Director of Public Prosecutions v Suri
[2014] VCC 2321
•28 March 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANIL SURI |
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JUDGE: | His Honour Judge Montgomery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 March 2014 | |
CASE MAY BE CITED AS: | DPP v. Suri | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2321 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | ||
| For the Accused |
HIS HONOUR:
1 Anil Suri, on 21 May 2013, you were found guilty by a jury of conspiracy to import a commercial quantity of a border controlled precursor, namely pseudoephedrine. You have admitted your criminal record, which involves a conviction on 22 January 2004 in the District Court of South Australia on six counts of appropriation or disposal of property by a trustee, three counts of false pretences and 12 counts of fraudulent conversion. You were sentenced to three and a half years' imprisonment, with a non parole period of one and a half years. I am told that the offending occurred in 1997 and 1998. You appealed that decision and I have read the reasons of the South Australian Court of Appeal in rejecting your appeal.
2 The prosecutor, Mr Young, handed up an outline of written submissions. He submitted that your role in the conspiracy represented a serious example of both collective and individual criminal conduct. The quantity of pseudoephedrine intended to be imported was over 100 kilograms, more than 83 times the statutory minimum. Your involvement in the conspiracy occurred from around mid March 2008 until the first arrest on 8 August 2008.
3 Your essential role was to source and then oversee the export of the precursor from India. You became involved in the conspiracy through your association with Severino Scarponi. Scarponi was your primary contact point with the co conspirators. Your expertise was your contacts in India and in importing commodities into Australia from India.
4 In summary, the matters put before the jury are contained in paragraph 2 of the prosecution outline upon plea and in detail in the summary of the prosecution opening at the trial.
5 Mr Young submitted that general deterrence was the preeminent sentencing consideration. He also submitted that because of your criminal history, specific deterrence was relevant. He submitted that the only appropriate penalty was a term of imprisonment.
6 I have had regard to the decision of the High Court in Barbaro & Zirilli and I propose to disregard the submission Mr Young made as to an appropriate sentencing range.
7 Mr Young pointed out, in relation to your ill health, initially, that much of it was in existence prior to and at the time of the conspiracy and is referred to in the reasons of the Court of Appeal of South Australia. He has repeated that submission today. He submitted that during the course of the conspiracy when you travelled to India, you had health problems and it was at your insistence that you made the trip. Some four and a half years have elapsed from arrest to time of trial. In relation to that delay, Mr Young pointed to the protracted time as a result of the scale of the investigation and criminality of yourself and co conspirators. He said that the original preliminary hearing of all matters was substantially delayed by various strategies of other accused persons but not you. The delay, he submitted, should not operate as a factor in any significant mitigation in the present circumstances, although he did agree with the defence that the delay was substantial and had the effect of it hanging over your head. Mr Young submitted that you played an essential role in the conspiracy.
8 In response to the defence submission about the manner of or conduct of the trial, he submitted that you had not signed an agreed set of facts but generally the trial was run on the basis of no contest as to the facts. However, he did point out that there was a contest as to the product that was found in the container which added approximately a day and a half to the trial. There was some discussion between the parties about the effect of cooperation in respect of the manner of the conduct of the trial and what effect it has on sentencing. The position of Her Honour King J was referred to and the decision of the Court of Appeal in Queensland was also referred to.
9 In reply to a submission that the object of the conspiracy was never going to succeed, Mr Young agreed that under section 16A(2) of the Commonwealth Act, the court can have regard to the potential harm arising out of the criminal conduct. He referred to the case of Standen, which is referred to in his submission, which states that it can be taken into account that there was no actual harm to any victims.
10 In discussion of the principles of parity, Mr Young submitted that the appropriate comparison would be with the sentence given to your co accused, Phillip Batticciotto. Mr Batticciotto stood trial with you and was similarly convicted. He was sentenced to a term of imprisonment of 10 years, with a non parole period of seven years. Mr Young repeated that submission today and reiterated that Mr Batticciotto had significant health problems but he submits that, unlike you, he was prepared to do something about them. Mr Batticciotto had no prior convictions.
11 The defence submitted that Batticciotto was a stakeholder and you were a paid hand, therefore there was a difference in role. Mr Young submitted that although the roles were different, you were an essential member of the conspiracy and it would not have got off the ground but for you, whereas Batticciotto, although a stakeholder, was not essential to the success of the conspiracy.
12 The defence submitted that a more relevant comparison would be with the sentence imposed on co accused Severino Scarponi. Scarponi pleaded guilty and received a head sentence of eight years for this offence and in total, combined with other offences, a head sentence of nine years, with a non parole period of six years. Of course, as Mr Young points out, the main difference between Scarponi and yourself is that he pleaded guilty and thus was eligible for the appropriate discount. He submitted that in comparison to Mr Batticciotto, your role was one of more proactive involvement at the coalface, thus it was more essential than that of Batticciotto. Mr Young pointed to the fact that Batticciotto came from Canberra and will be serving the sentence in Victoria and submitted that this hardship doesn't apply to you, as you reside in Victoria.
13 He provided a list of authorities, including the mentioned case of Standen [2011] NSWSC 1422 and a folder of sentencing statistics from drug cases.
14 Does anyone know what the PSD is to this date?
15 MR YOUNG: Pre sentence detention?
16 HIS HONOUR: Yes.
17 MR YOUNG: No. We've absolutely totally - - -
18 HIS HONOUR: Can someone work that out as I go along, please. Mr Dickinson, do you know? I have got a note here at the time of the hearing of the plea, it was 209 days.
19 Mr Young submitted that the ordering of a non parole period would be appropriate in the circumstances of this case.
20 On your behalf, Mr Dickinson made the following submissions:
(1) He submitted that in relation to the other co conspirators, you were not a stakeholder, therefore your role was not as important. He said that you were a paid hand who was to receive a financial benefit. You were brought in to use your contacts in India and because of your expertise in importation. He submitted that you were well below the role of other co conspirators who were stakeholders.
(2) He submitted that the enterprise was doomed to fail because of the fact that the product that arrived was not the product that was bought. In effect, the conspirators had been ripped off by the suppliers. In addition, the police were always on to the crime, thus it could never have succeeded. He therefore submitted that there was never a risk of the harmful substance reaching the public.
(3) He submitted that the delay of four and a half years was a significant sentencing factor. He agreed that the delay was substantially caused because it was a complex investigation. He said your case had been parked in the queue and was hanging over your head for that period of time. He said that delay could not be attributed to you. He handed me the case of Director of Public Prosecutions v WRJ [2009] VSCA 174 and referred to paragraphs 16 20. Those paragraphs set out the legal principles concerning delay as referred to in the very well known cases about it. At paragraph 20 the court said, "As Maxwell P pointed out in Merrett's case, the significance of delay does not depend on whether the delay can be satisfactorily explained or not. Its relevance lies rather in the effect which the lapse of time – however caused – has on the accused. As the judge correctly observed, attention must be focused on issues of rehabilitation and fairness."
21 Mr Dickinson submitted that you had good prospects of rehabilitation, as you had not re offended since the time of your arrest. In addition, the matters have been hanging over your head for that period of time.
(4) He pointed to the combination of your age. At that time - is he still 58, Mr Dickinson?
22 MR DICKINSON: I will check, Your Honour. He turns 59 in two weeks, Your Honour.
23 HIS HONOUR: You are two weeks short of your 59th birthday and the various health problems you have are as outlined in Exhibit S1. The various medical reports set out a variety of medical conditions that you have had over the years, including a stroke, asthma, diabetes, anaemia, hypertension and loss of hearing. The current medical reports at that time were provided by Professor David Russell, a consultant physician and gastroenterologist, one dated 6 August 2013 and one dated 4 December 2013.
24 I adjourned the plea for a further report from Professor Russell. I have been told today that Professor Russell did not want to visit the gaol to make that report. In lieu of that, the defence have provided me with two other reports, which I will refer to in a moment.
25 MR DICKINSON: Your Honour, just before you do that, I just gave Your Honour some incorrect information. He is 58 but will be 59 in two to three months.
26 HIS HONOUR: Okay. When I revise it, I will just put "you are now 58".
27 MR DICKINSON: Yes, Your Honour.
28 HIS HONOUR: Professor Russell, after setting out your complex past medical history, said that the presenting problem was deteriorating general health, which he suspected was related to a development of recent anaemia. In his further report, he said that he'd reviewed an ECG, which was essentially normal and showed no evidence of recent myocardial damage. There was a recent haemoglobin rise which was significant, but he was unable to investigate suspicions of an iron deficiency because certain tests are yet to be done. I have read all those reports and have taken them into account when considering this submission.
29 Prior to the final determination of this plea today, the defence served on the court two further reports, one from Dr John Matthew, a consultant physician, dated 24 March 2014, and one from Dr Danny Sullivan, a consultant psychiatrist, dated 25 March 2014. In his report, Dr Matthews firstly examines, at page 1, your deafness issue. He said, "This is a most striking feature when he is first seen. He can hardly hear anything and questions had to be written down." He said, "I understand the right sided deafness had been present for some years, the left for a shorter time." He said he did not have a tuning fork but suspected it would have been very difficult to work out the results of hearing tests with this because the loss is so profound. At p.2 he recounted that you gave a history of auditory hallucinations and they are noted in the report.
30 He looked at a full psychiatric history taken by Dr Patel, who regarded the hallucinations as indicative of a non specific psychosis. Dr Matthews considered whether there might be an organic explanation for those hallucinations and the deafness, as outlined at p.2 of his report.
31 He made reference to your obesity and diabetes and the other medical problems I have spoken about. In the paragraph on p.3 headed Assessment and Opinion, he concluded you certainly suffered badly from deafness and that seemed to him to be your most pressing problem. With better communication, he said management of your other problems may become easier. He said, "Although he has hallucinations, he appears to be in contact with reality and, as I have said, some of his hallucinations may be based on organic disease of his auditory system."
32 Dr Sullivan set out your medical history and psychiatric history. He considered a series of reports from other sources, as detailed in paragraphs 29 24. At the last reference in paragraph 24, he said, "Discharge summary of St John's unit, noting admission from 16 January to 7 February 2014 with sudden loss of hearing, pain, mobility. It was noted that he had undergone audiology review, although this was not in the file. Basic balance problems were considered to have resolved."
33 At paragraph 28, Dr Sullivan spoke of his consultation with psychiatrist Dr Jindal at the Melbourne Assessment Prison. Dr Jindal told him, "Following the abrupt onset of complete deafness, you had developed persecutory ideation and reported auditory hallucinations of your sister speaking to you." He was informed that you had been transferred to the Melbourne Assessment Prison for more comprehensive psychiatric follow up. You had been reviewed in the prison clinic but no medication had commenced. He conducted a mental state examination on 15 March, and that is in paragraphs 30 and 31.
34 In his Opinion and Recommendations, beginning at paragraph 32 and finishing at paragraph 42, in paragraph 33 he said, "His depression is stable, although exacerbated by the stress of his legal situation." He diagnosed your depression as being of the mild to moderate severity. In paragraph 34 he said you had no previous history of other mental illness or cognitive impairment. In paragraph 36 he said more recently you have developed worsened deafness which creates significant problems for communication in prison and that has been complicated by the development of a paranoid illness. He said definite diagnosis is not currently possible on the information available to him but the two main possibles are of delirium or psychotic illness. He said there is no indication that mental disorder was associated in any way with the offending, as alleged.
35 In paragraph 41 he concluded, "Mr Suri has significant health problems which paradoxically may be better controlled while in prison and with the availability of health care staff. However, the onset of deafness has resulted in increased distress and appears associated with the onset of mental health concerns significant enough to warrant transfer to the Melbourne Assessment Prison. On the basis that he is isolated, has marked difficulties in communication, especially by telephone, and is distressed by psychotic concerns, I would consider that Mr Suri's incarceration is more burdensome than it would be for a man without his physical and mental health difficulties."
36 Mr Dickinson relied on the medical reports, and in particular the last two medical reports, to make a submission that the case of Verdins, as he set out in the principles he referred to from that case, should apply and should moderate general and specific deterrence.
(5) Mr Dickinson acknowledged that a significant custodial sentence would be imposed here.
37 (6) He submitted that I should take into account the manner in which you had instructed your legal advisers to run the trial. He said that appropriate submissions had been made. He submitted that you had good prospects of rehabilitation, as shown by the fact that you had not offended since 2008.
38 (8) He submitted in consideration of your prior convictions, I should realise that the actual offending occurred in 1998 and the conviction should be viewed in the context of the age of them.
39 (9) In relation to parity, he submitted that the proper comparison should be made with the sentence imposed on Scarponi. He submitted that he was a stakeholder, he pleaded guilty to this offence and received a sentence of nine years, with a non parole period of six years. He submitted that therefore you should receive a lesser sentence because you played a lesser role in the conspiracy.
40 (10) He related your background to me. You were born in Gwalior, a couple of hundred kilometres south of New Delhi. You came from a large family. You had eight other siblings. For the first 14 years of your life or so, your parents were well off. They were in business and you attended a private school until 14. The family business got into financial difficulty and you were transferred to government schools. You completed high school and also went to university. Your sister qualified as a doctor and emigrated to Australia. In 1977 you came, when you were aged 21 or 22, and went to live in Adelaide with your sister. You met your first wife there and had a son to her. You worked at petrol stations, weed spraying, as a labourer, and a factory worker, approximately seven days a week. In 1981 you opened up a small retail jewellery business, which, after establishing, you gave to your first wife to operate and you went back to the factory. The marriage failed in 1984. In 1985 you returned to India to meet your future wife in an arranged marriage. You came back to Australia with her. In that year you set up a company importing goods from South Asia and concurrently a retail outlet of the selling of some of those goods. It was successful and led to the opening of more stores. In 1997 1998 the business failed. You started a second venture but that also had a short success time. In 2004 and 2005 you were in gaol. You had a stroke approximately 10 years ago and have been on a disability pension since.
41 (11) Mr Dickinson told me that you are supported in court by a large number of family and friends, most of whom have come from Adelaide. He tendered a list of references from various family members and other friends. I have read those and taken them into account. He submitted that they show that you are a person of remarkable generosity, compassion and are liked far and wide. He pointed to the episode where you helped your niece when she contracted polio, emotionally and financially. He said you were a religious man. He asked me to take all those factors into account in imposing the sentence.
42 Sentencing Considerations. I have taken into account all the sentencing submissions, exhibits tendered and cases referred to by both parties, including any not specifically mentioned in these reasons. I have considered carefully the submissions made today in respect of the material that has just been provided. I have considered and taken into account the relevant matters set out in section 16A(2) of the Commonwealth Crimes Act.
43 I have concluded because of the serious nature of the offending, that a custodial sentence is appropriate in these circumstances. These reasons for sentence can be taken to be entered as the records of the court. I consider a non parole period is appropriate in the circumstances of this case and ask your legal representatives to explain to you what the conditions of a non parole period entail and what occurs when you are on parole.
44 General deterrence is the paramount sentencing consideration for this type of offence. I agree with the prosecution's submission that this is a serious example of this type of offending, where the quantity of precursor intended to be imported was 100 kilograms. I also consider specific deterrence has a role to play because of your previous criminal history. I have taken into account the delay in the matter in two respects: one, the effect it has had on you because it has been hanging over your head for a period of approximately four and a half years and, two, you have demonstrated through the period, because you haven't re offended, that you have some prospects of rehabilitation.
45 It was put on your behalf that your role was different to that of stakeholders. That is, I suspect, put on the assumption that stakeholders will receive a greater financial benefit than you were going to receive. It is clear, after listening to evidence in the trial, that you were an active and willing participant in the conspiracy and without it, it would have been difficult to arrange the importation. You had the necessary contacts in India and the necessary experience to import the product into Australia. It is difficult for me to make an assessment as to whether the role of a stakeholder is different to the role that you played, which was much more active.
46 When considering the issue of parity, it is always a difficult proposition for a sentencing judge to be precise about. Batticciotto, while described accurately as a stakeholder, played little, if any, role in the actual importation but more importantly does not have a criminal history. Mr Scarponi pleaded guilty and in a reading of my reasons for sentence in his case, I note that I described the discount that he was given for the plea as substantial. You do not have the benefit of a substantial discount for the entry of a plea of guilty.
47 I have taken into account your age and health problems and I accept the submission made by Mr Dickinson as to the effect that your health problems will cause you whilst you are in custody.
48 I also acknowledge the submissions of Mr Young, that your health problems, in the main, have been with you for a long time and they did not stop you from offending as you did in this case, so I conclude that your time in gaol will be more onerous than a normal healthy offender and I have taken that into account.
49 Weighing up all the submissions and factors as best I can, I sentence you to a term of imprisonment of 11 years, with a non parole period of nine years. The starting date for the term of imprisonment is - what is the date I should fix? The date from when the PSD started?
50 MR YOUNG: The PSD, Your Honour, exclusive of today, is 322 days.
51 HIS HONOUR: So when did the actual term of imprisonment start?
52 MR YOUNG: It started, I think, on the day that he went into custody and was convicted, it was the day of his conviction. I don't believe he was in custody before. I could be wrong, but I don't believe he was in custody.
53 HIS HONOUR: Remind me again what date that was.
54 MR YOUNG: 21 May, Your Honour.
55 HIS HONOUR: The starting date for the term of imprisonment is 21 May 2013. I declare that the period of 322 days - Mr Dickinson, do you agree with that, 322?
56 MR DICKINSON: My instructor tells me that's right, Your Honour, but I'm further instructed that he spent some time in gaol after arrest.
57 MR YOUNG: That was taken into account, I believe. That was taken into account when we got 209 days up to the time we were listed in December.
58 HIS HONOUR: If there is any correction of that that needs to be made, it is just a matter of ringing my associate. Will I need to come back to court to do it or can I make it if there is no argument about it?
59 MR DICKINSON: My instructor seems to agree, Your Honour, that it has been taken into account.
60 HIS HONOUR: If there is some revision of that, let me know and I will revisit it.
61 I declare that the period of 322 days that you have spent in custody be reckoned as part of the term of imprisonment served under the sentence I have just imposed.
62 MR YOUNG: Your Honour, just in relation to those two pages of the medical notes, if you wish them to be tendered - - -
63 HIS HONOUR: It is a matter for you whether you tender them.
64 MR YOUNG: I shall. Perhaps if they could be copied; progress notes from the Metropolitan Remand Centre. One is 15 January of this year, the other is 16 January.
65 MR DICKINSON: Your Honour, I'm a bit troubled by it because the notes were subpoenaed to enable expert witnesses to form an opinion. They've been provided to Dr Matthew and Dr Sullivan and they've taken those as part of the material to form their opinion. It is the opinion.
66 HIS HONOUR: As you've just heard, I've, in some detail, gone through those opinions and accepted what was in them.
67 MR DICKINSON: The notes by themselves are not going to assist Your Honour, I would have thought, in the slightest.
68 HIS HONOUR: I have already made the decision and, as I said, in some detail gone through the two medical reports which I have had for a number of days and accepted what was in them and the sentence reflects that and I have made an allowance for your submission in relation to Verdins.
69 MR DICKINSON: In my submission, Your Honour - - -
70 HIS HONOUR: On the basis of those reports.
71 MR DICKINSON: - - - that material is not relevant, unless the opinions are to be challenged.
72 HIS HONOUR: I haven't said it was relevant. I have accepted the opinions. You don't want me to change my mind, I take it?
73 MR DICKINSON: No, I don't, Your Honour. I'm objecting to the tendering of this material.
74 HIS HONOUR: Do you want to tender them or not? It is referred to on transcript.
75 MR YOUNG: It is referred to on transcript, I have identified it, we will retain it. Insofar as Mr Dickinson doesn't want me to tender it, we still have it for the purposes of any later proceedings of it being in existence. Your Honour raised the issue as to whether or not I wanted to tender it.
76 HIS HONOUR: I did.
77 MR YOUNG: And I said - - -
78 HIS HONOUR: And you didn't tender it. At the time I raised it you didn't, so I just moved on and I'm moving on now.
79 MR YOUNG: Okay. That's fine.
80 HIS HONOUR: Are there any other matters I need to consider at this stage or other orders to make?
81 MR YOUNG: I don't believe so, Your Honour, no.
82 HIS HONOUR: Mr Dickinson?
83 MR DICKINSON: No, Your Honour.
84 HIS HONOUR: Could you remove Mr Suri, thanks.
85 PRISONER REMOVED
86 HIS HONOUR: I will just, before I sign the order, check again. It is 21 May 2013 that the sentence is to commence, correct?
87 MR YOUNG: No, the sentence is announced to commence, Your Honour, from today.
88 HIS HONOUR: Is it?
89 MR YOUNG: Under the sentencing provisions of the Crimes Act.
90 HIS HONOUR: When I said that, I made an error.
91 MR YOUNG: Sorry, Your Honour, I was dealing with something else at the time you said it. In terms of the Crimes Act, Your Honour, the sentence is said to commence from today.
92 HIS HONOUR: And then the 322 is deducted.
93 MR YOUNG: And there is pre sentence detention that is ordered of 322 days.
94 HIS HONOUR: Do you agree with that, Mr Dickinson?
95 MR DICKINSON: Yes, Your Honour.
96 HIS HONOUR: I amend that. The date of sentence to commence is 28 March 2014. Adjourn the court.
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