Regina v Woolery

STEIN JA : The applicant, Terryl Lance-Joseph Woolery, seeks leave to appeal against a sentence imposed on him by Freeman DCJ in the District Court on 29 June 2001. He was sentenced to imprisonment for 7 ½ years with a non-parole period of 4 ½ years, each to date from his arrest on 17 November 2000.

The applicant had pleaded guilty to one count under s 233B(1)(b) of the Customs Act 1901 (Cth) by the importation of a commercial quantity of 3,4-methylenedioxymethamphetamine in powder form (commonly known as ecstasy or MDMA). The quantity (1570.2 grams) is in excess of three times the commercial quantity specified under the Customs Act . The powder, which was strapped to the applicant’s body when he was apprehended at Sydney airport on 17 November 2000, was calculated as being capable of producing 14,900 tablets of 30% purity with a potential street value of $745,000.

The applicant readily admitted that the packages contained ecstasy, and that he had obtained them in Amsterdam. He told Federal police that he was given money for his air ticket and told that he would be paid US$10,000 for delivering the drug in Australia.

The applicant pleaded guilty before the Local Court on 7 May 2001 and adhered to his plea before Judge Freeman on 29 June 2001. The Crown accepts that the applicant entered the plea of guilty at the earliest practical opportunity.

There are two grounds of appeal. First, that his Honour failed to properly characterise the applicant’s criminality. Second, that his Honour undervalued the applicant’s plea of guilty. Characterisation of applicant’s criminality

I turn first to the contention that his Honour mischaracterised the criminality of the applicant. After discussing The Queen v Olbrich (1999) 199 CLR 270, his Honour said: What this prisoner did was effect an importation which, without him, would not have taken place, at least at that time. One may hypothesise that somebody else would have been found, some other time may have been the occasion but the fact is that in terms of this importation he was the central character . Without him and the drugs wrapped around his waist this substance would not have reached Australian shores on 17 November 2000. [My emphasis added]

His Honour continued, and I quote this because it is important for the purpose of understanding Freeman DCJ’s reasoning and also the way in which the applicant puts his case on appeal. His Honour said: I accept that there is no evidence that he was involved in manufacture or acquisition and that he was not likely to be involved in disseminating it, other than perhaps to a single collector in Australia, but I am concerned with the importation not the other elements which surround it both before and after the act of bringing it in.

On behalf of the applicant, Mr Boulten submits that his Honour erred in not taking into account the circumstances enumerated in that passage as mitigating factors.

I do not see that the judge’s remarks should be so understood. His Honour did not ignore the particular factors in coming to the sentence that he imposed on the applicant. In effect what his Honour did, in my view properly, was to dismiss those factors as aggravating features of the offence.

It is plain that his Honour was characterising the applicant’s role as a principal in the importation. His Honour accepted, as I have said, that the applicant was not involved in the manufacture or acquisition of the drug, nor likely to be involved in dissemination, except for the initial delivery in Australia.

It is submitted on behalf of the applicant that on the evidence the applicant had a limited role in the enterprise and was ‘merely a courier’. This, it was submitted, was the extent of his involvement. It follows, in the submission of Mr Boulten, that his Honour’s starting point of 15 years was too high and that the applicant was entitled to some reduction for being a mere courier.

In the sense that the applicant carried the goods to Australia, he was a courier. But this does not mean that he cannot also be a principal. Clearly he was a principal in the importation of the drug and his Honour was entitled to describe the applicant as ‘the central character’ in the importation.

His Honour’s approach is entirely consistent with Olbrich . Their Honours (Gleeson CJ, Gaudron, Hayne and Callinan JJ) provided useful comment on the distinction between ‘couriers’ and ‘principals’ and what they had to say is I believe apposite to repeat here.

Their Honours said (at 279 – 280): 19. Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act . One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between “couriers” and “principals” may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as “courier” or a “principal” must not obscure the assessment of what the offender did. 20. There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender’s criminality. But there was no evidence, one way or the other, to suggest that this was such a case. There was nothing before the primary judge which revealed that the respondent was part of any business venture of that kind. All that was known was that the respondent asserted that he was to be paid $15,000 for importing the heroin. That is, the respondent asserted that the importation of such a large quantity of heroin was for his financial gain rather than for some other purpose such as his own use. 21. Whether others stood to gain from the respondent’s conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful inquiry, it was one that could not be pursued in this matter because there was no evidence about it.

In my opinion no error has been demonstrated and this ground of appeal must fail. Undervalue of plea of guilty

I turn therefore to the second ground of appeal, that his Honour undervalued the applicant’s plea of guilty. I have already noted that the applicant pleaded guilty at the first opportunity and his Honour found that he had shown contrition. However, Freeman DCJ said: … I do not think his plea qualifies at anything like the top level of the scale between 10 and 25 per cent which Mr Webb suggests. He was after all caught absolutely red-handed. It is difficult to see how the Crown case can get much stronger but nonetheless he is entitled to 10 per cent or say 12 months in round terms of that sentence.

The sentencing judge also allowed the applicant a discount of 18 months for his assistance to the authorities. This meant that his Honour was giving a combined discount of 25% for the plea of guilty and assistance to the authorities.

On behalf of the applicant it is submitted that his Honour was in error in allowing only a 10% discount for the plea of guilty. This was at the bottom of the range for utilitarian value alone ( R v Thomson and Houlton (2000) 49 NSWLR 383). Counsel also seeks to contrast the 10% discount with a 15% discount given by his Honour for the applicant’s assistance to the authorities.

Thomson and Houlton applies to State offences and not to Commonwealth offences. Further, as the High Court made clear in R v Wong and Leung (2001) 185 ALR 231, the promulgation of a guideline such as Thomson and Houlton would not be permissible for Commonwealth offences.

In my opinion, it cannot be said that the 10% discount allowed by his Honour for the guilty plea was inappropriate. The applicant pleaded guilty because he was caught red-handed with the drugs strapped to his body. He readily admitted his guilt and the sentencing judge was right to conclude that the Crown case was overwhelming.

Looking at the sentence as a whole (including the 25% combined discount), it cannot be concluded that it is unreasonable, plainly unjust or manifestly excessive, nor was there any error of law. The sentence appears to be well within the range of penalties imposed for similar offences, see the Crown’s submissions on sentence before Freeman DCJ. I can see no error in his Honour’s sentencing discretion which would cause this court to intervene.

Leave to appeal should be granted but the appeal against sentence should be dismissed.

GREG JAMES J: I agree.

HOWIE J: I also agree.

STEIN JA: Accordingly, the orders which I indicated will be the orders of the Court.