R v Alvarez[2000] QCA 290

DAVIES JA:  The applicant, who is 28 years of age, was sentenced in the Supreme Court on 14 March this year to eight years imprisonment with a fixed non-parole period of three and a half years for the offence of importing into Australia a substantial quantity of cocaine.

The declaration was made also that 408 days pre-sentence custody be taken as time served under the sentence.  The applicant seeks leave to appeal against that sentence.

The amount of cocaine which the applicant imported was 1270.8 grams of pure cocaine within 1920.8 grams of powder.  It had a potential street value of 1.5 million dollars.  She brought it in in a suitcase.

The circumstances in which the offence arose are as follows The applicant first came to Australia from Thailand on 10 February 1995 and in June 1998 married her husband, who was then a Colombian citizen.  In September 1998, she and her husband went to Thailand where they spent some time with her family and then to Equador and Colombia where they also resided for a time.

There she became pregnant and it was said it was because of her pregnancy that she returned to Australia on 1 February 1999, the day of the offence.

The learned sentencing Judge accepted that she agreed to bring the drugs into Australia out of loyalty to her husband.  He gave them to her shortly before her departure from South America.  That was in accordance with a submission which was made to his Honour by counsel on the applicant's behalf on the sentence hearing.  Counsel said that she did it out of a sense of loyalty and a belief that she was in love with her husband, and a belief that she should obey her husband.

However, his Honour thought with some justification that that consideration should not weigh significantly in the balance in this sort of crime by which his Honour plainly meant one of such seriousness with the potential to have such devastating consequences.

When first apprehended, the applicant gave a fabricated story to police and entered a late plea of guilty.  Nevertheless his Honour rightly took the plea into account in imposing the non-parole period which he did.  His Honour also took into account in the applicant's favour that imprisonment would make matters more difficult for her and for her young child whom she has since borne than it would be for someone without such a young child.

However his Honour pointed out that it was not a question of whether there should be a gaol sentence or not, and that it was not a matter which required substantial leniency.  In the circumstances which I have mentioned, there could not be any doubt about the correctness of his Honour's sentence of eight years imprisonment.  Indeed it was submitted on the applicant's behalf before his Honour that such a sentence was appropriate and the contrary was not contended for by Mr Kimmins before this Court.  Rather it was submitted that the non-parole period imposed was too long.

Before the learned sentencing Judge, the applicant's counsel had contended for a non-parole period of two and a half to three years.  Before this Court, the contention on her behalf is that it should have been two years to two years eight months.

Mr Kimmins put forward five bases upon which he submitted that should be so.  Five matters which he said required reduction of an otherwise appropriate sentence.

The first was that the applicant had no previous convictions.  As I said during the course of argument, that is so in almost every case of drug importation.  In fact, that is why couriers are selected.

The second, Mr Kimmins said, was that she was under the domination or influence of her husband.  That submission, in my view, is inconsistent with the submission which his Honour rightly accepted, that she did this out of a sense of loyalty and a belief that she was in love with her husband rather than because of any domination.  But it is correct to this extent, that she at least had some influence imposed on her in the sense that he was plainly a drug dealer and he had asked her to do it, and she felt out of a sense of loyalty and love that that is what she should do.

The third factor is the guilty plea to which I have referred, but as I mentioned also, she initially gave a fabricated version of events and the plea was a late one.  That is not to say that it should not be taken into account, but it is that no great reduction should be given for it.

The fourth matter was that she has no relative or family in Queensland.  She has in Australia only an uncle in Sydney.  And the fifth, of course, is the presence of the young child which no doubt is a burden for her and is a burden for the young child.  It is a matter which ought properly to be taken into account under section 16A(2)(p) of the Crimes Act and was so taken into account by the learned sentencing Judge in the manner in which I have indicated.

Mr Kimmins referred us really only to two cases, Clark, (1996) 90 Australian Criminal Reports 1, which Mr Kimmins sought to distinguish because that was a case in which domination influence was raised, but really not accepted by the Court.  But it is rather similar to this case in the sense, in my opinion, that it was at most a very minor factor and there is no doubt that the applicant would have benefited from the successful completion of her crime.

The other case to which Mr Kimmins referred us is Le, in relation to the child.   That is a decision of this Court also in 83 Australian Criminal Reports 428.  And as Mr Justice Thomas said in that case, while the birth of a child in this case can evoke sympathy at the hardship and distress involved in having and caring for a child in prison, it cannot overwhelm the seriousness of the offence in this case of bringing into Australia one and a half million dollars worth of very serious drug, which would have had, as I said earlier, devastating consequences.  In my opinion, for the reasons I have already mentioned, the sentence which was imposed was within the range.

I should also add that Mr Kimmins in his written outline, though not in the submissions he made here, sought to put forward an argument about proportionality of, that is, the proportion to which the non-parole period should bear to the sentence, and by comparing the proportion in this case to that in some other cases, sought to draw an inference that the non-parole period here was too long.

In my view, that is not a correct approach to the adequacy of a sentence which can only be arrived at in my opinion by looking at the overall sentence.  By that I mean the term imposed and the non-parole period, because in one case a factor may be taken into account in reduction of a sentence, in another that factor may be taken into account in the non-parole period imposed.

For the reasons I have given, the sentence in my view was well within range, and I would refuse the application.

THOMAS JA:  I agree.

MULLINS J:  I agree.

DAVIES JA:  The application is refused.