Regina v Michel Francois Dizel [2002] NSWSC 1309 (23 August 2002)

REGINA v MICHEL FRANCOIS DIZEL

60543/95

Friday 23 August 1996

IN THE COURT OF CRIMINAL APPEAL

COLE JA, STUDDERT J, SULLY J

JUDGMENT

STUDDERT J: The applicant, Michel Francois Dizel, seeks leave to appeal against a sentence imposed by his Honour Judge Freeman in the District Court on 5 September 1995. On that date the applicant pleaded guilty before his Honour on a charge of having imported a prohibited drug in a quantity being not less than the traffickable quantity. The drug was commonly known as ecstasy and the quantity involved was 40.9 grams of pure narcotic. The drug was said to have an estimated street value of $12,400, there being 310 tablets imported.

The sentence imposed was a term of imprisonment for ten years and his Honour fixed a non-parole period of seven years six months. The sentence was expressed to date from the date of his arrest, namely, 24 February 1995, and the release date fixed was 23 August 2002.

This was an offence under s 233B(1)(b) of the Customs Act and s 235(2)(d) of that Act imposed for this category of offence a maximum penalty of twenty-five years imprisonment and/or a fine not exceeding $100,000.

Shortly the facts were these. On 24 February 1995 the applicant arrived at Sydney Airport on a flight from Bali. Upon arrival he was subject to a search by customs officers. He denied being in possession of any narcotics but the suspicions of the customs officers were aroused and eventually he was taken to St George Hospital where x-rays revealed three foreign objects in his person. These were, in due course, passed by the applicant and were found to be packages containing the ecstasy tablets. The applicant informed police that he acted as a courier simply to make money. He claimed that he was to be paid in all $5000 for his role in the importation.

The applicant was, at the time of sentence, thirty-eight years of age. He was a Frenchman, born in France, who, according to information placed before the court in the pre-sentence report, spent most of his adult life overseas. He is a single man who told the probation officer he had a longing for travel. There was evidence that this was not the applicant's first experience in importing drugs. He had attempted to smuggle a quantity of cocaine into Japan after a flight from Brazil in 1989 and he was duly convicted in respect of that importation in Japan and sentenced to six years imprisonment on 5 July 1989. It would seem that there must have been some early release system because otherwise the applicant would not have been free to come to Australia in February 1995.

The applicant had also previously offended in relation to some drug matter in France in November 1985 but the sentencing judge had no details before him as to the nature of that offence in France and, quite properly, he expressly remarked that he paid little heed to that matter. He did, however, regard as of much greater importance the Japanese offence involving the importation of more than a kilogram of cocaine.

The applicant pleaded guilty in the District Court but his Honour observed, in my view correctly, that the prisoner's plea was simply a recognition of the inevitable having regard to the circumstances of his apprehension. Nevertheless the applicant was entitled to some benefit from the plea by reason of saving the expense and time associated with a trial and his Honour expressly recognised this.

This sentence is challenged on two bases:

1. that his Honour misdirected himself in applying s 5(2) of the Sentencing Act;

2. that the sentence imposed was manifestly excessive.

As to the first of these grounds the learned judge arrived at a head sentence of ten years imprisonment and went on then to remark:

"I see no reason to depart from the ordinary proportions of such a sentence, so that I would direct the prisoner be released after seven and a half years of that term, subject, of course, to his own behaviour in the interim."

It was submitted that that remark ought to be regarded by this Court as reflecting the erroneous application of s 5(2) of the New South Wales statute, which, of course, did not apply in this sentencing exercise. Mr Sides submitted in his written submissions that the discretion in fixing the non-parole period was not fettered by legislation and that, accordingly, the common law principles expressed in the judgment of this court in R v Lian ((1990) 47 A Crim R 444) applied.

The submission made by Mr Sides as to the application of common law principles in determining the non-parole period I accept as being correct. However, I do not accept, from a reading of his Honour's remarks on sentence in their totality, that his Honour departed from the common law principles as summarised in Lian's case.

It seems to me that the remarks of this experienced sentencing judge must be regarded with the well-known decision in R v Ferrer-Esis ((1991) 55 A Crim R 231) in mind, a decision indeed to which his Honour referred. That, of course, was a case concerning the importation by a courier of cocaine. In his judgment Hunt J, as he then was, said at p 236:

"The recognised pattern of sentencing for couriers of substantial quantities of heroin ... produced head sentences of between twelve and sixteen years, with minimum terms generally fixed within the order of approximately sixty to seventy-five per cent of the head sentence."

The pattern then referred to in Ferrer-Esis was the setting of a minimum term within the range sixty to seventy-five per cent of the head sentence. So it was that the structure of this sentence involved no departure from the proportions contemplated in Ferrer-Esis since the minimum term fixed of seventy-five per cent was within the range expressed. I do not treat the remarks made by the sentencing judge as reflecting any departure in terms of the setting of the minimum and additional terms from the recognised pattern recorded in Ferrer-Esis, and his reference to "ordinary proportions" can be seen as a preference to the proportions considered in that case.

In any event I do not interpret his Honour's remarks on sentence as indicating that his Honour felt constrained to apply some rigid mathematical formula. The learned judge, with his customary lucidity, dealt with the relevant objective and subjective features in this case in a manner which, to my mind, could attract no justifiable criticism and discloses no error of fact or of principle.

This leaves, however, the second troublesome submission advanced by Mr Sides that the sentence imposed was manifestly excessive.

The judge here started with a head sentence of fifteen years before discounting that as required by s 16G of the Commonwealth Crimes Act. He thus arrived at the head sentence of ten years. Was this manifestly excessive by way of punishment for the applicant as a courier involved in the importation of a trafficable quantity of ecstasy?

The Court has been referred to a limited number of cases but for myself I do not find them to be particularly helpful in the present exercise. It is trite to observe that each case has to be looked at with regard to its own particular facts and circumstances.

One of those cases was a decision of this Court in R v Moore & Weibe (unreported, 11 August 1992). In that case Wood J said of the drug ecstasy that it was a drug that should be treated as a middle range drug. His Honour added:

"Middleman and couriers who become involved in commercial dealings in mid range drugs must expect substantial sentences."

In the same case, however, the Chief Justice remarked on that case that it was an inappropriate one:

"to treat as a vehicle for a detailed examination of the range of sentences that ought to be imposed in relation to importation of the drug ecstasy."

In the passage from Ferrer-Esis cited earlier, reference was made to the range where the drug heroin was concerned, and in that case, of course, cocaine was put on a like footing with heroin. Ecstasy, consistently with what was said in this court in Moore v Weibe is not to be regarded as being on precisely the same level. His Honour though recognised this in his sentencing remarks at p 6:

"It is said by the Court of Criminal Appeal in Regina v Ferrer-Esis (1991) 55 A Crim R 231 there is a pattern of head sentences for couriers of substantial quantities of heroin. This drug, of course, is not heroin".

However, he went on to say:

"Nonetheless, it is regarded as an extremely serious drug by virtue of the minimum weight identified as its traffickable quantity and of course I am dealing with an offender with a history of illegal importation"

The applicant has submitted that having regard to the quantity involved, having regard to the plea of guilty and the nature of the drug that the penalty imposed was excessive.

The traffickable quantity of this drug as set out in Schedule VI of the Customs Act is 0.5 grams. The quantity here imported was over 40 grams. The importation was motivated purely by a desire for monetary gain and this courier had the previous record of having imported drugs. This is the sort of case in which deterrence is a most important consideration and this clearly was very much in the mind of the sentencing judge.

This Court today has been asked to receive fresh evidence contained in an affidavit of the applicant and, in particular, para 3 of that affidavit which refers to studies which the applicant has been undertaking whilst in custody and studies which he had embarked upon before he was dealt with by the sentencing judge.

Having reflected upon the evidence before the judge and bearing in mind that additional material today, I am not persuaded that the sentence imposed in this case was outside the proper range available. Certainly it was a very stern sentence but it was a grave crime, particularly having regard to the subjective features I have reviewed.

In the result I have come to the conclusion that there is no warrant for this Court to intervene. I would propose that leave to appeal be granted but that the appeal be dismissed.

COLE JA: I agree. I would only add that in my opinion the sentence imposed by Judge Freeman was undoubtedly appropriate.

SULLY J: I agree.

COLE JA: The orders of the Court will be those Mr Justice Studdert has indicated.