Es v R

[2014] NSWCCA 268

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

ES v R [2014] NSWCCA 268

Hearing dates:

21 July 2014

Decision date:

28 November 2014

Before:

Bathurst CJ; Fullerton J; Davies J

Decision:

1.Leave to appeal is granted.

2.The appeal is dismissed.

Catchwords:

CRIMINAL - appeal - sentence - whether 40 per cent discount for assistance and plea appropriate - late plea - early offers to plea conditional - strong Crown case - relevance of Crown decision following plea to not proceed with retrial of co-offenders
CRIMINAL - appeal - sentence - appropriate ratio between head sentence and non-parole period - whether appropriate weight given to applicant's custodial conditions and hardship to applicant's family

Legislation Cited:

Crimes Act 1914 (Cth), Pt 1B
Crimes (Sentencing Procedure) Act 1999 (NSW), s3A
Criminal Code Act 1995 (Cth), s 307.11
Drug Misuse and Trafficking Act 1985 (NSW), ss 24A and 25

Cases Cited:

Bland v R [2014] NSWCCA 82
DS v R [2014] NSWCCA 267
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Lachlan Wilson v R [2014] NSWCCA 266
LB v R [2013] NSWCCA 70
M v The Queen [2014] NSWCCA 39
Phan, Thanh Dinh v R [2013] NSWCCA 49
R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
R v El Hani [2004] NSWCCA 162
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:

Principal judgment

Parties:

ES (Applicant)
Crown (Respondent)

Representation:

Counsel:
W Barber (Applicant)
I D Bourke / M England (Crown)
Solicitors:
BPH Legal (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2008/83782

Publication restriction:

Pursuant to s 7(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the appellant in these proceedings be known by the pseudonym "ES"

 Decision under appeal 

Date of Decision:

2012-07-26 00:00:00

Before:

Frearson SC DCJ

File Number(s):

2008/83782

Judgment

1. THE COURT: The applicant seeks leave to appeal against a sentence imposed in the District Court on 26 July 2012 after he entered a plea of guilty on 8 February 2012 to aiding and abetting, counselling or procuring Lachlan Wilson to import a commercial quantity of pseudoephedrine, a border controlled precursor, contrary to ss 307.11(1) and (2) of the Criminal Code Act 1995 (Cth) (the Code). That offence carries a maximum penalty of 25 years imprisonment, 5,000 penalty units, or both.

1. On the same day the applicant also entered a plea of guilty to attempting to possess pseudoephedrine, as a precursor, contrary to s 24A of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). That offence carries a maximum penalty of 10 years imprisonment, 2000 penalty units, or both.

1. Pseudoephedrine is both a border controlled precursor under the Code, and a prohibited drug and a precursor under the DMT Act.

1. After applying a combined discount of 40 per cent for the pleas of guilty and assistance to the authorities, the applicant was sentenced to 9 years and 11 months imprisonment, with a non-parole period of 6 years on the first count and a fixed term of 2 years and 2 months imprisonment on the second count, to be served wholly concurrently with the sentence imposed on the first count.

1. The application for leave to appeal is limited to the sentence imposed on the first count (the Commonwealth count).

1. Five grounds of appeal were filed but only three grounds were pressed at the hearing. The first two grounds address the combined discount for the plea of guilty and assistance and are conveniently dealt with together. The applicant complains that the discount of 8 per cent for the plea of guilty was inadequate and a greater allowance should have been made for the applicant's assistance to the authorities. In short, it was submitted that the combined discount of 40 per cent should have been greater. The third ground of appeal complains that the ratio between the non-parole period and the head sentence was inappropriate and that a non-parole period of less than 6 years should have been imposed.

A chronology of events post arrest

1. This applicant was one of six offenders arrested and charged on 14 August 2008 with various offences relating to the importation and supply of just over 603 kg of pseudoephedrine calculating to a pure weight of around 125 kg. The drug was detected by Customs on 8 August 2008 secreted in 45 boxes in a consignment of 390 boxes. The container had been packed and loaded in Thailand. After removing the pseudoephedrine and replacing it with an inert substance upon its arrival in Australia, the container was the subject of a controlled delivery to a warehouse where others were arrested. Relevantly, they included DS, Yousef Jidah and his brother Ibrahim Jidah. Another offender, Lachlan Wilson, was arrested upon his return to Australia from Thailand.

1. The applicant was committed for trial on 26 October 2009. A joint trial was fixed for 21 June 2010. On 3 June 2010, the applicant offered to plead guilty to the charge under s 24A(1) of the DMT Act in full satisfaction of the indictment which, at that time, also included two further counts, namely aid and abet the importation and a supply charge under the DMT Act. The Crown rejected that offer.

1. On 9 September 2010, the applicant was granted conditional bail. He remained on bail until he was sentenced. After successive adjournments, the joint trial of all offenders, other than this applicant, was listed to commence on 23 February 2011. The applicant's trial had been vacated some weeks earlier to enable him to secure funding to allow him to be represented at his trial.

1. On 12 May 2011, the jury returned verdicts of guilty in the trial with respect to Lachlan Wilson, Ibrahim Jidah, Yousef Jidah and DS, for their involvement in seeking to possess pseudoephedrine for supply contrary to s 25(2) of the DMT Act. DS, Ibrahim Jidah and Yousef Jidah were also convicted of attempting to obtain possession of the pseudoephedrine as a precursor, contrary to s 24A of the DMT Act. The jury were unable to agree as to whether Lachlan Wilson imported the pseudoephedrine as a border controlled precursor or whether DS aided and abetted the importation by Lachlan Wilson, both counts laid under the Code.

1. On 16 June 2011, the applicant offered to plead guilty to aiding and abetting the importation of the pseudoephedrine by Lachlan Wilson conditional on the Crown agreeing to discontinue the remaining two charges referred to above and discontinuing the proposed retrial of Lachlan Wilson and DS, listed to commence on 1 August 2011. That date was subsequently vacated with their joint trial ultimately listed to commence in February 2012. That offer was also rejected by the Crown.

The sentencing of co-offenders

1. Between 23 September 2011 and 27 July 2012, Lachlan Wilson, Ibrahim Jidah, Yousef Jidah and DS were sentenced to differing terms of imprisonment. Nothing turns on that fact so far as this applicant is concerned since he makes no complaint about disparity. In the applications for leave to appeal against the sentences imposed on DS (who was sentenced the day after this applicant) and Lachlan Wilson (who was sentenced 2 months earlier), they each complain that the sentence imposed on this applicant was so markedly disparate to the sentences they received for, what they both submitted was, less objectively serious offending, as to be productive of a justifiable sense of grievance. DS was re-sentenced having made out a ground of appeal based on a disparity referable, in part, to the sentence imposed on this applicant (DS v R [2014] NSWCCA 267). Lachlan Wilson's sentence appeal was dismissed (Lachlan Wilson v R [2014] NSWCCA 266).

The facts for sentencing purposes

1. His Honour had regard to a comprehensive set of agreed facts supplemented by a summary of a number of lawfully intercepted telephone calls and text messages between this applicant and Lachlan Wilson and between Lachlan Wilson and DS. From that material, his Honour concluded that, despite the applicant pleading guilty to aiding and abetting the importation by Lachlan Wilson (the count upon which the jury were unable to agree at Lachlan Wilson's trial and for which he was not subsequently retried), this applicant was the principal in the enterprise, which had the importation and attempted retrieval of 125 kg of pure pseudoephedrine from a consignment of 603 kg of tablets imported from Thailand as its objective. His Honour found that the applicant had controlled the operation from its inception. That involved directing the activities of others, including Lachlan Wilson, in whose name the consignment was imported, and then directing his cousin DS and Ibrahim Jidah in the supply phase of the operation.

1. After summarising the facts, his Honour found that the applicant's role as principal included, in particular, arranging for the supplier of the drugs in Thailand to make initial contact with Lachlan Wilson; liaising with Lachlan Wilson and the suppliers to ensure they had a means of communicating with each other; arranging for Lachlan Wilson to be in Thailand at the time the container arrived in Australia and when it was delivered to his warehouse; maintaining contact with and pressure on Lachlan Wilson to ensure the importation arrived in a timely fashion and to ensure the container was dealt with promptly by Lachlan Wilson's Customs broker, and ultimately communicating with Lachlan Wilson as to what the applicant believed to have been the success of the operation.

1. The directions the applicant gave to DS included ensuring he supervised the reception of the container at the warehouse and the identification of the 45 boxes that contained the drugs and ascertaining whether any of the boxes contained a listening device. This applicant also recruited Ibrahim Jidah (to escort the 45 boxes from the warehouse to another location) who, in turn, recruited his brother, Yousef, as the driver. This applicant provided surveillance advice to ensure against the risk of police intervention.

1. His Honour found that the applicant's motivation was greed since he must have anticipated a vast financial reward from the operation given the capacity of the consignment of drugs to realise between $77 million and $112 million if it had been exploited in the manufacture of methyl amphetamine.

The applicant's subjective circumstances

1. The applicant was aged 32 at the time of sentence. He was a member of an Orthodox Christian Lebanese family, being the eldest of three brothers and three sisters. He completed his Higher School Certificate. He worked in the security industry for some time before setting up a transport business. He met Lachlan Wilson a few years before the criminal activity for which they had both been charged. Apparently he loaned $250,000 to Lachlan Wilson, although arrangements to pay it back did not seem to eventuate. It is unclear whether that money was outstanding at the time of their criminal union. Although the applicant had no relevant antecedents, he put before the court material that revealed he had a history of being involved in substantial drug trafficking. His Honour held this accordingly disentitled him to some leniency.

1. The applicant relied upon a report from Dr John Jacmon, a consultant psychologist, in which it was suggested that the applicant's compromised mental health diminished his ability to formulate reasoned judgments and caused him to act impulsively with little or no thought given to the consequences (we note in DS's sentence proceedings, a report from the same practitioner was tendered in almost identical terms). The sentencing judge gave no weight to Dr Jacmon's opinion, being well satisfied that the importation was planned and well organised over an extended period of time, that the applicant had directed the activities of others and the offence was the product of the same business acumen he had demonstrated through his involvement with various corporations in the course of which he had generated very considerable wealth. His Honour was, however, satisfied that his regret at the distress he caused his family and the bad example he had set his children, as expressed to Dr Jacmon, was genuine.

1. He regarded the applicant's prospects for rehabilitation as reasonable, being satisfied that he was unlikely to re-offend. There was evidence of a reasonable measure of remorse.

Grounds 1 and 2: The sentencing judge erred in setting an appropriate discount in respect to the applicant's plea of guilty and his assistance to authorities

1. The combined discount of 40 per cent reflected an allowance of 8 per cent for the pleas of guilty and 14 per cent for future assistance if it was necessary that he gave evidence at the culmination of an investigation into unrelated serious offending. The remaining 18 per cent must be taken to have been an allowance for the applicant's assistance up to the date of sentence. His Honour also took into account the fact that the applicant was in protective custody at the time of sentence and would likely apply for non-association custody upon sentence. He also took into account that the assistance would likely put the applicant's family at risk which may result in a need for them to be relocated.

1. Insofar as the ground concerning the specific allowance for the pleas of guilty, the applicant submitted that insufficient weight was given to the applicant's earlier conditional offers to plead guilty which should have moderated his Honour's finding that the pleas of guilty were entered at a very late stage. It was also submitted that although the pleas of guilty were late (having been entered approximately three years and six months after his arrest) they nonetheless had considerable utilitarian value and, insofar as the Commonwealth offence was concerned, the plea reflected the applicant's willingness to facilitate the course of justice, despite the strength of the Crown case against him.

1. In our view, neither the terms nor the timing of the earlier conditional offers to plead guilty in any way diminish what was a very late plea the value of which, on the Commonwealth count, was greatly reduced by the overwhelming strength of the evidence to establish the applicant's actual involvement as the principal in the importation he was charged with aiding and abetting. His Honour also found that there was no basis to infer that the conditional offer to plead guilty in June 2011 was motivated by any willingness, on the applicant's part, to facilitate the administration of justice. We are satisfied this was a view entirely open to the sentencing judge in the exercise of his sentencing discretion.

1. We also reject counsel's submission that his Honour failed to give appropriate consideration to the applicant's willingness to facilitate the course of justice when the plea was ultimately entered. The fact that the retrial of Lachlan Wilson and DS was, at the time a guilty verdict was entered by the applicant, due to commence (a retrial in which the applicant was to stand trial jointly with them), does nothing to diminish the fact that the plea was over three and a half years after he was arrested and eight months after the second plea offer had been rejected. It is entirely irrelevant to the weight to be afforded to the applicant's plea of guilty to the Commonwealth count that the Crown elected not to proceed with a retrial of the applicant's co-offenders.

1. Insofar as the discount for assistance is concerned, the applicant's complaint is essentially that a discount of 22 per cent in a combined discount of 40 per cent was an inadequate reflection of assistance which was described by his Honour as being of a "high level and of great value" (or, to put it another way, that a combined discount of 40 per cent failed to reflect that finding of fact).

1. The general approach of appellate courts and sentencing courts to the discount applied to a sentence for the combined effect of a plea of guilty and assistance to the authorities has been restated on a number of occasions by this Court (see Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81], Bland v R [2014] NSWCCA 82 at [88], R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [5], R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 at [66]-[68] and LB v R [2013] NSWCCA 70 at [62]). The authorities acknowledge that although there will be exceptional cases where a combined or composite discount of more than 40-50 per cent is called for (for instance, either because of the nature of the assistance itself or where the conditions of custody are particularly harsh or where there is a risk that family members might be exposed to danger) in all cases to which reference has been made above, the plea of guilty was in substance, if not described as such, "early" and thus account for a significant proportion of the discount (M v The Queen [2014] NSWCCA 39 at [15]). Here, as we have already sought to emphasise, the plea was late. Although the assistance was found to be of a high level and of great value we are not satisfied that it ought to have attracted a more significant discount or that his Honour's discretion miscarried in applying a combined discount of 40 per cent.

1. Sentencing is not an arithmetic exercise but a discretionary exercise in which the purposes of sentence under s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW) need to be reflected in a principled way. Any greater discount would have undermined the need for the sentence to reflect personal and general deterrence and to punish this applicant for his role as the notional apex of a large commercial drug enterprise.

Ground 3: The sentencing judge erred in setting an appropriate ratio between the head sentence and the non-parole period

1. The sentence imposed in this case reflected a ratio between the head sentence and the non-parole period of 60.5 per cent. Essentially the complaint advanced by the applicant is that, while his Honour indicated an intention to take into account the applicant's custodial conditions in appointing the proportion of the non-parole period to the head sentence, he must have failed to do so. It was also submitted that he failed to take into account the additional hardship to the applicant's family caused both by having to relocate and the fact that, after being on conditional liberty for an extended period of time, the applicant was ultimately sentenced to imprisonment. It was further submitted that his Honour failed to give any or sufficient weight to the deterioration in the applicant's financial situation.

1. These submissions fail entirely to deal with the obligation on the part of a sentencing court when sentencing for a Commonwealth offence to ensure that the minimum term to be served is fixed in accordance with Part 1B of the Crimes Act 1914 (Cth), that is, it is referable to the minimum term that an offender should be required to serve in custody without the opportunity of parole, so as to serve, amongst other objectives, the needs of specific and general deterrence, and not to any judicially determined norm (see Hili v The Queen; Jones vThe Queen [2010] HCA 45; (2010) 242 CLR 520 at [44]).

1. To the extent that his Honour was entitled to be informed by the considerations referred to by the applicant's counsel on the appeal in fixing the non-parole period (about which we have some doubt), we can discern nothing in the appointment of the non-parole period as necessitating a finding that he failed to afford appropriate weight to them. In fact, on one view, the allowance given by his Honour to the applicant's family circumstances was generous when there was nothing in the evidence to suggest that any hardship that they might suffer as a consequence of the applicant's imprisonment was exceptional (see R v El Hani [2004] NSWCCA 162).

1. A sentence of 6 years imprisonment prior to being eligible to be considered for release to parole for offending of the scale and order of the applicant's offending does not admit of any suggestion that his Honour's sentencing discretion miscarried in providing for a ratio of 60.5 per cent between the head sentence and the non-parole period (see Phan, Thanh Dinh v R [2013] NSWCCA 49).

Orders

1. Accordingly, the orders of the Court are:

(1)   Leave to appeal is granted.

(2)   The appeal is dismissed.

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Decision last updated: 28 November 2014