District Court New South Wales Medium Neutral Citation: R v Habib [2015] NSWDC 167 Hearing dates: 06/02/2015 Decision date: 13 February 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Term of imprisonment of 5 years and 3 months with a non-parole period of 2 years and 6 months. Catchwords: Criminal – sentence, importing border controlled drug namely cocaine, early plea. Legislation Cited: Commonwealth Crimes Act 1914 Criminal Code Act (Cth) 1995 Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194 R v Bloomfield (1998) 44 NSWLR 734 R v RCW (No 2) ([2014] NSWCCA 190 R v Thomson and Houlton [2000] NSWCCA 309 Veen (No 2) v The Queen (1988) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (Cth) Ishrat Habib - Offender Representation: Solicitors Director of Public Prosecutions (Cth) Watsons Lawyers - Offender File Number(s): 2014/60603 SENTENCE 1. HIS HONOUR: Ishrat Habib appears today for sentence in relation to an offence to which he pleaded guilty at the Local Court and which plea she adhered to in this Court in respect of an offence committed on 26 February 2014. That offence was contrary to section, or subsection as it is sometimes called in Crown written submissions, 307.2(1) Criminal Code Act (Cth). The offence she committed was importing a substance being a border controlled drug, namely cocaine and the quantity imported being a marketable quantity contrary to that section. The maximum penalty for this offence is 25 years' imprisonment and or a fine of $850,000. 2. The offender has been in custody since the date of her arrest, 26 February 2014 at all times spending custody up till the present time will be taken into account by the backdating of the sentence. 3. Although the Crown sought to assist the Court with its detailed written submissions in relation to all aspects of the matter, there were extensive submissions in relation to the issue of whether a discount ought be given for the plea of guilty and its facilitation of the course of justice. I appreciate that assistance from the Commonwealth Crown but it seems to me, with respect, that when it is all said and done, any examination of any decision of a superior Court in this State, dealing with the plea of guilty, particularly on a committal for sentence in respect of Commonwealth offending, would reveal that in New South Wales it is accepted practice for a Judge to exercise his or her discretion to provide a discount in accordance with the range set out by the Court of Criminal Appeal in a guideline judgment relating to State offending, Thomson and Houlton v R determined by the Court of Criminal Appeal in 1999. 4. Bearing in mind all the material available to me I propose to accord the offender discount of 25% upon the otherwise appropriate sentence to be imposed which I will come back to at the end of my remarks on sentence. I have already advised the offender of the sentence that will be imposed which represents recognition of that discount and I would ask in due course that my introductory remarks directed to the offender being incorporated into these remarks on sentence. (Ms Habib, can you stand up for me please? My practise is to tell people what sentence I am going to impose at the start, not at the end, because you'd be just sitting there waiting to find out what was going to happen to you. That wouldn't be very fair for any prisoner unless that prisoner was a security risk and I don't believe you're a security risk, for me at least. Then I am going to give my reasons and I have to refer to a number of things. There is a bit of territory to cover and take some little time. When I finish my reasons I'm going to ask you to stand up again - you don't have to stand up the whole time. You can sit down in a minute, in fact you can sit down now. I propose to sentence you to five years three months imprisonment with a non-parole period of two years six months, to date from the date you came into custody. So that's a minimum period of two and a half years in custody and then the authorities will need to determine whether you are released and on what conditions - you will probably be released to be deported back to Great Britain. Do you understand that? Thank you.) 1. The facts of the matter are set out in a statement of facts which are not in dispute. I am aided also with a very brief chronology that has been prepared by learned counsel for the offender. The offender is a citizen of Great Britain. She was born on 4 December 1991 and thus at the time of the offending with which I am concerned she would have been, on my calculation, 22 years of age. She is now 23 years of age. She had no prior findings of guilt, charges or convictions at the time that she came to Australia. She came to Australia via Singapore and when she arrived in Australia - having arrived here I hasten to say on 10 February 2014. She attended upon some type of travel centre at the East Gardens shopping complex at Pagewood, in order to book and pay for a South Sea Island cruise with the P and O Cruise Line. She was accompanied by a male person who, from the statement of facts, said something which appears in the facts, presumably noted by the booking agent, that suggests that she was not known to him. From what I understand are the facts he was barely known to her. I take this man to be some form of "handler" to assist the offender to facilitate the travel arrangements that she was then undertaking. This conclusion is consistent with the ultimate conclusion I have reached as to the role of the offender. 2. She booked the cruise in her own name and she paid for the cruise partly in cash and partly by credit card. She departed on a cruise ship called the "Pacific Pearl" on 17 February 2014 arriving back in Australia on 26 February 2014. Amongst other places that the ship visited was the port of Port Villa in Vanuatu, formerly the New Hebrides. When she disembarked from the ship she was carrying, or had under her control, a cardboard cylindrical packing tube in which was what was described as a "lava lamp" with frosted glass containing a brownish yellow liquid - this type of artefact is commonly purchased by tourists in Vanuatu and islands nearby. She told customs officers that the lamp had cost her $110. Tests were undertaken and the presumptive testing of the liquid returned a positive result for cocaine. The AFP was contacted, naturally enough. The offender was conveyed to the AFP Centre but after receiving legal advice declined to be interviewed and has really said nothing else about the matter beyond some hearsay representations made to a psychologist whose report is available to the Court. One thing she did say to the AFP was, "How do you know how much is there? Do you mean the liquid? Don't you have to cook it first?" This reveals at least some ignorance of the method of extraction of the cocaine within the liquid. 3. In her possession when she was arrested she had a total of $5,059 and a few odd cents in cash, $4,110 within a white purse and the balance on her person. She also had three Visa cards, one MasterCard, all in her name and two mobile phones. There is no evidence as to what investigations were undertaken in relation to what was recorded on the mobile phones. The 'lava lamp' was examined in the appropriate way and the gross weight of the cocaine suspended in liquid form was 2.072 kilograms. The examination by the National Measurement Institute confirmed that the border controlled drug cocaine was within the liquid, its purity was estimated at 51.8% with a conclusion that the weight of pure cocaine was 1.073 kilograms. Fingerprints of the offender were found on the bubble wrap surrounding the lava lamp. 4. The defence case did not involve any oral evidence from the offender. Of course, that cannot be held against her. She may exercise her right to silence. I appreciate given the role that she had she may well be in a very difficult position. But I am not informed as to the extent to which she may or may not be in jeopardy from providing evidence about those that recruited her or those who handled her. How she became recruited into this exercise, as self‑evidently she was, is a mystery. 5. The material produced to the Court included a psychological report from Mr Lennings which ultimately wound up being a form of pre‑sentence report with very little in the way of psychological testing results or analysis. There is a letter from a Program with the Corrective Services of New South Wales who have had her care. There were references from a Stephanie Edwards, an officer of Birmingham City Council, whose reference I will refer to in a moment and a letter from the sister of the offender. Those documents are dated late December 2014 or January 2015. There was also a bundle of what were described as financial documents which I read in great detail, including rent accounts relating to the offender's mother's residence, notices for possession of property instigated by the Birmingham City Council, statements relating to tax owed and advice regarding court proceedings for repossession of the property rented by the offender's mother, documents relating to rent arrears and other material relating to debts owed by either the mother or the offender. 6. Some of the evidence within this bundle of financial documents related to debts that have accrued or arisen, for example, in the case of the tax levied by the Council, after the offender came into custody. I take the evidence of the financial circumstances of the offender's mother, particularly, after the prisoner came into custody as being relied upon as evidence of the effect of the offender's incarceration as a result of her arrest in relation to this matter. Other evidence relating to events occurring before the offender's arrest and at the time of her arrest I took to be, from the submissions made, evidence relevant to understanding the motivation of the offender to involve herself in this scheme. The offender might now realise from her experience in Australia that Australian Customs officers are somewhat more vigilant than those in Great Britain that Australian tourists may experience as they wander their way out of the terminals of Heathrow to the city of London. 7. There is also a copy of extracts in a note book found in the offender's possession providing details of expenditure that she had incurred during the course of her travels as well as some statistics which I will refer to. 8. Dealing with Dr Lennings' report, as I said, there is little in the way of psychological analysis. The truth is that whilst the psychologist states that the offender is a "psychologically vulnerable young woman" the psychologist does not identify any symptoms of the offender reflecting either a psychiatric or psychological condition other than those that were consistent with her "reaction" to her current situation arising from her arrest and being in custody for the first time. He noted at paragraph 29, "Ms Habib remains a vulnerable woman who has significant difficulties in adjusting to her current situation. I particular she presents as experiencing a great deal of anxiety and sadness and would currently meet criteria for an adjustment disorder with low mood and anxiety in response to her incarceration. It is possible she might meet criteria for depression given the sustained nature of her symptoms". 1. It is clear from this report and the submissions conceding the effect of the report that no issue arises in this case that would indicate a relevant psychiatric or psychological condition that had a causal relationship with the offending, even allowing for the view expressed by Justice McClellan in the decision of DPP (Cth) v De la Rosa [2010] NSWCCA 194, at [177]-[178] that "The mental health problems of an offender need not amount to a serious psychiatric illness before they be relevant to the sentencing process", and that the circumstances may "indicate when an offender has a mental disorder of a modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence". 2. There is no condition identified by Dr Lennings, assuming that he was qualified to identify it at least so far as the symptomology is concerned, that explains the offending behaviour. 3. Naturally, I take into account as generally relevant, as many matters are in this case, the fact that the psychologist has identified symptoms expressed by the prisoner reflecting upon the adverse reaction she is suffering from being in custody in a foreign land a long way from her family. But it must be said at the outset that nothing in the evidence demonstrated that her circumstances or the effect of her incarceration upon her family were exceptional. Although, as the Crown properly pointed out in its written submissions, " … even having regard to a wider authority that states that the impact upon third parties, particularly dependants, must be quite exceptional" to invoke s 16A(2)(p) Crimes Act (Cth), there is accuracy in the submission that the effect of the sentence upon the prisoner's family and "dependants" remains a relevant factor to take into account as part of the offender's general mix of subjective features, citing two decisions from 2004 of the New South Wales Court of Criminal Appeal, R v X and R v Girard. 4. I have read a number of reports from Dr Lennings and I accept that he is a man of integrity and I have seen reports from him that I have accepted in no uncertain terms. I am prepared to accept the account given that he sets out in the psychological report is the account given by the prisoner. I am mindful of the fact, of course, the Crown has not had an opportunity, if it so desired, to cross‑examine the prisoner about the hearsay representations she has made so far as her background or even her involvement in the offence with which I am concerned. However, it seems to me, that there are a number of matters that she asserts that are to some extent supported by material from independent people, particularly Stephanie Edwards, allowing for the fact that those people, that is Stephanie Edwards and the prisoner's sister, have not been cross-examined. But then again, it would have been difficult to produce them for the prosecution to do so having regard to the fact that they live 12,000 miles away. 5. The history given by the prisoner to Dr Lennings was that she had had an unhappy childhood. She is the third eldest of seven children. There was a suggestion in the history she gave that she was living at home with her mother, her seven year old brother and her five year old sister. There is other material available from the references to suggest that she was in fact renting a flat. But, in fairness, that material also said that even though she had a flat of her own she was spending a great deal of time at home with her mother. I am not aided with any particular geographic information about the location of the respective residences in Birmingham, England, to work out the extent to which those two residences were in fact separate. 6. The family, apparently, was abandoned by the father at some stage obviously after seven children were born. As I said the prisoner according to the report has a five year old sister. Given the prisoner is 23 now and she is the third oldest of seven children I would have to assume that the father has had some connection with the mother up until five or six years ago at least. The father had a gambling and drinking problem but the prisoner did not report any particular abuse against her in the form of sexual abuse. He was, however, physically violent, she said, to herself and other members of her family. She reported, I think in fairness to her it would seem quite honestly, that she had a deal of difficulty at school, truanting a lot and was somewhat rebellious of the standards at least of her mother and, I would assume without knowing any more, of cultural standards of her family's country of origin outside Britain. 7. She had some employment. Before being arrested she worked on a production line in a factory and was a stock controller, it was said, before she was arrested. She had no particular medical problems. She has never been treated for depression or taken any antidepressant or antipsychotic or psychotropic medication and denies any self-harm behaviour. She has no dependence on drugs although she does smoke cigarettes. She has no long term relationships and no children. She told Dr Lennings that she committed the offence because of "difficulties that her family were in when she was living in England". She said that it was not her own financial situation that led her to her "desperate act" but the difficulties facing her mother, which I will come to shortly from the evidence available. 8. There is one other aspect of the matter that is to my mind established, that is she has two younger siblings, as I said earlier, one of which has significant difficulties with autism. This is the younger sister who I take to be five years of age. I will pause for a moment to quote from Stephanie Edwards' letter to the Court. She is a teacher who has had direct contact with the younger siblings of the prisoner, "Malika is a young child with autism. In line with a child with her diagnosis she has difficulties with social communication and interaction (she) has no speech and is completely reliant on her family to provide all of her care needs. (She) has a very poor sleep pattern and is frequently awake until the early hours". 1. Ms Edwards said that the experience she had was that the family was heavily reliant upon the prisoner for Malika. The mother is in poor health and much of the care of the younger sister has fallen to the prisoner. It also says the prisoner has worked closely with professionals involved with Malika to put into place a package of care. She had found the prisoner reliable and easy to communicate with and the prisoner had been generous with her time in attending appointments and the like. The prisoner also acts as an interpreter for her mother who speaks very limited English. She also has some responsibility for the care of the seven year old brother who is of school age. The prisoner was described by Ms Edwards as, "A young woman who shoulders a great deal of responsibility within a complex family unit. She had given her timely freely and with good humour working with professionals to try and ensure the best possible outcome for her severely autistic young sister". 1. The prisoner was described as being, on what was described as "psychological assessment" without reference to the source of the assessment other than clinical observation, to be a "rather dependable and typically happy person who was happy to do anything with the family" and the psychologist reflected upon her responsibility for her siblings and her "parental roles" confirmed by Ms Edwards. She also reflected upon feelings of anxiety before the offence that she claimed and concern about her family although she denied any major symptomology consistent with any form of mental illness of disability. 2. She has had no previous engagement with health professionals in relation to psychological or psychiatric matters. She relies heavily upon her capacity to work in Great Britain because of her obvious need for money. I have already read part of the formulation of the psychologist. The psychologist noted her regret of her involvement in the offence and according to the psychologist "appears to experience genuine remorse for her behaviour". I accept that is the impression the prisoner made upon the psychologist and for the purposes of sentencing that is as far as the matter can be taken. 3. The psychologist expresses opinions about the character of her offending which seem to me to be a matter of personal opinion of the psychologist which might not accord with the objective facts. He states that she acted in a "moment of irrationality". In my view that clearly is not the case. It may have been a "moment of irrationality" to initially to agree to this enterprise, but the truth of the matter the prisoner had travelled from Great Britain to Australia via Singapore. She would not have travelled to Australia at a moment's notice. Even giving her the benefit of a day's notice she had time to reflect upon this enterprise, although she has not assisted us with details as to when she was specifically approached in relation to the matter. The financial circumstances of the family are also noted by the psychologist as an explanation for her conduct. I accept that that is a contributing factor. 4. I have the report from the Young Adult Satellite Program of Corrective Services. She had participated in a program between 28 October to 5 November 2014. Her participation was rated as above satisfactory. The program is designed to assist inmates with personal growth and develop plans within custody and beyond custody. The opinion of the authors of the report, Ms Moor and Ms Geddes, is that the prisoner has the "propensity to change", is prepared to undertake programs whilst in custody, has plans for her future and clearly needs some professional assistance in this regard and they speak positively of her in that regard. 5. In relation to the financial circumstances of her family there was some discussion about the detail of the material tendered and that will obviously appear in whatever transcript is produced if a transcript is created in relation to this matter at a later time. I have no transcript. I simply state that as at 10 February 2014 the debt of the mother to the council in respect of rent outstanding was £1203.39. I am also aware that there had been action taken in relation to seizure of goods that required payment, as I understand it, of in excess of £200 for redemption of that property. Part of the material provided to the Court is a demand for what is described as "council tax" for the period 1 April 2014 to 31 March 2015 in the sum of £862.78. It seems that demand by the Council was made by a bill that was forwarded on 11 March 2014. The prisoner might have anticipated that the council tax was due, however, there is no evidence that she would have known the exact amount. 6. The prisoner herself, just dealing briefly with some of the material available to the Court, had significant debt. She is the subject of recovery proceedings instituted on 17 December 2014 in respect of the sum of £398.96. One might not have categorised that as a crushing debt. Likewise, in relation to the mother there were proceedings commenced on June 16 by the Birmingham council for the recovery of £2654.59. Again, some of that debt was accrued after the prisoner was arrested. 7. This material that I have briefly summarised, other parts of it I have referred to earlier, was at the heart in one respect of part of the submissions made on behalf of the prisoner by counsel concerning her motivation. 8. Counsel for the prisoner naturally referred to the weight to be given to the plea of guilty and particularly the discount, the expression of remorse by the prisoner, the fact that in the context of no prior criminal convictions and her progress in custody she had good prospects of rehabilitation. It was also noted there was no issue as to the facts. All these matters I accept. 9. What was submitted to the Court was, however, that her crime was committed out of financial 'need', not 'greed' in the context of course of it being conceded there were no medical issues that arose in relation to the offending. I have already dealt with some of the detail of the money that was owed at the time that she travelled to Australia. 10. In relation to the debt of the mother for the council property that she was renting I have noted from the records that were produced, which are apparently account records showing the balance owed at any particular time up until late 2014, that the rent debt primarily arises from a continuing shortfall between the rent that was due and regular' payments by authority' made on behalf of the prisoner's mother. These payments by authority it would seem, given their regularity and the exact amount each time paid, would suggest a source for payment under the control of the mother, although I am not assisted by any evidence to help me in this regard, such as some form of Government benefit. What we would call in Australia social security benefit. 11. The real picture of the financial circumstances of the family is really impossible to identify with precision because I have not been provided with any evidence as to what was the income of the prisoner, if any, at any relevant time, or what income or benefits were paid to the mother or other members of the family by reason of Government benefit or "social security source". There is no evidence as to the means of other members of the family, no evidence as to what specific support is provided to the family unit living within the mother's home, that is, the mother, the two children that I have referred to, and possibly the prisoner, by other siblings. It is clear on the evidence I have available to me that there are four siblings not living at home who I assume are adults. There is no evidence of what benefits or support is available through either the National Health Service, a relevant health authority or a local government authority such as the Birmingham Council. I think I can take judicial notice of the fact, being a relatively frequent visitor to Great Britain in recent years because I have a child who lives there, that local government authorities in Britain generally have a range of services available in the context of the fact that, as we know, there is a national government in Great Britain but no state government or state governments as we have here. Although I appreciate of course there has been a devolution of some powers to Scotland, Wales, et cetera. In fact, the material presented on behalf of the prisoner in the form of the reference from Ms Edwards confirms the fact that she is a teacher employed by Birmingham City Council and has some active knowledge and involvement in the care or supervision of the children in some way. 12. I accept the general proposition that there were financial pressures upon the prisoner in part because of an obligation she had to her mother who had a number of financial difficulties, some of which were not of her making. I accept that the mother needed assistance in supporting her own children both materially in terms of financial assistance and physical assistance which the prisoner provided. I am prepared to accept the evidence that is available shows the primary pressure of financial obligation on this prisoner was not personal, in the sense of her own debts, but financial difficulties of other members of her family, particularly her mother for whom she felt some responsibility. This in part explains her motivation for being tempted to commit the crime that she has pleaded guilty to. It is obviously no excuse and certainly the evidence falls short of the Court accepting that this was a crime committed for "financial need", not greed. 13. The reality is, as the cases decided in this and other courts at first instance and the appellate courts show, that drug mules as they are sometimes described, or "couriers", importing drugs into this country are recruited because of the lure of money or other financial benefit primarily because at the time of recruitment they have difficult financial circumstances, on many occasions not of their making, either arising out of their own personal financial circumstances, family obligations, drug dependency or some other addiction. Perhaps on occasions just generally arising from circumstances of poverty in which they have grown up and all live. If one reads the analysis of Justice McClellan in DPP (Cth) v De La Rosa [2010] NSWCCA 194, for example at [223] where he summarises some of the subjective features of some of the so-called "comparative" cases to which he refers, one can see these features emerging again and again and again. 14. I am prepared to accept in the context of dealing with the submissions put by counsel for the prisoner that the prisoner took some responsibility for the family. But the truth is in the context of the objective evidence she must have also been lured by the benefit financially to her given the fact firstly that when she was arrested she had in her possession over $5,000 in cash which is completely unaccounted for. One must take into account that she must have had her air fare paid to fly in and out of Australia and that ultimately she was able to pay for the cruise in part with $600 in cash which I have to assume came from a source other than herself, bearing in mind, of course, as her own counsel demonstrated, she was keeping a record of her expenses presumably for later reimbursement. I am appreciative of the fact that in paying for the cruise in part the $600 cash and the balance, a greater amount, by credit card that out of the cash that she had in her possession when arrested she may have been required to pay the credit card debt. But the truth is that what she had in her possession was on my calculation in excess of what at 10 February 2014 would have been the debt owed by her mother to the council or even herself to third parties. As I said, the prisoner does not assist us in this regard. Even if she was to provide part of the money that she was to receive to the benefit of her family given their straightened circumstances I am satisfied on all the evidence that there must have been some money that she was going to use for her own purposes, that went to uses beyond simply outstanding indebtedness. 15. I have already indicated my conclusion that exceptional circumstances, if I might describe them as that, do not apply to the prisoner to explain her motivation for the offending. It was submitted on behalf of the prisoner that critical issues for the Court to take into account were her youth, the prospects of rehabilitation to which earlier reference was made and her role. I have already indicated of course that I have determined that I categorise her role in this matter as a "courier". It should be pointed out of course that it is an unusual case. I see many cases of couriers coming into the country. I have sentenced some dozens of people over the last 14 years for coming into the country from China and Vietnam and South America with drugs concealed upon their person or within their luggage. This is the first case I have struck where a person has come into the country from a foreign land never having been here before and then gone out of the country ostensibly for a holiday on a cruise and then come back into the country a second time endeavouring to import prohibited drugs. It may be a novel method of importation that should be stamped out. 16. The conclusion I reached in relation to her role in the matter, bearing in mind I have taken into account the helpful submissions of the Crown, arise from a number of aspects of the matter. The prisoner would not have had any financial capacity to finance this enterprise. The financial records that have been produced on her behalf whilst, as I have pointed out, relevant on the defence case to explain her motivation and other related matters that may be seen of a subjective character, also to my mind conclusively establish that she had not the means to buy a return air fare to Australia, let alone finance the importation of a substantial quantity of cocaine, the value of which is denied me in the facts, on a wholesale or retail level. She had no material apparently within her mobile phones or in any documentary form to show that she had information as to the contacts that she would need to have in order to unload the importation or provide it to those who could distribute it in Australia. It seems on her own statement she had little understanding of how the cocaine could be extracted. This was quite a sophisticated operation of course. She had a handler who could look after her in Sydney. She obviously was given the package I assume somewhere along the way on the cruise. It was professionally disguised to look like an innocent item. The ingenuity of people importing particularly cocaine into Australia is outstanding. I did a trial involving the importation of over 300 kilograms of cocaine hidden in pavers in circumstances where the cartel or group that was responsible for the importation had previously, under the stewardship of the accused, imported seven or eight importations of pavers all innocent with no cocaine before they chose the moment to send to Australia the pavers in which were very cleverly imbedded quantities of cocaine. It was a tribute to the professionalism of Customs and the AFP that that importation was identified. 17. The Crown has not seriously contested the submission of the counsel for the prisoner that the prisoner could be categorised as a "courier". I appreciate in passing of course that labels can sometimes be misleading and people can have multiple roles. I appreciate the fact that was discussed in Olbrich (1999) 199 CLR 270, a High Court judgment dealing with matters required to be proven by the Crown or proven by the defence in this regard and the evidential standards that apply in that regard, that a courier is in fact a principal importer. That having been said, to the extent that any burden falls upon the prisoner, the objective facts in totality satisfy me, at least on balance, that the prisoner was not the principal of this importation, did not finance it and was a paid hireling who was ultimately disposable. 18. In relation to the prisoner I note that the prisoner appears before me as a young woman, small in stature and to my very untrained eye in appearance a shy, retiring person seeming much younger, or at least younger, than her stated years. I accept from the submissions that were made there is nothing either about her prior conduct or her character that suggests that she is of herself a danger to the community and that in her own country she is anything other than a loving family member. But the truth is, as we often see, that people such as herself, with an absence of criminal convictions, innocent appearance, a lack of any criminal antecedents, are very attractive to those who would recruit her. 19. In relation to her role in this matter it is to be pointed out of course that everything she did she did in her own name. She was readily identifiable and like all couriers ran the greatest risk of exposure. There is no evidence to link her to any criminal organisation by family relationship or inclination save for her role in this matter. Of course, by falling to the temptation offered to her ultimately she sought to facilitate the aims of an organisation that very professionally was seeking to import into this country a border controlled drug that can do considerable damage to those that use it. Of course, she was part of, as I said earlier, a very clever arrangement to import these drugs somewhat imbedded one would have thought amongst a complement of Australian tourists who to all intents and purposes had nothing other than the innocuous object of travelling to Vanuatu, Noumea and other islands of the South Pacific for the purposes of enjoying themselves. 20. As I said earlier, the Crown's written submissions are helpful and some aspects of them I have already referred to. The Crown agreed that a discount of 25% ultimately was appropriate but in assessing the prisoner's role the Crown submitted it was clear that her role was integral to the commission of the offence and I have already acknowledged that that is so. She also submitted, and I accept that the offending was not unplanned. It obviously had been deliberated over for some period of time by the prisoner, although I am prepared to accept in the scheme of things without any assistance from the prisoner that once she got on the plane to fly to Singapore there was no turning back for her. The Crown submitted, and I accept, that the financial circumstances of the prisoner were not exceptional. The Crown took the Court to some comparative sentencing which I will deal with in a moment. Apropos the Crown's helpful written submissions in the usual way the Crown took me to a range of matters that are required to be taken into account in sentencing an offender for an offence of this type. 21. In the written submissions of the Crown the Crown specifically referred the Court to Pt 1B of the Commonwealth Crimes Act. It dealt with a number of aspects of the matter including the nature and circumstances of the offence, the relevant considerations of the maximum penalty serving as a yardstick and basis for the comparison of this case between this and what is described in the Crown's written submissions as "the worst case". I remember appearing in the High Court as junior to Peter Hidden QC then, now Justice Hidden, when the High Court Judges in the case of Veen No 2 v The Queen in 1987 invited him to identify the status of case at bar by comparison with "the worst case". When some illustrations were given to the learned Judges of the High Court of cases that could be regarded as worse than the crime committed by Robert Vincent Veen, the response was, well "one can always conjure up a worse case than the one at bar". I accept that the maximum penalty indicates this is a serious offence and the maximum penalty provides the relevant yardstick. This is not the "worst case" of its type. 22. The Crown referred to the fact that the amount of the border controlled drug was a relevant matter, notwithstanding the decision of Wong v R, and it is of significance in the context of the quantities that are required to establish a marketable quantity of cocaine. A minimum quantity of cocaine for the purposes of establishing a marketable quantity is two grams. The maximum quantity, as I understand it, for cocaine is two kilograms. 23. Is that correct Madam Crown? 24. THOMPSON: It is, your Honour, for cocaine. 25. HIS HONOUR: I do not know whether a mathematical calculation of the extent to which a particular quantity is in excess of a minimum quantity of a border controlled drug for the purposes of the Act establishes a great deal, but I certainly accept that the importation is a substantial importation within the range of a border controlled drugs that would attract the maximum penalty for this offence. 26. It is clear the prisoner sought to commit the offence for financial gain and I have already dealt with the aspects of that that I need to consider and that general deterrence is a relevant matter to be taken into account in sentencing the prisoner. 27. The Crown took me to some subparagraphs of s 16A(2) of the Act including the fact that the guilty plea must be taken into account and what follows from that under New South Wales law, the need for adequate punishment in accordance with subpara (k), the character, antecedents and background of the prisoner which I have already spoken to. 28. So far as the "hardship to offender" aspect, I have already dealt with that. The hardship of the prisoner being in custody in Australia is ultimately a hardship that she had wrought upon herself. But I would not be human if I did not acknowledge the fact that she, with a family of limited financial means, will serve a sentence with little direct contact with the family. Although I gather she appears to have regular contact, even daily contact, with her family or some members of her family by telephone. 29. With regard to other matters that are not included in the Crown's written submission, I take into account of the degree to which the prisoner has shown contrition. I note of course the contrition is not absolute. She has expressed contrition to others and I accept that her expressions of contrition are genuine. Her presence in custody of course will have a salutary effect on her and of course that is a matter relevant to another aspects of the matter, that is, what is required to be considered under 16A(2)(j) as to the deterrent effect that the sentence I impose will have on the prisoner. 30. I have to take into account of course the prospects of the rehabilitation of the prisoner. I believe, in the understanding that the prisoner is not naturally of antisocial persuasion or inclination, that in conjunction with the salutary effect of imprisonment and progress made whilst in custody that she does have good prospects of rehabilitation. I note of course that she has not cooperated with the authorities although she is under no obligation so to do. 31. I also note that this offence does not form part of a course of conduct consisting of a series of criminal acts. I appreciate of course that of itself is not a "mitigating factor". What I understand the purpose of subpara (c) to mean is that when a person is being sentenced for an offence which does form part of a series of criminal acts of a similar or same character that course of conduct must be acknowledged in the matter. 32. The Crown made submissions about hearsay representations that are untested in related matters and I have taken them into account. I have taken into account of course the helpful outline of relevant matters to setting the sentence including the terms of s 17A and the fact that if a sentence of greater than three years imprisonment is imposed there must be a non‑parole period, the backdating requirements of the Act which are a matter of self-evident fairness and the other issues that were identified. 33. I come back just for a moment, however, to the issue of comparative cases. The Crown provided me both with a summary and transcripts of decisions of a number of judges of my court including decisions in, decisions of Strode of 6 May 2011 from his Honour Judge Finnane QC, Crouch of 19 August 2011 from her Honour Judge Woodburne SC, the judgment of Teros of 20 January 2012 from his Honour Judge Toner SC, the judgment of R v X of 17 February 2012 from his Honour Judge King SC, the decision of McCulloch(?) from 18 October 2012 of his Honour Judge Frearson SC. 34. I appreciate those judgments provide some assistance. They are all different amongst themselves in a range of ways. I do not need to go through that analysis at the moment. 35. As I said earlier I drew the parties attention to a slightly earlier decision to the decisions in the District Court, bearing in mind of course the judges of the District Court subsequent to the decision of De La Rosa might reasonably be expected to have some regard to, at least, certainly great respect for, the view of the Chief Judge of the Common Law Division of the Supreme Court of New South Wales in his very detailed analysis of sentencing for offences of importing cocaine, which was the case at bar. 36. In the matter of De La Rosa which was a Crown appeal from a decision of his Honour Judge Zahra the importation occurred in 2008 and the quantity imported was a marketable quantity of 1.87 kilograms. The prisoner was sentenced to a term of imprisonment of eight years with a non-parole period of five years. The prisoner as I understand the facts of the matter having, before coming to Australia, a conviction which required a term of imprisonment in a foreign country. 37. The prisoner was categorised as a courier. He had previously spent three and a half years in custody, as I understand it, in Argentina. Certainly overseas for the crime of robbery and he claimed support for his family and a debt he owed accrued in gaol as being motivations for his crime. The facts of the matter I need not dwell upon, but his sentence included a discount of 25%. 38. In De La Rosa, as I said, his Honour sought to examine comparative cases and ultimately from his very extensive researches undertook a categorisation of offending in relation to offences of both import a commercial quantity of a border controlled drug, particularly cocaine, and importing a marketable quantity of that drug. Mistakenly counsel for the prisoner took my attention to paras [214]-[215] as being relevant to an assessment of comparative cases. Unfortunately, the submission was somewhat misconceived because those paragraphs are concerned with the commercial quantity of the relevant border controlled drug. His Honour's analysis of the import of a trafficable, or marketable quantity, as it is now known appears at [216]-[223]. 39. It seems to me, without dilating upon the matter, that there are aspects of this matter that are common to what his Honour ultimately described in his table which appears at [224], that this offending fits somewhere between group 2 and group 3 of the groups identified demonstrating, I must say of course, to the fact that generalised categorisation of offending will always have exceptions and is sometimes problematic. It might be said that there may be more common features with group 3 discussed at [223] than that discussed at [221]. 40. I have had regard to his Honour's analysis in the comparative cases provided by the Crown, but what I have had regard to, particularly in undertaking that exercise, is the consideration of reference to comparative cases that are discussed in the decision of the Court of Criminal Appeal of R v RCW (No 2) ([2014] NSWCCA 190). 41. It was held to be an error for the sentencing judge to fix upon a particular comparative sentence as some sort of starting point or definitive yardstick for the case that his or her Honour had before him. The merits of the appeal I need not concern myself with for the purposes of this judgment, but I particularly refer to [47]-[49]. Inter alia in the judgment of this matter that was delivered for the Court by Justice R A Hulme, his Honour pointed out that the case, "demonstrates an approach that has all the appearance of being driven by a single so called comparable case. The focus was very much confined to a comparison of the criminality in (the other case) with that in the present case. There was no process of instinctively synthesising all the relevant objective and subjective facts and circumstances to arrive at a proposed sentence and then looking at the outcome of other similar cases that may have provided a check or yardstick (citing Markarian v The Queen [2005] HCA 25 and Hili v The Queen; Jones v The Queen [2010] HCA 45)." 1. His Honour went on to say in the following paragraph, "Arithmetical quantification of the mitigating effect of a single feature of the case...was erroneous.". 2. Thus, as his Honour points out in the judgment, comparable cases provide some assistance in setting out a relevant range, but a trial judge has to undertake the very difficult task of synthesising all the relevant materials to try and arrive at a just result for both prisoner and the community. 3. I have also had regard to the statistics that were provided to me by counsel for the accused. They again provide a range of sentences that have been imposed. They provide little in the way of detail, far less so than comparable cases, of relevant objective and subjective matters, particularly when one has regard to the fact that the statistics I was provided with did not deal with the range of sentences for those with no prior convictions entering guilty pleas. I am also very mindful of the limitations of statistics that were easily and immediately identified by Spigelman CJ in 1998 in R v Bloomfield. I have taken those statistics into account. 4. I have settled, ultimately, all things taken into account, upon the conclusion that the appropriate starting point of any sentence to be imposed is seven years' imprisonment. I have also concluded, in the context of the decision of Hili and Jones to which I earlier referred, that having regard to this prisoner's circumstances and the ostensible need for professional assistance to her on her release, assistance to adjust to community living, although she will be deported, and having regard of course to the need to ensure that the minimum term of imprisonment is proportionate, to reflect the criminality involved, that the non-parole period should be two years and six months, my calculation being of course that the total sentence should be five years and three months with a discount of 25%. 5. In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment of five years and three months. That term of imprisonment will commence on 26 February 2014 and expire on 25 May 2019. I fix a non-parole period of two years six months which will commence on 26 February 2014 and expire on 25 August 2016. 6. I should explain the effect of the sentence upon you. The minimum period of time you will spend in custody will be two years and six months. It will be a matter for the Parole Authority whether you are released or not on that date. If you are of good behaviour in custody it is likely that you will be released, but you will be deported, I will assume, from the country. Do you understand that? Is there anything else I need to explain to the prisoner, Madam Crown? 7. THOMPSON: No, your Honour. 8. HIS HONOUR: Anything else, Mr Abbott? 9. ABBOTT: No, your Honour. 10. HIS HONOUR: Ma'am, I don't know what to say to you, I'm not a guardian of morals in this country, I'm merely a person who's given the responsibility of sentencing people for committing crimes. In your case your conduct was quite foolish, of course. I think you and your colleagues may have under‑estimated the skill of Australian customs officials in detecting illegal imports that might otherwise attract suspicion. I understand what you've explained to me, the circumstances of your offending. It can't offer any excuse. But I trust that you are able to return to your family in due course and you will be able to get on with your life. If you had committed this crime in some other South East Asian countries you would be facing far heavier penalties for comparable offending than would be imposed upon you in Australia. I would imagine if you committed this crime in Great Britain, without having any specific expertise in British sentencing practice, you would be serving a sentence as long as that that I have imposed upon you, do you understand that? 11. OFFENDER: Yes. ******** 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: 17 August 2015