Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Webber v R [2014] NSWCCA 111 Hearing dates: 26/03/2014 Decision date: 24 June 2014 Before: Hoeben CJ at CL at [1] Fullerton J at [2] Adamson J at [50] Decision: 1. Leave to appeal is granted. 2. The appeal is dismissed. Catchwords: CRIMINAL LAW - sentence appeal - importing a commercial quantity of cocaine - s 166 certificate offences - guilty plea -whether sentencing judge failed to give appropriate weight to applicant's subjective case - whether sentence manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Barbaro v R [2014] HCA 2 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Dyer v R [2011] NSWCCA 185 Edwards v R [2009] NSWCCA 199 Elturk v R [2014] NSWCCA 61 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 Ng v R (Cth) [2010] NSWCCA 232 R v Todoroski (District Court (NSW), Sorby DCJ, 14 August 2009, unrep) R v Tran; R v Tran and R v Nguyen [2013] NSWCCA 136 Radi v R [2013] NSWCCA 278 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Damien John Webber (Applicant) The Crown (Respondent) Representation: Counsel: D O'Neil (Applicant) P Neil SC (Crown) Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2010/157614; 2010/260896 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-04-13 00:00:00 Before: Black DCJ File Number(s): 2010/157614; 2010/260896 Judgment 1HOEBEN CJ at CL: I agree with Fullerton J. 2FULLERTON J: The applicant seeks leave to appeal against a sentence imposed by Black DCJ on 13 April 2012 after adhering to a plea of guilty entered in the Local Court on 5 July 2011 to importing a commercial quantity of cocaine, contrary to s 307.1 of the Criminal Code Act 1995 (Cth). That offence attracts a maximum penalty of life imprisonment. 3The gross weight of the cocaine was 3280.7 grams with a calculated pure weight of 2219.3 grams. Schedule 4 of the Criminal Code Regulations 2002 (Cth) defines a commercial quantity of cocaine as 2 kilograms. 4On the same date the applicant adhered to pleas of guilty to supplying one gram of cannabis contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW) and possessing 73.3 grams of cannabis and 1.6 grams of cocaine contrary to s 10 of that Act. These offences were the subject of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). The sentences imposed for those offences are not the subject of this application. 5On 3 January 2010 federal agencies intercepted a consignment from Costa Rica declared as "New Engine 2009 Golf buggy 125cc" which, upon deconstruction, contained a motorcycle engine in which the cocaine was secreted. An inert substance was substituted for the cocaine and the parcel reconstituted to resemble its original condition. The applicant was the nominated consignee with his mobile telephone number noted as the means of contacting him. A golf course in Mullumbimby, New South Wales was the nominated address for the consignment. The applicant worked at the golf course as a golf instructor. 6A controlled delivery of the package was organised through Australia Post. On 11 January 2010 an Australian Federal Police (AFP) officer acting as a postal employee telephoned the applicant to advise him that the consignment had arrived. Between 12 and 14 January 2010 arrangements were made with the applicant for the parcel to be collected from Sydney. The applicant's conversations with police were lawfully intercepted. This material, summarised in the agreed statement of facts, was the primary material upon which the sentencing judge relied in assessing the applicant's role in the importation. 7The offences of supply and possession of cannabis and cocaine, the subject of the s 166 certificate, were charged consequent upon police executing a search warrant at the applicant's home on 15 January 2010 at the culmination of the controlled operation into the importation of the cocaine. In addition to the cannabis and the small quantity of cocaine located at that time, the following items were seized: * $93,400 in $50 and $100 notes; * electronic scales; and * a 2010 diary containing notes of the telephone calls between the applicant and the AFP officer purporting to be an Australia Post employee regarding the collection of the consignment. 8Black DCJ sentenced the applicant as follows: For the offence of importing a commercial quantity of cocaine contrary to s 307.1 of the Criminal Code Act 1995, a term of imprisonment of 11 years to commence from 13 April 2012 with a non-parole period of 7 years. For the offence of supplying cannabis contrary to s 23(1)(b) of the Drugs Misuse and Trafficking Act 1985, a fixed term of 15 months imprisonment. For the offence of possessing cannabis contrary to s 10 of the Drugs Misuse and Trafficking Act 1985, a fixed term of 15 months imprisonment. For the offence of possessing cocaine contrary to s 10 of the Drugs Misuse and Trafficking Act 1985, a fixed term of 12 months imprisonment. The sentences were ordered to be served concurrently. The grounds of appeal 9The applicant seeks leave to appeal against the sentence imposed on the importation count on two grounds: Ground 1: His Honour failed to give appropriate weight to the applicant's subjective case. Ground 2: The sentence imposed was manifestly excessive. Proceedings and remarks on sentence 10No witnesses were called on sentence. A statement of facts was tendered by consent. A pre-sentence report from the Probation and Parole Service dated 29 August 2011 was also tendered. The applicant did not give evidence. He relied upon a number of testimonials. 11The prosecution also tendered a statement from the Australian Federal Police assessing the assistance the applicant claimed to have provided in the course of successive interviews on 15 January 2010 and 1 June 2011, and in a statement prepared by his lawyers prior to entering pleas of guilty in the Local Court on 5 July 2011. The assistance was rated by police as "low", in part as a consequence of the applicant's differing and contradictory versions of the events surrounding the importation. This was consistent with what police regarded as the applicant's attempt to minimise his involvement. In the circumstances his Honour afforded the offer of assistance no weight. That finding is not challenged. 12The applicant relied upon a number of testimonials to ground the submission, inter alia, that he was a person of good character and that his offending was for that reason out of character. Summary of facts 13The facts upon which his Honour relied for the purposes of sentence can be stated succinctly. 14After the interception of the package containing the cocaine on 3 January 2010, and the initiation of the controlled delivery thereafter, the applicant was contacted by telephone on 7 January by Peter Jones. Jones said that he "needed a few tips on his putting" to which the applicant responded that he was "waiting on a few deliveries for the pro shop". It was conceded on sentence that the reference to golf and golfing vernacular in this conversation and in later conversations with Jones was a code utilised by them to disguise the fact that their telephone contact concerned the consignment of the cocaine. In that call the applicant supplied Jones with his home address and home phone number. They arranged to meet the following day. Their meeting was the subject of police surveillance but what was discussed was not. This is of some significance to one of the submissions advanced by the applicant in support of the second ground of appeal to the effect that the applicant was subordinate to Jones and answerable to his directions and the sentence failed to reflect that fact. 15On 11 January 2010 an AFP officer purporting to be an Australia Post employee contacted the applicant and informed him that he was nominated as the consignee of a consignment from Costa Rica which was declared as containing a golf buggy but because it was leaking oil it could not be delivered. The applicant was asked to arrange for the package to be collected from an Australia Post office in Sydney. He stated that: * He had three buggies that someone was currently fixing up; * He had to pay for the engine and the person who was fixing the buggies would put it together; * He had a previous engine that was leaking oil and that was why he had to get another one; * He would ring this person who would know more about how it could be couriered; and * He would call back later that day or the following day. 16In the course of a phone call the following day the applicant asked for the package to be stored until he could arrange for it to be collected. 17Twenty minutes later the applicant called his de facto partner and reported the following: * He had sorted out that "thing with the oil and motor", the person was going to put it in long term storage for him; * There was no way he was going to send it back to the original sender so he would need to get it in storage and then go down to Sydney and pick it up; * He would not go down to Sydney himself but pay for someone to drive it up; * When his partner suggested "Woodsy", he said that was a good idea; and * His partner should "stay cool" and relaxed and he would "go hard" and "sweat" for both of them. 18Between 11 and 14 January 2010 the applicant had numerous conversations with the AFP officer and Jones in which he coordinated arrangements for Jones to travel to Sydney to collect the package from the Silverwater Post Office. 19On 15 January 2010, after the execution of the search warrant at the applicant's premises, the applicant participated in an electronically recorded interview in which he denied knowledge of the contents of the package that had to be collected from Sydney and the cocaine found at his property. He said the cannabis was given to him by someone in discharge of a debt. 20On Monday 18 January 2010 Jones attended Silverwater Post Office and asked to pick up a package addressed to the applicant. AFP officers attended and spoke with Jones who asserted that he had been asked by the applicant to collect the package and that he did not know what was in it. There was no further information in the statement of facts or otherwise tendered on sentence by either the Crown or the applicant as to whether Jones was charged with any offence arising out of his involvement with the importation. 21The applicant participated in a second record of interview with police on 1 June 2011 after he was served with Court Attendance Notices in August 2010 in respect of all charges to which he ultimately entered pleas of guilty. In that interview he made various admissions concerning his knowledge of the package but continued to assert that Jones organised the importation using his (the applicant's) name and other personal details as the consignee, and that his only involvement was to accept delivery as a favour to Jones. In the pre-sentence report dated 1 August 2011 and tendered on sentence the applicant claimed that he was "set up" by a long term associate and had become "unwittingly involved" in the offence. 22The assertion that he was set up by Jones was abandoned, at least implicitly, by the plea of guilty to the importation charge. In his sentencing reasons his Honour found that there was no evidence to suggest any motive for the applicant's involvement other than a financial motive, although the extent to which he stood to gain could not be quantified. Although he was satisfied that there was no evidence that the applicant was "unwittingly involved" in the importation, his Honour was not satisfied that the applicant was the only person who stood to gain from the importation of the cocaine and there was no evidence upon which he could determine the extent of Jones' criminal involvement, if any. 23With regards to the objective seriousness of the offence, his Honour accepted the Crown's submission that the offender performed a significant and essential role in the importation, quoting the following passage of the Crown's submissions as a measured and accurate summary of the applicant's role: "...the offender engaged in the following conduct: he allowed his name, his contact details and his reputation as a professional golfer to be used in accepting delivery on the consignment concealing cocaine. He was the point of contact for Australia Post. He requested Australia Post that the consignment be kept in long term storage until he could arrange collection. He discussed with his de facto partner, who is then named, the possibility of paying somebody to drive down to Sydney to collect the package and drive it up to Ballina. He communicated with Australia Post on a number of occasions in order to arrange a day and time for collection of the consignment and he communicated in code and met with a named person to arrange for that person to collect the consignment from Silverwater Post Office." 24A 25 per cent discount was allowed for the applicant's plea of guilty. His Honour found that the applicant was entitled to a further (unquantified) discount on account of the considerable delay. It was not submitted that the sentence was excessive because of any failure to allow for delay in the ultimate disposition of the matter. The applicant's subjective circumstances 25The applicant was 37 years old at the time of the offence. His Honour was satisfied that he had no significant criminal record. He also accepted that prior to his offending the applicant was an admired and respected professional golfer. 26His Honour accepted that the applicant had expressed remorse (although, for my part, I cannot find where in the materials tendered on sentence remorse was expressed). His Honour went on to observe, somewhat curiously, that there was an absence of any specific material, aside from his plea, in support of that assertion and since the applicant had not given sworn evidence, his Honour was wary of affording remorse any weight for sentencing purposes. Ground One: His Honour failed to give appropriate weight to the applicant's subjective case 27Counsel for the applicant submitted that the sentencing judge did not give sufficient weight to the applicant's subjective circumstances in mitigation of sentence in two respects: firstly, by understating the impact of his offending on his personal and professional life and its impact on his mental health; and, secondly, by failing to give sufficient weight to his prospects of rehabilitation. 28His Honour made express reference to the extra-curial impact of the applicant's offending in his sentencing remarks as follows: "... it is not surprising to see reference in the pre-sentence report that many people have chosen to isolate the offender as a result of his conduct and that is the sort of result that one can expect from being involved in offences of this kind." 29The applicant complains that by failing to refer expressly to the following passages of the pre-sentence report, the extent of the extra-curial impact of the applicant's offending conduct was not afforded the weight that it deserved: "Health/Mental Health Issues Due to the nature of the offence and how it has been perceived in his local community Mr Webber is suffering from situational depression and is currently medicated. Mr Webber reports that prior to the offence there were no mental health issues. ... Summary And Community Based Sentencing Options ... The impact [of] Mr Webber's arrest resulting in local media reports has taken a significant toll on him emotionally and professionally. He has now been reduced to working casually, has been outcast from the local golfing fraternity and is currently taking medication to treat depression." 30As his Honour observed, it was hardly surprising that consequent upon the applicant's arrest and charge for serious drug offending, he would be likely (as a professional sportsman) to experience isolation from former sporting colleagues and his associated social and professional milieu. In any event, as the testimonials relied upon by the applicant demonstrate, and as his Honour noted, the applicant enjoys continuing support from friends and family. 31It was not submitted that the applicant's loss of social and professional standing alone should have justified any amelioration of sentence. What was submitted was that his Honour understated the significance of the evidence because he made no reference to its secondary impact on the applicant's mental health as a person of otherwise good character. 32The applicant would have faced difficulty satisfying me that because his Honour did not refer to the particular passages in the pre-sentence report he should be taken to have ignored them or failed to take them into account. The applicant would also have failed to satisfy me that he was a person of "extremely good character" as asserted in his written submissions, although not pressed on appeal. Further, there was no evidence tendered on sentence to either confirm or elaborate upon what the applicant reported to the Probation and Parole officer as the effects on his mental health consequent upon the exposure of his criminal offending within his local community. In addition, as noted above, the applicant did not give evidence. In these circumstances the applicant's self-report that he was taking antidepressant medication as a result of his arrest and the consequent media attention would properly have attracted little weight for sentencing purposes (see Radi v R [2013] NSWCCA 278 at [25]). The applicant's counsel in the sentencing proceeding did not submit otherwise. In fact, as the Crown emphasised in written submissions, in oral submissions on sentence the applicant's counsel did not refer to the mental health issues reported by the applicant at all, much less seek to persuade his Honour that they should be taken into account in mitigation in accordance with the settled principles most recently restated in Elturk v R [2014] NSWCCA 61. 33In Zreika v R [2012] NSWCCA 44 at [75]-[83], in the context of considering a ground of appeal constituted by the failure of a sentencing judge to mention that the matter could have been dealt with in the Local Court, Johnson J restated the fundamental proposition that this Court is a court of error such that the jurisdiction of the Court under s 6(3) of the Criminal Appeal Act 1912 (NSW) is only invoked where there is an error of principle or some other fact or law. It was in that context that his Honour said at [80] that there is a practical expectation that an offender's legal representative will advance submissions at first instance referable to the particular factors which are relied upon in mitigation: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. 34Although the sentencing judge made no express finding as to the applicant's prospects of rehabilitation, when considering the issue of rehabilitation generally he made the following observations: "As far as rehabilitation is concerned, I note that over many years he says that he has indulged in a small personal way in drugs, so I cannot be sure that that will not happen again, I would like to think that it will not..." 35The applicant's history of drug use was before his Honour by way of the applicant's admission to the author of the pre-sentence report that he had a long history of infrequent social use of cannabis. The applicant's criminal history was also tendered. It included a conviction in 1999 for self-administer/attempt self-administer prohibited drug, and possess prohibited drug, for both of which he received a fine. 36Again, complaint is made that his Honour failed to refer to a passage of the pre-sentence report which addressed the applicant's risk of reoffending in the following terms: "The offender has been assessed as unlikely to require, or benefit from, supervision by this Service for the following reasons: Mr Webber has a limited criminal history, is deemed low risk of further offending and has no significant issues requiring ongoing support..." 37It was submitted that his Honour should also have found that because the applicant's prior offences were relatively minor, the likelihood of his reoffending was low, thereby attracting a positive finding as to his prospects of rehabilitation in mitigation of sentence in contrast to the guarded terms in which his Honour dealt with the issue. 38An assessment of an offender's prospects of rehabilitation is for the sentencing judge. Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly provides that rehabilitation is one of the matters to be taken into account on sentence together with the other statutory objectives in s 3A. While a Probation and Parole officer may offer an opinion on the question of rehabilitation in order to inform the Court of the need, where appropriate, for supervision on parole, a sentencing judge is not bound by any view the officer might express on the prospects of rehabilitation for sentencing purposes. Further, as the Crown submitted, the value of the Probation and Parole officer's assessment of the applicant's risk of reoffending is undermined in this case by the applicant's claim to her that his role in the importation was because he was "set up", an assertion which, as I have already noted, his Honour expressly rejected. 39In the result I am not persuaded that the way in which his Honour addressed the applicant's subjective circumstances admits of error. I would reject the first ground of appeal. Ground Two: The sentence imposed was manifestly excessive 40In written submissions counsel for the applicant contended that his Honour's findings as to the role the applicant performed in the importation (set out at paragraph [23] above) allowed for the related finding (not made by the judge) that the applicant provided his name and contact details to be used as consignee at Jones' request as the person who organised the importation. It was then submitted that because the applicant had agreed to be the nominated consignee it necessarily fell to him to deal with the person he believed to be an Australia Post employee to arrange for the collection of the package. Analysed in this way, counsel submitted that in accepting the Crown's submission that the applicant's role was "significant" and "essential" his Honour inflated what the applicant actually did in facilitating the importation and that a harsher penalty than was justified was imposed as a consequence. In his written submissions counsel described the applicant's role in the importation as minor, and which in oral argument he likened to that of a bare courier, subordinate to others who controlled the importation. 41Counsel then sought to position the applicant within the fourth category of offender indentified by McClellan CJ at CL at [215] in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 where his Honour observed of the various cases to which he made reference that head sentences ranged from 6.25 years to 8 years with non-parole periods between 3 and 4.5 years. 42Counsel acknowledged that in R v Tran; R v Tran and R v Nguyen [2013] NSWCCA 136 I restated the position of this Court in a line of cases after De La Rosa that his Honour's categorisation of offenders at [207]-[224] is of limited application where a ground of either manifest excess or inadequacy of sentence is argued. However, to cite the sentence range in the fourth category of offenders identified by McClellan CJ at CL as suggesting some prime facie guide to an appropriate sentencing range is to effectively ignore that line of authority. 43Although the sentencing judge did not make any reference in his remarks on sentence to comparable cases, the Crown annexed to his written submissions what was described as "a comparative sentencing schedule of four cases", which included Ng v R (Cth) [2010] NSWCCA 232. During the course of the sentence proceedings his Honour observed that the sentence imposed on that offender (and not disturbed on appeal) was "not far off", which I take his Honour to mean was a sentencing outcome difficult to distinguish from the sentence he was minded to impose on the applicant. Ng was sentenced to 11 years and 3 months imprisonment with a non-parole period of 7 years and 3 months for his role in importing a commercial quantity of heroin in the net weight of 2.445kg contrary to s 307.1 of the Criminal Code Act. The applicant's counsel sought to persuade his Honour that the case of R v Todoroski (District Court (NSW), Sorby DCJ, 14 August 2009, unrep) (another case on the Crown's schedule) was a more suitable comparator. In that case the offender was sentenced to 6 years and 6 months imprisonment with a non-parole period of 3 years and 9 months following his plea of guilty to an offence of attempt to possess a marketable quantity of an unlawfully imported border controlled drug (heroin) contrary to ss 11.1(1) and 307.6(1) of the Criminal Code Act. 44On the appeal it was submitted that his Honour's undoubted reliance upon Ng to the exclusion of the other cases was misplaced. Not only were the steps undertaken by Ng said by counsel to be more egregious because of Ng's physical transportation of the drugs into Australia, but his subjective circumstances were far less favourable than the applicant's by reason of his criminal record and his proven connection with a drug milieu in Singapore. It was also submitted that the Crown's commentary in the schedule of cases wrongly attributed to this Court a view that the sentence imposed at first instance on Ng was lenient when that was the express view of RS Hulme J only, McClellan CJ at CL (with whom Davies J agreed) not being of that opinion. 45While that is plainly correct, it does little to advance the applicant's case on this application when the sentencing judge made no reference to the views of RS Hulme J in Ng (or to any of the cases relied upon by the Crown) as somehow justifying the sentence he imposed. There are both similarities and differences between Ng and this case, both involving the importation of a commercial quantity of a border controlled drug. The question is whether, on a fair comparison of the roles that each of the offenders performed in the importation in which they were complicit, the role of this applicant is relevantly different. 46Consistent with the statement of principle in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 recently restated in Barbaro v R [2014] HCA 2, the question for this Court is whether, having regard to who the applicant is and what he has been shown to have done in facilitating the importation of a commercial quantity of cocaine, and after due consideration is given to cases appropriately comparable, it is clear that an excessive sentence has been imposed such as to manifest error in the exercise of the sentencing discretion. As is frequently repeated in this Court, it is not to the point that the sentence under challenge might be described as severe, whether by reference to other cases or sentencing statistics, or whether this Court would have imposed the same or some other sentence. The question is whether the sentence under challenge exceeds the bounds of a proper sentencing discretion. 47In oral submissions counsel accepted that the outcome of the appeal would depend upon whether the Court was persuaded that the applicant's role, referable to the agreed statement of facts, had been wrongly inflated by the sentencing judge. Counsel conceded that if the applicant's role was not at what he described as "the lower end" of criminality for importations of a commercial quantity of border-controlled drug - which I take him to mean a role not dissimilar to that of a courier in the sense that he was subordinate to Jones as the person who organised the importation and the person who stood to profit from it - then, although the sentence was severe, it was nonetheless within range. For my part, to ascribe to the applicant a role at the lower end is to ignore what resonates from a fair reading of the agreed facts as a whole. Whatever might have been Jones' role in the importation, the overwhelming inference from the statement of facts is that this applicant was well versed with the configuration of the consignment to be able to converse with those he believed would be able to arrange for delivery or collection of it and to respond in the moment to the strategy the police were employing as part of the controlled delivery and make adjustments to the arrangements for its collection. His conversation with his partner is further support for that view. In the result, I am not persuaded that the applicant played a minor role subordinate to Jones. The evidence at least well supports a degree of knowledge and involvement commensurate with that of a joint venture with Jones. 48Analysed in that way, I am not persuaded that the sentence imposed on the applicant is manifestly excessive in the sense that it is unreasonable or plainly unjust. 49The orders I propose are: 1. Leave to appeal is granted. 2. The appeal is dismissed. 50ADAMSON J: I agree with Fullerton 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. Decision last updated: 24 June 2014