R v Kaufusi & Moala[1998] QCA 294

[1998] QCA 294

COURT OF APPEAL

McMURDO P

PINCUS JA

MACKENZIE J

BRISBANE

DATE 07/08/98

JUDGMENT

MACKENZIE J:  Each applicant seeks leave to appeal against the sentence of eight years' imprisonment with a non-parole period of three years imposed on him for importing cocaine above the trafficable quantity.  Both argue that the head sentence and the parole eligibility date are manifestly excessive and in the written documents that were provided to us they submitted that a six year head sentence and a two year non-parole period was appropriate.

Each applicant arrived in Australia on a flight from Fiji.  They both declared that they were not carrying illicit drugs but were selected to have their baggage searched.  When those searches proved negative they were asked if they were carrying drugs on their bodies which they denied.

Upon being searched they were found each to have two packets of cocaine strapped to each of their thighs.  Each had been recruited in Salt Lake City to act as a drug courier, their motivation being monetary gain, although the amount to be paid was very small in comparison with the value of the goods.

The applicant Kaufusi was carrying a total of 1,143 grams of powder, 33.7 per cent of which was cocaine giving a net weight of 384.8 grams.  That is 192 times the trafficable quantity.  The street value was estimated at about $277,000. 

The applicant Moala had 1,032.6 grams of powder, 39.1 per cent of which was cocaine.  The 403.7 grams of cocaine was 201 times the trafficable quantity.  The estimated street value was $295,000.  It is, of course, notorious that figures like that are only indicative, but even allowing for some variance in those figures the value of the cocaine was potentially very high.

Mr Kaufusi was 24 years old at the time of the offence. Mr Moala was 35.  Neither had any previous convictions and each pleaded guilty on an ex officio indictment, thereby saving the State the expense of a trial.

The sentencing Judge took these matters into account as well as the disadvantages likely to be suffered by being prisoners who were not Australian nationals and separated from their family, friends and other support. 

In the written material that was provided to us, the applicant Kaufusi referred to the fact that he was 24 when first arrested, that he was a foreign national prisoner, making his incarceration much harsher without family, friends and support.  He also pointed out that he did not qualify for community based programs and he said that he had cooperated with the authorities when first arrested.  He gave details of the work he has done while in prison as a tutor of young offenders in literacy studies and as co-chairman of the Buddy Inmate Support System.  He says that his behaviour has been good and he has had good reports from management and he stresses that he is remorseful for what he has done. 

By way of other personal circumstances, he referred to the fact that both of his parents are in poor health and that he has custody of one of his children of a previous marriage.  That child is now being looked after by his fiancee and he is concerned for the effects of extended imprisonment in this country in respect of the dynamics of the family. 

The applicant Moala also referred to his problems as a foreign national in a prison away from his home country and that he did not qualify for community based programs either.  He has worked in the kitchen for most of the time that he has been in Arthur Gorrie Correctional Centre and says that he was also helping young offenders with activities in awareness of the gaol system.  He stresses his personal remorse and the fact that his imprisonment here has been extremely hard on his wife who is at the moment now dependent on the welfare system.

The matters that have been raised here are essentially those that were put before the sentencing Judge with some updating as to the fact that they have been useful rather than otherwise while in the prison system and that, of course, is to be commended.  However, what we are concerned with today is whether the sentence that was imposed by the learned trial Judge was manifestly excessive and the matter must be looked at having regard to what has been done in other cases. 

Senior Counsel who appeared for the applicants in the Trial Division submitted that a head sentence of seven years with a non-parole period of two to two and a half years should be imposed.  The sentence actually imposed was not markedly different being eight years with a recommendation after three years. 

The learned sentencing Judge reached this conclusion after extensive analysis in submissions before him of the Queensland and interstate cases on the subject.  He referred to a factor which was significant in the case of Bettany and Dunleavy, to which the applicants referred, that the young age of an offender often results in a more lenient sentence than might otherwise have been imposed. 

Bettany was only 18 at the time of his offence and Dunleavy was 20.  Dunleavy also played a lesser part than Bettany and he went to trial on the basis that he did not know what was contained in the frame of the bicycle which had collected and transported to Brisbane.  I therefore think that Bettany and Dunleavy is not of much assistance to the applicants in establishing that their sentences were manifestly excessive. 

Reference was also made to a case of Latu which was a matter dealt with also by Mr Justice Helman two days after the present applicants were sentenced.  Latu, it was pointed out, had brought in almost twice as much cocaine and it was significantly purer than that which was carried by the applicants.  However, a very similar modus operandi was used and the learned sentencing Judge was persuaded to act on the basis that because he was a courier it was the gross weight that was the significant figure rather than the weight of the pure cocaine.

The point about that, I suppose, was that he acted on the view that because the actual amount and purity that was brought in was beyond the control of the couriers it was the fact of the importation of similar packages that was a factor that did not differentiate Latu's case in any material way from the case of the present applicants.

Mrs McGinness submitted that, in fact, rather than being manifestly excessive, the sentences imposed on the applicants was at the bottom end of the range.  She referred to Moreno where 294 grams were imported and the sentence was nine years with a non-parole period of four years.  It was submitted by Mr Kaufusi that this was a more sophisticated operation, but the fact is that even if that be so the sentence was higher than that against which the application has been brought.

There is also the case of Jelks where 404 grams was brought in.  It was submitted by Mrs McGinness that that was not a dissimilar case and that carried a sentence of 13 years imprisonment to serve five. 

Stenovitch involved 390 grams; the sentence was 12 years to serve five.  It was pointed out by Mr Kaufusi that Stenovitch had apparently been a frequent traveller to Australia with the inference that he had been involved on other occasions in couriering drugs to the country.  The sentence in his case was substantially more than that complained of in this case. Mrs McGinness submitted that in no way could the sentences imposed in this case be considered to be manifestly excessive.

Having read the material that is in the record and in the submissions and listened to submissions today it is my opinion that the sentences imposed by the learned sentencing Judge are within the proper range and are not manifestly excessive and therefore in each case the application for leave to appeal should be refused.

THE PRESIDENT:  I agree.

PINCUS J:  I agree.

THE PRESIDENT:  The order is that the application for leave to appeal against sentence is refused.