Regina (Commonwealth) v Chantel Bartlett [2005] NSWCCA 103

New South Wales Court of Criminal Appeal

CITATION: Regina (Commonwealth) v Chantel Bartlett [2005] NSWCCA 103

HEARING DATE(S): 23 March 2005

JUDGMENT DATE: 23 March 2005

JUDGMENT OF: McColl JA at 18; Barr J at 1; Johnson J at 19

DECISION: Leave to appeal granted. Appeal dismissed.

PARTIES: Regina, Chantel Bartlett

FILE NUMBER(S): CCA 2004/3226

Not applicable COUNSEL: L Crowley

Not applicable SOLICITORS: Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1122

LOWER COURT JUDICIAL OFFICER: Keleman SC DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/3226

MC COLL JA BARR J JOHNSON J

23 MARCH 2005 REGINA v CHANTEL BARTLETT Judgment 1 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. On 23 January 2004 the applicant, Chantel Bartlett, appeared before Keleman SC DCJ for sentence, having previously pleaded guilty in the Local Court to two offences under s233B(1)(b) Customs Act of importing into Australia not less than the trafficable quantity applicable to cocaine and not less than the trafficable quantity applicable to heroin. On the cocaine importing charge his Honour sentenced the applicant to imprisonment for seven years and imposed a non-parole period of four years and two months. On the heroin charge his Honour sentenced the applicant to imprisonment for five years and ten months. His Honour originally fixed a non-parole period for that offence of three years and six months but, when it was drawn to his attention that he was required to impose a single non-parole period for the two offences, did so. Accordingly the total effective sentence was one of imprisonment for seven years with a non-parole period of four years and two months. 2 A statement of facts was tendered by agreement, from which it appeared that on 15 August 2003 the applicant arrived at Sydney Kingsford Smith Airport, having travelled on a flight from Johannesburg, South Africa. Following a reaction from a drug detector dog the applicant was taken to an interview room, where she told customs officers that she had a substance secreted in her shoes and in a sanitary pad which was on her person. She consented to being searched externally. An ion scan was carried out on her belongings and that provided a positive result for cocaine. Australian federal police were summoned and arrested her. She was taken to a police office at the airport. The shoes and the sanitary napkin were recovered and the applicant voluntarily took part in a recorded interview. In summary, she accepted an offer of the promise of 20,000.00 Rand to bring narcotics to Australia. Her correspondent in Johannesburg provided her with the shoes and sanitary pad. She did not know precisely what narcotics she was carrying. Her intention after her arrival in Sydney was to travel to a certain hotel as directed by her correspondent, where someone would collect the narcotics and give her the money. The shoes contained 476.8 grams of white powder and the napkin 95.9 grams of white powder. Evidence of analysis tendered to the sentencing judge showed that the weight of pure cocaine in the shoes was 306.8 grams and the weight of pure heroin in the pad was 54 grams. 3 The applicant was represented by a solicitor, who put forward on her behalf a respectable subjective case. His Honour found that the applicant was twenty-eight years old and had no prior criminal history. She had been raised by her grandparents from birth until the age of five. Between the ages of six and thirteen years she was living with her mother and stepfather. Her stepfather systematically sexually abused her. She used cannabis frequently from the age of fifteen to the time of her arrest and had used other narcotic drugs from 2000 onwards, particularly heroin. She was using that drug daily from 2000 onwards. She had completed a year of a business and secretarial course. She had worked as a waitress but had been dismissed because of her use of drugs. She was unemployed at the time of these offences. She had been married at twenty-three and had a five year old son. Her former husband had custody of the child. The applicant said that she was sorry for having committed the offences. His Honour accepted that her remorse was genuine. She had been experiencing heightened anxiety and symptoms consistent with a depressive episode. 4 It was part of the applicant's case that she acted under a threat to hurt her family if she did not participate in the importation, but his Honour did not accept that assertion. 5 The applicant has not attended on the hearing of her application and is not represented by counsel or solicitor. She wrote to the Registrar stating that she would not be attending Court and furnished detailed written submissions, with appropriate annexures. She made clear that she was content for the Court to deal with her application on those written submissions. Accordingly I shall give judgment by reference to them. 6 There are four grounds of appeal. The first ground asserts that his Honour erred in not specifying exactly what allowance was made for the applicant's assistance and early pleas of guilty. Dealing with those matters, his Honour said this - The offender is also entitled to receive a discount for assistance to authorities. That assistance was offered immediately upon her arrival and is provided in the record of interview and in an offer she made to assist in relation to a controlled delivery which for operational reasons could not be pursued by the Australian Federal Police. That assistance is also outlined in a letter of assistance that is contained in a sealed envelope. It is apparent from the letter of assistance that although the offer to participate in a controlled delivery was not a viable operational option at the time the intelligence provided by the offender which was verified through various sources has been described as of medium level intelligence value. While in the circumstances it could not be said that the assistance provided by the offender was of a high order it could also not be said that the assistance was of a low order. In this regard it should also be noted that in offering assistance the offender did as much as she could possibly do to assist the authorities. I am satisfied that the assistance provided by the offender was of a moderate order and as a consequence she is entitled to receive for her assistance to authorities a substantial discount on the sentences that would otherwise have been appropriate. The sentences that would otherwise have been appropriate have accordingly been reduced. … The offender's pleas of guilty have been taken into account. They were entered at the first available opportunity at the Local Court. While the case against the offender in respect of the present offences was strong, I am satisfied that the pleas nevertheless indicate a willingness to facilitate the course of justice. I am also satisfied that the pleas of guilty represent both contrition and remorse on the part of the offender. I am also satisfied that her subsequent expressions of remorse and contrition are genuine. The offender is entitled to a substantial discount for her pleas of guilty. 7 The maximum penalty for each of these offences was imprisonment for twenty-five years as well as a substantial fine, and the resulting sentences and non-parole period themselves demonstrate that his Honour did indeed make a substantial allowance for the subjective features of the applicant's case, including the two now pointed to. However, there was no requirement for his Honour to specify any precise amount or proportion by which the sentences were to be reduced on either account. In R v Thomson; R v Houlton (2000) 49 NSW 383 this Court encouraged sentencing judges so to specify discounts allowed in recognition of pleas of guilty. The judgment stopped short of requiring such a specification, however. 8 It has not been made to appear that his Honour erred in failing to specify either relevant allowance. There is no submission that the resulting sentences or non-parole period themselves demonstrate that the allowance was insufficient. The first ground of appeal has not been made good. 9 The second ground of appeal relies on fresh evidence of analysis of the narcotics seized at the airport. Before the sentencing judge there was tendered a certificate of an analyst employed in the Australian Government Analytical Laboratories, Mr Pandich. As appears from an affidavit sworn by Ms Samantha Louise Fradd, a legal officer in the Sydney office of the Commonwealth Director of Public Prosecutions, it came to the notice of the Director after sentence that Mr Pandich had committed a number of offences of larceny as a servant and had ceased to be employed at the Australian Government Analytical Laboratories. The charges brought against Mr Pandich concerned missing or unaccounted for quantities of cocaine and heroin tested in the laboratory in December 2003. Although those events did not cast doubt on the weight of the two bodies of powder seized, it did cast doubt on Mr Pandich's calculation of the pure drug content thereof. When drugs are tested in this way further samples are reserved in case difficulties of analysis arise. Accordingly, the reserved samples of the drug seized from the applicant were tested. The analyst was Ms Emily Jane Paff, a scientist employed in the laboratory. Ms Paff calculated the purity of the drugs contained in her samples and by comparing it with the total weight of the substances seized calculated the pure weight of cocaine at 280.3 grams and of heroin at 45.6 grams. 10 In my opinion the differing proportions of pure drug in Ms Paff's samples were not likely to throw any doubt on Mr Pandich's calculations. The varying proportions of pure drug present in the mixture may be explained merely by unevenness of distribution of the drug and the material with which it was diluted or cut. But even if it were necessary to accept as reliable only the calculations of Ms Paff, the differences in the quantities of pure drug present were not in my opinion sufficient to play any significant part in the sentences imposed by his Honour. There could be no suggestion that the sentences were determined according to such fine criteria as the precise amount of drug present. 11 In my opinion this ground of appeal has not been made good. 12 The third ground of appeal seeks to compare the sentences appealed from with a sentence imposed in the District Court on another drug courier, Ms Tsibia Ntsi. Ms Ntsi imported into Australia 455.9 grams of powder containing 305.9 grams of cocaine and was sentenced to imprisonment for three years and nine months with a non-parole period of two years. 13 The first thing which it is necessary to say is that there was no factual connection between the offences of the applicant and Ms Ntsi. They were not co-offenders in any sense that would entitle the applicant to expect a sentence the same or about the same as that imposed on Ms Ntsi. The second thing that must be observed is that a single other case does not make a tariff. An approach which selects another case and seeks to compare it with the present one and thereby to attempt to demonstrate error is not a principled one. The duty of a sentencing judge is not to approach the matter in any such partial way but to assess the seriousness of the objective criminality of the offender to be sentenced, to assess and apply the subjective features present in the case and to impose a sentence which lies properly within the range of sentencing discretion. That range, prima facie, is determined by reference to the maximum sentence the Parliament prescribes. 14 As appears from the remarks of the judge who sentenced her, Ms Ntsi was found to have been suffering from AIDS. Her sentence took account not only of her medical condition but of the fact that she had rendered substantial assistance to the authorities. Even if the cases were about equal, those factors might by themselves explain the difference between the head sentences and the non-parole periods. In my opinion this ground of appeal has not been made good. 15 The final ground of appeal draws attention to the subjective features of the applicant's case, dealing with her difficult childhood, her sexual molestation, her turning to drugs and becoming addicted to their use, the illness of her mother and her difficulties with her husband and son. She refers at great length to personal difficulties within her family. Those matters may be accepted at face value, but they were all drawn to the attention, or could have been drawn to the attention, of the sentencing judge. I have already summarised the subjective findings of fact that his Honour made favourable to the applicant. In my opinion his Honour carefully considered all such matters and gave them appropriate weight. 16 I do not think that this ground of appeal has been made good. 17 The applicant does not otherwise assert that his Honour fell into error. In my opinion the lengths of the sentences and of the non-parole period do not of themselves disclose error. I would grant leave to appeal but would dismiss the appeal. 18 MC COLL JA: I agree with Barr J. 19 JOHNSON J: I agree with Barr J.