R v El Hani
[2004] NSWCCA 162
•21 May 2004
CITATION: R v El Hani [2004] NSWCCA 162 HEARING DATE(S): 23/04/2004 JUDGMENT DATE:
21 May 2004JUDGMENT OF: Simpson J at 1; Bell J at 2; Howie J at 3 DECISION: Leave to appeal is granted but appeal is dismissed. CATCHWORDS: Criminal Law and Procedure - Sentencing - Discounts for plea and assistance - impact of assistance on family of offender - whether disparity with sentence for co-offender. LEGISLATION CITED: Justices Act 1902 - s 51A (now repealed)
Customs Act 1901 - s 233B(1)(d)
Crimes Act (Cth) 1914 - ss 16A(2)(p), 21E
Crimes (Sentencing Procedure) Act 1999 - s 23CASES CITED: R v Shepherd [2003] NSWCCA 287
R v Herrera (NSWCCA, unreported, 6 June 1997)
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Gallagher (1991) 23 NSWLR 220
R v NP [2003] NSWCCA 195
R v Cartwright (1989) 17 NSWLR 243
R v Chu (NSWCCA, unreported 16 October, 1998)
R v Barrientos [1999] NSWCCA 1
R v Mostyn [2004] NSWCCA 97
R v Way [2004] NSWCCA 131
R v Newman [2004] NSWCCA 113PARTIES :
Regina v Antoun El Hani FILE NUMBER(S): CCA 060461/03 COUNSEL: R. Bromwich - Crown
P. Byrne SC with M. Thangaraj - ApplicantSOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Leary and Company - Applicant
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/0790 LOWER COURT
JUDICIAL OFFICER :Shadbolt DCJ
060461/03
FRIDAY 21 MAY 2004SIMPSON J
BELL J
HOWIE J
1 SIMPSON J: I agree with Howie J.
2 BELL J: I agree with Howie J.
3 HOWIE J: The applicant pleaded guilty before a magistrate under, the now repealed, s 51A to one charge of being knowingly concerned in the importation of a commercial quantity of MDMA, commonly known as ecstasy, contrary to s 233B(1)(d) of the Customs Act. He was committed for sentence to the District Court and ultimately came before Shadbolt DCJ. He adhered to his plea of guilty and the sentencing proceedings commenced on 15 November 2002. The proceedings continued through 19 and 20 December 2002, and on 27 February 2003. On 3 March 2003 the applicant was sentenced to imprisonment for 15 years with a non-parole period of 10 years. The sentence commenced from 5 December 2001 and the applicant is eligible for release to parole on 4 December 2011.
4 The applicant seeks to rely upon a number of specified errors attributed to his Honour in exercising his sentencing discretion. Before indicating the grounds and the arguments in support of them, it is necessary to set out some relevant facts and circumstances concerning the offence committed and the proceedings before Judge Shadbolt. It should be noted that the applicant was a co-offender of the applicant in the proceedings before this Court in R v Shepherd [2003] NSWCCA 287, a decision given after the sentencing of the applicant. It will be necessary to return to that decision and consider what, if any, impact it has on the present proceedings.
The prosecution case
5 The charge alleged that the applicant was knowingly concerned in the importation of the drug between 23 March 2001 and 5 December 2001. He was during that time a resident of Lebanon but made a number of overseas trips including a visit to Sydney between 17 March and 18 April 2001.
6 On 26 April 2001 the applicant travelled to the Netherlands to be present at a meeting attended by a number of alleged co-offenders including Joseph Sukkar (“Sukkar”), Josef Faas (known as “Jeff”) and a person named “Eric”. The meeting concerned the importation into Australia of ecstasy concealed in tubes and consigned to Sukkar. The applicant returned to Lebanon on 8 May 2001.
7 On 15 October 2001 a vessel left Antwerp carrying the drugs concealed in a container in which was packed three crates of freezer parts including 48 plastic pipes holding approximately 480,000 ecstasy tablets. The tablets had a net weight of over 123 kilograms and they contained 34.401 kilograms of pure drug. The container was off-loaded to another vessel in Singapore on 1 November 2001. It arrived in Brisbane on 17 November 2001 and was unloaded on that date.
8 On 7 November the applicant travelled to Brazil. While in that country he received a telephone call from Sukkar advising him that the shipment of drugs had been consigned to Australia.
9 On 20 to 21 November 2001 the container was inspected by Customs officials and the tablets located. They were removed and the majority replaced with substitute tablets: 3.3 kilograms or 13,000 tablets were retained in the pipes by way of a controlled delivery of the drug.
10 On 23 November 2001 the container was delivered to factory premises in suburban Brisbane where it was unpacked by co-offenders Shepherd and Bourke. Forty-eight of the columns were placed on a truck and taken to Kempsey by Bourke under the supervision of a person named Choi and Sukkar’s brother, Loui. Choi was a director of the company to which the container had been assigned. At Kempsey Loui Sukkar took over the driving of the truck and brought it to Sydney. On 24 November the three Sukkar brothers unloaded the columns at a private residence in Concord West.
11 Shortly thereafter it was discovered that the columns did not contain the drugs that were expected and a number of telephone calls took place between Sukkar, Jeff and Eric about this situation. Those calls were intercepted by investigating police.
12 At about this time, the applicant received a telephone call in Brazil from Sukkar informing him of what had been discovered and suggesting that the drugs had been stolen in the Netherlands. He complained that Jeff had been accusing him of stealing the drugs and asked the applicant to travel to the Netherlands to deny the allegation on his behalf. The applicant agreed to do so.
13 On 26 November, in a telephone conversation with Sukkar, the applicant informed him that he was going to travel to Paris, then Amsterdam and ultimately to Australia. He was going to bring with him a person named “Ron”, who had been responsible for sealing the tablets in the tubes before they were transported to Australia, and who would inspect the tubes to see whether they were in the same condition as when he sealed them. This was in an endeavour to determine whether the tubes had been swapped before shipment. The applicant advised Sukkar that he was to “calm the Chinese man” (Choi) until he and Ron had arrived in Australia. There was discussion as to whether Ron or Eric might have been responsible for the substitution. The applicant told Sukkar that the suspicion was “at his (Sukkar’s) end”. Sukkar said that the substitution of the drugs “needed to be uncovered”, and the applicant agreed but told him he could do nothing from where he was. The applicant directed Sukkar to send him money for the purchase of an airline ticket to Australia.
14 Later that date there was a further conversation between them as to the disappearance of the drug and whether “the government” might have been involved. The applicant advised that he would have a meeting the next day with “those people” following which he would be able to tell Sukkar whether the government was involved. The applicant thought that Ron would be able to provide the solution and that an e-mail had been sent to him. The two discussed how many genuine tablets of drug might be found inside the columns and expressed the hope that there would be 20,000 of them.
15 Still later that date, Jeff rang Sukkar and advised him that two persons would come to Australia to investigate the situation one being “the one who made the drill work” and the other being “the one who finished it”. He also advised that the applicant would speak to Jeff and travel to Australia.
16 On 27 November the applicant travelled to Paris and then Amsterdam where he met Jeff and discussed the missing drugs.
17 On 28 November there was a call between Sukkar and the applicant concerning the meeting with Jeff. The applicant advised Sukkar that he intended to meet with Jeff again the next day and that, if Jeff accused Sukkar of stealing the drugs, he would “fight with him”. There was further discussion about the applicant’s arrival with Ron, and Sukkar was told to leave everything “as it is” until they arrive.
18 During that call the following exchange occurred (MI is the applicant and M2 is Sukkar):
M1: Brother how are we going to pay the man I told him (wd)
M2: What man
M1: Your end the Chinese
M2: Yes alright but him him him will they pay us all our share if it is found out that the blame is not here
M1: If they don’t pay us our share then they will have to do another one you donkey so that (wd)
M1: When they do another one they will pay the Chinese.M2: Another one but we need to close the past. How shall we close the past
19 On 29 November there was a further conversation about who was responsible for the substitution of the drug and the applicant informed Sukkar that he was still “arguing with him”.
20 Later that date there was another phone conversation between the two about the stealing of the drugs and during which the applicant cautioned Sukkar about talking too much on the phone. They discussed the possibility of Choi being involved and whether the tablets could be tested to determine their place of manufacture. The applicant said to Sukkar, “In forty years of working I have never experienced anything like this”.
21 On 30 November there was a conversation by telephone between the applicant and Sukkar in which the offender offered him the opportunity of speaking with both Eric and Jeff. He did so for a short period and then the applicant resumed the conversation advising Sukkar that there was “nothing at all here” and that “the old man is standing in front of me…the one who sealed the box”. He suggested that it might be “the government” or “the Chinese man” who took the tablets but that “the government wouldn’t have left you for twenty days”.
22 A short time later there was a further conversation involving the applicant, Sukkar, Jeff and Eric in which the applicant assured Sukkar that it was not Jeff or Eric who stole the tablets but “the government”. He told Sukkar to be careful in case they were both arrested and imprisoned.
23 There were a further two calls that day regarding the circumstances in which the crates were opened. In the later of them, the applicant informed Sukkar that he was coming with Ron and asked whether the money had been sent.
24 On 1 December there was a telephone conversation between Sukkar and the applicant concerning his imminent arrival in Australia with Ron. The applicant told Sukkar not to inform Choi of their arrival and that he would teach Sukkar how Choi stole the tablets. He directed Sukkar to separate the red and blue tablets from the white and to ask in the market where they were made. He informed Sukkar, “You are entitled to a dollar per tablet, you just fill up bags and give them to the people”.
25 The next day, 2 December, there was a further conversation between the two during which the applicant advised Sukkar that Choi stole the tablets and that it was unnecessary for anyone to travel to Australia to investigate the matter. Sukkar told him that Choi had gone to Korea. The applicant confirmed that Jeff was sending him to Australia but not with Ron.
26 Later that date, while the applicant was travelling to Australia, there was a conversation between him and Sukkar concerning Choi and whether he might have been selling the tablets. He advised Sukkar to dispose of all of the substitute tablets except for ten of each colour.
27 On 3 December the applicant arrived in Sydney. He entered on his Incoming Passenger Card that his country of residence was France and that his main reason for coming to Australia was “Holiday”. He met Sukkar at the airport and they travelled to a hotel in Sydney city. Jeff advised him by telephone that he was expecting an answer from Belgium in five or six hours.
28 On 4 December Sukkar met with the applicant and they went to the premises in Concord West where the tablets were stored. Police intercepted a conversation between the two during which they discussed the tablets and the applicant examined them. There was also a discussion of Choi’s return to Australia. Later that date there was a further conversation between them at the premises in which they both expressed the belief that Choi has “ruined us” because of the debts that had been incurred. They discussed what would happen if Choi returned and whether they could recover the drugs from him.
29 The next day the applicant again went with Sukkar to the premises at Concord West and was present there when police executed a search warrant. Police later took the applicant back to his hotel. During a search of his luggage and personal effects, the applicant told police that he had come from Paris to visit his family.
30 The applicant was arrested on 5 December 2001 and remained bail refused until sentenced by Judge Shadbolt.
The sentencing hearing – evidence of assistance
31 On the hearing before Judge Shadbolt, at the applicant’s request and after the brief of evidence had been tendered, a Federal Agent of the Australian Federal Police was called to give evidence in respect of the extent of any assistance given by the applicant to investigators following his arrest.
32 As has already been noted, the applicant was arrested on 5 December 2001. On 7 August 2002 he met with Agent Watt and on 22 October 2002 he took a statement from the applicant. That statement was in evidence before Judge Shadbolt. The applicant was further interviewed on 28 and 29 October and a second statement made on 31 October 2002.
33 On 7 November 2002, after the commencement of the sentencing proceedings before Judge Shadbolt, the applicant’s solicitor rang the officer about the progress of what is often referred to as “a letter of comfort” setting out the applicant’s assistance to investigating officers. In answer to a request from the solicitor as to the quality of the assistance, the officer said that “it might be useful in the prosecution against Joseph Sukkar for an earlier importation”, but that was dependent upon checks that then had to be made. As to the state of those further inquiries at the time of the adjourned hearing date, the officer said, “Some of them have been resolved, yes. Some of them are still outstanding due to inquiries overseas”.
34 Agent Watts was cross-examined by Senior Counsel for the applicant. He said that he had that morning informed the applicant’s solicitor that the information was “useful” but he denied that he had described it as “valuable”. When asked, “Well do you regard it as having been significantly helpful?”, the officer responded, “Overall no”. When asked that question again by Judge Shadbolt, The officer responded,
I said useful bearing in mind the fact if - on its – on face value I found the information would be useful in a prosecution, however that combined with further inquiries or further assessment made by the NCA indicated the offender wasn’t totally honest or frank in his own involvement in any of the matters he spoke about.
35 In respect of the statement made by the applicant on 22 October 2002, the officer said,
Well a lot of the information that he gave in the first statement we already knew which formed part of the brief or which formed the brief of evidence and in the second statement again some of the information was already in the brief of evidence and some of that information we didn’t know.
When asked whether the applicant had co-operated with police in the making of the second statement, the officer replied,
In regard to other people’s involvement but not his own.
36 The officer confirmed that since July 2002 the applicant had made it known that he wanted to assist the investigators but that some delay occurred because the applicant wanted an indemnity. On 14 November 2002, the day before the hearing, the applicant’s solicitor was informed that an indemnity would not be granted to the applicant.
37 In answer to a question by his Honour, Agent Watt confirmed that without the information provided by the applicant, he believed the prosecution case against Sukkar and Shepherd “was overwhelming”. In respect of other criminal activity by Sukkar, the information provided “added more details to what we already suspected or what we already had been able to prove” but that “there are certainly more inquiries we can make as a result of that information”. The following question and answer then took place:
A. Not particularly no, I said we believe the case that we’ve already got against the - we believe the case we’ve got against the person who is already charged with [an earlier importation] is strong and that the information that [the applicant] gave against overseas principals is also very strong.
Q. I don’t want any specific[s], has [the information] indicated to you avenues of inquiries which would safeguard the populace of Australia against importation of drugs?
38 The applicant’s wife gave evidence before Judge Shadbolt. She was asked about her knowledge of the Sukkar family in Lebanon. The following questions and answers took place:
Q. Are you aware that your husband has shown his willingness to give evidence against members of the Sukkar family?
A. Yes I am also conscious and aware that the fact that he give testimony against Joseph Sukkar is a danger, it’s very dangerous for him and for me and for my children. I’m all alone, I haven’t got any family of mine in Lebanon, my only strengths, my only help is my husband.
Q. Are you afraid of what might happen?
A. Of course I am.
A. They can take revenge and I have a son of 20 and I think its dangerous.Q. What do you think might happen?
39 The applicant’s daughter also gave evidence. She was asked about the Sukkar family as follows:
Q. You know the Sukkar family don’t you?
A. They are well known in Lebanon, family Sukkar. During the war – the civil war they are like a party, you know they have guns and they still they have this mentality for revenge, eye for an eye and tooth for a tooth, they live in the mountains, they’re very well known revengeful Mafia sort of family.
Q. So do you have some fear as to what might happen?
A. Of course yeah. We have been threatened all ready.
Q. Particularly if your father is giving evidence against them?
A. Yes
Q. Did that threat come to you or how did you find out about it?
A. To my father when he was – yeah to my father was – he was in the civil war too.
Q. Did your father tell you about it?
A. Yes
A. Joseph and his brother.Q. Did you know from whom the threat came?
40 The applicant gave evidence during which he touched upon his fears in respect of the Sukkar family as a result of his assistance to police. He indicated that the Sukkar family lived only five kilometres from him in Lebanon and that “they have got arms. They carry guns all the time. They go to church carrying guns”.
41 Counsel for the applicant tried to tender before the sentencing judge a letter as to the applicant’s custodial conditions but it was rejected on the basis of its unreliability. The evidence given by the applicant as to who was the author of the document or on what information it was based was confused and unclear.
42 Agent Watt gave evidence that the applicant was in “protected custody” and that he was moved into protection because of threats made to his life.
The sentencing hearing – evidence of participation by the applicant
43 Agent Watt was asked by Judge Shadbolt to offer his opinion as to the applicant’s position in the organisation involved in the importation. There was no objection taken to this question or those that followed it. The officer said,
I believe they’re senior. I believe that his role was – he’s in direct contact with the principal overseas as a close associate. I believe that he was giving advice to the senior people over here as to how to handle the situation and I believe that he was being sent to Australia to oversee the problem and to try and solve the problem.
He also added that he believed the applicant to have had a financial interest in the shipment and believed that he would not get paid if the tablets were not found. He did not believe that the applicant was a principal but that he had a “managerial role” as far as the importation was concerned.
44 The officer was cross-examined at some length about the basis for the view he had expressed about the applicant’s role and answered generally by relying upon the contents of the various phone conversations that are summarised earlier in this judgment. He was asked to describe what he meant by stating that the applicant’s role was “managerial” and he answered,
A. Well not so much – when people get to certain - with my experience its when people get to certain levels in drug syndicates they don’t actually touch the drugs themselves.
Q. You regard Joseph Sukkar as being the real principal don’t you?
A. In Australia yes.
Q. And Jeff and Eric as being the real principals overseas?
A. Yes.
Q. Not this offender?
A. Well he’s a very senior member of this syndicate- a senior member of the syndicate is what I said.
A. Well he’s trusted, I think he’s got a role above that of many other people that were involved in this.Q. What does that mean though? Senior member?
Q. All I’m asking you is this at the moment, it’s true to say that from what you’re able to learn from telephone intercepts and the like, bits of conversation, there was no role defined for this offender in the ordinary course of this importation?
A. Had it not been discovered?
A. No that’s – that would be a fair thing to say.Q. Had it not been discovered?
45 The applicant gave evidence as to his involvement, or lack or involvement, in the importation of the drugs and his presence in Australia at the time he was arrested. He maintained steadfastly that he was in this country “to do a bit of gambling”.
46 He said that he was present at the meeting in the Netherlands merely to make coffee and played no part in the discussion. However, Sukkar told him later about what had happened in the meeting. He understood that there was a Chinese man involved and ultimately they were to get one dollar per tablet. He was not offered any part in the enterprise.
47 He conceded that, when he was in Brazil, Sukkar advised him that the importation was to proceed. Later Sukkar rang him and accused him of sending goods that were not genuine. He was told that Sukkar had spoken to Jeff but had been accused of cheating him. Later the applicant met with Jeff in Holland and Jeff asked him why he was interfering in the affair. It was decided that he would come to Australia with Ron and was given $5,000. Before he departed for Australia he was told that it was unnecessary for him to go.
48 He was asked why he came to Australia and he answered,
Because I had the $5,000 and I wanted to return them to its rightful owner and to play some cards, a bit of gambling, and to see Joseph.
49 The applicant maintained throughout his evidence that he had no role to play at all in the importation. When asked to explain what he was trying to do by his actions as set out in his statement to police, he replied, cryptically,
I came here because I didn’t have a penny in Lebanon and I came here to live, to survive.
50 His evidence was that he took no step to find out what had happened to the drugs, he played no part in the arrangement for the shipment of the drugs, he was not promised any share in the profits and he did not expect to receive any commission. He said,
If Joseph [Sukkar] had done well, he would have given me [something], because he knew I was in hardship.
He said in cross-examination that he may have been given “30, 40, 50,000”. But he added that Sukkar might not have let him know that he had been successful.
51 The following exchange occurred during cross-examination in relation to conversations with Sukkar about his travelling to Australia:
Q. You were concerned that if you came to Australia to investigate the substitution you might be arrested weren’t you?
A. I did not want to meet Ron. I did not want to meet the Chinese man. I knew strongly that it was the police. I did not want to meddle in this story or thing, I did not have anything to do with - I said to him, I don’t want Ron with me in the same hotel, I want to go to the casino. I wanted to stay at the hotel under…I did not want to mention the word “casino” in front of the Dutchman.
Q. You thought that if you came to Australia to investigate the missing tablets, you would be arrested by the police didn’t you?
A. Investigate what? Investigate what?
Q. To investigate whether Mr Choi had stolen the tablets in Australia?
A. I didn’t know Choi……………..I came here the Chinese man was not here, I did not see any tablets, I came here and gambled.
A. I had nothing to do with it. I did not have anything to do with it. In any country that would not stop me (sic). I had nothing to do with it. I had no work in it. I was arrested, why?Q. You were prepared to run the risk of being arrested in Australia in order to try and recover the tablets weren’t you?
52 The applicant maintained that some of what he said on the calls was merely repetition of what he was being told by Jeff who was standing next to him. The applicant sought to challenge the interpretation of some of what he was alleged to have said on the calls and to this end evidence was given by an interpreter, engaged on behalf of the applicant, of her version of some of the calls. A document was produced purporting to be a translation by the witness of some conversations and which contained quotation marks around parts of what the applicant said, presumably to give the impression that something about the conversation indicated that the applicant was quoting or repeating the statements of another person. The witness, however, denied that she was responsible for the quotation marks appearing on the translation, and stated that, although she had signed the document, she had not prepared it.
53 The Crown called the interpreter who had prepared the transcripts tendered in the Crown case and he confirmed their accuracy, having rechecked them while again listening to the recordings of the conversations shortly before giving evidence.
Grounds of appeal
54 The applicant seeks leave to appeal against the sentence imposed on five grounds, which are as follows:
1. His Honour should have found as a relevant fact for the purpose of sentence that the applicant’s decision to co-operate with the authorities would have a significant impact of the applicant’s family and should have given weight to this fact in mitigation: s 16A(2)(p) Crimes Act 1914 (Commonwealth).
2. His Honour failed to give the applicant an appropriate discount for his assistance.
3. His Honour erred in determining the role of the applicant in the illegal organisation beyond the scope of the offence for which the applicant was to be sentenced. His Honour ought to have confined himself to a determination of the applicant’s role in the offence. In any case his Honour erred in concluding that the applicant either held a senior role in the organisation or played a leading role in the offence.
5. The applicant ought to have received a lower sentence than a co-accused Maurice Charles Shepherd, sentenced by his Honour Judge J.X. Gibson [on] 8 November 2002 and appeal heard by this court on 16.10.2003; R v Shepherd [2003] NSWCCA 287.4. His Honour failed to give the applicant an appropriate discount for his plea of guilty.
Ground 1 Effect of assistance on the family
55 Section 16A(2)(p) of the Crimes Act (Cth) requires the court to take into account when passing sentence:
the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
It has been held that this requirement must be read in accordance with the common law limit placed upon the relevance of the effect of a sentence on persons other than the offender, so that the effect of a prison sentence on the family of the offender can be taken into account as a mitigating factor only in exceptional, very special or extraordinary circumstances; R v Herrera (NSWCCA, unreported, 6 June 1997). There has been no consistency in the epithet used to describe the nature of circumstances that would permit this factor to be taken into account.
56 During the course of his remarks on sentence, his Honour said:
Senior Counsel has called the offender’s wife and his daughter who had flown from Lebanon to speak of his background and character. I accept their evidence. The Court acknowledges that they will be left in a difficult, if not parlous situation both physically and financially if the prisoner gives evidence against the Sukkars whose clan, it appears, still lives nearby. But it has to be borne in mind that for this to in some way mitigate the sentence, circumstances must be so extraordinary as to warrant a reduction, and I am not of a view that their evidence, individually or in combination, reaches that point.
57 It is submitted by Mr Byrne SC for the applicant that this statement reveals an error because his Honour misunderstood the relevance of the evidence of the wife and daughter and the effect to which it could be given when determining the sentence to be imposed upon the applicant. It was conceded that his Honour could not take into account the effect of the sentence upon the family for the purposes of s 16A(2)(p) because of the unchallenged finding that “his wife and children will of course suffer but to no greater degree than the family of any other criminal”. But it was submitted that s 16A(2)(p) did not govern the situation in respect of the effect upon the family of the assistance given by the applicant to the authorities. It was submitted that in such a case there was no requirement that the circumstances be “extraordinary”.
58 It should be noted that s 16A(2)(p) is only concerned with the impact of the sentence upon the offender’s family; that is the impact of the offender being imprisoned for a specific term, or at all. The provision, and the limit placed upon it, is not concerned with some other relevant consideration arising in the course of sentencing the offender that has some bearing upon his or her family and may impact upon the sentence to be imposed. In particular, there is no principle that limits the court’s consideration of the effect upon the offender’s family of the fact that the offender has co-operated with the investigating or prosecuting authorities.
59 The Crown has not suggested that a court could not take into account the impact upon the offender’s family as a consequence of the assistance given. The opening words of s 16A(2) make it clear that the list of matters contained in that subsection are not the only matters a court can take into account in determining the appropriate sentence. Rather they are matters that the court is required to take into account if relevant and known to the court.
60 I note that one of the matters the court is to take into account when applying the provisions of s 23 of the Crimes (Sentencing Procedure) Act when exercising state jurisdiction, is by s 23(2)(h):
any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist.
61 His Honour was in my view in error in holding that he could not take into account as a matter of mitigation the effects upon the applicant’s family of his assistance to the authorities because it was not sufficiently exceptional or extraordinary. However, whether that error is material depends upon a consideration of the next ground of appeal.
Ground 2 – Discount for assistance
62 Judge Shadbolt indicated that he was giving the applicant a discount of 12½ per cent on account of the assistance that he had given to the authorities. In that regard his Honour stated:
His assistance to the Crown has been limited in the way which has been expressed by Detective (sic) Watt. Nevertheless, despite his dishonesty in relation to his own involvement, he has made himself available to assist the Crown in the cases against Sukkar and others. The Crown does not intend to use him but nevertheless, this will of course result in his sentence being served under strict protection and that will be taken into consideration.
63 It is submitted that the discount was inadequate having regard to the following: the assistance had been given early in the investigation; it involved both the present and a past offence committed by his co-offenders; the assistance was useful in that it supported other material that the investigators had in their possession; it placed the applicant in jeopardy from other prisoners and resulted in his being placed in protection; it impacted upon the applicant’s family.
64 Although the applicant had offered to give evidence for the prosecution against Sukkar and others, the Crown did not take up that offer. The reason for the Crown’s disinclination is clear when regard is had both to the applicant’s statement made to police and his evidence before Judge Shadbolt: he was a dishonest witness in regard to the events surrounding the importation, at least so far as his own involvement in it was concerned. It was the quintessential example of the unreliability of the evidence of an accomplice who seeks to downplay his part in an offence possibly at the expense of others.
65 In this case there was no discount appropriate for future assistance based upon the fulfilment of a promise or undertaking to give evidence. In that circumstance there was no need for the judge to specify separate and distinct discounts for the plea and the assistance. In many, if not most, cases it will be inappropriate to do so because there is the real possibility that an element of double counting will arise so that the overall discount will be inappropriately high.
66 Prior to R v Thomson and Houlton (2000) 49 NSWLR 383 it was the almost invariable practice for a sentencing judge to indicate that a single discount was being given for both the plea and the assistance. This was because there is a significant overlap between the factors reflected by the plea, contrition, rehabilitation and assistance. In R v Gallagher (1991) 23 NSWLR 220 at 227-228 Gleeson CJ said:
…………..It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.
67 After referring to a number of authorities concerned with the specification and quantification of a discount for assistance and the requirements of s 21E of the Crimes Act, the Chief Justice stated, at 230:
A judge who extends leniency on the ground here in question should say that this is being done and why. However, I am of the view that, subject always to any relevant statutory requirement, a sentencing judge is entitled, but not obliged, to give a discrete quantifiable discount on the ground of assistance to authorities, provided it is otherwise possible and appropriate to do so. For reasons earlier stated, there may be many cases in which it is either impossible or inappropriate to take that course. Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by "tariffs" derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.
68 A situation where it might not be appropriate or possible to specify the discount is a case where the assistance cannot be identified as a discrete matter, distinguishable and quantifiable, without regard to other mitigating subjective factors. This will generally be so where the assistance follows a plea of guilty and is part of the process of remorse, reform and rehabilitation.
69 The guideline judgment in Thomson and Houlton was not intended to change the established practice in that regard. The guideline specifically recognised at [160(ii)] that, in cases involving assistance to the authorities, a single combined quantification of a discount for both the plea and assistance “will often be appropriate”.
70 However, in the present case his Honour found that there was no remorse and that the applicant had not acknowledged, even in evidence, that what he had done was wrong. His Honour concluded that the applicant “might well be rehabilitated”. In those circumstances, which will be relatively rare, it was not necessarily inappropriate for the sentencing judge to indicate the discount for assistance as separate and distinct from the purely utilitarian value of the plea. However, as was indicated in R v NP [2003] NSWCCA 195, in a case where it is appropriate to specify individual discounts for the plea and assistance, the discount for the latter is not added to the discount for the former. The discount for assistance is applied to the balance of the sentence after the discount for the plea has been taken into account. In this regard his Honour erred in favour of the applicant.
71 The range of discount normally appropriate for assistance has been held to be 20 per cent to 50 per cent. The cases usually cited for support for such a range include Cartwright (1989) 17 NSWLR 243 and R v Chu (NSWCCA, unreported, 16 October 1998). In Chu the Chief Justice noted that English authorities supporting a range up to two-thirds had not apparently been followed in this State. It should be noted that Cartwright and Chu were both decided before Thomson and Houlton and were cases where the discount for assistance included the benefit to be received for a plea of guilty.
72 In his submissions Mr Byrne suggested that a discrete discount for assistance could amount to 50 per cent or more, in addition to a discount for the plea. I doubt the validity of that submission. However, I am aware, from a matter coming before me at first instance, that a District Court Judge awarded, in a case of an armed robbery in company of a building society, a discount amounting to 70 percent for an early plea and assistance by cumulating the discounts. It seems to me that on its face the discount for assistance in that case must have resulted in a sentence that infringed s 23(3) of the Crimes (Sentencing Procedure) Act, regardless of the extent or importance of the assistance given.
73 I am not persuaded that it was not within his Honour’s discretion to determine a discount of 12½ per cent was appropriate for what was, in effect, very limited intelligence provided to the police about the present and past criminality of his co-offenders. The applicant had despoiled the value that his assistance might have had in proof of any offence against his accomplices by his steadfastness in denying his own guilt. It is obvious that he had a much greater involvement in, not only the present offence, but also past criminal activity of the organisation in which he was involved than he was prepared to admit. The effectiveness of the assistance and its value to the authorities is a relevant consideration in assessing the extent of the discount to be given to federal offenders: R v Barrientos [1999] NSWCCA 1 at [47].
74 In Chu the Chief Justice indicated that a guideline judgment might be appropriate in respect of the quantification of a discount for assistance. It seems to me, with respect, that, if sentencing courts are going to regularly depart from what was considered to be the range of appropriate discount for assistance, including a plea of guilty, of not more than 50 per cent, the time is now ripe for a reconsideration by the Directors of Public Prosecutions of the need for a guideline judgment to determine the appropriate range in the light of Thomson and Houlton.
75 Although the applicant was to spend his sentence in protection, there was no admissible evidence placed before the sentencing judge as to the nature of that imprisonment, even though the applicant gave evidence. It cannot be assumed that he is to spend his period in custody in such onerous conditions that there should be a marked diminution of the otherwise appropriate sentence; R v Mostyn [2004] NSWCCA 97, R v Way [2004] NSWCCA 131.
76 The applicant’s wife and daughter gave evidence of their fears if the applicant gave evidence against the Sukkars. But he was not going to give any such evidence, as the Crown did not intend to call him. Although his Honour was in error in refusing to take into account the impact upon the family of the assistance given by the applicant, that error was not such that it made a significant difference to his Honour’s assessment of the appropriate discount for the applicant’s assistance. I acknowledge that it is a discount at the very lowest point in the range but I am not satisfied that Judge Shadbolt’s discretion miscarried. As I have noted, the discount was made cumulative to the discount for the plea and to that extent was overly generous.
77 At the hearing of the appeal Mr Byrne tendered an affidavit as to further assistance offered by the applicant to Dutch investigators who are considering prosecution of the principals of the importation. Initially the document was tendered for the purpose of it being taken into account if this Court came to resentence the applicant. Later, Mr Byrne sought to have it received as evidence on the hearing of the appeal itself, being by way of amplification of the evidence of assistance proffered by the applicant prior to his being sentenced. On whatever basis it is received, it does not, in my opinion, avail the applicant. Again the assistance is of limited value because the applicant has not been truthful as to his own involvement. A letter from the Public Prosecutor in the Netherlands, which is part of the material now relied upon, contains the following paragraph:
With the knowledge of the situation I have at this moment, I have the impression that [the applicant] has not spoken the whole truth – apparently to conceal his own role. In all I had expected more from [the applicant’s] statements. But because of his repetition, to a large extent, of what he had stated earlier his statements were nevertheless of some significance for the criminal trial in the Netherlands.
Ground 3 – Discount for the plea
78 In the course of his remarks and in reference to the discount for the plea of guilty, his Honour stated:
It is difficult to know on what basis the prisoner should have his sentence discounted for his plea of guilty. It demonstrates no show of contrition; he does not acknowledge that what he has done was wrong. It cannot be said that it saved the State a long trial nor that he has sought to assist in the process of criminal justice in this state. Four days have been required to hear this plea. Not a great deal more time would have been required for a trial on indictment.
79 It seems to be accepted by the Crown that the last sentence of this quote was an under-estimation of the time required to deal with a trial of the applicant, at least if the trials of two co-accused were to provide any guide: one trial lasted 33 days, the other 48 days. However that might be, the sentencing judge gave the applicant a discount of 12½ per cent for the plea of guilty where there was no contrition and a hearing on the disputed facts which took some part, or the whole, of four days hearing time. The issue is whether the discount was insufficient to such a degree that it fell outside his Honour’s available discretion.
80 The applicant entered the plea of guilty in the Local Court but not until some six months after his arrest. Although the District Court was saved the time and expense of a lengthy trial, the applicant chose to dispute the fact of his involvement in the offence charged, notwithstanding the plea of guilty. This required a sentencing hearing, entailing the calling of two witnesses as to the accuracy of the translation of the recorded conversations. The evidence given by the applicant was appropriately rejected by his Honour and findings of fact made against him. The value of the plea was significantly diminished by the dispute as to the basis upon which the applicant was to be sentenced and it was open to his Honour to decrease the discount for the plea accordingly.
81 I am not persuaded that the discount allowed in all the circumstances of this case was inadequate to the point of error. The court is entitled to take account of the whole of the proceedings when determining the value of the plea as representing the applicant’s intention to facilitate the course of justice, and it does not follow that, because the plea was entered in the Local Court, a discount of 25 per cent must be given: R v Newman [2004] NSWCCA 113. At the end of the day the applicant had the otherwise appropriate sentence reduced by 25 per cent by reason of his plea and assistance. I am far from convinced that such a discount was inadequate in the circumstances of this case.
The applicant’s role
82 The sentencing judge found that the applicant was a “senior person in the organisation who played an important managerial role when the drugs had been substituted”. It is contended that, because the applicant had a role to perform only after the importation of the drug, his position in the organisational hierarchy was not at a senior level. The argument is in my view without merit.
83 The applicant’s plea at least acknowledged, contrary to his evidence, that he was knowingly concerned in the importation. It may be that, as Agent Watt acknowledged, the applicant would have had no active role to play had the drugs not been substituted. But that fact alone does not mean that it was not open for his Honour to find that the applicant had a senior role in the organisation involved in the importation. It is clear that the applicant’s involvement with Sukkar and the importation existed before the drugs arrived in Australia. Hence Sukkar informed him, while the applicant was in Brazil, of the fact that the drugs had been shipped. It is also significant that the applicant was at the meeting in the Netherlands where the importation was planned, even if it be accepted that his role at that time was merely to make coffee. He was informed of the result of the meeting and was generally aware of the importation prior to the drugs being shipped.
84 The applicant played an active and substantial role in discussions with those persons who were clearly the overseas principals and with Sukkar, the Australian principal, after the drugs were found to be missing. He travelled to the Netherlands for that purpose and was to come to Australia at Sukkar’s expense to attempt to find out what had happened and advise him as to what had to be done to retrieve the situation. The conversations with Sukkar show that the applicant was speaking to him as at least an equal rather than as a mere underling or minion. He gave Sukkar directions and advice as to what he was to do pending the applicant’s arrival. It is clear that the applicant came to Australia because the drugs had gone missing and that Sukkar was under his general authority and direction at this time.
85 In my view his Honour’s assessment of the applicant’s position in the organisation involved in the importation was justified having regard, firstly, to the evidence of Agent Watt as to the applicant’s role, and, secondly, to the evidence of the applicant which his Honour found to be dishonest and unreliable in relation to his role in the importation. It matters little, in my opinion, whether the applicant was to receive a share of the profits of this particular importation or not.
86 It was submitted by Mr Byrne that the applicant’s role was both less than a courier and less than the co-offender Shepherd’s. I reject the first submission and the second brings me to a consideration of the ground of appeal concerned with the alleged disparity between the sentence imposed upon Shepherd and that imposed upon the applicant.
Disparity with Shepherd
87 It will be recalled that Shepherd had a role in transporting the container in which the drugs had been shipped from Brisbane to a garage where the contents were to be stored. He helped to unpack the container and took some of its contents to Concord West. He also had previously assisted by preparing false documentation to have the cargo cleared through Customs. Judge Gibson, who sentenced Shepherd, found that, although he did not know the nature or amount of the drugs involved, he was a key figure in the importation and vital to its success.
88 It seems to me that there is little value in undertaking a detailed comparison of the roles played by Shepherd and the applicant, as they were so different. Although Shepherd was involved directly in the importation of the goods, he clearly did not have any role in the organisation behind the importation. For example, he did not have access to the persons who were the principals in the organisation either in Australia or in the Netherlands, as did the applicant. In any event the starting sentence chosen by Judge Shadbolt before the application of any discounts was 30 years and that chosen by Judge Gibson in respect of Shepherd was 32 years.
89 The major disparity between the sentence imposed upon the applicant and that imposed upon Shepherd derives from the discount accorded to the latter for his plea and assistance. Shepherd was given an overall discount by Judge Gibson of 33 per cent and that, together with the s 16G discount, resulted in a sentence of 14 years with a non-parole period of 9 years. However, after a successful appeal to this Court on the ground that the discount for plea and assistance was inadequate, Shepherd was sentenced to imprisonment for 11½ years with a non-parole period of 7 years and 4 months. This sentence was calculated on the basis of a discount for the plea and assistance of 45 per cent. The Court indicated that had it not been for the offer of future assistance, the sentence would have been one of 16 years 9 months with a non-parole period of 10 years 9 months.
90 At the hearing of Shepherd’s appeal the Crown conceded both that Shepherd might have expected a higher discount for the plea and assistance he had given to investigating police and that the starting sentence chosen by Judge Gibson was at the very top of the range. The assistance given by Shepherd was described by investigating police as “moderate”. Not only was he prepared to give evidence against other participants in the importation with whom he had contact, but he also gave detailed information to the police that extended past the offence with which he was charged. Unlike the applicant, he had made full and frank disclosure of his involvement in the importation, and, therefore, his offer to give evidence for the Crown was of real value. Further, there was fresh evidence admitted on the hearing of the appeal and after the Court had reserved as to Shepherd’s continuing assistance to the authorities.
91 In my opinion there is no basis for the assertion that the applicant could have any justifiable sense of grievance by reason of the sentence imposed upon Shepherd. The difference in their respective sentences was due largely to the difference in the superior quality of the assistance, both given and offered, by Shepherd. It should be noted that the assessment of both the value of assistance and the appropriate discount fall within the general sentencing discretion exercised by a sentencing judge. This Court’s power to interfere with those assessments is constrained by the normal limitation imposed upon appeals from discretionary judgments.
92 As I believe there is insufficient merit in any of the grounds of appeal to warrant this Court’s intervention. I would grant leave to appeal but dismiss the appeal.
Last Modified: 05/27/2004
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