Hiseni v DPP (Cth)
[2013] VSCA 301
•18 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0091
| ADEM HISENI |
| Applicant |
| V |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| Respondent |
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| JUDGES | WEINBERG AND COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 October 2013 |
| DATE OF JUDGMENT | 18 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 301 |
| JUDGMENT APPEALED FROM | DPP (Cth) v Hiseni & Anor (Unreported, County Court of Victoria, Judge Dean, 2 May 2013) |
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CRIMINAL LAW – Leave to appeal against sentence – Possession of a marketable quantity of a border controlled drug – 5 years 6 months’ imprisonment – 3 years 4 months’ non-parole period – Whether sentence offends the principle of parity – No real distinction in level of offending – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Valos Black & Associates |
| For the Crown | Ms T Tran | Commonwealth Director of Public Prosecutions |
WEINBERG JA:
The Court is in a position to give judgment in this matter. I will ask Coghlan JA to deliver the first judgment.
COGHLAN JA:
On 26 April 2013 the applicant pleaded guilty to the possession of a marketable quantity of a border controlled drug (cocaine). On 2 May 2013 he was sentenced to be imprisoned for 5 years and 6 months with a non-parole period of 3 years and 4 months.
By notice dated 27 May 2013 he makes application for leave to appeal against that sentence on the proposed ground that:
The sentence imposed offends against the sentencing principle of parity when compared with the sentences imposed upon two co-accused, being Sajmir Beqiri and Dritan Mehmeti, for the same offence.
On 24 July 2013 Buchanan JA refused leave to appeal. By notice dated 5 August 2013 the applicant elected to renew the application.
The circumstances of the offending are set out in the applicant’s revised written case as follows:
On 23rd March 2011, Australian Federal Police and Victoria Police executed a search warrant at premises at 5 Whitehouse Avenue, Truganina. Present at the premises at the time of the execution of the warrant were the Applicant and Dritan Mehmeti [Mehmeti]. The premises were owned by the wife of another co-accused, Sajmir Beqiri [Beqiri].
At the premises, police located six drums, each containing clothing and towels submerged in quantities of liquid. Subsequent forensic testing revealed that it contained 1692.92 grams of pure cocaine. The marketable quantity of cocaine is two grams, and the commercial quantity is two kilograms or more.
The cocaine had been imported into Australia in January, 2011 by the Chinese girlfriend of Bakshin Gashi. Gashi had previously worked for Beqiri, and it was Beqiri who paid for the airline tickets for Gashi and his girlfriend to travel from South America to Australia.
The cocaine had been imported into Australia in a suitcase containing clothing and towels that had been impregnated with the drug. The clothing and towels which were located on 23rd March, 2011 at Truganina were the items that had been imported in January, 2011.
Prior to the execution of the search warrant, Beqiri and Mehmeti had been the subject of surveillance and the interception of their telephones by investigating police. For this reason, the Applicant became a subject of investigation by police upon his arrival into Australia, from USA, on 18 March, 2011 – 5 days before his arrest.
It was the role of the Applicant to assist in the process of extracting the cocaine from the clothing and towels by a chemical process that would result in the cocaine being in a form suitable for ultimate distribution.
Beqiri and Mehmeti purchased a number of items to be used in the chemical process and the clothing and towels were stored in a suitcase at Beqiri’s home in Templestowe prior to the arrival of the Applicant in Australia. The clothing and towels were later moved to the house at Truganina.
Upon the arrival of the Applicant into Australia, further chemicals were purchased and the process of extraction commenced.
The Applicant was interviewed by arresting police and made no admissions. He was remanded in custody.
The value of the cocaine, sold at 60% purity, would be approximately $562,000 and, at 35% purity, the approximate value of the cocaine would be $804,100.
It was submitted at the plea hearing for the Applicant that he expected to receive the price of his airfare and several thousands of dollars for his services in extracting the cocaine, and that he had in fact received no monetary payment at all before his arrest.
The respondent agrees with the facts as set out above but has sought to clarify that the equipment and chemicals necessary for the extraction of the cocaine were purchased after the applicant’s arrival in Australia. The applicant and the co-accused went together to purchase the equipment. The applicant informed the co-offender Beqiri, by SMS, of the nature and quantity of chemicals required.
The co-accused were each sentenced to the same sentence as the applicant. Beqiri had been re-sentenced by the Court of Appeal following his successful appeal against his conviction for ‘manufacturing’ of a controlled substance.[1] Mehmeti was sentenced at the same time as the applicant.
[1]Beqiri v The Queen [2013] VSCA 39.
The principles of parity in sentencing are long established. They were usefully summarised in Kelly v The Queen [2] where Redlich and Weinberg JJA said,
The notion of equal justice is the genesis for the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. It gives rise to the principle that like cases should be treated alike. Accordingly, persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence. But considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal. This Court will interfere in such cases where it considers that the disparity between the co‑offenders is ‘marked’ or, as Dawson J said in Lowe v R, where the differences between the sentences are ‘manifestly excessive'.
The justification which is assigned to this Court's intervention in the case of such disparity is that it has engendered a justifiable sense of grievance in the co-offender or, in other words, gives the appearance to the impassive, objective bystander that justice has not been done. To eliminate or diminish the sense of grievance or the appearance of injustice this Court will, in an appropriate case, reduce the more severe penalty to bring it into conformity or more into line with the co‑offender's penalty, although it is well established that ‘there is no principle of law that sentences must strictly compare’.
Where the principle of parity is enlivened, this Court will not necessarily reduce the higher sentence so that it equates in all respects with the sentence imposed on the co‑offender. While the sentence imposed on the co‑offender must be taken into account as part of the discretionary exercise, justice will not necessarily require that the court match the sentence imposed upon the co‑offender.[3]
[2][2011] VSCA 10.
[3]Ibid [5]-[7] (citations omitted).
In this case it is contended that the difference between the applicant and his co-offenders is that he sits lower in the hierarchy of offending than either of the co-offenders. The three features of the case argued in support of that contention are that both of the other men were in possession of the cocaine for a longer period of time than the applicant, the two co-offenders had a proprietary interest in the cocaine and that they had much more to gain.
The second consideration put is that there was a considerable delay before both the applicant and Mehmeti were sentenced in comparison with the co-offender Beqiri.
On the issue of involvement in the crime, the learned sentencing judge concluded,
I am satisfied that all three of you played an important role in the preparation for and conduct of the process, and each of you expected to profit from your involvement.[4]
[4]DPP(Cth) v Hiseni & Anor (Unreported, County Court of Victoria, Judge Dean, 2 May 2013) (‘Sentencing remarks’), [7].
It was conceded on the plea that there was no significant difference between the roles played, although counsel submitted that the applicant may have played a lesser role but only by ‘a fairly slim margin’ by comparison with Beqiri.
In dealing with the differences in roles between the three co-offenders it is important to note that Beqiri had been sentenced by the learned sentencing judge to be imprisoned for 6 years with a non-parole period of 3 years 9 months. He was sentenced for both manufacturing and possession of a controlled substance. The sentence for possession was directed to be served wholly concurrently with the sentence for the manufacturing charge.
After the Court of Appeal concluded that it was not open as a matter of law for Beqiri to have been convicted of the crime of manufacturing the drug, notwithstanding his plea of guilty, he fell to be re-sentenced for the offence to which the two co-offenders subsequently pleaded guilty. It is clear that Beqiri received a reduction in sentence because of his psychological condition(s) which the learned sentencing judge had found to be causally connected to the offending. Since Beqiri fell to be re-sentenced, the Court of Appeal received further material which demonstrated that his condition(s) had been exacerbated by his time in detention.[5]
[5]Supra [63]-[66].
It must be assumed that, absent that consideration, Beqiri would have received a longer sentence.
It was not suggested on the plea that the applicant or Mehmeti could have a reduction in sentence as a result of any psychological condition other than the fact that each had some psychological deficits which would make their time in prison more onerous.
The learned sentencing judge, having made the remarks which he did about the roles played by each of the co-offenders, later said,
As I have already observed, the Court of Appeal sentenced your co-offender Sajmir Beqiri to five years and six months imprisonment, with a non-parole period of three years and four months. In his case I concluded that the principles set out by the Court of Appeal in R v Verdins (2007) 16 VR 269 were engaged, and the Court of Appeal heard evidence that the condition that Beqiri suffered from had deteriorated whilst he was in prison. Whilst there are factors in your respective cases that weigh in your favour in mitigation that were not present in the case of Beqiri, in particular the issue of delay, in my opinion, these factors are not such that I should impose a different sentence on either of you to that imposed by the Court of Appeal upon him.[6]
[6]Sentencing remarks [14].
I am satisfied that it was open to his Honour to conclude that the role of each of the co-offenders was close to equal. The fact that the applicant had come from the United States to use his ‘expertise’ to extract the cocaine was very significant. It was for reward. It was not clear whether Beqiri and Mehmeti were involved as the actual proprietors of the enterprise, or whether they too had been employed to perform specific roles. The learned sentencing judge did conclude that Beqiri was to receive more than the $10,000 that he had asserted he was to gain.
Although the evidence of isolation and separation from family was clear in the case of the applicant, the co-offender Mehmeti was also isolated.
The applicant is separated from his family and his term of imprisonment will be more burdensome as a result. However, did come to Australia for the purpose of
removing the cocaine from the clothing, he took the risk, and it is fair to assume that his reward would have been significant. That is the risk that exists when enterprises of this kind are undertaken It was put by his counsel on the plea that he was to receive ‘thousands of dollars’. That is not to say that I proceed on the basis that the applicant’s involvement was, in his perception, other than a matter of economic necessity. I regard him as being in a different position to a courier who is rewarded for bringing drugs into Australia for a relatively small fee.
The distinction between both the applicant and Mehmeti and Beqiri is that as observed by the learned sentencing judge there has been significant delay. In the case of the applicant who has been remanded in custody since his arrest, the most important feature of delay was that he had these matters hanging over him. Although Mehmeti was on bail for a considerable period, he was left in a similar position.
The counterbalance between the reduction in sentence received by Beqiri for his psychological difficulties and the reduction in sentence for the applicant and Mehmeti for delay seems reasonable.
Although there is some evidence from which it might be inferred that Beqiri was higher in the hierarchy than the other two offenders, there is little or no evidence to demonstrate that Mehmeti, although he was the original contact for the applicant, was anything other than a person acting on the basis of being paid a fee for his service. I do not accept that there is any real distinction to be drawn between the applicant and Mehmeti for the purpose of sentencing.
I am not satisfied that the ground is reasonably arguable. I would refuse leave to appeal.
WEINBERG JA:
I agree. The order of the Court is leave to appeal is refused.
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