Mustafa v The Queen
[2002] WASCA 243
•4 SEPTEMBER 2002
MUSTAFA -v- THE QUEEN [2002] WASCA 243
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 243 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:209/1998 | 31 JULY 2002 | |
| Coram: | MALCOLM CJ MURRAY J STEYTLER J | 4/09/02 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Sentence of 12 years with a non-parole period of 6 years reduced to 10 years and 6 months with a non-parole period of 5 years and 6 months | ||
| B | |||
| PDF Version |
| Parties: | ABIB MUSTAFA THE QUEEN |
Catchwords: | Criminal law Sentencing Drug offences Attempting to obtain possession of a prohibited import Amphetamine also known as "MDMA" or "Ecstasy" being not less than a commercial quantity Plea of guilty Parity Offender a foreign national |
Legislation: | Customs Act 1901 (Cth), s 233B(1)(a), s 235 Crimes Act 1914 (Cth), s 19AB Justices Act 1902 (WA), s 108 Sentencing Act 1995 (WA), s 95 |
Case References: | Cameron v The Queen (2002) 187 ALR 65 Cameron v The Queen [2002] WASCA 81 Diefenbach v The Queen [1999] WASCA 4 Grimwood v The Queen [2002] WASCA 135 Hodder v The Queen (1995) 15 WAR 264 Lowe v The Queen (1984) 154 CLR 606 Mustafa v The Queen [2001] WASCA 192 Punevski v The Queen [2000] WASCA 397 R v Tate and Barkley (1979) 46 FLR 386 Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559 Robertson (1989) 44 A Crim R 224 Ruvinovski v The Queen [2000] WASCA 398 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MUSTAFA -v- THE QUEEN [2002] WASCA 243 CORAM : MALCOLM CJ
- MURRAY J
STEYTLER J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Drug offences - Attempting to obtain possession of a prohibited import - Amphetamine also known as "MDMA" or "Ecstasy" being not less than a commercial quantity - Plea of guilty - Parity - Offender a foreign national
Legislation:
Customs Act 1901 (Cth), s 233B(1)(a), s 235
Crimes Act 1914 (Cth), s 19AB
Justices Act 1902 (WA), s 108
Sentencing Act 1995 (WA), s 95
(Page 2)
Result:
Sentence of 12 years with a non-parole period of 6 years reduced to 10 years and 6 months with a non-parole period of 5 years and 6 months
Category: B
Representation:
Counsel:
Appellant : Mr D Grace QC & Mr L M Levy
Respondent : Mr H G Dembo
Solicitors:
Appellant : Laurie Levy
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 187 ALR 65
Cameron v The Queen [2002] WASCA 81
Diefenbach v The Queen [1999] WASCA 4
Grimwood v The Queen [2002] WASCA 135
Hodder v The Queen (1995) 15 WAR 264
Lowe v The Queen (1984) 154 CLR 606
Mustafa v The Queen [2001] WASCA 192
Punevski v The Queen [2000] WASCA 397
R v Tate and Barkley (1979) 46 FLR 386
Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559
Robertson (1989) 44 A Crim R 224
Ruvinovski v The Queen [2000] WASCA 398
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: On 27 June 2001 this Court, as presently constituted, granted the appellant leave to appeal against a sentence imposed upon him of 12 years with a minimum of 7 years, allowed the appeal and reduced the minimum term from 7 years to 6 years. The Court did not interfere with the head sentence of 12 years: Mustafa v The Queen [2001] WASCA 192. On 31 May 2002 the High Court of Australia granted the appellant special leave to appeal, treated the appeal as instituted, heard instanter and allowed the appeal. The High Court set aside the sentence imposed and remitted the matter to this Court for the purpose of re-sentencing the appellant.
2 The application before this Court was an application for leave to appeal against a sentence of imprisonment for 12 years with a non-parole period of 7 years under s 19AB of the Crimes Act 1914 (Cth) which was imposed by Miller J on 18 December 1998. Earlier on that day the applicant was convicted in the Supreme Court on his plea of guilty to an indictment which charged one offence contrary to s 233B(1)(c) of the Customs Act 1901 (Cth), namely, that the applicant, without reasonable excuse, attempted to obtain possession of a prohibited import to which s 233B of the Customs Act applied, namely, narcotic goods consisting of a quantity of 3,4 methylenedioxymethamphetamine, also known as "MDMA" and "Ecstasy", being not less than the commercial quantity applicable to that narcotic substance.
3 Under s 235 of the Customs Act the offence was punishable by imprisonment for life, or such other period as the Court thinks appropriate. The learned Judge concluded that were it not for relevant personal factors and his plea of guilty, the appropriate sentence would have been imprisonment for 16 years. Taking account of the plea of guilty and all other mitigating factors, the learned Judge imposed a sentence of imprisonment for 12 years. Pursuant to s 19AB of the Crimes Act the learned Judge imposed a non-parole period of 7 years. The sentence was directed to commence from 3 April 1998 upon which date the appellant was placed in custody.
4 In delivering the judgment of the High Court on 31 May 2002 Gummow J said:
"On the hearing of the applicant's appeal to the Court of Criminal Appeal of Western Australia counsel for the respondent rightly conceded that the sentence imposed on the applicant did not take sufficient account of the sentences imposed on his co-offenders.
(Page 4)
The Court of Criminal Appeal, accepting the correctness of the concession that had been made, resentenced the applicant but in so doing imposed the same head sentence as had been fixed by the primary judge. The Court of Criminal Appeal fixed a shorter non-parole period than had been fixed by the primary judge. The reasons for the Court of Criminal Appeal did not identify why the same head sentence was passed as had been fixed initially and counsel for the respondent was unable to point to anything in the course of proceedings in the Court of Criminal Appeal that explained that aspect of the court's decision. Properly, counsel for the respondent acknowledged that he could not attempt to support what was said by the Court of Criminal Appeal in the key paragraph in its reasoning.
A person awaiting sentence may show a particular interest in the minimum period that that person must spend in prison, but all elements of the sentence imposed on an offender by a court are important, not just the parole period: see Siganto v The Queen (1998) 194 CLR 656 at 670 [51] and Postiglione v The Queen (1997) 189 CLR 295 at 302.
There being no dispute that the sentence originally passed on the applicant was affected by error, it is evident that the resentencing by the Court of Criminal Appeal is affected by the same error.
Counsel for the respondent agreed that he would have nothing further to say to the Court on the hearing of the appeal were special leave to be granted. Accordingly, it is convenient to proceed immediately with the case as on the return of the appeal.
In these circumstances, there will be orders that special leave to appeal be granted. The appeal be treated as instituted, heard instanter and allowed. Paragraph 2 of the order of the Court of Criminal Appeal made on 27 June 2001 is set aside and the matter is remitted to that court."
5 At the original hearing before this Court on 21 March 2002 the appellant relied on two grounds. The first was that the head sentence was disproportionate to the role of the applicant in the commission of the offence and was manifestly excessive for that reason. The second was that the sentences imposed on the applicant's co-accused are so disparate
(Page 5)
- to that imposed upon the applicant that the principle of parity was infringed.
6 The facts relating to the commission of the offence are set out in my reasons for judgment in Mustafa v The Queen, supra, at [5] – [14]. The appellant not only accepts those facts but relies upon them. It is pointed out that, both in written and oral submissions to this Court on 21 March 2001, the respondent accepted that there had been an error in sentencing. In his written submissions at par 19, counsel for the respondent said:
"The findings of the Court of Criminal Appeal in Punevski's and Ruvinovski's appeals against sentence indicate that there was not parity of sentence between the Applicant and Ruvinovski and Punevski. The Crown accepts that there should be parity … co-offenders should not receive a sentence which is disparate to those of other offenders so as to give rise to a justified sense of grievance."
7 At par 22.2 counsel for the respondent said:
"The non-parole period is also in the discretion of the court and generally will be somewhere between 50 per cent and 66 2/3 per cent of the head term. Thus notwithstanding that the sentence originally imposed on the Applicant was within the range of a sound exercise of sentencing discretion by His Honour Miller J given the parity principles the Crown accepts that a reduction in sentence for the Applicant in both the head term and non-parole period is appropriate." (Emphasis added)
8 In his oral submissions to this Court at the previous hearing, counsel for the Commonwealth conceded that there would be a justifiable sense of grievance on behalf of the appellant in relation to the sentence imposed and that he should be sentenced with parity with his co-offenders. It was also conceded that he was entitled to a discount for his plea of guilty, although it was not made at the earliest opportunity. It was, however, counsel conceded, "very close to that and the Crown accepts that as well" and took the position that the guilty plea should be accepted as a fast-track plea.
9 In the course of submissions by counsel for the Commonwealth Crown, there was a suggestion from the Bench that:
"It would seem, on the face of it, that upon his re-sentence [the appellant's] head sentence is going to be reduced and the
(Page 6)
- minimum should be somewhere between Diefenbach and Punevski and Ruvinovski."
- Counsel for the Crown agreed with the correctness of that proposition.
10 In my judgment at [25] I said that:
"The [appellant's] role as a collector could be described as slightly below that of Punevski and Ruvinovski … In my view the sentence of 12 years correctly reflects his role and position in relation to the importation."
11 This remark was made in the context where Miller J had indicated a "starting point" of a sentence of 16 years which was reduced to 12 years on account of mitigating factors. It is now accepted, of course, in the light of the decision of the High Court, that the sentence in fact imposed upon the appellant did not adequately reflect the difference between his role and the circumstances of his offending, on the one hand, and the role of Punevski and Ruvinovski and the circumstances of their offending on the other. It is also accepted that the sentences imposed on Punevski and Ruvinovski of imprisonment for 13 years were imposed after their pleas of not guilty and after trial. In the light of the concessions made it follows that the sentence of imprisonment for 12 years imposed upon the appellant does not adequately reflect the difference between their respective roles and an allowance of an appropriate discount for the appellant's plea of guilty. The position is the same so far as the non-parole periods are concerned, in that the non-parole period for the appellant was fixed at 6 years compared to 6 years and 8 months for Punevski and Ruvinovski. As I have already indicated, Miller J made it clear that were it not for the appellant's personal factors and his plea of guilty, the sentence he would have imposed would have been imprisonment for 16 years. In the light of the sentences imposed on Punevski and Ruvinovski and the concessions made in this Court and in the High Court, it is accepted that the starting point was too high.
12 Senior counsel for the appellant noted that both Punevski and Ruvinovski had been sentenced to imprisonment for 13 years, having pleaded not guilty and had been convicted after a substantial trial. It was submitted that, given that it had been accepted that the appellant's role was slightly below that of Punevski and Ruvinovski, the sentence of imprisonment for 12 years did not reflect any or any adequate discount for the early plea of guilty. It was further submitted that the same error infected the non-parole period of 6 years for the appellant compared with the non-parole period imposed in respect of both Punevski and
(Page 7)
- Ruvinovski of 6 years and 8 months. It was also submitted that the sentence imposed upon the appellant should have been discounted in the vicinity of 25 – 30 per cent having to Radebe v The Queen [2001] WASCA 254; (2001) 122 A Crim R 559 at [20] – [28] per McKechnie J; Cameron v The Queen (2002) 187 ALR 65; and Cameron v The Queen [2002] WASCA 81.
13 In passing sentence on the appellant Miller J said:
"I consider your role in the trafficking of drugs in question in this case was that of a collector. I do not conclude, of course, that you were behind the importation of the drugs in any way because there is no evidence to that effect, but you were involved in the distribution hierarchy in Perth and that is a factor which must be taken into account. I do take into account matters personal to you and your plea of guilty and the outside possibility that there may at some future time be something you can say, but it seems highly unlikely in terms of co-operation.
Without collectors, couriers would achieve nothing. So your role was critical in this case. Were it not for the personal factors and your plea of guilty, I would have imposed in this case a sentence of 16 years' imprisonment. As it is, I take into account those factors and I impose a sentence of 12 years' imprisonment."
14 The sentence was directed to take effect from 1 April 1998, being the date upon which the appellant was taken into custody.
15 Counsel for the appellant submitted that the re-sentencing of the appellant should be approached on a basis that took into account the sentences imposed on the appellant's co-offenders and, in particular, the sentence imposed on Ms Diefenbach who was a courier and responsible for the organisation of two other couriers. Ms Diefenbach was convicted on 30 September 1998 on her plea of guilty to the importation of MDMA or Ecstasy, being not less than the commercial quantity applicable to that substance, contrary to s 233B(1) of the Customs Act. Upon that plea being entered, the Commonwealth DPP declined to proceed further with a second count on the indictment of being knowingly concerned in the importation of additional quantities of the same drug. Ms Diefenbach and three others, who were couriers, namely, Jorge Lindke, Peter Schubert and Monika Emma Jezowski were each found to be carrying a quantity of
(Page 8)
- MDMA or Ecstasy. The total quantity involved in the importation was more than 2kg pure MDMA or Ecstasy.
16 On 16 November 1998 Ms Diefenbach was sentenced to imprisonment for 12 years with a non-parole period of 6 years. Mr Lindke was sentenced to imprisonment for 9 years with a non-parole period of 4-1/2 years. In the meantime, Mr Schubert was also sentenced to imprisonment for 5-1/2 years with a non-parole period of 30 months. Ms Jezowski was sentenced to imprisonment for 9 years with a non-parole period of 4-1/2 years.
17 Ms Diefenbach's role was to recruit and organise the other couriers. She was sentenced on the basis that her involvement was purely for financial gain. She was responsible for obtaining airline tickets and visas for herself and the other couriers, as well as arranging for the clothing and the manner in which the drugs were to be carried. Mr Schubert's sentence reflected his co-operation with the authorities.
18 An unusual feature of Ms Diefenbach's case was that the count of being knowingly concerned in the importation of the drugs brought in by the others was withdrawn. Hence, as I said in my judgment in Diefenbach v The Queen [1999] WASCA 4 at [18]:
"On the face of it, the justification for the heavier sentence imposed upon the applicant related to her role in recruiting the others and communicating to them the modus operandi, passing on the airline tickets and visas and collecting the drugs for importation. No doubt these facts would have been of considerable significance in relation to the charge of being knowingly concerned in the importations made by the three others which was the subject of count (2) on the indictment, which was withdrawn following her plea of guilty to count (1). It follows that the extent to which she was sentenced to a significantly greater term of imprisonment than the others because of her role in relation to the other offenders, there was clearly a danger that she would be sentenced for playing a part in the offences committed by others when the charge of being knowingly concerned in their importations was expressly withdrawn. This seems to be reflected in the comment made by the learned sentencing Judge that:
'As part of your involvement in this offence you were responsible for obtaining airline tickets and visas and …
(Page 9)
- you were also responsible for arranging the clothing and the manner in which the drugs were to be carried.' "
19 Reference was made in the judgment at [19] to the parity principle and its application to co-offenders in Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibbs CJ; and 611 – 612 per Mason J; and the need for real and substantial grounds for distinguishing between co-offenders as stated in Robertson (1989) 44 A Crim R 224 at 227 per Malcolm CJ. In Diefenbach at [19] – [20] I also said:
"In the present case, all four offenders were involved in the same criminal enterprise, although each was criminally responsible for his or her own importation. It may be accepted, however, that in such a case the sentencing Court is entitled to have regard to 'the entire transaction' and sentence those involved, having regard to their respective roles: Laurintiu and Becheru (1992) 63 A Crim R 402 at 414-416 and 420-421 per Wood J (with whom Sharpe J agreed). It may be accepted that there can be relevant differences between co-offenders or offenders playing some part in an overall criminal enterprise in terms of their respective degrees of criminality, including the respective parts which they played in the commission of an offence: Postiglione (supra) per Dawson and Gaudron JJ at 301-302; per McHugh J at 314; and per Gummow J at 325. Kirby J said at 340:
'But the parity principle itself must operate upon sentencing facts which will inevitably provide grounds for discrimination on the basis of the offender's involvement in the offence …'
In my opinion, while it was not permissible to sentence the applicant for her contribution to the offences committed by others, it was possible to take into account her role as the person who recruited others to participate in the overall transaction, collected their airline tickets and visas, picked up the drugs and generally organised the others, as being matters which showed that she was more than a mere courier recruited for the purposes of importing the quantity of the drug she brought into Australia. In other words, she was as a courier at a higher level than the other three couriers. Consequently, it is her greater involvement in the organisation than that of a 'mere' courier which is taken into account in relation to her own importation. Thus, she was
(Page 10)
- the one who collected the drugs that were imported. The learned sentencing Judge referred to the other activities 'As part of your involvement in this offence …'. Having said that, there are factors tending to indicate that she was only little more than a courier and channel of communication. For example, she did not make or know about all the arrangements and she did not get paid any more than the others."
20 In order to avoid the danger that Ms Diefenbach was sentenced as if she had pleaded guilty to being knowingly concerned in the other importations, it was thought appropriate to adopt the same or a very similar starting point as her co-offenders for the purposes of sentencing.
21 The unanimous conclusion reached in Diefenbach with the agreement of Ipp and Steytler JJ was that the learned sentencing Judge was in error in adopting a starting point of 14 years, rather than the 12 years for the other couriers. It was also accepted that she was entitled to a substantial discount for the plea of guilty, and on that account the sentence was reduced to 10 years. No further deduction was made on account of personal circumstances: cf R v Tate and Barkley (1979) 46 FLR 386. A non-parole period of 5 years was fixed.
22 As previously mentioned, Punevski and Ruvinovksi pleaded not guilty to an indictment which alleged that on 1 April 1998 at Perth, without reasonable excuse, they attempted to obtain possession of a prohibited import to which s 233B of the Customs Act applied, namely the Ecstasy which had been imported by Ms Diefenbach and the other couriers. Punevski and Ruvinovski were each categorised as a "collector". Following their convictions they were each sentenced to imprisonment for 13 years with a non-parole period of 8 years. In Ruvinovski v The Queen [2000] WASCA 398 the sentence was varied by reducing the non-parole period to 6 years and 8 months. The same result followed in Punevski v The Queen [2000] WASCA 397. It was accepted that Punevski and Ruvinovski were mere "collectors" with respect to the drugs brought in by Schubert.
23 It was also noted at [8] in the judgment of the Court (Kennedy, Wallwork and Anderson JJ) that there was no evidence of any wider distribution network, or of any chain or organisational structure extending beyond Ruvinovski, Punevski and Mustafa. There was no evidence of any contact between any of them and others except for a telephone call to Schubert in the afternoon of the day on which they were arrested. In that
(Page 11)
context, their Honours said in their joint judgment in Punevski at [9] – [11]:
"We adopt, with respect, what was said in Ruvinovski's case concerning the approach that should be taken by a sentencing court when it is left to speculate about the respective roles and levels of responsibility of several people involved in the same trafficking offence. All the sentencing court can do is look at the objective facts, treat them as providing the prima facie information regarding the defendant's level of culpability and sentence accordingly, unless the prima facie position is displaced by other material. It is for the defendant to prove, on the balance of probabilities, matters which he contends should go in mitigation of his sentence. In the absence of proof of such matters, there is no obligation on the Court to engage in favourable speculation: R v Olbrich (1999) 199 CLR 270, par 24 and par 26. The applicant gave no evidence either at trial or for the purpose of sentencing.
The facts demonstrate that the applicant was actively engaged with Mustafa and Ruvinovski over a long period on 1 April 1998 in attempting to get physical possession from Schubert of a commercial quantity of ecstasy. For that offence, the maximum penalty is life imprisonment. Mustafa was treated slightly more leniently than the applicant and Ruvinovski, but expressly because of his plea of guilty and because the Court accepted the submission made on his behalf that he was not part of any trafficking organisation and had been simply recruited by Ruvinovski and the applicant on the day, to help them deal with Schubert; ie, that as between the three of them, his was the minor role. That submission is, of course to be placed in stark contrast with the submission made on behalf of the applicant in this appeal (and also on behalf of Ruvinovski as appears from the judgment in that case) that it was Mustafa who was the leader and that it was he who had recruited the applicant and Ruvinovski.
We are not persuaded that there was any basis on which to differentiate between the roles of the three men for sentencing purposes."
24 Their Honours concluded that the head sentences of 13 years imposed upon Punevski and Ruvinovski were not manifestly excessive.
(Page 12)
They also concluded that the non-parole period of 8 years was excessivein each case and varied the sentences by reducing the non-parole period to 6 years and 8 months.
25 It is also accepted that Punevski and Ruvinovski were sentenced to imprisonment for 13 years after their pleas of not guilty and after trial. It follows that the sentence of 12 years' imprisonment does not adequately reflect the difference between the appellant's role and their respective roles and the allowance of an appropriate discount for the appellant's plea of guilty. The position is the same so far as the non-parole periods are concerned, in that the non-parole period for the appellant was fixed at 6 years compared to 6 years and 8 months for Punevski and Ruvinovski.
26 Miller J made it clear that were it not for the appellant's personal factors and his plea of guilty, the sentence he would have imposed would have been imprisonment for 16 years. In the light of the sentences imposed on Punevski and Ruvinovski and the concessions made in this Court and the High Court, it is accepted that the starting point was too high.
27 In all the circumstances, I have concluded that the sentence which the offence warranted was one of imprisonment for 14 years which I would discount by 25 per cent to 11 years and 6 months on account of the appellant's plea of guilty, with a further reduction to 10 years and 6 months on account of all other relevant factors including the fact that the appellant has been approved as a "Trusty Prisoner" and is now serving his sentence at the East Perth Lockup. In addition, of course, being a foreign national there is an element of hardship in his lack of close contact with his family in Macedonia. The hardship to the family is not a mitigating factor: cf Hodder v The Queen (1995) 15 WAR 264. The hardship of serving a sentence in this country remote from family support is a limited factor in mitigation: cf Grimwood v The Queen [2002] WASCA 135.
28 Finally, it is necessary to adjust the non-parole period in relation to the sentence of 10 years and 6 months. Having regard to the non-parole periods fixed in relation to the appellant's co-offenders, particularly having regard to the applicant's status as a foreign national, I fix the non-parole period to be served as 5 years and 6 months.
29 Having regard to s 16F of the Crimes Act, a copy of these reasons should be provided by the Court to the appellant so that he should understand the purpose of the non-parole period. The service of the sentence includes a period of imprisonment of not less than the non-parole
(Page 13)
- period. The appellant will then be eligible for release on parole if a parole order is made. Such an order will be subject to conditions. It may be amended or revoked. If the conditions are not complied with without a reasonable excuse the parole order may be amended or revoked and the appellant returned to prison.
30 MURRAY J: I have read and agree with the reasons published by Malcolm CJ. I have nothing to add.
31 STEYTLER J: I have had the advantage of reading the reasons for decision of the Chief Justice. I agree with them and with the conclusion at which the Chief Justice has arrived. There is nothing I wish to add.
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