New South Wales Court of Criminal Appeal CITATION: R v PP [2005] NSWCCA 214 HEARING DATE(S): 24 May 2005 JUDGMENT DATE: 14 June 2005 JUDGMENT OF: McClellan AJA at 1; Simpson J at 2; Rothman J at 48 DECISION: (i) application for leave to appeal granted; (ii) appeal allowed, sentence quashed; (iii) in lieu thereof the applicant be sentenced to imprisonment for five years and seven months commencing 14 November 2003, with a non-parole period of three years and four months expiring on 13 March 2007. CATCHWORDS: appeal against severity of sentence - importing not less than the traffickable quantity of cocaine - plea of guilty - subjective circumstances - co-offenders - parity - former s16G (Crimes Act 1914) Crimes Act 1914 (Cth), s16G LEGISLATION CITED: Customs Act 1901, s233B(1)(b) R v Bezan [2004] NSWCCA 342 R v Dujeu [2004] NSWCCA 237 R v Kevenaar [2004] NSWCCA 210 CASES CITED: R v Mas Rivadivia [2004] NSWCCA 284 R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1 R v Wong and Leung [1999] NSWCCA 420; 108 A Crim R 531 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 Crown - Respondent PARTIES: PP - Applicant FILE NUMBER(S): CCA 2005/219 M Bracks - Crown COUNSEL: J Stratton SC - Applicant Commonwealth Director of Public Prosecutions - Crown SOLICITORS: Legal Aid Commission of NSW - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0103 LOWER COURT JUDICIAL OFFICER: Graham DCJ IN THE COURT OF CRIMINAL APPEAL 2005/219 McCLELLAN AJA SIMPSON J ROTHMAN J Tuesday 14 June 2005 REGINA v PP Judgment 1 McCLELLAN AJA: I agree with Simpson J. 2 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court by Judge Graham on 28 May 2004 following his plea of guilty to a single charge of importing not less than the traffickable quantity of cocaine. Pursuant to s233B(1)(b) of the Customs Act 1901, a maximum custodial penalty of imprisonment for 25 years was applicable to the offence. Judge Graham sentenced the applicant to imprisonment for six years with a non-parole period of four years. 3 The grounds sought to be pleaded are relatively narrow, two in number. The first concerns asserted unfair disparity, in all the circumstances, with sentences imposed by the same judge on four co-offenders. The second concerns the manner in which his Honour dealt with the repeal of the former s16G of the Crimes Act 1914 (Cth). facts 4 On 13 November 2003 the applicant travelled by Qantas Airways from Singapore to Sydney Kingsford Smith Airport. On the same flight were his co-offenders, Roger Marcel Jacob, Djamel Keran, Stephane Pascal, Olivier Jules and Paul King. The applicant was travelling on a German passport issued in the name under which he was charged, although it is almost certain that that is, in fact, not his name. He subsequently claimed that his true identity is PL and it appears to have been accepted that this is correct. It is unnecessary to reach any answer to this question; in my opinion it is convenient to follow the course taken by the sentencing judge and continue to use the name under which he was charged, which apparently is the name by which the applicant has become known and which he now uses. 5 Prior to leaving Singapore the applicant had attempted to swallow 100 pellets containing cocaine. He was not able to swallow them and adopted an alternative method of taking them into his body, inserting them into his rectum. He was unable so to conceal 100 tablets and succeeded in inserting only about 35. The co-offenders similarly had concealed in their bodies varying numbers of identical pellets. 6 On arrival in Sydney, the applicant was selected for baggage examination. An ionscan swab of the inside of his suitcase and toilet bag yielded a positive result for cocaine which prompted a more extensive search, including, eventually, an internal search, initially by way of CT scan. The applicant gave information to Customs and Immigration officials that was, in a number of respects, false. For example, he said that he had come to Australia alone, for the purpose of watching the Rugby World Cup finals, although he did not have tickets. He said he did not use narcotics and did not know anybody who did. Most significantly, he denied that he had drugs concealed internally. 7 The applicant was taken to St George Hospital where he was detained until the pellets had passed through his body, which was completed the following day, 15 November. In all the applicant was found to be carrying 140.3 grams of pure cocaine. That amount of cocaine at the time had a street value of approximately $160,300. 8 King, Jules, Keran and Jacob were also arrested at Sydney Airport and subjected to internal examination. It was later found that Jules and Keran had each concealed 100 pellets in their bodies, yielding, respectively, 520.1 grams and 518.5 grams of cocaine; Jacob had concealed 73 pellets, containing 386.6 grams of cocaine; and King had concealed 50 pellets, yielding 253.1 grams of cocaine. 9 Late on 15 November 2003 the applicant was discharged from hospital and taken to the headquarters of Australian Federal Police ("the AFP") where he was interviewed the following day. At this time he continued to identify himself as "PP". He told police that, five or six days earlier, he had been approached in Bali by a man, a French national, named "Pascal" (who had previously assisted him to obtain cocaine) who requested him to travel to Singapore for the purpose of obtaining the cocaine and bringing it to Australia. He was to receive $US100 "for each piece" – that is, presumably, if he had managed to import the originally contracted 100 pellets, he would have received $US10,000. Alternatively, he could have been paid in cocaine, about 25 or 30 grams. The applicant described the events in the Singapore hotel. He said that Pascal had given him 100 pellets, but that he was unable to swallow them. At this stage, on the applicant's account, he sought to retreat from the enterprise, but Pascal put pressure on him to continue, telling him to use the rectal method. He said that after inserting 20 pellets he was bleeding "full-on", but was subjected to further pressure, as a result of which he inserted a further 15 pellets, and then stopped. He returned the remaining 65 pellets, and agreed to carry those inserted for the reduced fee of $3,000 or 5 – 6 pellets. He flew to Singapore and met King, Pascal and two other men called "Stefan" and "Djamal", and another whose name he did not know. Presumably these were the other co-offenders. 10 The applicant was given directions about what to do by Pascal. 11 When interviewed on 16 November the applicant provided information to the AFP and offered to participate in a controlled delivery of the narcotics. For reasons which did not emerge in the evidence, this offer was not ultimately taken up. On 17 November the applicant was admitted to St Vincent's Hospital for treatment. On this occasion he disclosed his true identity as PL. He said that he had found the passport on which he travelled in a street in Germany about four years previously. Later, he said that he had stolen the passport from PP who was a friend of his. 12 The applicant entered a plea of guilty to the offence on 4 February 2004, approximately three months after his arrest, and on the date fixed for his reply to the Crown brief of evidence. subjective circumstances 13 Evidence of the applicant's subjective circumstances was put before the Court in the form of a pre-sentence report and oral evidence given by the applicant himself. He was born in Austria on 1 January 1957. He was an only child. Because of relationship difficulties with his step-father he ran away from home at the age of 14 years and soon became drug dependent. For 28 years he was a heroin addict but when he withdrew from heroin he started using amphetamine and cocaine and he continued to do that until his arrest. He considers himself to be an alcoholic. On his incarceration he ceased using these drugs without medical assistance. 14 He has had no formal education or training since leaving school, but survived as a "self taught musician" and disc jockey in various countries. 15 He married a Thai woman in Thailand who has, since his arrest, given birth to their son. 16 He claimed to have been coerced into the offence in Bali by people to whom he owed money for his drug purchases. He said that he was in fear for his safety and that of his wife if he did not comply. He also said that the offence was committed to support his drug addiction. This time, he said, he was to have received $2,000, but this, in effect, would have been by way of forgiveness of existing debts. 17 After his arrest he was diagnosed as suffering from tuberculosis for which he has received treatment. He expressed contrition, both for his involvement in the offence itself, and for its effects on his wife and his child, who, of course, he has never seen. the remarks on sentence 18 The remarks on sentence were comprehensive, lengthy, and, for the most part, unexceptionable. The judge recounted the facts of the offence in some detail. For reasons which he gave, and which it is unnecessary to repeat, he accepted the applicant's evidence as to his history of drug use. He also appears to have accepted that the applicant's correct name is PL, and the second account given by him as to how he came to be in possession of and travelling on the passport he was using, that is, that the true owner of the passport had been a friend of his and that he had stolen his passport. 19 Graham DCJ dealt with the assistance given by the applicant to the AFP. An assessment of the value of that assistance was provided to the Court as a confidential exhibit. The assistance was in two parts: the offer to participate in a controlled delivery, which, ultimately, for reasons never fully explained, did not take place; and the information provided by the applicant in the recorded interview. As to this, Graham DCJ observed that it was consistent with information already held by the AFP and was not itself productive of any further arrests. It was of "intelligence value" only and of slight value. 20 His Honour appears also to have accepted, contrary to the position adopted by the Crown, that the applicant felt coerced into participating in the offence, although he recognised that coercion did not reach the level of providing a defence. 21 His Honour rejected a Crown submission that, far from being "a bare courier" the applicant was "somebody who was closely associated with the people behind the operation, and trusted by them to be a discrete (sic) courier." Just what conclusion the judge reached in this respect is not entirely clear: while he considered that submission "overstate[d]" the situation, he also thought it "contain[ed] more than a kernel of truth." Eventually he concluded that the applicant was a courier. 22 His Honour correctly observed that general deterrence is an important aspect of sentencing in respect of crimes against s233B. He accepted that there was a degree of planning and organisation involved, and that the applicant's economic need provided some measure of mitigation in terms of objective culpability. 23 He accepted that the contrition expressed by the applicant was genuine. 24 He accepted that the plea of guilty was, in reality, entered at the earliest reasonable opportunity and would attract a very substantial discount for its utilitarian value alone. As against that, he recognised that a trial would not have been lengthy. Having considered matters favourable to the applicant in relation to the plea of guilty, his Honour determined that, notwithstanding the decision of the High Court in Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584, the guideline promulgated by this Court in that case (R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340) remains of some relevance. Having, effectively, adopted the sentences proposed in Wong and Leung, Graham DCJ turned to the effect of the repeal of s16G of the Crimes Act 1914 (Cth). S16G formerly provided: "If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly. " 25 S16G was repealed before the applicant's sentencing. His Honour concluded that the repeal meant that the Wong and Leung guideline, of five to seven years, would, after discarding s16G, be a sentence of nine years. He took that as his starting point for the applicant's sentence, but reduced that by reason of the applicant's plea of guilty, and by reason of the assistance he had given. He quantified the discount for the plea of guilty at 15%, and the discount for assistance at 20%. Thus, he arrived at a head sentence of six years, with a non-parole period of four years. the non-parole period was accordingly fixed at about 66% of the head sentence, a fairly conventional proportion. the co-offenders 26 The co-offenders also entered pleas of guilty. Graham DCJ sentenced them on 16 September 2004, three and a half months after he had sentenced the applicant. Jules, Jacob and Keran pleaded guilty, as his Honour said: " ... once the Crown brief of evidence was furnished and once the precise nature and purity of the items imported were the subject of expert evidence." 27 I take this to be a finding that the timing of the pleas, relevant to their utilitarian value, meant that their values were roughly equivalent to that of the applicant. The remaining co-offender, King, pleaded guilty at a later time, to a count in an indictment presented on 10 September 2004, although he had signalled his intention of pleading guilty about six months earlier. Graham DCJ treated him as having pleaded guilty on 5 March 2004 which was the first mention date in the District Court and therefore not at the earliest possible date. His Honour did not consider his plea to be significantly different, in terms of timing, from the pleas of the other co-offenders. 28 However, when he came to sentencing, his Honour did not adhere to the path he had taken when sentencing the applicant. Notwithstanding that he recognised that, in the case of each of the co-offenders, but more significantly in relation to Jules and Keran, the quantity of drug imported was significantly more than the quantity imported by the applicant, he began with a starting point of nine years. In doing so, his Honour appears to have repeated his adjustment of the Wong and Leung sentences by reason of the repeal of s16G. However, he then determined that each of the co-offenders' sentences would be reduced by 20% in recognition of the utilitarian value of the pleas of guilty. This would produce a head sentence of seven years and two months, which his Honour then determined further to reduce to seven years. None of these offenders was entitled to any discount attributable to assistance. The sentences ultimately imposed, in the cases of King, Jules and Jacob were uniformly of seven years with non-parole periods of four years and four months. Keran was sentenced to imprisonment for seven years with a non-parole period of four years. The reason for the discrepancy between the co-offenders lay in a medical condition from which he suffered. The result was that, while each co-offender was sentenced to a total term that was one year longer than that to which the applicant was sentenced, one co-offender received an equal non-parole period, and the others were sentenced to non-parole periods only four months longer than the applicant. the application for leave to appeal 29 As I have indicated above, the grounds of appeal concern a discernible disparity of treatment of the applicant when compared with the co-offenders, and the manner in which his Honour gave effect to the repeal of s16G. disparity 30 In sentencing the co-offenders, his Honour specifically referred to questions of parity arising from the sentence already imposed upon the applicant. He noted the significantly lower quantity of the drug imported by the applicant. He observed that the reason for this was the applicant's inability to consume or insert any more of the drug and appears to have regarded this as not indicating a lower level of moral culpability in the applicant. In this view there is some merit, but, nevertheless, the quantity of the drug is one relevant consideration. 31 What his Honour went on to say was this: "In a number of ways, then, it seems to me that there is a significant argument for parity in this case. The Crown points out that there is a lack of equivalence in the cooperation extended by these offenders, or any of them, and that extended by [PP]. This is a fact to which the Crown submits, and I consider correctly, must be recognised." 32 In other words, his Honour accepted that, in the assessment of their criminality, and their subjective circumstances, all the offenders ought to be treated equally, but that, while the applicant was entitled to a discount on his sentence for assistance to the authorities, the co-offenders were not entitled to that further discount. His Honour went on to say: "The Crown submits that [this] is not to be done simply by factoring back into the equation the 20% discount for assistance given to the offender [PP], but must be acknowledged in the sentences passed on the other offenders, in some way, which will mean that there is a difference in the sentences of those offenders compared with the offender [PP]. ... It seems to me, in broad terms, there is a real risk of a justifiable sense of grievance should the court approach the sentencing of these offenders, or any of them, in a manner that is significantly different to the manner in which the sentencing of the offender [PP] was approached. Whilst there are a number of differences in objective and subjective circumstances between the various co-accused, they are, in most respects, differences which tend to balance themselves out." 33 His Honour gave no explanation for allowing to the co-offenders a greater discount for their pleas of guilty than he allowed for the applicant. I can identify no basis on which it could be said that the applicant's plea of guilty was of lesser utilitarian value than the guilty pleas of any of the co-offenders. This, alone, in my opinion, gives rise to a sense of grievance in the applicant, and a sense of grievance which, in my opinion, cannot be said to be other than justifiable. 34 Secondly, the co-offenders received the benefit of what was, in effect, a rounding down of the sentence of seven years and two months which would have resulted after the discount of 20%. This gave the co-offenders the benefit of an additional two months' reduction. From a starting point of nine years, application of a 15% discount in respect of the applicant's sentence resulted in a sentence of 91.8 months, which is almost two months more than eight and a half years. However, no rounding down was effected in the applicant's case. 35 Finally, having fixed the applicant's non-parole period at 66% of the total sentence, his Honour divided the sentences of three of the co-offenders into 60% for the non-parole period and 40% for the parole period. 36 It seems to me that the applicant has been unfairly treated in comparison with the co-offenders in each of these ways. It is particularly glaring in the face of his Honour's stated view that there was a "significant argument for parity". The "significant argument for parity" could not, in the application of proper sentencing principle, have denied the applicant the benefit of the 20% he was allowed for his assistance. 37 I am satisfied that the applicant has made good this ground of appeal. Its effect can be seen, perhaps, most clearly by examination of the non-parole periods. The applicant's non-parole period was only four months less than those of three of the co-offenders, and equal to that of the fourth. And yet he had purportedly been given a benefit of a 20% discount for assistance. There is, in my opinion, a real public interest, in addition to the interests of the applicant, in correcting this error. It is in the community's interests that offenders such as the applicant give assistance to the authorities, and that is the very purpose for which the tradition has evolved of allowing discounts which are, sometimes, quite significant. Treating the applicant as he has been treated affords no incentive to any offender to provide assistance to the authorities. I recognise that it might be said that the applicant's assistance is not at the upper end of the scale; but that argument is of little weight in the light of the stated intention to assess it as worth 20%. section 16G 38 This Court has not always spoken with one voice on the effect of the repeal of s16G. At one end of the scale is the decision in R v Kevenaar [2004] NSWCCA 210, a decision to which I was a party. There Hulme J (with whom I concurred) said: "48 Would-be offenders and sentencing judges should be under no misapprehension. The effect of the repeal of the section is that the length of sentences of imprisonment (and non-parole periods) for those offences to which s16G previously applied should, as a necessary and logical consequence of the way the courts implemented s16G, increase by approximately 50%." 39 However, the Court otherwise constituted has cautioned against too mathematical an approach. In R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1 Howie J wrote: "50 I have no difficulty in accepting an argument that the repeal of s16G should not result in a mathematical formula being applied to the existing range of sentences in order to derive a particular sentence or range of sentences that are appropriate to be imposed after appeal. ... But if a sentencing court is minded to look at the range of sentences that were imposed when s16G applied, then it has to bear in mind that that range of sentences referred to in decided cases and in the available statistical information, had factored into it a discount that is no longer applicable." 40 In R v Dujeu [2004] NSWCCA 237 Smart AJ, with whom Hislop J agreed, agreed that the mathematical formula approach was undesirable. In R v Mas Rivadivia [2004] NSWCCA 284 Wood CJ at CL favoured the approach taken in the last two mentioned cases, to the extent that they differed from Kevenaar. 41 In R v Bezan [2004] NSWCCA 342 Wood CJ at CL accepted, as it had been accepted in the cases previously mentioned, that, even excluding a mathematical approach, the effect of the repeal was likely to result in an increase in sentences. 42 How did Graham DCJ treat this question? In sentencing the applicant, and having referred to the guideline judgment in Wong and Leung, his Honour said: "In any event, without s16G, the guideline would, mathematically speaking, now be something in the order of seven and a half years to ten and a half years ... It seems to me, however, that, taking into account all of the factors here, a commencement point would be a sentence, based on the old five to seven year guideline, of nine years. That takes into account the absence of any section 16G considerations. Thus, the sentence here would be fixed at a starting point of nine years, on the assumption of a plea of guilty, but not on an earliest plea of guilty." 43 There is cause, in that passage, to conclude that his Honour did apply something of a mathematical formula. However, I am not able to see that that approach resulted in any miscarriage of justice. Even while cautioning against the application of mathematical formulae, this Court has, in the decisions referred to, accepted that the practical effect of the repeal will be something of an increase in sentences. I am unable to see that a starting point of nine years for the applicant's offence was in any way erroneous. I would reject this ground of appeal. 44 Nevertheless, for the reasons I have given in relation to the first ground, I am of the view that the applicant has made good his application and is entitled to have the sentence set aside and to be re-sentenced. 45 Against the possibility of re-sentencing, the Court received affidavit evidence from the applicant. He deposed to his good behaviour whilst in custody. He has become a fulltime student and has studied various computing courses and literacy. He is writing his autobiography which he hopes to have published. He has found imprisonment to be very lonely and this is hardly surprising given that his family live overseas, his wife and children in Thailand, his mother in Austria. The affidavit does little more than confirm the material that was before the sentencing judge. 46 In my opinion, the correct approach to resolving this sentencing question is to bring the applicant's sentence into line with the sentences imposed upon the co-offenders, and to allow the further discount of 20% for assistance. The applicant is entitled to a discount for his plea of guilty of 20% and this would, as in the case of the co-offenders, after an equivalent rounding down, give a starting point of seven years. From that he is entitled to a further discount of 20%, giving a head sentence of five years and seven months. The non-parole period would be 60% of that term, that is, three years and four months. 47 The orders I propose are: (i) application for leave to appeal granted; (ii) appeal allowed, sentence quashed; (iii) in lieu thereof the applicant be sentenced to imprisonment for five years and seven months commencing 14 November 2003, with a non-parole period of three years and four months expiring on 13 March 2007. 48 ROTHMAN J: I agree with Simpson J. ********** 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.