Alpha v R

[2013] NSWCCA 292

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Alpha v R [2013] NSWCCA 292
Hearing dates:	8 November 2013
Decision date:	28 November 2013
Before:	Leeming JA [1] Bellew J [3] RS Hulme AJ [80]
Decision:	(i) The application for an extension of time in which to seek leave to appeal is dismissed.
Catchwords:	CRIMINAL LAW - appeal - practice and procedure - where substantial delay in filing notice of intention to appeal - where extension of time required - where delay not adequately explained - principles to be applied in determining an application for an extension of time CRIMINAL LAW - appeal - where asserted disparity in sentence imposed upon the applicant when compared with sentences imposed on co-offenders - where applicant and co-offenders were part of a conspiracy to import a substantial quantity of MDMA -where applicant's role found by the sentencing judge to be greater than that of co-conspirators - where finding not challenged - principles to be applied in assessing the role of conspirators - necessity to go beyond isolated overt acts in which a conspirator may have engaged - where sentencing judge adopted a starting point in sentencing the applicant which was 9 years higher than that adopted in the case of co-offenders - no justifiable sense of grievance - no substantial injustice arising from the sentence imposed - application for extension of time dismissed
Legislation Cited:	Criminal Code 1995 (Cth) Firearms Act 1996 NSW Weapons Prohibition Act 1998 NSW
Cases Cited:	Abdul v R [2013] NSWCCA 247 Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 27 Gill v R [2010] NSWCCA 236 Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 Lowe v R (1984) 154 CLR 606 McCraw v R [2011] NSWCCA 162 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Pavicevic v R [2010] ACTCA 25 R v Spizzerri [2001] VSCA 49 R v Swan [2006] NSWCCA 47 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 Tatana v R [2006] NSWCCA 398 Tyler v R; R v Chalmers [2007] NSWCCA 247 Winter v R [2013] NSWCCA 231
Category:	Principal judgment
Parties:	Alpha - Applicant Crown - Respondent
Representation:	Counsel: W P Lowe and S Milanovic - Applicant C O'Donnell - Respondent Solicitors:
File Number(s):	2008/16246003
Publication restriction:	Nil
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-04-09 00:00:00 Before: Lakatos SC DCJ

Judgment

1. LEEMING JA: I agree with Bellew J's reasons for dismissing this application. In particular, I agree with his Honour that the approach stated by this Court in Abdul v R [2013] NSWCCA 247 at [53] is to be applied to all cases in which an extension of time is sought. That approach requires regard to be had to all relevant factors: the extent of and explanation for the delay, the interests of the community and the victim, and also whether substantial injustice would result if the extension were refused. Some of those considerations reflect the principle of finality considered in detail in Abdul. However, as Basten JA pointed out in Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 at [42] and [46]-[47], the principle of finality is a concept which operates at a high level of generality, and is not to be applied in isolation, but rather falls to be assessed in criminal appeals in light of the high value placed on fair procedure and correct outcome.

1. It follows that even though the delay by the applicant is significant, and in large measure unsatisfactorily explained, it remains necessary to examine the merits of the proposed appeal. However, that examination can, and in many or most cases should, be conducted in a "more summary fashion" than would ordinarily be the case on the hearing of an appeal. That must be so; it cannot be the case that the same level of curial scrutiny is required in order to determine an application for leave as is required by an appeal. Otherwise the considerations favouring bringing litigation to an end would be disregarded, and the time limits imposed by the Legislature would become entirely otiose.

1. BELLEW J: Following a lengthy trial in the District Court, the applicant (whose identity is protected by a suppression order and who has been referred to in these proceedings as "Alpha") was found guilty of conspiring to import a commercial quantity of a border controlled drug into Australia, contrary to ss. 11.5(1) and 307.1 of the Criminal Code 1995 (Cth) ("the Code").

1. The border controlled drug was 3, 4-methylenedioxymethamphetamine also known as MDMA or "ecstasy". Pursuant to s. 314.1 of the Code the commercial quantity of MDMA is 500 grams. The quantity of pure MDMA which was imported was 30.82 kilograms. The maximum penalty for the offence is life imprisonment.

1. The applicant was also charged with four other offences following a search of his residential premises at the time of his arrest. Those offences were as follows:

(i)   possess unlicensed pistol (Firearms Act 1996 s. 7(1));

(ii)   possess ammunition without licence (Firearms Act 1996 s. 65);

(iii)   fail to keep firearms safely (Firearms Act 1996 s. 39); and

(iv)   possess prohibited weapon, namely a ballistic vest (Weapons Prohibition Act 1998 s. 7(1)).

1. In respect of the conspiracy charge, the applicant was sentenced by his Honour Judge Lakatos to a total term of imprisonment of 15 years and 6 months commencing on 7 January 2009 and expiring on 6 July 2024. A non-parole period of 10 years and 4 months was imposed. The applicant will be eligible for release on parole on 6 May 2019.

1. In respect of the additional charges his Honour imposed the following penalties:

(i)   possess unlicensed pistol: fixed term of 18 months imprisonment;

(ii)   possess ammunition without a licence: a fine of $500.00;

(iii)   fail to keep firearms safely: fixed term of imprisonment of 6 months;

(iv)   possess prohibited weapon: imprisonment for a fixed term of 18 months.

1. Adopting a concession made by the Crown, his Honour ordered that the sentences imposed in (i), (iii) and (iv) above be served concurrently with the sentence imposed in respect of the conspiracy count. The applicant's offending in respect of those matters in (i), (iii) and (iv) was quite separate and distinct from his offending in respect of the conspiracy. Although it is not a matter which is material to the determination of the present application, the Crown's concession was, in my view, generous to say the least.

1. The applicant stood trial with a number of other co-conspirators, namely Terrence John McCraw ("McCraw"), Dalibor Pasinovic ("Pasinovic") James Lattouf ("Lattouf") and Ronald Stanley ("Stanley"). McCraw and Lattouf were also found guilty by the jury of the conspiracy count. The jury could not reach a decision in respect of Stanley and the Director of Public Prosecutions ultimately decided not to proceed any further against him. Another named co-conspirator (who did not go to trial) was Renato Picardi ("Picardi").

1. Pasinovic originally pleaded not guilty and gave evidence in his defence at the trial. Following cross-examination by the Crown Prosecutor, he was re-arraigned and entered a plea of guilty. The trial judge refused a subsequent application made on behalf of the applicant, McCraw and Lattouf that the jury be discharged.

THE APPLICATION FOR AN EXTENSION OF TIME

1. Having been sentenced on 9 April 2010 the applicant requires a substantial extension of time in which to seek leave to appeal. His application for an extension of time is supported by an affidavit of his solicitor, Angelo Bilias, field on 23 July 2013 which was read without objection.

1. The explanation (such as it is) for the delay is contained in paragraph 5 of that affidavit. Because of the significance of this issue, it is appropriate that the contents of that paragraph be set out in full:

"[5] My explanation for the delay is as follows:

(a) There was a delay associated with pursuing this appeal as there were four co-offenders to be sentenced and each of the co-offenders had staggered sentencing procedures before the same sentencing judge.

(b) The last of the co-offenders was sentenced in June 2010.

(c) The applicant received a sentence of 26 years as a head sentence prior to a discount of 40% for assistance leaving him a sentence of 15 years 6 months with a non-parole period of 10 years and 4 months.

(d) The brief of evidence in this matter relating to the trial was extensive and involved 9 lever arch folders and a trial transcript exceeds (sic) 3,500 pages. The length of the trial was 59 days.

(e) I approached a number of barristers after Alpha's sentence in the proceeding as to whether they would be willing to prepare a merit advice in relation to providing a merit advice (sic) conviction and/or sentence. Firstly, the Public Defenders did not accept the matter. Further as the matter was funded by legal aid and required a large amount of material to be read a number of barristers which (sic) I approached were not available at the time. Subsequently Mr Peter Lowe of counsel accepted the brief on (sic) or about July 2010.

(f) Our instructions were initially to pursue both a conviction and a sentence appeal. I asked Mr Lowe if he was prepared to give a merit advice in relation to this matter. Mr Lowe has advised me and I verily believe that there was a significant delay in preparing the merit advice because of the requirement of reading the voluminous material and because during the course of reading the material he vacillated on the essential issue whether the course of events during the trial warranted a conviction appeal been (sic) pursued. During the course of the (sic) Alpha's trial one of the co-accused indicated to the jury whilst giving evidence that he was guilty and that he had been threatened. All co-offenders subsequently made an application through their counsel to discharge the jury which was rejected by the trial judge.

(g) Ultimately Mr Lowe provided a merit advice to the effect that a conviction appeal lacks sufficient merit, but he identified an appeal against the sentence imposed on the basis of parity considerations, notwithstanding this court's decision in McCraw v R [2011] NSWCCA 162.

(h) The applicant prays leave to appeal his sentence out of time and that (sic) an order nunc pro tunc extending the period of which the notice of appeal has effect."

1. In the course of the hearing of the appeal, counsel for the applicant explained that the word "ultimately" at the commencement of paragraph 5(g) of the affidavit should be read as meaning "shortly before the proceedings were commenced in this Court". In other words, having been briefed in the matter in July 2010, counsel did not provide advice until some 3 years later.

1. In Abdul v R [2013] NSWCCA 247, in the context of an application for an extension of time in which to seek leave to appeal on the basis of a so called "Muldrock error" (see Muldrock v R [2011] HCA 39; (2011) 244 CLR 120) this Court (Hoeben CJ at CL, Johnson and Bellew JJ), having reviewed the relevant authorities, said (at [53]):

"Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time."

1. That approach is not confined to applications for extension of time based upon "Muldrock error". Rather, it is one which is to be adopted in all cases in which an extension of time is sought in order to bring an appeal, or an application for leave to appeal, in this Court. Adopting that approach, and taking into account the matters which the Court in Abdul identified as being relevant, the present application for an extension of time is beset with a number of difficulties.

1. Firstly, a period of more than 3½ years has elapsed since the applicant was sentenced. It follows that on any view, the delay in bringing the application is substantial.

1. Secondly, and again bearing in mind the length of the delay, granting the application for an extension of time would offend the principle of finality.

1. Thirdly, and fundamentally, the delay is not adequately explained. In Winter v R [2013] NSWCCA 231, with the concurrence of Hoeben CJ at CL and Barr AJ, I said (at [26]) that in any case where an extension of time is sought, and particularly where the delay is extensive, there is an onus placed upon an applicant to adduce evidence which fully explains that delay. I observed, in particular, that such explanation must necessarily incorporate a clear articulation of the steps taken to prosecute the appeal, and a comprehensive explanation for any periods of apparent inactivity. In my view, the affidavit of Mr Bilias falls substantially short of meeting these requirements.

1. One of the matters relied upon to explain the delay is that the last of the co-offenders was sentenced in June 2010. Even accepting that there was a necessity to await the outcome of other sentence proceedings, all of those proceedings were concluded more than three years ago. Moreover, the explanation for the delay between the finalisation of those proceedings in June 2010, and the filing of the notice in July 2013, is completely inadequate for a number of reasons.

1. Firstly, the applicant relies upon the fact that the trial was a lengthy one, requiring counsel to read a large brief of evidence and a significant amount of transcript. Reliance on those matters completely ignores the fact that counsel briefed to provide advice was the same counsel who appeared at the trial. This is not a case in which counsel who was completely unfamiliar with the matter was retained to advise.

1. Secondly, the particular issue identified by Mr Bilias in paragraph 5(f) of his affidavit, about which counsel was said to have been vacillating and which is said to have contributed to the delay, concerned the trial judge's refusal of the application to discharge the jury following the re-arraignment of Pasinovic. That issue was, to say the least, a narrow one.

1. Thirdly, even if it is accepted that there was a necessity for counsel to consider that issue, that does not explain a delay of 3 years in the provision of advice. This is particularly so where counsel had appeared at the trial and would necessarily have been fully appraised of the issue about which he was said to be vacillating.

1. In my view, all of these matters tend very much against granting an extension of time. However as noted in Abdul, one of the relevant considerations when determining an application to extend time is whether, if an extension of time were refused, substantial injustice would result. This inevitably requires an assessment of the merits of the proposed appeal. However, as held in Abdul (at [53]) such assessment can be carried out in a more summary fashion than would be the case had the application for leave to appeal been brought within the prescribed period of time.

THE FACTS

1. There was no challenge to the facts of the conspiracy as found by the sentencing judge. Those facts may be summarised as follows.

1. On 25 June 2007, a European based vessel called "The Sophie" departed from the port of Antwerp in Belgium. Following its departure, approximately 40 kilograms of crystalline material containing 30.822 kilograms of pure ecstasy were brought aboard and came into the custody and safe keeping of Pasinovic. The estimated value of the drug once landed in Australia was between $4.4 million and $18.5 million, depending upon the form in which it was ultimately sold.

1. Between 10 July 2007 and 19 August 2007 Pasinovic communicated with a number of persons who were in possession of mobile telephones linked to telecommunication networks in The Netherlands, Italy, Slovenia, Spain, Serbia and Montenegro. He was also in possession of four sim cards which were linked to mobile telephone networks based in Italy, Spain and Serbia.

1. The Patrick Stevedoring Company ("Patricks") carried on business as stevedore from a container terminal at Port Botany. It (or its predecessor) had employed McCraw as a waterside worker for approximately 30 years. Between 17 July and 19 August 2007 McCraw, Lattouf and Picardi, along with another unindicted co-conspirator, communicated repeatedly with each other by telephone. For the purposes of doing so, each of them (along with the applicant) used a mobile telephone in a fictitious name.

1. On 3 August 2007 McCraw telephoned the Sydney office of the Mediterranean Shipping Company to ascertain the anticipated arrival date of The Sophie. He had, in the preceding weeks, made inquiries of various personnel at Patricks about the level of security which was in place in and around the Port Botany terminal, and the adjoining car park. When it became known that The Sophie would berth at the Patricks terminal on 9 August 2007, McCraw elected to work on that day despite it being his rostered day off.

1. Between 7 August 2007 and 9 August 2007 the applicant and Pasinovic communicated on 47 occasions, mostly by text message.

1. On 8 August 2007 McCraw requested the management of Patricks to roster his team on the evening shift, that being the shift during which The Sophie would be unloaded. On the following morning, 9 August, McCraw sought permission from his superiors to use the crane located at the point where The Sophie was to be berthed. These arrangements were put in place by McCraw so as to ensure that he would be able to unload the drugs being carried on board The Sophie.

1. On the morning of 9 August 2007 Lattouf met Picardi at Picardi's residence in Burwood. They then drove to a service station at Revesby where they met with McCraw for approximately 2 to 3 minutes before returning to Picardi's residence.

1. McCraw entered the Patricks terminal shortly after 11.00 am on the morning of 9 August, well in advance of his rostered start time. Stanley (who, like McCraw, was working on his rostered day off) arrived at the terminal at 12.56 pm, which was similarly well ahead of his rostered start time.

1. At about 2:00pm McCraw, Stanley and others commenced to unload The Sophie. On the same afternoon, the applicant met with Picardi and Lattouf at Picardi's residence. The applicant and Picardi were observed by police talking with each other and making telephone calls. In the course of that meeting the applicant contacted Pasinovic and arranged to meet with him.

1. At about 3:46pm on that same afternoon Lattouf and the applicant departed Picardi's residence. Lattouf drove to a hotel at Banksmeadow where he met with McCraw at about 5:09pm, McCraw having driven to that location from the Patricks terminal during a rostered meal break. Stanley arrived at the same hotel at 5:44pm and joined the meeting.

1. Pasinovic and the applicant met at a hotel at 5:06pm where the applicant handed Pasinovic a bag containing €22,500.00 and AUD$21,700.00. The applicant drove Pasinovic back to the terminal, following which Pasinovic re-boarded The Sophie. The applicant and Pasinovic remained in contact during that evening.

1. At about 6:10pm McCraw and Lattouf left the meeting in Banksmeadow in their own vehicles and drove to the car park adjacent to the Patricks terminal. McCraw used his security card to allow Lattouf to enter the car park and their respective vehicles were parked side by side. McCraw returned to work and left Lattouf in his car. Stanley returned at about 6.20pm and parked on the other side of Lattouf's vehicle before returning to work. There was subsequent telephone contact between McCraw and Picardi.

1. At about 9:01pm McCraw telephoned Lattouf, before directing, at about 9.30 pm, that the unloading of The Sophie should cease. McCraw telephoned Lattouf again at 9:38pm.

1. McCraw and Stanley left the Patricks terminal at about 9.53 pm, each carrying a bag containing 20 kilograms of ecstasy which had been unloaded from The Sophie. They walked to the car park, where Lattouf had remained, and loaded the two bags into the rear of Lattouf's vehicle. McCraw, Stanley and Lattouf then drove from the car park in their respective vehicles and were arrested a short time later. Pasinovic was arrested on board The Sophie and was found with money concealed in his clothing.

1. The applicant was not arrested until 28 March 2008. In the course of the search of his home police located a Smith and Wesson 0.22 calibre pistol with an attached silencer, a quantity of ammunition, and a ballistic vest.

THE APPLICANT'S ROLE

1. The sentencing judge made a number of findings in relation to the applicant's role. But for one matter, those findings were not challenged by the applicant.

1. His Honour concluded (at ROS 12) that the applicant was knowingly involved in the conspiracy from at least 3 August 2007 before stating (at ROS 13):

...The importation was a sophisticated international scheme involving many persons in many countries and drugs of a significant quantity and value. It required much careful planning and financial outlay. Unlike drug couriers carrying smaller quantities of drugs in or on their person as to which it may be more likely to accept that they were not told the full story, where the risk of detection and confiscation of drugs involves a lesser financial loss for the principals of the scheme, detection in the present case could involve a loss of millions of dollars, between 5 and 18 so the evidence bears out.

That being so, in my view it is unlikely that a person in the (applicant's) position would be co-opted in the short period immediately before the drugs landed in this country and without some knowledge of the likely value of the drugs.

1. His Honour continued (at ROS 13-14):

In my opinion, absent evidence to the contrary, there is no reason to take an artificial view of the surveillance evidence which appears to depict (the applicant) as the person who deals with co-conspirator, Mr Pasinovic. The onus of course is upon (the applicant) to establish, on the balance of probabilities, that he was a lower participant in the hierarchy in the drug conspiracy than the evidence may indicate. He has not given or adduced any evidence of that kind, and I am unable to so find.

Accordingly, I accept the submissions of the Crown...that (the applicant) held an important and key high level organisational role in this conspiracy, which was typified by his maintaining a distance from the physical process of importing the drug and was marked by the sophistication of the offence and the high degree of planning. In my view, a commonsense and practical view of the entire evidence cannot help but disclose that particular conclusion. Similarly, the fact that the (applicant) was entrusted to pay Mr Pasinovic a significant sum, in excess of AUD$50,000.00, supports this conclusion.

1. His Honour found that the applicant was at the top of the hierarchy of the known criminal co-conspirators, with Pasinovic and McCraw forming what he described as "the second tier" (at ROS 15):

The Crown submits that the hierarchy of the known criminal co-conspirators that were the subject of the trial before me are as follows: firstly, Alpha is at the top of those known. The Crown submits at para. 16, that he is an important, key, high level organisational person typified by maintaining a distance from physical process and by the sophisticated nature of the offence and the high degree of planning. In the second tier the Crown argues are Mr Pasinovic and Mr McCraw. However, they also occupied an essential and crucial role. And at the bottom of the gradation was Mr Lattouf who, the Crown argues, had at least a very significant role, but lesser roles to the two other categories. In my view, having considered very carefully, the Crown's submission, it is one which is warranted on the material (emphasis added).

1. In assessing the applicant's role, his Honour said (at ROS 16):

I take into account the following matters so far as the role of (the applicant): firstly, the supporting contextual matters of the significant weight of the drug involved, which is 61 times the commercial threshold for MDMA. I also take into account the value of the drug, and the fact that Mr Pasinovic was paid in excess of $57,000.00. I am of the view that these are matters which lead to the conclusion beyond a reasonable doubt, that (the applicant) knew that he was dealing with a substantial quantity of drugs. There is no evidence that he was paid for any part he had in the conspiracy, but I infer from the commercial nature of the conspiracy, its sophistication and international nature, and the amounts paid to a co-conspirator, that (the applicant) was involved for financial gain, in all probability for an amount greater than that received by the co-conspirator, Mr Pasinovic given his higher status in this criminal conspiracy. In my opinion, a realistic view of the surrounding circumstances offers no other reasonable conclusion.

1. Finally, his Honour said (at ROS 23):

I consider in relation to those of the co-conspirators who were parties to the conspiracy in the trial conducted before me and who were found guilty, that (the applicant) is at the top of the level of hierarchy.

I do not accept, that he is by any means the major principal. On all of what has been led before me I remain quietly convinced that the major players if named, have not been brought to justice and certainly many major players have not been named and remain perhaps unknown (emphasis added).

1. In sentencing the applicant, his Honour concluded that an appropriate starting point was a term of 26 years imprisonment. He also concluded that the applicant was entitled to a reduction of 40% on account of his assistance to the authorities.

1. The one issue which is raised by the applicant in respect of his Honour's findings as to his role arises from the references at ROS 15 (at [42] above) and ROS 23 (at [44] above) to the effect that the applicant was at the top level of the hierarchy. I have dealt with that issue further below.

THE SENTENCES IMPOSED ON OTHER CO-CONSPIRATORS

1. Because of the grounds of appeal relied upon by the applicant, it is necessary to make reference to the sentences imposed upon the co-offenders who stood trial, and the findings made by his Honour about their respective roles.

Pasinovic

1. His Honour rejected a submission that Pasinovic was involved in the conspiracy within a narrow time frame and that his role was limited to the supervision of the handover of the drugs. His Honour also rejected a submission that Pasinovic did not see or handle the drugs, and that he did not know the quantity. Ultimately his Honour concluded (at ROS 14):

(Counsel) submitted that I should find that Mr Pasinovic was a courier or a functionary who had an important role but (was) not directing the operations. In my view that is an accurate assessment of his part in it. That proposition does not make what he did any less important in what occurred, but I certainly do not see any evidence on which I could act that he had any part in directing any of the operations which were involved.

1. His Honour continued (at ROS 17 - 18):

A significant matter in determining the level of criminality of a person in such an offence is the role that the offender has played in the criminal conspiracy. The Crown has submitted so far as all those who are convicted after trial were concerned, that the apex of criminality lay with (Alpha). They have described his role as important and key high level organisational level. On the second tier, the Crown has contended, lay Mr Pasinovic and Mr McCraw. The contention by the Crown is that they played an essential and crucial role. At the bottom of the pyramid is said to have been Mr Lattouf, whose role the Crown describes as at least a very significant one.

In my view, the Crown's contentions so far as Mr Pasinovic - and I will ultimately hold Mr McCraw - is (sic) accurate, and accords with my assessment of the evidence that I have before me beyond a reasonable doubt. I do not consider that Mr Pasinovic has established on the balance of probabilities that he had a lesser role, as the law requires him to do.

1. In respect of the conspiracy, his Honour imposed a non-parole period of 10 years and 1 month with a balance of term of 5 years and 2 months. Pasinovic is eligible for release on parole on 8 September 2017.

Lattouf

1. His Honour found (at ROS 15) that Lattouf was at the "lower end of participation" and that his role was less than the other co-conspirators. However he found that because of the value of the drugs, a person in Lattouf's position was necessarily trusted and informed, and that his role was "important, critical and significant".

1. His Honour sentenced Lattouf to a non-parole period of 9 years imprisonment commencing on 18 April 2009 and expiring on 17 April 2018, with a balance of term of 5 years expiring on 17 April 2023. Lattouf is eligible for parole on 17 April 2018.

1. In the course of sentencing Lattouf his Honour said (at ROS 13):

Looking at it from the perspective of Mr Lattouf's evidence, it seems unlikely that the mastermind of this conspiracy, Mr Picardi, would have given his own phone, notionally the Michael George phone, to Mr Lattouf, by which he, Mr Picardi, had been contacting Mr McCraw about this conspiracy.

1. Counsel for the applicant placed some emphasis upon his Honour's reference, in sentencing Lattouf, to Picardi being the "mastermind" of the conspiracy. In particular, it was submitted that this reference was inconsistent with his Honour's conclusions (in [42] and [44] above) regarding the applicant's position at the top of the hierarchy.

McCraw

1. His Honour found McCraw to be a mid-level participant who had played an essential and crucial role in securing the removal of the drugs from The Sophie, and subsequently taking possession of them. His Honour also found that McCraw had recruited Stanley to assist him in that regard.

1. In finding that McCraw had a "high level role" his Honour emphasised that the conspiracy was a significant international criminal enterprise. He concluded that McCraw's level of criminality was on a par with that of Pasinovic and imposed a non-parole of 11 years and 2 months imprisonment with a balance of term of 5 years and 10 months. McCraw is eligible for parole on 15 August 2020.

1. McCraw subsequently made an application for leave to appeal to this Court. Leave to appeal was granted, but the appeal was dismissed (see McCraw v R [2011] NSWCCA 162). In the course of that appeal McCraw asserted:

(i)   that there was an unjustifiable disparity between the sentence imposed upon him and that imposed upon Pasinovic; and

(ii)   that the sentencing judge erred by equating the role of McCraw with that played by Pasinovic.

1. Simpson J (with whom Allsop P and Buddin J agreed) observed (at [26]):

"I am unable to accept that the distinctions drawn show that the assessment of Lakatos DCJ was wrong. The submission, it appears to me, oversimplifies the assessment of the roles of participants in a criminal conspiracy. It is not only their overt acts that are relevant; it is a more complex web, involving the nature of the conspiracy, the position in the hierarchy occupied by each conspirator, and the importance of the role played by each individual: see Tyler v R; R v Chalmers [2007] NSWCCA 247."

1. Her Honour continued (at [27]):

"Here, the applicant played what was admittedly "an essential and crucial" role in supervising the unloading of the drugs from the ship and their transport to their first Australian destination. In order to do that, he manipulated his own work roster, and arranged for at least one other participant to work on Sophie; he personally carried one bag of drugs from the ship to the waiting transport; earlier, he recruited one other employee into the organisation. It is, in my opinion, not to the point that his physical contact with the drugs was of substantially shorter duration than that of Pasinovic. Nor is it to the point (if it be the case) that the time over which he was actively involved (prior to unloading) was of substantially shorter duration than the 46 days during which Pasinovic was actively involved. The evidence suggests that the applicant was, in fact, the Australian counterpart of Pasinovic - the participant to whom Pasinovic handed over on his arrival in Australia."

THE GROUNDS OF APPEAL

Ground 1 - There is an unjustifiable disparity between the head sentence of the applicant nominated by the sentencing judge and the sentence imposed on his co-offenders, McCraw, Pasinovic and Lattouf.

Ground 2 - The sentencing judge erred in assessing in terms of the hierarchy of criminal conspirators the role of the applicant as being "at the top of those known".

1. These grounds are interrelated and can be conveniently dealt with together.

Submissions of the parties

1. As I have previously noted, the findings of the sentencing judge in relation to the applicant's role (set out at [41] to [45] above) were, but for the one matter I have identified, not challenged. Further, counsel for the applicant took no issue with the fact that:

(i)   the starting point of 26 years imprisonment adopted by his Honour was (leaving aside parity considerations) within range;

(ii)   the discount of 40 percent to reflect the applicant's assistance to law enforcement authorities was appropriate; and

(iii)   the fixing of the ratio of the head sentence to the non-parole period was similarly appropriate.

1. Having made these extensive concessions, counsel advanced three principal submissions in support of the grounds relied upon.

1. Firstly, it was submitted that although the applicant's role was greater than that of Pasinovic and McCraw, it was only "marginally" so.

1. Secondly, although he did not dispute that the unchallenged findings of the sentencing judge warranted the imposition of a higher sentence on the applicant, counsel submitted that the starting point of 26 years imprisonment adopted by his Honour, which was some 9 years higher than that adopted when sentencing Pasinovic and McCraw, was "too high". It was further submitted that the adoption of such starting point produced a disparity which gave rise to a justifiable sense of grievance.

1. Thirdly, counsel submitted that his Honour's conclusions as to the applicant's place in the relevant hierarchy were inconsistent with his subsequent observation (when sentencing Lattouf) that Picardi was the "mastermind" of the conspiracy. Such inconsistency, it was submitted, was reflective of error.

1. Counsel for the Crown set out, in some detail, the various activities undertaken by the applicant in pursuit of the conspiracy. By reference to those matters, he submitted that a comparison of the role played by the applicant on the one hand, and Pasinovic and McCraw on the other, justified the starting point which had been adopted by his Honour.

1. Counsel for the Crown further submitted that the statement of the sentencing judge to the effect that the present applicant was at the top of the known conspirators was not a finding of fact about his role, but rather a short hand summary of the Crown's submission in relation to that issue. He further submitted that there was no inconsistency between that reference and his Honour's subsequent observation in relation to Picardi, the latter being described by the Crown as a "rhetorical part" of his Honour's analysis of the evidence given in Lattouf's sentencing proceedings.

Consideration and conclusion

1. Those who play an authoritative or managerial role in a conspiracy to import prohibited drugs will usually receive a greater sentence than those whose role is less. In Tyler v R; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 Simpson J (with whom Spigelman CJ and Harrison J agreed) said (at [79] -[80]):

"Those low in the hierarchy, such as couriers, are usually to be sentenced less harshly because, although they are of fundamental importance in the execution of the object of the conspiracy - in a drug importation conspiracy, without couriers, no drug could or would be imported - they have no managerial or decision making function; and, experience shows, usually derive the least monetary reward.

By contrast, those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable. A relevant factor here is the level of profit to be derived."

1. Her Honour went on to say (at [83]):

"Identifying the "role" of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the "role" of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy - the agreement to participate in an organised criminal activity.

That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry: see R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at [102]. That, in my opinion, is the first, and most fundamental, flaw in the approach to sentencing here taken."

1. The findings of the sentencing judge, which as I have noted were essentially unchallenged, included that the applicant occupied an organisational role in what was a sophisticated and carefully planned international scheme to import a significant commercial quantity of a prohibited drug. In contrast, his Honour found that McCraw's role was to secure the removal of the drugs and take possession of them, and that Pasinovic was a functionary who played no directional role at all. In light of these findings, the submission that the applicant's role was only 'marginally' greater than that of McCraw and Pasinovic is, in my view, without merit.

1. Once it is accepted that the applicant's role was substantially greater than that of either Pasinovic or McCraw, it becomes immediately apparent that there is no justifiable grievance arising out of the applicant's sentence. In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ (at [28]) observed that the principle of parity in sentencing requires that like offenders should be treated in a like manner, but that it also allows for different sentences to be imposed upon like offenders in order to reflect different degrees of culpability or different circumstances. Their Honours then referred (at [31]) to the judgment of Gibbs CJ in Lowe v R (1984) 154 CLR 606 at 610 where the Chief Justice said:

"The reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."

1. Their Honours went on to observe (at [31] - [32]):

"The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise."

1. In the present case, the sentencing judge assessed the applicant as having occupied a high position in the conspiracy, and having carried out an organisational role. His Honour's approach to that assessment was consistent with that outlined by Simpson J in Tyler. On any view, the applicant's role was substantially greater than that of either McCraw or Pasinovic and called for a substantially greater sentence. In these circumstances, no justifiable sense of grievance arises. The differing starting points adopted in the case of the applicant on the one hand and Pasinovic and McCraw on the other were a proper reflection of the differing roles they each played.

1. It is also important to bear in mind that the applicant, Pasinovic and McCraw were all sentenced by the same judge. This Court has long recognised the importance of that circumstance when dealing with issues of parity. In R v Swan [2006] NSWCCA 47 Barr and Howie JJ said at [71]:

"This was a case where the sentencing of both offenders was by the same judge on the same occasion. Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes."

1. That passage was cited with approval in Pavicevic v R [2010] ACTCA 25 at [21]. Similar views have been expressed in a number of other cases, both in this Court and elsewhere. Those cases include Tatana v R [2006] NSWCCA 398; R v Spizzerri [2001] VSCA 49; Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274; and Gill v R [2010] NSWCCA 236. In Gill McColl JA (with whom RS Hulme and Latham JJ agreed) said (at [58]):

"Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender's sentences."

1. Finally, the applicant's reliance on his Honour's reference to Picardi being the "mastermind" is misconceived for two reasons. Firstly, his Honour's mention of Picardi was essentially a passing reference made in the context of assessing the evidence given by Lattouf in his sentence proceedings. Secondly, and in any event, his Honour found (at ROS 15 and ROS 23) the applicant was at the top of the hierarchy of the co-conspirators who were parties to the trial. Picardi, although a co-conspirator, was not a party to the trial. In these circumstances, there is no inconsistency between those findings and his Honour's later reference to Picardi being the "mastermind" of the conspiracy.

1. For all of these reasons, there is no merit in either of the grounds relied upon by the applicant. No injustice has arisen as a consequence of the sentence which was imposed.

ORDER

1. I propose the following order:

(i)   the application for an extension of time in which to seek leave to appeal is dismissed.

1. R S HULME AJ: I agree with the orders proposed by Bellew J and with his Honour's reasons.

1. I would however add this. In my view, his Honour has been far too generous to the applicant in the extent of his consideration of the merits of the appeal. That degree of consideration effectively means that the applicant has had the full benefit of an appeal despite having no reasonable basis for being granted an extension of time.

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Decision last updated: 28 November 2013