R v Karki

[2001] NSWCCA 378

CITATION:	R v Karki [2001] NSWCCA 378
FILE NUMBER(S):	CCA 60040/00
HEARING DATE(S):	31/8/2001
JUDGMENT DATE:	31 August 2001
PARTIES :	Regina Keshun Dhoj Karki
JUDGMENT OF:	Sheller JA at 30; Sully J at 31; Dowd J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0184
LOWER COURT JUDICIAL OFFICER :	Murrell DCJ

COUNSEL :	Applicant in Person Mr MA Wigney- Crown
SOLICITORS:	Director of Public Prosecutions (Cth)- Crown
CATCHWORDS:	Appeal against sentence - Importation of a commercial quantity of Heroin - Applicant's involvement - Applicant's assistance with authorities
LEGISLATION CITED:	Customs Act 1901 (Cth)
DECISION:	1. Appeal dismissed; and 2. Leave to appeal granted.

IN THE COURT OF
CRIMINAL APPEAL

60040/00

SHELLER JA

31 August 2001

Regina v Keshun Dhoj KARKI

JUDGMENT

: The applicant, Keshun Dhoj Karki, seeks leave to appeal against the severity of a sentence imposed by Murrell DCJ of the District Court, following a plea of guilty to a count alleging that between 1 November 1997 and 29 November 1997, the applicant was knowingly concerned in the importation into Australia of a commercial quantity of a prohibited substance, namely heroin, contrary to s233B of the Customs Act 1901 (Cth) (‘the Act’).

2 The bulk quantity of heroin imported was slightly in excess of 3.4 kilograms, a commercial quantity prescribed under the Act being 1.5 kilograms. The offence carries a maximum penalty of life imprisonment.

3 The applicant was sentenced by Her Honour to ten years imprisonment, to commence from the date of arrest on 29 November 1997 with a non-parole period of six years. The sentenced imposed, having been reduced by one year by the Learned Judge, took into account the assistance provided by the applicant to the authorities.

4 The facts are that between March and November 1997, the National Crime Authority had dealings with a registered informant concerning the possible importation of heroin into Australia. On 27 November 1997, the registered informant advised the National Crime Authority that a Mr Nima Tsering Ghale, who was the co-accused, had arrived in Australia under a false diplomatic passport in the name of Mahat from Nepal via Bangkok, he carrying with him a quantity of impure heroin weighing 3.4 kilograms.

5 On 28 November 1997, the applicant arrived in Sydney on a flight from Bangkok. He had arrived at Bangkok on 8 November 1997 from Nepal where he normally resides.

6 On arrival in Sydney, the applicant checked into a hotel in Kings Cross. On 29 November 1997, an undercover police officer, Raymond Lam, received a telephone call from a person in Thailand telling him to expect a "Peter" who would give "it" to him. "Peter" was to later receive five or ten thousand dollars.

7 On the same day, shortly before 3.00pm, the applicant called Lam at the Camperdown Travelodge, identifying himself as Peter. The applicant indicated that he would come from Kings Cross to the Camperdown Travelodge.

8 At about 3.14pm, the applicant arrived at the Camperdown Travelodge, spoke to the person that he met about various issues relating to picking up goods from a "little fat looking Chinese person", who would be waiting at the Hyde Park Plaza at a room of which he would be later notified.

9 Lam carried out the applicant's instructions which led to Lam securing 1.3 kilograms of heroin from the co-accused, Ghale. A further two kilograms of heroin was found in the room at the Hyde Park Plaza in which Ghale was staying.

10 As soon as Lam left the room with the heroin, he spoke to the police from the National Crime Authority who immediately arrested Ghale. The net pure weight of the heroin seized was 2.426 kilograms, with an estimated street value exceeding $4,000,000.

11 Most of the conversations that the applicant conducted with Ghale and Lam were recorded by NCA surveillance and electronic devices, and were presented as part of the evidence in the sentencing proceedings. The transcripts show in very clear language knowledge on the part of the applicant of a significant part of the operation.

12 The applicant was arrested later that day and interviewed by the police. The applicant, in a statement to the police, claimed that Lam was in fact collecting dried liver from a high altitude bear.

13 The applicant had originally pleaded not guilty in the Local Court to the charge, but was committed for trial to the District Court. The applicant, however, entered a guilty plea on 24 July 1998, and a date for submissions on sentence was fixed for 20 November 1998.

14 The applicant and his co-accused then sought to withdraw their guilty pleas and sought leave to reverse the plea, which application was refused by Murrell DCJ at Parramatta District Court on 11 March 1999. In a very careful judgment, in which Her Honour examined the material before the Court by the applicant, she found that the applicant had not established a basis for leave being granted to withdraw a plea, and in that judgment, Her Honour said that the applicant conceded that prima facie the Crown had a strong case.

15 The applicant is some thirty-one or thirty-two years of age, and was born and normally resides in Nepal. His father was a retired army officer. He had, at the time of sentencing, a sister who was studying Medicine in Russia. The applicant appeared to Her Honour to have a University level of education, and that he had come from a good family with the benefit of a reasonable education and no apparent prior history of criminal convictions.

16 The applicant was a married man with a dependant wife and child living in Nepal. It was put that the applicant had made a considerable contribution to his local Kathmandu community, his activities including involvement in service clubs and sporting associations.

17 Since completing his studies, the applicant was employed in the travel industry, working as a trekking guide and travel agent. Since his time in custody, which was continuous from the date of arrest to the date of sentence, the applicant has undertaken a number of courses carried out by Corrective Services.

18 The applicant has today before this Court provided written material in a letter to the Registrar of the Court, which includes a lengthy document setting out a number of grounds of appeal. He has also had translated to the Court today another document written substantially in the Nepalese language, setting out the grounds of appeal and material in support of those grounds. The applicant has also addressed the Court, and in particular answered submissions of the Crown as respondent to this appeal.

19 The applicant was able to address the Court with some reasonable command of English, but most of his submissions were made with the assistance of the interpreter. The Learned Presiding Judge, at the commencement of these proceedings, asked the applicant if he simply wished to appeal against sentence, and the applicant concurred that that was his intention today.

20 The applicant's submissions then traversed a very large number of issues, both in his written and oral submissions, which in part went to the question of his guilt or otherwise, and partly to the question of the severity of the sentence.

21 Many of the matters put to the Court constituted comments on the evidence and comments on the submissions made by the Crown, including a supplementary submission, and in many cases did not traverse facts at all. Such an example is that he submitted to the Court that in a conversation between two other persons, that he was not present, it not having been asserted by the Crown that he was. On another occasion, he submitted that only one side of a conversation had been recorded, a fact confirming what had in fact been contended by the Crown anyway.

22 The applicant presented a history of his problems with the Legal Aid Commission and the problems he had with his lawyers. He then commented on a number of matters where he challenged the facts that had been admitted in evidence against him on the sentencing proceedings. Many of these were simple contradictions, but many were simply comments.

23 The matter of course before the Court is the applicant’s application for leave to appeal against Her Honour's sentence, those facts in the statement of facts being admitted before her, as indeed were the transcripts of the conversations, and there is nothing in an examination of those facts which demonstrate any error that would give rise to a ground for appeal to this Court.

24 In sentencing, Her Honour carefully set out the basis for his sentence and took into account the assistance that he had given. However, the evidence before Her Honour was that this material had not been examined to see how useful it would be.

25 In support of this leave application was a submission by the applicant that his role was more in the nature of a courier than a person involved higher up the scale of the operation. The applicant has also submitted that it was his neighbour that involved him in these proceedings, and that he did not know the extent of the operation until he later read the facts. He said he was just passing on information.

26 The applicant also submitted that the sentence was very high, and set out in detail the impact this has had on him and on his family. All of the matters submitted by him are the inevitable consequence of a person in his circumstance, that is convicted of such a serious crime. There is no doubt that it creates a difficult time, but there is nothing in that submission that the Court should take into account.

27 The applicant has told the Court how hard he has worked in the prison system. In my view, the submissions by the applicant do not in any way demonstrate appealable error on the part of Her Honour who has imposed a sentence, which, considering the penalty of life imprisonment available and the enormous amount of heroin involved, could be considered to be clearly within but, to the lower end of the scale of severity.

28 I do not consider that there are any grounds for a successful appeal. I would, however, grant leave to make this application.

29 The orders that I would propose, therefore, are that leave to appeal be granted but that the appeal should be refused.

30 SHELLER JA: For the reasons that Dowd J has given, I agree with the orders that he proposes.

31 SULLY J: I too agree on exactly the same basis.

: The order of the Court will be as proposed by Dowd J.

oOo