Mato v The Queen; Rusu v The Queen

[2015] NSWCCA 328

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mato v R; Rusu v R [2015] NSWCCA 328
Hearing dates:	6 October 2015
Decision date:	18 December 2015
Before:	Gleeson JA at [1]; Hall J at [2] Campbell J at [131]
Decision:	Application by Zoltan Mato: (1) Leave to appeal granted. (2) Appeal dismissed.  Application by Marius Rusu: (1)   Leave to appeal against sentence on Grounds 1 and 2 refused. (2)   Leave to appeal against sentence on Ground 3 granted. (3)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – applications for leave to appeal against sentences – applicants were co-offenders convicted of conspiracy to import cocaine and dealing with proceeds of crime – whether sentences were manifestly excessive – whether the sentencing judge erred in assessing objective seriousness of offending – whether leave to appeal should be granted to the applicant Rusu to argue that his role in the criminal conspiracy was less than his co-offender when no issue on that question was raised before the sentencing judge – whether sentencing judge erred in degree of accumulation of sentences or application of principle of totality – additional criminality in the ‘proceeds’ offences concerning monies received from the cocaine importations over and above the conspiracy offences – whether principle of parity required sentencing judge to impose equal sentences where one applicant had dealt with a larger amount of money than the other but the other had a less favourable criminal history – held that sentences were not manifestly excessive – held that no errors made in relation to totality, accumulation or parity – appeals dismissed
Legislation Cited:	Copyright Act 1968 (Cth) Crimes Act 1900 Criminal Code 1995 Criminal Code Act 2005 (Cth) Customs Act 1901 (Cth)
Cases Cited:	Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 Dela Cruz v The Queen [2010] NSWCCA 333 Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 House v The King (1936) 55 CLR 499 Johnson v R (2004) 78 ALJR 616 Loader v R; Dunn v R [2013] NSWCCA 215 Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v Knight (2005) 155 A Crim 252 R v MAK [2006] NSWCCA 381 R v Rossi (1988) 142 LSJS 451 Romero v R [2011] VSCA 45; 206 A Crim R 519 Thorn v The Queen [2009] NSWCCA 294 Zreika v R [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Zoltan Mato (Applicant) Marius Rusu (Applicant) Regina (Respondent)
Representation:	Counsel: D Dalton SC (for Mato) S Odgers SC (for Rusu) W Abraham QC (The Crown)   Solicitors: Horowitz & Bilinsky (for Mato) McNeilly Lawyers (for Rusu) Commonwealth Director of Public Prosecutions (The Crown)
File Number(s):	2009/584; 2009/586
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 3 September 2010 Before: Frearson DCJ File Number(s): 2009/584; 2009/586

Judgment

1. GLEESON JA: I agree with Hall J.

2. HALL J: The applicants, Zoltan Mato and Marius Rusu, both seek leave to appeal in respect of sentences imposed by the District Court (his Honour, Frearson SC DCJ) on 3 September 2010.

3. Each of the applicants was charged on indictment with the following offences:

Count 1: s 233B(1)(a)(iii) Customs Act 1901 (Cth) – conspiracy to import prohibited import, namely a commercial quantity of cocaine.

Count 2: s 400.3(1) Criminal Code Act 2005 (Cth) – deal with money or other property (> $1 million) that was and which he respectively believed to be proceeds of crime.

4. In respect of the conspiracy offence, both applicants were charged with conspiring with each other and others to import not less than a commercial quantity of cocaine. The other persons included Luke Sparos, Alen Moradien, Matthew Stockwell and Adam Ballard.

5. Each of the applicants entered not guilty pleas to the charges.

6. The trial commenced on 8 February 2010. On 29 March 2010, the jury returned verdicts of guilty on Counts 1 and 2.

7. The conspiracy charge under s 233B(1)(a)(iii) of the Customs Act 1901 carried a prescribed maximum penalty of life imprisonment. I note that s 233B has since been repealed with serious drug offences now found in Pt 9.1 of the Criminal Code.

8. The proceeds offence charged under s 400.3(1) of the Criminal Code carried a maximum prescribed penalty of 25 years imprisonment.

9. The applicants were sentenced on 3 September 2010 as follows:

“(1)   Mato - 12 years and 6 months imprisonment for the proceeds of crime offence, to date from 9 April 2008; and 26 years and 9 months imprisonment for the conspiracy [offence] to date from 9 October 2011. The effective sentence is 30 years and 3 months imprisonment. His Honour specified a non-parole period of 19 years to date from 9 April 2008 with the Applicant eligible for release on parole on 8 April 2027.

(2)   Rusu - 10 years imprisonment for the proceeds of crime offence, to date from 9 April 2008; and 27 years imprisonment for the conspiracy offence to date from 9 January 2011. The effective sentence is 29 years and 9 months. A non-parole period of 18 years and 10 months was imposed to date from 9 April 2008 with the Applicant eligible for release on parole on 8 February 2027.” (Crown Submissions at [3]).

Grounds of Appeal

10. The applicants seek leave to appeal against the sentences imposed on them.

11. In his Grounds of Appeal dated 3 June 2011, the applicant, Zoltan Mato, relied upon the following grounds:

3.1   The sentences were manifestly excessive and were not “just and appropriate” to the totality of the offending behaviour.

3.2   The trial judge erred in not fully cumulating the sentences for the conspiracy and money laundering offences.

12. Leave was sought and granted at the hearing of the application on 6 October 2015 for the applicant Mato to rely upon an additional ground of appeal in the following terms:

3.3   The applicant has [a] justified sense of grievance given the sentence imposed upon the co-applicant and the principle of parity: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462.

13. In his Grounds of Appeal filed 21 March 2014 the applicant, Marius Rusu, relied upon the following grounds:

1   The sentencing judge erred in the assessment of the seriousness of the offences committed by the applicant.

2   A miscarriage of justice resulted from disparity of sentence.

3   The sentencing judge erred in applying the totality principle.

Facts

14. The factual circumstances constituting and surrounding the offences were summarised in some detail in the Crown’s written submissions as follows:

“4.   The Applicants conspired together and with others, including Mathew Stockwell (“Stockwell”) to import a commercial quantity of cocaine into Australia. Between January 2005 and August 2006 inclusive there were six successful importations. While the cocaine was never recovered, the evidence established that the Applicants imported at least 209 kilograms of the drug.

5.   The Applicants recruited Stockwell, who was the Director of International Freight Forwarding and Sales at Stockwell International Pty Limited, an international logistics company owned by his father, to participate in the conspiracy. Stockwell was introduced to the Applicants by Adam Ballard (“Ballard”) who Stockwell knew through his local football club. Ballard had on occasions supplied marijuana to Stockwell which Stockwell and his wife sold to others. The Applicants were introduced to Stockwell as “Daniel;” (Zoltan Daniel Mato) and “Mark” (Marius Rusu). Thereafter he called them “Dan” and “Mars”.

6.   Stockwell was in a position to contribute to the conspiracy because of his position in the company. His role was to provide the paper work (and other services) necessary to enable the drugs to be imported into Australia undetected. The Applicants paid Stockwell approximately $1.4 million in total for his involvement.

7.   Stockwell participated and assisted the Applicants in six successful importations of cocaine from Los Angeles, United Stated of America. These occurred as follows:

(1)   February 2005 (the “first importation”);

(2)   July / August 2005 (the “second importation”);

(3)   August / September 2005 (the “third importation”);

(4)   February / March 2006 (the “fourth importation”);

(5)   April / May 2006 (the “fifth importation”); and

(6)   July / August 2006 (the “sixth importation”).

8.   In addition, in 2004 Stockwell was also involved with the Applicants in preparations which were undertaken in respect of an initial importation from Chicago. However this importation did not ultimately occur because of a concern that Mato had about the quality of the cocaine.

9.   In essence, the modus operandi of each of the importations was as follows:

(1)   The Applicants provided Stockwell with what was referred to as a “hot phone”.

(2)   The Applicants, usually Rusu, made contact with Stockwell on this “hot phone” to arrange a meeting which was attended by all three.

(3)   At the meeting, there was discussion as to the quantity of cocaine that was to be imported. With the exception of the fourth importation (102 kg), the quantities involved were between 20 and 50 kg on each occasion.

(4)   As a result of the information that was provided to him at the meeting, Stockwell would prepare false freight documentation. This documentation was based on previous shipments of legitimate goods handled by Stockwell International for legitimate businesses. Stockwell then provided this false freight documentation to the Applicants. The Applicants provided Stockwell with the funds to cover airfreight and clearance charges.

(5)   One or both of the Applicants, together with other members of the conspiracy, travelled to Los Angeles with the false freight documentation.

(6)   While in Los Angeles, either Mato or Rusu sent a coded text message to Stockwell’s “hot phone” advising him that the cocaine had been delivered to the Universal Air Cargo (“UAC”) depot in Los Angeles. UAC is an international freight forwarding company that facilitates the transport of international freight by air and sea globally and with whom Stockwell International had dealings.

(7)   Stockwell then tracked the progress of the shipment until it arrived at UAC’s depot at Botany in Sydney. In particular, Stockwell looked out for pre-alerts, which are documents that are faxed to Stockwell International by UAC so that Stockwell International can start the customs clearance process. Upon receipt of the relevant pre-alert, Stockwell arranged for the customs clearance process to be commenced.

(8)   Once the shipment was available for collection from UAC’s Botany depot, Stockwell collected it (or arranged for it to be collected by another Stockwell International employee) and advised the Applicants of that fact by telephone. In the case of the first two importations, Stockwell took the shipment to an address at Birkenhead Point that was associated with the co-conspirator Moradien. Stockwell took each of the subsequent shipments to his own residence at Appin.

(9)   Although Stockwell was not present at the unpacking of the cocaine the subject of the first two importations, he was present and assisted the Applicants with the unpacking of each of the subsequent shipments. Those occurred at his residence in Appin near Campbelltown, with the Applicants taking all of the cocaine away with them.

(10)   In the days after the Applicants had taken possession of the cocaine, they contacted Stockwell to arrange a further meeting at which they paid him for his role in the particular shipment. Stockwell did not receive the agreed payment in respect of the fourth importation because a person known to the Applicants convinced Stockwell to reinvest in the importations in order to retrieve their money. He did so.

(11)   Stockwell was paid approximately $1.4 million by the Applicants during the course of the conspiracy for his involvement in the importations.

10.   After the sixth importation Stockwell withdrew from the arrangement with the Applicants but later continued to import cocaine with Moradien and Sparos.

11.   The evidence of the unexplained wealth which is relevant to the proceeds of crime offences, is also circumstantial evidence which supports the conclusion that the Applicants were involved in a conspiracy to import cocaine.

12.   Mato and Rusu laundered $870,000 through the business accounts of Terry Hogan Prestige Cars with the assistance of Anthony Hogan, $615,000 of which was ultimately paid into accounts in the name of Mato, his wife or his limousine business.

13.   Despite the Applicants and associated entities only having modest legitimate sources of income, they spent large sums of money (often in cash) on motor vehicles and on luxury goods ….

14.   In relation to Mato this includes:

(1)   Between July 2004 and October 2007, Mato and his wife purchased 15 motor vehicles from Terry Hogan Prestige Cars for a total amount of $1,568,740. That amount included cash payments totalling $1,066,240 …;

(2)   Between April 2006 and February 2007, Mato spent an additional $336,776 in respect of the purchase and modification of two Chrysler motor vehicles and a further $361,843 on the purchase and modification of a Hummer motor vehicle in relation to his limousine business …; and

(3)   Between January 2004 and September 2007, Mato and his wife spent $179,691 on furniture, jewellery and designer goods, cosmetic services, the deposit on the purchase of commercial premises and building and landscaping services predominantly paid for in cash ….

15.   In relation to Rusu this includes:

(1)   The purchase of various motor vehicles from Terry Hogan Prestige Cars in the amount of $731,000 of which $545,500 was paid in cash …;

(2)   Purchase of a Hummer motor vehicle and the subsequent expenditure on the vehicle of $339,971 between 5 April 2006 and 15 February 2007 …;

(3)   Personal expenditure of $82,074, excluding day to day living expenses …’

(4)   The demolition and partial construction of a house at Matraville in the amount of $69,611 …

16.   In addition, although unquantified at trial, the Applicants necessarily incurred considerable travel and other associated expenses relating to their regular travels to and from Los Angeles over the period of the conspiracy. They paid Stockwell $1.4 million for his involvement.”

15. In relation to the defence case, apart from the first importation, neither of the applicants disputed at trial that one Mathew Stockwell was involved in the importation into Sydney of cocaine from Los Angeles. Stockwell was a director of International Freight Forwarding and Sales at Stockwell International Pty Ltd, an international logistical company. The applicants’ defence was that Stockwell had falsely implicated them as being part of the conspiracy and importation.

16. The applicant Mato gave evidence at trial.

17. Mato’s case was that he was not involved in the conspiracy with Stockwell or any other persons in any conspiracy to import cocaine. His evidence was that he had not met or entered a relationship with Stockwell until April 2006 at which time the relationship was solely related to his limousine business, during which business he exported vehicles through Stockwell International to the United States to be “stretched” and then returned to Australia.

18. The applicant Rusu did not give evidence at trial.

Remarks on Sentence

19. The sentencing judge set out in a detailed summary the facts relating to the six importations. The summary included, in particular, his Honour’s determination as to the particular quantities of cocaine the subject of each importation. At page 3 of the Remarks on Sentence his Honour stated:

“It has been submitted on behalf of the offenders that the verdict of itself does not establish the quantity alleged by the Crown; that is technically so. I am required to make findings of fact, as I said, consistent with the verdict of the jury, and when I look at the totality of the evidence I, too, accept the essence of Stockwell’s account beyond reasonable doubt. That does lead to my conclusion – and I will elaborate later – that the quantity imported pursuant to the conspiracy was in the order of at least 209 kilograms, and I make that conclusion notwithstanding the submissions to the contrary.”

20. The sentencing judge noted at p 4 that, prior to February 2003, the applicants had enlisted Adam Ballard to speak with Stockwell with a view to securing Stockwell’s cooperation in regard to the importation of cocaine from the United States, and at that point the offender Mato had a long-standing friendship with Alan Moradien (p 4). Stockwell was in a position to contribute to the conspiracy because of his position in Stockwell International Pty Ltd. He participated and assisted the applicants in the six importations from Los Angeles.

21. In relation to the dealing charges (Count 2), the sentencing judge also set out his factual findings including a finding at p 16 in these terms:

“That the applicants made payments to Stockwell in the order of $1.4 million for purposes connected with the conspiracy, that is, to facilitate Stockwell’s assistance in the importation of cocaine, pursuant to the conspiracy.”

22. His Honour found that the applicant Rusu dealt with the proceeds of cocaine sales well in excess of $1 million, namely, in the order of at least $2.5 million, including the money that he paid to Stockwell (p 17).

23. The applicant Mato was sentenced on the basis that he had dealt with the proceeds of crime in the order of $4 million, including the money paid to Stockwell (p 17).

24. His Honour noted at p 17 that there were no common elements regarding the conspiracy offence and the dealing charges of the type referred to in Pearce v The Queen [1998] HCA 57; 194 CLR 610, but stated at pp 17-18:

“… Nevertheless I accept there is some commonality in the sense that the offenders dealt with the proceeds of the cocaine that was distributed as a consequence of the importations, which was the object of the conspiracy. Indeed the $1.4 million paid to Stockwell as a reward for Stockwell’s efforts that was paid directly in relation to the conspiracy itself.”

25. His Honour additionally observed at pp 18-19:

“The offenders were also clearly motivated by financial gain and it is obvious that they were motivated by greed, pure greed. The dealing illustrated the financial gain that was the yield of the conspiracy, and I accept that financial gain itself is inherent in the conspiracy offence. One would expect this type of conspiracy to involve financial gain.

While I accept nevertheless that there is a separate and distinct criminality involved, it does seem to me that the areas of commonality that I have identified should partly inform my discretion as to the degree of accumulation that is appropriate.

I am also mindful that in one sense there is a stronger nexus between the $1.4 million paid to Stockwell in the conspiracy than with the other monies dealt with by the offenders, which has a more tenuous connection with the conspiracy. Additionally, the offender Mato, on the evidence, dealt with substantially more money than the offender Rusu, but I do acknowledge that all the monies, on the evidence, have derived directly or indirectly from the conspiracy.

I mention those matters to indicate there are some subtleties involved here.

The moneys dealt with were the proceeds of the cocaine sales and sales made as a direct consequence of the conspiracy. The fact is that both offenders well knew the source of the money. I have regard, when looking at the objective gravity of the dealing charges, to the duration of the transactions, the timeframe in which the transactions occurred, and particularly to the amount of money and property involved in the transactions. I appreciate that the amount is not decisive as to criminality but it remains a very significant feature of criminality.”

26. The sentencing judge had regard to the matters required to be taken into consideration under Part 1B of the Crimes Act 1914 (Cth), including, in particular, those specified in s 16A of the Criminal Code. His Honour noted that the maximum sentence for the conspiracy offence was life imprisonment and the maximum for the dealing charges was 25 years imprisonment.

26. His Honour proceeded at pp 19-20:

“I am content to deal with the conspiracy matter on the basis that Moradian and Sparos were some of the architects of the conspiracy and operated at a slightly higher level than the offenders. Certainly the monies were made available to Stockwell after Stockwell disengaged from the offenders supports that type of hierarchy. I am unable to accept, however, that the offenders can be fairly described, as they were in submissions at one point, as ‘workers’ in the conspiracy. They played, on any view, an extremely important and active role in directly facilitating the importation of a very substantial amount of cocaine, using Stockwell.

They were in fact principals in a sophisticated conspiracy. As I said, they were clearly motivated by greed. They must be sentenced for what they did and for what they did in combination with others. They must be sentenced having regard to the object of the conspiracy. I find that the offenders in fact played a crucial role as principals in the organisation, and I accept the Crown’s written submissions as to the role they played and their role included the recruitment of others, particularly Stockwell, the provision of explicit instructions and the setting of timetables. They had clear knowledge of the role of others involved in the network. Their role involved frequent travel to the United States of America. Their role involved the control of the cocaine that was imported. It involved the payments of $1.4 million to Stockwell, and I have regard to the obvious financial benefits they received. I have regard to the duration and scope and high level of sophistication of the conspiracy.”

28. In addition, his Honour took into account other relevant matters which included the fact that a number of persons were involved in the combination apart from the two offenders, the extremely high level of organisation involved in the criminal conspiracy and the totality of the acts performed by the offenders and other conspirators. His Honour, as earlier noted, also had regard to the quantity of cocaine imported. Although not decisive of the objective gravity of the offending, his Honour noted that the quantities involved were nonetheless an important feature to be taken into account. By reason of their respective roles, the applicants were said to have had direct knowledge of not only what was agreed to be imported but what was actually imported pursuant to the conspiracy (p 20).

29. On the issue of the objective gravity of the offending, his Honour observed at p 23:

“In relation to the objective gravity I cannot, on the evidence differentiate between the two offenders. I consider the objective gravity of each to be equal to the other. It is a fact that Mr Mato has slightly more entitlement to leniency because of his slightly more favourable criminal antecedents. In relation to the dealing charges, the principal difference in criminality relates to the amount involved in each case.”

30. His Honour determined that the criminality of the offending was at a very high level but declined to find that the conspiracy offence was a “worst case”, stating at p 23:

“… I do accept that the criminality is at a very high level, approaching worst case but not worst case.”

31. His Honour also identified and considered relevant subjective factors. The applicant Mato’s criminal antecedents were taken into account, they involving, his Honour noted, very minor matters of assault and malicious damage. The applicant Rusu had convictions of supplying a prohibited drug and possession of prohibited drug. His Honour took into account the fact that the convictions in respect of those offences had occurred a long time before, namely, in 1997 and 1998, and that they were not “particularly significant matters”. He noted that the applicant Mato should be dealt with more favourably in those terms than the applicant Rusu: Remarks on Sentence at p 22.

Application for Leave to Appeal: Zoltan Mato

Ground 3.1: The sentences were manifestly excessive and were not "just and appropriate" to the totality of the offending behaviour

32. The applicant, Zoltan Mato, relied upon written submissions dated 3 June 2011 and further written submissions dated 30 September 2015. Mr David Dalton SC appeared on his behalf in this application and made oral submissions.

33. At the hearing of the application leave was sought and granted to file in court the affidavit of Lionel Peter Kramer sworn 1 October 2015. There was no objection to the affidavit being read in the event that this Court intervened and was required to re-sentence the applicant Mato.

34. It was submitted on Mato’s behalf that the sentences imposed on him were manifestly excessive and were not "just and appropriate" in respect of the totality of the offending conduct, with reference made to Johnson v R (2004) 78 ALJR 616 at [18].

35. The net effect of the sentences imposed on the two applicants was set out in a table included in the written submissions as follows:

PROCEEDS	CONSPIRACY	ACCUMULATION	NON PAROLE
MATO	12.5 YRS FROM 12/4/2008 EXP 8/10/2020	26 YRS 9 MTHS FROM 9/10/2011 EXP 8/7/2038	3.5 YRS	19 YRS EXP 8/4/2027
RUSU	10 YRS FROM 9/4/2008 EXP 8/8/2018	27 YRS FROM 9/1/2011 EXP 8/1/2038	2 YRS 9 MTHS	18 YRS 10 MTHS EXP 8/2/2027

36. It was contended that the head sentence imposed with respect to the conspiracy count was excessive.

37. It was initially submitted that in addition to the sentences being excessive, they were well outside of the range for offences of the same kind, and that his Honour failed to consider comparative sentences, though these submissions were withdrawn in the further written submissions.

Ground 3.2: The trial judge erred in not fully cumulating the sentences for the conspiracy and money laundering offences

38. It was submitted that the sentencing judge erred in ordering:

“... the significantly larger conspiracy offences to commence at the end of the accumulation periods in the case of each appellant:

(a)   3 years and six months in the case of Mato; and,

(b)   2 years and nine months in the case of Rusu.”

39. The period of accumulation was said to be erroneous having regard to the fact that the criminality associated with the conspiracy was one and the same as that involved in the money laundering offences in respect of monies dealt with during the period of the conspiracy. In that regard it was argued that there had existed “an overt act of conspiracy” pursuant to which the appellants received and dealt with the proceeds of their offending: Written Submissions for Mato at [364] – [365].

40. In his oral submissions in relation to Grounds 3.1 and 3.2, Mr Dalton emphasised the importance of the question of accumulation: T 2-3. After citing well-established principles, it was submitted that the sentencing judge had made an error of the House v The King (1936) 55 CLR 499 kind and that as a consequence he adopted “… a far too high level of accumulation …: T 3:12. The submission continued:

“… indeed, the principal submission is that the criminality in relation to the conspiracy to import in fact subsumed the dealing offence in the manner in which this trial was run, in the particular circumstances of this trial.” (T 3:12-15)

41. The money the subject of the “dealing” charges was said to have been “… an intrinsic part of the Crown case against the applicant in respect of the conspiracy to import”: T 3:35-37.

42. In these circumstances it was argued the total accumulation of the sentences would not have involved the applicants receiving a discount in what was a case of multiple offending, with reference made to R v Knight (2005) 155 A Crim 252 at [112].

43. It was further submitted that by failing to pay proper attention to the principle of totality, the overall sentence was ultimately a crushing one: R v MAK [2006] NSWCCA 381 at [17]; R v Rossi (1988) 142 LSJS 451 at 453.

44. For those reasons, it was contended that even if the sentencing judge was not in error in respect of the head sentences imposed for the conspiracy count, the sentences for those counts should have been accumulated with the money laundering sentence such as to yield a non-parole period of two-thirds of the total sentence in each case: Written Submissions for Mato at [370].

45. In the further submissions of 30 September 2015 the applicant Mato adopted the submissions made on behalf of the applicant Rusu in relation to grounds 3.1 and 3.2 as set out in paragraph 13 of the written submissions for Rusu dated 21 March 2014. Paragraph 13 of those submissions alleged a breach of the parity principle citing the High Court’s decisions in Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 and Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 339. The submission was that the applicant Mato had a “justified sense of grievance given the sentence imposed upon the co‑applicant and the principle of parity”.

46. The submission did not seek to advance a conventional ground based upon parity principles in relation to the sentencing of co-offenders, but to raise a very narrow point which was limited to an alleged failure to have “balanced out” the co‑offender Rusu’s prior criminal record involving drug offences. Given this somewhat unusual and limited point it is as well to set out in full the submissions made in relation to Ground 3.3 as follows:

“9.   … Whilst it is accepted it was appropriate to give the applicant a longer sentence for the dealing offence than Rusu given the applicant was found to have dealt with a greater sum of money, it is submitted any discrepancy in that regard should have been balanced out by Rusu’s prior criminal record involving drug offences.

10.   It is submitted in this regard that his Honour erred (at Remarks on Sentence … p 22.2) in finding that the offender Rusu’s convictions for supplying prohibited drug and possess prohibited drug were not particularly significant matters because they were a long time in the past, albeit being relevant in denying him [Rusu] leniency.

11.   It is submitted that the fact that an offender has prior drug offences when sentencing for significant drug offence (and dealing in the proceeds of same) is a significant matter in the sentencing process. Perhaps his Honour was distracted by the time lapse between those prior offences and the date of the sentencing proceedings when they were in fact only five and six years respectively prior in time to the actual commencement of the subject criminal activity the subject of the charges at the beginning of 2003.

12.   It is noted that his Honour did say at Remarks on Sentence … p 22.3 that these prior offences would mean that the applicant should be dealt with more favourably in those terms than Mr Rusu, but it is submitted that this is not borne out by the actual sentences imposed upon the dealing offence, even given the differing amounts of money involved with respect to the two offenders.

13.   Further, this was particularly apparent regarding the sentences imposed upon the conspiracy offence with respect to which his Honour found (at …23.3) that their objective criminality was equal to each other.

14.   His Honour therefore says that the applicant has ‘slightly more favourable antecedents’. It is submitted that it was an error and led to only a slight variation in the sentences accordingly as represented by a difference of only three (3) months, the applicant receiving a sentence of 26 years (9) months on the conspiracy count as opposed to 27 years for the co-applicant.”

Principles

47. I set out below relevant principles concerning the exercise of this Court’s supervisory jurisdiction in appeals against sentence which may be summarised as follows:

1. In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a re-hearing of the plea in mitigation: Romero v R [2011] VSCA 45; 206 A Crim R 519 at [11]; Zreika v R [2012] NSWCCA 44 at [81] per Johnson J.

2. Sentence appeals are not the occasion for the revision and reformulation of the case presented below: Romero, supra, at [11].

3. By reason of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not, advanced on the plea: Romero at [11]; Zreika at [81].

4. There is a need for exceptional circumstances before this Court will entertain arguments that could have been put but were not advanced on the plea: Zreika at [81]. Exceptional circumstances include those where it can be shown there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero at [11]. In this latter respect, Johnson J in Zreika, supra, at [82] further observed:

“In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing judge) may have been overlooked by defence counsel and the sentencing judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender’s favour on sentence. As Warren CJ said in Bayram v The Queen ([2012] VSCA 6) at [29], it may ‘render a serious injustice’ if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.”

Consideration of Ground 3.1: Manifest Excess

48. The criminality of the conspiracy offence associated with the six importations referred to above at [14] was, as the sentencing judge stated, at a very high level approaching that of the worst case category.

49. No challenge was made in the written or oral submissions for the applicant Mato to the relevant factual findings made by the sentencing judge and no submission was made that his Honour erred in the application of relevant sentencing principles.

50. The submissions on sentence for the applicant Mato emphasised that Moradien and Sparos were “far bigger players”. No attempt was made before the sentencing judge to suggest that there was any relevant distinction to be made between Mato and Rusu.

51. Whilst it was contended that the sentences imposed were manifestly excessive, the contention was unsupported by reference to sentences imposed in comparable cases.

52. The Crown prepared a schedule of comparative cases for the sentence hearing which was relied upon by it before the sentencing judge. The schedule of cases was not challenged. The Crown submitted that the schedule of cases established the contrary position to that argued for the applicant: Crown Submissions at [169].

53. Mr Dalton in his oral submissions concentrated largely upon the issue of accumulation as the “principal ground” for the application.

54. I do not consider that the sentences imposed were manifestly excessive. Each of the six importations was part of a carefully planned criminal enterprise involving very significant quantities of cocaine (at least 209 kilograms of the drug in total) imported into Australia from the United States. The six importations were undertaken between February 2005 and July/August 2006. As previously mentioned, the material facts concerning each importation were detailed in the Remarks on Sentence at pp 5-8.

55. Although the applicant Mato had a modest legitimate source of income, he spent large sums of money (often in cash).

56. He, as earlier noted at [14], dealt with proceeds of crime from the sale of cocaine in the order of $4 million. As previously stated, the sentencing judge determined:

“The offenders were also clearly motivated by financial gain and it is obvious that they were motived by greed, pure greed.” (ROS at p 18)

57. His Honour also observed:

“the monies dealt with were the proceeds of the cocaine sales and sales made as a direct consequence of the conspiracy. The fact is that both offenders well knew the source of the money. I have regard, when looking at the objective gravity of the dealing offences, to the duration of the transactions, the timeframe in which the transactions occurred and particularly to the amount of money and property involved in the transactions. I appreciate that the amount in itself is not decisive as to criminality but it remains a very significant feature of the criminality.” (ROS at pp 18-19)

58. His Honour also determined that both applicants were principals “in a sophisticated conspiracy”:

“… I find that the offenders in fact played a crucial role as principals in the organisation, and I accept the Crown written submissions as to the role they played and their role included the recruitment of others, particularly Stockwell, the provision of explicit instructions and the setting of timetables. They had clear knowledge of the role of others involved in the network. Their role involved frequent travel to the United States of America. Their role involved the control of the cocaine that was imported. It involved the payments of $1.4 million to Stockwell, and I have regard to the obvious financial benefits they received. I have regard to the duration and scope and high level of sophistication of the conspiracy.” (ROS pp 19-20)

59. In addition, his Honour had regard to the number of persons involved in the combination, the extremely high level of organisation and the totality of the acts performed by the applicants and the other conspirators. In addition, his Honour had regard to the quantity of drugs involved and their direct knowledge of not only what was agreed to be imported but what was actually imported pursuant to “unrestrained greed” (ROS pp 20-21).

60. His Honour further noted that there was no evidence of contrition by the applicants, nor was there any evidence of any acceptance by them of responsibility. He found that it was unlikely that either offender would re-offend by reason of his Honour’s proposal to impose a “deterrent sentence” (ROS p 21). He found that the prospects of rehabilitation of the applicants to be good (ROS p 21).

61. His Honour then turned to consider the criminal antecedents of each of the applicants (ROS pp 21-22).

62. On the basis of the matters set out above, in my opinion, the ground contending that the sentences imposed were manifestly excessive is without merit. Ground 3.1 should be dismissed.

Consideration of Ground 3.2: The trial judge erred in not fully cumulating the sentences for the conspiracy and money laundering offences

63. This ground (presumably intended as a submission that the sentences ought to have been made wholly concurrent), was based upon the contention that the criminality associated with the conspiracy “was one and the same as that which applied to the money laundering offences and was dealt with during the period of the conspiracy …”: Written Submissions for Mato at [365].

64. As noted above, a similar ground was relied upon by the applicant Rusu. There is, in my opinion, no merit to this ground. Mr Dalton’s oral submission that the money involved in the money laundering offences was “an intrinsic part of the Crown case in respect to the conspiracy to import” does not, with respect, bring into account both the fact and the significance of the extensive activities of the applicants involved in the commission of the money laundering offences.

65. The nature and scale of the activities undertaken in laundering the money generated by the importations of cocaine were significant. They were undertaken by each of the applicants. Though related to the monies generated by the conspiracy offence separately, there were a series of transactions and associated acts that constituted means by which the money laundering offences were committed.

63. In that respect, both applicants paid large amounts of cash to Anthony Hogan. Those monies were then laundered through the business accounts of Terry Hogan Prestige Cars and paid to accounts nominated by the two applicants.

64. As the Crown’s written submissions state at [117]:

“Between 13 July 2006 and 29 June 2007, the two applicants funnelled a total of $870,000 through the business of Terry Hogan Prestige Cars, $615,000 of which was ultimately paid into accounts nominated by the Applicant Mato.”

68. Mato was party to a large number of transactions involving the purchase of motor vehicles from Terry Hogan Prestige Cars. These involved payments in cash. Eight cars were sold back to Terry Hogan Prestige Cars within a relatively short period of time. In relation to three of those vehicles, at the time of sale back, the applicant Mato received a greater amount of money than the amount originally paid for them. The inference the Crown relied upon was that some of these transactions were undertaken in order to launder money. The total amount of purchases was $1,568,740: Crown Submissions at [119].

69. These matters, the Crown submitted, distinguished the applicants’ cases from Dela Cruz v The Queen [2010] NSWCCA 333; Thorn v The Queen [2009] NSWCCA 294 and Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463, each of which is discussed below at [115]-[122]. As the Crown correctly observed in her oral submissions, the laundering of the money was effected by the applicants “hiding it, changing the source etc”: T 21:10-12.

70. The conduct of the applicants in relation to the money laundering accordingly involved added criminality over and above the conspiracy offence. The Crown properly acknowledged that there was overlap between the conspiracy offence and the money laundering offences a fact recognised by the substantial concurrency of the sentences: T 21:15-20.

71. The extent of concurrency, as the Crown observed, was a matter for evaluation by the sentencing judge. His Honour was alert to that fact and allowed for the “overlap”. I accept the Crown’s submissions that additional criminality attached to the money laundering offences over and above that involved in the conspiracy offence. The extent of concurrency and accumulation were matters for assessment and evaluation by the sentencing judge. No error, latent or patent, was established as to the level of concurrency and accumulation determined in respect of the sentences imposed.

72. In my opinion there is no merit to Ground 3.2 and it should be dismissed.

Consideration of Ground 3.3: Parity

73. As noted above, the parity argument was based on a claimed need for the sentencing judge to have offset Rusu’s criminal record as against the fact of the applicant Mato having dealt with a greater sum of laundered money than the applicant Rusu. The failure to have done so is said to have constituted an error.

74. It has been observed in a number of cases that this Court will be cautious before determining that one co-offender has a justifiable sense of grievance where the same judge has sentenced each. The various authorities are gathered in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96]. The present case differs from many parity cases by reason of the fact that the “grievance” arises in respect of one aspect of the sentencing exercise, namely, the extent of the significance attached by the sentencing judge to Rusu’s past offending, in a case in which there was no dispute but that their roles in the criminal conspiracy offence were indistinguishable.

75. Criticism was directed at the “finding” made by the sentencing judge in relation to the convictions of the applicant Rusu for prior offences, being one offence of supplying a prohibited drug and another offence of possess prohibited drug. The criticism was that the “finding” of the sentencing judge in respect of these two offences was that they were not particularly significant matters because they were a long time in the past, although they were held to be relevant in denying him leniency. Such offences were said to have in fact been “significant” in the sentencing process: Further Written Submissions for Mato at [11]. For reasons discussed below, I disagree with that submission.

76. The sentencing judge had evidence as to Rusu’s prior convictions for the two drug offences. The question is whether, as contended for the applicant Mato, though Mato dealt with a greater amount of money than Rusu, that fact should have been counter‑balanced taking into account Rusu’s prior offences.

77. The Crown responded to the applicant’s submissions on parity by observing that it was not suggested at the sentence hearing that the role of the applicant in relation to the conspiracy offence was in any way distinguishable.

78. The significance to be attached to the past offending by Rusu was a matter of evaluation and the weight to be attached to it was an issue that was encompassed in the sentencing discretion. No error of fact or of principle was identified in the submissions for the applicant Mato in terms of his Honour’s conclusion as to the significance of Rusu’s past drug offences.

79. It is to be noted that Rusu’s prior drug offences were at the very low end of offences involving the supply and possession of a prohibited drug. His criminal history included the following particulars of offence and sentence:

5/12/1997	Supply Prohibited Drug	Community Service Order without Cond: 100 hours (DTBD)
5/12/1997	Possess Prohibited Drug	Fine: $400 costs – court: $51 (DTBD)

80. The Remarks on Sentence establish that the sentencing judge gave specific attention to Rusu’s criminal history and undertook an assessment as to the significance, if any, to be attached to it. Although his Honour concluded that his prior offences did not entitle him to leniency, it was not thereby incumbent upon the judge to have concluded that the prior offences called for or required some counter‑balancing as contended for in this application.

81. It is to be noted that the submissions in relation to what was styled a “parity” point failed to identify any error or misapplication of principle based on parity or other grounds. As earlier discussed, his Honour carefully evaluated the role and activities of each of the applicants. Whilst the applicant Rusu’s prior convictions were noted by the sentencing judge to have occurred “a long time ago”, his Honour’s observation that “they are not particularly significant matters” has not, in my opinion, been established as erroneous in any material respect. The Remarks on Sentence at p 22 also indicate that his Honour was mindful of the fact that the applicant Mato had a more favourable prior history and took that into account as but one of a number of matters to be considered before determining the sentences to be imposed.

82. I do not consider there is any substance in this ground. Ground 3.2 should accordingly be dismissed.

Application for Leave to Appeal: Marius Rusu

Ground 1: The sentencing judge erred in the assessment of the seriousness of the offences committed by the applicant

Ground 2: A miscarriage of justice resulted from disparity of sentence

Applicant’s Submissions

83. Grounds 1 and 2 for the applicant Rusu, it was stated, could be considered together. I proceed upon that basis.

84. The applicant’s submissions asserted error insofar as the sentencing judge equated the seriousness of the offence committed by the applicant as at the same level as the offending conduct of the applicant Mato. This argument rested upon a contention that Mato was at a higher level in the hierarchy than the applicant, that is to say, that Mato was the “boss” whereas the applicant Rusu was said to be “Mato’s lieutenant”.

85. This submission brought forward particular issues and contentions concerning the role that each had in the commission of the conspiracy offence.

86. The differences between the applicant Rusu and the applicant Mato were said to be such that the objective seriousness of their respective criminality was not at the same level.

87. I note that notwithstanding the absence of any submission or contention at the sentence hearing to that effect, it is clear from the Remarks on Sentence that his Honour nonetheless was conscious of the fact that he was required to assess the objective seriousness of the offence vis-à-vis each applicant. Having done so, his Honour in that respect concluded:

“In relation to the objective gravity I cannot, on the evidence, differentiate between the two offenders. I consider the objective gravity of each to be equal to the other ….” (Remarks on Sentence at p 23)

88. Plainly his Honour assessed the objective gravity of the conspiracy offence of each offender before determining that the gravity of their offending was equal. As indicated above, no submission was made for the applicant Rusu to the sentencing judge either to the effect that Rusu’s particular role in the conspiracy was at a different level (that is, at a lower level) than that of the applicant Mato, or that, on the evidence, the objective gravity of the applicant’s offence should be found to have been less than that of his co-offender, Mato.

89. In oral submissions Mr Odgers SC, for Mr Rusu, acknowledged that in this application he was required to confront the difficulty that the submissions for his client at the sentencing hearing did not raise or contend for such a “difference” in the respective positions of the two applicants.

90. Mr Odgers addressed Grounds 1 and 2 together. He noted that if the applicant failed on Ground 1 (assessment of the seriousness of the offences), then Ground 2 (the parity ground) would also fail.

91. Mr Odgers accepted that it was open to conclude that his client had been actively involved in the conspiracy and had obtained large amounts of money from it. However, it was argued that the applicant Rusu was the one who generally performed tasks such as maintaining phone contact with Stockwell, making money payments and giving Stockwell amounts of cocaine. The applicant Mato on the other hand, it was contended, was “plainly” higher in the hierarchy than the applicant: Written Submissions for Rusu at [9]. There was said to be evidence of Stockwell that pointed to Mato being the “boss” and that Rusu was his “lieutenant”. The only matters relied upon to support this contention were the following matters set out in the written submissions with references to evidence given at the applicants’ trial by Matthew Stockwell:

“-   Stockwell ‘always thought Dan was the boss’ (T 199.15) although there was one occasion where he saw Mato and the applicant arguing and the applicant [Rusu] appeared to ‘lay down the law to’ Mato – a subsequent conversation indicated that the applicant had concerns about Sparos and Moradien (T 199.30).

Stockwell told Sparos and Moradien that Mato had told him that ‘he was the boss’ (T 254.32). Sparos told Stockwell that it was Mato who worked for them (T 254.32, see also 250.17).

In conversations between Stockwell, Mato and Rusu, it was contended that it was usually Mato who did the talking about the importation of drugs (see T 152.50-153.25, 167.45, 168.15, 190, 197.45-198.20, 199-200).

Significant decisions were made by Mato and not the applicant (see, for example, T 156.30, 238.28).

When Stockwell spoke to the applicant alone, the applicant Rusu would not make decisions and indicated that Stockwell should speak to Mato (see, for example, 238.35).

Mato would give instructions to the applicant (see, for example, T 187.50-188.1, 199.28).”

92. It was submitted that these differences between the applicant Rusu and Mato “required the judge to find the objective seriousness of their criminality was not at the same level”: Written Submissions for Rusu at [11].

93. In his oral submissions, Mr Odgers frankly conceded that, in the absence of any submissions having been made to the sentencing judge which sought to differentiate the objective criminality of the applicant Rusu from that of the applicant Mato, there was difficulty in now pursuing such a line of argument. In that respect he observed:

“Of course the argument against me will be well [the sentencing judge] wasn’t taken to that material and it may well be that makes it hard for me to show error if it’s not something that’s pushed hard, pushed before him, to say well you should take it into account and if it wasn’t done then it’s difficult for me perhaps to persuade this Court he should have taken that material into account.

But I will make the submission on the basis he heard the trial and he heard all the evidence and in my submission there was considerable evidence pointing to the conclusion that the applicant was under the instructions of Mato, that Mato was from his point of view the boss.” (T 11:19-30)

94. Mr Odgers submitted:

“My submission is that this Court would not apply a sort of quasi Rule 4 type proposition that the applicant is cut out from a submission that he was inappropriately dealt with as effectively a general, as distinct from somebody lower down the hierarchy.” (T 10)

95. Mr Odgers formulated the following four points in the course of his oral submissions:

1. The sentencing judge sought to look for reasons to treat the applicants separately and in the absence of any material in that regard, he treated them both as principals. It was submitted that this involved an erroneous approach as the onus was on the Crown in relation to what was asserted to be “an aggravating factor” – that the Crown had the onus of proving beyond reasonable doubt that Rusu was a principal.

2. If the applicant was unsuccessful in establishing error in terms of point (1) above, then it was argued that the sentencing judge failed to take into account relevant factors, namely, the type of matters referred to in para [9] of the applicant’s written submissions (being the matters extracted in para [87] above).

3. That in light of the material summarised in [9] of his client’s written submissions, the conclusion that he was a principal at the same level as Mato was unreasonable in the sense of House v The King (1936) 55 CLR 499.

4. In relation to an offence involving a conspiracy to import drugs, whilst it is relevant to look at what was done by the parties to it, at the end of the day it is well-established that the offender’s position in the hierarchy is certainly a relevant, and indeed an important consideration in determining the objective seriousness of the offence, the culpability of the offender, and the appropriate penalty: T 11.

96. It was submitted that the sentencing judge focussed exclusively on what the two applicants did in terms of their conduct. That was said to have run the risk of falling into error in failing to make an assessment of whether or not there is evidence raising a doubt on the question, “Was one of them effectively giving instructions to the other?”: T 11-12.

Crown Submissions

97. The Crown submitted that Ground 1 is to be considered in light of the matters established in evidence as to the modus operandi of each of the importations and the defence case at trial, reproduced above at [14].

98. The Crown noted that at the sentence hearing (T 30 July 2010 at p 11) counsel for Rusu submitted that the importations (apart from the third importation) were undertaken:

“… at the behest of others that seemed to have other more responsible jobs certainly in finance and the like, the spectre of that is apparent but what’s really troubling for your Honour when your Honour determines as your Honour’s focus should be, what did these two men actually do. It is still relevant to consider whether it was doing it [sic] at their own behest as generals or doing it still with some relevant connection to the real generals and acting merely as lieutenants.”

99. In this Court it was noted by Ms Abraham QC for the Crown that there was no submission made to the sentencing judge on behalf of the applicant Rusu as to the existence of any basis upon which “… to legitimately distinguish between the two”: T 22:8-12.

100. The Crown’s written submissions identified the facts and circumstances referred to in the Statement of Facts and Circumstances dated 1 June 2010 which was relied upon by the Crown before the sentencing judge and which was said to be relevant to the sentencing of both applicants. In this Court the Crown submitted that the activities detailed in the Statement of Facts and Circumstances were activities carried out in partnership between the applicants. In that respect the Crown submitted:

“What is clear, when one is reading the evidence is that they are both involved. They are invariably together, although not always. Sometimes Mr Stockwell would give evidence that if it was one or other of them did something, can’t remember if it was Rusu or Mato. It’s because they were ordinarily there and one or other of them would do it because they were working together, in my respectful submission, in partnership.

In our submission, the application of legal principles by his Honour in making the findings he did, are unimpeachable as are the findings themselves. What has now been put is argument on appeal for the first time relying on a few page references for which it [is] said one is higher than the other, a point not taken by the counsel who had argued it below.” (T 23:4-150).

101. The Crown submitted that the particular matters relied upon at the page references set out in [9] of the submissions for the applicant Rusu in relation to the present application, do not support the proposition that Mato was clearly the boss, or somehow more senior and that Rusu was the lieutenant: T 23. The Crown submitted:

“… In fact, as my friend properly concedes, nowhere in the evidence does Mr Stockwell say, ‘I was told by Mr Mato that he was the boss’ which you’d expect if it was that sort of relationship. It wasn’t that sort of relationship. My friend says there’s instances of instructions being given, top of p 4. He gives two examples. One assumes with respect, these are the high points because this is what he is bringing to the Court’s attention …” (T 23:19-25)

102. In relation to the first two references contained in [9] of the submissions for Rusu, Ms Abraham submitted that the particular instances referred to in that paragraph are good examples of the care required to be taken, in hindsight, after the trial has happened, in making an argument based on an interpretation of facts that was not relied upon below: T 23:35-40

103. It was submitted for the Crown that the references relied upon in [9] of the written submissions for Rusu must be considered in their proper context.

Consideration: Grounds 1 and 2

104. The only evidence, Mr Odgers conceded, which was relied upon for the proposition that Mato was “the boss” were the references to the evidence extracted in paragraph [87] above. These included what Stockwell is alleged to have said to others as to who he, Stockwell, thought was “the boss” and what Stockwell allegedly told Sparos and Moradien on that aspect. That, however, was not evidence that proved the fact of whether Mato was in fact the “boss”. The other matters relied upon in paragraph [87] were at best equivocal and not determinative of whether Mato was at a higher level in the criminal enterprise. The failure of counsel for the applicant Rusu to pursue such a proposition at the sentence hearing is readily understandable. The evidence was not directed at establishing a relevant distinction as to the “role” played by each offender.

105. This is entirely consistent with the assessment formed by the sentencing judge, namely, that there was no basis to make a distinction in their roles or more particularly as to the respective gravity of their offending conduct. They were both highly active participants in a significant criminal conspiracy performing a range of functions consistent with them acting as joint participants or partners in the criminal importation. In my opinion, no error has been established in the findings made by the sentencing judge.

104. The evidence does not, in my assessment, establish that the applicant Mato was at a higher level in the “hierarchy” than the applicant. In particular, the evidence does not support the submission that there were relevant differences between the applicants Rusu and Mato which required the sentencing judge to find that the objective seriousness of their criminality was not at the same level. I accept, as submitted by the Crown, that, in essence, the two applicants acted together in the conspiracy to import a border controlled drug, cocaine, as equal partners.

105. On this basis leave to appeal in relation to Ground 1 should be refused. As earlier noted, it was accepted by Mr Odgers that the outcome in relation to Ground 2 was dependent upon the outcome of Ground 1. Leave to appeal in respect of Ground 2 should be refused.

Ground 3: The sentencing judge erred in applying the totality principle

Applicant’s Submissions

108. Mr Odgers in his written submissions noted that the proceeds of crime offence added 2 years 9 months to the overall non-parole period and sentence imposed on his client: Written Submissions for Rusu at [12].

109. He submitted that it was unreasonable (in the House v The King, supra sense) to impose that level of partial accumulation in the circumstances of this case. This submission was based upon the contention that the criminality involved in the conspiracy offence very largely comprehended the criminality of the proceeds of crime offence. It was observed in this respect that the sentencing judge accepted that all the proceeds came from the conspiracy to which the applicant and Mato were party: Written Submissions for Rusu at [13]. It was further submitted that a lesser degree of partial accumulation should have been adopted: Written Submissions for Rusu at [13].

110. Mr Odgers submitted, in essence, that if the applicants had simply been dealing with money, that is, moving money made from the importation of cocaine, then there was a real issue of principle as to avoiding “double counting”: T 17:40-45. He submitted that it was inherent in the commission of the “importation offence” that it “necessarily reflected the large amount of drugs, the large amount of money that flowed from the drugs and the bribery involved in respect of services provided by Stockwell”: T 18:1-5.

111. On this basis it was submitted that the degree of partial accumulation was “grossly excessive”. The submission in this respect was sought to be supported by reference to the decisions of this Court in Thorn v The Queen [2009] NSWCCA 294; Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463 and Dela Cruz v The Queen [2010] NSWCCA 333.

Crown Submissions

112. The Crown responded in its written submissions at [181] that the applicant’s submissions appeared to accept that it was open for there to be some degree of accumulation of the sentences and accordingly Ground 3 involved a question as to the degree of accumulation. In other words, the Crown observed that it was not suggested that the criminality of the proceeds offence was wholly subsumed by the conspiracy offence.

113. The Crown also observed that the applicant did not contend that the sentencing judge, in determining the extent of accumulation of the sentences, had incorrectly applied relevant legal principles. Rather, the complaint was with the result: Crown Submissions at [182].

114. The Crown additionally relied upon its written submissions at [171]-[174] made in respect of the applicant Mato in relation to the applicant Rusu.

115. The principle of totality was the subject of consideration by Howie J in Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]. His Honour there observed:

“… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

116. There was, no doubt, a degree of commonality in the circumstances of the offending as the sentencing judge himself recognised and stated. The sentencing exercise required the imposition of sentences that reflected the criminality involved in each offence and for a determination then to be made as to the extent of accumulation that was just and appropriate. This is what his Honour expressly did in the passage extracted above at [24].

117. His Honour noted at p 23:

“… I have heard differing submissions as to what I do in terms of the discrete sentences, concurrent sentences and accumulation. It seems to me that on any view there is a serious and separate criminality involved and there must be a degree of [partial] accumulation. I have been provided with numerous comparative cases, and I accept that those matters are of general assistance and may be taken into account in a general way. The fact remains that each case must be dealt with on its own merits having regard to the peculiar subjective and objective features and that is what I am not [sic] required to do, although I have some general regard to the comparative cases that I have been provided with.”

Consideration: Ground 3

118. At the outset, I do not, with respect, consider that the judgments in the cases mentioned above at [65] and [107] (Thorn, Nahlous and Dela Cruz) provide guidance in the circumstances surrounding and constituting the money laundering activities of the applicants.

119. In Nahlous, the applicant was sentenced in respect of a number of offences. These included six offences contrary to ss 135ASB(1) and 135ASC(1) of the Copyright Act 1968 (Cth) (the “decoder offences”) concerning the sale of, or offer to sell, unauthorised decoders. A decoder is a device that enables the owner to obtain paid television services without paying a subscription fee to a service provider.

120. The applicant was also charged and pleaded guilty to an offence contrary to s 400.6(1) of the Criminal Code 1995. In that respect he sold to an undercover police officer fifty decoders and received payment of $15,000 in cash.

121. In the course of the decision of the Court (McClellan CJ at CL, Howie and Rothman JJ) it was stated:

“16. In the present case we can see no justification whatever for the applicant being charged with the code offence. In relation to the fifty decoders the criminality was in the sale as a result of which the owners of the services were deprived of their financial entitlement to rental charges for their use. The concept of a ‘sale’ necessarily involves the seller obtaining some financial gain from the transaction. The receipt of the money was merely an element of the offence under s 135ASB(1).”

122. In Dela Cruz, the applicant was sentenced in respect of two separate charges of obtaining a financial advantage by deception on specified dates contrary to s 178BA(1) of the Crimes Act 1900. She had also been charged with an offence of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act.

123. In Dela Cruz, the applicant had devised a scheme whereby monies of her employer were transferred to her own bank account.

124. In that case no question was raised that the prosecution of the relevant activities as separate offences was oppressive. The issue was whether or not there should have been any accumulation of the sentence for the offence.

125. Reference was made in that case to the decision in Thorn v R, supra, where the Court was dealing with a case where the accused had been charged with fraud offences under the Commonwealth Criminal Code and also with a count of dealing with the proceeds of crime contrary to s 400.4(1) of the Code. The Court in Thorn (Howie J) had observed at [27]:

“This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use.”

126. In Dela Cruz the criminality involved in the charges was, significantly, the fraudulent obtaining of significant amounts of money, a large part of which had not been recovered. The activity had involved a considerable level of planning and sophistication in obtaining the money. It was held that an additional penalty was not appropriate in respect of the charge of knowingly dealing with the proceeds of crime in that case. The applicant had simply gained access to the funds the subject of the fraud: see Dela Cruz at [19].

127. In the present case, as I have stated, the facts are very different from the abovementioned cases.

128. The Crown’s written submissions provide a detailed summary of the modus operandi employed in the money laundering activities at [116]-[144].

129. As has been mentioned in relation to the applicant Mato’s grounds of appeal, that summary indicates that the applicants paid large amounts of cash to Anthony Hogan which was then laundered through the business accounts of Terry Hogan Prestige Cars and then paid to bank accounts nominated by the applicants. Between 13 July 2006 and 29 June 2007, the applicants funnelled a total of $870,000 through the business account of Terry Hogan Prestige Cars, $615,000 of which was ultimately paid into the accounts nominated by Mato.

130. In addition, there was the purchase of a large number of motor vehicles from Terry Hogan Prestige Cars, paid for wholly in cash or at least in substantial cash amounts, a number of which were subsequently sold back to Terry Hogan Prestige Cars within a relatively short period.

131. The detailed facts and circumstances concerning the money laundering activities accordingly revealed a sophisticated plan involving a number of activities carried out in order to “launder” cash monies received from the sale of cocaine.

132. The applicants’ cases are plainly distinguishable on substantive grounds from the cases (referred to above) relied upon by the applicant, Rusu. Whilst, as the sentencing judge observed, there was some commonality between the conspiracy offence and the dealing charges, there was a sound basis for the sentencing judge’s determination as to the accumulation of sentences in this case. No factual error or error of principle has been identified in the applicant’s submissions in that respect.

133. Ground 3 should accordingly be dismissed.

134. The orders I propose are:

Application by Zoltan Mato:

1. Leave to appeal be granted.

2. The appeal be dismissed.

Application by Marius Rusu:

(1)   Leave to appeal against sentence on Grounds 1 and 2 be refused.

(2)   Leave to appeal against sentence on Ground 3 be granted.

(3)   Appeal dismissed.

135. CAMPBELL J: I agree with the orders proposed by Hall J for disposition of each of these applications. I also agree with his Honour’s reasons for the orders proposed.

136. Mr Odgers SC argued on behalf of Mr Rusu that it was for the Crown to prove his client’s actual role in the conspiracy beyond reasonable doubt because characterisation of his part as that of a principal is “a matter that aggravates, because it tends to point to a higher sentence” (15.45T).

137. The only rule is that established in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 adopting the principle expressed in R v Storey [1998] 1 VR 359; 89 A Crim R 519 at 531:

[a sentencing judge] may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. [original emphasis]

138. However, as the majority judgment in Olbrich demonstrates there is no general rule that “identification of the precise nature of [an] accused’s involvement” in drug importation “is an essential aspect of the sentencing process” (Olbrich at 277 [13]). This is not to say that when sentencing co‑offenders differentiation of roles, where the evidence permits such differentiation is not permissible or useful: Olbrich at 278 [14].

139. Where this is possible on the evidence the onus may vary from case to case. It may possibly shift. Where the prosecution wish to persuade the judge that an offender is worthy of a heavier sentence because he had a more senior role in a criminal hierarchy than a co-accused, it will carry the onus of proving those facts beyond reasonable doubt. Where an offender wishes to persuade the judge that his role was more junior to others entitling him to a lesser sentence, he will carry the onus on the balance of probabilities.

140. In the circumstances of the present case where the offender Rusu wishes to establish (for the first time on appeal) that he had a more junior role to his co-offender, Mato, he carried the onus of establishing that. For the reasons given by Hall J, he failed in that endeavour.

141. The important point in the circumstances of the present case is it was not necessary for the Crown to prove facts that put Rusu into a particular category. It was enough for the Crown to prove what he did.

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Decision last updated: 18 December 2015