Sentences passed upon respondent on 6 May 1999 in the District Court quashed
Respondent re-sentenced as per judgment.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
60238/99
SULLY J HULME J HIDDEN J
4 February 2000
REGINA v Leslie KALACHE
JUDGMENT
SULLY J:
Introduction
The Director of Public Prosecutions appeals, pursuant to Section 5D of the Criminal Appeal Act 1912 (NSW), against a number of sentences imposed upon Mr. Leslie Kalache, (“the respondent”). The sentences were imposed in the District Court at Sydney on 6 May 1999, and by his Honour Judge G. D. Woods QC. The Director’s challenge to the sentences is that they are inadequate.
On 6 May 1999 the respondent entered pleas of guilty to six counts spread over two indictments. On a separate and earlier occasion the respondent had pleaded guilty to a seventh charge. The seven charges are set out hereunder. Noted in connection with each individual charge are the statutory maximum penalty applicable to that charge, and the sentence in fact imposed in respect of that charge.
(1)That between 23 May 1997 and 11 August 1997 he did knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug.
Statutory maximum penalty: Life imprisonment and/or a fine of $550,000.
Sentence imposed: 6 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2003.
(2)That between 11 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity applicable to that drug.
Statutory maximum penalty: Life imprisonment and/or a fine of $550,000. Sentence imposed: 6 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2003
(3)That between 1 January 1997 and 30 September 1997 he did knowingly take part in the supply of a prohibited drug, namely cocaine, in an amount not less than the commercial quantity applicable to that drug.
Maximum statutory penalty: 20 years’ imprisonment and/or a fine of $385,000 Sentence imposed: 3 years’ imprisonment as a fixed term to commence on 30.9.97 and to expire on 29.9.2000.
(4)That between 1 January 1997 and 30 September…
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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AGLC
R v Kalache [2000] NSWCCA 2
Case
[2000] NSWCCA 2
Decision Date
CaseChat Overview and Summary
In the case of R v Kalache, the defendant was involved in the manufacture, distribution, and supply of various prohibited drugs, including methylamphetamine, cocaine, ecstasy, and cannabis. The dispute centered on the appropriate sentence for the defendant’s extensive criminal activities. The matter was heard in the Supreme Court of New South Wales.
The primary legal issues revolved around the appropriate sentence for the defendant’s criminal activities, and whether any discount in sentence should be granted in recognition of the defendant's cooperation with the New South Wales Crime Commission. The court had to consider the severity and extent of the defendant’s criminal conduct, the value of drugs supplied, and the benefits provided by the defendant's cooperation with authorities.
The court examined the defendant's role in an organized network involved in drug trafficking and manufacturing, and the significant quantities and value of drugs supplied. The defendant's cooperation with the New South Wales Crime Commission, which led to the forfeiture of substantial assets and avoided significant resource expenditure by the authorities, was also considered. The court acknowledged the benefits of the defendant's cooperation but ultimately determined that these benefits did not warrant a discount in the sentence. The court held that the objective criminality of the defendant’s conduct warranted a substantial custodial sentence.
The court ordered the defendant to serve a total of 10 years imprisonment, consisting of a minimum term of 7-1/2 years and an additional term of 2-1/2 years.
Orders
Orders of the court
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Background
Background to the litigation
The effect of the sentences thus imposed is that the total relevant criminality is punished by imprisonment for 10 years, divided between a minimum term of 7-1/2 years, and an additional term of 2-1/2 years.The Relevant Facts I take these, as follows, from the written submissions of the Director. The quoted material says all that needs to be said as to the structure and substance of the Director’s case against the respondent. It was not submitted at the hearing of the appeal that the facts as so stated in the Director’s submissions were erroneous in any particular.“6. In essence the respondent was identified by investigating police as being the leader of an organised network involved in the manufacture and distribution of prohibited drugs.7. The respondent dealt primarily with methylamphetamine. Surveillance revealed that from December 1995 the respondent was involved with others in financing an operation to manufacture this drug through the purchase of equipment and chemicals (on the blackmarket). A drug laboratory was established at Wollombi. Subsequent forensic evidence established that commercial quantities of the drug had been manufactured on this property.8. Surveillance also established that the respondent later became involved in a similar operation on a site in Booral which was purchased in June 1997. This involved the mass purchase of Sudafed tablets (around $70,000 worth) by a number of people. Around 3.5 kilograms of methylamphetamine was manufactured by the respondent’s associates. The respondent discussed selling the drug at $70,000 per kilogram and splitting the profits. He also mentioned that an upcoming production of the drug would result in a $350,000 profit. The manufacture of a further 3.5 kilograms of the drug was begun, but the respondent’s associates were arrested in mid-August 1997.9. Between 20 May 1997 and 30 September 1997 surveillance on the respondent (through physical and video surveillance, telephone intercepts and the installation of listening devices) revealed that between 5 and 20 persons were involved in trafficking the prohibited drug which was supplied by them to the respondent.10. From his premises, the respondent regularly supplied 454 grams (1 pound) of methylamphetamine, occasionally supplying as much as 1362 grams (3 pounds), but rarely supplying less than 28.3 grams (1 ounce). He charged between $7,500 and $10,000 per ‘street-level’ pound, and between $35,000 and $45,000 per ‘high-purity’ pound. In excess of 20 kilograms of methylamphetamine was supplied during the above period of surveillance. The value of drugs supplied by the respondent during this period was estimated to be $800,000 (for bulk deals) and $1,500,000 (at street level): ……….11. The respondent also supplied cocaine in quantities of up to 10 ounces at a time. He charged between $3,800 and $4,500 per ounce. On one occasion he complained to his associates that 30 ounces of cocaine had been stolen from his premises. In excess of 5 kilograms of cocaine, with an estimated street value of $1,000,000, was supplied by the respondent during the above period of surveillance ……….12. The respondent also supplied ecstasy tablets. He charged between $20 and $30 per tablet, and most commonly supplied between 50 and 200 tablets at a time; on one occasion he supplied 650 tablets. The respondent complained one day to his associates that 600 ecstasy tablets had been stolen from a storage area in his premises. Investigating police estimated that the respondent had supplied, or had in his possession for the purpose of supply, at least 4,000 ecstasy tablets (800 grams). This averaged out to around $160,000: …………….13. Cannabis leaf was also supplied on a regular basis by the respondent in varying amounts between one ounce and several pounds at a time. ‘Hydro’ quality cannabis leaf was sold for between $3,500 and $4,800 per pound or between $200 and $250 per ounce. A lower-quality leaf was sold for $3,000 per pound. Cannabis bricks were also offered by the respondent for $3,700. One kilogram bricks with ‘good head’ were offered for $4,500 per brick. It was estimated that cannabis leaf to a total street value of $200,000 was supplied by the respondent during the above period of surveillance: ……………14. The respondent advised his associates on ways in which they could on-sell the various drugs, and advised them on suitable prices and potential profits from the sales.15. Investigating police, through the benefit of the surveillance, arrested around 50 other persons who were connected with the respondent’s activity.16. In early July 1997 investigating police received information that the respondent had stored amphetamine at a house in Kingsford. Police seized a number of items from this house. The respondent was subsequently heard (via a listening device) to give Detective Sergeant Irwin $500 and to express concern about his fingerprints being on the items seized by the police. Another police officer, Detective Sergeant Craig McDonald, became involved on the respondent’s behalf. He arranged for a police officer to wipe the respondent’s fingerprints and promised to pay him $5,000. A total of $3,300 was actually given to him. The respondent was subsequently heard to have a conversation with Irwin in which he indicated that he would pay $20,000. Irwin and McDonald were subsequently arrested: …………….17. The respondent was arrested on 30 September 1997 after the execution of a search warrant on his premises. Police located 360 grams of cocaine, two ecstasy tablets and equipment used for the preparation of the drugs into a suitable form for distribution.18. The respondent generated large sums of money, and acquired a significant amount of property (both real and personal), from gambling activities and drug activities. He and his former de-facto subsequently agreed to forfeit all their property interests to the Crown. The value of this property exceeded $1.1 million.”The Objective Criminality of the Respondent
Evidence
Evidence Before The Court
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Decision
Reasons for decision
SULLY J
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Ratio Decidendi
Legal Principle Established
Established by:
SULLY J
As to the respondent’s cooperation with the New South Wales Crime Commission: The convenient starting point is a letter written on 6 May 1999 by Mr. Bradley, the Commissioner of the New South Wales Crime Commission. The letter became Exhibit 1 in the proceedings on sentence. The following extract from the letter, Exhibit 1, summarises the assistance given by the respondent to the Commission:“Kalache made full disclosure of his financial and beneficial interest in the Town & Country Hotel.Kalache consented to forfeiture at an early stage of the confiscation proceedings. He persuaded Crawford and Burke to do likewise. As a result:(a)interest in property of Kalche and Deborah Crawford having an estimated value of $1.1 million were forfeited to the Crown.(b)a proceeds assessment order was made against Burke and Deborah Burke for $375,000;(c)the Commission’s resources were not expended in costly further investigations, examinations and hearings;(d)the resources of the NSW Police Service were not expended in the investigation or litigation of the matter;(e)the Supreme Court was not consumed with the hearings for examination and orders for final relief.” It should be added to what is there written that the Commissioner, in a separate part of the letter, acknowledges that the respondent contended to the Commission that he would be able to demonstrate “that his assets were lawfully acquired and that he had made, and was continuing to make money, from lawful betting activities”. As to this contention of the respondent, the Commissioner acknowledges that electronic surveillance conducted by the Commission had yielded evidence supportive of the respondent’s assertion that he had won significant amounts of money through betting. It should be further noted that the person referred to as “Burke” in the Commissioner’s letter earlier quoted was, at material times, a business associate of the respondent in the conduct of the business of the Town & Country Hotel; and “Deborah Burke” was Mr. Burke’s wife. The person described as “Deborah Crawford” was, at all material times, the de facto wife of the respondent. It was submitted for the respondent that he was properly entitled to a discount in any sentence otherwise appropriate, as an acknowledgment of the utilitarian purposes served by his cooperation with the Commission, and acknowledged in terms in the Commissioner’s letter previously quoted. In order to test this submission, it is necessary to consider some features of the relevant legislation. The Criminal Assets Recovery Act 1990 was originally introduced into Parliament as a Bill for an Act to be known as the Drug Trafficking (Civil Proceedings) Act. The long title of the Act, as it now stands, is: “An Act to provide for the confiscation of interests in property that are interests of a person engaged in serious crime-related activities; to enable proceeds of serious crime-related activities to be recovered as a debt due to the Crown; and for other purposes.”