R v Cassar
[2005] VSCA 164
•15 June 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 136 of 2003
| THE QUEEN |
| v. |
| RONALD JOSEPH CASSAR |
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JUDGES: | CHERNOV and NETTLE, JJ.A. and BYRNE, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 June 2005 | |
DATE OF JUDGMENT: | 15 June 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 164 | |
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Criminal Law – Sentencing – Importation of prohibited drugs of not less than commercial quantity – Knowingly concerned with importation of prohibited imports – Plea of not guilty – Disparity in sentencing compared to co-offender – Co-offender pleaded guilty – Appellant sentenced to six years and co-offender sentenced to three years and six months – Whether disparity gave rise to justified grievance – Appellant had no previous conviction while co-accused did – Appellant’s role considered as critical to overall importation scheme. – s.233B Customs Act 1901(Com)
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K.E. Judd | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr D. Grace, Q.C. with Mr M.J. Croucher | Leanne Warren & Associates |
CHERNOV, J.A.:
I will ask Nettle, J.A. to deliver the first judgment.
NETTLE, J.A.:
On 4 March 2003 the applicant was arraigned before the County Court at Melbourne on one count of being knowingly concerned in the importation into Australia of prohibited imports to which s. 233B of the Customs Act 1901 (Com) applies, namely, narcotic goods consisting of not less than a traffickable quantity of the narcotic substance Cocaine (Count 1), and one alternative count of without reasonable excuse having in his possession prohibited imports to which s. 233B of the Customs Act 1901 (Com) applies, namely, narcotic goods consisting of not less than a trafficable quantity of the narcotic substance Cocaine (Count 2), to both of which he pleaded not guilty. After a trial of 18 days duration he was found guilty and convicted of Count 1 and, after hearing a plea in mitigation, on 30 April 2003 the judge sentenced the appellant to be imprisoned for a period of six years and fixed a non-parole period of four years. The applicant now applies for leave to appeal against the sentence on the ground of alleged disparity as between it and sentences imposed on his co-accused, Marijan (Mark) Banda, Edmond “Sonny” Schmidt and Paletasala (Pale) Schmidt, and on the ground of manifest excessiveness.
The facts
The facts as found by the sentencing judge were that in October or November 2000, the applicant, his co-accused, and one Antonios (Tony) Mokbel engaged in a joint enterprise with a number of Mexicans to import cocaine from Mexico to Australia. The plan was that the cocaine would be sent in packages from Mexico, packed in wax candles or artefacts or something of the sort. The packages were to be sent via UPS, an international freight company of which the local office and warehouse were located in Ascot Vale. The applicant was the second-in-charge at the UPS Ascot Vale warehouse and thus in a position of considerable trust and responsibility. His role in the criminal enterprise was to be the man “on the inside”
and thus to obtain physical access to the packages of cocaine before they were subjected to Customs inspection.
Under UPS operating procedures, any package lodged anywhere in the world was given a unique tracking number which was recorded in the UPS on-line computer system and physically affixed to the package in the form of a barcode. The system was designed to enable electronic scanning at various transit points in the journey from point of dispatch to point of final destination and for location by trusted employees with access to the tracking numbers. As second in charge at UPS Ascot Vale the applicant was one such trusted employee.
Under bonded warehouse arrangements between UPS and Customs, packages arriving by air from abroad and requiring customs clearance were transported to the UPS Ascot Vale warehouse and placed in a secure restricted enclosure known as the customs bond area. Strict company rules governed the storage, access, handling, and ultimate release of such packages. The customs bond area was under 24 hour closed circuit TV surveillance and the surveillance was recorded on long-play video cassettes. But the applicant knew how to turn the system off and how to stop it recording and consequently he also had the ability to obtain undetected access to the customs bond area and so to packages before being cleared by Customs.
The judge described the role of each member of the joint enterprise in some detail. Mokbel had control and direction of the scheme and was the scheme financier. Banda was Mokbel’s trusted organiser, arranger and fixer. The Schmidt brothers were what the judge described as the foot soldiers. Their role was mechanical rather than organisational and it did not require much thinking. Those in Mexico were the suppliers and the shippers. The applicant’s role was critical. The efficacy of the joint venture depended upon the co-operation and participation of someone in the applicant’s position of trust and confidence. Without his involvement it could not have worked. He was involved for some time before the importation monitoring and critically involved at the time of importation.
On instructions from Mokbel, Banda ascertained the willingness of the Mexicans to ship cocaine and arranged for a test run. It was designed to satisfy Mokbel of the quality of the product and to prove the workability of the scheme, and it was successful. Following the test, Banda and Sonny Schmidt travelled to Mexico to hand over money for the first full-scale shipment and to obtain the UPS tracking numbers to enable the applicant to track the packages and ultimately remove them from the customs bond area before Customs inspection. As instructed, Sonny Schmidt handed over the money to the Mexicans and made arrangements for the shipment of the packages. But for one reason or another he did not get the UPS tracking numbers of the packages immediately and there followed a period of disarray and worry until they were obtained.
Fortunately, the authorities were ahead of the play. Unknown to the participants, police and Customs officers intercepted the shipment en route and arranged for removal of most of the cocaine and for a controlled delivery/importation. In due course the packages arrived at the Ascot Vale warehouse, apparently as they had been shipped from Mexico, but now under covert police surveillance. In the meantime Mokbel had informed the applicant of the UPS tracking numbers and the applicant began making enquiries to ascertain the whereabouts of the packages. After some delays he was able to inform Mokbel that the packages had been received into bond.
On the evening of Sunday 12 November 2000, after the cleaners had left for the day, the applicant disconnected the UPS surveillance video recorder and entered the customs bond area, opened the packages and removed some of the contents. He was, however, recorded red-handed on other surveillance equipment installed by the police as part of the controlled delivery arrangements and he was arrested almost immediately. Upon arrest he admitted that he had gone into the customs bond area and removed part of the contents of the packages but said falsely that he had done so as part of his duties out of concerns as to the legality of the contents of the packages.
The co-accused
Committal proceedings against the applicant, Banda, Sonny Schmidt and Pale Schmidt commenced in the Magistrates Court at Melbourne on 15 October 2001 and at the conclusion of the hearing on 18 October 2001 the applicant was committed to stand trial on one count of being knowingly concerned in the importation into Australia of a prohibited import, namely, cocaine, one count of being in possession of a prohibited import, namely, cocaine, and one count of conveying a prohibited import, namely, cocaine, to each of which he entered a plea of not guilty.
On 21 June 2002 Banda was indicted on one count of being knowingly concerned in the importation into Australia of a prohibited import, namely, cocaine, and several counts of being in possession of drugs of dependence, namely, cannabis, 4-methoxyamphetamine and 3,4-methylenedioxymethamphetamine. He was arraigned before a judge of the County Court on 11 July 2002 and pleaded guilty to each count. During the course of the plea hearing he gave an undertaking pursuant to s. 21E of the Crimes Act 1914 (Com) to the effect that he would give evidence as a Crown witness in the outstanding criminal proceedings against the applicant and Sonny and Pale Schmidt and Mokbel. On 8 August 2002 the judge sentenced Banda on the count of being knowingly concerned in the importation into Australia of cocaine to three years and three months imprisonment with a non-parole period of two years and three months, and on each of the other counts to two months imprisonment to be served concurrently with the sentence imposed on count 1.
On 20 January 2003 the applicant, Sonny Schmidt and Pale Schmidt were each indicted on one count of being knowingly concerned in the importation into Australia of a prohibited import, namely, a traffickable quantity of cocaine (Count 1), and one count of being in possession of a prohibited import, namely, a traffickable quantity of cocaine (Count 2). They were arraigned before the sentencing judge on 3 February 2003. The applicant pleaded not guilty to both counts. Sonny Schmidt pleaded not guilty to Count 1 and Pale Schmidt pleaded guilty to Count 1. Following a further mention on 18 February 2003, on 3 March 2003 Pale Schmidt was reindicted on one count of being knowingly concerned in the importation into Australia of a prohibited import, namely, a trafficable quantity of cocaine and one count of possessing a drug of dependence, namely, cannabis, to both of which he pleaded guilty.
Sentences
Sonny and Pale Schmidt were sentenced with the applicant following the applicant’s trial. On the count of being knowingly concerned in the importation into Australia of cocaine (Count 1) Sonny Schmidt was sentenced to imprisonment for three years to be released pursuant to s.20(1)(b) of the Crimes Act 1901 after serving 18 months upon giving security in the sum of $1,000 to be of good behaviour for the period which commences upon release and ends at the expiry of the sentence. Pale Schmidt was sentenced to two years imprisonment to be released pursuant to s.20(1)(b) of the Crimes Act 1901 upon giving security in the sum of $1,000 to be of good behaviour for two years.
Parity
It is submitted for the applicant that there is manifest and unjustified disparity between the sentence imposed on the applicant and the sentences imposed on his co-offenders. So far as Banda is concerned, it is accepted that he was entitled to a discount for his plea of guilty and for the assistance which he gave and is still to give to the authorities, but it is submitted that his role in the criminal enterprise was far more extensive than the applicant’s role and that, unlike the applicant, who had no prior convictions and was otherwise of good character, Banda had prior convictions and was not of good character. So far as Sonny Schmidt is concerned, it is also accepted that he was entitled to a discount on sentence because of his plea of guilty, but it is submitted that his role in the criminal enterprise was also more extensive than that of the applicant and that, even if it were no more extensive, the combination of factors going for and against each offender does not justify the imposition on the applicant of a head sentence twice as long and a non-parole period more than twice as long as those imposed on the others. As to Pale Schmidt, it is accepted that he played a lesser role and that other mitigating factors compelled the imposition of a shorter sentence than could be imposed upon the applicant, but it is contended that the disparity is nevertheless too great.
The parity principle is not in doubt. As between co-offenders there should not be a marked disparity in sentence which gives rise to a justifiable sense of grievance. If there is it may be appropriate to reduce the greater sentence within the permissible range of sentencing options[1] and it has been said that even if the severer penalty is not innately excessive it is still preferable to err on the side of leniency and eliminate or diminish the sense of grievance by reducing the severer penalty in appropriate cases. [2]
[1]Postiglione v The Queen (1997) 189 C.L.R. 295 at 301.
[2]Customs Act 1901, s. 235
But despite the careful and helpful submissions of Mr Grace, who appeared for the applicant, I am unable to detect any marked disparity as between the sentences imposed on the applicant and his co-accused.
Evidently, the judge had the parity principle very much in mind and he paid close attention to its requirements. Indeed his Honour began the explanation of his sentencing disposition with reference to the principle in its application to the sentence imposed on Banda, as follows:
“Mr Banda has already been sentence by another judge in respect of the same charge of being knowingly concerned in the importation. He received a sentence of three years and three months with a non-parole period of two years and three months. In fixing that sentence the sentencing judge took into account not only the role that he played but matters personal to him and the fact that he had pleaded guilty and , most significantly, the very considerable assistance that Mr Banda had given and promised the authorities. Without the appropriate discount for assistance, Mr Banda would have received a sentence of six and a half years with a non-parole period of four and a half years.
In all the circumstances, parity of sentencing is not required between each of you, on the one hand, and Mr Banda on the other. There are many differences between you, for example the role that each of you played, whether or not you pleaded guilty and the discount for cooperation and assistance.
. . .
Further, on the question of parity, it is not required between each of you, primarily because of the different roles that you each played in the enterprise. Again, however, when sentencing each of you I bear in mind the sentence that I propose to pass on the other two.”
His Honour then turned to the other co- accused and rejected the idea that the applicant’s criminality was minor in comparison to theirs. He characterised Sonny Schmidt’s involvement as being on a very low rung of the hierarchy and as definitely not that of a leader, and characterised the role of Pale Schmidt as at the lowest rung and peripheral and unessential. Contrastingly, his Honour said of the applicant’s role:
“Mr Cassar, your role in the enterprise was discrete and crucial. Without your participation, scheme could not have operated in the manner designed. It depended on your willingness to steer the tainted parcels past Customs. It involved you acting in serious breach of your duty to your employer and to Customs, whose agent you, in effect, were in the circumstances and this, as the Crown submits, is an aggravating factor. Its consequences for the community would be great.
I am satisfied beyond reasonable doubt that this was your role. It was not just to advise and monitor and report…
…I am not satisfied on the balance of probabilities that you were merely a knowing pawn of Mr Mokbel.”
It is true, as Mr Grace submitted, that Banda had prior convictions, but relatively speaking they were minor. Apart from driving offences, they were limited to two appearances in 1980 when he was 18, one in respect of a fracas at a hotel for which he faced four charges and was fined a total of $300 and the other for damaging and destroying property for which he received a good behaviour bond. At age 29 he was fined $400 for having an unregistered rifle which it was said he used for shooting rabbits and at age 32 he was charged with possession of cannabis and the charge was adjourned without conviction. According to the sentencing remarks he was otherwise of good character with a very strong commitment to work. Evidence was given, and appears to have been accepted, that his offending was out of character and that he was strongly remorseful for what he had done.
It is also true as Mr Grace submitted that, on one view of the matter, Banda’s involvement in the scheme was of a higher order than the applicant’s. In effect Banda was Mokbel’s trusted lieutenant for the purposes of the scheme whereas the applicant was a mere operative. But to approach the matter on that basis alone leaves out of account the serious aggravating circumstances of the applicant’s involvement: his clear and flagrant breach of the trust and confidence which his employer and, through his employer, Customs had placed in him. As the judge observed, the scheme could only be made to work if a person in the applicant’s position of trust and confidence was prepared to become involved; and in the way in which Customs and the importation of goods has to operate in practice, such breaches of trust and confidence are likely to have dire consequences for the community. In any event, as the judge noted, the head sentence of three years and three months imposed on Banda represented 50% of the sentence which would have been imposed were it not for Banda’s s.21E undertaking to provide future assistance. That implies that the sentence which would have been imposed on Banda without discount for the s.21E undertaking, but after taking into account his plea of guilty and past co-operation, was substantially more than six years and six months and therefore considerably more than the head sentence of six years imposed on the applicant.
So far as the other co-accused are concerned, I see very little basis at all for the suggestion of disparity. Like the applicant they were without prior convictions and otherwise of good character, but unlike the applicant they were of limited intellectual capacity. Sonny Schmidt was a body builder and, as it would seem, with little education or intellectual sophistication, and Pale Schmidt had a borderline IQ and was acutely susceptible to the influence of others. Contrastingly, the applicant completed his Higher School Certificate in 1979 in mathematics, English, English literature, social science, and legal studies, gained entry to university and after dropping out in the first year of study had worked continuously in the freight industry as a fleet controller and manager; along the way completing courses in management and service excellence. It may be assumed that he well understood the consequences of his actions. Furthermore, whereas Sonny and Pale Schmidt pleaded guilty and showed genuine remorse, there was little indication of remorse on the applicant’s part aside from charity work performed after he had been arrested and was awaiting trial, and even now little recognition of the gravity of his offending.
Mr Grace submitted in the alternative that even if there were no marked disparity as between the head sentences imposed on Banda and on the applicant there was a marked disparity as between the proportions of head sentence to be served as non parole periods in each case and Mr Grace invoked in support of his submission observations of the High Court in Postiglione v The Queen[3] as to the importance of comparing not only head sentences but also each of the components. Once again the principle is without question. But I do not accept the submission. I am unable to see any relative disparity between a head sentence of three years and three months with a non parole period of two years and three months and a head sentence of six years and a non parole period of four.
[3](1997) 189 CLR 295 at 301-2.
All things considered, I conclude that any sense of grievance the applicant may harbour about the difference between his sentence and the sentences imposed on his co-offenders is not justified
Manifest excessiveness
In support of the contention that the sentence imposed on the applicant is manifestly excessive, counsel for the applicant submitted that the judge gave too much weight to the aggravating factor of the applicant’s breach of trust and confidence and too little weight to mitigating factors. Reliance was placed on the absence of evidence of any monetary reward; the fact that the enterprise was not at the applicant’s initiative; that he had no prior convictions; that he had engaged in charity work; that he was well regarded by others and devoted to his family; that he had forfeited $40,000 worth of shares in his employer because of his convictions; that there was delay of two and a half years between the offending and sentence; and that he had a strong employment history with good prospects of rehabilitation.
I do not find the submission persuasive. The judge referred to each of those considerations and I have no reason to doubt that he took them into account in formulating his sentencing disposition.
The maximum penalty for the offence of being involved in the importation of a trafficable quantity of the narcotic cocaine is 25 years imprisonment. The minimum trafficable quantity of the narcotic cocaine is 2 grams. The amount involved in this case was almost 2 kilograms, which is to say almost a commercial quantity, for which the maximum sentence would have been life imprisonment. The judge concluded and I agree that this was a grave offence in which the applicant’s role was crucial. He acted in serious breach of his duty to his employers and to Customs, in effect whose agent he was, in order to extract the packages of cocaine from the customs bond area. It is true that his motive for offending was not established at trial but, as the judge said, given that it was to be an ongoing enterprise, it was not reasonable to think that he would just be doing a favour without reward or prospect thereof, and the judge was not satisfied on the balance of probabilities that the applicant was merely a knowing pawn of Mokbel. Prima facie a head sentence of six years and a non-parole period of four years is not excessive.[4]
[4]Lowe v The Queen (1984) 154 C.L.R. 606 at 612; R v Spizzerri [2001] VSCA 49; R v Williams [2001] VSCA 130.
Of course it is significant that the applicant had no prior convictions, was previously of good character with a good work record, a good family life and a worthwhile life within the community, and with good prospects of rehabilitation. They were all matters to which the judge was bound by s.16A of the Crimes Act to have regard and to which his Honour expressly paid attention. But as the judge also rightly said, considerations of that kind are of less importance in the formulation of
sentences for drug offences than they are in many other cases.[5] Recently in DPP v Leach[6] Vincent, J.A. noted again the concern repeatedly expressed in this court over the destructive effects of illicit drugs in our society and the importance of general deterrence as the principal sentencing consideration in drug trafficking cases. Leach was to do with trafficking in a commercial quantity of methylamphetamine, but of course the same considerations apply as much if not more in cases involving the importation of prohibited narcotics.[7] In my opinion it cannot be stressed too much that those who are tempted to get involved in the importation of traffickable quantities of prohibited narcotics will be sternly punished.
[5]R v Zapata (1995) BC9605254 at 5, per Charles, J. A.
[6](2003) 139 A Crim R 64 at [9]:
[7]R v Marcuson Marcus [2004] VSCA 155 at [4], applying R v Berisha & Ors. [1999] VSCA 112 at [39] – [43]
Given the gravity of this offence, the nature and circumstances of the applicant’s involvement and the aggravating circumstance of his breach of the trust of both his employer and Customs, I consider that the sentence which was imposed on the applicant was within the range.
Conclusion
I would dismiss the application.
CHERNOV, J.A.:
I agree. As Nettle, J.A. has explained, the respective roles of the co-offenders in the criminal undertaking and their personal circumstances were so disparate that the difference between the sentences imposed on the applicant and his co-offenders is not such that could reasonably lead to a justifiable sense of grievance on the part of the applicant. Notwithstanding the thorough argument of Mr Grace, I think there was no failure by the learned sentencing judge to have regard for the need for due
proportion between the sentence imposed on the applicant and those imposed on Banda and Sonny Schmidt.
On the question of manifest excess, Mr Grace has said all that could be said for the applicant on this issue, but I consider that the impugned sentence is within range, for the reasons given by Nettle, J.A. The offence was very serious, as was the offending conduct, which, as Ms Judd for the respondent pointed out, involved the applicant in a significant breach of trust to his employer. Moreover, the principle of general deterrence was a significant sentencing consideration in this case. The mitigating factors to which Mr Grace referred with his customary thoroughness were all taken into account by his Honour, and there is nothing on the face of the sentencing remarks that shows that inadequate weight was given to them.
Consequently, I too would dismiss the application.
BYRNE, A.J.A.:
I too would dismiss the application for the reasons given by Nettle, J.A. I have nothing further to add.
CHERNOV, J.A.:
The formal order of the Court is that the application of Ronald Joseph Cassar for leave to appeal against sentence is dismissed.
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