New South Wales Court of Criminal Appeal CITATION : Speer v Regina [2004] NSWCCA 118 HEARING DATE(S) : 12/02/2004 JUDGMENT DATE : 22 March 2004 JUDGMENT OF : Beazley JA at 1; O'Keefe J at 2; Bell J at 32 DECISION : Leave to appeal against sentence granted; Appeal allowed; Sentence imposed below quashed; In lieu of the sentence imposed below, the applicant is sentenced to imprisonment for 9 years to commence on 26 April 2002 and to expire on 25 April 2011 with a non-parole period of 6 years to commence on 26 April 2002 and expire on 25 April 2008, on which date the applicant will become eligible for parole. CATCHWORDS : Criminal law - Appeal - Sentence - Drug importation - Courier - Heroin - Commercial quantity - Plea of guilty - Amendment to law between dates of plea and sentence - Relevance to sentencing discretion - Words and phrases: "in addition to any other matters". Customs Act 1901 (Cth) LEGISLATION CITED : Crimes Act 1914 (Cth) ss 16A, 16G Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act (2002) (Cth) ss 3 and 4, Schedule 3, Item 1. Regina v Thompson; Regina v Houlton (1999-2000) 49 NSWLR 383 Regina v Schofield (2003) NSWCCA 3 (unreported, 6 February 2003) CASES CITED : Regina v Maclay (1990) 19 NSWLR 113 House v The King (1936) 55 CLR 499 Regina v Wong; Regina v Leung (1999) 48 NSWLR 340; (2001) 207 CLR 584 Regina v Spiteri (1999) NSWCCA 3 (unreported, 24 February 1999). PARTIES : Allan James Speer Regina FILE NUMBER(S) : CCA 60337/03 COUNSEL : Mr A Bellanto SC - Appellant Mr R Bromwich - Crown SOLICITORS : Whitby William - Appellant Commonwealth Director of Public Prosecutions - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0719 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER : - 13 - IN THE COURT OF CRIMINAL APPEAL 60337/03 Beazley JA O'Keefe J Bell J 22 March 2004 Allan James Speer v Regina Judgment BEAZLEY JA: 1 I agree with O'Keefe J. O'KEEFE J: Introduction 2 This is an application by Allan James Speer (the applicant) for leave to appeal against a sentence of imprisonment for 16 years with a non parole period of 10 years that was imposed by Judge Freeman (the Judge) in the District Court on 21 February 2003. At the time of the offence the applicant was aged 25 years and had no previous convictions. The offence to which the applicant had pleaded guilty before the Chief Judge of the District Court, Justice Blanch, was importing narcotic goods consisting of a quantity of heroin that was not less than the commercial quantity applicable to such drug. The gross weight of heroin imported was 3.468 kilograms which produced 2.5411 kilograms of pure heroin. A commercial quantity of heroin is fixed at 1.5 kilograms by Schedule VI of the Customs Act 1901 (Cth) (the Customs Act). The maximum penalty imposed by the Act for such an offence is a fine of $750,000 or imprisonment for life or both. 3 The applicant had been arrested at Mascot Airport on 26 April 2002. He was charged with the offence on that day and was committed for trial on 3 July 2002. On 12 July 2002 the applicant was arraigned, pleaded not guilty and was remanded for trial. His trial came on for hearing on 11 November 2002 on which date he pleaded guilty. The applicant was then remanded for sentence but, his sentence hearing did not take place until 14 February 2003 and then took place not before the Judge who was to preside at his trial and before whom he pleaded guilty, but before another Judge. In the interval between the entry of the plea of guilty and the sentence hearing, the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) was assented to. Relevantly the effect of this Act was to provide for the repeal of s 16G of the Crimes Act 1914 (Cth) (the Crimes Act) effective from 16 January 2003. 4 The applicant has sought leave to appeal on three grounds, namely: (1) The sentencing discretion miscarried in that due regard was not given to the requirements of s 16A of the Crimes Act 1914 (Cth) ; (2) The sentence was outside the permissible and appropriate range and thereby manifestly excessive; (3) His Honour erred in finding that s 16G of the Crimes Act 1914 had no application in the sentencing procedure. Facts 5 The applicant arrived at Mascot Airport from Bali on the morning of 26 April 2002. His luggage consisted of a black hard-sided suitcase. It was subjected to search. A customs officer observed an unusual thickness on the walls of the suitcase, which was later found to be heavy, even when empty. The case was x-rayed and a quantity of material that proved to be heroin was found concealed within the walls of the suitcase. The secreting of the drug had been effected by fixing a package in each side of the suitcase by means of masking tape. It was apparent that this had been effected with some care and required the dismantling of the lining of the case in order to retrieve it. 6 The contents of the two packages that were removed from the suitcase had a total weight of 3.4687 kilograms. The purity of drug in the packages was 73.5% and 72.9% respectively, yielding a weight of pure heroin of 2.5411 kilograms. The street value of this quantity of heroin was estimated by an Australian Federal police officer at between approximately $750,000 and $9.034 million. This wide range in the estimated street value came about because the price per ounce used to determine such value was widely variable, being "very dependant on a number of factors". These included the extent of dilution, the volume sold in each transaction, whether or not there was a shortage of the drug on the illicit market at the time of sale and a number of other factors. The most that can be said is that the quantity was substantial, its value high. 7 The applicant was questioned at the airport but, as was his right, he declined to make a statement. However at his sentence hearing the applicant gave evidence from which it emerged that he had gone to Bali at the behest of a person with whom he had first come in contact in a nightclub at the Kings Cross Hotel. The applicant had been drinking at that venue when he first met a man who was known to him only as "Paul". They drank together and talked but nothing untoward occurred. About a week later they met again by chance. This meeting was also at Kings Cross but at a different place from the place of the first meeting. Again they drank together and talked, but again there was no suggestion of anything untoward having occurred. A third meeting took place a few days later at yet another venue, also in Kings Cross. As far as the applicant was concerned this was a chance meeting, not pre-arranged. The conversation at this meeting ranged over a number of topics. In the course of the discussion it emerged that both men were gamblers, the applicant was unemployed, had no money, was living with his mother and, at least by inference, was in need of money. In fact at that time he had debts to his mother and others that totally some $17,000. These arose from his gambling. 8 At the third meeting between the applicant and Paul, the applicant was asked if he would go to Bali, pick up a suitcase and bring it back to Australia in return for a payment of $3,500, apparently to cover airfares, accommodation and the like, with the promise of more on his return. The applicant purchased his air ticket on the day he was given the money and he then embarked on his first overseas trip. He went to Bali, where it was arranged for him to pick up a suitcase. This arrangement was made by a man identified as John Lee. The method whereby the suitcase came into the appellant's possession was devious and such as to be calculated to excite suspicion that illegality was involved in the transaction. 9 Although the applicant initially thought that he was bringing money back in the suitcase, whilst still in Bali he came to the conclusion that the suitcase must have contained drugs. However, it is clear that he was unaware of the precise nature, quantity or quality of the drug involved. As a result of this belief he remained in his hotel room, because he was "too scared" to go outside. Notwithstanding this and being "embarrassed and ashamed", he nonetheless brought the case back into Australia, where he was arrested. Analysis 10 It is clear from the evidence that the applicant was not involved in the illegal enterprise involving the heroin otherwise than bringing it, by arrangement and for monetary reward, into Australia. It was common ground that the applicant's involvement was at "a fairly low level". The Judge accepted that there was no material upon which he could find that the applicant was "more than a courier". However he proceeded to find that he was not a "mere" or "bare" courier. This was done on the basis that the applicant's role as a courier was "a pivotal one". From the remarks on sentence his Honour took this to mean that there would have been no importation but for the actions of the applicant. As a consequence although he accepted that the applicant was no more than a courier he appears to have sentenced him on the basis that he was "in a sense the principal in the act of importation". These findings seem to me to involve a degree of inconsistency. 11 The applicant was either a courier or he was not. His role as a courier and when combined with the finding that his involvement was "a fairly low level", as was conceded to be the case by the Crown at the sentence hearing, is different, indeed very different, from that of a principal. The appropriate sentence for a person who is a courier with a fairly low level of involvement in the criminal enterprise is generally less than that which would be imposed on a person who had a higher level of involvement in the criminal enterprise. An appropriate sentence for a courier has generally been accepted as being significantly less than that for a principal in the criminal enterprise. In referring to couriers and principals I am conscious that it is what somebody does as part of the chain involved in the criminal enterprise that is important, and that labels can be misleading. A discussion as to whether someone is a courier, a mere courier or a bare courier, as occurred in the course of the Remarks on Sentence in the present matter highlights the problems that can be created by labels and sub-labels. One thing is certain, namely that the applicant was not high in the echelons involved in the criminal enterprise involving the heroin in the present case. He was certainly not a principal. Nor did he perform any function that would cause him properly to be so characterised, yet the sentencing Judge so referred to him and in my opinion appears to have sentenced him on such a basis. This was an error and taken alone would entitle this court to intervene and review the sentence. 12 There are, however, two other matters that are of concern. The first is whether the Judge gave the appellant any discount in respect of his plea of guilty and if he did, what that discount was and whether it was adequate in the circumstances. 13 The Judge referred to the plaintiff's plea of guilty on two occasions. The first occasion was at the commencement of the Remarks on Sentence where His Honour set out that the plea of guilty had been entered on 11 November 2002, which was the date fixed for the commencement of the trial (AB 115). However, this reference is no more than a recitation of the history of the matter. It does not suggest that any, and if any, what discount was allowed in respect of the plea. The second reference is much later in the Remarks on Sentence. The Judge said: "In his favour, it must be recorded that he pleaded guilty… " (AB 122). However there is no express reference thereafter to the plea in the course of determining the sentence to be imposed. Having regard to the fact that the plea was not a plea at the earliest date, but that it none-the-less had a utilitarian value, one would have expected some discussion as to the extent to which the plea of guilty would be taken into account. Whilst a failure to specify the percentage discount allowed for a plea of guilty does not, of itself, constitute error, the fact that no reference was made to the extent to which the plea is taken into account in favour of the appellant means that this element in the sentencing process was to that extent opaque. It is not apparent on the face of the Remarks on Sentence that appellant's plea of guilty played any part in reducing the sentence that might otherwise have been applied. As was stated in Regina v Thomson; Regina v Houlton (1999-2000) 49 NSWLR 383, this can be indicative of the plea not being given weight (supra at 419, para 160). If the plea of guilty did operate to reduce the head sentence, then the commencing sentence i.e. that which would have been imposed without any discount for the utilitarian value of the plea of guilty, would have been higher than the sentence of 16 years imprisonment imposed on the appellant. Even looking at the bottom of the range of discount normally given for a late plea of guilty, the undiscounted sentence would have been in the order of 18 years. This would be well in excess of the sentences generally imposed on couriers whose involvement is at a low level. The foregoing considerations support the applicant's contention that no, or alternatively inadequate, credit was given to the appellant in respect of his plea of guilty. They bespeak error. 14 The second matter is the way in which the Judge treated the amendment to the Crimes Act effected by the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) by which s 16G of the Crimes Act was repealed. The commencement of the Act that effected the repeal fell between the date on which the appellant pleaded guilty and the date on which he was sentenced. The analysis by his Honour of the Transitional Provisions of the amending Act resulted, in effect, in the appellant being dealt with more harshly by way of sentence than would have been the case had the sentence been imposed at the time the appellant pleaded guilty. 15 In dealing with the amendment his Honour referred to the decision of this Court in Regina v Schofield (2003) NSWCCA 3 (unreported 6 February 2003). In acknowledging that he was in fact dealing with the appellant more harshly than would have been the case had the appellant been sentenced on the day he pleaded guilty, the Judge seems to have taken the view that he had no alternative but to do so (AB 124-125) and that the decision in Regina v Schofield (supra) did "not dictate otherwise" (AB 125; italics added). 16 In Regina v Schofield (supra) the prisoner was sentenced at a time when s 16G was still in the Crimes Act. The Crown appeal against the inadequacy of his sentence was heard in November 2002 whilst that section remained in the Act, but when he was re-sentenced on 6 February 2003, s 16G had been repealed. Carruthers AJA, with whom Heydon JA agreed, said that: "… although s 16G of the Crimes Act 1914 has been repealed as from 16 January 2003 the respondent should nevertheless be given the benefit of a reduction of one third…" (at para 164). Hulme J was of a like opinion. He said: "In the particular circumstances of this case, I would exercise (the) discretion so as to, in effect, give the respondent the benefit of s 16G" (at para 169). 17 Regina v Schofield (supra) was a Commonwealth matter. It involved a re-sentencing consequent on a successful Crown appeal. It indicates that in exercising the discretionary power of sentencing in a Commonwealth matter, a Court may, depending on the facts of the particular case, have regard to the circumstance that the person being sentenced falls, as it were, between two stools and as a matter of fairness give effect to this in fixing the sentence (Regina v Maclay (1990) 19 NSWLR 113 at 127 per Gleeson CJ, Hunt and Loveday JJ). The introductory words of s 16A of the Crimes Act namely "(i)n addition to any other matters", are in my opinion, a sufficient statutory warrant for such an approach. Thus although the Transitional Provisions in the instant case indicate that the amendments applied "whether or not the offence concerned was committed before (the) amendment commenced" (Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 s 4 and Schedule 3, Item 1) it would have been open to the Judge to recognise the particular circumstances of the appellant by not imposing a penalty that was more harsh than would have been the case had the appellant been sentenced at the time he entered his plea of guilty. The Judge's failure to recognise the existence of such discretion, in my opinion. constituted an error. 18 There is also an overarching way in which the matter may be approached. In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ, in dealing with the discretionary exercise involved in sentencing, said: "It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the court reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred" (supra at 505). In my opinion the present appeal falls within such a category. 19 In Regina v Wong; Regina v Leung (1999) 48 NSWLR 340 this court examined the range of sentences that had been imposed in respect of the importation of cocaine (which has been equated with heroin) where the person being sentenced was a courier. That examination led to the conclusion that where the amount of heroin involved was in the order of 1.5-3.5 kilograms of heroin, the head sentences customarily imposed were between 8 and 12 years. The range reflected the variability of the extent of involvement of the particular courier, but was said to be a guide. 20 Regina v Wong; Regina v Leung (supra) were cases in which this court delivered a guideline judgment. The jurisdiction of this court to do so, at least in Commonwealth matters, was challenged on a number of bases including: (i) that the judicial power of the Commonwealth did not extend to the promulgation of a sentence guideline because it did not involve a matter within ss 75 and 76 of the Constitution; (ii) there was an inconsistency between s 16A of the Crimes Act 1914 (Cth) and the power of the Court of Criminal Appeal to promulgate a guideline and that such inconsistency fell within the ambit of s 109 of the Constitution; (iii) the publication of guidelines was beyond the jurisdiction conferred by ss 5D and 12 of the Criminal Appeal Act, 1912. 21 The Court of Criminal Appeal ruled against these submissions. However, on appeal, the High Court by majority (2001) 207 CLR 584(Gleeson CJ and Callinan J dissenting) held that the principles involved in the guideline judgment were inconsistent with s 16A of the Crimes Act and were beyond the jurisdiction conferred by the Criminal Appeal Act 1912. Although the decision of the Court of Criminal Appeal was reversed and caution was urged in relation to the use of statistics derived from sentences in prior cases (supra at 608), the High Court did not reject as being without utility, an understanding, inter alia, of what sentences other cases of a like or similar kind had attracted. As Hulme J said in Regina v Schofield (supra): "The criticism by members of the High Court in Wong v R of this Court's decision in R v Wong and Leung was not directed to the analysis which I have quoted." (supra at para 53) The analysis to which Hulme J was referring is that which relevantly gave rise to a range of head sentences in cases involving couriers of 1.5-3.5 kilograms of heroin of 8-12 years. 22 When the head sentence imposed by the Judge is viewed in the light of: (i) the "low level" involvement of the appellant; (ii) his lack of knowledge of the precise nature of the drug involved, its quantity and quality; (iii) the maximum sentence fixed by the statute; (iv) the plea of guilty; (v) the subjective circumstances of the appellant including: (a) his remorse (b) his prospects of rehabilitation (c) his absence of prior convictions (d) the fact that he had not previously been associated with hard drugs, I am of opinion that the sentence imposed is manifestly excessive. 23 For the foregoing reasons I am of opinion that this Court should intervene in relation to the sentence and that it should be quashed. Re-sentence 24 In these circumstances it is necessary for this Court to exercise its own discretion (House v The King supra at 505), in the light of the appropriate principles, and impose such sentence as it considers appropriate in all the circumstances of the case. 25 Section 16A of the Crimes Act requires the Court to impose a sentence that is of a severity appropriate in all the circumstances of the offence (s 16A(1)). In doing so the Court must, in addition to any other matters, take into account such of the 13 matters set out in s 16A(2) as are relevant and known to the Court. In the present case these are sub-paragraphs (a), (b), (d), (f), (g), (j), (k), (m) and (n). 26 The nature of the offence is serious and although the circumstances involved the applicant not knowing the precise nature of the drug involved, its quantity or quality, the offence was committed for monetary gain. Although it was not part of a repetitive or ongoing criminal activity but was done in order to pay off gambling debts, the offence and circumstances are such as to call for condign punishment which is of an extent that will operate as a deterrent not only to the applicant and to others as well. Insofar as the applicant is concerned I agree with the Judge that he is unlikely to offend again and to that extent the deterrent aspect of the sentence does not need to be as great as might otherwise be the case. 27 There are no other offences that need to be taken into account and the offence was "a one-off" offence. The fact that the applicant has shown contrition both by his plea of guilty and by his expressions of contrition which were accepted by the Judge militates in his favour and suggests that the finding by the Judge, which I accept, that the applicant has good prospects of rehabilitation is well founded. The appellant offered and endeavoured to give such assistance as he could but in reality the circumstances of his recruitment as a courier and the method used to get the suitcase of drugs into his possession meant that in effect no benefit by way of assistance accrued to the authorities as a consequence of his good intentions to assist. It is for these reasons that this criterion in s 16A(2) is not applicable. 28 The relative youth of the applicant, his genuine contrition, the unlikelihood that he will re-offend, the support from his family, his prospects of rehabilitation, his absence of criminal record and the fact that he was sentenced at the time referred to above, all support a sentence that is not at the high end of the range referred to in paragraph 18 above. In the light of the foregoing considerations I am of opinion that a sentence in the middle of the range referred to in such paragraph, would be appropriate as a starting point. However the benefit of the plea of guilty needs to be take into account as well. 29 The plea of guilty by the applicant was entered quite late. It nonetheless had an advantage for the Crown and as a consequence an allowance should be made for the utilitarian value of the plea. A discount of 10% of the sentence should be allowed for this consideration. 30 An examination of the prior cases including those referred to in this court in Regina v Wong; Regina v Leung (supra) and Regina v Spiteri (1999) NSWCCA 3 (unreported, 24 February 1999) and Regina v Schofield (2003) NSWCCA 3 supports the conclusion that, having regard to the subjective matters referred to above, a head sentence of 10 years would be appropriate. When the discount referred to in paragraph 28 above is applied, the discounted head sentence becomes 9 years. That is a sentence which in my opinion is consonant with the provision s of s 16 A of the Crimes Act 1914. 31 It is necessary also to consider the non-parole period that should be fixed. I agree with the Judge that there are special circumstances that include the youth of the applicant, his prospects of rehabilitation and the fact that the present offence involves his first period in custody. Applying a ratio of two thirds to the head sentence, I am of opinion that an appropriate non-parole period would be 6 years. Conclusion 32 For the foregoing reasons I would propose that leave to appeal be granted to the applicant, that the appeal by the applicant should be allowed, the sentence imposed on him below should be quashed and that in lieu thereof he should be sentenced to imprisonment for 9 years to commence on 26 April 2002 and expire on 25 April 2011 with a non-parole period of six years to commence on 26 April 2002 and expire on 25 April 2008, on which date the applicant will become eligible for parole. BELL J: 33 I agree with O'Keefe J. Orders 34 The orders of the Court are as follows: (i) Leave to appeal against sentence granted. (ii) Appeal against sentence allowed. (iii) Sentence imposed below quashed. (iv) In lieu of the sentenced imposed below, the applicant is sentenced to imprisonment for a period of 9 years to commence on 26 April 2002 and expire on 25 April 2011, with a non-parole period of 6 years to commence on 26 April 2002 and expire on 25 April 2008, on which date the applicant will become eligible for parole. ********** Last Modified: 04/29/2004 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.