R v Capar

[2005] NSWCCA 402

CITATION:	R v Capar [2005] NSWCCA 402 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	7 October 2005
JUDGMENT DATE:	7 October 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Grove J at 32; Hislop J at 33
DECISION:	Appeal dismissed

CATCHWORDS:	CRIMINAL LAW - appeal against sentence - supply of drugs - money laundering - possessing a firearm - whether sentencing judge erred in respect of the discount for the plea of guilty
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Confiscation of Proceeds of Crimes Act 1989 Firearms Act 1996 Crimes Act 1900
CASES CITED:	Malvaso v The Queen (1989) 168 CLR 227 R v Atonio [2005] NSWCCA 200 R v Carter [2001] NSWCCA 245 R v Gorgievski [2002] NSWCCA 45 R v Lowe [2001] NSWCCA 271 R v OPA [2004] NSWCCA 464 R v Parkinson (2001) 125 A Crim R 1 R v Petrie (2003) 141 A Crim R 396 R v Rogerson [2005] NSWCCA 12 R v Simpson (2001) 53 NSWLR 704 R v Sutton [2004] NSWCCA 225 R v Thomson & Houlton (2000) 115 A Crim R 104 R v Vukic [2003] NSWCCA 13
PARTIES:	The Crown Kanan Capar (Appl)
FILE NUMBER(S):	CCA 2005/384
COUNSEL:	N Norman (Crown) P Byrne SC (Appl)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Croke & Co (Appl)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0425
LOWER COURT JUDICIAL OFFICER:	Karpin DCJ

2005/384

McCLELLAN CJ at CL
GROVE J
HISLOP J

FRIDAY 7 OCTOBER 2005

R v Kanan CAPAR

JUDGMENT

1 McCLELLAN CJ at CL: The applicant pleaded guilty to four charges being:

(i) Conspiracy to supply not less than a large commercial quantity of heroin between 9 April 1999 and 20 March 2001 contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.
(ii) Conspiracy to supply not less than the commercial quantity of cocaine between 13 November 2000 and 20 March 2001 contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.
(iii) One count of money laundering between the dates of 1 October 1999 and 30 September 2000 contrary to s 73(2) of the Confiscation of Proceeds of Crimes Act 1989.
(iv) Possessing a firearm on 14 December 2000 contrary to s 7(1) of the Firearms Act 1996.

2 The offences in counts 1 and 2 carried maximum sentences of life and 20 years imprisonment respectively. Count 3 carries a maximum of 20 years imprisonment and count 4 carries a maximum of 14 years imprisonment.

3 The applicant also admitted four matters on a Form 1, being one charge of hindering investigation of a serious indictable offence on 23 February 2001; intimidating a police officer in the execution of duty on 11 April 2001; having goods in his custody contrary to the provision of s 527C(l)(d) of the Crimes Act 1900 between 28 June and 2 August 2001, being the sum of $15,000 in cash hidden in his sister’s bedroom, and a further matter of goods in custody relating to a cash sum of $170,050 on 2 August 2001.

4 The applicant was taken into custody on 28 June 2001 and sentenced on 10 August 2004. On the first count he was sentenced to twelve years and nine months. The sentencing judge found special circumstances and imposed a non-parole period of eight years and four months.

5 On the second count her Honour fixed a head sentence of eight years and six months with a non-parole period of six years and four months.

6 On the third count her Honour fixed a head sentence of six years and nine months and a non-parole period of five years.

7 On the fourth count her Honour imposed a sentence of four years.

8 The sentences are to be served concurrently. When sentencing the applicant on the first count her Honour had regard to the matters on the Form 1. In each matter her Honour indicated that she reduced the head sentence by fifteen percent having regard to the applicant’s plea of guilty.

9 There is but one ground of appeal advanced by the applicant being that the sentencing judge erred in respect of the discount for the plea of guilty.

The facts

10 The facts found by the sentencing judge indicated that the applicant was the principal of a very significant drug operation. He was sentenced along with his three brothers, each of whom played a part in that operation. His brother Oktay Capar commenced selling heroin in early 1999 but sold the business to the applicant in late 1999 or early 2000 for the sum of $60,000. The applicant was not addicted to drugs and was engaged in the business purely for the purpose of profit.

11 The evidence disclosed that the applicant gave meticulous attention to the detail of the operation. There were multiple supplies, on many days, of significant quantities of prohibited drugs.

12 The evidence also disclosed that the applicant resorted to violence to enforce his will on his business associates. From the time he purchased the business until March 2001 the applicant took the senior role involving the purchase of bulk supplies of drugs, having them tested by others, packaged into colour-coded quantities, distributing drugs, taking phone calls from customers, directing the distribution of drugs while ordering bashings when needed and collecting and analysing the profits from the sale of the drugs.

13 An illustration of the intensity of the operation is revealed by the fact that between 15 March and 19 March 2001 519 telephone calls, which involved orders for cocaine, were intercepted. Most of these calls were dealt with by the applicant. The cocaine supplied over those days had a street value of approximately $39,170.

14 Her Honour found that the modus operandi of the drug operation was simple. Bulk drugs were purchased, cut with additives and packaged into various quantities distinguished by different coloured balloons. Depending on quantity, those balloons were sold for sums ranging between $20 and $240. Orders were taken by phone and written onto yellow “post-it” notes showing the time of the order, the amount ordered, the delivery point, and cost. Those notes and corresponding drugs went with the courier making the delivery. When the delivery was made and exchanged for the appropriate amount of money, the courier returned the money and the “post it” note to the house where a record was made. The applicant kept an accurate record of all dealings and the profits.

15 The sophistication of the arrangement was also evidenced by the elaborate security provisions. Although a number of search warrants were executed on the premises police were invariably delayed by arrangements including Rottweiler dogs, barred windows, steel reinforced doors and ultimately surveillance cameras. As additional security a number of mobile telephones were employed, as were pseudonyms. One telephone intercept over 42 days disclosed drug deals in excess of 3,850 in number.

16 The circumstances of the money laundering charges were that the applicant and one of his brothers, Yasin Capar, who had been arrested on 23 February 2001, entered into an agreement with George Danis, who owned a timber yard, the effect of which was that he would receive cash from which he would retain an amount of 13% as his profit and would provide cheques to the Capars which were placed in the applicant’s personal account or a property development account in his name. The total amount of funds laundered by this means was $319,000. Between October 1999 and July 2000 the sum of approximately $509,483 was deposited into the account of the applicant, including the $319,000 obtained from George Danis. In addition, there was evidence of large amounts of cash proceeds of drug sales being banked into both the ANZ Bank as well as the Commonwealth Bank on behalf of the applicant.

The plea and the sentence imposed on Yasin Capar

17 The applicant pleaded guilty in the Local Court. However, her Honour correctly identified that the pleas were not entered until after Yasin Capar and David Sukkar, a heroin addict, who had been recruited to work in the business, had given evidence and were cross examined at their committal. Her Honour found that that evidence, together with the very strong Crown case obtained independently through surveillance of various kinds, indicated that whilst the pleas were entered in the Local Court, they were entered in the face of a strong to overwhelming Crown case.

18 Her Honour found in relation to both the applicant and his brothers that the appropriate discount for their pleas was 15%. By the time her Honour came to sentence, the applicant’s brother, Yasin Capar, had already been sentenced by another District Court judge. Yasin Capar was sentenced on the basis that he was an employee of the applicant. Prior to appearing for sentence Yasin Capar had agreed to give evidence against his brothers and gave a comprehensive statement to the Crime Commission which was considered by the Judge who sentenced him to be reliable.

19 Yasin Capar was sentenced after pleading guilty to one count of supplying not less than a commercial quantity of heroin, one count of supplying not less than a large commercial quantity of heroin, one count of engaging in money laundering and one count of possessing a firearm. The sentencing judge allowed a reduction of 15% for the plea but allowed a further reduction in the order of 35% having regard to the assistance which he had given to the authorities and which he indicated he was prepared to give.

20 The sentencing judge also found that Yasin Capar was only involved in the operation for a limited period although a very significant quantity of drugs was distributed during that time. He was sentenced on the basis that although he was involved in a conspiracy, he was not a principal and did not share in the profits nor direct the operations of the business. The sentencing judge determined that the appropriate sentences for Yasin Capar were ten years imprisonment on the count relating to the supply of heroin, seven years on the count relating to supply of cocaine and four years each on the counts of money laundering and firing a firearm in a manner likely to injure another person. However, the sentencing judge reduced each of the sentences by fifty percent and imposed an overall sentence of six years and, finding special circumstances, imposed a non-parole period of three years.

21 The Director of Public Prosecutions appealed against the leniency of the sentence imposed on Yasin Capar to this Court. Although the Court was concerned that the fifty percentdiscount may have been generous, it determined that it should not interfere with the sentences that had been imposed.

The applicant’s submissions

22 When sentencing the applicant and his brothers the sentencing judge said:

“Whilst a plea of guilty is to be taken into account under section 21A, as has long been the law, where it is entered in the face of a strong Crown case, prisoners can expect a very limited reduction of sentence. In this case the reduction of sentence reflects the plea of guilty, the time at which it was entered and the benefits which that plea affords to the community in the sense of saving a substantial amount of time in what would have been an expensive trial of some duration. It may also be seen as an indication of remorse for the part played by each of the prisoners in his activity. I assess the reduction for mitigation at 15 per cent for each of the prisoners.”

23 The applicant submits that by fixing a discount for the plea of guilty but discounting it because “it was entered in the face of a strong to overwhelming Crown case” her Honour fell into error (see R v Thomson & Houlton (2000) 115 A Crim R 104 at [137]-[138]; R v Carter [2001] NSWCCA 245; R v Parkinson (2001) 125 A Crim R 1; R v Lowe [2001] NSWCCA 271; R v Gorgievski [2002] NSWCCA 45; R v Vukic [2003] NSWCCA 13; R v Petrie (2003) 141 A Crim R 396; R v Sutton [2004] NSWCCA 225; R v OPA [2004] NSWCCA 464; R v Rogerson [2005] NSWCCA 12).

24 It is further submitted that it is apparent from her Honour’s remarks on sentence that the fifteen percent discount was intended to include not only the utilitarian discount but also a discount for remorse because the utilitarian discount does not include the mitigating factor of contrition (see R v Thomson & Houlton). It follows, so it is submitted, that the actual discount given for the utilitarian value of the plea of guilty in the present case must have been less than fifteen percent (on the assumption that there was some unquantified discount for the elements of remorse and contrition).

25 Attention is also directed to the fact that the applicant’s brother Yasin had earlier been sentenced and a discount of fifteen percent to reflect his plea of guilty allowed. It is submitted that Yasin’s plea was entered after he had been committed for trial and after negotiations with the authorities. Accordingly, it is submitted that there is a basis for concluding that, in this respect at least, the applicant has a legitimate sense of grievance arising from the disparate treatment of his brother and himself.

Decision

26 I am not persuaded that her Honour erred in fixing the fifteen percent discount for the plea of guilty. If her Honour had confined her reasoning with respect to the quantum of the discount to the utilitarian value of the plea of guilty, an error may have occurred. However, her Honour also recognised that the plea carried with it an indication of remorse and in this respect her Honour was entitled to consider the strength of the Crown case (see R v Sutton at [12]).

27 In my opinion, it is significant, as her Honour acknowledged, that the applicant’s plea was entered only after the two co-offenders were cross examined at committal and, accordingly, it cannot be said that the plea was entered at the first available opportunity so as to attract a discount at the top of the range. The relevant principles were summarised by Hislop J in R v Atonio [2005] NSWCCA 200 at [40]. Although the agreed facts tendered to her Honour suggested that the plea was entered at the earliest opportunity, I am satisfied that her Honour was correct in concluding that this agreement should be given little weight in light of the true sequence of events (see Malvaso v The Queen (1989) 168 CLR 227 at [232-233]).

28 In setting the discount at fifteen percent her Honour adopted a figure which was within the commonly accepted range. It is important to appreciate that although guidelines were provided in Thomson & Houlton there is no presumption that a plea of guilty, even when offered at the earliest opportunity, will result in a twenty five percent discount. The usual range falls within ten and twenty five percent and it is a matter for the sentencing judge to determine, having regard to all of the circumstances, the appropriate discount in a particular case.

29 Even if error could be demonstrated in the discount which her Honour provided no basis has been indicated which would require the sentence imposed to be reviewed. The offences for which the applicant was sentenced involved a high degree of criminality arising as they did from a sophisticated drug operation controlled and managed by the applicant for personal gain. A very significant sentence was required. In some respects, in particular the fact that the applicant did not receive any additional penalty for the offence involving the firearm, the sentence was to be served concurrently, the sentence imposed on the applicant could be viewed as lenient.

30 In these circumstances s 6(3) of the Criminal Appeal Act 1912 is relevant and this Court should not intervene (see R v Simpson (2001) 53 NSWLR 704 at [79].

31 In my opinion, although leave should be granted, the appeal should be dismissed.

32 GROVE J: I agree.

33 HISLOP J I also agree.

34 McCLELLAN CJ at CL: The order of the Court will be as I have indicated.

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