Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Youssef v R [2011] NSWCCA 104
• Hearing dates: 28 March 2011
• Decision date: 23 May 2011
• Before: Simpson & Davies JJ & Grove AJ

Decision

(1) Leave to appeal granted. (2) The appeal is dismissed.

• Catchwords: CRIMINAL LAW - particular offences - drug offences - leave to appeal against sentence - whether notional starting point of sentence manifestly excessive - continuing authority of R v Wong and Leung [1999] NSWCCA 420.
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Criminal Code Act 1995 (Cth)
• Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; Le v R [2006] NSWCCA 136; Mirza v R [2007] NSWCCA 257; Mohlasedi v R [2006] WASCA 267; R v Cheung and Choi [2010] NSWCCA 244; R v Huynh (2008) 180 A Crim R 517; R v Jimson [2009] NSWCCA 183; R v Mirzaee [2004] NSWCCA 315; R v Mokoena [2009] QCA 36; R v Nguyen; R v Pham [2010] NSWCCA 238; R v Pham [2005] NSWCCA 314; R v Tran [2007] QCA 221; (2007) 172 A Crim R 436; R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340; Regina v Nikolovska [2010] NSWCCA 169; Rutkowskyj v R [2008] NSWCCA 10; SZ v Regina [2007] NSWCCA 19; Teehan v R [2006] NSWCCA 401; Tyn v R [2009] NSWCCA 146; Wong v The Queen (2001) 207 CLR 584
• Category: Principal judgment
• Parties: Tony Youssef (Applicant); Regina (Respondent)
• Representation: Counsel: S Kluss (Applicant); L Crowley (Respondent); Solicitors: Elliott Lawyers (Applicant); Commonwealth Director of Public Prosecutions (Respondent)
• File Number(s): 2009/44909

Decision under appeal

• Date of Decision: 2010-02-12 00:00:00
• Before: Hock DCJ
• File Number(s): 2009/44909

Judgment

1 Simpson J: I agree with Davies J.

2 Davies J : The Applicant pleaded guilty to the charge of importing a marketable quantity of a border controlled drug, namely heroin contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is imprisonment for 25 years and/or 5000 penalty units.

3 He was sentenced by Judge Hock in the District Court to a term of imprisonment for 7 years and 8 months with a non-parole period of 4 years and 8 months to date from 4 June 2009, the date of the offence and his arrest, and with the non-parole period expiring of 3 February 2014.

4 The Applicant seeks leave to appeal against the sentence imposed on the ground that it was manifestly excessive.

5 The facts as summarised by the Sentencing Judge are these.

6 On 18 May 2009 the Applicant attended Flight Centre Parramatta where he booked a Thai Airways flight from Sydney to Bangkok. He was alone and paid in cash for the flight. On 20 May 2009 the Applicant departed Australia on a Thai Airways flight to Bangkok, Thailand.

7 At about 12.35pm on 4 June 2009, the Applicant returned to Australia arriving at Sydney on a Thai Airways flight. He collected his luggage from the arrivals baggage carousel and joined a queue for Customs and Quarantine baggage inspection. He was approached by Customs officers and selected for a full baggage examination. During the baggage examination process, the Applicant was frisk-searched. At the conclusion of this search, he was asked to take off his shoes. The Applicant then told the officer that he had drugs inside his shoes. He was cautioned and taken to an interview room. A short time later AFP members attended and spoke with the Applicant. He was arrested and cautioned in relation to the matter. He was informed he would be searched and was requested to take off his shoes. Each shoe had a package wrapped in tape and other material in place of an inner sole. A presumptive test indicated a positive reaction to heroin.

8 The Applicant was conveyed to the Australian Federal Police Sydney Office where he declined to answer any questions in relation to the heroin found in his shoes. He was then charged.

9 At a later date, a forensic examination determined that the drugs inside the shoes had a total bulk weight of 1,089.7 grams. Later analysis confirmed the substance to be heroin and ascertained the purity of the heroin in each of the two samples to be 52.4 and 52.9 per cent. The total pure weight of heroin imported was 573.6 grams. Based on the calculated pure weight, the AFP estimate that the street value of the heroin imported by the Applicant was between $669,000 and $1,147,000.

10 The range of the marketable quantity for heroin is more than 2 grams up to 1.5 kilograms. Thus this quantity was more than 280 times the threshold and not at a low level for the marketable quantity.

11 The evidence establishes that the Applicant was a courier. However, he left Australia for the express purpose of bringing heroin back into this country.

The Applicant

12 The Applicant was born in Iraq, came to Australia in 1997 as a refugee. He had, however, a daughter in Iran. In 2007 he decided that his daughter should come to Australia because of difficulties she was experiencing and he borrowed money from a friend to travel and bring her here. Ultimately, he could not repay the $10,000 so he borrowed from other people to repay it. These people were the people who recruited him to import the heroin, and he claimed they threatened to shoot him if he did not repay the money.

13 The Applicant was 41 years old. He had no prior convictions but had previously been dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 for an assault matter in 2008.

14 He had suffered a serious motorbike accident when he was 18 years of age which had resulted in permanent back and leg problems, and he continued to suffer chronic pain and anxiety as a result of his injuries. Her Honour found, however, that there was no evidence that those matters would make imprisonment more onerous for him.

15 Her Honour had before her, and considered, a report from Dr Keith Dawes, a psychologist. Dr Dawes related that at some time before he came to Australia the Applicant returned to Baghdad from Tehran where he had grown up, with 2 friends. Those friends were shot dead by Iraqi police in front of him, and the Applicant believed that he was not shot because the police thought he was a Irani national. Dr Dawes concluded that he suffered from post traumatic stress disorder as a result of that incident. Dr Dawes said that when he was threatened to be shot by the people who organised his drug importation trip he would have become exceedingly anxious because it would have brought vivid recollections of what had happened when his 2 friends were shot in Iraq. Dr Dawes says that this would have resulted in a diminution of his cognitive abilities when faced with the threat to shoot him. Dr Dawes also considered that the Applicant suffered from "Refugee Disorder".

Remarks on Sentence

16 Her Honour set out all of the matters I have detailed above. When she referred to the report of Dr Dawes she noted that he had said the effect of the witnessing of the shooting of his friends was such that he was more vulnerable to the threat of being shot made by the people who recruited him. Her Honour noted that even from the Applicant's own evidence he was going to make further money after clearing the $10,000 owed to the people who were threatening him.

17 Her Honour found that the Applicant would be unlikely to re-offend on his release. She took into account the plea of guilty entered in the Local Court and, when that was combined with a further reduction for assistance, her Honour reduced the overall sentence by 30%. Her Honour then imposed the sentence now sought to be appealed.

Applicant's submissions

18 The principal submission made by the Applicant was that her Honour's starting point, which must have been a sentence of approximately 11 years, was too high a point to reflect the criminality of the Applicant, and was consistent with sentences for an offence under s 307.1 for importing a commercial quantity.

19 The Applicant also submitted that the amount of the drug is but one of the features to be taken into account when assessing the appropriate criminality. This, it was submitted, is because the weight of the drug is reflected in the maximum sentence for each category of the offences of importation.

Consideration

20 In R v Nguyen; R v Pham [2010] NSWCCA 238 at [72] Johnson J (with whom Macfarlan JA and RA Hulme J agreed) set out general sentencing principles concerning serious federal drug offences.

21 It is not necessary to set out those principles again - it is sufficient to note some which are applicable to the present matter. First, although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported. Secondly, the amount of the drug involved is a highly relevant factor in determining the objective seriousness of the offence.

22 Thirdly, involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served. Fourthly, the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.

23 The Court said also that the range of sentences referred to in the decision of this Court in R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340 remain useful to sentencing for offences of this type. However, a differently constituted Court of Criminal Appeal 6 days later in R v Cheung and Choi [2010] NSWCCA 244 said this (Simpson J with whom McClellan CJ at CL and Buddin J agreed):

[90] In the light of the criticisms made by the High Court, I am unable to see how the selected sentences can stand as "a useful guide". With respect to those who have thought otherwise, I have come to the view that the proposition that the Wong and Leung guideline sentences continue to operate as "a useful guide" cannot withstand scrutiny.

[91] I would therefore reject the Crown's submissions that the sentences propounded in Wong and Leung provide, even with appropriate modifications, in recognition of pleas of guilty, and the repeal of s 16G, any guidance in sentencing under s 305.3.

24 With great respect to those constituting the Court in R v Nguyen; R v Pham , a reading of the majority judgment in the High Court in Wong v The Queen (2001) 207 CLR 584 justifies the view of the Court in R v Cheung and Choi. The better course, which I have followed, is to have regard to the cases collected by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.

25 An examination of the cases that may be regarded as most analogous to the present case amongst those collected by McClellan CJ at CL provides no basis for the Applicant's submission that his sentence was manifestly excessive. Most of these have been usefully summarised by Kirby J (with whom Beazley JA and Johnson J agreed) in Regina v Nikolovska [2010] NSWCCA 169 at [74] as follows:

R v Mirzaee [2004] NSWCCA 315

Plea of guilty (25%).

578 g heroin.

57 year old courier, Iranian.

Heart condition.

Sentenced to 9 years imprisonment, with NPP 4.5 years.

R v Pham [2005] NSWCCA 314

Plea of guilty (25%).

244.6 g heroin.

Low level importer.

Male 27 from Vietnam.

Serious mental condition.

Sentenced to 8 years imprisonment, with NPP 4.5 years.

Mohlasedi v R [2006] WASCA 267

Not guilty plea.

Importation of 1.146 kg of heroin of high purity.

Male born in Soweto.

Member of an airline cabin crew.

Aware that he was carrying drugs.

Sentenced to 18 years imprisonment, with NPP of 10 years.

Le v R [2006] NSWCCA 136

Plea of guilty (25%).

117.6 g heroin.

40 year old courier born in Vietnam.

Extreme hardship in childhood, no formal education.

Problem with gambling.

Recruited by lender to discharge debt.

Sentenced to 7.5 years imprisonment, with NPP 5 years.

Teehan v R [2006] NSWCCA 401

Guilty plea (20% discount).

601.6 g cocaine.

Not principal, but important and significant role.

Male 27, no prior offences.

Sentenced to 10 years 9 months imprisonment, with NPP 6 years.

R v Tran [2007] QCA 221; (2007) 172 A Crim R 436

Plea of guilty.

1.473 kg heroin.

41 year old courier.

Did not know, but suspected drugs.

Sentenced to 10 years imprisonment, with NPP 5 years.

Mirza v R [2007] NSWCCA 257

Plea of guilty.

313.7 g heroin.

Courier, but left country for the purpose of importing drugs, which was an aggravating feature.

37 year old male - gambling and depression problems.

Sentenced to 9 years imprisonment, with NPP 5 years.

R v Huynh (2008) 180 A Crim R 517

Plea of guilty.

108 g heroin.

No finding as to role.

41 year old female from Vietnam.

Gambling addiction, two children.

Acted to discharge gambling debt.

Sentenced to 6 years imprisonment, with NPP 4 years.

R v Jimson [2009] QCA 183

Plea of guilty.

1.689 g cocaine.

Female courier.

Family in Malaysia - isolation, limited education.

Sentenced to 8 years imprisonment, with NPP 4.5 years.

26 R v Mokoena [2009] QCA 36 (also mentioned in De La Rosa ) is relevant. The offender in that case was 29 years of age. He was charged with importing 891.6 grams of brown powder which yielded 497.5 grams of pure heroin. He was a courier who had undertaken to import the drugs to obtain money to support his wife, children and elderly grandmother in South Africa. He was HIV Positive. He was sentenced to 9 years imprisonment with a non-parole period of 4 years and 9 months. The Queensland Court of Appeal dismissed his application for leave to appeal against the sentence. He pleaded guilty at the first opportunity but it was not made clear what discount he received for that plea.

27 In Nikolovska the offender pleaded guilty to importing 1.431 kilograms of pure cocaine. She was sentenced in the District Court to imprisonment for 6 years with a non-parole period of 3 years and 9 months. In the Crown appeal against the inadequacy of that sentence the Court increased the sentence to one of 7 years 6 months with a non-parole period of 4 years and 9 months. She was found not merely to have been a courier but because her position was a controls analyst with Qantas with a security clearance giving her access to imported goods in a secure area she was regarded as being in a higher position in the chain.

28 In Tyn v R [2009] NSWCCA 146 the Applicant was sentenced for importing a marketable quantity of heroin being 332 grams of powder containing 242.3 grams of pure heroin. She was sentenced to 6 years imprisonment with a non-parole period of 3 years and 9 months. She was recruited in Australia to travel to Vietnam and return carrying the heroin. She received a discount of 25% in recognition of her plea of guilty and a further reduction of 33% in recognition of cooperation with the authorities. The notional starting point of 12 years (the sole ground of appeal said that that starting point was manifestly excessive) was held not to be outside the Judge's sentencing discretion although at the top of the available range.

29 It can be seen in particular from De La Rosa (notional starting point of 10 & 2/3 years), Pham (notional starting point of 10 & 2/3 years), Le (notional starting point of 10 years), Teehan (notional starting point of 13.6 years) and Tyn that the notional starting point of 11 years in the present case was within the range of appropriate sentences.

30 The Court in SZ v Regina [2007] NSWCCA 19 and in Rutkowskyj v R [2008] NSWCCA 10 has held that the focus in a sentence appeal must be the sentence actually imposed rather than the notional starting point. If that is the correct approach (see the comment on this in Tyn at [34]), it can be seen from the various cases referred to above that a non-parole period of 4 years and 8 months itself was well within the range of sentencing discretion.

31 In relation to the further submission of the Applicant that the amount of the drug was but one of the features to be taken into account when assessing criminality, the sentencing judge acknowledged that principle by saying:

The quantity of the drug imported is one of the many factors to be taken into account on sentence.

Conclusion

32 In my opinion, it has not been shown that sentence was manifestly excessive. I propose the following orders:

(1) Leave to appeal granted.

(2) The appeal is dismissed.

33 Grove AJ : I have read in draft form the judgment of Davies J and I agree with the orders which he proposes.

34 In his Honour's reasons he draws attention to the contrasting views about the continued utility of the range of sentences specified in R v Wong & Leung (1999) 48 NSWLR 340 (in the light of the appeal in that case to the High Court) expressed by differently constituted benches of this Court in R v Nguyen & Pham [2010] NSWCCA 238 and R v Cheung & Choi [2010] NSWCCA 244 respectively. This contrast was not the subject of argument in the current appeal nor were submissions made on the point. It is not necessary to resolve the apparent difference of view to dispose of this appeal and I would not, as Davies J has, express a preference for one of them. I consider any resolution should await an instance where it is necessary so to do and the Court receives appropriate submissions in that regard.

**********

Decision last updated: 23 May 2011