Ljuboja v The Queen
[2011] WASCA 143
•1 JULY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LJUBOJA -v- THE QUEEN [2011] WASCA 143
CORAM: PULLIN JA
BUSS JA
HALL J
HEARD: 9 FEBRUARY 2011
DELIVERED : 1 JULY 2011
FILE NO/S: CACR 49 of 2010
BETWEEN: RADE LJUBOJA
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
File No :INS 20 of 2009
Catchwords:
Criminal law - Appeal against sentence - Conspiracy to traffic in commercial quantity of MDMA - Importation of commercial quantity of border controlled drug - Whether sentence manifestly excessive - Whether trial judge failed to take into account the offender's age and his plea of guilty
Legislation:
Crimes Act 1914 (Cth), 16A, s 19AB
Criminal Code Act 1995 (Cth), s 11.5(1), s 302.2(1), s 307.1(1)
Prisons Act 1981 (WA), s 6(3), s 6(4)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr D J McKenzie
Respondent: Mr P W Neil SC & Mr A G Elliott
Solicitors:
Appellant: David McKenzie Legal
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Bick v The Queen [2006] NSWCCA 408
Braham v The Queen (1994) 116 FLR 38
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Chan v The Queen (1989) 38 A Crim R 337
Cheung (1997) 97 A Crim R 283
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Keung v The Queen [2008] NSWCCA 193; (2008) 191 A Crim R 317
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Ma v The Queen [2010] NSWCCA 320
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Melgar Sevilla v The Queen [2007] WASCA 116
NP v The Queen [2008] NSWCCA 205
Pedersen v The State of Western Australia [2010] WASCA 175
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Cas [2005] NSWCCA 192; (2005) 160 A Crim R 451
R v Handlen [2010] QCA 371; (2010) 247 FLR 261
R v Holland [2011] NSWCCA 65
R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125
R v Hunter (1984) 36 SASR 101
R v Iles [2009] VSCA 197
R v Jackson [2003] QCA 31; (2003) 138 A Crim R 148
R v Kiam Fah Teng [2005] VSC 33
R v Lam [2005] VSC 98
R v Lee [2007] NSWCCA 234
R v Mo [2007] NSWCCA 61; (2007) 169 A Crim R 60
R v Moore [2005] NSWCCA 212
R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493
R v Ng [2001] NSWCCA 305
R v Nguyen [2005] NSWCCA 362; (2005) 195 FLR 1
R v Nikolovska [2010] NSWCCA 169
R v Rajacic [1973] VR 636
R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26
R v Riddell (Unreported, NSWDC, 17 August 2007)
R v Smith (1987) 44 SASR 587
R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577
R v Teng [2005] VSC 33
R v To Si Thanh [2007] NSWCCA 200; (2007) 172 A Crim R 121
R v Tsay [2006] QCA 423
R v Vo [2000] NSWCCA 440; (2000) 118 A Crim R 320
R v Whyte [2004] VSCA 5; (2004) 7 VR 397
Smith v The State of Western Australia [2010] WASCA 176
Sukkar v The Queen [2007] WASCA 166
Sukkar v The Queen [No 2] [2008] WASCA 2; (2008) 178 A Crim R 433
The State of Western Australia v Higgins [2008] WASCA 157; (2008) A Crim R 302
Wang v The Queen [2010] NSWCCA 319
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
TABLE OF CONTENTS
Pullin JA's reasons:................................................................................................................... 6
Findings by the sentencing judge
Personal circumstances
The sentencing
The ground of appeal
Buss JA's reasons:.................................................................................................................. 16
The co‑offenders
Background facts and circumstances
The sentencing judge's remarks
The ground of appeal
The appellant's submissions
The nature of manifest excess
The maximum penalty
The major sentencing considerations
Comparable cases
Reasonable consistency in sentencing
Advanced age and ill health of an offender
The purpose of a non‑parole period and the considerations relevant to fixing a non‑parole period
The merits of the appeal
Conclusion
Hall J's reasons:...................................................................................................................... 37
PULLIN JA: The appellant applies for leave to appeal against two sentences of 25 years' imprisonment to be served concurrently for two offences against the Criminal Code Act 1995 (Cth) with a single non‑parole period of 16 years. The sentences were imposed by Jenkins J on 23 March 2010 after the appellant pleaded guilty.
The charges in the indictment read:
Between 1 July 2007 and 20 May 2008 at Perth in the State of Western Australia and elsewhere in Australia, Rade LJUBOJA, Dejan MEDAN, Dimitrios PAPADIMITRIOU and Fabian QUAID conspired together with Vaso ULIC and others to traffic in a substance, the substance being a controlled drug, namely 3,4 ‑ Methylenedioxymethamphetamine (MDMA), and the quantity being a commercial quantity contrary to sections 11.5(1) and 302.2(1) of the Criminal Code (Cth).
Between 1 March 2008 and 18 April 2008 at Perth in Western Australia, Rade LJUBOJA imported a substance, the substance being a border controlled drug, namely 3,4 ‑ Methylenedioxymethamphetamine (MDMA), and the quantity imported being a commercial quantity, contrary to subsection 307.1(1) of the Criminal Code.
The Criminal Code adopts a quantity‑based penalty regime fixing 'trafficable', 'marketable' and 'commercial' quantities of different controlled drugs. Those drugs are distinguished in setting such trafficable, marketable and commercial quantities but otherwise no distinction is made between them in terms of maximum penalty. Under s 302.2 of the Criminal Code, a person who traffics in a commercial quantity of a controlled drug faces a maximum penalty of imprisonment for life. The commercial quantity of MDMA is 0.5 kg. That compares with 0.75 kg for methamphetamine, 1.5 kg of heroin and 2 kg of cocaine. This legislative approach recognises the financial rewards available from dealing in illicit drugs, and as a result, differentiates between various narcotic substances in designating the trafficable, marketable and commercial quantities but applies the same penalty regime to the quantities so designated. This is to be contrasted with legislation in other countries which grades drugs according to a legislative perception of their harmfulness and prescribes penalties based on harmfulness rather than quantity: Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143 [3].
Findings by the sentencing judge
In July 2007, investigations by the Australian Federal Police and other agencies led investigators to conclude that the appellant was planning an importation of drugs, namely MDMA powder, into Australia in conjunction with Vaso Ulic, who resided in Montenegro. Once the MDMA powder was imported, the conspirators planned to convert it into ecstasy tablets and distribute them in Australia.
Ljuboja's role was to oversee the importation of the MDMA, arrange for the manufacture of the drug into ecstasy tablets, sell the tablets to Quaid or others in Australia, and remit the money from the sale of the tablets to principals in Europe. Ljuboja was an existing associate of European drug traffickers. The drugs did not belong to him. He was the Australian agent for the European principals and the senior man in Australia. He took directions from Ulic in Europe. He was already an experienced drug trafficker. Medan was involved to facilitate all that was necessary to produce the MDMA into ecstasy tablets. He was Ljuboja's main assistant and confidant. Medan was to use a pill press, which he assisted to obtain, to manufacture the ecstasy tablets.
On 19 July 2007, Ulic advised Ljuboja he was sending Papadimitriou to assist Ljuboja. Around 18 March 2008, Ljuboja learnt from Ulic that the MDMA to be imported would arrive in Australia around 1 to 4 April 2008 on a cargo ship, the MSC Monica. The Monica docked in Melbourne on 10 April 2008. Ljuboja flew from Sydney to Melbourne. Medan collected Ljuboja and drove Ljuboja to meet the crewmen on the Monica.
On 16 April 2008, the Monica docked in Fremantle. On the same date, Ljuboja travelled to Fremantle where he met with a crewman from the Monica and a maritime security identification card holder who was permitted into secured areas of the Port of Fremantle. They made further arrangements for the delivery of the drugs from the Monica to Ljuboja.
In the early hours of 17 April 2008, unknown persons delivered the drugs over the side of the Monica to a small vessel. If Ljuboja was not on the vessel then he was close by because he reported to Medan the following day that he was very tired and that 'it was concluded last night'. Ulic called Ljuboja that night and asked whether everything was finished with the wedding. Ljuboja said that it was. He said that the following day he was going to collect something, presumably the drugs. 'Wedding' was code for the delivery of drugs from the Monica. A short time later, Ulic called Quaid. Ulic indicated that Ljuboja would see Quaid in three or four days and tell him what drugs were available.
Approximately 60 kgs of impure MDMA was imported into Australia on the Monica. Approximately 10 kgs was taken immediately by others involved in the importation, possibly as payment for their work in getting the drugs onshore. Ljuboja collected and took the remaining MDMA powder to a home in Balga, where he was staying with a friend. Ljuboja then asked Medan to arrange for a pill press. This was required to convert the MDMA powder and other materials into tablets. Ljuboja sought assistance from Ulic to locate premises for storage and production of the MDMA and Ulic told Ljuboja he would get someone to contact him to assist. A short time later Papadimitriou contacted Ljuboja and indicated that he could assist. On the same date, Quaid organised for his brother to meet with Ljuboja to assist in setting up what would be a safe house for the drugs in Perth. Papadimitriou made arrangements with his cousin to rent out a building at the rear of his cousin's house at 299 Morley Drive East, Lockridge. On or about 28 April 2008, Ljuboja transported the MDMA to 299 Morley Drive East, Lockridge. Medan then arranged for and assisted in the renovations of the safe house and checked on the drugs twice per day. On 2 May 2008, Ulic told Quaid that Ljuboja had been waiting on Quaid for two weeks to pay him money. Medan then arranged for the obtaining of a pill press, with the assistance of Papadimitriou. On 8 May 2008, police executed a covert search warrant at the premises at 299 Morley Drive East. The police located the MDMA and an inert substance was substituted for the drugs. The next day, Ljuboja flew from Sydney to Perth and signed a lease for the premises. Papadimitriou arranged for the renting of a vehicle in Melbourne, and he then arranged for a friend of his to drive the vehicle containing the pill press to Western Australia. On 19 May 2008, Ljuboja, Papadimitriou and Medan unloaded the pill press, chemicals and binding agents from a car and carried them into the premises. They left and returned and carried more items into the premises, including a set of scales. Ljuboja, Medan and Papadimitriou were arrested by police in front of the premises. An examination of the premises revealed that the pill press had been plugged into the wall and the electricity had been turned on. The inert substance had been removed from its location in the premises and placed on the ground near the pill press and some of the substance had been packed into plastic bags. Items seized included the inert substance, the binding and cutting agents, the pill press, $12,700 in cash and mobile phones belonging to the offenders.
The police seized 44.16 kg of the impure form of MDMA. The purity was averaged to be 80%, or 35.2 kgs of pure MDMA. The quantity seized was 70 times the minimum quantity prescribed by law as being a commercial quantity of MDMA.
During sentencing, Ljuboja agreed that 60 kgs was imported and he said that the balance between the full amount and the amount seized was taken by others as payment for services they rendered. The sentencing judge said that she would sentence Ljuboja on the basis that approximately 60 kg of impure MDMA was imported into Australia.
The quantity imported, at 80% purity, equated to 48 kg of pure MDMA, which was 96 times the commercial quantity.
There were some factual issues between the Crown and Ljuboja. These arose out of Ljuboja's plea in mitigation that he was kidnapped from 25 July to 11 August 2007, and that he committed the offences to nullify the kidnapper's threats to kill or harm him or his family. The sentencing judge was not prepared to sentence Ljuboja on the factual basis asserted by him without credible evidence. Ljuboja gave evidence. The sentencing judge said that she did not believe his evidence if it was favourable to him unless it was supported by other evidence. Her Honour gave reasons for that conclusion which are not challenged on this appeal and which need not be set out in these reasons. Her Honour did not accept that Ljuboja was kidnapped from 25 July to 11 August 2007. Her Honour, however, accepted that Ljuboja was assaulted and that this was likely because of outstanding debts Ljuboja had arising from drug trafficking transactions. The sentencing judge found that Ljuboja was a willing and enthusiastic member of the conspiracy to traffic the drugs.
The sentencing judge referred to evidence at trial that in 2008, seizures of ecstasy tablets in Western Australia by the Commonwealth revealed that each tablet contained 8% to 51% pure MDMA. The average MDMA content per tablet was 25%. The sentencing judge said that if the pure seized MDMA was used to make tablets containing 25% MDMA, the seized drugs, that is, the 44 kgs, would make 140 kgs of tablets. If the pure seized MDMA was used to make tablets containing 51% MDMA, the seized drugs would make 70.4 kgs of tablets. The finding was that it would have made at least 350,000 tablets and that expert evidence stated that the value of the 44 kgs converted to tablets and sold to users would have been between $14M and $24M.
Personal circumstances
The sentencing judge then set out the personal circumstances relating to the appellant. Her Honour's sentencing remarks read:
Mr Ljuboja is 60 years of age. Given the length of imprisonment he will receive this is an important factor. He was born in the former Yugoslavia and grew up in Montenegro. He was raised by his mother and had little contact with his father.
At the age of 21 he married and had a daughter. He and his wife divorced but later remarried. They had a son. Over 25 years ago Mr Ljuboja decided to move to Australia. His wife and children stayed in Serbia. He maintains a close relationship with his children, both of whom now live in Australia. Ljuboja's custody in Perth will be a hardship for them. Since 1984, Ljuboja lived in Australia principally in Sydney although he had travelled to and lived in Canada also.
His daughter who is now aged 33 lived with him for a time when she was at university. His son and wife also occasionally lived with him in Sydney. Mr Ljuboja has been employed as a labourer and in other unskilled work. During the trial of his co-offenders I learned that around the time of these offences he was a chronic shoplifter and referred to that activity as his work. When he was arrested and police searched his premises in Sydney they located large amounts of stolen clothing. It is also plain from the evidence given at trial and Ljuboja's evidence that in the years since 2002 at least he has been extensively involved in drug trafficking. Despite this, his finances appear to be fair at best.
Mr Ljuboja has a heart condition but this appears to be under control at present. In his evidence he claimed that since he had been in custody a lot of the stress had been lifted off him and the impression I gained was that he now regards himself as healthy as he has been for a number of years.
There is conflicting material as to whether Ljuboja has a history of substance abuse. In the intercepted telephone material it appeared to me that Ljuboja asked Medan to tell him what it would feel like if he took some of the drugs. This indicated that Ljuboja was not a drug user. On the other hand, he has told the author of the pre-sentence report that he used ecstasy for approximately a year prior to becoming involved in the sale and supply of MDMA. He also said that the stress of these offences caused him to use drugs.
It is not suggested that Ljuboja committed these offences in order to fund his own habit.
Mr Ljuboja has a criminal history from Victoria and New South Wales. In 2002 he was convicted in Victoria of handling stolen goods and sentenced to 8 months' suspended imprisonment and fined $2,000. His criminal record in New South Wales commences in 1985 which must have been shortly after he arrived in Australia. In 1985 he was convicted of having goods in custody. Until 1991 he was fairly regularly convicted of dishonesty offences.
There has been a break in his offending record until 2004. In mid-2004 he was found guilty of being in possession of goods suspected of being stolen. Ljuboja has an appalling record of driving offences between 1985 and 2008. Such is his record for various driving offences including multiple convictions for driving without a licence that in December 2005 he was declared a habitual offender. He does not receive any credit for being of good character.
I have received a pre-sentence report. The author of the report notes that during an interview for the purposes of preparing the report Mr Ljuboja tried on several occasions to divert the writer's attention to addressing events that were irrelevant to the commission of the current offences. The author says that she had doubts over the legitimacy of Ljuboja's reasoning for the commission of the offences given his reluctance to discuss how he became involved with his co-offenders and because he continued to leave gaps in his story.
I do not rely on the opinion of the author, however the opinion is consistent with the view that I formed after hearing Ljuboja's evidence. His preoccupation with telling those parts of the story which he thinks reflect favourably on him and his reluctance to focus on his criminal activity makes me doubt that he is capable at this stage of being rehabilitated. I think that it is only his advancing age which is likely to reduce his chance of reoffending in the future.
Mr Ljuboja's prior criminal record, general antecedents and attitude towards his offending do not aggravate the objective seriousness of his offending, however, those matters do indicate retribution, deterrence and protection of society are very relevant sentencing considerations. Mr Ljuboja has been in custody since his arrest on 19 May 2008. He will, like each of the other offenders, receive credit for this time spent in custody [84] ‑ [94].
The sentencing
The sentencing judge said that she took into account matters personal to Ljuboja, but concluded that his objective criminality was very high and that his chances of rehabilitation were poor. The most significant mitigatory factors were stated by the sentencing judge to be his age and his pleas of guilty. Her Honour said that in determining the appropriate sentences for each offender she had been assisted by cases the parties referred her to, particularly the cases of R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493 and R v Nguyen [2005] NSWCCA 362; (2005) 195 FLR 1, and the cases referred to in those reports. Her Honour said that insufficient justification existed for imposing different length terms for each offence on the appellant. The offences were of equal seriousness and his acts that constituted each offence were equally serious. Her Honour decided that his criminality could be adequately reflected in a finite term of imprisonment. She then sentenced Ljuboja to 25 years' imprisonment on each count, to be served concurrently, and set a single non‑parole period of 16 years' imprisonment. Her Honour added:
That is lower than I would have otherwise set due to your age.
Medan was sentenced to 14 years' imprisonment with a non‑parole period of 8 years and 6 months; Papadimitriou was sentenced to 17 years' imprisonment with a non‑parole period of 10 years and 6 months, and Quaid was sentenced to 17 years' imprisonment with a non‑parole period of 10 years and 6 months. The sentence on the appellant was backdated to commence on the date when he was arrested.
The ground of appeal
There was one ground of appeal reading:
The learned sentencing Judge erred in law by imposing a sentence which was manifestly excessive in all the circumstances.
Particulars
(a)The learned sentencing Judge erred in law by not having sufficient regard to the appellant's early plea of guilty;
(b)The learned sentencing Judge erred in law by not having sufficient regard to the appellant's age.
The particulars to the ground alleged that 'sufficient regard' was not paid to the plea of guilty and the appellant's age. Allegations of that nature could only succeed if the failure amounted to a failure to exercise the court's discretion: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 [614]. It is not alleged in this case that there was a failure to exercise the discretion.
The real point of this ground is an allegation that error should be inferred because the sentences and the non‑parole order produced a sentence which was manifestly excessive.
The most important facts in this case were that the appellant imported 60 kg of MDMA at 80% purity and then conspired to traffic in the drug. He was the Australian agent for the European principals and the senior man of the team which conspired to traffic the drug.
He was 60 years old with some health problems, not unusual for a man of his age. He pleaded guilty but there was a finding that he was not contrite and that it was doubtful that he could be rehabilitated. He was not of good character. The offences carried maximum sentences of life imprisonment.
The appellant paid particular attention to the case of R v Neale, where a 57‑year‑old man, found guilty of importing 100 times the minimum prescribed commercial quantity of ecstasy, was sentenced to the statutory maximum of life imprisonment with a non‑parole period of 21 years. It was held in that case on appeal that the head sentence was not manifestly excessive, but that there was latent error in the imposition of a 21 year non‑parole period because it was unnecessarily harsh to give the appellant the prospect of a non‑parole period set at a level that entailed either that the appellant died in prison, or that upon release, he had little, if any, productive and useful life in prospect. It was held that the maintenance of the head sentence, but with a reduced non‑parole period, would do what was necessary to fairly punish and deter the appellant. It was held that the maintenance of the head sentence would provide general deterrence. As a result, the non‑parole period was reduced to a period of 15 years. Neale was going to be in his late seventies at the expiry of the non‑parole period. This appellant will be 74 when his non‑parole period expires. Neale's non‑parole period was 15 years after a plea of not guilty but the appeal court considered that this was appropriate due to the fact that he would be in his late seventies with the probability that he would die in prison if the non‑parole period were longer. There was nothing to show that this appellant would probably die before he was 74.
The principles governing an appeal which alleges that a sentence is manifestly excessive are well known. The appellate court is not to interfere merely because it decides that it would have imposed a different sentence. In setting an appropriate sentence, it is necessary to make the sentence consistent with other sentences imposed for the same offence in similar circumstances. The High Court has said that consistency is not demonstrated by, and does not require, numerical equivalence: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 [48]. Consistency is sought in the application of the relevant legal principles and what has to be achieved is the treatment of like cases alike: Hili [49]. Consistency of that kind is not capable of mathematical expression. Sentencing patterns can be taken into account as a yardstick against which to examine a proposed sentence. A history of sentencing can establish a range of sentences that have in fact been imposed. The history does not establish that the range is the correct range or that the upper or lower limits to the range are the correct upper and lower limits. Having made those observations, intervention is only warranted where the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. That is a conclusion that does not admit of lengthy exposition: Hili [59].
In order to achieve consistency in sentencing, it is appropriate to have regard to cases where persons have been sentenced for importing a similar quantity of MDMA at a similar purity in circumstances where a plea of guilty was entered and where there were similar surrounding and personal circumstances. It is never possible to find identical cases because circumstances always differ. In fact, there is not a large number of cases where persons have been sentenced for importing or conspiring or trafficking in large commercial quantities of MDMA and where there was a plea of guilty. Cases where there was a large quantity of MDMA and a plea of guilty are Nguyen (referred to by the sentencing judge) and the cases of NP, Tsay and Cas, which are cited in this paragraph. Nguyen involved the importation of 52 kg of MDMA and a trafficable quantity of heroin. In that case, pleas of guilty were entered. The principal also provided a moderate degree of assistance. He was sentenced to 27 years in prison with an 18 year non‑parole period; the second offender was sentenced to 22 years in prison with a 16.5 year non‑parole period; the third offender received a 21 year term with a 15.5 year non‑parole period and the fourth received a sentence of 8 years with a 5.25 year non‑parole period. In the case of NP v The Queen [2008] NSWCCA 205, the offender pleaded guilty to conspiring to import 136 kg of MDMA. He was a middleman who facilitated contact between other operatives and who was sentenced to 11 years' imprisonment with a 7 year non‑parole period. In the case of R v Tsay [2006] QCA 423 - an importation of a relatively small commercial quantity of just over 616 gm of MDMA but a much larger quantity of methylamphetamine and crystal methylamphetamine - the sentence was 14 years' imprisonment with a 10 year non‑parole period. R v Cas [2005] NSWCCA 192; (2005) 160 A Crim R 451 involved 136 kg of MDMA; a plea of guilty, remorse and assistance to authorities resulted in a sentence of 8 years with a non‑parole period of 5 years.
There are several cases where offenders involved with large quantities of MDMA have been sentenced following a trial and where a sentence of life imprisonment has been imposed. See for example R v Neale - life imprisonment/15 year non‑parole period; R v Riddell (Unreported, NSWDC, 17 August 2007) - life/19 year non‑parole period; R v Handlen & Paddison [2010] QCA 371; (2010) 247 FLR 261 - Handlen, life/22 year non‑parole period (this case is complicated by the fact that there was also a large quantity of cocaine and methamphetamine associated with the importations of 22 kg MDMA in total) and Paddison, 22 years/14.5 years non‑parole period; Keung v The Queen [2008] NSWCCA 193; (2008) 191 A Crim R 317 (Hosking DCJ) - life/18 year non‑parole period (for one of the offenders). Because all of the cases referred to in this paragraph were sentences imposed after trial, and because the sentence was life imprisonment, it is very difficult to make any assumption about what the sentence might have been had there been a plea of guilty. Save for one point, they provide no assistance to this court. The point is that in all those cases the non‑parole period exceeded the non‑parole period specified by the sentencing judge in this case.
If one then looks at other drug cases involving cocaine or heroin, it is necessary to bear in mind the different amount specified as the commercial quantity for those drugs. To make comparisons with MDMA cases, it is appropriate to refer to the number of times the commercial quantity was exceeded rather than referring to the weight of the drug. In R v Jackson [2003] QCA 31; (2003) 138 A Crim R 148, the offender imported cocaine (31 times the commercial quantity). The sentence was 25 years with a 13 year non‑parole period after a plea of guilty. In R v Ng [2001] NSWCCA 305, where the offender was knowingly concerned in the importation of heroin (46 times the commercial quantity), a plea of guilty attracted life imprisonment and an 18.5 year non‑parole period. The case of R v Mo [2007] NSWCCA 61; (2007) 169 A Crim R 60 concerned an attempt to possess 50.6 times the commercial quantity of heroin; the sentence after a plea of guilty was approximately 13 years and an 8.5 year non‑parole period, but there was assistance to authorities in that case. In Melgar Sevilla v The Queen [2007] WASCA 116, concerning the importation and possession of cocaine (39 times the commercial quantity), the sentence after a plea of guilty was life imprisonment with a 21 year non‑parole period. In Sukkar v The Queen [2007] WASCA 166 - aiding importation and attempting to possess cocaine (39 times the commercial quantity), the sentence was 21 years with a 13 year non‑parole period. In R v Kiam Fah Teng [2005] VSC 33, an offence concerning heroin (55 times the commercial quantity), after a plea of guilty a sentence of 22 years with a 15 year non‑parole period was imposed. In R v Lam [2005] VSC 98 - a heroin offence involving 55 times the commercial quantity), the sentence after a plea of guilty was 23 years with a non‑parole period of 16 years. In the cases of Ma v The Queen [2010] NSWCCA 320 and Wang v The Queen [2010] NSWCCA 319 - a case involving cocaine (attempt only) (100 times the commercial quantity), after pleas of guilty, Ma was sentenced to 15 years with a 9 year non‑parole period and Wang was sentenced to 18 years with a non‑parole period of 11.5 years.
From this information, it can be seen that there is a wide range of sentences imposed in cases involving substantial quantities of illegal
drugs. The sentences vary principally because of the quantity of the drug, placement of the offender in the drug dealing hierarchy, the existence of a plea of guilty, evidence of contrition or remorse and whether assistance to authorities was given.
Measured against those cases, neither the head sentence nor the non‑parole period set by the sentencing judge was manifestly excessive. The fact is that in this case there were no substantial mitigating circumstances other than the plea of guilty which was recognised as a point in mitigation, but which should not have attracted anywhere near the usual discount for a plea of guilty because of the lack of contrition, and the appellant's age, both of which were taken into account. The appellant was the senior man in Australia, overseeing the importation and of a large quantity of MDMA and conspiring to traffic in it. He worked with, and coordinated, a group of people over a long period of time to achieve the objectives of manufacturing the MDMA into ecstasy tablets and arranging the sale and distribution of the tablets. The appeal ground has no merit. Leave to appeal should be refused with the result that the appeal should be dismissed.
BUSS JA: In September 2009, the appellant was convicted in the Supreme Court before Jenkins J, on his pleas of guilty, on two counts in an indictment.
Count 1 alleged that between 1 July 2007 and 20 May 2008 at Perth and elsewhere in Australia, the appellant, Dejan Medan, Dimitrios Papadimitriou and Fabian Quaid conspired together with Vaso Ulic and others to traffic in a controlled drug, namely MDMA, and that the quantity was a commercial quantity, contrary to s 11.5(1) and s 302.1(1) of the Criminal Code (Cth) (the Code).
Count 2 alleged that between 1 March 2008 and 18 April 2008 at Perth, the appellant imported a border controlled drug, namely MDMA, and that the quantity imported was a commercial quantity, contrary to s 307.1(1) of the Code.
On 22, 23 and 24 February 2010, there was a trial of issues before her Honour. On 23 March 2010, she published written reasons for decision.
On 23 March 2010, the appellant was sentenced on each count to 25 years' imprisonment. The sentencing judge fixed a single non‑parole period of 16 years. The sentence was backdated to commence on the date of the appellant's arrest, namely, 19 May 2008.
The appellant appeals to this court against her Honour's sentencing decision.
The co‑offenders
Mr Quaid was tried jointly with Mr Papadimitriou on the conspiracy offence the subject of count 1. They were found guilty. Mr Medan pleaded guilty to the conspiracy offence before the trial. At all material times, Mr Ulic resided in Montenegro. He was never charged.
Background facts and circumstances
In July 2007, investigations by law enforcement authorities revealed that the appellant, in conjunction with Mr Ulic, was planning to import MDMA, in powder form, into Australia. They intended, after importation, to convert the powder into ecstasy tablets and distribute them for sale in Australia.
The Crown's case was that in July 2007, Mr Ulic sought the assistance of Mr Quaid and Mr Papadimitriou, and the appellant sought the assistance of Mr Medan, to implement the plan made between Mr Ulic and the appellant.
It was alleged by the Crown that on 19 July 2007, the appellant met with Mr Quaid in Subiaco where they agreed that upon the MDMA powder being imported, ecstasy tablets would be produced and distributed for sale. The appellant was to oversee the importation of the powder and, with Mr Medan, arrange for its conversion into tablets. Mr Quaid was to arrange for the distribution of the tablets. Mr Papadimitriou's role was to assist the appellant.
Mr Papadimitriou located a granny flat at 299 Morley Drive East, Lockridge, in which the MDMA powder, a pill press and other materials required for the conversion of the powder into tablets were stored. He also arranged for the transportation of the pill press from Melbourne to Perth.
Mr Medan provided the pill press to Mr Papadimitriou in Melbourne. Mr Medan's principal role was to convert the MDMA powder into ecstasy tablets. The pill press was to be used for this purpose. He was to obtain the chemicals and other ingredients to be combined with the MDMA to make the tablets. Also, he was to give support, as necessary, to the appellant.
The investigations of the law enforcement authorities indicated that the MDMA powder was to be imported into Australia on the cargo ship, MSC Monica. On 7 April 2008, the vessel docked in Port Botany. On 16 April 2008, it arrived in Fremantle.
In the early hours of 17 April 2008 at Fremantle, about 60 kg of MDMA powder was unloaded by unknown persons from the MSC Monica to a small vessel alongside it. The small vessel then returned to shore. About 10 kg of the drug was taken immediately by others involved in the importation. The appellant collected the balance and took it to a house in Balga where he was staying with a friend. On or about 28 April 2008, the appellant transported the powder to the granny flat.
On 8 May 2008, police, acting covertly, executed a search warrant at the granny flat. They found and removed the MDMA powder, which was inside large plastic bags concealed in two black sports bags. The drug was replaced with an inert substance.
On the afternoon of 19 May 2008, the appellant, Mr Medan and Mr Papadimitriou were arrested in front of the granny flat. Police executed another search warrant. An inspection of the granny flat disclosed the following:
(a)a pill press had been placed in the eastern side of the room, plugged into the wall, and the electricity turned on;
(b)the large plastic bags containing the inert substance had been removed from the sports bags and placed on the ground alongside a wall and near the pill press;
(c)some of the inert substance had been removed from the large plastic bags and separated into a number of small transparent snaplock bags of about one kilogram in weight;
(d)one unsealed bag was located near a set of scales on a table next to the pill press; and
(e)two sealed bags were located on shelving near the table.
Police seized, amongst other things, the inert substance, various binding and cutting agents, the pill press, $12,700 in cash, and mobile telephones.
On 21 May 2008, Mr Quaid was arrested in Sydney.
The MDMA powder seized by the law enforcement authorities from the granny flat weighed 44.16 kg. The purity of the 44.16 kg averaged about 80%. The powder seized was about 70 times the quantity prescribed by law as the commercial quantity of MDMA.
The sentencing judge's remarks
The sentencing judge found that the appellant's role was to oversee the importation of the MDMA powder, arrange for the drug to be converted to tablets, sell the tablets to Mr Quaid or others in Australia, and remit the sale proceeds to the principals of a drug cartel in Europe. The appellant was at the time an existing associate of the European drug traffickers. The MDMA powder did not belong to him. He was the Australian agent of the European principals and their senior man in Australia. He took directions from Mr Ulic. The appellant was already an experienced drug trafficker [23].
Her Honour sentenced the appellant on the basis that he imported all of the MDMA powder that came from the MSC Monica in Fremantle. During the trial of issues, the appellant agreed that 60 kg was imported. The balance between this amount and the amount seized by police was taken by others as payment for services rendered in assisting the importation [55].
The sentencing judge found that the European principals required the appellant to remit 'a certain dollar amount per tablet and that anything he could get for the tablets over and above that amount was for [the appellant] to keep' [58]. Some of this profit would have to be given to others who had assisted him to manufacture the drugs. The appellant hoped that he would still have enough money to assist him to pay his debts and living expenses [58].
There was expert evidence before her Honour to the effect that the value of the 44.16 kg of MDMA in question, upon conversion to tablets and sale to users, would have been between $14 million and $24 million [82].
The sentencing judge rejected the appellant's evidence that he was kidnapped, held against his will and badly beaten between 25 July 2007 and 11 August 2007 [74]. She also rejected his evidence that he could not tell the law enforcement authorities of his plight because of the threats of, and actual violence from, his kidnappers [80]. Further, her Honour did not accept that the appellant committed the relevant offences to nullify threats by the alleged kidnappers to kill or harm him or his family [77]. She found the appellant to be an unsatisfactory witness. The evidence showed him to be capable of, and practised in, secrecy and deception, and his evidence at the trial of issues was inconsistent, often non‑responsive and, at times, obfuscatory [62] ‑ [63].
Her Honour did accept, however, that in about August 2007 the appellant was assaulted and the incident occurred because of outstanding debts that had arisen from other drug trafficking transactions in which he had participated [76]. She accepted that the appellant had 'pressing debts' and that he was being pressured to send more money to Europe [79].
The sentencing judge noted the appellant's personal circumstances. When sentenced he was aged 60 years. She also noted that, given the length of imprisonment he was to receive, this was an important factor in the sentencing process [84].
The appellant was born in the former Yugoslavia and grew up in Montenegro. He was raised by his mother and had little contact with his father. Since 1984, the appellant has lived in Australia, principally in Sydney. He has an adult son and an adult daughter. When the appellant decided to move to Australia more than 25 years ago, his wife and children stayed in Serbia. He maintains a close relationship with his children, both of whom now live in Australia [85].
Since at least 2002, the appellant has been extensively involved in drug trafficking. Despite this, his finances appear to be 'fair at best' [86].
The appellant has a heart condition, but her Honour noted that this appears to be under control, at present [87].
The sentencing judge said that it was not suggested that the appellant had committed the offences in question in order to fund any illicit drug use [88] ‑ [89].
Her Honour summarised the appellant's criminal history, as follows:
[The appellant] has a criminal history from Victoria and New South Wales. In 2002 he was convicted in Victoria of handling stolen goods and sentenced to 8 months' suspended imprisonment and fined $2,000. His criminal record in New South Wales commences in 1985 which must have been shortly after he arrived in Australia. In 1985 he was convicted of having goods in custody. Until 1991 he was fairly regularly convicted of dishonesty offences.
There has been a break in his offending record until 2004. In mid-2004 he was found guilty of being in possession of goods suspected of being stolen. [The appellant] has an appalling record of driving offences between 1985 and 2008. Such is his record for various driving offences including multiple convictions for driving without a licence that in December 2005 he was declared a habitual offender. He does not receive any credit for being of good character [90] ‑ [91].
The sentencing judge said that the appellant's pleas of guilty did not reflect an acknowledgement of responsibility for his offending [5]. Her Honour was doubtful about his contrition [6]. There was, however, no doubt that his pleas indicated a willingness to facilitate the course of justice [6].
Her Honour referred to the appellant's preoccupation with telling those parts of the story which he thinks reflect favourably on him and his reluctance to focus on his criminal behaviour [93]. She doubted that he was capable of being rehabilitated and that it was only his advancing age that was likely to reduce his prospect of reoffending [93].
The sentencing judge said that the appellant's prior criminal record, general antecedents and attitude towards his offending do not aggravate the objective seriousness of his offending. These matters did, however, indicate that retribution, deterrence and protection of society were very relevant sentencing considerations [94].
The ground of appeal
The sole ground of appeal alleges that the sentencing judge erred in law by imposing a sentence that was manifestly excessive in all the circumstances.
The particulars to the ground assert that her Honour erred in law 'by not having sufficient regard to the appellant's early plea of guilty' and 'by not having sufficient regard to the appellant's age'. The particulars are, in substance, a complaint about the attribution of weight.
An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26]; Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.
It is apparent from the appellant's submissions that he challenges both the head sentence and the non‑parole period.
On 26 July 2010, Mazza J referred the application for leave to appeal to the hearing of the appeal.
The appellant's submissions
The appellant was born on 26 December 1949. He was aged 57 or 58 at the time of the offending and, as I have mentioned, was 60 when he was sentenced.
Counsel for the appellant emphasised the appellant's age and his early (but not fast‑track) pleas of guilty.
According to counsel, the head sentence of 25 years' imprisonment, viewed especially in the context of these mitigating factors, was manifestly excessive.
Counsel for the appellant also submitted that the non‑parole period was 'beyond the range that should have been imposed', in that:
(a)the 16‑year period was greater than the non‑parole period imposed on younger offenders in comparable cases;
(b)the appellant's age as at the earliest date on which he may be released on parole will be 74;
(c)the appellant has a heart condition although, as the sentencing judge noted, this appears to be under control.
The nature of manifest excess
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It does not assert a specific error. See Dinsdale, where Gleeson CJ and Hayne J observed:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive [6].
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. See Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ).
The maximum penalty
At the material time, the maximum penalty for each offence committed by the appellant was life imprisonment and/or a fine of $825,000.
The major sentencing considerations
By s 16A(1) of the Crimes Act 1914 (Cth), a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides that, in addition to any other matters, the court must take into account such of the matters specified in the subsection as are relevant and known to the court.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.
Comparable cases
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only generally guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid.
At all material times, a commercial quantity of amphetamine has been 0.75 kg, a commercial quantity of cocaine has been 2 kg, a commercial quantity of heroin has been 1.5 kg, a commercial quantity of methylamphetamine has been 0.75 kg and a commercial quantity of MDMA has been 0.5 kg. See s 314.1 of the Code.
In The State of Western Australia v Higgins [2008] WASCA 157; (2008) A Crim R 302, Steytler P (McLure & Miller JJA agreeing) held, after evaluating expert and other evidence as to the deleterious effects of MDMA compared with other prohibited drugs, that the evidence (which he accepted) supported the proposition that there is no basis for any significant distinction, for sentencing purposes, between MDMA on the one hand and other prohibited drugs (such as methylamphetamine, amphetamine, heroin and cocaine) on the other [121].
In the present case, the sentencing judge made these observations about the severe deleterious effects caused by the distribution and use of illicit drugs including MDMA:
That is because the distribution and use of drugs such as MDMA in our community causes great damage. It causes damage to the health and relationships of individual users. Users often resort to the commission of offences to support their habits and this causes more suffering in the community. Users also often lack any motivation because of the effect of drugs to meet their family obligations or to participate in a meaningful way in the community. Then there is the great cost of drug use to our community through the cost of law enforcement agencies, health regimes and social welfare systems required to deal with drug use. These are but some of the deleterious results of drug use in our community [126].
In Sukkar v The Queen [No 2] [2008] WASCA 2; (2008) 178 A Crim R 433, Steytler P, McLure JA and I, in our joint reasons, reviewed the sentences imposed in numerous cases involving the importation of large quantities of illicit drugs. I will reproduce those cases which are of relevance to the present appeal.
In Cheung (1997) 97 A Crim R 283, the offender was convicted of being knowingly concerned in the importation of a commercial quantity of heroin, being 45 kg (or 32.41 kg of pure heroin). He was then aged 32 years. He had pleaded guilty only to possession of the drugs in question and was convicted after trial on the offence charged. The offender had no prior criminal record. He assisted in loading drugs onto a ship in China. He then came to Western Australia in order to assist in the unloading and further distribution of the drugs in this country. He was sentenced to 25 years' imprisonment with a non-parole period of 13 years. The sentence was upheld on appeal.
In R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577, the offender was convicted of importing a commercial quantity of cocaine, being 937.9 kg (or 707.1 kg of pure cocaine). He was a Columbian national who had a prior conviction for the importation of cocaine into Curacao. He pleaded guilty to the offence charged. He represented the financiers of the importation and was responsible for guarding the drugs and ensuring their arrival at their intended destination. He was to be paid US$200,000 for his role. He was sentenced to life imprisonment with a non-parole period of 20 years.
In R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26 and de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291, each of Reaves and de la Espriella-Velasco were co-offenders with Suarez-Mejia. De la Espriella-Velasco had controlled and run the shore-based element of the process of importation. He pleaded not guilty to the offence charged. He was sentenced, after trial, to life imprisonment with a non-parole period of 26 years. Reaves, who was a United States citizen, had purchased and modified the ship in which the drugs were imported. He piloted the ship into Australia and physically unloaded the drugs. He had a prior criminal history that included drug offences. He was to be paid US$300,000 for his role. He pleaded guilty. The offender was aged 59 years when sentenced by the trial judge. After a successful Crown appeal, he was sentenced to life imprisonment with a non‑parole period of 18 years. When resentenced on appeal he was aged 61.
As Steytler P, McLure JA and I noted in Sukkar [31], it is important to bear in mind, when considering cases decided in New South Wales, that s 16G of the Crimes Act was repealed on 16 January 2003. That section provided that, if a federal sentence was to be served in a prison of a State where sentences were not subject to remission or reduction, the court imposing the sentence was required to take that fact into account in determining the length of the sentence and must adjust the sentence accordingly. Sentences in New South Wales were not subject to remission or reduction. Consequently, sentences imposed prior to 16 January 2003 were reduced in accordance with s 16G, but those imposed after that date were not.
In R v Vo [2000] NSWCCA 440; (2000) 118 A Crim R 320, the offender was convicted of being knowingly concerned in the importation of a commercial quantity of heroin. The quantity involved was 54.5 kg of pure heroin. She was convicted after a trial, having pleaded not guilty. The heroin had been concealed in a consignment of tinned pineapple shipped to Sydney in 1997. The offender arranged for Customs clearance, storage, delivery and unloading of the shipment. She was not the principal in the cartel responsible for the importation, but was a 'key' participant, both before and after the container arrived in Australia. Her role was described as being more crucial to the success of the operation than that of her co-offenders. She was 25 years old when the offending occurred. She was sentenced to 22 years' imprisonment with a non-parole period of 14 years. Her appeal was dismissed.
In R v Jackson [2003] QCA 31; (2003) 138 A Crim R 148, the offender pleaded guilty to importing a commercial quantity of cocaine, being 89.1 kg with an average purity of 70%. The drug had been exported from Mexico and the offender had a central role in the planning and commission of the offence. He supplied the vessel, provided some funds, and arranged for the crew which included his 16 -year‑old son. He was to be paid $800,000. He was sentenced to 25 years' imprisonment with a non‑parole of 13 years. He was aged 60 years when sentenced. His application for leave to appeal against sentence was dismissed.
In R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493, the offender was convicted, after a trial before judge and jury, of having been knowingly concerned in the importation of MDMA, the quantity imported having been not less than the commercial quantity prescribed by law for that drug. The offender imported about 271,000 tablets having a gross weight of 105.54 kg and a pure weight of 52.33 kg. The wholesale value of the consignment was between $2.7 million and $5.4 million. He was sentenced to life imprisonment with a non‑parole period of 21 years. The offender was resident in Hong Kong and ran a business importing wine. He arranged for a shipment of 940 cases to be sent to Australia. The ecstasy tablets were packed in the bottom half of the cases and covered with wine bottles. The cases were sent by sea to Sydney with the bill of lading in his name. The offender arrived in Sydney and made arrangements for the clearance and storage of the cases. He supplied some of the tablets to a co‑offender. The Court of Criminal Appeal dismissed his appeal against the head sentence, but allowed his appeal against the non‑parole period. When the offender was sentenced, he was aged 57 years. Sully J (Grove & Kirby JJ agreeing) said:
If this Court affirms, as in my view it ought to do, the head sentence passed by her Honour upon the appellant, then in my opinion it is unnecessarily harsh to give the appellant the prospect of a non-parole period at all, and then to set the period at a level that will entail either that the appellant dies in prison, or that he has upon release at the age of 78 years little if any productive and useful life in prospect.
I have come to the conclusion, albeit not without some hesitation, that the implications of the non-parole period of 21 years set by Judge Hock justify a conclusion by this Court that there is latent error in that part of her Honour’s sentence. On that footing I would favour the substitution of a non-parole period to expire on 8 December 2015, which will be 10 days prior to the appellant’s 70th birthday. Assuming that the head sentence of life imprisonment is not disturbed, the appellant’s then release to parole would entail that for the remainder of his life he was subject to some proper parole supervision. I think that the combination of the head sentence of life imprisonment and of the reduced non-parole period which I now propose would be a just way of doing whatever is necessary in order fairly to punish and to deter the appellant himself; while the maintenance of the head sentence itself will do all that can be done in order to deter others who might be tempted to commit serious drug-related offences [84] ‑ [85].
In R v Lam [2005] VSC 98, the offender, a Chinese citizen, was convicted, after pleading guilty, on a charge of aiding and abetting the importation of a commercial quantity of heroin. The amount involved was 82.29 kg of pure heroin. His function had been to arrange the delivery of heroin contained in a ship to others on shore. His role was described as having been 'significant', and above that of a mere courier. Although he operated under the directions of others, he was given a high degree of responsibility and authority. He was present to receive the drugs and had the means to be in contact with the ship. He was a young man with no family. He had no prior convictions. He was sentenced to 23 years' imprisonment with a non-parole period of 16 years.
In R v Teng [2005] VSC 33, the offender was one of Lam's co-offenders. He, too, pleaded guilty. He had no prior convictions. The offender had been in direct telephone contact with people at the head of the organisation who had arranged the importation. He was responsible for the preparation, transportation and storage of the narcotics. He acted under instructions from others. His motivation for the offending was the payment of his debts. He was to receive an amount of $80,000 for his participation. He had no prior convictions and his prospects for rehabilitation were good. He was sentenced to 22 years' imprisonment with a non-parole period of 15 years.
In R v Moore [2005] NSWCCA 212, the offender pleaded guilty to a charge that alleged he was in possession of prohibited imports, being a quantity of MDMA not less than the commercial quantity applicable to that drug. He was sentenced on the basis that he had possession of 92.4 kg of pure MDMA. The sentencing judge imposed a term of 20 years' imprisonment with a non‑parole period of 15 years. The offender was a party to an arrangement with other people known as Ballis, Anderson and Hinke, pursuant to which the offender was to obtain possession of about 980,000 MDMA or ecstasy tablets which had been imported from the Netherlands. Ballis, Anderson and Hinke were jointly responsible for procuring the supply of the ecstasy tablets from the importers to the offender. At material times, Anderson was located in the Netherlands, and the others were in Australia. The offender assisted Hinke to find accommodation in Sydney. On 16 December 2002, the offender leased a self‑storage unit in Hillsdale for the purpose of storing the tablets, which had arrived at Port Botany that day. On 19 December 2002, he leased premises at Sylvania in anticipation of delivery of the tablets. On 24 December 2002, the offender, by arrangement with Ballis, travelled to Pagewood and took delivery of the tablets. He then transported the tablets to his premises at Sylvania where they remained in a van parked in his garage until he was arrested late in the evening of that day. The offender's plea of guilty was not entered at the earliest opportunity, but the sentencing judge considered that it had strong utilitarian value. Also, the offender cooperated to some extent with the investigating authorities and provided them with assistance of limited value, except for the fact that he did provide the name of one of the principals who, at material times, was living in the Netherlands and he offered to give evidence in other proceedings, if required. The sentencing judge was satisfied that the offender had demonstrated some remorse and contrition. The offender's appeal against sentence was dismissed.
In R v Nguyen [2005] NSWCCA 362; (2005) 195 FLR 1, the four offenders had been involved in two offences relating to the importation of illicit drugs including a commercial quantity of MDMA. MDMA tablets were imported inside a shipping container in hollowed out tiles. Heroin was imported in a bottle of Baileys Irish Cream. The quantities were 52 kg of pure MDMA and 477 g of pure heroin. One of the offenders, Pham, and another man travelled to Hong Kong to meet with a principal in the enterprise, Peter Lam. Pham instructed freight forwarders and oversaw delivery of the drugs. He maintained counter-surveillance to ensure that no authorities were interested in the shipment. He was in regular telephone contact with Lam. He was to be paid $500,000 for his role. He pleaded guilty and provided assistance to the authorities. After a successful appeal, he was sentenced to 27 years' imprisonment with a non-parole period of 18 years.
One of Pham's co-offenders, To, arrived in Australia after the drugs had been imported. He was Lam's 'eyes and ears at the Sydney end of the importation' and was described as a 'supervisor and monitor' of Lam's interests. He was physically involved in the removal of what he believed to be the MDMA from the reconstructed tiles (police had substituted an inert substance). He was described as having been a participant at the highest level after that of a participant who had a direct entrepreneurial stake in the importation. He had a prior conviction for a serious drug-related offence in Hong Kong. He pleaded guilty to the offence of importation of the MDMA. After a successful appeal, he was sentenced to 22 years' imprisonment with a non-parole period of 16 years 6 months for the MDMA offence.
In R v Lee [2007] NSWCCA 234, the offender, who was aged 31 at the time of sentence, lived in Hong Kong. He had no relevant criminal record. He was involved in the importation of a commercial quantity of heroin, being 105.7 kg (or 76.3 kg of pure heroin). His wife and child lived in Hong Kong. He was convicted after a trial. The Court accepted that the offender was not the exclusive mind, or even a controlling mind, of the entire criminal enterprise but found that he played a critical role in the importation. The offender's role extended over a significant period of time and involved the management of complex transactions culminating in the deposit of containers containing drugs in a warehouse in Sydney. His role was described as having been 'a senior management role of critical significance to the success of the enterprise' [33]. After a successful Crown appeal, the offender was sentenced to 28 years' imprisonment with a non-parole period of 19 years 6 months. The Court said that, but for the fact that it was a Crown appeal, a non-parole period significantly in excess of 20 years would have been appropriate [38].
In Sukkar, the offender was convicted of one count of aiding the importation of a commercial quantity of prohibited goods, contrary to s 233B(1)(b) of the Customs Act, and one count of attempting to possess a commercial quantity of a prohibited import, contrary to s 233B(1)(c) of that Act. The goods in question were 100.6 kg of cocaine with an average purity of 77.8%. Initially, the offender pleaded not guilty. He was tried before a judge and jury, but the jury were unable to agree upon a verdict. On the second day of his retrial, he entered a plea of guilty, and was therefore convicted. The trial judge sentenced him to 21 years' imprisonment on each count, with a non‑parole period of 13 years. The sentences were ordered to be served concurrently. This court dismissed his appeal against sentence. Although it was not apparent that the offender knew the precise quantity of cocaine or its value, it was held that he must have known that it was a very substantial quantity and, in any event, he was willing to be closely connected with facilitating its importation, and its transportation from Albany in Western Australia to somewhere else in Australia. He assisted a more senior and culpable participant, Sevilla, by purchasing mobile telephones, making telephone calls and accompanying Mr Sevilla (who was not fluent in English) to the place in Albany where the vessel carrying the cocaine was to dock. The offender and Mr Sevilla made plans for the cocaine to be brought ashore and hidden. Later, they drove to the place where the cocaine was hidden for the purpose of retrieving it.
In R v To Si Thanh [2007] NSWCCA 200; (2007) 172 A Crim R 121, the offender was convicted, after a trial before judge and jury, of aiding, abetting, counselling or procuring the importation of a commercial quantity of methylamphetamine. He was sentenced to 17 years' imprisonment with a non‑parole period of 10 years 6 months. The Crown appealed. It alleged that the sentence was manifestly inadequate. The drugs were concealed in a speedboat contained in a 40 foot shipping container that was imported into Australia. From October or November 2005 until 6 February 2006, when he succeeded, the offender made efforts to secure the release of the speedboat from the customs and shipping authorities. The offender was an enthusiastic supporter of the drug importation enterprise. His sole motivation was the money or reward he could derive from his participation. The sentencing judge found that he played the principal role in Australia, although another offender, Bui, was a more highly placed principal. The Court of Criminal Appeal allowed the Crown's appeal. The offender was resentenced to 25 years' imprisonment with a non‑parole period of 15 years. The common law principles governing Crown or State appeals applied.
In R v Handlen [2010] QCA 371; (2010) 247 FLR 261, Holmes JA (Fraser & White JJA agreeing) reviewed the sentencing outcomes in numerous serious cases involving the importation into Australia of illicit drugs including many of the cases I have already examined. I have read and considered her Honour's review of the cases. See also R v Riddell (Unreported, NSWDC, 17 August 2007) (Judge Hosking); Keung v The Queen [2008] NSWCCA 193; (2008) 191 A Crim R 317; R v Nikolovska [2010] NSWCCA 169; R v Holland [2011] NSWCCA 65.
Reasonable consistency in sentencing
As Gleeson CJ noted in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, the administration of criminal justice works as a system; it should be systematically fair and that involves, amongst other things, reasonable consistency [6]. His Honour explained:
All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice [6] ‑ [7].
In Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that the consistency that is sought in the sentencing of federal offenders is 'consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence' [18]. They added:
Consistency in sentencing federal offenders is achieved by the proper application of the relevant statutory provisions, having proper regard not just to what has been done in other cases but why it was done, and by the work of the intermediate courts of appeal [18]. (original emphasis)
Later in their joint reasons, the majority in Hili referred to the observations of Gleeson CJ in Wong which I have set out at [99] above, and said that the search for 'reasonable consistency' involves the treatment of like cases alike, and different cases differently, and that consistency of this kind is not capable of mathematical expression or expression in tabular form [49].
Advanced age and ill health of an offender
Australian authorities have established that advanced age is a relevant consideration in determining whether a sentence will be crushing. The rationale is that each year of a sentence represents a substantial proportion of the period of life which is left to an offender of advanced age. See R v Hunter (1984) 36 SASR 101, 103 (King CJ); R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 405 ‑ 406 (Winneke P, Bongiorno & O'Bryan AJJA agreeing); Braham v The Queen (1994) 116 FLR 38, 51 (Angel J); Gulyas v The State of Western Australia [2007] WASCA 263; (2007) 178 A Crim R 539 [34] (Steytler P, McLure & Miller JJA agreeing); R v Iles [2009] VSCA 197 [31] ‑ [35] (Redlich JA, Neave JA agreeing).
However, whether and, if so, to what extent leniency should be given to an offender of advanced age, depends on all of the facts and circumstances of the particular case. As Steytler P noted in Gulyas, the authorities emphasise that age is only one factor in the sentencing process, and that advanced age can never be a justification for a sentence which is not fairly proportionate to the offence or otherwise inappropriate [35]. See also Hunter (103). An offence may be so serious that humanitarian considerations cannot be accommodated.
The illness of an offender may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case. However, as King CJ (Cox & O'Loughlin JJ agreeing) stressed in R v Smith (1987) 44 SASR 587, 589:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.
See also Gulyas [36] ‑ [37].
The purpose of a non‑parole period and the considerations relevant to fixing a non‑parole period
Section 19AB(1) of the Crimes Act provides, relevantly, that subject to s 19AB(3), where a person is convicted of a 'federal offence', and a court imposes on the person a 'federal sentence' of imprisonment that exceeds 3 years, and at the time the sentence is imposed, the person is not already serving or subject to a federal sentence, the court must, relevantly, fix a non-parole period in respect of that sentence. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non-parole period. The term 'federal offence' means an offence against the law of the Commonwealth and the term 'federal sentence' means a sentence imposed for a federal offence. See s 16(1).
Where a sentencing judge fixes a non-parole period, the non-parole period is part of the sentence. See R v Rajacic [1973] VR 636, 641; R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12].
The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
The non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy (531).
The considerations which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy (531).
In Bick v The Queen [2006] NSWCCA 408, Price J (Hodgson JA & Howie J agreeing) summarised the main factors which are relevant to the determination, in any case, of the appropriate ratio between the non-parole period and the head sentence. His Honour said:
Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see Bernier ((1998) 102 A Crim R 44) (at 49) and Sweet 125 A Crim R 341 [at 346]), the seriousness of the offence and the prospects of rehabilitation (see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSW CCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz unreported, Court of Criminal Appeal, NSW 23 November 1993) [15].
The principles applicable to the fixing of the length of a non-parole period for a Commonwealth drug importation or related drug offence are set out in my reasons in Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383 (McLure & Miller JJA agreeing). The relevant principles are these:
(a)Section 19AB(1) of the Crimes Act confers on a sentencing judge a discretion to determine the appropriate non-parole period.
(b)Neither s 19AB(1) nor any other statutory provision requires the non-parole period to bear any particular relationship to the head sentence.
(c)A review of the case law reveals that, in general, the non-parole periods for Commonwealth drug importation and related drug offences have usually been about 60% to 66 2/3% of the head sentences.
(d)The relationship between non-parole periods and head sentences which have customarily been imposed for Commonwealth drug importation and related drug offences is, at most, a general guide, and must not control or fetter the proper exercise of a sentencing judge's discretion.
(e)Sentencing judges must determine the appropriate non-parole period in each case by applying the established legal principles set out at [108] ‑ [110] above to the facts of the particular offence and the circumstances of the particular offender. The process is not rigid or mathematical. Care must be taken to ensure that the non-parole period arrived at in a particular case is the minimum period of imprisonment that justice requires the offender to serve.
(f)Sentencing judges must not determine the non-parole period in any case by applying automatically the general guide I have mentioned. The ratio in a particular case may be within the general guide or may be higher or lower, as the facts and circumstances in question require.
The merits of the appeal
In the present case, each head sentence and the total effective sentence of 25 years' imprisonment was, undoubtedly, high. I am satisfied, however, that it was well‑deserved and within the range of a sound exercise of the sentencing discretion.
The appellant was the senior representative in Australia of the drug cartel. His objective criminality was very significant.
The weight, purity and value of the MDMA, and issues of general and personal deterrence and appropriate punishment, were of particular importance in the sentencing process. The MDMA powder would have produced at least 350,000 tablets [82]. It would have been sold for between $14 million and $24 million [82].
The conspiracy had its genesis in the agreement between the appellant and Mr Ulic. The appellant's role was crucial in the organisation and implementation of the illegal enterprise. He recruited Mr Medan. He reported to his European principals and made arrangements on their behalf in Australia. The appellant coordinated and dealt extensively with the Australian participants in the conspiracy in addition to attending personally to a number of responsible tasks.
The imposition of condign punishment was justified and necessary.
As the sentencing judge noted, the appellant's prospects of rehabilitation were poor. The most significant mitigatory factors were his age and his pleas of guilty. However, the extent of any leniency that could be extended to the appellant on account of his age was limited by the very serious nature of his offending. Also, the mitigation in his pleas was tempered by her Honour's finding that they did not reflect an acknowledgement of responsibility and there was doubt about his contrition. Further, the pleas were not made at the earliest opportunity. His other personal circumstances did not warrant any leniency. I refer, in particular, to his criminal history and the previous drug transactions in which he was involved. These factors do not, of course, aggravate the appellant's offending, but they demonstrate that he was not a person of prior good character.
The appellant engaged in the criminal conduct in question for personal financial gain. His involvement was not driven by an addiction to illicit drugs. He did not act impulsively. The period of his offending was not transient. The facts and circumstances of the conspiracy and the importation reveal careful planning. I refer, by way of example, to the discussions in code between the conspirators.
The chief executive officer of the department of Government principally assisting the Minister in the administration of the Prisons Act 1981 (WA) is under a duty to ensure that medical care and treatment is provided to the appellant in prison including treatment for the heart condition that appears, at present, to be under control. A 'medical officer', being a medical practitioner who has been appointed or engaged by the chief executive officer as a medical officer pursuant to s 6(3) or s 6(4) of the Prisons Act, is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. The chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an 'absence permit'. An absence permit may be given by the chief executive officer for the appellant to be admitted to an authorised hospital for the purpose of the treatment, if necessary, of his heart condition. See Smith v The State of Western Australia [2010] WASCA 176 [59] ‑ [68] (Buss JA, McLure P & Mazza J agreeing).
In my opinion, each head sentence and the total effective sentence in the present case bears a proper relationship to the overall criminality of the appellant's offending, after having regard to all relevant circumstances including his age and his pleas of guilty. Each sentence is not disproportionate to the maximum penalty or any sentencing pattern revealed by comparable cases. The individual terms of 25 years' imprisonment were not plainly unreasonable or unjust. There is no basis for inferring error.
The sentencing judge's determination of the appropriate non‑parole period involved the exercise of judicial discretion. This court may not substitute its own opinion for that of her Honour merely because it would have exercised the discretion differently. No statutory provision requires the non‑parole period to bear any particular proportion to each head sentence or the total effective sentence.
My review of the sentencing outcomes in comparable cases does not disclose that the single non‑parole period of 16 years is disproportionate to the non‑parole periods that have been imposed in similar or analogous circumstances. The non‑parole period which the appellant received was, I accept, high. But I am satisfied, upon evaluating:
(a)the facts and circumstances of the appellant's offending including his pleas of guilty;
(b)the appellant's personal circumstances including his age;
(c)the purpose of imposing a non‑parole period and the considerations relevant to fixing a non‑parole period; and
(d)the non‑parole periods that have been fixed in comparable cases,
that her Honour's exercise of discretion did not miscarry. No sentencing error should be inferred.
Conclusion
The ground of appeal has no merit. Leave to appeal should be refused and the appeal dismissed.
HALL J: I agree with Pullin JA and with Buss JA.
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