R v Cohen [1998] VSC 309; [1998] VICSC 79 (11 May 1998)

Last Updated: 25 May 1998

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 257/1997

THE QUEEN

v.

YEHUDA ARIK COHEN

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JUDGES: BROOKING, TADGELL and PHILLIPS, JJ.A.

WHERE HELD: Melbourne

DATE OF HEARING: 11 May 1998

DATE OF JUDGMENT: 11 May 1998

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CATCHWORDS: Criminal law - Drug importation - Heroin - Sentence - Whether allowance made for absence of remissions - Sephardic Jew for whom incarceration more than ordinarily burdensome - Sentences in other cases - Utility of comparison - 4-and-a-half years' imprisonment with minimum term of 2-and-a-half years not manifestly excessive - Customs Act 1901 (Cth.) s.233B(1)(b); Crimes Act 1914 (Cth.) s.16G.

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APPEARANCES: Counsel Solicitors

For the Crown Mr G.J.C. Silbert Director of Public

Prosecutions (Cth.)

For the Applicant Ms M.A. Hardham David Grace & Co.

BROOKING, J.A.: Tadgell, J.A. will deliver the first judgment.

TADGELL, J.A.: The applicant, Yehuda Arik Cohen, complains of a sentence imposed upon him in the County Court on 14 November last year. He was arraigned on 17 September 1997 on one count of importing, on or about 16 February that year, not less than a trafficable quantity of heroin contrary to sub-s.(1)(b) of s.233B of the Customs Act 1901 of the Commonwealth. The maximum penalty for that offence is imprisonment for 25 years or a fine of $100,000 or both. Following a plea for leniency, the applicant was sentenced to be imprisoned for four-and-a-half years and it was ordered that he serve a term of two-and-a-half years before becoming eligible for release on parole. Pre-sentence detention of 271 days was provided for.

The applicant, an Israeli national, then 23 years old, arrived alone in Melbourne by air from Thailand on 16 February 1997. He denied to customs authorities that he had anything to declare. After a frisk search by a customs officer, to which he consented, he was told that it was believed that he might have drugs internally concealed in his stomach. This he also denied and he refused an x-ray examination. An Australian Federal Police officer was summoned, to whom the applicant denied again that he was concealing narcotics. A magistrate's order was obtained to authorise the applicant's detention. He was taken to the Royal Melbourne Hospital where, by degrees and at length, by 19 February, he passed, per anum, 199 pellets or packets containing white powder. The pellets contained in all 404.7 grams, that is, over 14-and-a-quarter ounces, of powder, an analysis of which revealed that it contained 293.27 grams of pure heroin. A trafficable quantity of heroin is defined in Schedule VI of the Act as 2.0 grams and a commercial quantity as 1.5 kilograms. It ultimately became common ground upon the hearing of the plea that the wholesale value of the heroin which the applicant had imported was $160,000 or thereabouts.

Upon being interviewed on 20 February, the applicant made very few useful admissions. He was arrested and, in May, sought further interview, during which he was more co-operative. He then admitted that he had been offered $5,000 to carry the drug into Australia and gave some more information which, however, did not result in further arrests.

The applicant is a Sephardic Jew. According to the material adduced upon his plea, he was strictly and virtuously brought up in a devoted family, although his parents had separated when he was very young and the only child of their marriage. His upbringing was, it seems, largely in the hands of his grandparents and an aunt. The applicant was said to have led a comparatively sheltered life until his military conscription at the age of 18 years. He then served under strict regimentation until the age of 21 years, including a period in the Israeli Navy during which he saw armed combat, when some of his fellow conscripts were apparently lost. This privation is said to have had a disturbing effect upon his equilibrium, and it is suggested that it produced something akin to post-traumatic stress syndrome. After discharge from the armed services in 1995 the applicant, after some work experience at home, embarked on foreign travel, ultimately to India, Japan and south-east Asia. As a naive, unworldly and gullible youth, so it was said, he took to using, and ultimately abusing, a variety of hallucinogenic drugs and was ultimately led to act as a courier on the journey which has led to his present predicament. He had, until this offence, as it was said, led an impeccable life.

What was said to be the exemplary nature of the applicant's upbringing and his conduct until his recent lapse was commended by his counsel upon the plea. The learned judge expressed himself unable to conclude, however, that the applicant was an innocent abroad as regards drugs when he was approached to commit the relevant offence. His Honour specifically did not accept that the applicant was lacking in worldliness and that he did not know fully what he was doing. In forming that view his Honour was perhaps influenced by the applicant's lifestyle in Asia, which evidently accommodated a serious relationship for six months with a French woman two years his senior and a subsistance which seems to have been akin to that of an itinerant pedlar. His Honour did apparently accept, however, that the applicant had been duped by those who used him to believe that the substance he was carrying when he came to this country was a drug less harmful than heroin.

The incidence of the applicant's strict religious beliefs upon his conviction and his incarceration was strongly relied on before the judge. The applicant had been in custody ever since his arrest. During that time he had as a consequence been deprived in particular of opportunity to practise in full the formalities of worship, as, for example, by donning the phylacteries, as his religious persuasion required. His incarceration also largely deprived him of access to kosher food, thus limiting what was available to him legitimately to eat and resulting in generally constant hunger. The applicant's incarceration, when viewed against his blameless and youthful background, is said to have occasioned him extreme humiliation, and he is said also to be overcome by remorse. This is intensified by the shame which his conduct has brought upon his family in Israel, report of it having been made there in the press. The applicant has no relations or friends in this country but has been fortunate to attract the attention of some concerned members of the Jewish community and the Jewish honorary prison chaplain. These people verified to the judge the genuineness of the applicant's religious attitude, his essential decency, his marked remorse and his acknowledgment of his folly in committing this offence.

The submissions which were made to us this morning were founded upon two grounds in support of the application. The first was that the sentence imposed was, in all the circumstances of the case, manifestly excessive. The second, which was more recently added as a ground by leave of the Registrar of Criminal Appeals, reads:

"The learned sentencing judge failed to apply or alternatively failed to give sufficient weight to s.16G of the Crimes Act 1914 (Commonwealth) in determining the head sentence and the non-parole period."

Although that last-mentioned ground was argued last on the applicant's behalf before us, I will find it convenient to deal with it first. When the addition of the ground was drawn to the learned sentencing judge's attention, he provided to the Court a supplementary report designed to deal with the second ground, in which he said, relevantly, this:

"Whilst I do not recall any discussion of s.16G taking place at the plea hearing (the transcript will show if there was any - no transcript was provided in this case), I cannot now say that I specifically had s.16G in mind when sentencing the appellant. However, what I did have in mind was the range of Commonwealth sentences imposed by Victorian courts for the type of offence to which the appellant pleaded guilty and to which sentences I had been referred either by counsel for the prosecution or by counsel for the present appellant. Of course, I also had in mind the circumstances personal to the appellant and of his crime."

Ms Hardham, who appeared this morning for the applicant, acknowledged that, while the learned judge did not in terms refer to s.16G in the course of his sentencing remarks, he had been directed to the provision by counsel for the Crown. The submission to us was that, if the judge did take the matter into account, and there is nothing to show that he did, he cannot have given sufficient weight to the provision. Ms Hardham referred us to the case of R. v. Li, a decision of this Court on 18 April 1997, in which the question arose whether s.16G had been applied by a judge imposing a sentence in the County Court. The judge was asked to produce a report upon the point and did so, from which it appeared that his Honour conceded that he was left with the uneasy feeling that, for some inexplicable reason, he did not apply the section. Moreover, counsel for the Crown conceded, apparently, that the correct conclusion to be drawn upon the application for leave to appeal was that the judge had not applied s.16G. That he had not applied it was perhaps confirmed by his having referred in terms to s.10 of the Sentencing Act of this State but not to s.16G. In the circumstances of that case the Court of Appeal was satisfied to proceed upon the footing that the judge had erred in failing to apply s.16G. Although Ms Hardham sought to draw a parallel between the case of Li and the present case there is, I think, none properly to be drawn. Here, there is no concession by the judge that he did not apply the provision, nor, I think, can it reasonably be inferred that he did not apply it.

There has in this State been existing for some nine years now a sentencing regimen which requires a sentencing judge to take into account an absence of remissions, if that be the case, in fixing sentence. The present case was one where remissions were not available to the applicant. The judge was referred by counsel for the Crown upon the plea to s.16G in specific terms and, although his Honour did not refer to it in the course of his sentencing remarks, it should, I think, be inferred that he did take it into account. In the absence of specific error or some other reason discernible from the sentencing remarks or the actual sentence itself, it seems to me that it would be wrong to conclude that the judge erred in the manner alleged by the second ground.

In support of the first ground, Ms Hardham referred to a number of particulars which were said to support it. Although she was unable to place a finger on specific sentencing error, the submission was that, by failing to take into account a number of matters by way of giving them sufficient weight, error was shown. These, particularly relied on this morning and elaborated on in the written outline of submissions, included the applicant's age, his previous good character and strong prospects of rehabilitation; his religious background, the time that he had spent in the armed forces and his family circumstances; his psychological difficulties, which were said to have flowed from his military experience; the particular effect of imprisonment on the applicant; his co-operation with the authorities, such as it was; the degree of culpability; the personal danger to which the applicant had been exposed by having ingested the drug in the quantity that he had; and, finally, his plea of guilty and his evident remorse.

The judge recognised, as he had to, that gaol for this applicant would be hard. It is well recognised that the likelihood that a prisoner's incarceration will be more than ordinarily burdensome is generally relevant to the determination of an appropriate sentence of imprisonment. It can usually be expected that such a likelihood, if brought to the attention of the sentencing judge, will be taken into account as a matter of common humanity in the imposition of a sentence: see, for example, R. v. Norman and Briggs, Court of Appeal, unreported, 17 April 1998. The judge certainly took into account, when formulating his sentence, the cultural and religious isolation which the applicant had already suffered, and would presumably continue to suffer, during his period of incarceration. Indeed, his Honour took into account all matters of mitigation of a kind personal to the applicant that were commended to him and which were summarised in the course of the submission made on his behalf this morning. These matters included the applicant's eventual co-operation with the authorities and his plea of guilty; his remorse, demonstrated by the plea and otherwise demonstrated; his shame and humiliation and the reasons for it; his youth and his hitherto conviction-free life, as well as his prospects of rehabilitation. On the debit side, as it were, the learned judge stated that, while he did not consider personal deterrence to be a significant factor, he did regard the factor of general deterrence as intensely significant, as it indubitably was; and his Honour expatiated on the poisonous consequences to this country of the importation of evil drugs such as heroin.

Reference was made in the course of the plea, both by counsel for the applicant and by counsel for the Crown, to a number of sentences for similar or related offences committed in what were said to be similar or related circumstances to those in which the applicant committed his offence. His Honour claimed to take these so-called comparative sentences into account. This morning, counsel for the applicant offered to take us through some of them. She was, however, deterred by comments from the Bench. I should like to say that, generally, a consideration of what are called comparative sentences of the kind that I have mentioned is not usually helpful. For one thing, no one case is the same as any other case with which we have to deal on this kind of application. For another thing, different judges legitimately take different views of the facts of past cases, even if they might be regarded as having some similarity to the case in hand. A view taken by one judge of a case is thus not necessarily to be regarded by reference to his sentence and his sentencing remarks as a useful guide to another judge. Of course, other judges will have some regard to what is vulgarly called a "tariff". In the end, however, a judge has a discretion to impose a sentence which seems to him or her to be appropriate; and that is not to say that, when a similar kind of case arises again, the same appropriateness is to be regarded as proper by another judge.

The seriousness of the present case is undoubted. The learned judge below was entitled to take the view that he did and expressed about the danger to the community and the tragedy in the community which is produced by the kind of conduct for which the applicant fell to be sentenced.

It was urged before us this morning that his Honour could not, taking into account all the matters of mitigation which fell to be taken into account including the application of s.16G, have given sufficient weight to them all. Some kind of mathematical, or at least arithmetical, exercise was attempted with a view to demonstrating that the sentence was altogether too high, before mitigating factors were properly applied to it, in order to justify the sentence of four-and-a-half years with the two-and-a-half years minimum that his Honour imposed. It was said, for example, that it should be assumed that an application of s.16G would have resulted in a reduction by one third of the sentence with which his Honour began. A similar kind of point was put to this Court recently in R. v. Ipolo, decided on 21 April last. There, something was sought to be made of the judge's statement that he had taken "full account" (his words) of the requirement of s.16G. The argument was that, because he had admittedly taken full account of that section, it is to be assumed that he had reduced by one third the sentence which he would otherwise have imposed. This Court, dealing with that submission, said that we did not know, because the judge did not say, what adjustment he had made pursuant to s.16G. The same is to be said here assuming, as I have, that s.16G was applied. At best, it may be said that the judge was obliged to take it into account, and it may be inferred that he did take it into account, as one consideration among a number in the evaluation of the sentence that he was to impose. Again, it is, I think, unprofitable to speculate upon the quantum of the reduction which the judge should be taken to have made on account, for example, of the plea of guilty. We were referred to the reasons of Callaway, J.A. in R. v. Duncan, Court of Appeal, unreported, 26 May 1997. It was said that the catalogue of instances set out by his Honour there should be applied here, and that we should decide what the judge ought to have made and did make, and perhaps that he did not make, by way of a reduction commensurate with what should have been allowed by reason of the plea of guilty.

It is, I think, in the end, idle to engage in any game with numbers of that kind. The judge, as is well known, was required to form a conclusion by way of synthesis of all the matters properly to be taken into account in reaching an appropriate sentence. It seems to me that that is what his Honour did. A sentence of four-and-a-half years for the offence, committed in all the circumstances in which it was committed, was within the range of sentences that was open to him.

It was also submitted that, even if the judge properly took into account s.16G in imposing the head

sentence, he was led into error by the Crown in failing to take it into account when directing the minimum term to be served. We were referred to Director of Public Prosecutions v. El Kahani (1990) 21 N.S.W.L.R. 370, particularly at 385-6, which was said to lend some support for that submission. Without referring to the case, I am content to say that in my opinion the disparity here between the head sentence imposed and the minimum term directed seems to me to be unexceptionable.

For these reasons I would disallow the present application.

BROOKING, J.A.: I agree.

PHILLIPS, J.A.: I also agree.

BROOKING, J.A.: The order of the Court is that the application is dismissed.

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CERTIFICATE

I certify that this and the 10 preceding pages are a

true copy of the reasons for judgment of the Court of

Appeal of the Supreme Court of Victoria (Brooking, Tadgell and Phillips, JJ.A.) delivered on 11 May 1998.

DATED this day of 1998.

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Associate