New South Wales Court of Criminal Appeal CITATION: De Campos v Regina [2006] NSWCCA 51 HEARING DATE(S): 28/02/2006 JUDGMENT DATE: 28 February 2006 JUDGMENT OF: Beazley JA at 29, 31; Adams J at 30; Howie J at 1 EX TEMPORE JUDGMENT DATE: 02/28/2006 DECISION: Extension of time and leave to appeal granted. The appeal is allowed and the sentence imposed is quashed. In lieu the applicant is sentenced to imprisonment for seven and a half years to date from 10 August 2004 and a non-parole period of four and a half years should be imposed which is to expire on 9 February 2009, the date upon which the applicant will be eligible to be released to parole. CATCHWORDS: Criminal Law - Sentence - Importation - offer of assistance refused by police - offer not recorded by police in statement - not known by prosecutor at sentencing hearing - whether there should be a discount for assistance. LEGISLATION CITED: Customs Act (Cth) 1901- s 233B(1)(b) R v Dang [2004] NSWCCA 269 CASES CITED: R v Besan (2004) 147 A Crim R 430 R v Tanudjaja [2000] NSWCCA 467 PARTIES: Lucille Margaret De Campos v Regina FILE NUMBER(S): CCA 2005/1516 W. Abraham - Crown COUNSEL: In Person - Applicant SOLICITORS: Commonwealth Director of Public Prosecutions - Crown In Person - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1257 LOWER COURT JUDICIAL OFFICER: Williams DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1516 BEAZLEY JA ADAMS J HOWIE J TUESDAY 28 FEBRUARY 2006 Lucille Margaret DE CAMPOS v REGINA Judgment 1 HOWIE J: On 10 August 2004 the applicant, a citizen of South Africa, arrived at Sydney airport from Johannesburg. On her incoming passenger card she answered "no" to a question asking whether she had any prohibited items in her possession. She repeatedly denied having any prohibited imports when questioned by Customs officers. However the officers were suspicious that she was carrying narcotic drugs and obtained her permission to conduct an "internal search". For this purposes she was taken to St George Hospital where a scan revealed a number of foreign objects concealed within her body. While at the hospital during a period of about 17 hours the applicant passed a total of 66 small cylindrical objects that were found to contain heroin with a gross weight of 452 grammes and a purity of 62 per cent, resulting in a pure weight of 280.2 grammes. 2 The applicant was charged with importing not less than the trafficable quantity of heroin, an offence against s 233B(1)(b) of the Customs Act (Cth). The maximum penalty for that offence is imprisonment for 25 years. The applicant pleaded guilty before a magistrate and was committed for sentence to the District Court. She adhered to her plea in that court and was ultimately sentenced on 2 December 2004 by Judge Williams (the Judge) to imprisonment for eight years with a non-parole period of five years. The sentence commenced on 10 August 2004 making the applicant eligible for release to parole on 9 August 2009. The applicant seeks an extension of time in which to seek leave to appeal against that sentence. 3 The applicant was unrepresented in this Court but indicated in writing the grounds of appeal relied upon and the submissions she wished to make in support of them. In effect the applicant complains, firstly, that the sentence was manifestly excessive, secondly, that cases referred to by the prosecutor in the court below were not a proper comparison to the facts and circumstances of her case, thirdly, that the circumstances surrounding the importation were not sufficiently taken into account by the sentencing judge, and fourthly, that she made an offer of assistance to the authorities for which she was not given any due consideration. 4 The applicant gave evidence before the Judge on the sentencing hearing. She was at that stage represented. The effect of the applicant's evidence was as follows. Prior to coming to Australia she lived with her mother who is aged 72 and confined to a wheelchair. Approximately two years earlier she lost her only son in a motor accident. She said that before coming to Australia she knew nothing about drugs, although she had experimented with cannabis. 5 On an occasion when she was sitting in a pub she was approached by a person with whom she started a conversation. She mentioned that she loved travelling and had travelled quite a bit. However she was low on funds and looking for better employment. The person to whom she was speaking said to her, "Have you ever been to Australia?" She said, "No". He said, "Well maybe you can go over there". He didn't say for what purpose. She agreed and gave him her phone number. Later he contacted her and said he wanted her to take something to Australia although he didn't tell her what it was. She went along with his plans because she thought that it was a quick way to get money that she needed to get a bigger place for her mother and herself and to buy a new wheelchair for her mother. 6 When it came time for her to leave South Africa, she didn't want to go on with it, but he said to her, "You have no choice there, the air ticket has already been bought and you know you're going to do it". So she went through with the importation. She said that it was only since arriving in Australia that she actually saw what heroin could do to people. Although she didn't know what the substance was that she had to swallow, she knew that it was a prohibited substance and she thought it was perhaps cocaine. She was to be paid 20,000 rand, about $A4000 for the importation. 7 There was a presentence report in evidence. However, the applicant had declined to allow the Probation Service to contact her mother as she thought that it might have had a detrimental effect on her mother's health and as a result the information contained in the report could not be verified. The applicant is a 44 year-old single woman. Her son, who was aged 26 at the time, was killed in a motorbike accident about two years before she came to Australia. The applicant had experienced three failed marriages. She described her life in South Africa as being characterised by hardship and poverty. She had been responsible for caring for her mother from an early age. The officer preparing the report indicated that her mother is a source of constant concern for the applicant. 8 The applicant told the officer that she had been drinking alcohol for the past 20 years and, although recognising that she drinks more than she should, she did not believe it was problematic. She described herself as a "loner". The applicant said that the motivation behind the offence was for financial gain and she saw it as an easy way of obtaining money in order to improve the standard of living for both her mother and herself. The officer preparing the report thought that the applicant impressed as a person who had little understanding of the drug culture prior to her involvement in the offence. However, since being in custody she has been exposed to women experiencing drug addictions and consequently understood the larger impact of drug usage on the community. 9 The Judge in his sentencing remarks referred to the material contained in the presentence report and the evidence given by the applicant. He said, The Crown has provided me with written submissions in respect of the matter, and I have paid careful attention to those. Regrettably I am all too familiar with them. I say regrettably because it seems to be an increasing trend on the part of persons involved in the drug smuggling business to utilise people like [the applicant] to carry out their activities, and one cannot help thinking that the reason that that is done is firstly the person does not create as much suspicion as a younger person might and secondly, if they do get caught, the prospects may be that they will get a lesser penalty than a younger person might. 10 The Judge indicated that in particular he had referred to two recent decisions of this Court, being R v Dang [2004] NSWCCA 269 and R v Besan (2004) 147 A Crim R 430. He noted, however, that in Dang the applicant received a 50 per cent discount on account of assistance he had given and that Besan was a successful Crown appeal and, therefore, this Court was constrained in the sentence it could impose. The Judge noted that the applicant had pleaded guilty at the first reasonable opportunity and during her evidence had apologised to the court and the Australian people. He referred at length to the submissions that were made on the applicant's behalf by her legal representative and indicated that he was taking them into account "to a greater or lesser degree". He stated, ……….. Obviously people who for whatever reason choose to smuggle drugs into this country, and who do not live here, must realise that they face the prospect, if caught, of a prison sentence that will mean that they will be deprived of their association with other persons, friends, or family. I take into account, and I am prepared to accept that [the applicant] is the significant carer for her mother, who is an invalid, or a semi-invalid condition and is quite old. That is a situation that existed prior to her committing this offence, and which has continued during the course, and will continue during the course, of her imprisonment in this country. 11 The Judge imposed a non-parole period that is 62.5 per cent of the head sentence. In Federal matters it is normal to impose a non-parole period of somewhere between 60 and 66 per cent, so that the applicant's non-parole period is toward the lower end of the available range. 12 The applicant complains that the sentence was too severe as in other cases the non-parole period has been between three and four years, depending on mitigating factors. The applicant has referred to a particular case of a woman who was sentenced in the District Court in relation to the importation of one and a half kilograms of cocaine brought in from South Africa. Judge Geraghty sentenced her to imprisonment for four and half years with a non-parole period of three years three months. On the face of it that it is a surprisingly lenient sentence for such a substantial importation. However, the judge gave the offender a discount of 50 per cent by reason of her plea of guilty and assistance, both past and future. This is not, therefore, a case that provides much guidance as to the appropriateness of the sentence imposed on the applicant. 13 The applicant submitted that the cases provided to the Judge by the prosecutor, as indicative of the type of sentence that should be imposed, related to men and not women. Generally speaking there is no different sentence to be imposed depending upon the gender of the offender. One of the decisions, however, did refer to a female offender. A sentence of six years with a non-parole period of three years was imposed for an importation of about the size of that in which the applicant was engaged. However, that was a sentence imposed before s 16G was repealed and was a sentence which was described by this Court as "a judgment of a remarkable leniency": see R v Tanudjaja [2000] NSWCCA 467. In my opinion the two cases to which the sentencing Judge referred during his sentencing remarks were relevant and indicate that the sentence imposed on the applicant was within the discretionary range open to him. 14 The applicant submitted that the Judge failed to take into account her personal circumstances including the difficulties of living in South Africa, in the absence of any social security system or public housing, and the impact of the death of her son. These were matters raised before the Judge during the applicant's evidence and referred to in his remarks on sentence. So far as the death of the applicant's son is concerned, the Judge did note an apparent inconsistency between the applicant's evidence before him and a statement made by the applicant to a Customs officer that seemed to suggest that her son was still alive. 15 In her written submissions the applicant refers to the circumstances leading up to the offence as follows: In 2002 my only son died in a motor car accident, I have never gotten over this and my life has been in a downward spiral since then, I had been on tranquillisers and was drinking quite heavily when I was approached to come to Australia by these Nigerians. These Nigerian people who are the principals in the crime, rarely if ever get caught, they are very good at sweet talking and then threatening people who do not comply with their wishes. They also have people who work in the police force and the airports. I had tried to get out of doing this crime I even missed the plane on the eighth of August 2004, but they made me get on the next flight the following day. These are very heartless people. 16 This may or may not be consistent with the account given by the applicant during the course of evidence, but in any event that explanation for her offending was before the sentencing judge and it was for him to evaluate the degree to which it might have mitigated her criminal culpability for importing drugs into Australia. 17 The applicant raised a complaint about the effect on her imprisonment of the fact that when her bridging visa ceases to have effect she will become an unlawful non-citizen and subject to immigration detention before deportation. As a result of her status, the applicant is unable to progress through the system of classification as would normally be the case. In particular she will be ineligible for work or activities outside the gaol. This is an administrative issue within the Corrective Services and is not a matter that this Court could take into account. A sentencer cannot tailor sentences by having regard to administrative policies that may or may not be in force at any particular point in time. 18 The applicant complained that she sought to give assistance to the Federal Police shortly after her arrest by offering to participate in a controlled delivery of the drugs that she had imported. She states, however, that the police officer indicated that he was not interested in carrying out an operation in light of the amount of drug involved. This was not a matter raised by the applicant in her evidence before the sentencing judge, although she told this Court today that she was advised not to do so by the solicitor then appearing for her. The applicant raised this matter in submissions to this Court and indicated that the Federal officer involved was named De Haas. 19 The Crown initially placed before this Court a statement from another Federal police officer that indicated that no such conversation had occurred. The Crown took the stance in its original submissions that the Court should not accept this offer of assistance was made. However, the applicant persisted in her account of this event and, as I understand the situation, eventually made contact with the Crown and brought home to them what should have been apparent from the submissions that the person whom the applicant had been talking to and offering this assistance was the officer she named. 20 This morning the Crown has placed affidavits before this Court, the effect of which is to accept that there was a conversation between the applicant and a Federal police officer at St George Hospital in which the applicant offered to take part in a controlled delivery. However, the police officer declined on the basis that it was in effect not worth the effort in light of the likely outcome of such an operation. 21 There is no suggestion that the police officer was not acting reasonably or responsibly in determining not to take up the offer. What is of concern, however, is that this material did not become disclosed either to the District Court through the person representing the Commonwealth or in answer to the submissions raised by the applicant in her appeal to this Court. 22 It should be made perfectly clear to officers of the Federal Police that any suggestion that a person is willing to co-operate by way of a controlled delivery or otherwise should be contained in a statement and served upon the applicant and the Crown. It is inappropriate in my view that such an offer, which may or may not be of importance in sentencing proceedings, has to be determined, as this one was, by an appeal to this Court and submissions made by the applicant revealing that situation. 23 The Crown has an obligation where a person, who has been charged or is about to be charged with a criminal offence, has proffered assistance to the authorities to bring that matter to the notice of the defence and, if necessary, to raise the matter before the sentencing judge. There is a clear duty of the Crown to assist the Court in relation to matters of such importance, or what might be of such importance in the sentencing proceedings. However that may be, the situation has now been rectified and this Court has been informed by the Crown of the offer of assistance made by the applicant. 24 The Crown submits that notwithstanding this offer it should not be reflected in any reduction of the sentence because it was of no utility in light of the fact that the police reasonably chose not to take up the offer. Further, the Crown says, having regard to all the circumstances of the offence including the nature of the importation, the amount imported, and the circumstances surrounding the importation, that no lesser sentence should be imposed upon the applicant than that which was imposed by the sentencing judge. 25 In my view the applicant should be re-sentenced to take into account this offer of assistance although it will not always be the case that an offer that was not taken up by the police should be rewarded. It is well-known and has been well stated in numerous decisions of this Court that there is a significant public policy in encouraging people to co-operate with the police in order to expose other persons who are in the hierarchy of importing drugs into the country, particularly where those persons reside in this country. 26 The offer should have resulted in a further discount to the applicant of 5 per cent, assuming that the judge gave the applicant a discount for the plea of guilty of 20 per cent. That would equal a combined discount for the plea and assistance of 25 per cent. It seems to me to be a fair result to the applicant in the circumstances of this particular matter. 27 In my opinion, therefore, the applicant should be granted an extension of time necessary, she should be granted leave to appeal to this Court, the appeal should be allowed and the sentence imposed in the District Court should be quashed. In lieu the applicant should be sentenced to imprisonment for seven and a half years to date from 10 August 2004 and a non-parole period of four and a half years should be imposed which is to expire on 9 February 2009, the date upon which the applicant will be eligible to be released to parole. 28 The figures have been rounded down in order to achieve an approximate result of the extra discount granted to the applicant. 29 BEAZLEY JA: I agree. 30 ADAMS J: I also agree 31 BEAZLEY JA: The orders of the Court will be as proposed by Howie 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.