R v Karacic

[2001] NSWCCA 12

Reported Decision: 121 A Crim R 7

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Karacic [2001] NSWCCA 12
FILE NUMBER(S):	CCA 60320/00
HEARING DATE(S):	02/02/01
JUDGMENT DATE:	2 February 2001
PARTIES :	Regina v Zelko Mile Karacic
JUDGMENT OF:	Spigelman CJ at 40; Grove J at 54; Whealy J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	------
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	Robert Sutherland - Commonwealth Crown P. M. Paish - Appellant
SOLICITORS:	Commonwealth DPP - Crown ----- - Appellant
LEGISLATION CITED:	Customs Act 1901 Crimes Act 1914 (Commonwealth)
CASES CITED:	R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Wong; R v Leung [1999] 48 NSWLR 340 at 366 R v Ngui and Tiong [2000] 111 A Crim R 593 R v Jurisic (1998) 48 NSWLR 209 R v Henry (1999) 46 NSWLR 346 R v Olbrich (1999) 166 ALR 330 at 335
DECISION:	1. Leave to appeal be granted.; 2. The appeal be allowed.; 3. The applicant be resentenced; that he be sentenced to a term of imprisonment of 8 years dating from 31 March 2000 and a non parole period of 5 years to be set. The prisoner will be eligible for realse on parole on 30 March 2005.

IN THE COURT

OF CRIMINAL APPEAL

60302/00



SPIGELMAN CJ
GROVE J
WHEALY J


FRIDAY 2 February 2001


REGINA v Zelko Mile KARACIC


JUDGMENT

1    SPIGELMAN CJ: I invite Justice Whealy to deliver the first judgment.

2    WHEALY J: Thank you Chief Justice.

3 The applicant pleaded guilty to one count in an indictment presented before the District Court on 27 March 2000. This alleged that on 1 April 1988 the applicant attempted to obtain possession of a quantity of heroin contrary to the provisions of s 233B(1)(c) of the Customs Act 1901. The quantity of heroin involved a total net pure weight of 453.8 net grams. This was in excess of the trafficable quantity applicable to heroin as specified in the Act. The maximum penalty applicable to the offence was 25 years imprisonment or a fine of $100,000 or both.

4    The applicant had originally pleaded guilty in the District Court on 29 August 1999. At proposed sentence proceedings in December 1999, an intention to reverse the plea to "not guilty" was indicated and the matter was set down for trial before Kinchington DCJ on 27 March 2000. On that date, the proposed application for reversal of plea was not pursued and the original plea of guilty was adhered to. The sentencing judge heard evidence on 27 and 31 March 2000. He then remanded the applicant, who had previously been on bail, in custody until 11 May 2000. On that day he published a document marked "Reasons for Sentence" and gave an oral judgment which incorporated, by reference, the published reasons for judgment.

5    The applicant was sentenced to ten years imprisonment. A non parole period of seven years was specified. In fixing the sentence his Honour took into account the fact that the sentence would be served in a State Prison. This he was required to do under section 16G of the Crimes Act 1914 (Commonwealth). The non parole period of seven years was to date from 31 March 2000.

6    The applicant seeks leave to appeal against the sentence imposed by the learned District Court Judge on the grounds that it was excessive.

7    The facts found by his Honour may be stated briefly. A courier employed by Federal Express attempted to deliver a package to a company known at Digital Express of 29 Bellevue Street, Surry Hills. The package had been sent from Hong Kong and proceeded through customs apparently without attracting attention. The airway bill number was 40047738261. When the courier arrived at the Surry Hills premises he was approached by two men. One of the men was the applicant. He quoted an airway bill number which matched identically the airway bill number of the package to be delivered by the courier. He asked for the package to be handed over to him. The Federal Express employee, however, asked for identification. The two men became agitated and fled. They were chased by the courier and other witnesses. In the course of this chase, the applicant endeavoured to seize the package from the courier without success. The courier then returned to his van and locked himself in. The two men were seen to depart the area in a white Toyota Corolla registration number UOJ-318. Enquiries revealed that the motor vehicle was registered to a car hire company known as Advance Car Rental of Arncliffe. Further enquiries revealed that the vehicle had been rented to the applicant on 31 March 1998, the day before the delivery of the parcel.

8    Digital Express was a computer company involved in the importation of computer components from the United States. The company had never had cause to import any item from Hong Kong on any occasion. Neither the management nor employees of Digital Express knew any persons of the description provided by the courier. Nor did Digital Express give any permission for its premises to be used as a postal address for the parcel.

9    Australian Federal Police executed a search warrant at 6 Culwalla Avenue, South Hurstville. The rental vehicle in which the two men had left the Surry Hills premises was located in the driveway of the premises at South Hurstville. The applicant lived at these premises and it was noted that he closely matched the description of the person who had attempted to obtain the package from the Federal Express courier. Located during the course of the search was a folder containing "Digital Express" letterheads, as well as handwritten notes with a series of numbers. These numbers included the airway bill number of the package. Also located was a Macintosh Personal Computer belonging to the applicant. When later examined by members of the Australian Federal Police Computer Crime Unit, a word processing document with the header "Digital Express Pty Limited" was located on the hard drive.

10    The applicant was interviewed by way of a taped record of interview. He made full and frank admissions as to attempting to receive the package on 1 April 1998 but stated that he was being paid $1,000 to take delivery of the package on behalf of a person he knew only as "James". He said that he did not know James' name. He did not know his address, telephone number or what he looked like. He could not recall ever meeting James. He detailed the manner in which he created documents on his computer that looked like company letterhead. This was done to create an impression of legitimacy to the courier. He said that "James" did not tell him to create the documents. He decided to do it himself in order to be more authentic. During this record of interview the applicant said that he did not know there was heroin in the parcel and that he thought it contained computer equipment. He also agreed that he had been dressed in business trousers and a business shirt with a tie so that he would look "professional" at the time he attempted to obtain possession of the package from the courier. He said it is what most computer company people would wear.

11    Further enquiries made by the Federal Police showed that the applicant was at the time employed by Comet/Quickasair couriers and that he was familiar with courier type operations. Relevant details of Digital Express Pty Limited (including the name of the receptionist who was telephoned on 1 April to check whether the parcel had been delivered) were contained in the day-to-day records of Comet/Quickasair.

12    As I indicated earlier, the analysis of the pure heroin yielded a total net pure weight of 453.8 grams. The estimated wholesale price for this quantity was $75,000 while the estimated street price was $900,000.

13    The applicant gave evidence during the course of the sentence hearing. He agreed that he had told a number of lies during his interview with the Federal Police. He agreed that he had known that the package contained narcotics although he said that he did not know that it was heroin. He gave evidence that he had started using heroin in about the middle of 1997 and that his use of the drug escalated to the extent that at the time of the offence in April 1998 he was spending about $100 a day approximately on his habit. He said that "James" was his heroin supplier and that James knew he was working for a courier company. He said that he had not given the police a full description of James and details about him at the time of his original interview because he had fears for the safety of his family and himself. The applicant admitted that at the relevant time he had a telephone number for James and that he was able to speak to James by ringing that number. He did not give that telephone number to the police.

14    A body of evidence dealing with subjective matters in favour of the applicant was placed before the sentencing judge. There was evidence from Mr Mark Jennings who had known the applicant for about 15 years and who spoke favourably on his behalf. There was a pre-sentence report which spoke well of the applicant as well, particularly tracing the emergence of his drug habit and the fact that early in 1999 he took steps to break the pattern of drug addiction and succeeded in so doing.

15    The sentencing judge in his published reasons for sentence delivered on 11 May 2000 gave a considerable attention to the subjective material which had been placed before him. Between pages four and seven of that document are the statements made by the learned judge in relation to that subjective material. He noted the favourable comments in the pre-sentence report and in particular the efforts which the applicant had made successfully to overcome his drug addiction. He quoted at length from Anna Robilliard's report, a forensic psychologist, noting the favourable remarks which were made by her which to a degree explained the circumstances of the offence and outlined the subsequent action taken by the applicant which boded well for his future rehabilitation.

16    His Honour also noted that the applicant had pleaded guilty and he accepted the plea as some sign of his remorse and contrition for becoming involved in the relevant criminal activity. On the other hand, he said that the plea was not one which could be regarded as having been made at the first available opportunity and was one which must be looked at in the light of an extremely strong crown case against the applicant.

17    (I interpolate to say that the sentence pre-dated the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The fact that there was a significant degree of what may be described as "chopping and changing" on the applicant's part before, on the very day of trial he decided to adhere to his guilty plea meant that he was entitled to no more than the lower range of discount in respect of the utilitarian benefit of the plea.)

18    I return to the findings by his Honour who specifically noted that he was most impressed by the evidence that Mr Jennings had given on the applicant's behalf, again specifically in relation to his prospects of rehabilitation.

19    His Honour then went on to say in relation to the question of sentence and I quote:

"Both from a specific and general deterrent point of view any person involved in any way with the importation of prohibited imports such as heroin into the country must be severely dealt with. To my mind the offender's involvement in this criminal activity displays that he was more than a carrier or a person who was endeavouring to facilitate the delivery of heroin to those who ultimately needed to get their hands on the drug. To my mind, from the material that has been placed before me during these proceedings, his admissions contained in the record of interview, and his evidence before me in general and in particular that at the time of his arrest he knew "James’" phone number, in my opinion, indicates that he was more actively involved in the attempted collection of the heroin in question than he would ask the court to believe. To my mind, his criminal conduct in this case leaves me with no alternative but to subject him to a custodial sentence of some severity as I do not think that any of the alternative non-custodial sentencing options are available to me in this case."

20    His Honour then went on to impose the sentence to which I have made earlier reference.

21    The written submissions on behalf of the applicant urged a number of bases on which it is said that the sentence was manifestly excessive.

22    A complication arose during the hearing of this appeal at the very outset when it became clear that information provided to the sentencing judge contained within it what can only be described as a real and material error. This was information which on its face indicated that the applicant here had served at an earlier point of time, about 1992, a fixed term of imprisonment for a period of three months in relation to an unrelated type of offence.

23    It is clear that this information received by the judge had the capacity to undermine the validity of the sentencing process because the fact is, as it is now clear today, that the applicant appealed that sentence and did not serve a fixed term of imprisonment at all. He was a person who should have been sentenced before the learned District Court Judge on the basis that this would be the first time he would face imprisonment.

24    The existence of that real and material error in my opinion enlivens the jurisdiction of this Court immediately to intervene. In my opinion it is necessary, as a consequence, for this Court to grant leave to appeal, to allow the appeal and to proceed to resentence the applicant. For this reason, it is not necessary to address in detail the careful submissions prepared by counsel, although these submissions are of considerable value in the resentencing process.

25    At the outset, may I adopt in general terms the factual matters found by the learned District Court Judge as to the circumstances of the offence. Secondly, may I also adopt the extensive remarks he made regarding the subjective circumstances of the applicant in his reasons for sentence between pages four and seven.

26    It is necessary to say a little more about the role of the applicant. The material to which I have referred briefly shows the following matters:

(i) The applicant himself worked for a courier company. He would have been generally familiar with the process and method of effecting the delivery of courier items.

(ii) The address and details of Digital Express were available to the applicant in his employer's data base. These included the name of the receptionist to whom he spoke on the day in question. This was done to "track" the arrival of the package to make its interception easier.

(iii) The applicant created letterheads on his home computer bearing the name and address of Digital Express. This was done some time before the day of the attempted intercept. It was, he said, his own idea to do this to make the interception more authentic.

(iv) He rented a vehicle for the sole purpose of the interception. He procured the assistance of his brother for the venture.

(v) He provided the correct airway bill number to the courier driver.

(vi) He dressed himself in appropriate business clothing to give authenticity to the claim that he was an executive of the computer company which appears to have been entirely his idea.

(vii) At all times he had the telephone number of "James" and he knew him well and he had the capacity to contact him at will.

27    All these matters showed in my opinion, that the applicant, although not a principle in the matter, had engaged in a degree of preparation and planning for the venture, some of it on his own initiative.

28    The concession has been made and made quite properly in the written submissions on behalf of the applicant, that the applicant's role could not be equated to that of a courier. His role, it was conceded, carried with it a greater criminal responsibility than that of a courier.

29    In the guideline judgment of the Court in R v Wong & Leung [1999] 48 NSWLR 340 at 366, the Court published a guideline intended to be nonbinding in the sense explained in R v Jurisic (1998) 48 NSWLR 209 and R v Henry (1999) 46 NSWLR 346. This guideline was determined primarily on the basis of existing sentence patterns and was intended to apply to couriers and persons low in the hierarchy of the importing organisation.

30 The guideline relate generally to offences under s 233B of the Customs Act, although the specific offences in relation to the appeals there under consideration related to a sub-section other than the one with which the Court is concerned today.

31    The guideline therefore is of assistance in setting a sentence in the present matter, although it requires adjustment in a number of respects. Those respects are firstly that the applicant's involvement here was not that of a mere courier. It was, as I have indicated, an involvement which carried with it, as has been conceded, a greater criminal responsibility than that of a mere courier. The applicant is to be punished however, for the precise degree of involvement shown to have existed and no more (R v Olbrich (1999) 166 ALR 330 at 335). I have already set out the detailed matters relating to the appellant’s role in the preparation, planning and attempted execution of the venture.

32    Secondly, in setting a head sentence, it is necessary for this Court also to have regard to the guideline published in R v Thomson and Holton (2000) 49 NSWLR 383.

33    I have already indicated that the particular factual situation of the entry of a plea of guilty, the indication of an attempt to change it, and the subsequent decision to adhere to that plea on the very day of the trial, carry the consequence that the adjustment that is necessary in fixing a head sentence will attract a discount that is at the lower end of the range referred to in that decision.

34    I note also that this is not a case in which any great assistance was given by the applicant to the authorities. It is true that some assistance was given in that after the arrest the motor vehicle was taken to the place where the heroin was to be collected and the vehicle and a package it contained were kept under surveillance but nothing transpired and the person known as "James" was never located, nor has he been to the present day. This was a limited degree of assistance given by the applicant. It is particularly limited when one has regard to the fact that, as later demonstrated during the hearing, the applicant indicated that he had at all times known the telephone number of "James" but had not proffered it to the authorities.

35    Before coming to the pronouncement of the sentence there is one other matter that I think needs to be addressed and this also arose today, somewhat unexpectedly, during the course of the appeal. I refer to the fact, apparently agreed to by both counsel, that an offence committed by the applicant of possession of a prohibited drug, namely heroin, for which he was fined, occurred in October 1999. It seems to be common ground that at that date the applicant was not free of his heroin habit entirely. This contrasts with the information placed before the learned District Court Judge which suggested that the applicant had freed himself from his heroin habit and had not taken heroin from about March in that year. Obviously the favourable history which I take into account for the purposes of considering the subjective circumstances of the applicant needs to be adjusted to take that variation into account.

36    Nonetheless I think that it may be said that the applicant has demonstrated, and the evidence generally supports, the proposition that he is a person who had, at that time, rehabilitated himself, and has continued to rehabilitate himself in a way that speaks favourably for his prospects for the future generally. He has strong family background and support.

37    Having regard to the guideline judgment in Leung and Wong (supra) and to all of the other matters that I have mentioned, I am of the opinion that an appropriate head sentence in this case is nine years reduced however to recognise the utilitarian value of the plea proffered by the applicant and finally adhered to on the day of his trial. Reduced in that way, the head sentence I propose is eight years imprisonment.

38    The applicant is not entitled to any discount, in my opinion, for the giving of assistance to the authorities but the generally favourable subjective circumstances to which I have referred show that the applicant is a person who is entitled to a longer period on parole because of his ongoing rehabilitation than the ratio he was allowed by the sentencing judge. In my opinion those circumstances, that is the need for a longer period on parole because of ongoing rehabilitation, require that a non parole period be set at six years but reduced to take account in the same way I have earlier indicated the utilitarian value of the early plea.

39    In all the circumstances I would propose the following orders:

1. Leave to appeal be granted.

2. The appeal by allowed.

3. The applicant be resentenced; that he be sentenced to a term of imprisonment of eight years dating from 31 March 2000 and a non parole period of five years to be set. The prisoner will be eligible for release on parole on 30 March 2005.

40    SPIGELMAN CJ: I agree with the orders proposed by Whealy J and with his Honour's reasons. I wish to add a few brief observations of my own.

41    The circumstance justifying intervention with the sentence, identified by his Honour, is the fact that the sentencing judge had before him an erroneous criminal history, which suggested that the appellant had served a term of imprisonment for an unconnected and non drug related offence in 1992.

42    It is frequently the case that trial judges impose on a young person who is showing indications of going off the rails, a short term of imprisonment in order to give that person a short sharp shock. That kind of sentencing practice would have been well-known to a judge of the experience of Kinchington DCJ. The short period of imprisonment of three months may have appeared to his Honour to have been of that character and that it did not work. Accordingly, when it came to the issue of personal deterrence, when determining the appropriate sentence for the offences for which his Honour came to sentence the appellant, his Honour may have considered that a greater than otherwise appropriate sentence was appropriate because of the fact that a prior period of incarceration had not taught the appellant a lesson.

43    As is now clearly known to be the case, there was no such period of imprisonment by reason of a successful appeal. For that reason I agree with Whealy J that the sentencing process miscarried and it is appropriate for this Court to intervene.

44    His Honour made reference in his judgment to the fact that the Appellant was not entitled to any discount for assistance. I myself would say that such limited assistance as the Appellant gave in the delivery of the vehicle to a point, said by the Appellant to be the delivery point, was entitled to be taken into consideration. I would not discount it entirely, but he was not entitled to any substantial discount. It was not of a character that is appropriate to quantify.

45    In this area of sentencing it is now reasonably clear that the giving of assistance to the authorities is a major consideration differentiating cases. This is clear from the significance attached to those cases in which assistance was given in the schedules appended to my judgment in R v Wong and Leung [1999] 48 NSWLR 340 at pages 373 to 378.

46    Furthermore, I wish to associate myself with some remarks of the learned President of the Court of Appeal of the Supreme Court of Victoria in the case of R v Ngui and Tiong [2000] 111 A Crim R 593 where Winneke P said at paragraph 13:

"Insofar as the authorities suggest that it is the level and quality of the co-operation and assistance given by a 'bare courier', rather than his plea of guilty or lack of prior convictions, which will predominantly influence the level of the sentence imposed, then I agree with them. Such couriers are almost entirely chosen from the ranks of those who have no prior convictions because, if it were otherwise, the chances of apprehension would be increased. Furthermore, if the courier is intercepted in the possession of drugs, it is almost inevitable that he will plead guilty. Thus, for the purposes of sentencing, it will be the level and quality of the co-operation which is given by the courier which will largely govern his prospects rather than his antecedents and the nature of his plea. This is not to say that a plea of guilty by a courier of prohibited imports, and his status as a first offender, will, in the absence of co-operation, carry no weight in the sentencing process."

47    This passage requires some adaptation to the circumstances of this case for, as Whealy J points out, the level of involvement went beyond that of a courier. Nevertheless, whilst it may have been higher up in the appropriate hierarchy of the criminal enterprise, similar reasoning to that of Winneke P in Ngui and Tiong applies in circumstances where the involvement of the person in association with the drugs is such that a plea of guilty is almost inevitable, as it was in this case.

48    Whealy J has also referred to the decision in Wong and Leung, in terms of the guideline. As his Honour has indicated, the guideline is not binding in any formal sense. I would accept what Winneke P said in Ngui and Tiong that a guideline of this character, based as it is on prior decisions of the courts, has the following utility as expressed by Winneke P at paragraph 13:

" ... the utility of the relevant guidelines expressed in Wong and Leung will be as a 'sounding board' or a 'check' against the exercise of the sentencing judge's discretion. In truth they cannot be anything more because they do not assume to take into account many factors which, in the individual case, will bear upon the level of the appropriate sentence to be imposed."

49    The schedules annexed to the judgment in Wong and Leung, on which a guideline for a mid level trafficable quantity of six to nine years was identified, show a distinct concentration of head sentences in this range. The range reflected all of the relevant considerations that go into the exercise of the sentencing discretion including variations within the range of 200 grams to one kilogram in the quantity but also other factors such as pleas of guilty and the like, with separate consideration being given to the very significant factor of assistance to the authorities.

50    Accordingly, the guideline makes no assumption one way or the other about such matters as whether there was a plea of guilty, as Callaway JA correctly stated in Ngui and Tiong supra at paragraph 17.

51    There may be some infelicity of expression in paragraphs 140 and 141 of my judgment in Wong insofar as I refer to the proposition that the various factors are, "intended to be encompassed by the range" of the guideline. All I meant to suggest by that was that such factors had in fact been taken into consideration by the various judgments set out in the schedule which indicated that a range of that character had encompassed most of the cases that appeared to have been decided by the courts prior to Wong.

52    Similarly, in paragraph 141 I made express reference to the fact that sentences outside the range would be appropriate where circumstances could be identified. I mentioned, some of those factors in paragraph 141, indicating that it was not intended to be an exhaustive statement of those factors. Nothing in paragraphs 140 and 141 was intended to qualify the proposition stated earlier in Wong itself, and other guideline judgments of this Court, that the guidelines were intended to be indicative only. Nevertheless they are appropriate indicators or, to use the words of Winneke P again, a "sounding board" or a "check", so that in circumstances such as the present, the Court does not fail to consider the level of sentences that have been found to be appropriate in the general run of similar cases, whilst taking into account the differences between the circumstances of the individual case and those of previous cases.

53    For the reasons advanced by Whealy J, I agree that the use of the guideline in that limited way, as adjusted by the circumstances of the case, leads to the sentence that his Honour has identified to be appropriate.

54    GROVE J: I agree with the judgment of Whealy J and also with the additional remarks of the Chief Justice and therefore the orders proposed.

55    SPIGELMAN CJ: The orders of the Court are as indicated by Whealy J.

56    SUTHERLAND: Your Honour the Chief Justice, could I remind the court of the provisions of section 16F and if I might if it is of any passing assistance to your Honour just pass up the observations of Justice Wood which may be of some general assistance. 16F requires some words I think.

57    SPIGELMAN CJ: Mr Karacic, could you rise? You have heard the judgments of Justice Whealy J and my own judgment?

58    APPELLANT: Yes.

59    SPIGELMAN CJ: And you understand that the service of the sentence will entail a period of imprisonment of not less than the non parole period of five years and that if a parole order is made, a period of service in the community called the parole period will be required in order for you to complete the service of the sentence. Do you understand what I have said to you?

60    APPELLANT: Yes.

61    SPIGELMAN CJ: And a parole order could be subject to conditions and that it can be amended or revoked and that there may be significant consequences if you fail to fulfil the conditions imposed upon the parole order.

62    APPELLANT: Yes certainly.

63    SPIGELMAN CJ: Do you understand that?

64    APPELLANT: I do.

65 WHEALY J: May I also add that in proposing the sentence that I have given, I have taken into account the matters referred to in s 16A of the Crimes Act 1914 and the fact that any custodial sentence imposed upon the applicant is to be served without any remissions in this State.

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