided by the Crown on sentence, namely Prisoner's Appeals in the cases of Queen v Nguyen CCA unreported 6 October 1994 and Queen v Koglbauer reported 1992 65 ACR 357. In addition I have taken into account, and found helpful to a degree, sentencing statistics kept by the New South Wales Judicial Commission in more than eighty cases involving the importation of the trafficable quantity of heroin. I am aware that no case is identical and one has to be careful of sentencing statistics. I have, nevertheless, found them to be of some assistance in this case." 16 It is clear from those passages that his Honour was aware of the repeal of s 16G and that he had given consideration to the pre-repeal sentencing pattern, and to three decisions which formed part of the range from which the Judicial Commission statistics were compiled. 17 A number of decisions have now been delivered by this Court concerning the way in which the repeal of s 16G should be taken into account, namely R v Studenikin [2004] NSWCCA 164, R v Kevenaar [2004] NSWCCA 210, R v Dujeu [2004] NSWCCA 237, R v Quoc Phang Dang [2004] NSWCCA 265, R v Van Ich Dang [2004] NSWCCA 269 and most recently R v Mas Rivadavia [2004] NSWCCA 284. 18 The effect of the decisions in Studenikin, Dujeu and Mas Rivadavia is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914, and the relevant objectives of sentencing, without giving a s 16G discount. 19 Moreover, they establish that it would be inappropriate to approach the sentencing exercise upon a broad arithmetic approach that would require the pre-repeal sentencing range (which may have been influenced by sentences imposed following reliance upon the guideline in Regina v Wong and Leung (1999) 48 NSWLR 340 before the successful appeal from that decision (Wong v The Queen (2001) 207 CLR 584), to be adjusted by some bare arithmetic formula, let alone one that would call for its increase by the factor of 50%, in order to restore an equivalence with the pre-repeal range. 20 I am not persuaded that Kevenaar or either of the Dang decisions should be understood as suggesting that there should be an automatic adjustment in the order of 50%, since to do so would be to resort to the mathematical approach which was accepted, in each decision, to be inappropriate. In this regard it needs to be born in mind that the guideline judgment reflected a range, and acknowledged that, in appropriate cases, there could be a departure above or below it. 21 Judges were not unaware, during the period when s 16G was in force, that it was a somewhat beneficial provision, in that it gave an allowance for remissions which were as yet unearned, compared with the position of State offenders, who needed to earn remissions through good conduct, in those jurisdictions where a remission system existed. That was a matter properly taken into account by Judges and it does not follow that the starting points selected in the pre-repeal cases involving Federal offenders would necessarily have been the same had the section not been in force. So much was recognised by Smart AJ in Dujeu at para 42. 22 What the line of authority mentioned does establish, in my view, is that care needs to be taken when reference is made to individual pre-repeal decisions, or to the pre-repeal range which is disclosed in the sentencing statistics. This follows from the circumstance that those earlier sentences, and the guidelines which were proposed in Wong and Leung, were predicated respectively upon the basis that by reason of s 16G there had been, or would be, a discount of the kind referred to in R v El Karhani (1990) 51 A Crim R 123, as being necessary for sentences passed in those States which lacked a remissions system. 23 That discount, as the decision in El-Karhani and subsequent decisions made clear, was never regarded as involving a fixed or arbitrary ratio. Rather, it was considered to be an appropriate reference or starting point, it still being necessary to pass a sentence that properly took into account the prescribed maximum penalty, the gravity of the offence, and the objective and subjective considerations relevant to the particular offender. 24 What is now required by s 16A(1) of the Crimes Act 1914 is that a sentence be imposed that "is of a severity appropriate in all of the circumstances of the case", including those that are identified in s 16A(2) and (3). The approach required by this section does not materially differ from that held to be appropriate in R v Maclay (1990) 19 NSWLR 112, in the context of the introduction into New South Wales of the former Sentencing Act 1989. 25 The Crown submission that error was demonstrated, in so far as his Honour had not unequivocally accepted that there now needed to be a significant increase in the pre-repeal range, accordingly involves something of an overstatement. As the decisions cited do suggest, it is likely that there will be some increase in sentences but the extent of the increase will only become apparent as further sentences are imposed that are free of the s 16G constraint. Manifest Leniency 26 Absent patent error, the Crown relies upon the sentence as being so lenient that latent error should be found. Any such submission is to be considered in the light of the warning of McHugh J in Everett v The Queen (1994) 181 CLR 295 at 306: "Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence." and of Spigelman CJ in R v Baker [2000] NSWCCA 85 at para 19: "The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare." 27 In Wong v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ said at 605: "…there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons." 28 The observations in my judgment in Mas Rivadavia are also relevant in so far as the present appeal is brought by the Crown: "63. In order to make the appeal good, it is necessary for the Crown to show that the sentences were so lenient as to demonstrate latent error, that is, to bring the appeal within the exceptional category of case that was referred to by Gaudron and Gummow JJ in Dinsdale v The Queen (2000) 202 CLR 321 at para 22; and by Spigelman CJ in R v Baker [2000] NSWCCA 85 at para 19; see also R v Tait and Bartley (1979) 24 ALR 473 at 475-476, and Everett v The Queen (1994) 181 CLR 295 at 299. 64. The constraints on Crown appeals, and the discretion which is inherent in their disposition, were summarised in my judgment in R v Wall [2002] NSWCCA 42 at para 70: '(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62.'" 29 The Crown submits that there is a manifest inadequacy in the sentence, which is indicative of latent error when regard is had to: (a) the finding that the Respondent was a principal in the importation of a substantial quantity of heroin; (b) the quantity of the drug; (c) the finding as to the potential street value of the drug and its likely worth to the Respondent; (d) the absence of any evidence of contrition; (e) the significant maximum penalty that was available; (f) the comparison between the sentence imposed and the sentences which had been imposed in like cases by this Court; as well as (g) the likely increase in the range evidenced by sentencing statistics or otherwise following the repeal of s 16G of the Crimes Act 1914 (Cth). 30 The Crown accepts that sentencing is not a crude numbers exercise and that a range indicated by this Court whether resulting from a guideline judgment or otherwise, is not a rigid template within which a sentence must necessarily fall. As it accepted, any such approach would involve focusing on the result of the sentencing task to the exclusion of the reasons supporting the result, an approach which would plainly be wrong (Wong v The Queen (2001) 207 CLR 584 per Gaudron, Gummow and McHugh JJ at paras 65 to 66), and which would also involve treating comparative cases as amounting to a numerical guideline system giving rise to a presumptive sentencing range. That is impermissible, at least in relation to Federal cases (Wong at para 72). 31 It remains appropriate, however, to look at the sentence imposed by reference to comparative sentences to see whether there is a reason, including a general sentencing discretion, to support the result of a substantial and unexplained departure from an established range in order to ensure that a reasonable degree of consistency is maintained. Prima facie, a departure from an established range manifests error in failing to maintain consistency: Griffiths v The Queen (1977) 137 CLR 293; see also R v Whyte (2002) 55 NSWLR 252 at 278 [168] to 280 [179], and 282 [190]. 32 Adopting this approach, attention was drawn to a table of cases that were decided in this Court, before the repeal of s 16G, involving both importers and couriers of trafficable quantities of heroin, two of which involved sentences imposed after trial. The point of the submission was that, even without taking into account the repeal of s 16G, the present sentence was very lenient when compared with these decisions. 33 The table was as follows: Case Date Plea Heroin Head sentence/NPP (years) Maddocks 12/12/90 G 44.5 g 5/4 Muanchukingkan 20/12/90 G 455.4 g 7.5/5.5 Ndubuis 27/03/92 G 194.7 g 6/4 Gurung 22/05/92 G 151 g 6/4.5 Turner 21/05/93 G 686.5 g 7.5/4.5 Sanna 21/05/93 NG 863 g 9/5 Rachid 13/08/93 G 105 g 5.5/4 Blass 28/02/94 G 586 g 10/6 reduced to 8/6 for G plea & assistance; further reduced to 6/4 for future assistance Lawless 24/6/94 G 345.2 g 5/3 (possession) El Khoury 30/09/94 G 99.9 g 6/3.5 Nguyen 6/10/94 NG 250.2 g 8/5 Chaaroui 4/11/94 G 92.8 g 6/4 Schrei 24/11/95 G 18.4 g 5/3.5 34 These were cases that, no doubt, formed part of the range that was taken into account in Wong v Leung, which this Court has accepted still has a relevance notwithstanding the successful appeal to the High Court, in so far as it was based upon the pre-existing pattern of sentencing: R v Taru [2002] NSWCCA 391. It is also of relevance in so far as it identified the role of the offender as an important element in sentencing, as had Olbrich v The Queen (1999) 73 ALJR 1550 and R v Laurentiu and Becheru (1992) 63 A Crim R 402, where that is capable of determination. Further, it is still accepted that the quantity of the drug has a relevance in determining the extent of the offender's objective criminality, although it is not the sole or key determinant. 35 Caution still needs to be exercised in relation to any such exercise, since the selection by way of a reference point of individual cases of the kind selected by the Crown in this table, or of those identified by his Honour in his reasons for sentence, involves only part of a wider range and risks ignoring the differences in the objective and subjective considerations which inevitably arise. 36 Subject to that caution, and following the approach which in my view emerges from Mas Rivadavia, I am driven to the conclusion that the sentence here imposed did fall well short of that which was appropriate for an offender who was convicted after trial of having personally imported a mid range trafficable quantity of heroin. 37 It seems to me that his Honour could not have given appropriate weight to the consideration that the range of sentences to which he had reference, both in the statistics, and in the cases cited, had been imposed while s 16G was still in force. It also appears to me that his Honour failed to impose a sentence that reflected the element of general deterrence which authority shows is required in a case such as the present: R v Wong and Ng (1988) 39 A Crim R 1 and R v Saxon (1996) 86 A Crim R 353, given the harm which is occasioned by those who import narcotics into this country. 38 I accept, as did his Honour, that there were some mitigating circumstances in that: (a) the offence was somewhat amateurish; (b) the Respondent had no criminal antecedents; (c) he was considered to have been of good prior character; (d) he had experienced difficulties of a real kind in his homeland, including imprisonment, because of the differences in his political beliefs and those of the former Shah, or of the more recent Islamic regime under the leadership of Ayatolla Hamani; (e) he will suffer considerable anguish by reason of his separation from his son; and in that (f) he has little English, even thought he came to this country as a refugee in 1999, and may suffer some hardship in custody as a result. 39 Each of these matters I have taken into account, in relation to the exercise of the discretion whether or not to intervene, and also in relation to the sentence to be substituted which, in accordance with the principles previously noted, should be the least possible sentence that could properly have been imposed at first instance: R v Bavadra (2000) 115 A Crim R 152. 40 Notwithstanding the discretion which this Court has (see R v Pont (2000) 121 A Crim R 302 at para 11), I have reached the conclusion that the Court should intervene. I propose accordingly, the following orders: 1. Crown appeal allowed; 2. Sentence below set aside; 3. In lieu, sentence the Respondent to imprisonment for 8 years to commence from 24 August 2003, and to expire on 23 August 2011; 4. Set a non-parole period of 5 years to date from 24 August 2003, and to expire on 23 August 2008, which will be his earliest parole release eligibility date. 41 BUDDIN J: I agree with Wood CJ at CL. 42 SHAW J: I agree with Wood CJ at CL. ********** Last Modified: 10/15/2004 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.