Mustafa v The Queen - [2001] WASCA 192

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MUSTAFA -v- THE QUEEN [2001] WASCA 192

CORAM: MALCOLM CJ
MURRAY J
STEYTLER J

HEARD: 21 MARCH 2001

DELIVERED : 27 JUNE 2001

FILE NO/S: CCA 209 of 1998

BETWEEN: ABIB MUSTAFA
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Drug offences - Attempting to obtain possession of prohibited import - MDMA ("Ecstasy") - Applicant one of seven offenders involved in importation - Applicant acted as a collector of the drugs from one of four couriers involved - Parity of sentencing - Sentence of 12 years with a minimum of 7 years varied by reducing minimum to 6 years

Legislation:

Customs Act (Cth) s 233B(1)(a) and s 235

Crimes Act (Cth) s 19AB

Justices Act 1902 (WA) s 108

Result:

Leave granted, appeal allowed and minimum term reduced

Representation:

Counsel:

Applicant: Mr L M Levy
Respondent: Mr H G Dembo

Solicitors:

Applicant: Laurie Levy
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Darwell (1997) 94 A Crim R 35
Diefenbach v The Queen [1999] WASCA 4; Diefenbach (1999) 108 A Crim R 19
La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Punevski v The Queen [2000] WASCA 397
Ruvinovski v The Queen [2000] WASCA 398

Case(s) also cited:

Nil

MALCOLM CJ: This was an application for leave to appeal against sentence. On 18 December 1998 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, which had been imported into Australia in contravention of that Act, 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.
Under s 235 of the Act the offence was punishable by imprisonment for life or for such period as the Court thinks appropriate. The learned Judge considered that were it not for relevant personal factors and his plea of guilty the appropriate sentence to impose would have been imprisonment for 16 years. After taking those factors into account his Honour sentenced the applicant to imprisonment for 12 years and fixed a non‑parole period of 7 years under s 19AB of the Crimes Act 1914 (Cth). The sentence was imposed on 18 December 1998, but backdated to commence from 3 April 1998 when the applicant was taken into custody.
The applicant, having abandoned ground 1 of the original grounds of appeal, which was deleted by amendment, seeks leave to appeal against the sentence on the grounds that:
"2.The learned sentencing Judge erred in the exercise of his discretion by imposing a sentence that was disproportionate to the role of the Applicant in the offence and thereby imposed a sentence that was manifestly excessive.
3.The sentences imposed upon the Applicant's co‑accused are so significantly disparate to that imposed upon the Applicant that the principle of parity is infringed.
Particulars
(a)On 11 June 1999, following a trial in the Supreme Court of Western Australia, the Applicant's co‑accused, Trajce Punevski and Vlado Ruvinovski, were both sentenced by [the Hon Justice Wheeler] to 13 years gaol with minimums of 8 years to be served before becoming eligible for parole.
(b)On 15 December 2000 the Court of Criminal Appeal reduced the non-parole periods of both Ruvinovski and Punevski to 6 years and 8 months.
4.The learned sentencing Judge erred, by imposing a non‑parole [sic period] that was manifestly excessive.
Particulars
(a)The Applicant pleaded guilty at an early stage.
(b)The Applicant's involvement in the offence was confined to a short period of time and was recruited by the co‑accused Ruvinovski and Punevski."
The applicant pleaded guilty in the Court of Petty Sessions at Perth on 6 October 1998. The plea was not made at the earliest opportunity under the fast‑track system, as the applicant had first been charged on 2 April 1998 and had come before the Court of Petty Sessions the following day. The applicant at first elected a preliminary hearing in relation to the charge but, before the hearing took place, the applicant accepted a "hand‑up brief" and pleaded guilty in accordance with the provisions of s 108 of the Justices Act 1902 (WA). In assessing the significance of the plea of guilty, the learned sentencing Judge accepted that the applicant was without independent representation at an early stage and it would have been difficult for him to understand the ramifications of an early plea of guilty. In these circumstances, the learned Judge said that he would take the plea of guilty "as being an important aspect in the sentencing process".
As recounted by the learned Judge, the basic facts were that on 30 March 1998 four persons, namely Schubert, Lindke, Jezowski and Diefenbach, arrived in Perth at the International Airport from Amsterdam via Kuala Lumpur. They were all in possession of MDMA Ecstasy tablets which were secreted in socks attached or held to their bodies by a female girdle beneath their clothing. They were all German citizens. They arrived in Perth on a Malaysian Airlines flight from Amsterdam via Kuala Lumpur. Schubert, Lindke and Diefenbach were stopped by Australian Customs Service officers at the Airport. They were later searched and all of them were found to be wearing a female girdle underneath their clothing, which contained six socks in the case of Schubert and Lindke, and seven socks in the case of Diefenbach. Each of the socks contained a large quantity of MDMA or Ecstasy in the form of tablets. The fourth courier, Ms Jezowski, got to a hotel in Perth where she was later apprehended. She was also found to be in possession of similar drugs concealed in the same way as in the case of the others. Each of the four was a courier.
One of the couriers, namely Schubert, agreed to co‑operate with the authorities. Enquiries at the hotel revealed that Schubert and Jezowski had a booking at the hotel and that a person with a German accent had been calling from overseas attempting to contact Schubert. After he had participated in a taped record of interview, Schubert agreed to co‑operate with the police in their ongoing enquiries to facilitate the apprehension of the persons who intended to collect the drugs from the couriers. Schubert proceeded to the hotel in accordance with the instructions he had been given. He was contacted by another person who was later charged with the same offence as Schubert. A warrant to use a listening device in the hotel room was sought and obtained under the Customs Act and several local and overseas calls were monitored and recorded by police.
Some time after midnight Mr Ruvinovski arrived unannounced at Schubert's room and asked for "Alex Schubert". Alex was Schubert's nickname. He was told that there was no person by that name in the room. Ruvinovski then left the hotel with another person subsequently identified as the applicant. Ruvinovski was later joined by Punevski and they were seen observing activity in the hotel foyer.
Counsel for the Crown stated the following facts to the Court:
"During the course of the afternoon Ruvinovski and Punevski were seen together in the company of the offender Mustafa. All three persons met in coffee shops in the vicinity of the Mercure Hotel. The offender and Punevski were also observed to make several telephone calls from public telephones located in the vicinity of the hotel, many of which have since been identified as being calls overseas and calls to the Mercure Hotel, including the room occupied by Mr Schubert.
At about 3.56 pm on the same day the offender Mustafa was observed to attend a telephoned box and to make a telephone call during which he made several notes in a notebook, whereupon he left the telephone box and met with the other two, Punevski and Ruvinovski. After a short time he handed a piece of paper to Ruvinovski. Ruvinovski then went to a public telephone box where he also made several calls, some of which have also been identified as being made to numbers in Macedonia and the Mercure Hotel.
Later in the afternoon of 1 April 1998 Schubert and the AFP moved to another room within the Mercure Hotel, being room number 802. Schubert continued to receive calls in that room. A further warrant for a listening device in that room had been obtained prior to the move to that room. At about 4.20 pm that day Schubert departed room 802 of the hotel to attend a pre‑arranged meeting in the coffee shop located at the Mercure Hotel. At 4.48 pm that afternoon Ruvinovski was seen to attend room 802. He knocked on the door. He departed after knocking several times and the door was not opened. Shortly after attending at room 802 Ruvinovksi met Schubert in the coffee shop at the Mercure Hotel. During this meeting the offender Mustafa was seen to attend at the coffee shop as well, although at that time he did not acknowledge Ruvinovski or Schubert.
Schubert and Ruvinovski departed the coffee shop together and went to room 802 of the Mercure Hotel, where they had a conversation which was recorded by the AFP. The conversation involved a discussion with Schubert, during which time Ruvinovski asked for 'the package' and they discussed money. It was also discussed as to whether the police had been called and other telephone calls ensued, during which Schubert agreed to deliver the package later that night.
After that meeting, Ruvinovski departed the hotel and met with the offender Mustafa at the corner of Hay and Irwin Streets in Perth. They then met with the third alleged collector, namely Punevski at the Kings Hotel café. Punevski left for a short while, whilst Mustafa and Ruvinovski remained in the vicinity of the Kings Hotel in Perth, except for leaving to attend a nearby telephone box to make calls.
Later, Punevski again met with Ruvinovski and Mustafa at the Kings Hotel. They left a short while afterwards. The offender Mustafa was later seen to enter the Topiary coffee shop attached to the Mercure Hotel where he sat at a table near the door. Shortly afterwards he met with Ruvinovski at the coffee shop, they shook hands, they have a brief conversation, Ruvinovski departed. The offender Mustafa was observed by police to remain seated by himself in the coffee shop until about 8 pm when Peter Schubert - you will recall that is one of the couriers - who was wearing a recording device, with his consent, and whilst assisting and cooperating with the AFP, attended the coffee shop and sat at a table with Mr Mustafa.
They had a conversation and that conversation was recorded. I will be referring to that conversation, perhaps in some detail, later. Schubert then handed to Mustafa a yellow plastic bag. Mustafa was observed to examine the contents of the bag given to him by Schubert and the contents in fact consisted of the six socks packed with a substitute product which had been packed and reconstructed to conform with the same manner as the socks were originally imported into Australia …
Upon Mr Mustafa checking the contents of the bag and after some discussion, he handed Schubert two envelopes which contained what later was ascertained to be the sum of $9500 Australian. Mustafa then departed with the plastic bag and its contents, via the rear laneway of the Mercure Hotel, which runs from Hay Street through to St Georges Terrace.
After Mustafa left the coffee shop, Schubert was escorted by the police back to his room. While Mustafa had been meeting with Schubert, the other two alleged collectors, Ruvinovski and Punevski, were sighted sitting on the steps near a post office near a laneway behind the hotel. At about 8.15, Mustafa, who still had the package containing the controlled delivery with him, met with Ruvinovski and Punevski at the steps and all three walked towards a vehicle which belonged to Mr Ruvinovski, parked nearby.
Mustafa and Ruvinovski then entered the vehicle. Punevski continued along St Georges Terrace to his vehicle which was parked nearby. Police then drove behind Ruvinovski's vehicle and after alighting the vehicle, yelled out that they were police officers. At this time it is alleged that Ruvinovski reversed his vehicle into the police vehicle but shortly thereafter Mustafa and Ruvinovski, who were both in the vehicle, were arrested. The other alleged offender, Punevski, was arrested a short distance away. They were all later charged."
When interviewed, the applicant first contended that he had arranged with a woman in Amsterdam for sex tablets to be sent to Australia for him to pick up. He said that was the reason for his arrival in Perth. The applicant denied knowing anything about the four couriers coming to Perth, although he had in his possession a piece of paper with their names on it. He denied being a go‑between in the importation of the tablets. The evidence, however, established that the applicant was in contact with the co‑accused, or at least one of them, while he was in New York, where he was sent money.
Later, on 16 July 1998, the applicant changed his account of events to admit that he came to Australia to collect money, but denied knowing anything about what was going on. In particular, the applicant said that he was unable to shed any light on how the narcotics came into Australia, or who had organised the importation.
The prosecution case was that the applicant was involved as a collector of the drugs once they had been imported into Australia and, in particular, a collector from the courier Schubert. This was accepted by the learned sentencing Judge. The prosecution contended that the applicant played a role substantially higher than that of a mere courier. The learned Judge accepted that a collector does play a role higher than that of a courier. The MDMA Ecstasy tablets involved were found to be 513 grams pure. There were in excess of 6,000 tablets, the value of which was conservatively estimated at $300,000. It was accepted by counsel for the Commonwealth Crown that the applicant had at no stage admitted that he had been involved as an organiser of the drug importation or that he knew that MDMA or Ecstasy was being imported or that it was to be collected by him.
The applicant instructed his solicitors in June 1998 that he intended to plead guilty and wished to co‑operate with the police. This was communicated to the Commonwealth Director by letter dated 15 June 1998. He was subsequently interviewed by police for the second time on 16 July 1998 and there was a third interview on 28 August in which he indicated that Punevski and Ruvinovski were, in effect, the organisers of the importation in Australia. He maintained that his actual reason for being in Australia was in connection with an unrelated transaction to collect money on behalf of someone in Macedonia and return that money to the person concerned in a way which would defeat the Financial Transactions Act (Cth).
As against that, counsel for the Commonwealth Crown submitted that whatever else he did, the applicant came to Australia to make money out of illegal dealing in drugs, ie, drug trafficking. The learned Judge commented on the submission of the applicant's counsel as follows:
"Mr Levy, I have to say that having read the papers I had come to the conclusion there was a strong prima facie case that your client was involved in drug trafficking and was here for the purpose of collecting money - first of all, paying off the courier, which he did, and then collecting money. If I am wrong about that, you are going to have to indicate to me why I should not make findings to that effect. It is a very important threshold aspect of the case and it may be that you might say, 'Well, in those circumstances I want the opportunity to call my client, or call evidence and try and that issue.' "
In the end the Crown case was clarified as being that after the importation, the applicant appeared on the scene as a collector of a portion of the drugs, who pleads guilty to the offence charged. This was on the basis that he intended to pass the drugs on to Ruvinovski and Punevski.
At the time the applicant was sentenced, the couriers involved had been dealt with in the Supreme Court. Two of them, namely, Jezowski and Schubert, pleaded guilty before Wallwork J on 13 July 1998 to offences of importing into Australia prohibited imports contrary to s 233B(1)(b) of the Customs Act. That offence under s 233B(1)(b) of the Act is also punishable by a maximum of life imprisonment. Wallwork J sentenced Mr Schubert on 19 August 1998 to imprisonment for 5 years and 6 months with a non‑parole period of 30 months. The sentence was reduced from what would otherwise have been a sentence of imprisonment for 9 years by reason of the offender's early plea of guilty and extensive co‑operation with the authorities. As indicated above, it was Schubert's co‑operation with the authorities which led to the apprehension of the applicant and the apprehension of others involved.
Wallwork J sentenced Ms Jezowski on 19 August 1998 to imprisonment for 9 years with a minimum term of 4 years before eligibility for parole. In her case also, there was an early plea of guilty as well as various personal factors which were taken into account.
The other two couriers were dealt with by Scott J. Ms Diefenbach was sentenced to imprisonment for 12 years with a non‑parole period of 6 years. In her case various personal factors and a discount for an early plea of guilty were taken into account. On appeal her sentence was reduced to one of 10 years with a non‑parole period of 5 years: Diefenbach v The Queen [1999] WASCA 4; Diefenbach (1999) 108 A Crim R 19 at 28 ‑ 29, pars [32] ‑ [33]. Significantly, although she organised the other three couriers, a charge against her for being knowingly concerned in the importation of the quantities brought in by the other couriers was withdrawn. Her role was reflected in the adoption of a starting point by the Court of Criminal Appeal of 14 years in her case to distinguish her from the other couriers in respect of whom the starting point was 12 years.
Mr Lindke was sentenced to imprisonment for 9 years with a non‑parole period of 4 years and 6 months. Again, his early plea of guilty and other personal factors were taken into account. The sentence of 12 years imposed upon Diefenbach was the highest of the sentences imposed upon the couriers, taking into account that she was found to be the person who organised them.
The applicant's explanation for his involvement in the offence was that he was in Australia to collect money, perhaps illegally, although he was not here to organise any drug importation. As to that, the learned Judge commented that it was obvious from a taped conversation that the applicant had with Mr Schubert that he knew a good deal about the importation. However, consistent with the onus and standard of proof in relation to these matters, the learned Judge accepted that the applicant was recruited by Punevski and/or Ruvinovski in Perth to collect the drugs from Schubert.
The learned Judge took into account the following matters personal to the applicant as set out in his sentencing remarks:
"I turn to matters personal to you. You were born on 17 October 1960 in Macedonia. You are 38 years of age.
You are a married man, having been married in Turkey in 1994. You have three children, each girls, aged 4, 3 and 15 months. You were educated in Macedonia to high school education level. You completed a real estate course in New York. You have worked in New York in real estate, a clothing industry and, more recently, taxi driving. You appear to have alternated between New York and Macedonia, running a cafe in Macedonia whilst there in the summer. People in Macedonia have given testimonials to the effect that you were, until now, regarded as an honest and a good family man. That I accept. Further, you have no prior convictions."

The learned Judge then referred to the recognition of the need to firm up the sentences for the sale or supply of drugs, including methylamphetamine, referring to Darwell (1997) 94 A Crim R 35 at [40] per Malcolm CJ (with whom Kennedy and Franklyn JJ agreed). In La Rosa v The Queen, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 at 14, Owen J said:
"There is, in my view, considerable justification for 'firming up' sentences generally for offences involving drug trafficking. This is particularly so where the trafficking is organised (at whatever level) and for private gain. It should not require judicial pronouncements to expose the devastating consequences for society generally from the drug trade. …
The consequences of drug dealing flow well beyond the immediate parties to the illegal transaction. It is behaviour that leaves innocent third parties as victims, tears families apart, creates enormous economic and social dislocation and, more than occasionally, leads to loss of life."
The learned sentencing Judge endorsed these comments and also noted that in Darwell at [40] Malcolm CJ said:
"In my opinion, having regard to the increasing prevalence of the use of MDMA or ecstasy, which is one of the drugs in the amphetamines group, and taking into account the increasing prevalence of the use of amphetamines generally, including methylamphetamine, the courts have tended to firm up the sentences for the sale or supply of such drugs or their possession with intent to sell or supply …
It is important to note that methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If not equated to heroin and cocaine, it is close enough to those drugs to be regarded as in the same category: Calder (unreported, District Court, WA, Hammond CJDC, 7 September 1995); Bellissimo (1996) 84 A Crim R 465; Krakouer (1996) 16 WAR 1 at 33–35 per Anderson J (with whom Rowland and Franklyn JJ agreed); and Calder (unreported, Supreme Court, WA, No 960534, 11 September 1996 per Malcolm CJ).
In Bellissimo, in a passage cited in my judgment in Calder, [unreported, CCA SCt of WA No 960534, 11 September 1996] (with which Franklyn and Owen JJ agreed) Anderson J said:
'The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused widespread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent.'
While this case is concerned with MDMA or ecstasy and not methylamphetamine, what Anderson J said has application to amphetamines generally and ecstasy in particular. In my opinion, it may now be appropriate to reconsider the classification of MDMA or ecstasy in the light of additional evidence regarding its deleterious effects. In the meantime, there is every justification for 'firming up' on the sentences to be imposed beyond the sentence which was imposed in the present case."
This passage was applied by Anderson J in Ruvinovski v The Queen [2000] WASCA 398 at [36] with whose judgment Kennedy ACJ and Ipp J agreed. Anderson J also pointed out at [36] that MDMA or Ecstasy was "a highly dangerous drug of addiction".
Two other co‑offenders, namely Ruvinovski and Punevski, were also found to be collectors. While Mustafa was also a collector, he was sentenced on the basis that he had been recruited very much at the last minute by the other two after he had arrived in Perth. It is not now suggested that this was in error. Ruvinovski and Punevski were both convicted on 28 May 1999 after a trial of attempting to obtain possession of the Ecstasy which had been imported into Australia contrary to s 233B(1)(c) of the Customs Act. On 11 June 1999 both of them were

sentenced to imprisonment for 13 years with a non‑parole period of 8 years. On appeal, Punevski's sentence was varied by reducing the non‑parole period from 8 years to 6 years and 8 months: Punevski v The Queen [2000] WASCA 397. Ruvinovski's non‑parole period was also similarly reduced: Ruvinovski v The Queen [2000] WASCA 398.

In my opinion, the applicant's role as a collector could be described as slightly below that of Punevski and Ruvinovski. The sentence imposed of imprisonment for 12 years with a minimum of 7 years before being eligible for parole had the result that, although the head sentence was one year less than the other two, his non‑parole period was greater. If that were to remain, the applicant would have a justifiable sense of grievance. In my view the sentence of 12 years correctly reflects his role and position in relation to the importation. In my view, however, given his lesser role and the other matters in his favour, I would grant the applicant leave to appeal and reduce the non‑parole period from 7 years to 6 years.
MURRAY J: I agree with Malcolm CJ that leave to appeal should be granted and the appeal allowed to the extent necessary to reduce the non‑parole period from 7 years to 6 years.
STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be delivered by the Chief Justice. I agree with them and with his Honour's conclusion. I have nothing to add.