R v Bala[2000] QCA 436

COURT OF APPEAL

DAVIES JA

MACKENZIE J

HELMAN J

CA No 208 of 2000

THE QUEEN

v.

AL M THOLASI T BALA Applicant

BRISBANE

DATE 20/10/2000

JUDGMENT

MACKENZIE J: This is an application for leave to appeal against the sentence of 15 years' imprisonment with a parole order after seven years for an offence of importing a prohibited import, heroin, into Australia.

The applicant, who is of Malaysian national of Indian descent, arrived at Brisbane International Airport on a flight from Kuala Lumpur stating that he was here for holiday purposes. The suitcase accompanying him was selected for examination by the customs officer. He admitted in answer to the conventional questions that he had packed the bag and that the contents were his.

When the suitcase was opened there was a strong smell similar to glue. When the contents were examined there was nothing to suggest that he was a tourist. When the bag was emptied it was found to be unusually heavy. After an X-ray revealed an unusual image, the fabric lining was removed. Under a metallic looking plate there was white powder which proved to be heroin.

When the accused was questioned he said he bought the suitcase at a supermarket. He denied arranging to meet anyone on his arrival in Australia. On further examination of the suitcase a false lining made of plastic attached to the base of the suitcase was removed. In all, heroin, 76.1 per cent pure, of the net weight of 2.112 kilograms was retrieved. The commercial quantity of heroin for the purpose of the Customs Act is 1.5 kilograms.

It was estimated that if sold at street weights of 16 per cent purity the heroin would have been worth in excess of $4 million. The benefit to the applicant which lured him to commit the offence, so far as it appears from the material, was a promise by a man who paid the applicant's fare to Australia and gave him the suitcase, to help him to obtain work and a visa in Australia.

The applicant had worked in Malaysia as a commission agent for the Department of Transport and as a cab driver. He has a wife and family and has care of a disabled brother. He is 31 years old and there was no evidence that he had previous convictions. There was a full hand-up committal and an early plea of guilty. He can speak a little English but appears to be trying to improve his skills in that regard while in prison.

On behalf of the applicant, it was submitted that a head sentence of 15 years was excessive in the circumstances and that insufficient weight was given to the plea of guilty and his personal circumstances in fixing a non parole period.

The sentencing Judge had observed that the prosecution case was overwhelming and it was conceded in the written outline by the applicant's counsel that there was authority that a plea of guilty in such circumstances cannot be expected to produce the same level of discount as in other cases; the Queen v. Chai and Lim, Court of Appeal No 65 and 76 of 1998.

However, it was submitted that there should be sufficient recognition of the plea of guilty and other cooperation with the administration of justice. It was submitted that the sentence that should have been imposed was one of 14 years' imprisonment with a non-parole period of five to six years with a final preference in the written submissions for five years.

The prosecution submitted that the sentencing Judge had taken into account the fact that the applicant was the provider for an extended family and that his absence had led to hardship. She had also noted that there was a hand‑up committal and a plea of guilty. She had correctly assessed the range of sentencing as between 14 and 16 years' imprisonment and had noted that there was no suggestion of any cooperation by the provision of information to the authorities, notwithstanding the other cooperation. The record shows that after taking legal advice the applicant declined to speak further about the matter.

The sentencing Judge had also observed that the discount on sentence arising from a plea of guilty could not be substantial in the case where the applicant was caught redhanded. The prosecution relied on the seriousness of the particular offence in justification of the head sentence. It was submitted that even low levels of involvement in an offence of that magnitude must attract a significant sentence. It was submitted that general deterrence was of paramount consideration in cases of this kind since without people who are willing to be couriers the flow of drugs would be inhibited.

The schedule of sentences imposed in Queensland Courts for this kind of offence supports the range relied on by the sentencing Judge. The sentence clearly falls within range. The head sentence cannot, in the circumstances, be held to be manifestly excessive. The order for release on parole is, in my view, consistent with principle. The period which the prisoner must spend in custody before being released on parole under an order in this kind of case will, no doubt, vary according to the sentencing Judge's assessment of a range of matters including those which the sentencing Judge took into account in this case.

Although the order is made under the Crimes Act, by analogy with the principles supplied in cases where the offender is charged under State Legislation, allowance has been made for the factors in the applicant's favour. The result achieved by the head sentence and the parole order is identical to that in Chai which is quite similar factually as well.

In my opinion, it is not demonstrated that there was any error of principle in the sentencing Judge's approach to the matter. There is no basis for concluding that there has been an error in principle in fixing the non parole period and it cannot be otherwise regarded as manifestly excessive. In all of the circumstances the application for leave to appeal against sentence should be refused.

HELMAN J: I agree.

DAVIES JA: I agree. The application is refused.