R v Boyd[2008] QCA 3

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant, Mr Boyd, pleaded guilty on 5 September 2007 in the Trial Division of this Court to one count of importing narcotic goods consisting of 3,4-methylenedioxymethamphetamine, commonly known as Ecstasy, being not less than a trafficable quantity.  He was sentenced on 7 September 2007 to seven years imprisonment with a non-parole period of two years and 10 months.  He applies for leave to appeal against his sentence contending that it is manifestly excessive.

Mr Boyd was 30 at the time of the commission of the offence and 32 at sentence.  He had no prior convictions.

The offence related to about 2,024 Ecstasy tablets with a gross weight of 704.6 grams.  The tablets were 16.7 per cent MDMA and 2 per cent methylamphetamine.  The pure weight of MDMA was 117.6 grams.  The pure weight of methylamphetamine was 14 grams.  Those weights in each case well exceeded the trafficable quantity set out in the Customs Act 1901 (Cth) namely 0.5 of a gram.  The maximum penalty for the offence is 25 years imprisonment.

The prosecutor at sentence submitted that each tablet had the potential to be sold on the street for $40 and that the offence involved a potential maximum value of $80,000.  The drugs were imported in a package posted from Richmond in British Columbia, Canada.  It was sent by express international mail, postmarked 22 October 2005 and addressed to "M Fleisher, Unit 1/9 Bondi Avenue, Mermaid Beach, Queensland".  The exterior label on it declared that it contained toys and Halloween "cost" - presumably short for "costumes". The parcel was intercepted on 27 October 2005 at the Qantas mail handling unit in Sydney and opened.  It contained a quantity of cheap toys and a small cardboard box inside which was another package wrapped in coloured birthday paper containing yet another package of blue tablets imprinted with a bat on their surface.

Federal police were contacted.  They substituted drug-free tablets.  The parcel was restored to resemble its original condition and delivered to the address on it.  Mr Boyd was present at that address when the package was delivered on 2 November.  An occupant of the premises, Mr Todd Fletcher, was home and identified himself as "M Fleisher", accepted delivery of the parcel and took it inside the unit.  Police conducted surveillance for 12 or 15 minutes outside the unit and observed Mr Boyd emerging from the unit carrying the parcel.  He put it in his vehicle.  Police apprehended him shortly afterwards with the parcel in his possession.  He told police he was returning it to the post office because it was not addressed to anyone at the unit.  In a subsequent interview with police he maintained that position.

Later enquiries revealed that Mr Boyd sent money totalling $16,080 to British Columbia on three occasions in September and October 2005.  The last dispatch of money on 18 October 2005 was proximate to the sending of the parcel from Canada. 

At the time of his apprehension Mr Boyd was in possession of a mobile phone.  The phone's records showed that the phone had been used to call an Australia Post facility for customers of the international express mail service for information about the progress of an item in transit on 28 October at 5 pm and again on 2 November at 1.30 pm shortly before his apprehension by police in respect of this matter.  The prosecutor urged the sentencing Judge to infer from these calls that Mr Boyd had the air bill number for the purpose of endeavouring to get information about the progress of the parcel and was significantly involved in providing money for the importation and in its planning and carrying into effect.

Mr Boyd was committed for trial on 19 July 2006 after a committal involving the cross-examination of some witnesses.  His plea of guilty was notified to the prosecution on 30 August 2006, the week before his trial was due to take place.  The prosecutor, after referring to sentences relied on as comparable, submitted that a sentence of seven and a half years imprisonment with a non-parole period of three years was appropriate. 

Defence counsel at sentence conceded that Mr Boyd should be regarded as more culpable than a courier but disputed the level of involvement in the importation at which the prosecution had placed him.  He submitted that Mr Boyd's role involved an element of organisation but warranted a sentence in the range of six years imprisonment with a non-parole period of about two and a half years. 

Defence counsel emphasised the following.  Mr Boyd joined the Army at the age of 19.  He was sworn in as a constable in the New South Wales Police Force where he remained for about six years.  He undertook work in remote indigenous communities, charity work and received a commendation for bravery.  Since leaving the police force he had continued his charity and community work up until the time of sentence.  He had worked in detention centres for migrants and had learnt Afghani.  A number of documents were tendered to support those submissions.  In February 2005 Mr Boyd had prepared a business plan to establish a state and national database for missing persons which was also tendered.  Mr Boyd had gained entry into a degree of Bachelor of Behavioural Science at Griffith University.  At sentence he was working as a counsellor at the call centre Springboard Incorporated and as a youth worker.  He therefore had an excellent employment record which was based on community service.

He commenced using steroids in 1991 and continued to use them for about 10 years during which time his body weight increased by over 30 kilos.  This submission was supported by a letter from Philip Michael Furey, a retired physician.  Mr Boyd was using steroids up until his arrest on the present offence.  He owed a debt to the person who supplied him with steroids and he committed the present offence to repay that debt.  He was delivering a package to this person and believed that the package contained steroids.  His plea of guilty was on the basis that, in these circumstances, he was reckless in his involvement with the importation of the drug, Ecstasy.  Defence counsel urged the Judge not to accept that Mr Boyd had been in direct contact with the supplier of the drug in British Columbia.  Deliberate involvement in an offence of this kind was out of character given his work history and his previous community contribution.  Subsequent to his arrest Mr Boyd had been threatened not to reveal any information and this placed him in a "terrible position".  Because of this he had received psychiatric care for a period, although defence counsel did not provide any supporting psychiatric report.  Defence counsel further submitted that MDMA tablets could be bought for between $20 and $30 rather than the $40 urged by the prosecutor.  He finally emphasised that Mr Boyd did plead guilty, albeit late, but nevertheless saved the prosecution and the community the cost of a lengthy trial.

Mr Boyd then spoke directly to the primary Judge apologising for his "tragic act of recklessness".  He emphasised his good character and his community work and stated that he was "incredibly sorry" to his parents and his partner.  He contended that he could not come forward and speak frankly about his position because of the dangerous situation in which he was placed.  He was "stuck between a pretty big rock and a hard place". 

In her sentencing remarks the learned primary Judge referred in detail to the facts of the offence which I have set out.  Her Honour regarded the quantity and nature of the drug as serious and that Mr Boyd was significantly involved in its importation.  The cases to which the prosecution had referred her Honour demonstrated that penalties in excess of seven years were appropriate in the circumstances.  Her Honour particularly mentioned the case of R v Dinic (1997) 149 ALR 488.  Her Honour referred to Mr Boyd's lack of criminal history, his remorse and his good work history and community involvement.  Although he had pleaded guilty it was not an early plea so the cooperation with the authorities was not significant.  Her Honour referred to the submissions of defence counsel as to Mr Boyd's belief that the package contained steroids but stated that she accepted he played a significant role in the commission of this offence.

Mr Boyd, who now appears for himself in this application, makes the following submissions.  The prosecution at sentence exaggerated his role.  The Judge erred in finding that he had been in contact with the sender because he knew the name of the person sending the package.  The prosecution had not established that he had any direct contact with that person.  In essence, his submission is that the primary Judge should have accepted the submissions made by defence counsel that minimised his involvement and did not take into account sufficiently the threats made against him and his family.  He submits that he should have been sentenced to six years imprisonment with release after 18 months, 12 months earlier than the submission on his behalf made at first instance.  His primary concern is to obtain an earlier release date rather than interfere with the head sentence imposed.  He has stated to this Court in his written submissions that his conduct was reckless and stupid but not an intentional importation of Ecstasy tablets.  Because of the threats made against him and his prior police service he is serving his sentence in protection and this makes the term of imprisonment particularly onerous for him.

The offence was against s 233B Customs Act 1901 (Cth) which relevantly provides that it is an offence to import goods into Australia where those goods are a prohibited import.  The element of the offence relating to knowledge of the nature of the goods was one of recklessness (see s 5.6(2) Criminal Code (Cth)).  Section 5.4 Criminal Code defines recklessness as:

"(1)  A person is reckless with respect to a circumstance  if:

(a)      he or she is aware of a substantial risk that  the circumstance exists or will exist; and

(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk."

As Mr Rice, who appears for the respondent in this appeal (and also at sentence), now submits, Mr Boyd's plea is an admission that he knew of a substantial risk that the goods which he was assisting to import were narcotic goods, not steroids, and that he decided notwithstanding to assist with the importation.  It was not submitted at sentence that he was other than significantly involved in arranging for the importation and that he was more culpable than a courier.  Whether he was in direct contact with the supplier in Canada or dealt through an intermediary who he was not prepared to name is of little consequence.

The Judge's sentencing remarks suggest that her Honour rightly gave some credit for Mr Boyd's plea of guilty whilst noting that he did not significantly cooperate with the administration of justice because of the lateness of the plea.  She specifically recognised his remorse.  The sentence imposed is supported by comparable cases such as Dinic, R v Bourel, (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, McInerney, Hulme and Barr JJ, 11 December 1998), and Benais [1999] NSWCCA 236, 26 July 1999 given the different sentencing regimes applicable in those jurisdictions.  Mr Boyd relies on the cases of Gunderson and Cook, co-accused of Davies [2007] QCA 416, CA No 204 of 2007; 23 November 2007. Those cases involved different offences and are not closely comparable to the present case.  The maximum penalty for the offence is 25 years imprisonment.  The quantity of drug imported was significant and had a potential street value of as much as $80,000.  Mr Boyd was a mature man.  His prior community based work makes his involvement in the offence all the more puzzling.  His recommendation for release on parole after serving two years and 10 months sufficiently recognises the mitigating factors of his plea of guilty, limited cooperation with the administration of justice, his promising prospects of rehabilitation in the light of his prior good conduct and his present remorse.  He has not demonstrated that the sentence imposed was manifestly excessive. 

The application for leave to appeal against sentence should be refused.

MUIR J:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The application is refused.