Woodrum v R

1. [1]

   GLEESON JA: I agree with Harrison J.

2. [2]

   HARRISON J: Denise Marie Woodrum seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the sentence imposed upon her by Wass DCJ sitting in the District Court of New South Wales at Sydney on 6 September 2018. Ms Woodrum pleaded guilty on 31 January 2018 in the Local Court to importing a marketable quantity of cocaine on or about 4 August 2017, contrary to s 307.2(1) of the Criminal Code 1995. The maximum penalty for that offence is imprisonment for 25 years and/or 5,000 penalty units. Ms Woodrum was sentenced to a term of imprisonment of 7 years and 6 months commencing on 4 August 2017 and expiring on 3 February 2025 with a non-parole period of 4 years and 6 months expiring on 3 February 2022.

3. [3]

   It is accepted by the Crown that her Honour sentenced Ms Woodrum upon an erroneous understanding or statement concerning the amount by which the cocaine that she imported exceeded the amount prescribed as a marketable quantity. Although the error favoured Ms Woodrum, the Crown conceded that in such circumstances she should be re-sentenced by this Court: see, for example, Greentree v R [2018] NSWCCA 227 at [9].

4. [4]

   In the light of the Crown’s concession, it is strictly unnecessary to consider the particular grounds of appeal upon which Ms Woodrum originally relied. It is sufficient to observe that Ms Woodrum contends that her Honour’s sentence was manifestly excessive and that upon a re-exercise of the sentencing discretion by this Court in accordance with Kentwell v R (2014) 252 CLR 601; [2014] HCA 37, it would find that a lesser sentence is warranted in law.

Background

1. [5]

   Ms Woodrum was sentenced upon the basis of agreed facts from which the following matters have been taken.

2. [6]

   Ms Woodrum is a US citizen from Missouri. She was 50 years old at the time of the offence. She is otherwise of good character and has no previous criminal convictions.

3. [7]

   Ms Woodrum flew to Sydney from the United States on 4 August 2017. In the previous month, on 18 July 2017, Ms Woodrum had flown from Missouri to Trinidad and Tobago via Houston. On 19 July 2017, she flew from Trinidad and Tobago to Paramaribo, the capital of Suriname. On 30 July 2017, Ms Woodrum flew from Suriname to Fort Lauderdale via Houston.

4. [8]

   Ms Woodrum filled out her Incoming Passenger card for arrival in Sydney indicating that she had not been to “Africa, South/Central America or the Caribbean” in the previous six days. She told lies to the Australian Border Force officers when her luggage was selected for examination, including that she came to Sydney to see the Harbour Bridge and the aquarium and that the clothing and shoes she was carrying were gifts. Ms Woodrum also lied in a later recorded interview with the police when she said that she had no idea that there was an illicit substance secreted in the gifts she was carrying.

5. [9]

   When Ms Woodrum’s luggage was X-rayed, she said “how much did they put in the shoes?” When told that a test for cocaine on the inside of her suitcase had come back positive and she was searched, Ms Woodrum asked, “how much did you find?”

6. [10]

   Between April 2017 and 4 August 2017, Ms Woodrum exchanged hundreds of mobile phone text messages with a character she knew as Hendrik Cornelius. These messages included romantic and emotional declarations.

Objective seriousness

1. [11]

   In her remarks on sentence her Honour rejected the Crown’s submission that Ms Woodrum knew that she had a border controlled drug in her possession. Her Honour instead came to the following conclusion:

2. [12]

   In re-sentencing Ms Woodrum, I consider that she ought to be sentenced upon the basis that she was reckless as to the presence of a border controlled drug secreted in her luggage when she entered Australia.

3. [13]

   In assessing this issue, her Honour said this in her remarks on sentence:

4. [14]

   Having regard to the circumstances of this case, I see no reason to depart from her Honour’s conclusions with respect to these matters.

5. [15]

   By way of contrast, but with great respect to her Honour’s opinion, I am unable to accept her conclusion that a significant influence in Ms Woodrum’s motivation for doing what she did was unrelated to the deception practised upon her by the character referred to as Hendrik Cornelius. In order to understand my view, it is necessary to note what her Honour said about this in the following terms:

6. [16]

   Having regard to all of the evidence, it seems to me that Ms Woodrum was indeed considerably influenced by the prospect of some continuing relationship with the character she knew as Hendrik Cornelius. Ms Woodrum referred to him in the handwritten letter that she provided as some of the material she relied on in the sentencing proceedings. Part of her letter said this:

7. [17]

   Several testimonials were tendered on Ms Woodrum’s behalf which spoke to her naiveté. The Crown maintained, consistently with authority, that little weight should be given to such evidence, especially where an offender does not give evidence. In many circumstances, that submission would have much force. In the present circumstances, however, it must in my view yield to the uncontested facts. Ms Woodrum was clearly duped by a character who she had never met, peddling a story that no-one should believe, embroidered with the promise of an inherently improbable romantic ending, to an otherwise vulnerable woman whose financial situation had been exacerbated by medical bills incurred in the United States for which she had no or insufficient insurance and which led to her losing her employment and ultimately her bankruptcy. It is a mistake in my opinion to conflate the fact that Ms Woodrum would appear to have lied to customs officers at the airport when first apprehended with the notion that she participated in her crime on an equal footing with Hendrik Cornelius. Her guileless behaviour when confronted at the airport, together with her telephone messages to him, do not bespeak someone who was Mr Cornelius’ equal. Whatever Ms Woodrum’s comment about being happy to serve with him might have meant, it does not in my view show equality so much as romantic, even sycophantic, deference.

8. [18]

   The passage extracted from her Honour’s remarks on sentence dealing with Ms Woodrum’s motivation for her offending concentrate to some extent upon matters going to her arguable lack of remorse. By her plea Ms Woodrum has accepted that she took part in the importation of a border controlled drug. Limited evidence of remorse, if that is accepted, may operate against Ms Woodrum but should not be used as a basis for concluding that she was not significantly influenced by a shrewd stranger with whom she expected to enjoy something considerably more enduring than a short-term commercial relationship.

9. [19]

   I also take account of the fact that Ms Woodrum’s motivation for committing the offence was to an extent generated by her depleted financial position caused by sending money she could not afford to the same Mr Cornelius with whom she hoped to commence a relationship. Ms Woodrum was in my view very much the junior partner in this curious enterprise. Her moral culpability is correspondingly reduced.

10. [20]

    Her Honour considered Ms Woodrum’s financial motivation in the following extract from her remarks on sentence:

11. [21]

    In my opinion, the evidence to which her Honour refers requires close scrutiny. It is unclear from whom or when Ms Woodrum’s anticipated payment would be made. There is no evidence to indicate how much Ms Woodrum had been promised, if indeed her expectation ever rose that high, or that she could have had any confidence that her expectation would be met. It is patently clear that to the extent that Ms Woodrum placed any confidence in the promises made to her by Mr Cornelius, that confidence was misplaced. Any realistic or objective assessment of the situation inevitably suggests that Ms Woodrum was never likely to receive anything at all for her role and that fact should be taken into account in assessing the significance of financial reward for sentencing purposes. Unlike her Honour, I do not consider that Ms Woodrum’s text message to a person known as “Stacy” in July 2017 saying that “the whole trip was paid for and will get additional payment for work” is reliable support for the suggestion that she carried out her role in the offence for financial gain. This factor must in my view be considered against the certain prospect that Ms Woodrum was being deceived by Mr Cornelius and that her inability to recognise or accept that fact should inform the real extent of her criminality.

12. [22]

    I consider that this offence falls well below the middle of the range of objective seriousness. Ms Woodrum was not involved in the conception or planning of this crime. She did not source the drugs nor prepare them for export. By her plea she recognises that she was aware that she was carrying a border controlled drug. However, Ms Woodrum was clearly duped by her controller in what has unfortunately become a common and cynical way used by importers to reduce or eliminate personal risk of detection.

Criminal record and good character

1. [23]

   Her Honour said this about this topic:

2. [24]

   It is the task of this Court to re-sentence Ms Woodrum, not to offer a commentary on her Honour’s remarks. I should observe, however, that I would not depreciate Ms Woodrum’s good character and wholly uneventful criminal record upon the basis that she might for that reason have been more able to pass through customs procedures with a lower risk of detection. It may be otherwise in circumstances where an offender could be shown actively to have promoted his or her value to a prospective criminal enterprise by touting a suitability based upon such matters. There is no evidence that Ms Woodrum did so. I am not prepared to accept that good character is less relevant for these reasons in the particular circumstances of this case. Ms Woodrum’s references speak with one voice about her lack of criminal antecedents and gullibility. These are not matters for which she should receive only limited credit simply because the crime is calculated to generate considerable profits. That is especially so in this case, where I am not prepared to accept that Ms Woodrum was likely to participate in the distribution of any profits at all.

Subjective factors

1. [25]

   Ms Woodrum has a very strong subjective case. Her Honour referred to this in some detail as follows:

2. [26]

   These findings are not controversial. I also consider that they ought to be taken into account favourably to Ms Woodrum.

General deterrence

1. [27]

   General deterrence is particularly relevant to offences of this kind. Even accepting that Ms Woodrum was not involved in the planning of this crime, her recruitment occurred at a stage when quiet contemplation of the consequences of being apprehended was both possible and likely. This is to be contrasted with offences that occur spontaneously or reactively when a reasoned assessment of risks cannot necessarily be assumed. Moreover, the use of couriers for the purpose of carrying drugs into Australia is well publicised and the outcome for those contemplating similar participation should be unambiguously indicated.

Consideration

1. [28]

   Counsel for Ms Woodrum emphasised that the starting point for the sentence imposed by her Honour was imprisonment for 10 years, prior to the application of the 25 percent discount for her early guilty plea. He submitted that such a starting point in this case was “extreme”. Judicial Commission of New South Wales statistics for offences against s 307.2(1) of the Criminal Code for the period between 1 July 2013 and 30 June 2018 indicate that only 2 offenders received a sentence for this offence of 10 years. These statistics indicate that the median head sentence was 6 years with non-parole periods of between 3 years and 3 years and 6 months.

2. [29]

   This Court was also referred to several comparable cases decided in both the District Court of New South Wales and on appeal to this Court, as well as in other jurisdictions. On one view, her Honour’s sentence was not generally out of step with the sentences imposed in those cases. However, reference to a series of decisions relied upon by the Crown suggests that her Honour’s decision was too severe: see, for example, Bertilone v R (2009) 231 FLR 383; [2009] WASCA 149 [NPP 2 years and 6 months]; Di Tommaso v R [2010] VSCA 178 [imprisonment for 30 months, released after serving 18 months]; Chang v R [2011] NSWCCA 182 [NPP 2 years and 9 months]; R v Sutton [2013] QCA 151 [NPP 2 years and 6 months]. In referring to these cases and sentencing statistics I have not overlooked the caution to be exercised in drawing anything more from them than limited circumstantial guidance.

3. [30]

   In my opinion, the sentence imposed upon Ms Woodrum was unreasonable and plainly unjust when regard is had to her strong subjective case and prior good character in the context of having been inveigled into performing her role in the expectation of a romantic outcome.

4. [31]

   Some distinct flavour of this influence, and Ms Woodrum’s rather stunning naiveté, can be gleaned from exchanged text messages passing between her and Mr Cornelius, including one sent by her on 11 July 2017, some three weeks before she entered Australia with the cocaine in her luggage:

5. [32]

   Mr Cornelius had earlier written to Ms Woodrum on 29 April 2017, 30 April 2017 and 1 May 2017 respectively in these terms:

6. [33]

   It is common ground that Ms Woodrum had neither met nor spoken to Hendrik Cornelius at any time.

7. [34]

   In my opinion, the deception practised upon Ms Woodrum is clear and significant. It importantly informs the assessment of her moral culpability. The matter can be tested by asking whether it appears likely that a person with Ms Woodrum’s impeccable background and strong subjective circumstances would have been inclined to engage in serious criminal activity with “Hendrik Cornelius” in the absence of some expectation, however unlikely this may appear to a detached and rational observer, of a future romantic association with him. I consider that such a prospect is almost non-existent.

8. [35]

   I also take account of the fact that Ms Woodrum has never before been imprisoned and that her first such experience is in a foreign land separated geographically from her family and friends. In my opinion, Ms Woodrum has excellent prospects of rehabilitation and is unlikely ever to re-offend. There is a corresponding lack of any need for specific deterrence.

9. [36]

   In all of the circumstances, I consider that the following orders should be made:

   1. (1)

      Grant Ms Woodrum leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed upon her by Wass DCJ on 6 September 2018.

   4. (4)

      In lieu thereof, sentence Ms Woodrum to a non-parole period of imprisonment of 3 years commencing on 4 August 2017 and expiring on 3 August 2020 with a balance of term of 2 years expiring on 3 August 2022.

10. [37]

    CAVANAGH J: I agree with Harrison J.