Anil Suri v Director of Public Prosecutions (Cth)
[2014] VSCA 260
•24 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0074
| ANIL SURI | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) | Respondent |
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| JUDGES: | REDLICH, PRIEST and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 October 2014 |
| DATE OF JUDGMENT: | 24 October 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 260 |
| JUDGMENT APPEALED FROM: | R v Suri (Unreported, County Court of Victoria, Judge Montgomery, 21 May 2013 (Conviction) and 28 March 2014 (Sentence)) |
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CRIMINAL LAW – Conviction – Conspiracy to import a commercial quantity of a border controlled precursor – Nature of conspiracy – Inference – Whether evidence capable of establishing subject-matter of conspiracy was border controlled precursor – Whether evidence capable of establishing an intention to use in manufacture – Conviction not unsafe and unsatisfactory – Leave to appeal refused
CRIMINAL LAW – Sentence – Conspiracy to import a commercial quantity of a border controlled precursor – Sentence of 11 years’ imprisonment with non-parole period of 9 years’ imprisonment manifestly excessive – Parity – Whether sentence disparate from that of co-offender – Sentence not manifestly excessive – Disparity in non-parole period – Leave to appeal granted – Appeal allowed – Sentence of 11 years’ imprisonment with non-parole period of 8 years substituted
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M O’Connell SC with Mr T Kassimatis | Valos Black & Associates |
| For the Director | Mr R F Pirrie | Office of the Commonwealth Director of Public Prosecutions |
REDLICH JA
PRIEST JA
COGHLAN JA:
Conviction and Sentence
Following a trial in the County Court, on 21 May 2013 a jury found the applicant guilty of conspiring to import a commercial quantity of a border-controlled precursor contrary to s 11.5(1) and s 307.11.1 of the Criminal Code (Cth).[1] The indictment alleged that ‘between the 16th day of March 2008 and the 7th day of August 2008 at Melbourne in Victoria, ANIL SURI and PHILLIP BATTICCIOTTO did conspire with each other and with PASQUALE BARBERO, SAVERIO ZIRILLI, ROB KARAM, SEVERINO SCARPONI and others to commit an offence punishable by imprisonment of more than 12 months, namely an offence of importing a substance, the substance being a border controlled precursor, namely pseudoephedrine, intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, and the quantity to be imported being a commercial quantity’.
[1]The maximum penalty is 25 years’ imprisonment or 5000 penalty units.
On 28 March 2014 the applicant was sentenced to be imprisoned for 11 years. A non-parole period of nine years was fixed.
The applicant seeks leave to appeal against both his conviction and sentence.
For the reasons that follow, we would refuse leave to appeal against conviction, but would grant leave to appeal against sentence, allow the appeal, and re-sentence the applicant to be imprisoned for 11 years, upon which we would fix a non-parole period of eight years.
Factual background
The prosecution alleged that the applicant and his co-accused, Batticciotto, conspired with each other and with Barbaro, Zirilli, Scarponi and others, to import 100 kilograms of pseudoephedrine into Australia from India in a load of furniture, with the intention or belief that it would be used to manufacture a controlled drug.
Much of the prosecution’s case consisted of lawfully intercepted telephone calls; recorded conversations between the alleged conspirators; video recordings, including video surveillance recordings; and photographs of the alleged conspirators taken in the course of surveillance. Most of the recorded conversations were in English, interspersed at times with some Calabrese. A number of conversations involving the applicant, however, were in Punjabi, but had been translated into English. There was no challenge to the authenticity of the evidence. Indeed, the trial was conducted on the basis of agreed facts derived from the recordings, videotapes and photographs.
It was established on the agreed material that the applicant arranged for a contact in India to supply a substance to be forwarded from India to Melbourne in a shipping container ostensibly containing furniture. There was no direct evidence identifying the substance to be imported, or the applicant’s intention or belief. The prosecution relied on inference to establish those matters.
On 22 July 2008 the applicant travelled to India. The prosecution’s case was that the purpose of the trip was for the applicant to meet his Indian contact, Inderjit Singh, so as to facilitate the importation of the shipping container to Australia.
It will be seen that the focus of the case was narrow. The applicant did not contend that he was not a party to an agreement to import a prohibited substance of some kind, or that the quantity involved was not a commercial quantity. Indeed, counsel for the applicant at trial conceded that the prosecution had probably established that what the applicant was importing ‘would be some form of contraband‘. Telephone intercepts showed that the applicant sought to import 100 kilograms of the substance — whatever the substance might be — but the nature of the substance to be imported was not directly disclosed in the recordings of the intercepted calls. The prosecution alleged that coded language was used in many of the intercepted conversations, so that the nature of the substance to be imported, and the applicant’s intention or belief with regard to it, were matters of inference flowing from the conversations, coupled with the conduct of the applicant and his co-conspirators.
The shipping container arrived in Melbourne on the vessel Kamakura on 4 September 2008. Law enforcement authorities opened the container and examined its contents. There was no dispute that, when it arrived in Melbourne, the container contained a number of undeclared items, including a quantity of chewing tobacco and cigarettes, and 98.9 kilograms of a white crystalline substance contained in ten bags each weighing approximately ten kilograms. The bulk of this substance was monosodium glutamate, and nearly all the rest was diphenhydramine (an anti-histamine). One bag of monosodium glutamate, however, contained 397.1 grams of pseudoephedrine. The prosecution’s view was that the conspirators had been ‘ripped-off’ in India, so that the container did not contain the consignment agreed upon.
No evidence was called by the defence. The defence case was that the prosecution had failed to establish that the applicant knew the substance being imported was a border controlled precursor, and in any event had failed to prove that he knew or believed that the border controlled precursor would be used to manufacture a controlled drug. Thus the essential issues for the jury’s determination were whether the applicant was a party to the conspiracy pleaded in the indictment, and whether he had the necessary intent and knowledge.
As will be seen, a conversation between Zirilli and Scarponi on 14 May 2008 was pivotal to the prosecution’s case.
Conviction application
The sole ground of appeal against conviction is that, ‘[t]he verdict was unreasonable and contrary to the evidence in that the evidence did not support the inference that the substance intended to be imported was pseudoephedrine’.
To understand how the ground is put, we need to refer to a little more of the evidence. An officer of the Australian Federal Police, Detective Constable Paul Bates, gave evidence concerning pseudoephedrine as a pre-cursor chemical, its purchase price in India and its wholesale price in Australia. In cross-examination, he agreed that in 2008 pseudoephedrine sold in Australia for a little over $18,000 per pound (or approximately $40,000 per kilogram). Further, in the course of a conversation on 14 May 2008, Zirilli and Scarponi spoke of importing 100 kilograms of a substance that would sell for $80,000 per pound (making 100 kilograms of the substance worth approximately $17 million), and said the substance could be ‘cut’ to increase the profit and that it could also be ‘cooked’.
There was a seductive simplicity to the arguments of the applicant’s counsel. The offence created by s 307.11.1 of the Criminal Code is the importation of a border controlled precursor with the intention or belief that the precursor, or some of it, will be used to manufacture a controlled drug. An agreement to import a controlled drug (for example, cocaine or heroin), or any substance other than a border controlled precursor, is not embraced by the charge as laid. It was submitted that the only evidence concerning the subject-matter of the agreement is to be found, first, in the discussion which took place between Zirilli and Scarponi on 14 May 2008; and, secondly, in the contents of the container on its arrival in Melbourne. The conversation between Zirilli and Scarponi indicated that the intended import would have had a sale value of approximately $176,000 per kilogram, and could be ‘cut’ or ‘jumped on’ (that is, mixed) with another substance prior to sale and this would increase the total value. Counsel relied on the evidence of Detective Bates, to the effect that in 2008 pseudoephedrine had a wholesale value in Australia of approximately $40,000 per kilo (or $18,000 per pound). In Detective Bates’ experience, however, he had not known pseudoephedrine to be diluted or ‘cut’ to add bulk. Moreover, counsel for the applicant also drew attention to the evidence of a scientist with the Australian Federal Police, Nathan Green, who said that the terms ‘cutting’ or ‘jumping on’ ‘probably wouldn’t be relevant to pseudoephedrine as such, it would be referring to the product that you would make from pseudoephedrine’. (In other words, pseudoephedrine would not be cut, but the end product, methylamphetamine, would be.)
Thus on its face — so counsel argued — the conversation of 14 May 2008 was not a discussion about pseudoephedrine.
Counsel for the applicant further submitted that any inference that the subject-matter of the conspiracy was pseudoephedrine could only be arrived at by reference to the contents of the container on its arrival at Melbourne and by ignoring the conversation of 14 May 2008, which, it was contended, negated such an inference. The prosecution in the applicant’s trial invited the jury to infer the subject-matter of the agreement from the fact that there were 397.1 grams of pseudoephedrine in the container on its arrival in Melbourne. It was submitted that the jury were implicitly invited, having drawn that inference, to disregard the details of the conversation of 14 May 2008, on the basis that the conspirators Zirilli and Scarponi were mistaken in their estimates as to value and as to the effects of ‘cutting’ and ‘cooking’. In light of the conversation of 14 May 2008, so it was argued, it was not open to the jury to infer beyond reasonable doubt, from the presence of a small quantity of pseudoephedrine in the container when it arrived in Melbourne, that the subject-matter of the agreement was pseudoephedrine. That analytical step, it was submitted, was not ‘the most probable deduction from the established facts’, nor was it a deduction which could reasonably be drawn.[2]
[2]Holloway v McFeeters (1956) 94 CLR 470, 477 (Dixon CJ). See also Chalmers v The Queen (2011) 37 VR 464, 473–4 [41]–[43] (Maxwell P, Redlich JA and Kyrou AJA).
The respondent’s submissions were that the subject-matter of the conspiracy was revealed in the conversation between Scarponi and Zirilli on 14 May 2008, and that it could be inferred from all the relevant evidence that the co-conspirators enlisted the applicant to assist in the importation of pseudoephedrine from India to Australia in a load of furniture. Attention was drawn to the fact that the applicant was described as the ‘go to’ man in the conspiracy, who had the connections in India. The respondent also sought to rely on other pieces of circumstantial evidence, including that:
· a border controlled precursor, pseudoephedrine — located in one of the bags within the shipping container arranged by the applicant — was in fact imported into Australia;
· apart from the 397.1 grams of pseudoephedrine, no other type of illegal drug was within the container;
· in a conversation between Batticciotto and Scarponi on 3 June 2008, a ‘concerned’ Batticciotto brought to Scarponi’s attention (by way of coded warning), a newspaper article appearing that day referring to the arrest of two people, including a food importer, for allegedly importing a commercial quantity of pseudoephedrine (or ephedrine) concealed within a consignment of rice, the Australian Federal Police having tracked the operation for some time;
· in a conversation on 7 July 2008, Barbaro arranged for Pino Varallo to provide him with 80,000 cold and flu tablets, after which Barbaro discussed this acquisition with Scarponi; following which Scarponi, in the presence of the applicant, made arrangements for the receipt of some of those tablets, they being forwarded by the applicant to Scarponi’s Adelaide address (the applicant later confirming that he had sent the parcel of cold and flu tablets to Scarponi).
It is fair to say that, during oral argument, counsel for the respondent resiled somewhat from reliance on the last matter referred to (that is, the delivery of the 80,000 tablets). Since the respondent’s counsel could not articulate with any clarity how this evidence might be logically probative of the prosecution’s case — and its probative value eludes us — we ignore it for present purposes. The respondent’s counsel did, however, continue to press as very significant the fact that pseudoephedrine was found in the ten bags in the shipping container each containing ten kilograms of powder, despite the fact that 99 per cent or more of the powder was a substance other than pseudoephedrine. Counsel submitted that the hypothesis of there having been a ‘rip-off’ was a valid one.
At the risk of repetition, in the course of his trial the applicant did not contest that he had been involved in a conspiracy, the object of which was the importation of 100 kilograms of an illicit substance within the shipping container aboard the Kamakura. His case was simple — the prosecution case, taken at its highest, was incapable of establishing that the illicit substance that was the subject of the conspiracy was a border controlled precursor. The prosecutor having put the case on the basis that there had been a ‘rip-off’, and that the substance which was the subject-matter of the conspiracy could be inferred from the fact that pseudoephedrine was found in the contained, counsel for the applicant addressed the jury on that aspect. It is convenient to set out some of the arguments of the applicant’s counsel to the jury in moderate detail. He said:[3]
[3]Our emphasis.
Another thing that might have happened: Mr Singh, I can’t quite remember [the prosecutor’s] opening address in complete detail, but I got the impression that Mr Singh was a member of this conspiracy, but apparently now he’s not. He’s a liar, he’s deceitful and never intended to be part of the conspiracy, was always going to do the rip-off. Or perhaps it was Mr Suri always going to provide the rip-off. But he won’t accept that because he’s gone to India. That would be not a smart thing to do if he’s going to rip off the Italians.
Of course, look at him. He’s not Harrison Ford, is he? He can’t, like Mr Inderjit Singh, vanish into the 1.02 billion other Indians on the subcontinent, so you can put that to one side. But one thing’s for sure, says the Crown, there has been a rip-off by somebody somewhere. [The prosecutor] seems to think it’s in India. It certainly wasn’t done by the AFP, of course, because [the prosecutor] says there’s no evidence of the AFP having anybody in Delhi and no evidence that there was any communication between Australian, Melbourne AFP and Indian AFP.
You might think the reason that there's no evidence about it is because [the prosecutor] didn’t call it. ... But be that as it may, the only thing certain are the things that [the prosecutor] quite properly are the only things certain: quails are quails. Flour is flour seems to also be certain. Beanbags are beanbags. Footstools are footstools. So first question: what’s the agreement? What’s the object of the agreement, the subject of the agreement? How are we going to work that out? What’s the agreement to do?
[The prosecutor] said to you yesterday the fact of the 397.1 grams of pseudoephedrine being in one of those 10 packets throws light on what the subject of the agreement is. Perhaps it does, perhaps it doesn’t. There has been a rip-off, whatever form it took, theft of whatever it was, the contraband. The replacement that was replaced, if it was ever there in the first place, was MSG and some other stuff that apparently doesn’t do much. There’s on pack and one only pack that’s got something that probably gives you a bit of zing, or people might think it gives you a bit of zing.
So when it’s delivered, whoever takes delivery at the other end, Inderjit Singh or somebody else, ‘Yep, bit of a tingle there. Must be what we ordered.’ That’s why, because of course that 397.1 grams of pseudoephedrine was in that one packet, that the charge says the agreement was to import a border controlled precursor with the relevant belief. Just imagine everything in this case is exactly the same, absolutely everything, except in that packet there was 397.1 grams of MDMA.
Conversations on 14 May 2008 exactly the same; the entries in Barbaro’s notebooks exactly the same; everything exactly the same, but there’s 397.1 grams of MDMA in that packet. What charge do you think you would be deciding? You wouldn’t be trying to work out whether the Crown has proved that the agreement was to import a border controlled precursor, because it would be London to a brick that the charge you’d be adjudicating would be the agreement to import a border controlled drug, namely MDMA.
Or if there’d been 397.1 grams of cocaine, [the prosecutor] would have been going to that conversation of 14 May and said, ‘They’re talking about cocaine, of course.’ If it had have been MDMA, ‘They’re talking about MDMA, of course.’ He’d take you to the entries in the booklets taken from the Little Palmerston Street and he'd be saying, ‘These support our contention that the agreement was cocaine’ — or MDMA or whatever.
The Crown says it’s that precursor because that’s what turned up. Now, how dangerous is it to work back from that? Somebody, you might think, has just put whatever was to hand before whoever took delivery. Whoever took delivery probably didn’t know anything much about the pharmaceutical enhancing qualities of whatever it is. They may have just taste-tested. So that’s why, in my submission to you, you have to adjudicate the charge now before you as a border controlled precursor, pseudoephedrine, simply because there was a bit of it in that container.
When addressing the jury, the applicant’s trial counsel argued that the jury could not infer that a border controlled precursor was the object of the conspiracy to import, as opposed to, for example, cocaine or ecstasy. The conversation between Zirilli and Scarponi was inconsistent with a precursor being discussed, counsel argued, because the values of the substance discussed did not match the values for pseudoephedrine outlined by Detective Bates. Further, Zirilli and Scarponi discussed the substance being ‘cut’ or ‘jumped on’, which, according to the scientist, Nathan Green, was not something one would do with pseudoephedrine if one was going to use it for manufacturing methylamphetamine. Trial counsel also put to the jury that they could not reason from the fact that a small amount of pseudoephedrine was found in one of the ten bags in the shipping container that pseudoephedrine was the subject-matter of the conspiracy. There can thus be no doubt that the issues in the trial were properly exposed for the jury’s consideration, and that the jury understood where the narrow areas of dispute lay.[4]
[4]I note that it was not argued in this Court that in his charge to the jury the judge did not adequately set out the matters in dispute.
In support of their contentions, counsel for the applicant relied on Thomas,[5] McCaul and Palmer[6] and Moran and Mokbel.[7] We would also refer to Sienczuk,[8] Gruber,[9] Morris,[10] Kardoulias,[11] and Yu and Weng.[12] These cases did not, however, advance any new or novel principle of law. The question in this case, as it was in those cases, is whether as a matter of law the jury were entitled, on all of the evidence, to exclude all hypotheses consistent with innocence. M[13] requires this Court to determine whether it was reasonably open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.[14] The Court must carry out its own independent assessment of the evidence. And in determining whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, the real question is whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[15] It is not enough for the applicant to show that there was material which might have led the jury to fail of satisfaction of guilt beyond reasonable doubt.[16]
[5]R v Thomas (Unreported, 29 September 1980, Vic CCA).
[6]R v McCaul and Palmer [1983] 2 VR 419.
[7]R v Moran and Mokbel [1999] 2 VR 87.
[8]R v Sienczuk (1981) 5 A Crim R 243.
[9]R v Gruber, Airey and Rowley (Unreported, 20 February 1987, Vic CCA).
[10]R v Morris and Morris (1999) 98 A Crim R 408.
[11]R v Kardoulias [2005] NSWCCA 150.
[12]R v Yu and Weng [2001] VSCA 179.
[13]M v The Queen (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).
[14]Ibid 493.
[15]Ibid 492-3; Libke v The Queen (2007) 230 CLR 559, 556-7 [113] (Heydon J).
[16]See also Klamo v The Queen (2008) 18 VR 644, 653-4 [38]–[40] (Maxwell P); Greensill v The Queen (2012) 37 VR 257, 276–7 [82]–[83] (Redlich, Osborn and Priest JJA).
The conversation between Zirilli and Scarponi was rambling. It is plain, however, that the two contemplated that the substance being discussed was going to be ‘cooked’, whether they accomplished the manufacture themselves or those to whom the substance was sold did so. At one point, Scarponi said, ‘… I mean no one sells it fucking pure … I mean you can. But even if you put a bit of cutter in there …’. Later in the conversation, Zirilli said, ‘… Ya better of [sic., off] selling it without cooking it … Because you can … can add … add to it’. Zirilli went on to remark that if one cooks the substance one assumes the risk of doing so and ‘you got to pay the cook’. In our view, taken as a whole, the conversation was consistent with the two discussing a precursor, which they could either cook themselves or sell to others for cooking. And although the evidence suggested that one would not add a cutting agent to pseudoephedrine if one was going to use it for the manufacture of methylamphetamine, the evidence also suggested that a person who was not going to use the precursor themselves for manufacture methylamphetamine might ‘cut’ it before selling it to others. Indeed, when asked about ‘jumping on’ pseudoephedrine in the course of cross-examination, the scientist, Nathan Green said, ‘Unless you were selling the pseudoephedrine I can’t see a reason why you would do that, no’. The emphasis in the conversation of 14 May 2008 was on ‘cooking’ the substance to be imported. Whilst the expert Green acknowledged that there are circumstances where there may be a purpose served in cooking an end product such as cocaine or heroin, no such purpose is apparent from the conversation.
In our opinion, the applicant cannot derive much comfort fro the fact that the values of the substance discussed did not match the monetary value of pseudoephedrine discussed by Detective Bates. The conversation between Zirilli and Scarponi was, as we have said, rambling, and moved rapidly from one subject to another (although always remaining relevant to the substance under discussion). In our view, the jury were entitled to regard much of the discussion about values as being speculative, without it necessarily being inconsistent with the evidence of Detective Bates.
Perhaps most importantly, in our opinion, the finding of the quantity of pseudoephedrine within one bag of the ten bags in the shipment, was logically probative of the fact that the conspirators intended to import pseudoephedrine. The prosecution alleged a ‘rip-ff’. The defence addressed that hypothesis. It was open to the jury to infer, in our view, that there had been a failure to live up to the agreement for the supply of 100 kilograms of pseudoephedrine, and that a small amount of the precursor had been left in the shipped product in case there was a need to demonstrate at some point that the bags contained the precursor.
In light of these matters, in our view it was open to the jury to conclude that the applicant was a party to a conspiracy to import a substance believing it to be a border controlled precursor in not less than a commercial quantity, intending to use it, or believing that it would be used, to manufacture a controlled drug.
The jury’s verdict is not unsafe and unsatisfactory. Accordingly, the application for leave to appeal against conviction should be refused.
Sentence application
There are two grounds of appeal against sentence:
1. The sentence is manifestly excessive.
PARTICULARS
(a)The learned sentencing judge erred in that he failed to give sufficient weight to the ill health of the applicant and the consequence that imprisonment will weigh more heavily upon him than upon those not suffering from similar health problems.
(b)The non-parole period fixed represents a highly disproportionate percentage of the head sentence.
2. There is a marked disparity between the sentence imposed on the applicant and the sentence imposed on his co-conspirator Batticciotto.
When sentencing the applicant, the judge observed that the quantity of pseudoephedrine intended to be imported was over 100 kilograms, more than 83 times the commercial quantity. The applicant’s involvement in the conspiracy occurred from around mid-March 2008 until the first arrest on 8 August 2008, his essential role being to source and then oversee the export of the precursor from India. The judge observed that the applicant became involved in the conspiracy through his association with Scarponi, who was his primary contact point with the co-conspirators. The applicant’s expertise involved his contacts in India, and in his experience importing commodities into Australia from India. The judge thought it to be clear, having listened to the evidence, that the applicant was an active and willing participant in the conspiracy; and that without his participation, it would have been difficult to arrange the importation. The applicant’s role was more active than that of a stakeholder.
xxThe judge remarked that tendered medical reports set out a variety of the applicant’s medical conditions, including stroke, asthma, diabetes, anaemia, hypertension and loss of hearing. Recent medical reports noted the applicant’s deteriorating general health (said to be suspected to be related to a development of recent anaemia) and his significant loss of hearing. A psychiatrist, Dr Danny Sullivan, had diagnosed the applicant as suffering from depression, of mild to moderate severity, which was stable. Further, the judge had regard to the applicant’s age; and accepted that the applicant’s health problems will make imprisonment more onerous for him than it would be for a normal healthy offender.
General deterrence, the judge observed, is the paramount sentencing consideration for this type of offence. This was a serious example of this type of offending, where the quantity of precursor intended to be imported was 100 kilograms. Moreover, specific deterrence has a role to play because of the applicant’s previous criminal history. The judge took delay into account in two respects — first, in the effect it has had on the applicant, the matter having been hanging over the applicant’s head for a period of approximately four and a half years; and, secondly, the applicant has demonstrated some prospects of rehabilitation throughout that period, because he had not re-offended.
With respect to parity, the judge observed that Batticciotto, whilst accurately described as a ‘stakeholder’, played little (if any) role in the actual importation; and, more importantly, does not have a criminal history. Scarponi, unlike the applicant, pleaded guilty and was given a substantial discount for doing so.
In support of the contention that the sentence was manifestly excessive, the applicant relied on medical reports which demonstrated that the applicant was suffering from depression, congestive cardiac failure, chronic obstructive pulmonary disease, psoriasis, general arthritis, asthma, high blood pressure and low back pain due to degenerative joint disease, hallucinations and significant bilateral deafness, and that his condition raised neurological concerns. The hardship of incarceration and prison life for a period of no less than nine years on a now 59 year old man with manifold health problems requires little elaboration. Further, it was submitted that the non-parole period fixed in the applicant’s case is disproportionately high, having regard to his age, poor health and the total effective sentence. The judge’s sentencing remarks are relevantly silent as to the reasons for fixing a disproportionately high non-parole period, which represented almost 80 per cent of the applicant’s total effective sentence. This Court, it was submitted, should re-visit the exercise by which the applicant’s the non-parole period was fixed.
As to parity, it was submitted that, on 8 July 2013, Batticciotto was sentenced to be imprisoned for ten years, with a non-parole period of seven years. Although Batticciotto had no prior convictions, he was one of the principals engaged in the business of importation. He intended to sell or process the pseudoephedrine and to profit from its sale or processing. The applicant, whose ‘essential role was to source then oversee the export’ of the pseudoephedrine from India (using his contacts in India and his expertise in importing commodities into Australia from India), was, counsel submitted, a mere employee. Despite these matters, Batticciotto’s head sentence is a year less than that of the applicant and his non-parole period three years less.
We would not uphold the complaint that, in either of its component parts — head sentence or non-parole period — the sentence is manifestly excessive. In order to make good such a complaint, the applicant would need to show that the sentence passed is altogether outside the range available to the sentencing judge in the sound exercise of discretion. He has failed to do so. This was a case where the conspirators intended to import a very large amount of a border controlled precursor in the knowledge that it would be used to manufacture a large volume of a controlled drug. The anticipated profits were very large. It was a very serious offence, and the applicant’s role was instrumental in bringing the object of the conspiracy to fruition (albeit that the agreed amount of illegal product was not delivered). In light of the objective seriousness of the offence, and paying due regard to the applicant’s health problems and other mitigatory features, we are not persuaded that the sentence imposed is manifestly excessive.
But that is not the end of the matter. Both the applicant and Batticciotto contested trials, so that neither had the moderating influence of a plea of guilty on their sentences. Batticciotto was a ‘stakeholder’, but the applicant was, as we have said, instrumental in carrying out the object of the conspiracy. Thus, to our minds, the only important feature distinguishing the two for sentencing purposes, was the applicant’s prior convictions. Batticciotto had not previously offended. On the other hand, the applicant had convictions for offences of dishonesty for which, in 2004, he was sentenced to be imprisoned for three and a half years, with a non-parole period
of 18 months.[17] Hence, despite having previously been imprisoned, not long after his release the applicant involved himself in other very serious criminal activity that was the subject of the present charge. It was legitimate when imposing sentence, therefore, for the judge to make some allowance for the fact that Batticciotto had no prior convictions at all, but that the applicant did. Batticciotto was entitled to reap the benefit of previous good character that the applicant could not call in aid.
[17]See R v Suri [2004] SASC 80. The applicant’s medical condition is described by Perry J at [18]–[19].
In our view, however, although that difference might have justified the disparity of one year between the head sentences imposed on each man, it is difficult to see how it might have justified a difference of two years on the non-parole periods imposed. In Wong it was observed,[18] ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’ Where there are relevant differences between the cases of co-offenders, a sentencing judge has the task of identifying the relevant differences in justification of disparate sentences. The judge in the present identified two factors, only one of those — the applicant’s prior convictions — being of significance. That factor justified the disparity of a year on the respective head sentences, but did not justify the disparity of two years on the non-parole periods. In our view, the non-parole period imposed on the applicant offended the principle of parity, and the error must be corrected. Ground 2 should be upheld.
[18]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ). See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Keiffel JJ).
We would thus grant the application for leave to appeal against sentence and allow the appeal. We would fashion orders so as to reduce the applicant’s non-parole period to eight years. Otherwise, we would confirm the orders of the County Court.
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