R v Dursun

[2000] NSWCCA 68

Reported Decision: [2000] A Crim R 460

New South Wales

Court of Criminal Appeal

CITATION:	R v Dursun [2000] NSWCCA 68
FILE NUMBER(S):	CCA 60458/1999
HEARING DATE(S):	07/03/00
JUDGMENT DATE:	7 March 2000
PARTIES :	Regina v Durak Dursun
JUDGMENT OF:	Sheller JA; James J; Dowd J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/2053
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL :	CK Maxwell QC - Crown DM Spears - Respondent
SOLICITORS:	SE O'Connor - Crown Paul Kenny & Associates - Respondent
DECISION:	Crown appeal allowed - length of total sentence not changed but length of minimum term increased.

IN THE COURT OF
CRIMINAL APPEAL

No 60458/99

SHELLER JA
JAMES J
DOWD J

TUESDAY 7 MARCH 2000

REGINA v DURAK DURSUN

JUDGMENT

1   SHELLER JA: The court is in a position to give its judgment in this matter and I will ask James J to give the first judgment.

2 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Durak Dursun in the District Court on 15 July 1999 by his HonourJudge O'Reilly.

3 On one charge of supplying not less than the commercial quantity of a prohibited drug, namely cocaine, an offence under s 25(2) of the Drug Misuse and Trafficking Act, Judge O'Reilly imposed a sentence of imprisonment for five years, consisting of a minimum term of two and a half years commencing on 14 September 1998, the date of the offence and the date on which the respondent was taken into custody, and an additional term of two and a half years.

4   In sentencing the respondent the sentencing judge took into account four other offences being two offences of supplying a prohibited drug (cocaine), one offence of possessing an unlicensed pistol and one offence of possessing a prohibited drug (cannabis leaf). All of these offences were committed at about the same time as the principal offence and bore some relationship to it.

5   The maximum penalty for supplying not less than the commercial quantity of cocaine is imprisonment for 20 years or a fine of $350,000 or both.

6   The Notice of Appeal was signed by the Director of Public Prosecutions on 12 August 1999 and was served on the respondent on 18 August 1999.

7   In his remarks on sentence the sentencing judge stated the facts of the offence in a way which has not been the subject of any criticism on this appeal. The following is a somewhat abbreviated version of his Honour's statement of the facts.

8   In September 1998 a registered police informant provided information to the National Crime Authority about the drug activities of the respondent. The respondent was then operating a pizza shop on the Hume Highway at Liverpool. The respondent told the informant that at some time in the future he, the respondent, would be able to supply cocaine at a price of $120,000 a kilogram.

9   On 11 September 1998 the respondent and the informant had a meeting at premises in Burwood. At the meeting the respondent supplied one gram of cocaine as a sample. The supplying of this cocaine was the first of the four other offences taken into account in the sentencing of the respondent.

10   On 12 September 1998 the respondent told the informant that the respondent's pizza shop could be used as a place for supplying the bulk of the cocaine. The respondent told the informant that the initial amount to be supplied would be one kilogram and that, if that initial transaction proceeded satisfactorily, further quantities would be available to be supplied.

11   On 14 September the informant and two undercover police officers went to the pizza shop premises, which were shut, and met the respondent there. The respondent provided a further sample of cocaine. This was the second offence of supplying cocaine which was taken into account in sentencing the respondent.

12   The respondent made a telephone call in the presence of the informant and shortly afterwards a co-offender, a man named D'Orazio, was seen entering the back door of the premises, carrying a green bag. The respondent and D'Orazio went to the vehicle in which the two undercover police officers and the informant were. D'Orazio was carrying the same green bag as he had been carrying when he arrived. D'Orazio opened the green bag, he took out a plastic bag containing white powder and showed it to the occupants of the vehicle. The respondent and D'Orazio then returned inside the premises. The police then moved in and arrested the respondent and D'Orazio.

13   The green bag with the plastic bag containing the white powder, which had been shown to the informant and the undercover police officers, was located in a cabinet of a freezer in the premises. An analysis of the white powder showed it to be 990 grams of cocaine.

14   The respondent's vehicle was searched and a firearm, described by the sentencing judge as a disassembled home-made single shot pistol in working order, was found. His Honour found it was not "a high-tech piece of equipment".

15   The respondent did not have any license for the pistol and the finding of this firearm gave rise to the charge of possessing an unlicensed pistol. The respondent was also found to be in possession of a small quantity of cannabis leaf.

16 The quantity of cocaine which the respondent supplied of 990 grams was just below the upper limit of the commercial quantity applicable to cocaine in Schedule 1 to the Drug Misuse and Trafficking Act. The lower limit of the commercial quantity of cocaine is 250 grams and the lower limit of a large commercial quantity is one kilogram.

17   In his remarks on sentence the sentencing judge referred to the high amount of the commercial quantity of cocaine supplied as being an aggravating feature of the offence of supplying not less than the commercial quantity.

18   I turn to some of the subjective circumstances of the respondent.

19   The respondent was born in Turkey in 1955, he came to Australia in about 1970, he married in Australia and the marriage is still subsisting and he has a number of children.

20   The respondent set up a pizza shop at Liverpool in 1993 and then another pizza shop at Warwick Farm in 1996. He had experienced difficulty in obtaining a renewal of the lease on one of the premises and suffered financial hardship because of this.

21   A matter of some significance is the respondent's previous criminal history. Between 1980 and 1985 he had a number of convictions for breaking, entering and stealing and drug offences but none of these convictions had resulted in a full-time custodial sentence. However, in 1987 the respondent was sentenced for Commonwealth offences of possessing prohibited imports, conspiring to import prohibited imports and conspiring to supply prohibited imports.

22   The sentences of imprisonment for these offences imposed on the respondent were reduced on appeal to effective sentences of 16 years with a non-parole period of 10 years. The head sentences and the non-parole periods were reduced by remissions and by the application of the transitional provisions of the Sentencing Act 1989. The respondent was released from prison on 21 August 1992 and ceased to be subject to parole on 2 May 1996; hence the respondent was not subject to parole when the present offence was committed.

23   The respondent pleaded guilty to the charge of supplying not less than a commercial quantity of cocaine. The sentencing judge observed that the plea of guilty was "quite late". A trial of the respondent had been fixed to commence in the week after the date on which the respondent was sentenced. However, it was apparent from a statement made by the respondent to the police on 16 June 1999, to which I will refer later in this judgment, that at the time of making that statement the respondent was prepared to plead guilty.

His Honour said in his remarks on sentence:

"I do not think the lateness of the plea detracts much from the consideration he is entitled to."

24   In reaching this conclusion, his Honour expressly referred to what he called "the danger element". What his Honour meant by this expression is a matter to which I will return later in this judgment.

25   In his remarks on sentence the sentencing judge described as "a most important factor in the whole equation" the assistance the respondent had given and had undertaken to give in the prosecution of the co-offender D'Orazio. His Honour said that, apart from the assistance which the respondent had provided and had undertaken to provide, he would have imposed a total sentence of imprisonment of eight years. However, because of the respondent's assistance he would reduce the total sentence to five years.

26   A feature of the proceedings on sentence was that, although the sentencing judge was informed that there was a letter in the courtroom from the National Crime Authority relating to the respondent's assistance, neither the prosecutor nor the defence took any step to hand the letter up to his Honour or otherwise to acquaint his Honour with the contents of the letter and his Honour passed sentence on the respondent in ignorance of what was in the letter.

27   However, the nature of the assistance the respondent had provided could be gathered from the statement the respondent made to the police on 16 June 1999, which was admitted into evidence in the proceedings on sentence. In the statement the respondent provided detailed incriminating information about D'Orazio. He said, inter alia, that he had made arrangements with D'Orazio for the supplying of the cocaine, that D'Orazio had supplied the samples, that on the evening of 14 September he had telephoned D'Orazio, that D'Orazio had arrived at the respondent's premises carrying a green bag, that D'Orazio had opened the green bag and shown its contents to the informant and the undercover police officers and that D'Orazio had subsequently retained possession of the green bag.

28   In the latter part of the statement the respondent said that D'Orazio had approached him, while the two of them were in prison after their arrest, and had offered to pay the respondent a substantial amount of money, if the respondent took the full blame for the supplying of the cocaine. According to the respondent's statement D'Orazio said:

"Why don't you take the blame, they don't have much evidence on me. They only saw me for a couple of minutes."

29   After the respondent had rebuffed D'Orazio's approaches, D'Orazio said to the respondent:

"If you don't take the blame I know a lot of people in gaol and there will be drama."

30   The respondent said in his statement that he understood this to be a threat from D'Orazio to hurt or kill the respondent or members of his family.

31   In giving evidence in the proceedings on sentence the respondent gave an undertaking to give evidence in accordance with the statement at the trial of D'Orazio. We were informed in the course of the oral hearing of the appeal that the trial of D'Orazio is to take place next week.

32   In his remarks on sentence the sentencing judge said that he accepted that the respondent was in danger because of having provided assistance and that the respondent's family might also be in danger. His Honour said that there was something in what D'Orazio had said to the respondent in prison, to the effect that the evidence the police witnesses could give about D'Orazio's activities would be limited to evidence in relation to a period of a few minutes only and:

"It may be that without this evidence, that is the respondent's evidence, he - that is D'Orazio - could evolve some ingenious explanation, which would suffice to raise a reasonable doubt."

33   The sentencing judge added that in the proceedings on sentence the Crown had conceded that the respondent's evidence against D'Orazio could be decisive in the case of D'Orazio. I note that at one stage in the proceedings on sentence the representative of the Crown did say that the respondent's evidence would provide "the icing on the cake", so far as the Crown case against D'Orazio was concerned. However, towards the conclusion of the proceedings on sentence the representative of the Crown said that, while the respondent could clearly provide additional evidence beyond that which the police could give, there was no acknowledgment about the strength of the Crown case, prior to the statement being provided by the respondent.

34 The sentencing judge then considered the various matters set out in the paragraphs of sub-section (3) of s 442B of the Crimes Act. His Honour found that the assistance given was significant and useful, that there was no suggestion that the information was otherwise than truthful, reliable and complete, that the assistance was timely, that the respondent had not gained any other benefit from providing the assistance, that the respondent would suffer harsher custodial conditions because he would either be on protection or, if he was in the general prison population, he would be at risk of harm, that the respondent and his family were at risk of injury as a result of the assistance and that it was unlikely that the respondent would commit further offences after he was released.

35   His Honour imposed a sentence in which an additional term of two and a half years exceeds one third of the minimum term. In his remarks on sentence his Honour said that he accepted that the respondent up to the time of his arrest had been a drug addict. His Honour accepted evidence in a report by a psychologist Mr Diment, that he had been given a history by the respondent, which the sentencing judge found to be a true history, that the respondent had encountered financial problems in connection with his businesses, that he had lost control of his conduct, that he had taken to gambling and that he had taken to using cocaine heavily, that the respondent desired to be rehabilitated from his drug addiction and that the respondent needed to be monitored by appropriately qualified drug professionals.

His Honour then said:
"I make a finding under s 5(2) of the Sentencing Act of special circumstances. In my opinion, under ordinary proportionality there would simply be no time available to give him proper supervision and support. I propose to split that five year term in two."

36   On the hearing of this appeal it was submitted by counsel for the Crown that the sentencing judge had adopted a three stage process in the sentencing of the respondent.

37   Firstly, his Honour had arrived at a total sentence of eight years as being the total sentence that it would have been appropriate to set, if the respondent had not provided any assistance.

38   Secondly, his Honour reduced the total sentence from eight years to five years, because of the assistance.

39   Thirdly, his Honour divided the sentence of five years equally into a minimum term and an additional term, both of two and a half years.

40   It was submitted by counsel for the Crown that the starting point of eight years was low, given the objective seriousness of the offence and particularly the quantity of cocaine. It was submitted that the respondent's previous convictions for serious drug offences were matters of serious aggravation.

41 It was further submitted by the Crown that the allowance for assistance was, in the circumstances, high and that after the sentence was reduced for assistance the sentence was unreasonably disproportionate to the nature and circumstances of the offence. See Crimes Act s 442B(2).

42   It was finally submitted that the sentencing judge had not really stated why a longer than usual additional term was required and that the result of setting a longer than usual additional term had been that the minimum term set was manifestly inadequate.

43   The principles which govern Crown appeals against sentence are well known and need not be repeated here. See R v Alpass (1993) 72 A Crim R especially 562-563.

44   It was not disputed by counsel for the respondent that his Honour had engaged in a three stage process in sentencing the respondent. So far as determining what the length of the total sentence should be and how the total sentence should be divided into a minimum term and an additional term, this court has pointed out in such cases as R v Hampton (unreported 25 June 1998), R v Bloomfield (unreported 15 July 1998) and R v McDonald (unreported 12 October 1998) that it can be artificial to adopt a two stage process.

As was said by the Chief Justice in Bloomfield :

"The decision of what is an appropriate total sentence is affected by the process of deciding the allocation to minimum and additional terms and the process of determining minimum and additional terms is affected by the end result in a total sentence."

45   However, the adoption by the sentencing judge of a staged process, in which he first determined that the total sentence should be five years and then determined how that total sentence should be allocated between a minimum term and an additional term, would not of itself afford any ground for upholding the Crown appeal.
46   So far as the discount for assistance is concerned, it is permissible, although not obligatory, for a sentencing judge to indicate in sentencing a prisoner who has provided or who has undertaken to provide assistance, what discount he or she has allowed for the assistance provided or to be provided and hence what sentence the sentencing judge would have imposed in the absence of such assistance.

47   In my opinion, a total sentence of eight years, which was the starting point adopted by his Honour before any discount for assistance, was low but not outside the range of sentences within a proper exercise of his Honour's wide sentencing discretion. His Honour did refer to sentencing statistics kept by the Judicial Commission but the number of cases was too low to afford any real assistance. It is clear that his Honour allowed the respondent a significant credit for his plea of guilty, notwithstanding its lateness.

48   The sentencing judge allowed a discount for assistance of thirty-seven and a half per cent. In the circumstances of the case that was a high discount. The assistance was limited to assistance in relation to a single co-offender, who had been arrested at the same time as the respondent.

49   It would appear to me that his Honour rather overstated the value of the assistance provided by the respondent in the proceedings against the co-offender. As I have already remarked, in the proceedings on sentence the Crown ultimately did not make any acknowledgment of the strength or weakness of the Crown case against the co-offender in the absence of evidence from the respondent. In my opinion, the Crown, even without any evidence from the respondent, had a strong case against D'Orazio. Witnesses other than the respondent could give evidence that on 14 September 1998, after the respondent had made a telephone call, D'Orazio had come at night to premises which were shut, that he was carrying a green bag, that he had met and talked to the respondent, that he had opened the green bag and shown a bag containing white powder to the police officers and the informant, that D'Orazio had been arrested at the premises, that the green bag with the other bag inside it containing the white powder was found at the premises and that the white powder had been found on analysis to be cocaine.

50   Furthermore, it is apparent from his Honour's remarks on sentence that there was some overlap between the matters which his Honour considered entitled the respondent to a significant discount for his plea of guilty and the matters which his Honour considered entitled the respondent to a further significant discount for assistance. For example, in assessing the credit which should be given for both the plea of guilty and the assistance, his Honour referred to the danger the respondent had exposed himself to by giving the assistance.

51   However, I have concluded that this Court should not intervene on the basis that the discount the sentencing judge allowed for assistance was manifestly excessive. As the Chief Justice said in R v Chu (unreported 16 October 1998), there is no fixed tariff for the discount for assistance and the amount of the discount customarily given ranges, with a few exceptions, from 20 percent to 50 percent. As this Court said in R v Slatinec (unreported CCA 16 February 1999):

"There is no formula by which discounts are to be determined and given that their determination is to a significant extent a matter of impression and subjective judgment an appellate court should be slow to interfere."

52   Earlier in this judgment I referred to and quoted parts of the sentencing judge's remarks on sentence relating to the division of the total term into a minimum term and an additional term. His Honour accepted evidence that the respondent was addicted to drugs and that the respondent genuinely desired to be rehabilitated and his Honour accepted evidence by a psychologist that:

"with whatever sentence he receives he would need to be monitored by appropriately qualified drug professionals."

53   The assertion by his Honour in his remarks on sentence that "under ordinary proportionality there would simply be no time available to give him proper supervision and support", was in my opinion not warranted, even if his Honour should be understood as merely asserting, in an emphatic way, that under ordinary proportionality there would be insufficient time to give the respondent proper supervision and support. If the total sentence had been divided according to the common ratio, the additional term would have been one year and three months.

54   In my opinion, the total sentence of five years reached by his Honour was low. His Honour arrived at this result from a combination of adopting a staged sentencing process, giving a significant credit for a late plea of guilty by an offender who had been caught in the act, adopting a starting point as low as eight years and then giving a discount of 37 and a half per cent for assistance consisting of preparedness to give evidence against a single co-offender against whom there was already a strong Crown case. His Honour, as I have already remarked, would appear to have given the respondent credit for the risk the respondent was incurring, both in determining the discount for the plea of guilty and in determining the discount for assistance.

55   Although I have concluded that the total sentence of five years was low, bearing in mind the principles which govern appeals against sentence by the Crown, I am not persuaded that the court should intervene in relation to the total sentence fixed by his Honour.

56   I do, however, consider that the court should intervene in the matter of the division of that total sentence between a minimum term and an additional term. In my opinion, the minimum term fixed by his Honour was manifestly inadequate to reflect the criminality of the respondent.

57   In my opinion, there is no discretionary reason why the Crown appeal should not be upheld in relation to the division of the sentence into a minimum term and an additional term.

58   I am prepared to find that there were special circumstances consisting of the circumstances identified by his Honour, even though I have found that his Honour was in error in setting as proportionally long an additional term as he did.

59   I would propose that the Crown appeal against sentence be allowed to this extent. The total sentence of five years imposed by his Honour should remain. However, that total sentence should be divided into a minimum term of three and a half years commencing on 14 September 1998 and expiring on 13 March 2002 and an additional term of one and a half years. The earliest day on which the respondent will be eligible for release on parole will be 14 March 2002. Otherwise the Crown appeal should be dismissed.

SHELLER JA: I agree.
DOWD J: I also agree.
SHELLER JA: The orders of the court will be those proposed by James J.

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