Ayik v R

Case [2013] NSWCCA 119

Court of Criminal Appeal

New South Wales
Case Title: AYIK v Regina
Medium Neutral Citation: [2013] NSWCCA 119
Hearing Date(s): 14 May 2013
Decision Date: 22 May 2013
Before: Hoeben CJ at CL at [1]
Hall J at [40]
Davies J at [41]
Decision:

Leave to appeal granted.
Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - knowingly take part in supply of a large commercial quantity of heroin (28.75 kgs) - appeal based on principles of parity - co-offender charged with same offence in relation to the same quantity of heroin - co-offender also charged with further offence of supply larger than commercial quantity of heroin - co-offender provided "truly exceptional" assistance to authorities - finding that co-offender committed offences under duress - submission that structure of sentences breached parity principle - submission that structure of sentences gave rise to justifiable sense of grievance - appeal dismissed.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Bell v R [2008] NSWCCA 206
Henderson v R [2012] NSWCCA 65
Lowe v R [1984] HCA 46; 154 CLR 606
Ng v R [2011] NSWCCA 227
Papadopoulos v R, Topcu v R [2007] NSWCCA 274
Pearce v R [1998] HCA 57; 194 CLR 610
Postiglione v R [1997] HCA 26; 189 CLR 295
R v MacDonnell [2002] 128 A Crim R 44 at 33
Williams v R [2013] NSWCCA 15
Category: Principal judgment
Parties: Erkan Ayik - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
Mr T Game SC - Applicant
Ms T Smith - Respondent Crown
- Solicitors: Solicitors:
Blair Criminal Lawyers - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2010/257894
Decision Under Appeal
- Before: Flannery SC DCJ
- Date of Decision:  11 May 2012
- Court File Number(s): 2010/257894

JUDGMENT

  1. HOEBEN CJ at CL:

    Offences and sentence
    The applicant pleaded guilty to an offence that on 31 July 2010 he did knowingly take part in the supply of a large commercial quantity of a prohibited substance, namely 28.75 kilograms of heroin contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for life. The offence is subject to a standard non-parole period of 15 years.

  2. A "large commercial quantity" in respect of heroin is 1 kilogram. The amount involved in this instance was therefore greater than 28 times the large commercial quantity. The Agreed Facts describe the amount as "one of the highest if not the highest non-border seizure of heroin ever recorded in New South Wales". The wholesale value of such a quantity was in the order of $7.2 - 8 million with a street value of up to $33 million.

  3. An offence of goods in custody (in relation to the possession of confidential police intelligence documents) was taken into account on a Form 1 on sentence.

  4. The applicant was sentenced by her Honour Judge Flannery SC on 11 May 2012. Her Honour…

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AGLC
Ayik v R [2013] NSWCCA 119
Case
[2013] NSWCCA 119
Decision Date

CaseChat Overview and Summary

In Ayik v R, the applicant sought leave to appeal against the sentence imposed for knowingly taking part in the supply of a large commercial quantity of heroin. The case involved a drug distribution network in New South Wales, where the applicant and his co-offender, C, were implicated. The applicant stored the heroin at his premises, and C collected it at Zhang’s direction. The central issue was whether the sentencing judge erred in applying the principles of parity and proportionality given the differences in sentences between the applicant and C. The applicant argued that the structure of C’s sentence, particularly the discounts for exceptional assistance and acting under duress, created a sense of grievance and breached the parity principle.

The court examined whether the sentencing judge's approach to the principle of parity was flawed. It noted that the applicant's counsel had not raised the specific issues about the structure of C's sentence during the original sentencing hearing. The court held that the sentencing judge had appropriately applied the principle of parity by considering the different levels of culpability and subjective features of the applicant and C. The judge had set a start point of 12 years for both offenders based on their respective criminal conduct and adjusted it according to their individual circumstances. The court found that the differences in the final sentences were justified by the factors such as C’s exceptional assistance to authorities and the duress under which he acted, which were not present in the applicant’s case.

The appeal was dismissed as the court found no error in the application of the principles of parity. The sentencing judge had carefully considered the relevant factors and appropriately structured the sentences to ensure they were commensurate with the total criminality. The differences in the sentences were not such as to give rise to a justifiable sense of grievance, and the principle of parity was correctly observed.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks leave to appeal against sentence on the following ground: Her Honour erred in her application of the principles of parity having regard to the sentences (and structure of those sentences) imposed on C".Factual background During the course of an Australian Crime Commission investigation into a prohibited drug distribution network in NSW, a number of telecommunications emanating from Lee Zhang were intercepted. On 28 and 29 July 2010 Zhang was in communication with the applicant. On 30 July 2010 Zhang was in regular contact with C, the applicant's co-offender. The applicant's role in the offence was that he stored the 28.272 kgs of heroin at his premises over a three day period (28 - 30 July 2010). On the afternoon of 31 July 2010, Zhang (who was clearly higher in the hierarchy) contacted the applicant to see if he was at home. The co-offender C then came to the applicant's home that afternoon to collect the heroin (at the direction of Zhang). When C arrived, the applicant drove his car out of his driveway and reversed C's vehicle into the rear yard of his home. The applicant then placed the heroin in a suitcase and returned to help C put it in the boot of C's car. C then drove away. Shortly afterwards, C was stopped by police and the 28.272 kgs of heroin was located. C was charged with the same offence as the applicant in relation to that heroin, namely, knowingly taking part in the supply of a large commercial quantity of prohibited drug (28.272 kgs heroin). C was dealt with on the basis that at the direction of Zhang, he had collected the 28.272 kgs of heroin from the applicant's house where it was being warehoused. When he was stopped by the police, C was in the process of transporting it to his own home (where it was proposed to be stored for three days). When sentencing C, her Honour found that he was acting under duress at the time of the offending, i.e., he participated because he truly feared for his and his wife's safety as he believed Zhang had connections with motorcycle gangs, government officials, customs and the police. A Form 1, which contained one count of knowingly deal with the proceeds of crime, was attached to this offence. It related to $10,000 found at the home of C upon his arrest. It was money which he had been paid by Zhang for his role in delivering heroin. C had an additional offence (not in common with the applicant) which was dealt with at the same time. It arose from an incident the day before the above offence (i.e., on 30 July 2010) when, acting upon instructions by Zhang, C had delivered eight blocks (each 350 grams) of heroin to a purchaser. Her Honour found that C was also acting under duress when this offence was committed (referred to as Count 1 in the applicant's submissions). C gave assistance to the authorities that was found to be "truly exceptional". He was allowed a combined discount of 50 percent for the assistance and plea of guilty. Her Honour also found as a consequence of his protected status, that his custody had been and would be somewhat more onerous than it would be in the normal prison population.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant submitted that it was this distortion in proportionality, as well as the differences already referred to, which provided a basis for his justifiable sense of grievance with respect to the sentences imposed on C when compared with that which he received.Consideration As a start point, it should be noted that the "proportion" point now being taken on behalf of the applicant was not taken by very experienced senior counsel, who appeared on behalf of the applicant, before the sentencing judge. No submission was made then that the application of the principle of parity in the applicant's case required regard to be had to the structure of the sentences imposed on C, or that there was a need for her Honour to focus on the time that C would actually spend in custody attributable to the offence which they had in common. Applying the principle of parity in the conventional way, it is important to note that the applicant and C were sentenced by the same judge who gave detailed reasons for the different sentences which she imposed. Her Honour referred to their different criminality and differing subjective features. In those circumstances, an appellate court should be cautious before determining that an applicant has a justifiable sense of grievance because of a different outcome (Ng v R [2011] NSWCCA 227 at [78]; Williams v R [2013] NSWCCA 15 at [25] - [26]). Even if one accepts (which is by no means clear) that the applicant was a step lower in culpability than C, the differences between them were not such as to invalidate her Honour's start point of 12 years. Those matters (i.e. the additional charge which C faced, so that his conduct could not be dealt with as isolated and that the Form 1 offence was less serious) were more than offset by the finding that C was acting under duress in relation to both offences for which he was sentenced. Accordingly, the choice by her Honour of 12 years as the same start point for both the applicant and C, was clearly open to her. Most particularly, the criminality of the applicant was different to that of C in the light of the finding that C was acting under significant duress (Papadopoulos v R, Topcu v R [2007] NSWCCA 274). Approached in the conventional way therefore and comparing the sentence imposed on the applicant with that imposed on C in respect of the same offence, there is no proper basis for a finding that her Honour did not observe the principle of parity when sentencing the applicant and C. In relation to the structure of the sentences imposed on C, her Honour did no more than consider the principle of totality in accordance with Pearce v R [1998] HCA 57; 194 CLR 610. Her Honour fixed the appropriate sentence in relation to each offence and then considered issues of concurrency and accumulation. The requirement was for her Honour to structure the sentences so as to ensure that the overall sentence was appropriate for the total criminality. There was no obligation on her Honour to structure the sentences so as to also have regard to some concept of proportionality based on the actual time C would spend in custody, attributable to the offence which he had in common with the applicant.