R v Neto[2016] QCA 217

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.

[2] GOTTERSON JA:  On 21 March 2016 in the Supreme Court at Brisbane, the applicant, Adrian Guilherme Neto, pleaded guilty to offending against s 307.2(1) of the Criminal Code Act 1995 (Cth).  The count to which he pleaded guilty alleged that he had imported a marketable quantity of a border controlled drug, namely, cocaine.

[3] At a sentence hearing conducted immediately after the plea was taken, the applicant was convicted and sentenced to a term of seven years six months’ imprisonment.  A non-parole period of four years three months was set pursuant to s 19AB of the Crimes Act 1914 (Cth).  A declaration was made that 357 days of pre-sentence custody be imprisonment already served under the sentence.

[4] On 6 April 2016, the applicant filed an application for leave to appeal against sentence.[1]  The applicant is a Brazilian national.  He was represented by counsel at the sentence hearing.  However, he represented himself at the hearing of the application with the assistance of an interpreter.

Circumstances of the applicant’s offending

[5] A Statement of Facts tendered at the sentence hearing[2] disclosed the following circumstances of the offending.  The applicant arrived at Brisbane International Airport on an Emirates flight from Dubai at about 1.15 am on Monday, 30 March 2015.  He presented a Brazilian passport for Immigration clearance together with a declaration which stated that the purpose of his visit was for a holiday.

[6] The applicant collected a single piece of checked luggage, a dark grey “Lansay” suitcase.  He was intercepted by a Customs Officer who directed him to produce the suitcase for an x-ray inspection.  Inconsistencies were detected and a further examination of the suitcase was required.

[7] Before that happened, the Customs Officer obtained a Portuguese translation card which listed seven standard baggage examinations questions.  Affirmative answers given by the applicant to those questions acknowledged that the suitcase was his; that he had packed it; that he was aware of its contents; and that the contents belonged to him.  He indicated that he had nothing further to declare.

[8] The suitcase was then opened and examined by the Customs Officer.  The observable contents were mainly clothing.  When the inner-material lining was unzipped, the Customs Officer noted that a screw and metal washer had fallen out of place from the body of the suitcase.  Tampering with the suitcase was suspected.

[9] A lonscan swab was taken of the suitcase for testing.  It, and a supplementary swab, both tested positive for cocaine.

[10] The suitcase was x-rayed again.  An inconsistency in thickness of the outer lining was observed.  A small hole was drilled into the body of the suitcase.  When the drill bit was removed, small amounts of white powder were visible.  On testing, this substance produced a positive result for cocaine.

[11] The applicant was duly cautioned by Customs Officers and later by officers of the Australian Federal Police (“AFP”) when they arrived at about 2.30 am.  The applicant was placed under arrest.  He did not participate in an interview with the AFP.

[12] The suitcase was deconstructed by AFP Forensics.  An acrylic compartment was found inserted in it and fastened into place with numerous screws.  The compartment was camouflaged by the internal lining of the suitcase.

[13] White powder was retrieved from the compartment.  The powder had a gross weight of 1,336.4 grams.  Samples of it were analysed and found to contain 53.3 per cent cocaine.  The quantity of pure cocaine imported by the applicant was calculated to weigh 712.3 grams net.

The applicant’s personal circumstances

[14] The applicant was 25 years old at the time of the offending.  He has family in Brazil.  A letter written by the applicant to the learned sentencing judge[3] stated that he participated in the criminal activity in order to raise money to support his mother and grandmother, both of whom have serious health issues.  His Honour accepted that to have been the case.[4]

[15] The applicant had no prior criminal history in Australia.  He did not apply for bail.  Corrective Services’ records tendered at sentence[5] indicated that the applicant had successfully undertaken literary and numeracy, and life skill programs during his imprisonment.  These records described the applicant in July 2015 as having a pregnant partner in Brazil.[6]

Matters referred to in sentencing remarks

[16] The learned sentencing judge mentioned the circumstances of the offending and the applicant’s personal circumstances to which I have referred.  After commenting that two grams was the marketable quantity for cocaine specified in the Criminal Code Regulations, his Honour noted that the quantity imported by the applicant exceeded the prescribed amount by about 350 times.  It fell short of the prescribed commercial quantity of two kilograms.  His Honour further noted that if the imported quantity had been cut to 27 per cent, it would have had a street value of about $500,000.[7]

[17] His Honour observed that the extent of the financial reward that the applicant expected to gain was not revealed.[8]  He considered that family considerations including the poor health of the applicant’s mother and grandmother, whilst taken into account, could not be given much weight in light of the seriousness of the offending.[9]

[18] Reference was made to the applicant’s timely plea of guilty.[10]  He did provide information to the AFP some considerable time after he had been remanded in custody.  However, the information was dated and not useful to the authorities.[11]

[19] His Honour observed that the applicant had not disclosed what he knew of the contents of the suitcase.  It was open to inference that he had been at least reckless about the quality and quantity of the substance he was importing.  His plea implied an acknowledgement that he knew that he was importing a substance which he must have realised was a prohibited dangerous drug.[12]

[20] The absence of a criminal history on the applicant’s part was noted.  However, the learned sentencing judge remarked that that was characteristic of individuals who act as couriers to import drugs into Australia.[13]  His Honour considered the applicant to have prospects of rehabilitation.[14]  His attempts at self-improvement and expressions of remorse while in custody were noted.[15]

[21] In his Honour’s assessment, general deterrence was an important consideration in sentencing the applicant.  Cocaine has significant potential for harm.  Significant maximum penalties are imposed for drug importation.  The applicant’s sentence needed to be one which was likely to deter others from engaging in it.[16]

The ground of appeal

[22] The ground of appeal stated in the application for leave to appeal is that the sentence is manifestly excessive.  At the sentence hearing, the applicant’s counsel had submitted that an appropriate head sentence was seven years with a non-parole period of four years.[17]

The applicant’s submissions

[23] In a type-written outline filed on 27 July 2016, the applicant submitted that a review of the decisions of this Court in R v Alvarez[18] and R v Jimson[19] and the sentence imposed at first instance in R v Castro[20] would suggest that his sentence “seemed” to be manifestly excessive.  The sentence should have been seven years’ imprisonment with a non-parole period of three years six months.  This document superseded a handwritten outline filed on 24 June 2016 in which the applicant proposed a head sentence of six years six months’ imprisonment with a non-parole period of three years three months.

[24] In his oral submissions, the applicant identified another aspect in respect of which he claimed his sentence is manifestly excessive.  It is that the duration of the non-parole period is excessively high in comparison with the duration of the head sentence.  The applicant suggested that the non-parole period was more than 60 per cent of the head sentence.  When an error was drawn to his attention, he did accept that it is actually 56.6 per cent.

The respondent’s submissions

[25] The respondent submitted that the sentence was not in any respect manifestly excessive.  Reliance was placed upon the following sentencing decisions which were set out in the Comparative Sentencing Schedule tendered at the sentence hearing:[21]  R v Mokoena,[22] Lau v The Queen[23] and Kuti v R.[24]  As well, reference was made to the decision of this Court in R v Tran.[25]

Discussion

[26] The sentence that a court imposes is arrived at by an exercise of discretion.  It is the sentence which the sentencing judge thinks justly recognises the applicable sentencing considerations.  In a case of importation, the length of the sentence is, of course, not based upon some kind of scale or formula in which the quantity of the dangerous drug imported determines the duration of the sentence.

[27] I mention these matters because, in support of his oral submissions, the applicant handed the Court an extract from the non-binding guideline which had been proposed by a bench of five judges constituting the New South Wales Court of Criminal Appeal in R v Wong.[26]  The applicant was apparently unaware that, on appeal to the High Court of Australia,[27] the guideline had subsequently been disparaged and, by a majority held to be beyond jurisdiction.

[28] To succeed in a challenge to a sentence as being manifestly excessive, a person in the position of the applicant must show that the sentence is “unreasonable or plainly unjust” such that it may be inferred “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”.[28]  The same principle was recently affirmed by French CJ, Keane and Nettle JJ in R v Pham:[29]

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle (citation omitted).”

[29] I now turn to the cases relied on by the parties as comparable in order to ascertain whether a comparison of the applicant’s sentence with them compels a conclusion that there must have been some misapplication of principle.

[30] In Alvarez, the 28 year old offender was sentenced on a plea of guilty to eight years’ imprisonment with a non-parole period of three years six months for the offence of importing 1,270.8 grams of pure cocaine into Australia in a suitcase.  It had a potential street value of $1.5m.  The offender was a Thai national who came to Australia in 1995.  She married a Columbian some three years later.  She and her husband lived abroad and the offending occurred when she returned to Australia because of a pregnancy.  The sentencing judge correctly took into account in her favour that imprisonment would make matters more difficult for her and for her young infant than for a person without an infant.[30]  Her application for leave to appeal against sentence was refused.

[31] In Jimson, the offender pleaded guilty to importing a marketable quantity of a prohibited drug, some 1,686.8 grams of cocaine.  It had an estimated street value of almost $760,000.  The offender was a Malaysian national.  She was sentenced to eight years’ imprisonment with a non-parole period of four years six months.  She had assisted police considerably in an attempted controlled delivery by her participating in a telephone conversation with an overseas contact.  Her application for leave to appeal against sentence was also refused.

[32] The offender in Castro imported a commercial quantity of cocaine.  Some 2,974.9 grams of pure cocaine were involved.  He was sentenced to nine years’ imprisonment with a non-parole period of four years six months.  This offender, too, had assisted police.  As this is a first instance sentence, the preference for available comparable decisions of intermediate courts of appeal endorsed in Pham[31] needs to be borne in mind in having regard to it.[32]

[33] I now turn to the cases cited by the respondent.  In Tran, the offender pleaded guilty on an ex officio indictment to importing a marketable quantity of heroin (some 1,473 grams) concealed inside barrels of fish.  He did so for a reward of $10,000.  He was a courier who was opportunistically engaged by those involved in planning the importation.  He confessed when apprehended and gave some information about another offender.  The Court, after an extensive examination of the authorities and a consideration of the approach that should be taken to sentencing Commonwealth offenders for drug importation offences on of a plea of guilty, gave the offender leave to appeal and re-sentenced her to 10 years’ imprisonment with a non-parole period of five years.

[34] The 29 year old offender in Mokoena imported 497.5 grams of heroin which he had ingested in pellet form.  He was paid $10,000 upon delivery of it into Australia.  He had no prior convictions.  This offender was sentenced to nine years’ imprisonment with a non-parole period of four years nine months.  His sentence took into account his HIV positive status and his cooperation with police.  After referring to Tran, Holmes JA observed:

“… [t]he head sentence of nine years imprisonment imposed here was unremarkable.  The setting of a non-parole period of 53 per cent of the sentence was not mandated by legislation, but was consistent with the practice in other drug importation cases, in this State and others, of setting the non-parole period beyond the half-way mark of the head sentence, at a point to be determined by the circumstances of the case.  In the interests of comity between courts exercising Federal jurisdiction, that practice was properly followed…”[33]

[35] In Lau, the offender arrived from China with 709.8 grams of methamphetamine concealed in his luggage.  This amount was towards the upper end of the marketable quantity range for the drug.  He was sentenced to nine years’ imprisonment with a non-parole period of six years.  The offender was 56 years old when sentenced.  He had no prior convictions.  He was sentenced as a courier.  There was an early plea of guilty and limited cooperation with authorities.  The offender’s appeal against sentence was dismissed by the Court of Appeal of Victoria.  Their Honours concluded that the sentence “was stern, but was not beyond the range of sentences which could be imposed in the reasonable exercise” of the sentencing discretion.[34]

[36] The offender in Kuti was 69 years old and without any criminal history.  He flew into Australia from Nigeria carrying 452.6 grams of internally concealed heroin.  He was sentenced to seven years’ imprisonment with a non-parole period of four years six months.  He participated in the importation after suffering financial difficulties and threats.  He, too, was sentenced as a courier.  In dismissing his appeal, the New South Wales Court of Criminal Appeal held that “manifest excess could not be demonstrated”.[35]

[37] The quantity of cocaine illegally imported by the applicant well exceeded that imported by Mokoena who received a head sentence that was longer by 18 months, and that imported by Kuti whose sentence was shorter than the applicant’s by six months.  The quantities of cocaine imported by Alvarez, Jimson and Tran were higher than that imported by the applicant but each received a longer head sentence and, with the exception of Alvarez, a longer non-parole period.  Alvarez was in an exceptional position because of her infant child.  Taken collectively, these cases do not indicate manifest excessiveness with regard to the applicant’s head sentence.

[38] The same may be said of the applicant’s non-parole period.  Alvarez is the only instance where the non-parole period was less than 50 per cent of the head sentence.  In every other instance that percentage was equalled or exceeded.  By way of examples, in Lau, the percentage was 66.6 per cent, in Kuti, 64.29 per cent and in Jimson, 56.25 per cent.  The length of the applicant’s non-parole period is in no way exceptional.

[39] For these reasons, I am of the view that the applicant’s sentence is not manifestly excessive.

Disposition

[40] As the proposed ground of appeal has not been established, the application for leave to appeal must be refused.

Order

[41] I would propose the following order:

1. Application for leave to appeal against sentence refused.

[42] PHILIP McMURDO JA:  I agree with Gotterson JA.