CRIMINAL CASE NO. 452 OF 2011
COURT: I have to sentence you both for trafficking in a dangerous drug. You were both caught together, acting as couriers. You were leaving the airport to go to Sydney. Each of you had heroin hidden in your shoes. You had both been recruited by the same organisers and both had been in a position to be tempted by them because you were in debt to them as loan-sharks.
The drug in question was heroin and you both had similar amounts; they are not identical. You, the 1st defendant, had 460 grammes and you, the 2nd defendant, had 480 grammes. The amounts will prompt no distinction between the two of you.
It will have been explained to you that sentencing for drug trafficking depends on guidelines here which are based on the nature and the quantity of the drug. For the drug you two were trafficking, namely heroin, you fall into the bracket that runs from 400 grammes to 600 grammes, attracting a starting point for imprisonment after trial of 15 to 20 years.
You both earn a one-third discount because of your pleas of guilty.
When it comes to looking at the sentence, I am bound to factor into it something to reflect the aggravation of there being an international element in the crime. If it had been a standard sort of case, completely straightforward, I would have probably taken a starting point of 16 years’ imprisonment.
The mitigation advanced on behalf of you both has similarities. You are both middle-aged men. You, the 1st defendant, are 43 years of age and the 2nd defendant, you are 53. Other than a $300 fine for an offence of theft in relation to the 1st defendant, which, for practical purposes, I shall ignore, you are both men of good character. If that good character had a weakness, in each case, it was gambling and that is what has led to you being in the dock today, indirectly.
You were both co-operative with the police and you both entered pleas of guilty in the Magistrates Court. It is asserted on your behalf that this was the first time you had ever been involved with anything like this and from all I know about the case, I am willing to accept that submission.
Bearing in mind all of that, I shall tend towards the merciful without straying from the guidelines. The amount does not actually fix the exact starting point. I start notionally at the bottom of the bracket of 15 years; I would add 6 months for the international element, it being below 500 grammes, and I look at a starting point of 15½ years. That would give a sentence of 10 years and 4 months.
It was the fact, curiously, in this case that when you were taken to the Magistrates Court, you were both charged with trafficking in ketamine. Never mind why, the initial test on the drug carried out indicated that it was ketamine and not heroin. It was only when the GCC came through for the committal proceedings that the true nature of the drug was discovered.
That mistake by the Customs can have had no bearing on your state of mind at the time as to your belief in the nature of the drug but it does provide some mitigation in this way, that obviously, when you were first remanded, having made your full confessions, you worried about what was going to happen to you and you asked the fellow inmates at the remand centre what the likely result was and, of course, they told you about the sentences based on the ketamine guidelines. I can quite see why you thought, for a time, that you were going to face lesser periods of imprisonment than in fact you are going to have to serve. Counsel, on your behalf, asked me to reflect that modestly when it comes to the overall sentence.
So what I am minded to do is, having got myself to 10 years and 4 months, is shave off the 4 months and get myself to 10 years. D2, that is the sentence I am going to pass on you on Count 2. It is designed to be a lenient sentence in the circumstances, within the guidelines.
Let me just say this, that within the guidelines, there has to be some flexibility exercise because you could have been a 20-year-old with no time to accumulate a good character and you could have pleaded guilty at the door of the court, and you could have then gone, “I still want the same starting point, I still want the same one-third discount” and I do not think it should work like that.
So you, the 2nd defendant, the sentence is 10 years and that is the least sentence I feel I can pass consistent with the public duty I have to perform.
Let me turn to you, the 1st defendant, because there is an extra dimension in your case. That extra dimension arises because, when you were arrested, you indicated your belief that the drug in question was 'K Chai'. You repeated that in the subsequent video-recorded interview that took place.
Of course, a belief that the drug was a less serious one is capable of affording some mitigation. The extent of such mitigation obviously varies with the circumstances. The prosecution acknowledge, in your case, there is nothing to contradict your assertion and, in effect, knowing what they know about you and the like, they have not been keen to make a contest out of it.
It seems to me, in a case like this, that the mitigation could not approach the significance if I accepted an assertion made that, if you had been told it was heroin, you would not have done it. But, realistically, no such claim is made. Your counsel took your instructions on this topic during the course of the hearing this morning and you did not take the route that I see sometimes, in this court, that desperate, dishonest men take.
You gave instructions which I judge to be true ones, which were you would still have done it, you did not really think very much about the nature of the drugs, you just wanted to earn the reward. That diminishes the scope for the mitigation based on a belief in the nature of the drug being different but it does not extinguish it.
One of the dimensions of the case to which I have to give attention is that I suspect the state of mind between the two of you was very similar at the time. The narrow basis for the mitigation based on mistaken belief comes down to almost a matter of chance because, in the 2nd defendant’s interview, he was asked what did he think it was he was carrying and he said “funny stuff”. “Did you guess what it was?” “I guessed it was those -- kind of those K drugs.”
If he had stopped there, he might have had a bit more mitigation, but he went on to say, “In fact, it was a kind of white powder”; whereas, in your interview, you said, “He told me” - referring to those who recruited you - “that the drugs were 'K Chai'”.
The fact is, in this case, the depth of any moral difference between the two of you has to be seen to be shallow. However, it does not mean that I ignore the potential for mitigation completely, but I hope I have explained to you why it has to be modest.
I shall give a further discount of 6 months in your case, producing a sentence of 9½ years on Count 1.
Again, in the circumstances of your case, I have passed a sentence I regard as the least I can consistent with my public duty. It may be pointed out that I have been generous in some regards but not generous on that mistaken belief ground, but I judge, in the circumstances of this case, your belief about the nature of the drugs never went to any central sort of issue, it was always something that was truly described as peripheral.