R v Labanon; ex parte Director of Public Prosecutions (Cth)
[2006] QCA 529
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- R v Labanon; ex parte Director of Public Prosecutions (Cth)[2006] QCA 529
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R v Labanon; ex parte Director of Public Prosecutions (Cth)[2006] QCA 529
R v Labanon; ex parte Director of Public Prosecutions (Cth)[2006] QCA 529
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by Cth DPP |
ORIGINATING COURT: | |
DELIVERED ON: | 8 December 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 November 2006 |
JUDGES: | de Jersey CJ, McMurdo P and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1.Appeal allowed 2.Sentence imposed at first instance is set aside and instead respondent is sentenced to imprisonment for eight years with a non-parole period of four years 3.Declare that 345 days of pre-sentence custody was served between 8 June 2005 and 18 May 2006 |
CATCHWORDS: | TAXES AND DUTIES - CUSTOMS AND EXCISE - PENAL PROVISIONS - OFFENCES - PROHIBITED IMPORTS - SPECIAL PROVISIONS WITH RESPECT TO NARCOTIC GOODS - POSSESSION OF PROHIBITED IMPORTS REASONABLY SUSPECTED OF HAVING BEEN BROUGHT INTO AUSTRALIA IN CONTRAVENTION OF ACT - where respondent and two co-offenders were convicted of importing methylamphetamine - where respondent was a serving petty officer on a US warship - where warship travelled to Darwin and then docked at Townsville where respondent left ship with drug packages in a carry bag - where respondent then met with one co-offender, his supervisor on the ship, and gave him the bag, receiving in exchange another bag containing money - where respondent was sentenced to six years imprisonment with a non-parole period of three years - where jury reached a special verdict finding that respondent did not knowingly import illegal narcotics but recklessly did so - where the primary judge took this special verdict into account when sentencing - where appellant contends that sentence is manifestly inadequate and that judge erred in giving undue weight to jury's special verdict - whether the judge did so err - whether the sentence imposed adequately reflected the importance of deterrence in this offence Customs Act 1901 (Cth), s 233B(1)(a)(iii) Everett v The Queen (1994) 181 CLR 295, cited Kural v The Queen (1987) 162 CLR 502, cited R v Bimahendali (1999) 109 A Crim R 355, cited R v Katia; ex parte A-G (Qld) [2006] QCA 300; CA No 111 of 2006, 22 August 2006, cited R v Quick; ex parte A-G (Qld) [2006] QCA 477; CA No 277 of 2006, 17 November 2006, cited |
COUNSEL: | W J Abraham QC for appellant A J Rafter SC for respondent |
SOLICITORS: | Commonwealth Director of Public Prosecutions for appellant Purcell Taylor for respondent |
[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of McMurdo P. I agree with the orders proposed by Her Honour, and with her reasons.
[2] McMURDO P: The respondent Andrew Lester Labanon was convicted after an eight day trial of importing prohibited imports namely narcotic goods consisting of methylamphetamine being not less than the commercial quantity under s 233B(1)(a)(iii)[1] Customs Act 1901 (Cth). The jury were asked for a special verdict and concluded that their guilty verdict was not on the grounds that he knowingly imported illegal narcotic drugs but that he acted recklessly in doing so, that is, that he was aware of a substantial risk that the goods that he was bringing onshore were narcotic drugs and that it was unjustifiable for him to take the risk of bringing them onshore having regard to the circumstances known to him.[2] He was sentenced to six years imprisonment with a non-parole period of three years. A pre‑sentence custody declaration was made. The appellant the Commonwealth Director of Public Prosecutions contends that the sentence is manifestly inadequate and that the judge erred in giving undue weight to the jury's special verdict.
[3] The co-offender Daniel Maio pleaded guilty at the end of the fourth day of the trial. The co-offender Mehdi Mohammadi was convicted of knowingly importing the drugs and sentenced to 14 years imprisonment with a non-parole period of seven years. Maio was sentenced to 12 and a half years imprisonment with a non-parole period of five years nine months.
[4] Labanon was a serving petty officer on the US warship USS Boxer. The Boxer visited Townsville on 8 June 2005 having travelled from abroad but after first visiting Darwin. It was admitted that the Boxer was a public vessel owned or operated by a foreign state and engaged in government business and so was not subject to the usual customs scrutiny having entered Australia for "liberty" purposes.[3]
[5] On 8 June 2005 Labanon was seen on board the Boxer packing a blue carry bag which contained a number of packages and some of his laundry. He left the ship with his "liberty buddy", petty officer Jonathan Brust. After clearing security at the wharf, Labanon and Brust travelled to the Seagulls Resort on The Esplanade at Townsville. On the way Labanon received or made a telephone call in which he discussed "liberty leave" policy with the caller. They both checked into a room at the resort. Labanon left carrying the blue bag. He told Brust that he needed to take care of his laundry.
[6] Labanon's co-offender Maio, a chief petty officer on the Boxer, had been on leave from the ship since Christmas 2004. On 4 and 5 June 2005 Maio flew from Manila to Brisbane via Sydney. He was met in Brisbane by a third co-offender, Mohammadi. The evidence at trial did not suggest Labanon and Mohammadi had any direct contact. Maio and Mohammadi travelled to Mohammadi's home on the Gold Coast. On 8 June 2005 they flew from Brisbane to Townsville where Mohammadi hired a motor vehicle. They travelled to the Seagulls Resort but did not book in, proceeding instead to the Raintree Motel where they booked into a double room. Mohammadi paid for the flights and accommodation. At about 2.40 pm that day Labanon was seen in the company of Maio at the Raintree Motel. He was seen walking from Maio's room carrying a green bag. He was videotaped by Australian Federal Police ("AFP") officers. At 4.00 pm he made a phone call and travelled by taxi to the Seagulls Resort where he met up with Brust. He told Brust he had to take his laundry somewhere else and that he had bought some pornography; Labanon did not mention that he had met or intended to meet up with Maio. They rang for a taxi.
[7] As they entered the taxi they were intercepted by AFP officers. Labanon was in possession of a mobile phone and a roll of money ($US10,000) secured by a rubber band. He was evasive when asked about the money. A search of his room at the resort located a green carry bag. Earlier, Mohammadi was seen in possession of a similar green carry bag. Labanon told police that Maio had been his "boss" on the Boxer. Maio had been on leave since February and contacted him by phone and email with instructions to take a blue sea bag containing three brown paper packages from the Boxer and deliver it to him in Townsville. The blue bag had been stored in a radar dome on the ship. He delivered the bag to Maio at the Raintree Motel as requested and was given the green bag to carry his jacket. Maio told him he was going south and gave him $US10,000 saying "have some fun". He did not expect payment and had not counted the money. He said that he had told Brust he was going to meet Maio.
[8] Labanon agreed to participate in a police record of interview. He elaborated on the information he had earlier given police. He explained that Maio was a supervisor who had left the ship because of a shoulder injury. Maio said he had personally left the bag on the ship and asked Labanon to deliver it to him in Townsville. Maio had not told him what was in the packages or bag. He agreed he did not mention to Brust that he was going to see Maio. He spoke to Maio whilst he was in the taxi on the way to the Seagulls Resort. When Maio gave him a bundle of cash he thought it was a few hundred dollars. Only when the police officers counted the money in front of him did he realize how much was there. He had not expected payment for delivering the bag. He had not told Brust or anyone in his team that he had seen or was seeing Maio because it offended naval fraternization rules and because Maio had asked him not to.
[9] Maio and Mohammadi were intercepted by AFP officers 25 km south of Townsville. The three packages which Labanon gave to Maio in a blue carry bag were located in their possession. The packages had been gift wrapped.
[10] The drugs were later analysed by the Australian Government Analytical Laboratory and found to be 74.6 per cent pure methylamphetamine indicating that 7.314 kg of pure methylamphetamine had been imported. Its wholesale value was estimated at between $1.5M and $1.6M and its street value at between $3.9M and $10M.
[11] The prosecutor at sentence referred the judge to a number of sentences imposed in cases involving importation of narcotics other than methylamphetamine but conceded that none involved a reckless rather than a knowing importation. The prosecutor conceded that Labanon's culpability must be at a much lower level because of the jury's verdict as to recklessness than if he had been convicted of knowingly importing the drug. The prosecutor submitted the appropriate head sentence for all three offenders was up to 16 years imprisonment but that in Labanon's case because of the special verdict a head sentence of no less than 12 years should be imposed with a non-parole period after about five or five and a half years imprisonment. A more lenient sentence was not appropriate because Labanon did not have the mitigating benefit of a plea of guilty.
[12] Labanon's counsel at sentence emphasized that Labanon was 39 years of age and had no prior convictions. He was married with three children aged 15, 14 and a baby whom he has never seen. His remand in custody after his arrest has meant that his wife in the USA has carried the full financial responsibility for the family and is currently facing bankruptcy. He left school and entered the workforce at 13. He joined the US Navy in 1987 and had served there for 18 and a half years, working his way up through the ranks to Petty Officer level PT6 and instructor. He was an electronics technician working with radar maintenance. Because of his conviction and sentence he will be dishonourably discharged and will lose his retirement superannuation, medical and veteran's benefits. Prior to this conviction he had a commendable naval service record: he received numerous good conduct awards and medals; sea service deployment ribbons for deployment on active duty; armed forces expeditionary medals for services in a war-like zone on special tasking beyond the intent of the deployment; an efficiency in service award; the Navy and Marine Corps achievement medal (the second highest achievement award available); the National Defence Service medal for deployment in the second Iraq conflict; a meritorious unit commendation presented by the Admiral of the fleet; a letter of commendation from his commanding officer for his work as an instructor in the Maintenance Technician course; a citation from the Commander of the US Navy for commendable service as a technician; and an enlisted surface warfare specialist certificate.
[13] Defence counsel submitted that the US Navy may take further action against Labanon once he was released from prison in Australia. He emphasized that Labanon worked under Maio on the Boxer and also regarded him as a mentor who had counselled him on personal matters. He submitted that the appropriate sentence should be in the range of one-third to one-half of the sentences imposed on the co‑offenders because of the special verdict. He repeated his instructions, that Labanon received the $US10,000 on the basis that he was to send it home to Maio's wife and that it remained Maio's money, but frankly acknowledged that Labanon did not tell this to police in his record of interview. He contended that, in any case, there was no suggestion that Labanon knew he was to receive $US10,000 before committing the offence. His exercise of his right to trial was vindicated by the special verdict in his favour.
[14] In sentencing the judge referred to the large quantity and high purity of the drug and the need for condign deterrent sentences. He noted Maio's very late guilty plea, that he considered him to be a principal in the enterprise and sentenced him to 12 and a half years imprisonment with a non-parole period of five years and nine months. His Honour considered Mohammadi also to be a principal in the enterprise and that there was not a great deal to be said in his favour. He sentenced Mohammadi to imprisonment for 14 years with a seven year non-parole period.
[15] In sentencing Labanon to six years imprisonment with a non-parole period of three years his Honour noted the significance of the jury's special verdict and that this was a very important distinction between him and his co‑offenders. Nevertheless, without his reckless role the drugs could not have been brought into Australia, and the danger signs should have been obvious. Maio was Labanon's superior and Maio had asked him for a favour. It was unclear what if anything Labanon was to receive for this favour but his Honour rejected the suggestion that the $US10,000 subsequently received was to be sent to Maio's wife. Determining the sentence in Labanon's case was "problematical"; serious though his conduct was, it was far less culpable than if he had been convicted of knowingly importing the drugs. His Honour also took into account the serious consequences which would flow from Labanon's conviction in terms of his loss of naval career and entitlements.
[16] Senior counsel for the appellant, Ms Abraham QC, conceded that appeals against sentence by the Crown should only be granted in rare circumstances[4] but contends that this is such a case because the sentence was manifestly inadequate, failed to reflect the criminality of Labanon's offending and placed undue weight on the special verdict. The judge rightly observed that the danger signs should have been obvious to Labanon. He collected three packages wrapped in brown paper on behalf of Maio who had not told him what was in them but still wanted them even though he had not been on board the Boxer for many months; the packaging was inconsistent with them being merely personal items; the email contact made between them was conducted on Labanon's personal email system outside the scrutiny of the naval email system and was done in a way which suggested an attempt to avoid communication over the internet which might have been intercepted; Maio instructed Labanon not to tell others that he was meeting him to hand over the packages; Labanon placed clothing over the packages to conceal them when leaving the ship; he did not tell Brust he was meeting Maio and actively misled him. Ms Abraham submitted that the fact that Labanon acted recklessly does not detract from the proposition that general deterrence is of particular importance when sentencing for this offence. The maximum penalty was life imprisonment and/or a fine not exceeding $825,000 regardless of whether it was committed knowingly or recklessly and the penalty imposed should reflect that.[5] On the facts here, the jury's finding of recklessness did not warrant a significantly lesser sentence than that imposed on the principal offenders. A review of comparable sentences imposed for the importation of drugs such as heroin demonstrates the manifest inadequacy of the sentence imposed here where there had been no plea of guilty, no evidence of remorse or contrition and a version of facts put up at sentence which the sentencing judge rejected. Ms Abrahams submitted that the appropriate sentence was one in the range of 10 to 12 years imprisonment with a non-parole period at about the halfway mark.
[17] Senior counsel for the respondent, Mr Rafter SC, emphasizes that the judge was obliged to sentence Labanon on the basis of the special verdict which the judge found to be a very important distinction from his co-offenders. He also emphasized Labanon's prior good history and excellent naval record, his favourable personal circumstances, the additional punishment of his dishonourable discharge from the Navy, the loss of his career and the loss of considerable financial entitlements which also flow from his conviction and sentence. He contends that the appeal should be dismissed or that if allowed a moderate approach should be taken consistent with the approach traditionally adopted on an Attorney's appeal.
[18] Neither party has been able to provide this Court with any comparable cases where the offender has been sentenced for recklessly being involved in the importation of a large amount of prohibited narcotics. The judge was in my view right in considering that the jury's special verdict finding Labanon was recklessly rather than knowingly involved in the importation of heroin warranted a significantly lesser sentence than that imposed upon his co-offenders. As the presiding judge in a lengthy trial, he was well placed to determine how much weight to give the special verdict in ameliorating the sentence. Nevertheless Labanon's criminally reckless conduct required a salutary penalty to deter others who might consider recklessly importing prohibited substances. His participation in the offence was essential to its commission. Methylamphetamine is a dangerous drug in the plain meaning of that term. It wreaks havoc with the lives of those who use and are addicted to it and the lives of their innocent families. It is a notoriously significant contributor to violent and property crime in this State. Those like Labanon who commit the offence of importing it, even recklessly, must expect to suffer very significant consequences. No reasonable member of a modern Western society like the USA or Australia could fail to be aware of the dangers of carrying sealed packages for others, especially in the suspicious circumstances here. Certainly Labanon, as a petty officer on a US warship, must be taken to have been well aware of the risks in doing what he did for his superior, Maio. He was a mature man and did not have the mitigating benefit of a plea of guilty or co-operation with the administration of justice.
[19] On the other hand his detection, conviction and sentence has had a significant impact on him and on his innocent wife and family. He has the additional punishment of losing his naval career, which until his commission of this offence had been exemplary, and the many benefits associated with it. He will have to serve his sentence in a foreign country away from family and friends.
[20] Despite those ameliorating factors the sentence imposed did not adequately reflect the importance of deterrence in the light of Labanon's significant role in this importation of a large quantity of methylamphetamine worth over $1.5M at wholesale level and many millions more at street level. That quantity of methylamphetamine has the potential to wreak havoc on the lives of users and their families and cause significant economic loss to the Queensland community through the added burden placed on the criminal justice and health systems. Adopting the moderate approach applicable in a Crown appeal against sentence[6] I would allow the appeal and substitute a sentence of eight years imprisonment with a non-parole period of four years.
Order
[21] 1.Allow the appeal.
2.Set aside the sentence imposed at first instance and instead order the respondent be sentenced to imprisonment for eight years with a non-parole period of four years.
3.Declare that 345 days pre-sentence custody was served between 8 June 2005 and 18 May 2006.
[22] CHESTERMAN J: I agree with McMurdo P.
Footnotes
[1]This section was repealed by s 61 Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth).
[2]See Kural v The Queen (1987) 162 CLR 502.
[3]See Criminal Code (Qld), s 644.
[4]Everett v The Queen (1994) 181 CLR 295; R v Katia; ex parte A-G (Qld) [2006] QCA 300; CA No 111 of 2006, 22 August 2006, [20].
[5]R v Bimahendali (1999) 109 A Crim R 355; R v Peel [1971] 1 NSWLR 247, 262.
[6]R v Quick; ex parte A-G (Qld) [2006] QCA 477; CA No 277 of 2006, 17 November 2006, [15]; R v Sittczenko; ex parte Cth DPP [2005] QCA 461; CA No 221 of 2005, 9 December 2005, [28].