The Queen v Gretton[1997] QCA 485

DOWSETT J:  The applicant was born on 20 June 1959 and is therefore presently aged 38 years.  On 18 November 1994 he arrived in Brisbane from Indonesia on an international flight and was identified in a random way for a baggage examination.  In the course of this examination a substantial quantity of heroin was found concealed in his baggage.  The heroin was in a number of small parcels totalling in weight 700 grams, including the weight of the packaging.  The powder, when analysed, yielded a result which indicated that there was 536 grams of pure heroin involved in the importation.

The applicant subsequently consented to what is described as a hand-up committal and indicated an intention to plead guilty.  However, subsequently, he absconded whilst on bail and was only re-apprehended as a result of his case having been featured in a television program.  He was found in Cooktown, arrested and dealt with.

He stood by his indication of an intention to plead guilty and at his trial he was sentenced to imprisonment for a period of 15 years.  Because the matter was a Commonwealth matter, the sentencing Judge was required to fix a non-parole period, and he fixed the period of seven years and six months.  He had previously spent 62 days in custody in connection with the offence.

The applicant had a not insignificant criminal history dating back to 1978, although the first offence was a minor one.  From 1989 on, he was involved in a number of incidents of criminal misconduct including offences related to drugs and also offences of dishonesty, in particular breaking and entering and attempted breaking and entering.  He was sentenced to imprisonment on three occasions in connection with offences of dishonesty and, on one occasion, in connection with a drug-related offence.

Although his record is not a lengthy one by some standards, it is not possible to consider him as having been a person of good character prior to his apprehension on this occasion.  In particular, it is important to note that he had convictions both for offences of dishonesty and for drug-related offences.

The sentence, in connection with which application for leave to appeal is made, appears to have been consistent in most respects with two previous decisions of this Court, one being Nguyen in which the Court was concerned with a 41 year old woman convicted after a trial on a count of importation.  There appears to be some uncertainty as to the quantity actually involved in that case but, as I understand it, the quantity involved was 630.5 grams gross yielding 455 grams pure heroin.  She was sentenced to imprisonment for a period of 16 years with a non-parole period of seven and a half years.  The offence, of course, was the same as the present one.

Counsel for the applicant suggests that the case should be distinguished for present purposes, firstly, because the accused pleaded not guilty in that case and, secondly, because it is said that she was higher in the distribution chain than was the present applicant.  That assertion appears to be based upon some evidence suggesting that she recruited other people to assist in importation.

The second relevant case is the decision in Abouchedid where the prisoner was convicted of importation, the quantity being 490 grams gross and 372.4 grams pure, somewhat less than in the present case. 

He was sentenced to 14 years and four months imprisonment, having previously spent eight months in custody.  The non-parole period was fixed at seven years.  The similarity of approach in the present case is obvious.  In that case Mr Justice Davies said:

"In the end I have come to the conclusion that the sentence which was imposed in this case, although towards the high end of the range, was not beyond the exercise of a sound discretionary judgment and I would therefore refuse the application."

The applicant seeks to distinguish that case solely upon the basis that the plea was of not guilty and the matter went to trial.

In argument before us, counsel for the applicant has conceded that the head sentence of 15 years is probably within the range although perhaps towards the higher end of it.  He argues, however, that the fixing of the non-parole period at seven and a half years is manifestly excessive to the extent of at least 18 months, largely because it does not give an appropriate recognition to the fact that the applicant pleaded guilty and indicated at an early stage that he would do so. 

If the matter were as simple as that, I would be inclined to accede to that view.  However, there is also the fact that he absconded after indicating an intention to plead guilty.  Further, his willingness to plead must be seen in the light of the case as a whole. 

By that I mean that the case was an open-and-shut case from the Crown's point of view and it is difficult to see how any more than a day or perhaps at the most, two days could have been taken up in such a trial.

Mr Glynn says on behalf of the applicant that such is always the case with couriers, and that may well be so, but there is a limit to the extent to which couriers can expect to get special treatment.  The fact that couriers usually have strong cases against them does not, I think, detract from the observation made by the learned sentencing Judge that the case against this particular person was a very substantial one and that little purpose would have been served by his not pleading guilty.

Even in light of this I would have, I think, considered it appropriate to give greater reflection to the plea than was given were it not for the second consideration to which I have referred - namely the fact that he absconded.  By so doing he disrupted the criminal process and although it is asserted to the contrary, it is inevitable that additional cost must have been incurred in apprehending him and returning him to Brisbane.

In those circumstances, although I consider the sentence and the recommendation to be at the higher end of the appropriate range, I do not consider that either aspect was beyond an appropriate exercise of the sentencing discretion.  I would refuse the application for leave to appeal.

DAVIES JA:  I agree.

HELMAN J:  I agree.

DAVIES JA:  The application is refused.