Cadzow v The Queen
[2020] SASCFC 108
•13 November 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
CADZOW v THE QUEEN
[2020] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Bleby)
13 November 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - RECOGNISANCE RELEASE ORDER
Application for permission to appeal against sentence.
The appellant, Mr Cadzow, pleaded guilty to 31 offences under the Export Control Act 1982 (Cth) relating to the preparation and exportation of lucerne seed. The offences were committed over a period of approximately three and a half years between May 2012 and January 2016.
The circumstances of the offending were the subject of a Statement of Agreed Facts. The appellant was engaged by growers of lucerne seed to market and export 15 consignments of lucerne to buyers in Saudi Arabia, and was later engaged to export a further consignment to Chile. The first 15 consignments each involved the commission of two offences, namely, procuring the occupier of an unregistered establishment to prepare prescribed goods, and exporting or attempting to export prescribed goods with false trade descriptions. The final offence related to the 16th consignment, which involved the appellant using an unregistered establishment to prepare lucerne seed.
The sentencing judge imposed a sentence of imprisonment of four years and three months, with a non-parole period of one year and 10 months.
The appellant advanced five grounds of appeal against the sentence. On 6 July 2020, Justice Kelly granted permission to appeal in respect of grounds 4 and 5, while grounds 1 to 3 were referred to the Full Court. The Full Court heard oral argument on the application and the appeal on 21 August 2020. At the conclusion of the hearing, the Court made orders allowing the appeal and setting aside the sentence of the District Court.
Held (per Kourakis CJ, Kelly and Bleby JJ), granting permission to appeal and allowing the appeal:
1. The sentence is manifestly excessive.
2. The sentence is set aside.
3. Pursuant to s 26 of the Sentencing Act 2017 (SA), a sentence of one year and six months imprisonment is imposed.
4. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant is released forthwith on entering into a recognisance in the sum of $100, to be of good behaviour for a period of 12 months from the date of sentencing.
Export Control Act 1982 (Cth) ss 8A(1), 8(3)(1), 15, 15(1)(b), 15(1)(a)(i); Crimes Act 1914 (Cth) ss 20(1)(b), 16A(2), 16A(2); Sentencing Act 2017 (SA) s 26 ; Export Control (Plants and Plant Products) Order 2011 (Cth); Export Control (Orders) Regulations 1982 (Cth); Criminal Code Act 1995 (Cth) s 11.3, referred to.
Morex Meat Australia Pty Ltd & Anor v The Queen [1996] 1 Qd R 418; AB v The Queen (1999) 198 CLR 111; Dinsdale v The Queen (2000) 202 CLR 321; R v Schmidt (2011) 210 A Crim R 29; Duncan v R (1983) 47 ALR 746; Bell v R (1981) 5 A Crim R 347; Fattah v R [2016] VSCA 43; Hili v The Queen (2010) 242 CLR 520, discussed.
CADZOW v THE QUEEN
[2020] SASCFC 108Court of Criminal Appeal: Kourakis CJ, Kelly and Bleby JJ
THE COURT: This is an appeal against sentence. The appellant, Mr Cadzow, pleaded guilty to 31 offences under the Export Control Act 1982 (Cth) (Export Control Act) relating to the preparation and exportation of lucerne seed.
The offences were committed over a period of approximately three and a half years between May 2012 and January 2016. The counts and respective notional sentences for those counts were as follows:
·14 counts of procuring the conduct of a person to commit the offence of preparation of prescribed goods for export at an unregistered establishment contrary to s 8A(1). The sentencing judge notionally sentenced the appellant for these counts to one year, seven months and 19 days’ imprisonment, reduced by 30 percent for the guilty pleas, from a starting point of 28 months;
·one count of preparing prescribed goods for export at an unregistered establishment contrary to s 8A(1). The sentencing judge notionally sentenced the appellant for this count to one month and 13 days’ imprisonment, reduced by 30 percent for the guilty plea, from a starting point of two months;
·one count of attempting to export prescribed goods in contravention of specified conditions or restrictions contrary to s 8(3)(1). The sentencing judge notionally sentenced the appellant for this count to one month and 13 days’ imprisonment, reduced by 30 percent for the guilty plea, from a starting point of two months;
·14 counts of exporting prescribed goods with false trade descriptions contrary to s 15(1)(b). The sentencing judge notionally sentenced the appellant for these counts to two years, five months and 13 days’ imprisonment, reduced by 30 percent for the guilty pleas, from a starting point of three years and six months; and
·one count of exporting prescribed goods using OECD labels containing false trade descriptions contrary to s 15. The sentencing judge notionally sentenced the appellant for this count to four months and seven days’ imprisonment, reduced by 30 percent for the guilty plea, from a starting point of six months;
The judge sentenced the appellant to four years and three months’ imprisonment. That represented a reduction of five months and five days from the total of the notional head sentences. He imposed a non-parole period of one year and 10 months. The sentence commenced from the date of sentencing, 3 June 2020. In imposing the sentence that incorporated the reduction, the judge expressed regard to ‘the matters to which I have referred’ in his remarks and ‘to considerations of totality and partial [con]currency’.
The appellant advanced five grounds of appeal against the sentence, namely:
1The sentencing Judge erred in disregarding personal mitigating factors by reason of the nature and circumstances of the Appellant’s offending.
2The sentencing Judge erred in formulating and cumulating individual notional head sentences to arrive at an unrealistic starting point (36 years, 8 months and 2 days) from which reductions were made for partial concurrency and totality.
3The sentencing Judge erred in failing to explain the process by which he reduced the starting point to a head sentence of 4 years and 3 months on grounds of partial concurrency and totality.
4The head sentence and non-parole period were manifestly excessive.
5The sentencing Judge erred in failing to impose a sentence of less than 3 years imprisonment with an immediate release order (s 20(1)(b) of the Crimes Act 1914 (Cth))
On 6 July 2020, Justice Kelly granted permission to appeal in respect of grounds 4 and 5, while grounds 1 to 3 were referred to the Full Court.
This Court heard oral argument on the application and the appeal on 21 August 2020. At the conclusion of the hearing, the Court made orders allowing the appeal and setting aside the sentence of the District Court. It sentenced the appellant as follows.
For the 14 counts of procuring the conduct of a person to commit an offence of preparation of prescribed goods at an unregistered establishment contrary to s 8A(1) and the single count of preparing prescribed goods for export at an unregistered establishment, the Court imposed a sentence of two months, pursuant to s 26 of the Sentencing Act 2017 (SA).
For the 14 counts of exporting prescribed goods with a false trade description on labels, contrary to s 15, the single count of exporting prescribed goods using OECD labels containing false trade descriptions contrary to s 15 and the single count of attempting to export prescribed goods in contravention of specified conditions contrary to s 8(3)(1), it sentenced the appellant to one year and four months’ imprisonment, pursuant to s 26 of the Sentencing Act 2017 (SA).
The total period of imprisonment resulting was one year and six months. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the Court then ordered that the appellant be released forthwith on the rising of the Court, on entering into a recognisance in the sum of $100, to be of good behaviour for a period of 12 months from the date of sentencing.
The Court’s reasons for these orders follow.
Background
The appellant has been involved in the export of lucerne seed for over 30 years. In 1985, he was employed by Keith Seeds Pty Ltd, which marketed and exported lucerne on behalf of growers. He became a director of that company in 2000. He managed the company until it went into receivership on 22 November 2010, primarily as a result of the global financial crisis. The company went into liquidation on 22 December 2010.
In 2011, the appellant commenced a new lucerne marketing and exporting business called Quantum Bio. He acted as managing director of that business until he was sentenced to imprisonment on 3 June 2020. The offending occurred during this period.
The offending
The circumstances of the offending were the subject of a Statement of Agreed Facts. Between about May 2012 and May 2014, the appellant was engaged by growers of lucerne seed to market and export 15 consignments of lucerne to buyers in Saudi Arabia. These consignments weighed 574.8 metric tonnes in total. In late 2015, the appellant was engaged to export a further consignment, this time to Chile.
The first 15 consignments each involved the commission of two offences. Consignments 1-14 all reached Saudi Arabia. The two offences committed in respect of each of these consignments were:
(i)procuring Thomas Eckert, the occupier of an unregistered establishment at Strathalbyn (Eckert’s farm), to prepare prescribed goods (lucerne seed) which were subsequently exported to Saudi Arabia; and
(ii)exporting prescribed goods (lucerne seed) with false trade descriptions.
The 15th consignment, which was also intended for export to Saudi Arabia, was intercepted at Port Adelaide. The two offences committed in respect of this consignment were:
(i)procuring Thomas Eckert, the occupier of an unregistered establishment at Strathalbyn, to prepare prescribed goods (lucerne seed) which were subsequently entered for export to Saudi Arabia; and
(ii)attempting to export prescribed goods (lucerne seed) with false trade descriptions.
The final offence related to the 16th consignment. This involved the appellant using a warehouse, an unregistered establishment, which he leased at Keith to prepare lucerne seed which was subsequently exported to Chile.
The Saudi purchasers paid a total price of approximately USD $3,560,000 for the first 14 consignments. The 15th intercepted consignment was to be sold for approximately USD $250,000. The 16th consignment, to Chile, was sold for AUD $45,450. The appellant received somewhere between AUD $60,000 and $100,000 in fees for marketing and facilitating the consignments.
Lucerne, also known as alfalfa, is a flowering plant in the legume family and a prescribed good under the Export Control Act. Order 9 of the Export and Control (Plants and Plant Products) Order made under regulation 3 of the Export Control (Orders) Regulations 1982 provides that consignments of prescribed goods must be prepared in a registered establishment in accordance with Part 3 of the Order. A registered establishment must comply with defined requirements relating to, among other things, fitness for purpose, hygiene and auditing.
Lucerne seed intended for export is packaged in 25kg bags before and after preparation. Producers are required to deliver the seed to a registered establishment where it must be unbagged, treated with a fungicide, intermixed, re-bagged in new 25 kg bags and then labelled for export.
A person commits an offence under s 8A(1) of the Export Control Act if the person is an occupier of an unregistered establishment at which prescribed goods are prepared and the goods are exported after preparation. Pursuant to s 11.3 of the Criminal Code Act 1995 (Cth), a person commits an offence if he or she procures the occupier of an unregistered establishment to commit such an offence. Under s 15(1)(b) of the Export Control Act, a person also commits an offence if the person exports or enters for export any prescribed good to which a false trade description is applied. The maximum penalty for each of these offences is 5 years’ imprisonment.
The offences can be classified broadly into two groups, being procurement and preparation offences, and false description offences.
The procurement and preparation offences with respect to consignments 1‑15 concerned the appellant’s engagement of Eckert’s farm for re-bagging and labelling. Eckert’s farm was licensed to treat lucerne seed but was not a registered establishment for re-bagging and labelling for export.
The appellant was sentenced on the basis, accepted by the prosecution, that the appellant did not commit these offences intentionally. It was accepted that the appellant held a mistaken belief that Eckert’s farm did not need to be registered for re-bagging and labelling lucerne seed for export, but that he was reckless in this regard. That is to say, he was aware of a substantial risk that the premises needed to be registered and, having regard to the circumstances known to him, unjustifiably disregarded that risk. Thus, while each consignment occasioned separate offending, the recklessness that actuated that offending constituted a single course of conduct.
The false description offences arose out of the requirements of the international certification regime that exists under the auspices of the Organisation for Economic Co-operation and Development (OECD), of which Australia is a member. This regime required that the lucerne seed comply with genetic and processing specifications and that it be certified by a relevant Australian authority. It allowed lucerne seed to be labelled for export with a licensed blue OECD label, upon which certain information must be recorded, including the fact that the contents had been OECD certified and that they were of a particular seed, strain and line number.
At the time of the offending, Saudi Arabian importers accepted only ‘Dormancy 9’ lucerne seed varieties. One such variety is ‘Siriver’. With the exception of consignment 13, the appellant applied to each 25kg bag of lucerne that he exported or attempted to export, blue labels with false seed line numbers and the false descriptions ‘Certified’ and ‘Siriver’. The consignment documents, including the commercial invoice signed by the appellant, also contained these false descriptions. Further, the appellant had applied to these consignments blue labels that he had designed to ‘leverage off the quality’ of genuine OECD labels.
In the case of consignment 13, the appellant had applied to each 25kg bag a genuine OECD label which had printed on it that the bag contained ‘Siriver’ which had been ‘Certified’. The appellant had purchased these labels in 2013 from an authorised supplier. The appellant was not licensed to use these labels. He had acquired them in anticipation of becoming licensed, but had failed to complete the licensing requirements due to financial constraints.
The appeal
Grounds 1-3 of the appeal in respect of which permission was sought raise complaints of process error. It may be that Ground 5 is best regarded as a particular of Ground 4. For the reasons which follow, the appeal can be determined on Ground 4. The sentence was manifestly excessive.
Manifest excess
The appellant deployed certain aspects of his argument about process error in support of his complaint of manifest excess. When viewed through the prism of that complaint, these arguments are only signposts in the consideration of this type of outcome error. In AB v The Queen, Hayne J explained:[1]
[1] AB v The Queen (1999) 198 CLR 111, [129]-[130].
The task of the Courts of Criminal Appeal in this country in hearing appeals against sentences is a limited task and it is governed by well-established principles that have been repeatedly stated. In particular:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
Such cases are, however, different from cases in which the complaint is that the sentence is manifestly excessive. There, as was said in House v The King:
“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
(Emphasis in original; footnotes omitted)
In Dinsdale v The Queen, Gleeson CJ and Hayne J observed:[2]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
[2] Dinsdale v The Queen (2000) 202 CLR 321, [6].
Whether a sentence is manifestly excessive or inadequate will still require consideration of the matters relevant to sentencing. In the present case, the Court was required to take into account the matters listed in s 16A(2) of the Crimes Act 1914 (Cth).
The appellant emphasised a number of matters. He has no prior convictions and has otherwise led a responsible and productive life. He is married and has raised three children. He works in the export field and has committed himself to community events and associations over the years. These matters are made relevant by s 16A(2)(m) of the Crimes Act 1914 (Cth).
The judge accepted that the appellant was contrite and remorseful, had shown a genuine insight into his offending and had accepted responsibility for his actions. Those matters are made relevant by s 16A(2)(f). Further to this, the appellant entered guilty pleas at committal (s 16A(2)(g)).
With respect to the consideration in s 16A(2)(h), the judge accepted that the appellant had been cooperative with the investigation. The appellant emphasised, however, that this cooperation extended to disclosing the preparation offences of which the investigators had previously been unaware.[3] He submitted that the sentencing judge’s remarks did not fully reflect this extent of cooperation.
[3] R v Schmidt (2011) 210 A Crim R 29.
Section 16A(2)(n) makes relevant the prospect of rehabilitation of the person. To this end, the appellant emphasised that there had been a considerable delay between the date of the last offence and the date of sentence. Indeed, that period of time was some four and a half years. To this end, the sentencing judge said:[4]
I also accept that you have taken real steps towards rehabilitation. It has been over four years since the offending ended. You have managed to maintain your work in the industry. I accept the submission you have either rehabilitated yourself or you are well advanced in your rehabilitation.
[4] Sentencing Remarks at 6.
Further to this, the sentencing judge expressed his view that the appellant was unlikely to offend again.[5]
[5] Sentencing Remarks at 7.
In circumstances where the appellant had cooperated with the investigation to the degree that he did and then manifestly rehabilitated himself over such a lengthy period of time, this is a powerful consideration against imposing a period of imprisonment such as would jeopardise that rehabilitation. In Duncan v R,[6] the Western Australian Court of Criminal Appeal observed of the earlier case Bell v R:[7]
The case is authority for the proposition that where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
[6] (1983) 47 ALR 746 at 749.
[7] (1981) 5 A Crim R 347 at 351.
Similarly, in Fattah v R[8] the Victorian Court of Appeal observed of an appellant who had been involved in a drug trafficking operation but who had rehabilitated himself in the three-year period between the offending and his arrest and charge, that:[9]
It would be contrary to the public interest for that process to be disrupted by his incarceration now, more than five years after the offending.
[8] [2016] VSCA 43.
[9] Fattah v R [2016] VSCA 43 at [8]; See further at [37]-[48].
In this vein, the appellant also submitted that these same considerations meant that specific deterrence, a relevant consideration under s 16A(2)(j), had no meaningful role to play in sentencing for these offences.
For its part, the respondent emphasised that the appellant was sentenced for 31 offences, each of which attracted a maximum penalty of five years’ imprisonment. The offending was committed over an extended period. Counsel for the respondent submitted that the consideration of specific deterrence did still have work to do, on the basis that while the appellant would no longer be able to sample and certify seed, he would still be able to purchase seed and present it to registered premises and have those matters of sampling and certification carried out. That is to say, he was still able to participate in the industry.
The offences are serious. They exist to protect the existence and reputation of Australia’s trade markets. Nevertheless, the five-year penalties are clearly designed to cover a broad range of conduct that may well vary considerably in its seriousness. For example, the procurement and preparation offences were accepted to have been committed recklessly rather than intentionally.
To look at comparable cases can be of some potential assistance. However, the mere fact that a result is markedly different from sentences that have been imposed in previous cases is not off itself a basis of warranting appellate intervention.[10] In any event, neither party was able to identify any case with which any useful comparison could be drawn. Both referred to Morex Meat Australia Pty Ltd & Anor v The Queen (Morex).[11] In that case, a managing director was convicted by a jury on two counts of applying false trade descriptions to meat that was exported to Korea, contrary to s 15(1)(a)(i) of the Export Control Act, and of attempting to pervert the course of justice. The managing director was fined in respect of the false description offences. On appeal, the Queensland Court of Appeal substituted the fine with concurrent sentences of two years’ imprisonment.
[10] Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
[11] [1996] 1 Qd R 418.
In respect of this case, the appellant emphasised that the managing director had pleaded not guilty, had exhibited no contrition or remorse and did not undertake extensive post-offence rehabilitation. Moreover, the initial sentence suffered from disparity with those given to two co-offenders. Further, the exported meat in that case caused actual damage in addition to the risk that the offending posed to the relevant market. The offending was intentional rather than reckless.
For its part, the respondent emphasised that the sentencing in Morex was for four offences, rather than 31. The false trade descriptions related to the use of a label which described meat destined for export as having been slaughtered and packed a month earlier than it had been. The conduct had occurred over a weekend. The respondent submitted that the scale, value, sophistication and number of transactions involved in the appellant’s offending were much greater.
Morex is of no real assistance. When compared with the present matter, it provides a good example of the number of variables that can intrude into the commission of an offence that is designed to accommodate a wide variety of conduct.
The circumstances that demonstrate the appellant’s contrition and cooperation give reason for pause over the sentence imposed by the sentencing judge. It is appropriate that a sentence of imprisonment be imposed. The importance of protecting the integrity of Australia’s export markets and the related consideration of general deterrence are critical considerations. Further, on the limited information as to the ability of the appellant to continue to participate in the industry at some level, personal deterrence should be given some consideration.
However, in this regard, the appellant has demonstrably rehabilitated. That comprehensive rehabilitation over a period of more than four years, when taken with his contrition and cooperation, renders both the head sentence of four years and three months, and the non-parole period of one year and ten months, manifestly excessive.
Further, the combination of those factors in the present case provides good reason for the exercise of the discretion under s 20(1)(b) in the appellant’s favour.
For these reasons, the Court made the orders identified at the commencement of these reasons. It is not necessary to consider the other grounds of appeal.
9
1