[2016] QCA 14

COURT OF APPEAL

HOLMES CJ
MORRISON JA
McMURDO JA

CA No 188 of 2015
SC No 267 of 2015

THE QUEEN 

v

HUGHES, Malcolm Martin 	Applicant

BRISBANE

FRIDAY, 5 FEBRUARY 2016

JUDGMENT

PHILIP McMURDO JA:  The applicant seeks leave to appeal against a sentence of seven years imprisonment with a non-parole period of four years imposed for one count of importing a marketable quantity of heroin contrary to s 307(2) of the Criminal Code 1995 of the Commonwealth.  The maximum penalty for this offence is 25 years imprisonment.  The applicant, who is now without legal representation, contends that the sentence was manifestly excessive and that a head sentence of four to five years with a non-parole period of two to three years should have been imposed.
The facts of this offence according to an agreed statement of facts were as follows.  The applicant arrived at the Gold Coast International Airport on a flight from Kuala Lumpur.  When he was collecting his baggage, a customs officer found a roll of cling wrap unopened in its box in the applicant’s suitcase.  This aroused suspicion.
Customs officers then conducted an ionscan swab for narcotics on the defendant’s shoulder bag, which returned a positive result for heroin.  The applicant said that it was a bag that he used at the markets in Thailand, where he lived, and which he sometimes gave to other people.
He was then searched and found to be carrying three parcels between two pairs of underpants which he was wearing.  Each parcel contained a substance, which he then admitted was heroin.  He said that he was carrying the bags on behalf of someone else, whom he did not identify, and offered that the weight of the items would be about 350 grams.
In that, he was correct.  The gross weight was 343 grams with a pure weight of heroin of 231 grams.  The estimated a street value of this quantity was in excess of $680,000.  The applicant told customs officers that he had planned on catching a bus to Byron Bay and waiting for others to contact him by phone.  He was then arrested and declined to be interviewed.
The applicant was born in the United Kingdom and was 62 years of age at the date of this offence in October 2014.  He had been living in Thailand for about 14 years, married to a Thai national, with whom he had a young child.  He had no criminal history.  His explanation for the offence was that the small businesses conducted by the applicant and his wife in Thailand had recently failed and that he had started to drink heavily and gamble in illegal casinos in Thailand, where he had incurred unpaid debts.
The sentencing judge referred to a number of mitigating factors: his plea of guilty, which he’d indicated at a very early stage, his admissions when apprehended and his insight as to his offence.  His Honour emphasised the need to deter others from committing a like offence.
The applicant’s argument here relies upon a number of circumstances which in combination made the sentence excessive.  He says that his offence was committed under duress and not purely for financial gain or greed.  The sentencing judge did not make a finding on this but noted that this was his counsel’s submission and said that if it was true, it provided an explanation but not an excuse for the offence.  The applicant contends that he was not involved in the planning of the offence but simply followed instructions.  But the sentencing judge said that there was clearly an element of deliberation in his conduct.
In other instances, the applicant makes submissions which are critical not of the reasons of the sentencing judge but of the prosecution’s submissions which were made to his Honour.  It is sufficient to say that his Honour was not misled by those submissions, if the applicant’s description of them is accepted.  As I have said, ultimately there is no complaint of any specific error appearing from the reasons but only that the sentence is manifestly excessive.
In the applicant’s written outline, he refers to a number of cases which he says are comparable and which are apparently cited to support his argument.  As is submitted for the respondent, most of these cases involved heavier sentences, at least partly explained by the larger quantities of drugs involved.  Notably, none of the cases involved a lighter sentence than the present one, except for R v Ngui & Tiong [2000] VSCA 78, where the sentence was reduced under s 21E of the Crimes Act and the sentence which would have been imposed was nine years with a non-parole period of six years.
The more recent of these cases are Kuti v The Queen [2012] NSWCCA 43, Seah v The Queen [2011] NSWCCA 269 and R v Mokoena [2009] QCA 36; [2009] Qd R 351.  In Kuti, the quantity of heroin was about twice that of the present case.  The offender was 69 years of age.  He had no prior criminal history and four dependent children.  An appeal against a sentence of seven years with a non-parole period of four and a-half years was dismissed.
In Seah, the quantity was again about twice that of the present case.  He was 37 years of age and was sentenced as a courier.  An appeal against a sentence of eight years with a non-parole period of five years was dismissed.  In Mokoena, the applicant was to be paid $10,000 for acting as the courier of about 890 grams, which would yield 497 grams of heroin, with a street value of just under $1 million.  His application for leave to appeal the sentence of nine years with a non-parole period of four years, nine months was dismissed.  In each of these cases, the quantity was larger.  Although that is a relevant factor, it is not the chief factor: Wong v The Queen (2001) 207 CLR 584.
In his oral submissions, the applicant referred to a sentence imposed by the Victorian Court of Appeal in Pham v The Queen, which was, however, set aside by the High Court for an error in that court’s reasoning: see The Queen v Pham [2015] HCA 39.
In my conclusion, the applicant has failed to demonstrate that this sentence was manifestly excessive.  I would order that the application be refused.
THE CHIEF JUSTICE:  I agree.
MORRISON JA:  I also agree.