Kauwenberghs v R

[2008] NSWCCA 98

New South Wales
Court of Criminal Appeal

CITATION:	KAUWENBERGHS, Tim Leon Mon v R (Cth) [2008] NSWCCA 98
HEARING DATE(S):	4 September 2007
JUDGMENT DATE:	14 July 2008
JUDGMENT OF:	Beazley JA at 1; Hall J at 2; Fullerton J at 3
DECISION:	1. Leave to appeal against the sentences is granted. 2. The appeal allowed in part. The sentences imposed on 5 May 2006 in respect of counts 1, 3, 4 and 5 are quashed and in lieu thereof the applicant is sentenced as follows: (a) In respect of count 1 on the indictment, sentence is calculated from a starting point of 22 years. After applying a discount of 45 per cent, the applicant is sentenced to a term of imprisonment of 12 years and 1 month. There being no basis to depart from the accepted ratio of 60 – 66 per cent between the term of imprisonment and the non-parole period in Commonwealth matters, a non-parole period of 8 years is imposed. I direct that the sentence commence on 28 June 2004 with the non-parole period commencing on that date and expiring on 27 June 2012 the date upon which the applicant is eligible for release on parole. (b) In respect of count 4 on the indictment (objectively the most serious of the three State offences and reflecting a degree of criminality relative to the first Commonwealth offence), I consider that in light of all of the circumstances in which the applicant came to supply Yona with the drugs in his possession, his offending is in the mid range. After taking into account the applicant’s previous record (s 21A(2)(d) of the Crimes (Sentencing Procedure) Act) and the fact that his activity was part of an organised criminal enterprise (s 21A(2)(n)) as aggravating factors and his assistance to the authorities (s 21A(3)(m)), his plea of guilty (21(A)(3)(k)) his remorse (s 21A(3)(i)) and the fact that he is unlikely to re-offend (s 21A(3)(g)) as mitigating factors, there are sound reasons for not imposing the standard non-parole period of 15 years. The applicant is sentenced to a non-parole period of 9 years commencing on 28 June 2004 with a balance of term of 5 years. I am satisfied that the conditions of the applicant’s custody warrant a finding of special circumstances such as to justify a departure from the statutory ratio between the non-parole period and the additional term as specified in s 44(2) of the Crimes (Sentencing Procedure) Act. (c) In respect of count 3 on the indictment, and for the reasons specified when imposing the sentence on count 4 above and in addition for his disclosure of his offending to police, I impose a non-parole period of 5 years commencing on 28 June 2004 with a balance of term of 20 months. I have taken into account the offence on the Form 1 in the calculation of this sentence. (d) In respect of count 5 on the indictment, again for the reasons specified above as justifying a departure from the standard non-parole period of 15 years, I impose a non-parole period of 6 years commencing on 28 June 2004 with a balance of term of 2 years. 3. The first date upon which the applicant will be eligible for release on parole will be 27 June 2013.
CATCHWORDS:	CRIMINAL LAW - appeal against sentences - possession of commercial quantity of ecstasy which was reasonably suspected of having been imported - supply of commercial quantity of ecstasy - fresh evidence as to role relative to co-offender - whether fresh evidence undermined sentencing judge's findings on objective criminality - whether sentences manifestly excessive - combined discount for assistance to authorities taking into account conditions of custody and plea of guilty - considerations of parity
LEGISLATION CITED:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Customs Act 1901 (Cth) Drug Misuse and Trafficking Act 1985
CATEGORY:	Principal judgment
CASES CITED:	R v Cartwright (1989) 17 NSWLR 243 R v Chu [1998] NSWSC 568 R v El-Hani [2004] NSWCCA 162 R v Ellis (1986) 6 NSWLR 603 R v Formosa [2005] NSWCCA 363 R v Moore [2005] NSWCCA 212 R v Peel (1971) 1 NSWLR 247 R v Prasad [2004] NSWCCA 293; 147 A Crim R 385 R v Shepherd [2003] NSWCCA 287; 142 A Crim R 101 R v Shi [2004] NSWCCA 135 R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 R v To [2007] NSWCCA 200; 172 A Crim R 121 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436 SZ v R [2007] NSWCCA 19; 168 A Crim R 249 Wong v R [2001] HCA 64; 207 CLR 584
PARTIES:	Tim Leon Mon Kauwenberghs (App) The Crown (Cth)
FILE NUMBER(S):	CCA 2006/4850
COUNSEL:	Applicant in person MA Wigney SC (Resp)
SOLICITORS:	Applicant in person Commonwealth Director of Public Prosecutions (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1205
LOWER COURT JUDICIAL OFFICER:	English DCJ
LOWER COURT DATE OF DECISION:	5 May 2006

CCA 2006/4850

BEAZLEY JA
HALL J
FULLERTON J

14 JULY 2008

TIM LEON MON KAUWENBERGHS v R

Judgment

1 BEAZLEY JA: I agree with Fullerton J.

2 HALL J: I agree with Fullerton J.

3 FULLERTON J: On 6 May 2005 the applicant entered pleas of guilty in the District Court to an indictment containing the following counts:

Count 1: Between 25 June and 28 June 2004, at Sydney, possession of a commercial quantity of 3,4-methylenedioxymethamphetamine (commonly known as MDMA or ecstasy), which was reasonably suspected of having been imported: s 233B(1)(ca) of the Customs Act 1901 (Cth). (The first Commonwealth count)

Count 2: On or about 28 June 2004, at The Entrance, possession of a commercial quantity of ecstasy, which was reasonably suspected of having been imported: s 233B(1)(ca) of the Customs Act (Cth). (The second Commonwealth count)

Count 3: On or about 21 June 2004, at The Entrance, supply of a commercial quantity of ecstasy: s 25(2) of the Drug Misuse and Trafficking Act 1985. (The first State count)

Count 4: On or about 26 June 2004, at Sydney, supply of a commercial quantity of ecstasy: s 25(2) of the Drug Misuse and Trafficking Act . (The second State count)

Count 5: On or about 27 June 2004, at Sydney, supply of a commercial quantity of ecstasy: s 25(2) of the Drug Misuse and Trafficking Act. (The third State count)

4 The quantity of ecstasy the subject of count 1 was 16.863 kilograms and the quantity the subject of count 2 was 2.745 kilograms. Under Schedule IV to the Customs Act (Cth) a prohibited import is specified by reference to its purity. A commercial quantity of ecstasy is specified to be 0.5 kilograms pure. Under Schedule 1 to the Drug Misuse and Trafficking Act the weight of a prohibited drug is specified by reference to its gross weight. In Schedule 1 to the Act a commercial quantity of ecstasy is stipulated as 0.125 kilograms.

5 The 16.863 kilograms of ecstasy the applicant had in his possession between 25 and 28 June 2004 as provided for in count 1 was supplied on two separate occasions within that time frame, namely on 26 and 27 June 2004 as provided for in counts 4 and 5. In respect of count 4, the gross weight of the ecstasy supplied was estimated to be 20.8 kilograms and in respect of count 5 it was estimated to be 6.7 kilograms. These drugs were seized by police as were other drugs in the applicant’s possession on 28 June 2004 as provided for in count 2 on the indictment.

6 The ecstasy supplied by the applicant on 21 June 2004, the subject of count 3 on the indictment, was estimated to be between 10.7 and 12 kilograms by reference to the number of tablets the applicant admitted having supplied on that occasion. These drugs were not recovered.

7 The street value of the drugs seized was estimated to be $9.4 million.

8 The applicant also asked the sentencing judge to take into account on a Form 1 an offence of having in his possession property, namely cash in the amount of $3124.00, which was reasonably suspected of being unlawfully obtained contrary to s 527C of the Crimes Act 1900. It attracts a maximum sentence of 6 months imprisonment.

9 The maximum penalty for each of the Commonwealth offences is life imprisonment or a fine not exceeding $825,000 or both: s 235(2)(c)(i). The maximum penalty for each of the State offences is life imprisonment or a fine not exceeding $555,000 or both: s 33(3)(a).

10 On 5 May 2006 (almost a year after the pleas were entered) her Honour imposed the following sentences:

Count 1: A sentence of imprisonment of 16 years with a non-parole period of 10 years commencing on 28 June 2004 (the date that the applicant was first taken into custody).

Count 2: A fixed term of imprisonment of 2 years and 6 months also commencing on 28 June 2004.

Count 3: A fixed term of imprisonment of 12 years and 2 months commencing on 28 June 2004. Her Honour took the offence on the Form 1 into account when imposing this sentence.

Count 4: A sentence of imprisonment of 22 years and 4 months, comprising a non-parole period of 14 years and an additional term of 8 years and 4 months commencing on 28 June 2004.

Count 5: A fixed term of imprisonment of 13 years and 4 months commencing on 28 June 2004.

11 As the sentences were ordered to be served wholly concurrently, the overall effective sentence was a term of imprisonment of 22 years and 4 months with a non-parole period of 14 years, being the sentence imposed for the supply of 20.8 kilograms of ecstasy as provided for in count 4.

12 The Crown conceded, correctly, that in imposing fixed sentences for counts 3 and 5 (the first and third State offences) her Honour failed to comply with s 44(1) and s 45(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and, in addition, that she failed altogether to approach the sentencing for each of the State offences in accordance with the provisions of Division 1A of Part 4 of the Act, as stipulated by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [117]-[124]. Notwithstanding these errors the Crown submitted that the non-parole period imposed in respect of count 4 was within range such that the provisions of s 6(3) of the Criminal Appeal Act 1912 are invoked and the appeal should be dismissed.

13 The applicant, who was unrepresented on the appeal, did not identify or address these specific errors in either his written or oral submissions. His appeal was advanced on the following grounds:

(1) The incompetence of his legal representation resulted in relevant evidence being withheld from the sentencing judge.

(2) The sentencing judge erred in finding the applicant’s level of participation in the criminal enterprise and the quantities of drugs involved put his level of offending at the highest end of the scale.

(3) The sentences in all of the circumstances were manifestly excessive.

(4) The sentencing judge erred in giving undue weight to the applicant’s record of previous convictions as an aggravating factor.

(5) The sentencing judge erred in failing to give the applicant an appropriate discount for his assistance.

(6) The sentencing judge erred in miscalculating the appropriate sentences to give affect to her findings.

(7) The applicant has a justifiable sense of grievance by nature of the disparity between the sentence imposed upon him and those imposed upon his co-offender.

Matters of evidence on sentence and fresh evidence on the appeal

14 The facts upon which her Honour passed sentence were drawn from an agreed statement of facts, the applicant’s records of interview dated 30 June 2004 and 10 August 2005, and various transcripts of intercepted telephone calls. The facts themselves were not in contest although the inferences to be drawn from those facts were the subject of argument.

15 The applicant gave evidence at the sentence hearing of the circumstances in which, as a foreign national, he became involved in the possession and distribution of large quantities of ecstasy. He also gave evidence of the extent of his involvement in that enterprise relative to the asserted involvements of others, including, importantly, a person by the name of Doran Yona. Although that person was identified by a pseudonym in proceedings brought by way of a Crown appeal against the inadequacy of the sentence imposed on him in the District Court on 2 November 2005, since he is no longer a prisoner in this country there appears to be no further need for his identity to be protected. The Crown appeal was pending at the time the applicant was sentenced in May 2006. In October 2006 the Crown appeal was upheld and Yona was re-sentenced (see R v Z [2006] NSWCCA 342; (2006) 167 A Crim R 436).

16 Despite the fact that this Court increased the sentence of his co-offender, the applicant maintained the submission that he has a legitimate sense of grievance because of what is now an asserted disparity between his sentence and the sentence imposed on Yona by this Court after the successful Crown appeal. He sought to develop that submission by relying upon intercepted telephone calls that were neither tendered in his sentence proceedings nor otherwise summarised in the agreed statement of facts and which he claimed reveal Yona to have been involved in the possession and supply of the ecstasy at a more senior level than the position he occupied. In the interests of justice the Crown consented to the Court receiving this material as fresh evidence.

17 In effect this disposes of the first ground of appeal. The Crown maintained the submission however that the fresh evidence did not support a finding that the sentencing judge misapplied the parity principle or that she erred in her assessment of the applicant’s level of involvement in the criminal enterprise. Moreover, in the event that the clear error in her Honour’s sentencing for the three State offences requires this Court to re-sentence the applicant, the Crown does not concede that the fresh evidence would warrant this Court coming to any different view from that of the sentencing judge as to the relative involvement of the applicant and Yona. It will be necessary to consider the fresh evidence in some detail when considering grounds 2 and 7.

18 A pre-sentence report and some medical reports were also tendered on sentence. Her Honour regarded the unacceptable delay in the sentence proceedings being brought to finality (albeit with some of the delay being the applicant’s responsibility), coupled with the conditions of his remand custody and the medical conditions from which he suffered as matters in mitigation. The Crown does not contend otherwise. Although her Honour expressly referred to each of these matters and, in particular, that the conditions of his remand bore directly on the assessment of the discount for assistance, it is submitted by the applicant that her Honour failed to give them the weight they deserved.

19 Statements of Federal Agent Heather concerning the applicant’s assistance to the authorities and an undertaking pursuant to s 21E of the Crimes Act 1914 (Cth) to give evidence against others were also tendered. The applicant challenges her Honour’s assessment of the extent to which his assistance operated to reduce his sentence.

20 On the appeal the applicant sought to elaborate upon this ground by furnishing to the Court various documents, including correspondence between himself and various agencies concerned with law enforcement in Australia and overseas and a judgment from a court in Belgium. The Crown did not oppose the Court receiving the material subject to relevance. In the result, this necessitated the Australian Federal Police (AFP) undertaking further enquiries with a view to clarifying the applicant’s position with respect to assistance to the Dutch Authorities and, in the same connection, the Crown undertook to assist the Court by arranging for various foreign language documents to be translated. Assembling this material has been productive of delay. In the interim, the Court has received supplementary submissions from the Crown in respect of the foreign language documents and their relevance to the matters raised by the applicant on appeal. After the appeal was heard the Court has also received correspondence from the applicant both in response to the Crown submissions and, more generally, with a view, it would seem, to bring to the Court’s attention the correspondence into which he has entered with the AFP, the Commonwealth Director of Public Prosecutions, the Attorney General’s Department and the Department of Justice in Belgium. To the extent that it is relevant to the disposition of the appeal I will refer to the correspondence later in this judgment.

The Crown case on sentence

21 It was the Crown case on sentence that despite the fact that the applicant was not charged with being knowingly concerned in the importation of the ecstasy he admitted possessing as a prohibited import and supplying as a prohibited drug, he was, nevertheless, a person who came to Australia for the express purpose of extracting the drugs from a safe imported from Belgium for that purpose, and that when he eventually arranged for and took possession of the safe in Australia he did so with the knowledge or belief that it would contain the drugs that he had agreed he would remove and distribute. The Crown submitted that this was an inference that should be drawn from the objective facts and that the applicant’s account to the contrary in his records of interview and in his sworn evidence should be rejected.

22 Her Honour was not satisfied that the Crown had discharged the burden of proving that the applicant’s knowledge of the drug enterprise preceded his arrival in Australia. Were her Honour to have accepted the Crown’s submission, she acknowledged that it would have aggravated the gravity of the offending otherwise revealed by the applicant’s admitted role in an enterprise in which wholesale quantities of imported drugs were supplied.

23 Her Honour accepted as truthful the applicant’s account to police (as attested to by him in evidence) that six weeks before his arrival in Australia a person named Koen, with whom he was acquainted in Belgium, offered him $20,000 to install a safe at the premises of one of Koen’s business associates in Australia trading under the name “Diana Jewellery Fashion Company”. He said he entered into a written contract to provide this service at the nominated fee and travelled to Australia for that purpose. He also said he took the opportunity to have a holiday in this country with his girlfriend and his brother. He said (and her Honour accepted) that he did not know of the existence of the drugs until it was disclosed to him by Koen after he had taken possession of the safe and after he had delivered it to an address in the Sydney CBD. It was the applicant’s case (also apparently accepted by her Honour) that although he collected the safe in a truck from the storage unit, he did not remove the secreted drugs from the safe and that he only became aware of the quantity of drugs involved when the truck was returned to him containing the opened safe and two sports bags in which drugs had been packed. It was at this time that he claimed he received a phone call from Koen in Belgium with instructions to deliver the drugs the following day for a fee in the amount of 150,000 euros. Her Honour also found that although he initially refused, he ultimately agreed to do what was asked of him, albeit under duress. That said, her Honour also found that after that time and continuing over a period of weeks he made the conscious choice to participate in the supply of substantial quantities of ecstasy for financial reward.

24 Her Honour also resolved other factual disputes bearing upon the question of the applicant’s role in his favour. For this reason, in the summary of the facts that follows, I have incorporated her Honour’s findings as to what the facts reveal about the applicant’s role so as to make patent the basis upon which she proceeded to sentence and to allow a fresh appraisal of the relative roles of the applicant and his co-offender in light of the fresh evidence.

The facts upon which sentence was passed

25 On 18 February 2004, a safe arrived at Sydney aboard P&O Nedloyd Palliser. Belgium was the country of dispatch. Secreted within the safe was a large quantity of ecstasy tablets. Upon being offloaded from the vessel the safe remained in storage at ABX Logistics at Botany.

26 The bill of lading was addressed to Tom Kiebach, Diana Jewellery, 7 Palmer Lane, Darlinghurst. On 7 January 2004, a man using that name arrived in Sydney from overseas and took up residence at 7 Palmer Lane, Darlinghurst. The words “Diana Jewellery” were affixed to the top of the letterbox associated with that address.

27 On 23 March 2004, a person using the same name leased a unit at Storage King, Eastgardens. The safe was transported from ABX Logistics to the storage unit at Eastgardens where it remained until 9 June 2004 when it was collected by the applicant.

28 On 1 April 2004, a person using the name Tom Kiebach departed Australia on flight AQ222 to Singapore. There is no record of any person by that name returning to Australia.

29 Over six weeks later, on 29 May 2004, the applicant’s brother and the applicant’s girlfriend arrived in Sydney from Hong Kong. They booked into the Mercure Hotel in George Street, Sydney. The following day the applicant arrived in Australia from Hong Kong. He joined his brother and girlfriend at the hotel. Her Honour rejected the Crown submission that the applicant’s brother and girlfriend were complicit with the applicant and that they also travelled to Australia for the express purpose of obtaining access to the imported drugs. She accepted that the applicant’s arrival was delayed because of problems with his visa. She went on to observe that his brother and girlfriend both left Australia on 16 June 2004, the dates specified on their airline tickets as the date of their intended departure, and that this was after the applicant became aware of the drugs and of the role he was expected to play in their distribution. To the extent that his girlfriend came to learn of the applicant’s involvement with the ecstasy (as it appears she must have from the content of some of the intercepted telephone calls), her Honour did not regard this as impacting adversely on her assessment of the role that the applicant claimed he was forced to assume upon learning of the drug importation.

30 On 2 June 2004, the applicant obtained a mobile telephone in the name of Tim Mouton of 1 George Street, Sydney. The service was the subject of interception under warrant from 24 June 2004 when Yona, who had earlier come to police notice as a suspect in a money laundering syndicate upon his arrival in Australia, made contact with him. Her Honour appeared to accept that the applicant used his girlfriend’s surname rather than his own to acquire the telephone because he was suspicious that the safe may contain contraband. She also accepted that he acted on his suspicions by seeking the advice of a Sydney solicitor. While her Honour made no reference to the nature of the legal advice he received, the applicant gave evidence that the solicitor suggested that he open the safe in the presence of a witness. He claimed to have followed this advice and that he opened the safe in the presence of an employee at the Storage facility. As the safe was empty he claimed his suspicions were allayed.

31 On 3 June 2004, a person using the name Tom Kiebach contacted Storage King at Eastgardens by facsimile and advised that his partner, Tim Kauwenberghs, would be attending to access the storage unit and to pay outstanding storage fees of $840. It is unclear whether the person who sent the facsimile was the person who had contracted with the storage facility or some other person. Nothing turns upon this on the appeal since her Honour proceeded to sentence on the basis that the applicant was not aware of the fact that the safe contained drugs until after he collected the safe at least a week later. Her Honour accepted that over the next week or so the applicant and his girlfriend and brother went sightseeing.

32 Evidence independent of the applicant established that on 9 June 2004 he rented a Toyota HiAce van and later that same day collected the safe from the storage facility. In the account he gave to police and in evidence he said he then drove to Pitt Street Sydney to meet with a person he knew as Tom Kiebach who was awaiting delivery of the safe. (I note that a person travelling on a passport in that name left Australia on 1 April 2004 after securing the safe in the storage facility).

33 After delivering the safe the applicant claimed he received a call from Kiebach informing him that the safe was defective and that he was to collect it and take it to an address affixed to the safe. However, after collecting the safe and whilst en route to the nominated address, he claimed he received a call from Koen in Belgium giving him different delivery instructions. He then claimed that as he was heading towards Blacktown Koen told him that “pills” had been removed from the safe and that they were in bags in the rear of the truck that he was driving. He was asked to hand 200,000 pills on to someone the following day for which he would be paid 150,000 euros. He said he reacted angrily to having been duped by Koen into becoming involved in a drug enterprise and gave an account (also accepted by her Honour) that after pulling over to confirm that there were in fact two sports bags in the rear of the truck, he decided to throw both bags into the bushland. He said that each of the bags weighed, in his estimation, 50 kilograms each. He also said that he was involved in a car accident in the area at about this time. The applicant gave evidence that it was only after he was repeatedly threatened by Koen that injury would be done to his family if he did not cooperate that he decided to retrieve one of the bags and to deal with it on Koen’s instructions.

34 It would seem that his explanation for leaving one bag in the bush was to reduce the quantity of drugs in his physical possession thereby reducing the risk of exposure. Her Honour rejected the Crown’s submission that the applicant stored the second bag of drugs, in effect as a secret source from which he could supply the drugs for his own financial gain, and accepted the applicant’s evidence that he went to great lengths (as corroborated by independent evidence) to try to recover the bag of drugs on 21 or 22 June 2004 only to discover that the bag was not where he had left it.

35 Her Honour accepted the applicant’s account as to how he came into possession of the drugs as truthful despite the fact that independent evidence established that it was on 10 June 2004 (the day after the safe was collected, also established by independent evidence) that the applicant hired a quick-cut saw, fuel and cutting disc from Matraville (on the applicant’s evidence hired by him to enable him to install the safe) and that it was between 11:45am and 12:25pm again on 10 June 2004, that cell sites for the mobile phone used by the applicant were traced to an area proximate to Lapstone, and that at 3:25pm on that day the applicant had an accident whilst driving the HiAce van on Governor’s Drive in Lapstone.

36 Three days later, on 12 June 2004, the applicant and his girlfriend rented a property at 17A Hargraves Street, The Entrance North in the name of Koen Van Pratt of 48 Arrolsenstraat, Leper, Belgium 8700 from a local real estate agency. One week’s rent was paid in advance. The applicant’s account was that since he received no instructions from Koen to deliver the drugs in the days following 9 June 2004 he decided to leave Sydney and store the drugs that he had in his possession at a more remote location. He said that he first put the drugs in the laundry of the rented premises but later buried them in nearby sand dunes.

37 In the early afternoon of 14 June 2004, the applicant attended the Hillsdale branch of National Hire and returned the quick-cut saw, cutting disc and fuel he had rented on 10 June 2004. The equipment appeared unused.

38 On 16 June 2004, the offender returned the rented HiAce van. The same day the applicant’s girlfriend departed Australia. His brother left Australia on 10 June 2004. Although Koen told the applicant the drugs were to be supplied the day after he learnt they were in his possession (9 June 2004 on the applicant’s evidence) by 16 June he had not supplied any of the drugs. Despite this the applicant elected to remain in Australia. On 17 June 2004, the applicant extended his stay in the rented unit for another week.

39 On 21 June 2004, the applicant supplied a man named “Dave” at The Entrance with between 80,000 and 90,000 ecstasy tablets from his storage place in the sand dunes (this offending is charged in Count 3 on the indictment). It is not clear how this supply was arranged although it would appear from the telephone intercepts after that date to have been at Koen’s direction. Suffice to say that the applicant informed police about it and supplied details concerning it on his arrest. Her Honour accepted that these were the first drugs he supplied after he came into possession of the two bags of ecstasy on 9 June 2004.

40 On 22 June 2004, Doran Yona arrived in Sydney from Israel. As I noted earlier, it would appear that at this time the police were not only unaware of the applicant’s illegal activities, they were equally unaware of any connection between Yona and the applicant or Yona’s connection with the supply of drugs. After his arrival Yona became the target of a money laundering investigation because of his association with a foreign exchange business in Kings Cross that had been under investigation for some time.

41 On 24 June 2004, Yona hired a Holden Commodore, registration number 8CA382, for three days. The same day the police commenced interception of the mobile telephone service used by the applicant.

42 At 10:50am on 24 June 2004, the offender received a telephone call from Koen. He advised the applicant, inter alia, that he should expect a call from a man in about an hour and a half, that he would be given the keys to a car and that he was to deliver 230,000 ecstasy tablets by placing them into the car. At 1:47pm the applicant received a call from Yona advising him that he was at Bondi Beach and would be standing next to a car with registration number 8CA. The applicant apparently took some time in making his way to the meeting prompting Koen to enquire why the applicant was taking so long. After the applicant collected the key from Yona (and apparently without telling him his intentions) he drove away in the Commodore and did not return until 26 June 2004 when he supplied the drugs the subject of Count 4 on the indictment. Although the statement of facts refers to phone calls between Yona and a person in Romania and various other people concerning the delay in his obtaining possession of drugs from the applicant, the summary does not detail Yona’s reaction to the situation. The fully transcribed telephone calls tendered as fresh evidence make it clear beyond any doubt that Yona and the Romanian, in particular, were infuriated and prepared to exact retribution in the event that the applicant failed to deliver the drugs. I will return to consider the significance of the fresh evidence later in this judgment.

43 After the applicant met with Yona on 24 June 2004, he drove the Commodore back to The Entrance. At 9:47pm that evening the applicant’s girlfriend telephoned and they discussed Yona, the ecstasy tablets, the value of the tablets and the applicant’s attempts to make arrangements to leave Australia via New Zealand.

44 On 26 June 2004, the applicant had a detailed conversation with an unidentified male about the ecstasy tablets where various quantities and prices were discussed using what appears to be a local mobile phone number. The applicant also revealed to that person that the tablets were buried in sand dunes. This is a most damaging phone call since it also indicates an apparent preparedness on the applicant’s part to take a position contrary to Koen’s instructions, and to enter into unilateral arrangements to supply the drugs on his own contractual conditions. On the other hand, the phone calls both before this call and after it reveal that the applicant was not only highly agitated and upset but that his mood was mercurial.

45 There were further intercepted telephone calls between the applicant, Yona and Koen in the course of that day in which it was ultimately agreed that the applicant would leave the Commodore containing what amounted to 16.863 kilograms of ecstasy in the hotel car park at Bondi for Yona to collect. The supply of the ecstasy by these means was the subject of count 4 in the indictment.

46 The following day Koen rang the applicant and asked him to supply a further 100,000 ecstasy tablets to Yona. The applicant said that if the purchasers required more they would have to come and get them as “he had done enough”. However, later that day the applicant left The Entrance to make his way to Bondi with the drugs in a hired car. He was later seen to enter the Swiss Grand Hotel at Bondi carrying a number of bags. It was the Crown case that the bags contained 6.7 kilograms of ecstasy tablets, the subject of count 5 on the indictment. The applicant was arrested at Sydney International Airport.

47 A search warrant was executed at the premises occupied by the applicant at The Entrance where a piece of paper with names and amounts was located, a suitcase containing a scanner and binoculars and a safe in which the remnants of 14 ecstasy tablets were found in a constructed cavity inside the rear panel.

48 On 28 June 2004 a search warrant was executed on the Commodore parked at the Swiss Grand Hotel. In the boot of the vehicle were a sports bag containing 24 large plastic bags and two smaller white plastic bags containing a large quantity of ecstasy tablets. There was a quantity of sand located on the base of the interior of the sports bag. The total weight of the drug seized was 27.5 kilograms. These are the tablets the applicant supplied Yona on 26 and 27 June 2004, the subject of counts 4 and 5. Later that night Yona was arrested.

49 In summary, the ecstasy tablets supplied by the applicant to Yona on 26 and 27 June 2004 (as provided for in counts 4 and 5 on the indictment) were in his possession at various times between 25 and 28 June 2004 both at The Entrance and in Sydney (as comprehended by Count 1 on the indictment). They were part of the original consignment taken into his physical custody on 9 June 2004 in the circumstances as her Honour found them. The balance of the consignment was retrieved by police from the sand dunes after the applicant’s arrest and were the subject of count 2 on the indictment.

50 Apart from the applicant’s assistance to the authorities and the conditions of his custody, the sentencing judge made the following findings about the applicant’s subjective circumstances:

(a) The applicant was 29 years of age at the time of sentence having been in a relationship of some years standing with his girlfriend. He was a qualified paver operating his own business before leaving Belgium although he was at that time experiencing financial difficulties as a result of a cash flow crisis. He was apparently also in the process of renovating a house. In combination these pressures motivated him to accept the invitation to become involved in the possession and distribution of ecstasy for reward.

(b) The applicant’s time in custody will be onerous because of the absence of family and friends in Australia.

(c) The applicant had criminal antecedents, including for intentional battery and wounding, robbery with violence, fraudulent destruction of goods and possession of psychotropic substances. It appears he was serving a suspended sentence at the time he arrived in Australia. Accordingly, her Honour found that the applicant’s record did not entitle him to a great deal of leniency. This finding was open to her. I am not satisfied that she has given it undue weight in the calculation of sentence and accordingly do not regard ground 4 on the appeal as made out.

(d) The applicant was genuinely remorseful and contrite and the prospects of him re-offending were minimal.

51 On the appeal the applicant directed his primary submissions to grounds 2, 5 and 7, namely the characterisation of his role, the issue of parity and the appropriate discount for his assistance to the authorities. Since the question whether the sentences were manifestly excessive can only sensibly be considered after reviewing the evidence as to his role in the enterprise, I propose to deal with ground 2 of the appeal first.

Ground 2: the learned sentencing judge erred in finding the applicant’s level of participation in the criminal enterprise and the quantities of drugs involved put his level of offending at the highest end of the scale

52 As I have noted, notwithstanding the fact that her Honour accepted that the applicant acted under duress when he initially agreed with Koen to supply 200,000 of the ecstasy tablets, she was satisfied that over succeeding weeks his role changed to that of an active participant in the supply of drugs for reward. She also concluded that his attitude changed from being a person taking a passive role in compliance with those who had duped him into a proactive role, and that this was evidenced by the fact that he unilaterally determined when and how much of the drug he would supply. She also found he attempted to negotiate a much higher financial reward for himself both from Yona as the person to whom he supplied drugs on 26 and 27 June 2004 and Koen as the person on whose instructions he acted. She described the applicant’s role in this context as that of a warehouseman and first-line distributor of the drug rather than a courier or mule. In short, her Honour regarded the offending constituted by the commercial supply counts in counts 4 and 5 on the indictment as at the highest end of the scale of criminality.

53 In oral submissions the applicant conceded that while he welcomed the prospect of the financial reward that Koen offered him given his strained financial circumstances, he did not engage in brinkmanship to secure it and that her Honour was in error in interpreting his conduct in that way. He conceded that while the evidence tendered at the sentence hearing showed that he was not a totally unwilling supplier of drugs (in particular in regard to supply of 10.7-12 kilos to the man at The Entrance on 21 June 2004) he maintained he received no reward for doing so. In addition, he submitted that at no time in his dealings with Yona, dealings which culminated in the supply of large quantities of ecstasy tablets on 26 and 27 June 2004, did he demand money before he supplied the drugs and that he only agreed to supply drugs to him at all because of a fear of reprisals and in order to secure his safe passage out of Australia. He submitted that to the extent that he took unilateral action in deciding when, where and how much of the drug would be supplied this was in order that the risk of being caught would be minimised in circumstances where he was the one who had been put in the compromising position of being in possession of the drugs having accepted the job of delivering them. He submitted that her Honour misconstrued his role and that the fully extracted telephone intercepts demonstrate that he was a reluctant warehouseman and first line distributor and that at all times he was acting for and on behalf of others whilst at the same time being manipulated by them. In addition, he asks rhetorically, why if he was seeking to hold Yona and others to ransom would he leave the county after supplying the drugs without being paid the money he had been promised when he had the option of leaving the drugs buried in the ground until he had been paid.

54 In addition the applicant sought to demonstrate, again by reference to the fully extracted calls, that he was subordinate to the role Yona performed in the distribution of the drugs.

55 The Crown submitted that the characterisation of the role the applicant assumed upon taking the drugs into his possession was open to her Honour and that the fresh evidence did not serve in any way to undermine her findings or to cast the applicant’s role or attitude in any different light.

56 In my view, after comparing the summary of the intercepted calls in the agreed facts with the fully transcribed calls tendered as fresh evidence, there is some substance in the applicant’s submission. However when read in their entirety, I am not of the view that the calls go so far as to compel the conclusion contended for by the applicant. In particular, I find that while his actions were dictated by the contingencies that presented from time to time in the process of delivering the drugs to Yona, he nevertheless performed an active, informed and consultative role.

The fresh evidence

57 After the applicant was told by Koen to supply Yona with 230,000 tablets on 24 June 2004, he made his way from The Entrance to Bondi to meet with Yona but did not take any drugs with him. From what Yona reported by telephone to others it would appear that the applicant was extremely agitated and concerned about the speed and reliability of the rented car he was driving and the distance he had to travel carrying the drugs as distinct from positioning himself to broker a better financial arrangement. After collecting the Commodore from Yona and over the course of a number of conversations with Koen the applicant also complained to Koen about having to travel a considerable distance with drugs in his possession to supply people that he described as not “Koen’s people”. This would tend to suggest that the applicant had at least an appreciation of who Koen’s people were and that the person he supplied with 10.7-12 kg on 21 June 2004 was in that category whilst Yona was not. The applicant proposed that Koen ask Yona to drive to collect the drugs.

58 While it is clear that the applicant was at this time eager to leave Australia, it is also clear that he was concerned that if further drugs were “lost” in transit he would be held responsible. It also appears from the calls with Koen at this time that the applicant has had ongoing communication with the person “Dave” he supplied on 21 June 2004 and that he was in receipt of advice generally from that person as to the likelihood of police surveillance. It is also clear that although he had no prior knowledge of Yona as one of Koen’s new buyers he accepted, without question, his role in supplying Koen with drugs. Koen, on the other hand, appeared to be humouring the applicant (no doubt in an effort to secure his ongoing cooperation) while at the same time colluding with Yona, and those with whom he was in contact, in order to placate the applicant.

59 It is also patent from the calls that Yona was the source of threats which he asked others to communicate to Koen and in turn to the applicant. There is no evidence however that these threats were ever communicated by Koen to the applicant (for again what might be obvious and expedient reasons). They do however reveal Yona as occupying a more integrated, concerned and ultimately directorial role in his desire for the drugs to be supplied to him.

60 It would also appear that in the course of his dealings with the applicant Yona was intentionally downplaying the extent of his own knowledge of the trade in drugs in order to keep the applicant in the dark as to the true extent of his involvement and also so as to encourage the applicant to view him as a person who was also simply acting at the direction of others. That is not to say however that the calls reveal the applicant as reluctant or resistant to the role he had agreed to perform. Importantly, in none of the calls with Koen or Yona does the applicant appear to show any reluctance to supplying the vast quantities of ecstasy with which he is charged even if he was temperamentally ill-fitted to the task.

61 In the result, while I do not regard the role that he performed as in the most serious category of offending, I do accept he was at least on an equal footing with Yona in their possession of commercial quantities of ecstasy (albeit at different times) and that Yona was intimately connected with those who were to receive the drugs the applicant supplied to him, no doubt for the ultimate supply to end users.

62 I will have something more to say about Yona’s role when coming to consider the question of parity. At this stage, however, I am satisfied that the applicant was not a reluctant distributor of the drugs but was manipulated by others to secure their objectives. By contrast, I am not satisfied that the evidence discloses that the applicant sought to exploit his control over the drugs to his own financial end otherwise than in an increasingly desperate effort to be paid the money he was promised by way of an advance from Yona to enable him to leave Australia.

63 Having regard to my reappraisal of the role the applicant performed by reference to the fresh evidence, the question that presents on the appeal is whether the sentences imposed upon him were excessive. The application of the parity principle will also need to be considered in light of my reappointment of the respective roles of the applicant and Yona. I propose to deal firstly with the question whether the sentences were excessive in conjunction with the challenge to her Honour’s calculation of sentence as expressed in ground 6.

Ground 3: the sentences in all the circumstances were manifestly excessive
Ground 6: the sentencing judge erred in miscalculating the appropriate sentence to give effect to her findings

64 Having regard to the way in which her Honour structured the sentences, the effective overall sentence of 22 years and 4 months with a non-parole period of 14 years was largely the result of the sentence imposed in relation to count 4. While the applicant directed most of his arguments to the sentence imposed in respect of that count, and then principally on the basis of alleged disparity with the sentence imposed on Yona, he did not limit his challenge to the sentence imposed on that count. Accordingly, it is necessary to consider whether the challenge he makes to the severity of the sentences imposed in respect of counts 1 and 2 (the Commonwealth counts of possession) is made out.

65 Count 1 attracted a head sentence of 16 years imprisonment with a non-parole period of 10 years. This count concerned the 16.863 kilograms of pure ecstasy in the applicant’s possession between 25 and 28 June 2004 which comprised the drugs supplied to Yona on 26 and 27 June 2004. It cannot be overlooked, of course, that the 16.863 kilograms was only part of the contents of the bag over which her Honour accepted the applicant had possession and control from 9 June 2004 given that 10.7-12 kilograms (impure) of ecstasy was supplied four days earlier. Moreover this combined quantity represented only half of the total consignment of ecstasy the applicant found himself in possession of when the truck and opened safe were returned to him on 9 June 2004. That said, the applicant did not present for sentence on count 1 other than in respect of the amount of pure ecstasy he possessed between the nominated dates.

66 Her Honour arrived at the head sentence of 16 years by taking as a starting point a head sentence of 25 years and applying discounts of 25 per cent for the plea of guilty and a further 15 per cent for assistance. Leaving aside the adequacy of the combined discount of 40 per cent, the question that presents is whether a starting point of 25 years was within range having regard to the circumstances in which the applicant came into possession of the drugs and the role he assumed once in possession of them.

67 The sentence imposed in respect of the second count was a fixed term of imprisonment of 2 years and 6 months, imposed on the express basis that the sentence was to be served concurrently with the sentence imposed in respect of the first count. Her Honour arrived at the fixed term by taking as a starting point a head sentence of 4 years and applying to it a 25 per cent discount for the plea of guilty and a discount of 15 per cent for assistance (the same discounts as applied in relation to count 1). The amount possessed in respect of count 2, namely 2.745 kilograms of pure ecstasy, was the residue of the contents of one bag of ecstasy after the supply of commercial quantities on three separate occasions between 21 and 28 June 2004 in the particular circumstances outlined. Although a greater discount than 25 per cent for the plea of guilty might have been appropriate given that the residue was nominated to police by the applicant (see R v Ellis (1986) 6 NSWLR 603) a concurrent and fixed term of 2 years and 6 months from a notional starting point of 4 years against the statutory maximum of life imprisonment was not in my view excessive. That conclusion is also subject to the conclusion I have reached in respect of the adequacy of the discount for assistance in the particular circumstances of this case to which I will later refer.

68 In R v To [2007] NSWCCA 200; 172 A Crim R 121 at [19] (Hulme J) and [94] (Hall J) cited with approval what was said in R v Peel (1971) 1 NSWLR 247 at 262, namely that:

“[in] determining the proper penalty … the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in questions, the [offender’s] conduct would offend against the legislative object of suppressing the illicit traffic in the prohibited drug.”

69 The weight of a narcotic that is possessed under the Customs Act (Cth) is given statutory significance for sentencing purposes by the distinction between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities under s 235. Whilst the weight of the narcotic may not necessarily be the most significant factor to be taken into account in sentencing under the Customs Act (Cth) (Wong v R [2001] HCA 64; 207 CLR 584 at 609), it is nevertheless a relevant consideration. The amount of ecstasy in the applicant’s possession between 25 and 28 June 2004, namely 16.863 kilograms pure, was over 30 times the amount specified in the Customs Act (Cth) as a commercial quantity. While it must be accepted that the quantity of the drug was considerable, the bearing it has on an assessment of the objective criminality must be considered in the context of the circumstances in which the applicant came to be in possession, in particular, that he only came to learn of the very large quantity of the ecstasy he was being invited to take control over and deliver many months after it was imported, although at all times thereafter he was fixed with that knowledge.

70 Whilst no two cases are identical, sentencing patterns where large-scale importations of narcotics are involved are frequently referred to as a guide to an appropriate sentence both at first instance and on appeal. A consideration of sentencing patterns for offences involving the possession of large quantities of ecstasy in generally comparable cases reveals, in my view, that the starting point adopted by her Honour in the sentence imposed on count 1 was excessive.

71 In R v To (supra), Hulme and Hall JJ reviewed a range of recent sentences for offences involving both the importation and possession of comparable quantities of ecstasy. Again, acknowledging differences between the facts and circumstances in the cases reviewed by their Honours and this case, in my view, they demonstrate that her Honour’s starting point of 25 years for count 1 was too high.

72 A number of cases to which their Honours referred in R v To arose out of the importation in 2001 of some 480,000 ecstasy tablets with a pure weight of 34.4 kilograms. The tablets were concealed in the components of an industrial freezer which was discovered by customs authorities in Brisbane and which resulted in the substitution of a benign substance in order to facilitate a controlled delivery of the drugs under the investigative command of the Australian Federal Police. The freezer was delivered in Brisbane after which it was unpacked and trucked to Sydney where the freezer was opened and the tablets removed. The two principal participants were Shepherd and El-Hani. Both appealed to this Court against sentences imposed in District Court proceedings.

73 On Shepherd’s appeal (R v Shepherd [2003] NSWCCA 287; 142 A Crim R 101 at [13]) Howie J found that Shepherd’s criminality arose from the fact that he was prepared to play a significant role in the importation of what he must have known to be a very substantial quantity of drugs. His Honour found that he was an active participant over a period of months by attending meetings with various participants in Australia and overseas and by taking steps to facilitate the clearance of the container through the shipping company and by direct dealings with customs. He also permitted premises he had leased to be used to receive the container and to store some of its contents. Shepherd was present when the container was delivered and assisted in the removal of some of the freezer parts after which he loaded them onto a truck to commence their transit from Brisbane to Sydney and thereafter for their distribution. Shepherd agreed to assist with the importation in return for a $25,000 fee at the instigation of another participant, namely, Prasad, a business friend and associate. On analysis the court reasoned that the starting point for the calculation of sentence must have been a term of 32 years which was regarded at the very top of the range but was not, in the court’s view, excessive. For reasons which are not presently relevant the court intervened to reduce the sentence.

74 On El-Hani’s appeal (R v El-Hani [2004] NSWCCA 162) he was described as a senior person in the organisation who played an important managerial role. His involvement preceded the importation by his attendance at meetings with various participants. He also responded to the concerns of other participants once it was obvious that the drugs had been interfered with. The judge at first instance fixed a starting point of 30 years which did not attract criticism on the appeal. El-Hani’s appeal was dismissed.

75 Shepherd was introduced to the venture by Prasad, a participant who in the view of Wood CJ at CL, performed an active and important role in relation to the importation (see R v Prasad [2004] NSWCCA 293; 147 A Crim R 385 at [28]). On the Crown appeal against sentence his Honour was of the view that by assuming the task of ensuring the clearance of the drugs and engaging Shepherd to attend to the documentary and other tasks involved, Prasad was able to insulate the Australian principals, namely Choi, and Steven, Louis and Joseph Sukkar from direct contact with the consignment. Prasad also became an important conduit for the collection of documents. The Court considered he was not as involved as Shepherd and had a more compelling subjective case. Nevertheless, the Crown appeal against sentence was allowed and implicit in the approach of the Court on re-sentence a proper starting point should have been in the order of 25 years.

76 Of the three Sukkar brothers, Steven Sukkar had no involvement in the importation until after the drugs had been delivered to premises in Sydney which were owned by him but occupied by his brother. His knowing involvement commenced on the day of delivery after which he helped unload the truck in which the freezer parts were contained, permitted those parts and tablets to remain on his premises, and helped sort through the tablets to separate those containing drugs from those that did not. He then undertook the task of ascertaining what had happened to the freezer parts after their arrival in Australia, with a view to identifying when the substitution may have taken place so as to either recover the drugs or exact compensation for their loss in the event that responsibility could be traced to another participant. His role was described as being a knowing assistant to his brothers and his motivation as fraternal. Both the offender and the Crown appealed against the sentence imposed. By majority the appeals were dismissed. Reference to the remarks on sentence at first instance make it clear that the starting point for the calculation of sentences was 21 years.

77 Lewis and Joseph Sukkar were regarded as joint principals. The sentencing judge’s starting point for the calculation of Lewis Sukkar’s sentence was 36 years and for Joseph Sukkar 45 years.

78 The Court was also referred to a unrelated case of R v Moore [2005] NSWCCA 212 where the offender pleaded guilty to being in possession of 92.4 kilograms of pure ecstasy contrary to the Customs Act (Cth). The offender was involved in discussions prior to the importation and over a period of months communicated with others concerning the then anticipated importation of the tablets. Of those people, one was located in the Netherlands while the other two were in Australia, each being jointly responsible for procuring the supply of the ecstasy tablets from the importers. The tablets ultimately came into Moore’s possession. He leased premises in anticipation of delivery of the tablets, took delivery of them and then transported them to the leased premises where they remained in a van. He was arrested that day. The Court did not disagree with the sentencing judge’s characterisation of his role as reflecting very great criminality. The starting point for the calculation of sentence was 26 years and 8 months. After allowing a 25 per cent discount for the plea of guilty, the Court was of the view that a head sentence of 20 years was well within the sentencing judge’s discretion, it being an offence approaching the worst category of an offence of its nature given the quantity of drug destined for distribution into the wider community.

79 In R v To (supra) itself, the Court allowed a Crown appeal against a sentence of 17 years imprisonment (with a non-parole period of 10 years and 6 months) in respect of To’s conviction for aiding and abetting the importation of 34.8 kilograms of ecstasy. The sentencing judge found that the offender had a managerial role in the importation and should be sentenced as a principal. Having reviewed the sentencing patterns as discussed above, the Court re-sentenced the offender and imposed a sentence of 25 years imprisonment, which included a discount for facilitating the course of justice by making admissions at his trial. The majority imposed a non-parole period of 15 years.

80 Having regard to the findings made by the sentencing judge in relation to the circumstances in which the applicant came into possession of the drugs, coupled with the fact that he stored them for the purpose of supply for some weeks, and after giving due weight to the applicant’s subjective circumstances, in my view, the sentence imposed in respect of the first count in the indictment was excessive. In my opinion, a more appropriate starting point for the calculation of sentence on the first count is 22 years.

State offences

81 Her Honour arrived at the sentences in respect of the three State offences of supply as follows:

(a) In relation to count 3, the first State offence, involving the supply of 10.7-12 kilograms of ecstasy to the person “Dave” at The Entrance on 21 June 2004, her Honour indicated that if the matter had gone to trial she would have imposed a head sentence of 25 years imprisonment. She found that the applicant was entitled to a discount of 25 per cent for the plea of guilty and 35 per cent for his disclosure of the offence to the authorities. She then imposed a fixed term of imprisonment of 12 years and 2 months.

(b) In relation to count 4, the second State offence, involving the supply of 20.8 kilograms of ecstasy to Yona on 26 June 2004, her Honour indicated that if the matter had proceeded to trial, she would have imposed a head sentence of 35 years imprisonment. She found that the applicant was entitled to a discount for his plea of guilty and assistance of 25 per cent and 15 per cent respectively. She imposed a term of imprisonment of 22 years and 4 months comprising a non-parole period of 14 years and an additional term of 8 years and 4 months.

(c) In relation to count 5, the third State offence, involving the further supply of 6.7 kilograms of ecstasy to Yona on 27 June 2004, her Honour indicated that if the matter had proceeded to trial, she would have imposed a head sentence of 21 years imprisonment. She found that the applicant was entitled to a discount for his plea of guilty and assistance of 25 per cent and 15 per cent respectively. She imposed a fixed term of imprisonment of 13 years and 4 months.

82 Her Honour noted that the Crimes (Sentencing Procedure) Act governed the sentences to be imposed in relation to counts 3, 4 and 5. Her Honour also noted, correctly, that s 54A of that Act specified a standard non-parole period of 15 years for offences under s 25(2) of the Drug Misuse and Trafficking Act in the middle of the range of objective seriousness following conviction after trial. That said, it is difficult to reconcile the approach taken by the sentencing judge with the relevant provisions in the Crimes (Sentencing Procedure) Act, and in particular the approach to be taken in applying Division 1A of Part 4 as determined in R v Way (supra) at [117]-[124]; see also R v Shi [2004] NSWCCA 135.

83 It would appear that in accordance with s 54B(2) of the Crimes (Sentencing Procedure) Act she found that the reason for not imposing the standard non-parole period was both because of the plea of guilty and because she was satisfied that the offending constituted by the supply counts was at the highest end of the scale of like offences. I have already expressed the view that her Honour’s assessment of the objective seriousness failed to reflect those findings favourable to the applicant, in particular, that he was duped into participating in the drug distribution syndicate, that he was subject to duress at an early stage and in this sense his offending was opportunistic. In addition, again as I have noted, I am not satisfied that her Honour’s finding that the applicant brokered a position to suit his own financial ends is supported by the evidence. For these reasons, quite apart from her Honour’s failure to approach sentence as mandated by R v Way, I am unable to agree that the offending was as her Honour described it. Subject only to the operation of s 6(3) of the Criminal Appeal Act the effect of these errors require this Court to re-sentence. However, since I am also of the view that her Honour has failed to properly assess the discount for the applicant’s assistance to the authorities in the calculation of sentence another sentence is warranted at law and re-sentencing is the inevitable outcome of this appeal.

Ground 5: the sentencing judge erred in failing to give the applicant an appropriate discount for his assistance to the authorities

84 The evidence before the sentencing judge in relation to the assistance comprised a letter of assistance signed by the Federal Police case officer which revealed, amongst other things, the following:

(a) the Federal Police had doubts about the veracity of some information provided by the applicant and had identified inconsistencies in the applicant’s version of events in his witness statement,

(b) the statement the applicant had provided in relation to the case against Yona did not play an important role in the brief,

(c) the applicant had provided a statement to the Netherlands National Police Agency which would be utilised in prosecutions as would his record of interview, and

(d) the applicant had been interviewed by Belgian Federal Police but had ultimately declined to answer further questions.

85 The information provided by the applicant in relation to the person to whom he supplied ecstasy in The Entrance on 21 June 2004 had not led to any arrests.

86 In respect of (a) above, these concerns must be taken to have been effectively disregarded by her Honour since she resolved such inconsistencies as there were in the applicant’s favour, in the sense that they did not serve to undermine the reliability of his account of how he came to be in Australia and involved in criminal activity. Moreover she considered that his account was generally reliable and, since it fully detailed his criminal activities from 9 June 2004 to 24 June 2004, where for some of that time at least his activities were unknown to police, it must have saved considerable police time.

87 As to (b) above, her Honour noted the applicant executed an undertaking to cooperate by giving evidence pursuant to s 21E of the Crimes Act 1914 (Cth) in the trial of Yona although, as events transpired, Yona pleaded guilty and the applicant was not required to give evidence against him or his co-offender despite the fact that on 16 February 2006 he received a subpoena from the DPP to give evidence at their trial. Her Honour was nevertheless satisfied that the statement the applicant provided for inclusion in the Yona brief of evidence complemented other evidence and that it was served before Yona entered pleas of guilty on 21 September 2005.

88 In addition, her Honour found that threats had been made against the applicant’s life as a result of his willingness to give evidence against Yona and that this had resulted in his being incarcerated for over 18 months of the almost two years spent on remand in protective custody in conditions that her Honour described as inhumane. In this connection her Honour was doubtless referring to the transcript of proceedings of the Serious Offenders Review Council in which the Chairman noted that the conditions of custody imposed on the applicant, purportedly for his own safety, were such that he was locked in his cell for 23½ hours each day with release for 30 minutes into a very small attached exercise yard, that he was isolated from all other prisoners and that his cell was infested with cockroaches. It is patently clear that the conditions of the applicant’s custody arose directly from the threats to his life and, consistent with the management of correctional centres, the conditions of his custody were imposed upon him rather than sought by him. The Chairman expressed the view that these conditions were more onerous than those to which a prisoner is subject when segregated for discipline. Her Honour also noted that the applicant had undergone some painful surgery to his genitalia whilst in custody which rendered his remand in protective custody even more onerous and which further exacerbated his compromised psychiatric functioning as reported upon by Dr Tran in February 2005.

89 Her Honour was satisfied that the information the applicant provided in relation to the supply at The Entrance on 21 June 2004 was of assistance since the police did not have him under surveillance at that time and but for his admission the supply would not have been discovered. As a result, her Honour found that the applicant was entitled to a significant discount which she assessed at 35 per cent.

90 Her Honour also accepted that while the evidence provided to the Netherlands Police Agency and the Belgian authorities was of limited value, the Dutch authorities regarded his evidence to be useful.

91 In summary, her Honour assessed the combined discount for the pleas of guilty and assistance as 40 per cent for counts 1, 2, 4 and 5 (25 per cent for the pleas and 15 per cent for assistance) and 60 per cent for count 3 (25 per cent for the plea and 35 per cent for the assistance).

92 The applicant submitted that given her Honour’s findings as to the value of the assistance given both to authorities here and overseas, the combined discount should have been greater than the 40 per cent allowed in respect of counts 1, 2, 4 and 5. I do not understand him to complain about the discount in respect of count 3.

93 I referred earlier to the applicant taking the Court to a judgment from a court in Belgium in the course of oral submissions, a judgment which has since been translated and provided to the Court in accordance with the Court’s directions. On the appeal the applicant sought to supplement the value of the evidence of his assistance to the authorities overseas by reference to this material. He also claimed that this material provided further support for his submission that because Yona occupied a more senior role, the principle of parity dictated that his sentences should be reduced.

94 I am of the view that nothing in the judgment sheds any light on the relative roles and involvement of the applicant and Yona. On the other hand, the extract does refer to a person by the name of Abraham Yaron who the Belgian Court found guided a criminal organisation actively engaged in a number of large-scale ecstasy shipments to Australia from the Netherlands. That finding is said by the applicant to be significant in assessing whether sufficient weight was given to the assistance the applicant provided to Dutch police. Although her Honour did not have available to her a letter under the hand of J E W Gonzalez, Solicitor General of the Department of Justice in the Regional Prosecutor’s Office of Arnhem in the Netherlands dated 16 January 2008, which the applicant has made available to the Court since the appeal, she was aware that the applicant’s statement and record of interview would be made available to the prosecuting authorities in the Netherlands, a matter which she was satisfied attracted a discount on sentence.

95 The document provided to this Court advises as follows:

“The investigation concerned large scale trafficking in ecstasy tablets hidden, amongst other things, in Chandeliers to be sent to Australia. The main suspect in this matter for the Dutch justice system was Y. Abraham. Y. Abraham was first convicted by the tribunal in Utrecht and subsequently lodged an appeal with the Court of Arnhem. I have dealt with this matter in my capacity as Solicitor General.
Your declarations have contributed to the pool of documentary proof in order to have Y. Abraham convicted for a period of 11 years of incarceration. This matter is not yet beyond the reach of the appeals process because Y. Abraham has lodged an appeal with the High Court of the Netherlands. The matter of conviction against Y. Abraham, however, still has to be processed for the time being by the court in Arnhem. Your declarations are also there (sic) of importance. It is my intention to confirm by means of this letter that your cooperation in the matter Merlijn is appreciated by the government prosecutor’s office.”

96 Whilst it is true that the letter details the use to which the applicant’s statements and his record of interview were ultimately put, this information does not in my opinion add to the weight of the evidence of assistance overall.

97 The Crown drew the Court’s attention to the fact that the applicant was himself named as a defendant in the Belgian judgment and that he was found to be a member of the same criminal organisation controlled by Abraham. I note that this finding would appear to run counter to her Honour’s finding that the applicant knew nothing of the drugs before he came to Australia. The Crown has however expressly eschewed making any use of any part of the extract of the judgment against the applicant on the appeal and, I assume, against the applicant in the event of re-sentence.

98 The balance of the correspondence forwarded by the applicant to the Court since the hearing of the appeal concerned the question as to whether he will provide any further assistance to the prosecuting authorities in both Holland and Belgium in relation to their ongoing investigations. So far as I can understand it, the applicant has made it plain that he does not want to assist further until he learns the outcome of his appeal and/or until he has been transferred to custody in Belgium and his safety and the safety of his family members is guaranteed. In his various communications with the relevant judicial officer in Holland he has also made it plain that he is not prepared to return to protective custody in an Australian gaol because of the deprivations he was subject to whilst on remand. The question as to whether or not the applicant will provide further assistance to the authorities overseas is, accordingly, not a matter that can have any bearing on the appeal. Not only is it beyond the jurisdiction of this Court to dictate where a prisoner ought be detained in this State, still less is it a matter for this Court to involve itself in the arrangement between the Department of Justice in Belgium and relevant authorities in Australia should an international transfer of a serving prisoner be under consideration.

99 While the combined discount of 40 per cent with a discrete discount of 15 per cent for assistance was within the range of discounts customarily given for assistance considered to be generally useful, and timely and motivated by a desire to cooperate, a range which, at least until recent times, was between 20 and 50 per cent (see R v Cartwright (1989) 17 NSWLR 243; R v Chu [1998] NSWSC 568) it failed, in my view, to adequately account for the fact that there was a direct relationship between the threats to which the applicant was subject and the conditions of custody on remand. I am mindful of what this Court has had to say in R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151, where Howie J (with whom McClellan CJ at CL agreed) expressed the view that the customary range of a combined discount should now be reduced to reflect the fact that one of the bases of the discount, namely that an offender who has provided assistance will serve the sentence in more difficult conditions, is no longer generally applicable and that a case would need to be exceptional for a combined discount of greater than 40 per cent to be granted. I note that in SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [52], Buddin J, with whom Simpson J agreed, expressed a preference for a combined discount of more than 50 per cent being reserved for an exceptional case. I also note that Howie J was a member of that bench and expressed no dissent from that view.

100 While it is true there was no evidence before her Honour that the applicant would be incarcerated in onerous conditions for any nominated or predicted period beyond the date of his sentence because of his assistance, in my view the fact that the applicant was forced to withstand inhumane conditions of incarceration over an extended period prior to sentence, such that his medical condition was exacerbated and his mental functioning compromised, is compelling. I regard this case as legitimately falling within an exceptional class of case where a combined discount of more than 40 per cent should have been allowed, not because of evidence that the applicant will spend his sentence, or a substantial part of it, in more onerous conditions than the general prison population, but because the onerous conditions to which he was subject whilst on remand were directly related to the assistance he offered and the threats to his life that resulted.

101 I note that in Sukkar, Latham J considered that the fact that there was little in the assistance by way of contrition, no evidence of any personal risk to the offender or to any member of his family and no evidence of any hardship arising directly out of the provision of assistance, allowed her Honour to conclude that a combined discount of 45 per cent was unduly generous and that it should be reduced to 35 per cent.

102 By contrast, in the case of this applicant his assistance was significant and all three features were present. For that reason I consider that a combined discount of 40 per cent in respect of counts 1, 2 4 and 5 was inadequate and that a 45 per cent discount should have been allowed. I am not of the view that the combined discount of 60 per cent for count 3 is in the same category, indeed I regard it as generous.

103 In SZ v The Queen, the importance of ensuring that a discount for assistance does not produce a result that is disproportionate to the nature and circumstances of the offence was emphasised, and in the context of State offences this is mandated by the provision of s 23(3) of the Crimes (Sentencing Procedure) Act. Consideration will need to be given to the operation of s 23(3) of the Act when re-sentencing the applicant for the three State offences.

Ground 7: The applicant has a justifiable sense of grievance by nature of the disparity between the sentence imposed upon him and those imposed upon his co-offender

104 Following his arrest on 28 June 2004, Doran Yona was charged with two offences. The first was laid under the Customs Act (Cth) and concerned his possession of the ecstasy supplied by the applicant on 26 and 27 June 2004 as located by police in the boot of the Holden Commodore parked in the car park at the Swiss Grand Hotel at Bondi Beach on 28 June 2004. He was also charged with money laundering an amount of $1,000,000 contrary to s 400.3(2) of the Criminal Code Act 1995 (Cth). The maximum penalty for the money laundering offence was a fine not exceeding $79,200 or imprisonment for 12 years or both. The maximum penalty for the drug offence was life imprisonment or a fine not exceeding $825,000 or both. The sentencing judge imposed a fixed term of imprisonment of 2 years for the money laundering offence and a term of imprisonment of 5 years and 2 months with a non-parole period of 2 years and 7 months in respect of the drug offence. The sentences were ordered to be served concurrently. His Honour arrived at that sentence after allowing a 60 per cent discount for the combined value in his plea of guilty and assistance to the authorities. From the remarks on sentence it would appear that after assessing the objective seriousness of the drug offence and the offender’s role, which his Honour regarded as tangential and marginal, a head sentence of 15 years was considered an appropriate starting point for the calculation of sentence.

105 Although her Honour noted that at the time of the applicant’s sentence hearing Yona’s sentence was subject to a Crown appeal, she considered that in addition to the sentence being lenient there were good reasons why parity with Yona did not apply. She considered the charges faced by the applicant and Yona were markedly different in that Yona was charged with a money laundering offence and a single count of possession under the Customs Act (Cth), while the applicant faced multiple counts of possession and supply. She also noted that the quantity of drugs involved in Yona’s offence were less than the drugs the applicant possessed and supplied and that in Yona’s sentencing proceedings the sentencing judge described his role in possessing the drugs as tangential and marginal, that Yona’s assistance was far more valuable than the assistance given by the applicant because he gave evidence against other offenders both at committal and trial and that he had a stronger subjective case.

106 Following the sentencing of the applicant, this Court published its decision on the Crown appeal. The majority found that his Honour erred in appointing 15 years as the starting point for the calculation of sentence in circumstances where the quantity of drug involved was almost 33 times the commercial quantity and erred in his description of the offender’s role as a “somewhat tangential or marginal”. The Court regarded Yona’s role in arranging for the applicant to transfer the drugs to him as far more significant than the time he was in actual possession of the drugs and that the offending comprehended by both counts on the indictment reflected a high level of criminality such that it was patent that his Honour’s sentencing discretion had miscarried. The Court regarded that finding as reinforced by the fact that his Honour allowed a 60 per cent discount for the combined value of the assistance and his plea of guilty.

107 In accordance with the principles that apply when re-sentencing following a successful Crown appeal, Beazley JA was of the opinion that the lowest sentence that could have been imposed for the drug offence was a sentence of 16 years imprisonment. In arriving at this sentence her Honour took into account Yona’s mental condition and compromised capacity to function as diminishing the need for general deterrence without reducing the sentence by any arithmetic calculation an approach taken by the judge at first instance which her Honour found to be in error (see [44]-[69]). Her Honour then allowed a 50 per cent discount for the combined utility of the assistance to authorities and the plea of guilty reducing the head sentence to one of 8 years and imposed a non-parole period of half of the head sentence since that was an approach taken by the sentencing judge, an approach that was not challenged on appeal. Her Honour then ordered partial concurrency in respect of the sentence for money laundering and specified that the sentence for the drug offence commence 12 months after the commencement of the sentence for the money laundering offence. In the result, Yona was sentenced to a period of 5 years imprisonment before being eligible to be released on parole.

108 The Crown submitted that there were sound reasons why the parity principle had no application in sentencing the applicant and that the sentencing judge was correct to find that there were significant differences, both objective and subjective, between Yona’s case and the applicant’s, and significant differences between the offences committed by Yona and the applicant. The Crown submitted that the applicant’s attempts in his written submissions to portray Yona as more significantly involved and more senior than him should be rejected. The Crown also submitted that if there was to be any comparison between the sentence imposed on Yona and the sentence imposed on the applicant, the comparison would only relate to count 1 where the applicant was charged with being in possession of the drugs that he supplied to Yona such that they were in Yona’s possession on his arrest. While that comparison is valid, in my view, it does not necessarily stop there given that the applicant was also charged with supplying the drugs in Counts 4 and 5 which Yona was charged with possessing.

109 Although her Honour was correct in identifying differences in the number and type of offences with which Yona and the applicant were charged, and while I am conscious that parity as a sentencing principle does not extend to redressing any imbalance or discrepancies in the manner in which prosecuting authorities might charge co-offenders (see R v Formosa [2005] NSWCCA 363), I am also mindful of the fact that a justifiable sense of grievance may arise in cases where even though a co-accused is sentenced on a different factual basis so as to justify the imposition of unequal sentences, the sentences are nevertheless disproportionate to that degree of difference (see Formosa, per Simpson J at [49]). For these reasons, I propose to take into account the issue of parity when re-sentencing the applicant. I am not however of the view that equal sentences will be the result. It cannot be ignored that Yona was re-sentenced after a Crown appeal where, consistent with principle, Beazley JA calculated the head sentence from a starting point at the lowest end of the range, namely 16 years. On this appeal the Court is not so constrained. In addition, Yona’s subjective circumstances were such as to entitle him to leniency by reason of his mental health which was of a different nature to the psychological stresses from which the applicant suffers.

110 In the result, as will be apparent from the orders that I propose on re sentencing, the starting point for the calculation of sentence in respect of Count 4 is significantly higher than 16 years despite the fact that the objective criminality in Yona’s possession of the drugs that the applicant supplied to him is comparable. This is necessary in order to ensure that the term of imprisonment to be imposed on the applicant adequately reflects the principle of general deterrence – a principle of fundamental importance when sentencing offenders who are involved in large scale trafficking in illegal drugs.

111 As a result of the errors I have identified in her Honour’s approach to sentencing in respect of the State offences and in her calculation of the discount for the plea and assistance, coupled with the impact of the fresh evidence on the appointment of the applicant’s role and his position in the enterprise relative to Yona, I am satisfied that some other sentence in respect of counts 1, 3, 4 and 5 is warranted in law. In respect of count 2, and despite the fact that her Honour allowed only a 40 per cent discount where in my opinion a 45 per cent discount should have been allowed, I do not regard any other sentence other than that imposed by her Honour is warranted in law. I note that her Honour sentenced the applicant to a fixed term of 2 years and 6 months. In passing that sentence, however, her Honour did not comply with s 19AB(4) and (5) of the Crimes Act (Cth). To rectify that error, I decline to fix a recognisance release order by reason of the circumstances in which the applicant retained possession of the ecstasy the subject of this count.

Orders

112 Having regard to relevant provisions of the Crimes Act 1914 (Cth) and the Crimes (Sentencing Procedure) Act 1999, I propose the following orders:

1. Leave to appeal against the sentences is granted.

2. The appeal allowed in part. The sentences imposed on 5 May 2006 in respect of counts 1, 3, 4 and 5 are quashed and in lieu thereof the applicant is sentenced as follows:

(a) In respect of count 1 on the indictment, sentence is calculated from a starting point of 22 years. After applying a discount of 45 per cent, the applicant is sentenced to a term of imprisonment of 12 years and 1 month. There being no basis to depart from the accepted ratio of 60 – 66 per cent between the term of imprisonment and the non-parole period in Commonwealth matters, a non-parole period of 8 years is imposed. I direct that the sentence commence on 28 June 2004 with the non-parole period commencing on that date and expiring on 27 June 2012 the date upon which the applicant is eligible for release on parole.

(b) In respect of count 4 on the indictment (objectively the most serious of the three State offences and reflecting a degree of criminality relative to the first Commonwealth offence), I consider that in light of all of the circumstances in which the applicant came to supply Yona with the drugs in his possession, his offending is in the mid range. After taking into account the applicant’s previous record (s 21A(2)(d) of the Crimes (Sentencing Procedure) Act ) and the fact that his activity was part of an organised criminal enterprise (s 21A(2)(n)) as aggravating factors and his assistance to the authorities (s 21A(3)(m)), his plea of guilty (21(A)(3)(k)) his remorse (s 21A(3)(i)) and the fact that he is unlikely to re-offend (s 21A(3)(g)) as mitigating factors, there are sound reasons for not imposing the standard non-parole period of 15 years. The applicant is sentenced to a non-parole period of 9 years commencing on 28 June 2004 with a balance of term of 5 years. I am satisfied that the conditions of the applicant’s custody warrant a finding of special circumstances such as to justify a departure from the statutory ratio between the non-parole period and the additional term as specified in s 44(2) of the Crimes (Sentencing Procedure) Act.

(c) In respect of count 3 on the indictment, and for the reasons specified when imposing the sentence on count 4 above and in addition for his disclosure of his offending to police, I impose a non-parole period of 5 years commencing on 28 June 2004 with a balance of term of 20 months. I have taken into account the offence on the Form 1 in the calculation of this sentence.

(d) In respect of count 5 on the indictment, again for the reasons specified above as justifying a departure from the standard non-parole period of 15 years, I impose a non-parole period of 6 years commencing on 28 June 2004 with a balance of term of 2 years.

3. The first date upon which the applicant will be eligible for release on parole will be 27 June 2013.

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