R v Ismunandar and Siregar - [2002] NSWCCA 477

Reported Decision:
(2002) 136 A Crim R 206

New South Wales

Court of Criminal Appeal

CITATION: Regina v Ismunandar and Siregar [2002] NSWCCA 477

FILE NUMBER(S): CCA 60122/01; 60082/01

HEARING DATE(S): 10 December 2001
11 December 2001

JUDGMENT DATE:
5 December 2002

PARTIES :

Regina v Sidiki Ismunandar
Regina v Saud Siregar

JUDGMENT OF: Heydon JA; Sully J; Levine J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0375; 99/11/0371

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : E. Fullerton SC - Crown
D. Dalton - Appellants

SOLICITORS: Commonwealth DPP
Freeman Solicitors - Ismunandar
George Sten & Co - Siregar

CATCHWORDS: Criminal law - sentence - massive heroin importation - one of five co-ffenders appeals against sentence and is dealt with separately - two other co-offenders claim a reduction in their sentences by reason of parity. - Held : no reduction justified

CASES CITED:
R v Chen [2002] NSWCCA 174
R v Mandagi [2002] NSWCCA 57
R v Diamond (NSWCCA, unreported, 18/2/93]
Lowe v R (1984) 154 CLR 606
R v Gallagher (1991) 53 A Crim R 248
Postiglione v R (1997) 189 CLR 295
R v Rexhaj (NSWCCA, unreported, 29/2/96)

DECISION: Appeals against sentence granted; appeals dismissed.

60122 OF 2001
60082 OF 2001

HEYDON JA
SULLY J
LEVINE J
Thursday 5 December 2002

REGINA v SIDIKI ISMUNANDAR

REGINA v SAUD SIREGAR

Judgment

1 THE COURT: These two applications for leave to appeal against sentence should be granted. The substantive appeals against sentence should be dismissed.

2 The applicants seek leave to appeal against the sentences imposed by his Honour Judge Shadbolt in the District Court on 16 February 2001. Each had been found guilty of being knowingly concerned in the importation into Australia of prohibited imports to which s233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a commercial quantity of heroin, being not less than the commercial quantity applicable to heroin. The amount of heroin involved was found to weigh 389 kilograms and to contain 252 kilograms of pure heroin with an estimated street value of $620 million.

3 Each applicant was sentenced to life imprisonment with a non-parole period of 20 years. The applicants’ conviction appeals (and those of co-offenders Chen and Lau) were dismissed by this Court on 11 June 2002: [2002] NSWCCA 174, (the Chen appeal). The appellants Chen and Lau were granted leave to appeal against their life sentences and the appeals were dismissed.

4 At the conclusion of the hearing of the Chen appeal, counsel for Siregar submitted that if the sentence of Mandagi (the captain) was interfered with, there would “seem to be a basis for an application” that Siregar’s sentence should be reduced. The Mandagi appeal had been argued but not then decided. Counsel for Ismunandar appeared to want his client’s leave application not to be dealt with until after the conviction appeal had been decided: see Chen at para 290. The present applications were stood over to the next Registrar’s call over.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCCA 477
Decision Date: 5 December 2002

CaseChat Overview and Summary

The case before the court was an appeal against sentence and claims for sentence reductions by two co-offenders involved in a significant heroin importation case. Ismunandar and Siregar were two of five individuals charged in relation to the importation of a large quantity of heroin. Ismunandar separately appealed against his sentence, while Siregar and another co-offender sought reductions in their sentences on the basis of parity. The court was required to address the appropriateness of Ismunandar's sentence, as well as whether any reductions in the sentences of Siregar and the other co-offender should be granted.

The court considered the severity of the crime and the respective roles of each offender in the importation. Ismunandar's appeal focused on the length and conditions of his sentence. In assessing the appeal, the court examined the principles of sentencing for drug trafficking offences, the role of each offender, and whether the original sentence was appropriate. For Siregar and the other co-offender, the court needed to determine whether their sentences should be reduced to reflect the principle of parity, which requires that co-offenders with similar culpability should receive similar sentences. The court considered the evidence of each co-offender's involvement and whether the sentences imposed were commensurate with their respective roles.

In its decision, the court upheld the original sentence for Ismunandar, finding that it was appropriate given the nature and scale of the crime. The court concluded that Ismunandar's appeal did not establish any error in the sentencing process that warranted a change in the sentence. Regarding the claims for sentence reductions by Siregar and the other co-offender, the court found that no reductions were justified. The court determined that the sentences imposed reflected the respective roles and culpability of each offender and that there were no grounds for parity to apply in this case. The principle of parity, the court noted, does not mandate identical sentences but requires consideration of the relative roles of co-offenders in determining proportionality.

The court made no alterations to the sentences of Siregar or the other co-offender and dismissed their claims for reductions. The final orders of the court were that Ismunandar's appeal against sentence was dismissed, and the sentences of Siregar and the other co-offender remained unchanged. The court emphasised the seriousness of drug importation offences and the importance of ensuring that sentences reflect the culpability of each offender.

Orders