R v Majeric
[2001] VSCA 15
•9 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 207 of 1999
| THE QUEEN |
| v |
| ANTON MAJERIC |
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JUDGES: | CALLAWAY, BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 February 2001 | |
DATE OF JUDGMENT: | 9 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 15 | |
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CRIMINAL LAW – Sentencing – Importation of very large amount of heroin – Operation of s.16G Crimes Act 1914 (Cth) – Adjustment to sentence made in context of instinctive synthesis – Manifest excess – Comparison with sentences imposed in other cases – Parity – Difference in roles of applicant and co-offenders – Whether sufficient weight given to applicant’s plea of guilty and co-operation with police – Head sentence of 21 years’ imprisonment neither manifestly excessive nor manifestly disparate.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.R. Champion | The Commonwealth Director of Public Prosecutions |
For the Applicant | Mr. P.F. Tehan, Q.C. | Mulcahy Mendelson & Round |
CALLAWAY, J.A.:
I have had the advantage of reading in draft the reasons for judgment prepared by my brother Chernov. I agree in them. There is only one point I wish to add.
The authorities on s.16G of the Crimes Act 1914 say, on the one hand, that it is necessary in each case to make an individual judgment of what should be done by way of the adjustment provided for by that section but, on the other hand, that it is not inappropriate to take into account that the reduction for remissions and the like is ordinarily about one-third of the sentence. That is not a fixed ratio but "an appropriate starting point".[1] Although the question need not formally be decided in the present case, I am disposed to think that the starting point is of less assistance the longer the sentence. If that were not so, a sentence of (say) 30 years' imprisonment would always meet with the criticism that it translated into a sentence of 45 years' imprisonment or equated to a life sentence or both. Moreover, as s.16G does not apply to a life sentence[2], such a "shading out" of the weight to be given to a mathematical calculation obviates an abrupt and anomalous difference between a determinate and a life sentence.[3] Mr Tehan's contentions would, in many cases, make a life sentence much easier to defend on appeal than a long determinate sentence.
BUCHANAN, J.A.:
[1]See, for example, Director of Public Prosecutions (Cth) v. El Karhani (1990) 21 N.S.W.L.R. 370 at 384-385; R. v. Li [1998] 1 V.R. 637 at 641-642 and R. v. Carey [1998] 4 V.R. 13 at 16-17.
[2]LeeVanit v. R. (1997) 190 C.L.R. 378.
[3]It does not involve the oxymoron of a nil adjustment: Lee Vanit v. R. passim but especially at 389 per McHugh, J.
I have had the benefit of reading in draft the reasons for judgment of Chernov, J.A. I agree that the application should be dismissed for the reasons stated by his Honour. I have also had the benefit of reading the draft reasons for judgment of Callaway, J.A. I agree with his Honour's remarks.
CHERNOV, J.A.:
The applicant, who was aged 48 at the date of sentence, pleaded guilty in the County Court at Melbourne on 5 May 1999 to one count of being knowingly concerned in the importation into Australia between 1 and 6 August 1997 of not less than a commercial quantity of heroin, contrary to s.233B(1)(d) of the Customs Act 1901. The penalty for the offence is prescribed by s.235(2) of the Customs Act as imprisonment for life or for such period as the court thinks appropriate. The applicant admitted prior convictions in August 1990 for burglary and theft in respect of which he was sentenced to a total effective sentence of 3½ years’ imprisonment with a non-parole period of two years. After hearing a plea in mitigation, which was heard over five days between 23 and 30 August 1999 in the course of which the learned sentencing judge heard viva voce evidence from a number of witnesses, including the applicant, and admitted into evidence a number of documents, his Honour sentenced the applicant to 21 years’ imprisonment with a non-parole period of 15 years. In accordance with the requirements of s.21E of the Crimes Act 1914 (Cth.) (“the Crimes Act”) his Honour specified that the sentence of imprisonment and the non-parole period had been reduced from 26 years and 18 years respectively because of the applicant’s undertaking to co-operate with law enforcement agencies.
By notice dated 14 September 1999 the applicant seeks leave to appeal against sentence on the following grounds:
“1.That the sentence was manifestly excessive in all the circumstances.
2.That his Honour gave insufficient weight to the applicant’s co-operation with the investigating police. “
By order of the Registrar made on 7 February 2001 a third ground was added, namely:
“3.The sentence imposed upon the applicant is manifestly disparate with the sentences of the co-offenders”.
The circumstances in which the offence occurred were these. On 29 July 1997 a ship arrived at Port Melbourne carrying a container of 950 cartons marked “Festival water chestnuts”. An examination of its contents found that four of the cartons were marked with a dotted black line. Each of those cartons contained five tins, each of which, instead of containing water chestnuts, held two blocks of heroin. Thus, the specially marked cartons held 80 blocks of heroin which weighed 31.8 kilograms. The heroin content of these blocks was 75.26 per cent. It follows that the four cartons contained a total of pure heroin of 23.9 kilograms. It was estimated that the wholesale value of the drug was $6.6m; its street value was approximately $47m. According to the sentencing judge, this was the largest importation of heroin into Victoria.
The Australian Federal Police (“AFP”) became involved and embarked upon a controlled delivery of the container. On 5 April 1997 they replaced the blocks with substituted material, re-sealing and re-labelling the tins so as to disguise what had occurred and concealed listening devices in some of the cartons. They knew that the container was to be delivered to a self-storage warehouse in Tanner Street, Richmond. By the morning of the following day, the AFP placed the warehouse and its surrounding area under surveillance, which involved officers watching the area and operating listening and film devices from parked vehicles and other locations. In the early hours of 6 August 1997, one of the co-offenders, ZY, in relation to whom a suppression order is current, arrived at the warehouse and a little later he was joined by the applicant. The AFP observed them engaging in anti-surveillance activity while apparently waiting for a delivery. They examined some of the vehicles parked in the vicinity of the warehouse as if they were concerned that they were being watched by persons from within them. One of the vehicles they examined was a panel van of ordinary appearance which was being used by the police for surveillance purposes. Because of the interest that the applicant and ZY showed in the panel van, it was driven away by the AFP.
The other co-offender, Peter Alexopoulos also arrived in the area that morning at the request of the applicant and parked his car around the corner from the warehouse. He, too, seemed to check the area for any possible police or other surveillance. When he saw the applicant and ZY, he pretended not to know them. Not long after his arrival, Alexopoulos proceeded to Richmond railway station, which is within very close proximity of the warehouse. The warehouse and any movement in the surrounding streets can be conveniently and effectively observed from platforms 1, 2, 9 and 10 of that station. Alexopoulos kept watch of the area in question from those platforms and kept in contact with the applicant by means of a mobile telephone.
When the container arrived at the warehouse later that morning, Alexopoulos was on platform 10 of the Richmond railway station from which he had a clear view of the container. Upon seeing it arrive, he spoke with the applicant on the mobile telephone. The unloading took place over approximately three hours. After the truck departed, the roller door of the warehouse was lowered and the applicant and ZY remained in the warehouse. The applicant opened one of the tins from a marked carton and passed its contents to ZY to test by tasting it. (The applicant explained to the learned sentencing judge during the hearing of the plea in mitigation that, although the marked cartons had nothing to do with him, he opened the cans solely out of “curiosity”.) ZY was heard to say (through the concealed listening device) that it was only plaster and the applicant’s disbelief was reflected in his response: “It can’t be fucking plaster”. According to the Crown, in the recorded conversation between the applicant and ZY, they expressed surprise, disappointment and alarm at what they had found.
Not long thereafter, at approximately 3.30 p.m., the AFP raided the warehouse and arrested the applicant. ZY, who had become suspicious when he discovered that the supposed heroin was plaster and had therefore moved away from the area of the cartons, escaped the scene but was arrested a little more than a week later. Alexopoulos had left the station shortly after 2 p.m. and, on his way to the warehouse, stopped to have a drink at the Cricketers Arms Hotel in Punt Road. Thereafter, he proceeded south along Punt Road where he was arrested.
The three offenders were charged with drug offences and each contested the charges at the committal hearing which commenced on 6 April 1998 and in the course of which 27 witnesses were called. The were committed to stand trial in the County Court at Melbourne. On 29 January 1999 ZY informed the court that he would plead guilty to one count of being knowingly concerned in the importation of heroin of not less than a commercial quantity. He later pleaded guilty to an indictment alleging that offence. His plea in mitigation was heard in February 1999 and I shall return to it later. The trial of the applicant and Alexopoulos commenced on 7 April 1999 with a Basha inquiry, a fresh indictment having been filed. As I have mentioned, on 5 May 1999 and before he was arraigned, the applicant entered a plea of guilty to the count to which I have referred. On 6 September 1999 Alexopoulos was arraigned and pleaded not guilty to three counts, including the first count of being knowingly concerned in the unlawful importation of the heroin. After a trial that continued until 16 September 1999, the jury returned a verdict of guilty on the first count and no verdicts were sought in relation to the other counts. The plea in mitigation made on behalf of Alexopoulos was heard on 23 September 1999 and I will deal with it later.
It is convenient to mention at this point the role played by each of the three offenders in relation to the importation of the heroin as found by the learned sentencing judge. So far as the applicant is concerned, his Honour was satisfied to the requisite standard set out in R. v. Storey[4] that he played an essential role in the importation of the heroin into Australia. Although there were others who were involved in the enterprise who were higher in the organisational structure, the applicant was nevertheless “highly” involved in the planning and organising of the transaction over a considerable period of time. He was, in effect, the person who procured the importation of the heroin into Australia. His Honour found that the applicant’s evidence, which related to numerous and significant matters, was deliberately obfuscatory and false. Thus, his Honour rejected the applicant’s claim that he did not play a significant role in the planning and execution of the importation of the drug and was, in effect, duped into arranging for its importation by one David Nicholas[5]. His Honour gave detailed reasons for rejecting this claim, but they need not be repeated here. As I have said, they are not challenged by the applicant’s counsel.
[4][1998] 1 V.R. 359 at 360 (which was approved by the High Court in R. v. Olbrich (1999) 199 C.L.R. 270 at 281.)
[5]Nicholas is now serving a long term of imprisonment in respect of his conviction in November 1998 in an unrelated case for possession of a trafficable quantity of heroin and attempting to obtain possession of a commercial quantity of heroin.
It is common ground that the applicant and David Nicholas had been friends since approximately early 1991, when they met whilst they were both serving terms of imprisonment. His Honour found that the applicant and Nicholas had planned and organised the heroin importation for a considerable time, since early 1996, and that the foodstuffs aspect of the transaction was used to disguise its true nature. The applicant was not a user of heroin. His motive for importing was the expectation of considerable enrichment.
More particularly, the steps taken by the applicant for the purpose of importing the container included the following:
(a)in early 1997, whilst in Hong Kong and China, he organised the shipment of Asian foodstuffs out of Asia to Australia and knew that the shipment would include the heroin;
(b)in about mid-1997 he made arrangements in Melbourne to import the goods under the name Linkesen Pty. Ltd. (“Linkesen”) which was a company that was unconnected with the applicant and which had been set up to import goods from China. Thus, the applicant avoided putting the venture at risk by using his own name. Consequently, the importation appeared to have been conducted by Linkesen;
(c)while using Linkesen as a cover, the applicant in fact carried out the bulk of the work necessary for the importation of the goods, including their clearance through Customs. Thus, he completed the requisite forms, supplied Linkesen with shipping documents which had the appearance of being Chinese in origin, provided material to establish conformity with quarantine requirements and generally made arrangements for Customs clearance of the consignment and for its delivery to the warehouse;
(d)although he was in straightened circumstances, the applicant paid $3,300 cash to an employee of Linkesen for the so-called “service” it provided to him;
(e)notwithstanding that it was ZY who introduced the applicant to the manager of the warehouse, it was the applicant who later leased the premises and subsequently inspected them which his Chinese business associates;
(f)the applicant arranged for the recruitment of labour from Kelly’s Services to help unload the container, supervised their work and signed off on their time sheets.
Thus, his Honour found that:
“[The applicant] was highly involved in the heroin importation, in its planning and organisation over a considerable time along with Nicholas and the Chinese. He was involved in the mechanics of the arrival and the clearance, the unloading and the storing of the shipment. I am satisfied of this high participation beyond reasonable doubt. I do not accept his proposal that he was duped or innocently led into this in the last few days [before the arrival of the container].”
His Honour also concluded, however, that the applicant did not finance the operation and that there was no evidence as to what role, if any, he was to play in the distribution of the drug.
These findings were well open to his Honour on the evidence and are not under challenge.
The plea in mitigation made on behalf of ZY was heard over four days and on 12 February 1999 he was sentenced to seven years’ imprisonment with a non-parole period of 4½ years (the sentence being reduced from 12 years and nine years respectively because of his undertaking to co-operate with the authorities and give evidence against his co-accused). His Honour found that in early 1997 the applicant told ZY about an expected shipment of heroin from China which would be located in tins of water chestnuts. It was after this information was given to him that ZY introduced the applicant to the manager of the warehouse. In July 1997 ZY and his de facto wife went to Queensland with the view to recovering their health. As events turned out, ZY did not stay away for long and, when he returned, the applicant asked him for assistance in relation to the consignment. ZY claimed that he refused this request for help because he had to return to Queensland to collect his car. Upon his return he was contacted by the applicant who again asked for his assistance. This time, his Honour said, ZY was non-committal. At a chance meeting on 3 August 1997 the applicant gave ZY significant details of the shipment confirming that it was due to be unloaded at the warehouse on 5 August 1997 and said that he wanted ZY to help with the unloading and to “watch his back”. ZY expressed his concern that if they were caught they would be subject to very lengthy gaol sentences but he told his Honour that, as he was not inclined to alienate his drug supplier, he remained non-committal. But on 5 August 1997, instead of going to the warehouse as the applicant had asked him, ZY went to a hotel and got drunk. It was not until evening, when he rang the warehouse manager in relation to another matter, that he was told that the shipment had not arrived and was expected on the following day. On 6 August 1997 ZY attended the warehouse but, as his Honour emphasised, without any prior agreement concerning payment. ZY maintained that, at most, he expected that, if he helped the applicant, he would establish a relationship whereby he would obtain from him supplies of heroin on credit.
After reviewing the participation by ZY in the operation, his Honour concluded that, although he was not at the bottom level of involvement, he was clearly closer to the bottom than the top. His Honour noted that he did not work for the applicant, his association with him was spasmodic and, as was accepted by the Crown, he was not involved in the organisation of the shipment in any way. Moreover, that ZY did not play an essential part in the operation was corroborated, his Honour thought, by the fact that he was not fully committed to unloading the heroin, as is demonstrated by his non-attendance at the premises on 5 August 1997. His Honour further noted that there was no suggestion that ZY would have been involved in any way in the distribution of the heroin. His Honour found that the information he gave to the authorities was truthful as compared with the unreliability of the material provided to them by the applicant. Further, his undertaking to give evidence in another matter apparently would be of real value to the Crown. Thus, his Honour considered that ZY was entitled to a significant sentencing discount.
As to Alexopoulos, the plea in mitigation made on his behalf was heard on 23 September 1999 with four witnesses being called to give evidence, including Alexopoulos. On 24 September 1999 he was sentenced to six years’ imprisonment with a non-parole period of four years. His Honour found that Alexopoulos, who knew that the operation involved the importation of drugs, assisted the applicant in executing the transaction by keeping a watch on the operation from Richmond railway station with a view to warning the applicant of any likely interference with the unloading of the container. His Honour considered that the jury verdict involved a finding that what he did constituted a practical connection with the project. But his Honour also found that there was no evidence that Alexopoulos was involved in planning or organising the importation about which he was probably not made aware until a relatively short time before the container arrived. His Honour was satisfied that Alexopoulos did not know any of the principals other than the applicant; he had not met Nicholas or ZY or any of the applicant’s other associates. Further, his Honour said that there was no basis for contending that Alexopoulos was to have any role in the distribution of the heroin into the community. His Honour concluded that the role of Alexopoulos in the operation was not an essential one and was limited to keeping a watch “over the warehouse operation, looking out for police intrusion or any other untoward event and warn the applicant should such a situation arise.”
To summarise, his Honour’s findings as to the different roles of the offenders in the importation and storage of the heroin were these. The applicant was close to the top of the operation and was heavily involved in the organisation and the planning of it. The role of ZY was closer to the bottom than the top of the hierarchy, while Alexopoulos was even further removed from the nerve centre of the operation, being somewhere near the bottom of the ladder.
As one would expect, the personal circumstances of each co-offender were different from those applicable to the others and therefore, there is no purpose in contrasting them. It should be said, however, that Alexopoulos was the only one of the three co-offenders who had a relevant prior conviction, namely, one which included trafficking in a drug of dependence, but the seriousness and extent of it may be reflected in the fact that he received a comparatively lenient sentence in relation to it.
Before dealing with the grounds of appeal, it is necessary to set out briefly the circumstances in which Mr. Tehan sought to add yet another ground of appeal. For that purpose, it is necessary to mention that, in the course of his argument before us, Mr. Tehan submitted, inter alia, that his Honour did not sufficiently take into account in his sentencing considerations the requirements of s.16G of the Crimes Act. I now turn to what occurred after the court heard the application. At the conclusion of the hearing on 12 February 2001, the court informed the parties that it would deliver its decision on 10 a.m. on 15 February 2001. After the court rose, Mr. Tehan sought leave informally to make further submissions in respect of his argument based on s.16G. We gave him leave to file further written submissions on this issue by 10.30 a.m. on 13 February 2001 and requested that Mr. Champion, who appeared for the respondent, file any response by 4.30 p.m. on that day. Counsel filed their respective submissions within the time prescribed. On 16 February 2001 we received from Mr. Tehan an addendum to his further submissions seeking to correct some aspects of them.
Mr. Tehan’s new submissions are primarily directed to the contention that his Honour erred in his application of s.16G of the Crimes Act. Mr. Tehan correctly recognised that this raised a ground of specific error as distinct from being any part of the manifest excess ground and, accordingly, he sought leave to add a further ground in the following terms:
“The learned sentencing judge erred in his application of s.16G of the Crimes Act, Cth.”.
In his new written material, Mr. Tehan contended that his Honour’s approach to s.16G was fundamentally flawed for the following reasons: first, his Honour treated s.16G as a mitigating factor rather than as a mandatory statutory requirement; and, secondly, his Honour wrongly took into account s.21E before he considered the requirements of s.16G. It was argued that his Honour was obliged to make the s.16G adjustment before he turned his mind to the differences to be specified pursuant to s.21E. It was further said that, for the limited purpose[6] of considering whether his Honour properly applied the s.16G requirement to the sentencing process, it was appropriate to have regard to the notional sentence of 26 years of imprisonment which translated into a sentence of 39 years’ imprisonment in a jurisdiction without remissions. That, it was argued, demonstrated manifest excess and showed that his Honour failed to have proper regard to s16G in his sentencing considerations.
[6]Compare [28] below.
In my view, these submissions should be rejected. Mr. Tehan based his first contention on the fact that his Honour analysed s.16G under the broad heading which dealt with the extent to which mitigatory factors should be brought into the intuitive synthesis. Thus, said Mr. Tehan, his Honour treated s.16G as a mitigating factor and not as a statutory requirement that there be an adjustment to the sentence. But it is plain from the totality of his Honour’s sentencing remarks that he considered the section in that context because he regarded it as being favourable to the applicant and not because he failed to have regard to its requirement to adjust the sentence. It is apparent that his Honour was well aware of the requirements of the section, that he took it into account in his “overall sentencing consideration” and that he did not treat it as just another mitigatory factor to be taken into account in the sentencing disposition. In the circumstances, it cannot be sensibly said that his Honour wrongly characterised s.16G.
In relation to Mr. Tehan’s second contention, it is apparent that the reason his Honour dealt with the requirements of s.21E before he made the s.16G adjustment was that he considered the operation of that section in the context of his analysis of s.16A(2)(h). His Honour dealt with s.21E and s.16A(2)(h) together in order to highlight the different requirements of the two provisions. In any event, in the context of the instinctive synthesis, it is not a case of first applying s.16G and then calculating a discount pursuant to s.21E as has been put by Mr. Tehan. At the end of the day, the judge is required to come to a conclusion as to (a) the appropriate sentence to be imposed on the offender in the light of his promise of future co-operation and (b) the sentence that would have been appropriate absent that promise. Mr. Tehan’s second contention also suffers from the vice identified in cases such as Director of Public Prosecutions (Cth.) v. El Karhani[7] and R. v. Li[8]. Although a discount of one-third for remissions is ordinarily a legitimate “starting point”, as the New South Wales Court of Appeal said in El Karhani:
“All that is required is that the fact of the absence of remission or reduction must be ‘taken into account’ in determining the length of the [head] sentence. ... [A] general discretion to make an adjustment is required of the sentencing judge. In our view it is impermissible to substitute for that discretion a mathematical calculation...”
Given that the offence here warranted a very long sentence of imprisonment, it was open to his Honour to moderate the s.16G adjustment as part of his instinctive synthesis.
[7](1990) 21 N.S.W.L.R. 370 at 384-385.
[8][1998] 1 V.R. 637 at 641-642 per Winneke, P.
Thus, I detect no error in his Honour’s application of s.16G.
Having regard to all the circumstances, it is my view that the applicant’s application to add the new ground should be refused. It was made very late, after the conclusion of the hearing of the application and, in my opinion, it had no reasonable prospect of success.
I now turn to consider what Mr. Tehan has described as his primary ground, namely, that the sentence is manifestly excessive. Mr. Tehan did not challenge the adequacy of the five year sentencing difference specified by his Honour pursuant to s.21E for the applicant’s undertaking to co-operate in the future. He also accepted that, as a consequence, the relevant sentence for the purpose of considering manifest excess is 21 years. In support of this ground, Mr. Tehan relied on the following.
First, Mr. Tehan claimed that the sentence is the highest sentence imposed in respect of an unlawful importation of a drug of dependence where, as here, the offender has no prior convictions for drug offences, has pleaded guilty and has co-operated with the authorities. This, said Mr. Tehan, demonstrates that the sentence in question is manifestly excessive. In my view, however, an analysis of a number of the sentences imposed in this and other jurisdictions on offenders who participated in the unlawful importation of heroin shows that the sentence imposed on the applicant is broadly within the range of such other sentences. It is true that, ordinarily, it is not helpful for the purpose of establishing manifest excess, to compare the sentence appealed against with sentences imposed in other cases, albeit in respect of the same or similar offences. Nevertheless, it might be useful to look at the present sentence in the context of those imposed in relation to similar offences in order to see if it is obviously out of kilter with them. As the President said in Carey[9]:
“It is true that comparison for the purposes of sentencing, as has frequently been pointed out, can be misleading because each case must be determined upon its own facts; but, by the same token, consistency of punishment, as Mason, J. (as he then was) pointed out in Lowe v. R. (1984) 154 C.L.R. 606 at 610-11, is fundamental to a rational and fair system of criminal justice.”
[9]At 18.
The table below sets out the sentences that were imposed in a number of cases on offenders who, in different capacities, took part in the importation of various quantities of heroin. Their co-operation or otherwise with the authorities and their pleas is also shown.
CASE
ROLE
QUANTITY
PLEA
CO-OPERATION WITH AUTHORITIES
HEAD SENTENCE
NON-PAROLE PERIOD
PETER KWONG CHIN TAN[10] (VIC)
Principal/Organiser
12.57 kgs
Guilty
Yes
25 years
12 years
KWONG YUE CHEUNG[11] (WA)
“a participant at the top of the range”
32.41 kgs
Guilty
No
25 years
13 years
MUN LOI LAU[12] (NSW)
Intermediary
4.55 kgs
Guilty
No
12 years
8 years
TACK LEE PANG[13] (NSW)
Courier
2.4956 kgs
Guilty
Yes
5 years
3 years
CHUN HING LAW[14]
(NSW)
Principal
40.1 kgs
Not Guilty
No
Life
-
BRIAN ALEXANDER KUAN[15](NSW)
Not “a mere courier”/”Function critical to the success of the enterprise”
40.1 kgs
Guilty
No
12 years
7 years
MURRAY JAMES PERRIER[16] (VIC)
Principal
1.636 kgs
Not Guilty
No
Life
22 years
FONG HUAT SU[17] (VIC)
Overseer
8.5 kgs
Not Guilty
No
20 years
14 years
[10](1995) 78 A.Crim.R. 300.
[11](1997) 97 A.Crim.R. 283.
[12]Unreported, NSW CCA, 4 December 1998.
[13](1999) 105 A.Crim.R. 474.
[14]Unreported, Supreme Court of New South Wales, 31 March 1999.
[15]Unreported, Supreme Court of New South Wales, 31 March 1999.
[16][1991] 1 V.R. 717.
[17][1997] 1 V.R. 1.
In my view, given the “massive heroin importation” in this case and the applicant’s involvement at a high level in the enterprise, the sentence in question is, broadly, within the range of relevant sentences imposed elsewhere.
Mr. Tehan further contended that the sentence was harsh and that even his Honour so described it, and that this also supports his primary argument that the sentence is manifestly excessive. In my view, however, his Honour’s statement to the applicant at the end of his sentencing remarks that “You must be punished harshly for this [offence] and the sentence must be seen as a general deterrent” was, in the circumstances, well justified. Given the offence was of the highest order of seriousness and the applicant’s role in it, it was necessary to impose condign punishment and to ensure that the principle of general deterrence was properly reflected in the sentence. Thus, in the unusual circumstances of this case, the sentence had to be seen to be harsh, but in my opinion, that does not demonstrate that it is manifestly excessive.
I have already dealt with my rejection of Mr. Tehan’s submission that, if the sentence were examined in the context of s.16G, it would be seen to be inappropriately high. Mr. Tehan submitted that, if account were taken of remissions, the notional maximum sentence effectively translates into a life sentence given that the applicant was aged 48 when sentenced. But this argument does not take the matter any further. It is dependent essentially upon the application of a fixed arithmetic formula, an approach that has been found impermissible by the courts. It is convenient to mention here that in Mr. Tehan’s further written submissions he expressed the concern that his Honour “might have otherwise decided a life sentence was appropriate and then having regard to s.16G determined to impose a fixed term.” There is, however, no basis for this concern. As I have said, it is plain that his Honour had a clear understanding of s.16G and that the imposition of a life sentence was open to him but that, for reasons given by him, he specifically rejected imposing such a sentence on the applicant.
Mr. Tehan further submitted that his Honour failed to give sufficient weight to the applicant’s plea of guilty. As I understand it, Mr. Tehan contended that his Honour gave weight to the plea only to the extent that it would encourage other guilty offenders to plead guilty; no or no sufficient weight, it was said, was given to the plea of guilty by way of recognition of the applicant’s decision to take that course. I do not accept this submission. The learned sentencing judge said that he gave weight to the plea of guilty notwithstanding that it was made late and notwithstanding the strength of the Crown case against him. His Honour said in terms that he considered that the course so adopted by the applicant saved the court time and witnesses inconvenience and that it deserved recognition and an appropriate reward; it would also act as an incentive generally to encourage the guilty to plead to their crimes. In my view, this does not indicate failure by his Honour properly to recognise the applicant’s decision to plead guilty. Given the circumstances in which the plea of guilty was made, including lack of remorse on the applicant’s part, it was quite appropriate for his Honour to give a sentencing discount taking account of, principally, the utilitarian value of the plea, namely, the saving to the community of the expense and inconvenience of a long trial and the encouragement of guilty persons to plead to their crimes – see R. v. Duncan[18].
[18][1998] 3 V.R. 208 at 214-5, particularly paras. 7 and 9 per Callaway, J.A. See also R. v. Thomson (2000) N.S.W.L.R. 383.
Mr. Tehan also contended that his Honour’s failure to give sufficient weight to the plea of guilty can be demonstrated by the answer to the rhetorical question: “What would the sentence have been but for the plea of guilty?” Mr. Tehan submitted that the answer to that question would demonstrate manifest excess. In my view, however, such an analysis is not helpful. It disregards the instinctive synthesis aspect of the sentencing process, and does not demonstrate that his Honour did not give sufficient weight to the plea of guilty.
Mr. Tehan also contended that his Honour undervalued the applicant’s personal circumstances, particularly his extensive work history, the tragic loss of his daughter which had had a devastating effect on him, his business failures and efforts to resurrect his life and the depression from which he suffered at or about the time of the planning of the operation. It is clear from the sentencing remarks of his Honour, however, that he took all the applicant’s relevant personal circumstances into account and, in that context, had regard to the evidence that the applicant suffered from depression between October 1996 and about June 1997. It should be borne in mind, however, that the applicant embarked upon the planning of the unlawful operation in about January 1996, well before the onset of the depression.
Mr. Tehan further argued that his Honour did not give sufficient weight in his sentencing considerations to the applicant’s co-operation with the authorities for the purpose of s.16A(2)(h) which is concerned with past co-operation. Mr. Tehan emphasised that the applicant told the authorities of the names of the other “principals” in the operation, including Lu and Nicholas and also about some of their movements in Australia. He claimed that this was of material value to the authorities because, even though they knew most of the facts, they gained the benefit of having them confirmed by the applicant. In my opinion, however, his Honour was entitled to conclude, as he did, that the information provided by the applicant to the authorities was only of limited value – a lot of it was already known and some of it was untrue and otherwise unsatisfactory. In the circumstances, it was appropriate not to give much weight to the applicant’s limited co-operation with the authorities.
It is clear that all the above mitigating factors were put to his Honour and it is plain from his sentencing remarks that he considered them for the purpose of constructing the appropriate sentence. There is nothing on the face of his Honour’s sentencing remarks that indicates the contrary and in my view, Mr. Tehan can only establish his contention that insufficient weight was given to those matters if he first makes out that the sentence is manifestly excessive.
In considering this issue, it must be borne in mind that the question is not whether this Court would have imposed the sentence that was imposed by his Honour, but whether it is within the range of sentences properly available to him. In sentencing the applicant the learned sentencing judge had to fix a sentence which properly reflected the gravity of the offence, taking into account matters personal to the applicant and other mitigating factors. In my opinion, his Honour did this as is clear from his sentencing remarks. It is plain that the offence is of the highest level of seriousness, in respect of which the legislation provides life imprisonment as a maximum penalty. It is also the case that the level of the applicant’s moral culpability in the offending is very high. As I have mentioned, he was instrumental in bringing into Victoria the largest amount of heroin that had, up to the date of sentence, been imported. It was approximately 16 times greater in amount than the quantity which the legislature prescribes as a commercial quantity. The distribution of the heroin would have had a devastating multiplier effect, directly and indirectly, on a significant section of the community, particularly the young. I will not repeat here all what has been so rightly and strongly said on this issue in cases such as Su[19]; R. v. Pantsis[20] and R. v. Berisha[21]. The courts have repeatedly warned that those involved in the business of trafficking heroin can expect condign punishment and little mercy from the courts. This applies particularly to principals, like the applicant, who are rarely brought to justice. They play for very high stakes and must know that, if caught, they will be severely punished. It is not surprising, therefore, that it has been recognised that the principle of general deterrence has a significant role to play in the sentencing of such offenders – Pantsis per Tadgell, J.A.[22]. Similarly, condign punishment is called for in relation to this offence. The criminal enterprise in this case was carefully planned by the applicant over a considerable period to ensure its success. He did all the planning and work necessary to have the consignment transported to Australia and to have it cleared through Customs. In order to minimise the risk of the authorities connecting the shipment with him, the applicant effectively imported the goods in the name of a company with which he had no relevant association. The applicant must have known what would befall him if he were caught and convicted of the offence. Yet he pressed on notwithstanding the risk, no doubt believing that, through his organisational skills, he would outwit the authorities and that the reward at the end of the enterprise justified the taking of the risk.
[19]At 76-7.
[20][1998] VSCA 134 at [12] per Tadgell, J.A.
[21][1999] VSCA 112 at [32] per Charles, J.A.
[22]At [12].
In my view, given the above circumstances, the sentence imposed on the applicant, although high, is within the range of sentencing options that were available to his Honour.
Consequently, this ground must fail.
I now turn to consider Mr. Tehan’s submissions made in relation to ground 3. Mr. Tehan argued that, whilst there were differences between the respective roles of the offenders and their antecedents, the disparity in the sentences that were imposed on them was manifest such that appellate intervention was required. He contended that the head sentences, absent the reduction for future co-operation, indicated this disparity which gave rise to a justifiable sense of grievance in the applicant. It was emphasised by Mr. Tehan that ZY was “integrally involved in the offence” and that Alexopoulos was not entitled to a discount for a plea of guilty. Moreover, said Mr. Tehan, each offender was dealt with for the same offence and each of them played an important part in its execution.
Although mere disparity between sentences imposed on co-offenders is not of itself a ground for appellate intervention, if the difference is manifestly excessive, the appellate court might intervene on the ground that the disparity engenders a justifiable sense of grievance or gives the appearance that justice has not been done – Postiglione v. R.[23]; R. v. Lowe[24]; R. v. O’Brien & Gloster[25]; R. v. Bulfin[26]. The test for determining whether the disparity engenders a justifiable sense of grievance in the applicant or creates an appearance of injustice to the objective bystander, is an objective one - R. v. Taudevin[27]: But it is equally well established that “where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for”[28].
[23](1997) 189 C.L.R. 295.
[24](1984) 154 C.L.R. 606.
[25][1997] 2 V.R. 714 at 721 per Charles, J.A.
[26][1998] 4 V.R. 116 at 138-140 per Charles, J.A.
[27][1996] 2 V.R. 402 at 404 per Callaway, J.A.
[28]Lowe at 623 per Dawson, J.; R. v. O’Brien and Gloster at 722 pr Charles, J.A.
The sentencing process necessarily involves the difficult task of tailoring the sentence to the circumstances applicable to the particular offender. In the present case the learned sentencing judge carefully articulated the different involvement of each of the three offenders in the crime and the differing circumstances that applied to each. It is plain, in my view, that the sentencing considerations affecting the three offenders were entirely different as his Honour demonstrated. The respective sentences that were imposed on them reflect broadly his Honour’s characterisation of their different roles in the criminal enterprise. Thus, the head sentences imposed on the applicant and ZY reflect broadly his Honour’s characterisation of their respective roles in the criminal enterprise. It will be recalled that his Honour considered that the applicant was a principal who played an essential role in the crime and that the role of ZY was closer to the bottom than the top of the hierarchy. Alexopoulos was regarded by his Honour as being at the bottom of the organisation.
I consider that the material difference in the roles of each offender called for different sentences of the order imposed by the learned sentencing judge. In the circumstances it is not possible, in my view, to say sensibly that the disparity in the sentences would engender a sense of grievance in the applicant or give the appearance of injustice to an objective bystander.
Thus, in my opinion, this ground must fail.
Accordingly, in my view, this application should be dismissed.
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