R v Mas Rivadavia
[2004] NSWCCA 284
•18 August 2004
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Mas Rivadavia; Regina v El Akkaoui; Regina v Aksu [2004] NSWCCA 284 revised - 18/08/2004
FILE NUMBER(S):
CCAP 2004/1945
(formerly 60106/04)
CCAP 2004/1944
(formerly 60105/04)
CCAP 2004/1949
(formerly 60103/04)
HEARING DATE(S): 16/7/04
JUDGMENT DATE: 18/08/2004
PARTIES:
Ruben Mas Rivadavia
Raed El Akkaoui
Umit Aksu
JUDGMENT OF: Wood CJ at CL Adams J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/11/0047, 03/11/0013, 03/11/0013
LOWER COURT JUDICIAL OFFICER: Nield DCJ
COUNSEL:
G Bellew (Crown - Commonwealth)
A Francis (Rivadavai)
P Doyle (Aksu)
B Stratton QC (El Akkaoui)
SOLICITORS:
Commonwealth Director of Public Prosecutions
S E O'Connor
CATCHWORDS:
Criminal law - conspiracy to import heroin - attempting to have in possession prohibited import - Crown appeal against leniency of sentences imposed - ss 16G and 19AG Crimes Act.
LEGISLATION CITED:
ss 16G, 19AG Crimes Act
s 4 Crimes Legislation Amendment (People Smuggling, Firearms and Trafficking and Other Measures) Act 2002
s 233B Customs Act 1901
Sentencing Act 1989
DECISION:
Mas Rivadavia: 1. Crown appeal allowed
2.Sentence below quashed, and in lieu thereof the Respondent to be sentenced to imprisonment for 8 years and 3 months to date from 8 April 2002 and to expire on 7 July 2010
3.Specify a non-parole period of 5 years and 3 months to date from 8 April 2002 and to expire on 7 July 2007. El Akkaoui: 1.Crown appeal allowed.
2.Sentence below quashed, and in lieu thereof the Respondent to be sentenced to imprisonment for 8 years and 3 months to date from 5 April 2002 and to expire on 4 July 2010
3.Specify a non-parole period of 5 years and 3 months to date from 5 April 2002 and to expire on 4 July 2007. Aksu: 1.Crown appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCAP 2004/1945 (formerly 60106/04)
CCAP 2004/1944 (formerly 60105/04)
CCAP 2004/1949 (formerly 60103/04)Wood CJ at CL
Adams J
Smart AJWednesday 18 August 2004
Regina v Ruben Mas Rivadavia
Regina v Raed El Akkaoui
Regina v Umit Aksu
The first two Respondents, Mas Rivadavia and El Akkaoui were charged with conspiracy to import a prohibited substance of 708.5 gms of pure heroin into Australia pursuant to s 233B of the Customs Act 1901, with both subsequently receiving a sentence of imprisonment of 6 years and 9 months with non-parole periods of 4 years and 3 months. The third Respondent, Aksu, was charged with attempting to have in his possession a prohibited substance and received a sentence of 4 years and 3 months with a non-parole period of 2 years and 6 months. They had been part of a wider group under police surveillance for planning to import heroin from Hong Kong to Australia through the FedEx airfreight system. Each pleaded on the dates fixed for trial. The Crown appeals against their sentences as being manifestly lenient.
Held: Guideline decisions such as R v Wong and Leung [1999] 48 NSWLR 340 have importance in establishing general sentencing patterns but a discretion remains to allow for the objective and subjective differences that may occur in different cases: R v Karacic [2001] NSWCCCA 12 and R v Whyte [2002] NSWCCA 343.
Following the decisions in R v Studenikin [2004] NSWCCA 164 and R vDujeu [2004] NSWCCA 237 there is no warrant to increase the range of sentences for Federal offences, now that s 16G Crimes Act 1914 (Cth) has been repealed, by the application of some mathematical formula. The proper approach to sentencing for a Federal offence is to determine the correct sentence without taking into account that s 16G existed and has now been repealed, save so far that, if regard is had to pre existing patterns, it should be understood that they were sentences passed after a s 16G discount.
By reference to pre s 16G and 19AG sentencing patterns and the range of sentencing suggested in Wong and Leung, and despite the Respondents’ favourable subjective circumstances, there was insufficient weight accorded to the punitive, retributive and deterrent elements as well as to the objective criminality of what was a well planned and substantial importation operation. A significant degree of punishment was merited: R v Wong and Ng (1988) 39 A Crim R 1 and R v Saxon (1996) 86 A Crim R 353.
The Crown appeals should be allowed. The sentences of Mas Rivadavia and El Akkaoui were manifestly lenient and the Court should intervene to resentence them.
The sentence in the case of Aksu was also overly lenient. However due to delays and the custody history of that Respondent once the Crown appeal was lodged, the Court, in the exercise of its discretion, will not intervene.
Mas Rivadavia
1. Crown appeal allowed;
2.Sentence below quashed, and in lieu thereof the respondent to be sentenced to imprisonment for 8 years and 3 months to date from 8 April 2002 and to expire on 7 July 2010.
3.Specify a non-parole period of 5 years and 3 months to date from 8 April 2002 and to expire on 7 July 2007.
El Akkaoui
1. Crown appeal allowed;
2.Sentence below quashed, and in lieu thereof the respondent to be sentenced to imprisonment for 8 years and 3 months to date from 5 April 2002 and to expire on 4 July 2010.
3.Specify a non-parole period of 5 years and 3 months to date from 5 April 2002 and to expire on 4 July 2007.
Aksu
1. Crown appeal dismissed.
- 28 -
IN THE COURT OF
CRIMINAL APPEAL
CCAP 2004/1945 (formerly 60106/04)
CCAP 2004/1944 (formerly 60105/04)
CCAP 2004/1949 (formerly 60103/04)Wood CJ at CL
Adams J
Smart AJWednesday 18 August 2004
Regina v Ruben Mas Rivadavia
Regina v Raed El Akkaoui
Regina v Umit Aksu
Judgment
WOOD CJ at CL: The first two Respondents Mas Rivadavia and El Akkaoui, whose cases are considered in these reasons for judgment, were each charged with conspiracy between 1 August 2001 and 4 April 2002 to import into Australia, prohibited imports to which s 233B of the Customs Act 1901 applied, namely a quantity of heroin being not less than the trafficable quantity applicable to that substance. The maximum penalty for that offence was 25 years imprisonment and/or a fine of $500,000.
The third Respondent Aksu, whose case is also considered in these reasons, was charged with attempting to commit an offence against s 233B(1)(c) of the Customs Act in attempting to have in his possession the same prohibited import. The maximum penalty for that offence was similarly 25 years imprisonment and/or a fine of $500,000.
Each of the Respondents Mas Rivadavia and El Akkaoui pleaded guilty to this indictment on 13 August 2003, the day on which their matters were listed for trial. Aksu pleaded guilty on 13 October 2003, that being the date fixed for trial on the substantive charge, which he faced.
Several other persons were charged, or identified as having been involved in the planned importation of the heroin.
They include Spiros Kardoulias, Rafael Andres and Petros Kastellorizos. Of this group, Spiros Kardoulias was placed on trial on 13 August 2003 and convicted of conspiracy. Kastellorizos was found not guilty by the jury, which convicted Kardoulias. Rafael Andres pleaded guilty on two counts of conspiracy, the first being that charged in relation to Mas Rivadavia, El Akkaoui, and Kardoulias to which he pleaded on 13 August 2003. The other involving a separate conspiracy to import a commercial quantity of methylenedioxymethamphetamine, or ecstasy to which he pleaded on 27 November 2003.
The Sentences Passed
(a) Mas Rivadavia – imprisonment for 6 years and 9 months, with a non-parole period of 4 years and 3 months, each to date from 8 April 2002, being the date on which he was taken into custody;
(b) El Akkaoui – imprisonment for 6 years and 9 months, with a non-parole period of 4 years and 3 months, each to date from 5 April 2002, being the date on which he was taken into custody;
(c) Aksu – imprisonment for 4 years and 3 months with a non-parole period of 2 years 6 months, each to date from 4 April 2002, being the date on which he was taken into custody.
(d) Kardoulias – imprisonment for 13 years with a non-parole period of 8 years, each to commence from 8 April 2002, being the date on which he was taken into custody;
(e) Andres – imprisonment for 8 years 6 months to commence from 9 April 2002 and to expire on 8 October 2010, the former being the date on which he was taken into custody for the heroin offence. A sentence of imprisonment for 10 years was fixed to commence on 9 October 2006 and to expire on 8 October 2016 for the ecstasy offence. A single non-parole period was fixed of 9 years to commence on 9 April 2002 and to expire on 8 April 2011. The second sentence was to be served concurrently with the first sentence for 4 years, and was to be cumulative upon it for 6 years. The sentencing order, accordingly, resulted in a head sentence of 14 years 6 months with an effective non-parole period of 9 years. The Crown is contemplating an appeal challenging the adequacy of these sentences.
The Crown has appealed against the leniency of the sentences imposed upon Mas Rivadavia, El Akkaoui and Aksu, and those appeals are dealt with in these reasons. None of these Respondents has lodged an application to appeal against the severity of the sentences that were imposed upon them.
The Crown has also lodged an appeal against the leniency of the sentence imposed on Kardoulias. A separate appeal against conviction has been lodged on his behalf. He also seeks leave to appeal against the severity of the sentence that was imposed upon him. The Crown is contemplating an appeal in relation to the adequacy of the sentences passed on Aksu.
Those appeals are dealt with in a separate judgment. This judgment is confined to the three Crown appeals concerning Mas Rivadavia, El Akkaoui and Aksu.
Facts
The relevant offences of the three Respondents related to a planned importation of heroin from Hong Kong. That plan was implemented in the following circumstances, reduced to their bare essentials.
On 8 March 2002 a package, which had been lodged on 7 March 2002 with Federal Express (FedEx) in Hong Kong for shipment by airfreight to Australia, arrived in Sydney. This shipment did not contain any prohibited drug. Rather it was consigned by way of a dummy run to ascertain whether it was possible to import a quantity of a prohibited drug into Australia through the FedEx system.
On 11 March 2002, Aksu, at El Akkaoui’s request, went to the FedEx premises at Alexandria to take delivery of the package. After emptying the contents of the package into his backpack, and discarding the wrapping, he took the backpack home.
Later that day El Akkaoui collected the contents from Aksu’s mother at his home.
As a result of the successful dummy run, the parties proceeded to carry out the intended importation of heroin.
On the morning of 4 April 2002, a package, which had been lodged with FedEx in Hong Kong on the previous day, for shipment by airfreight to Australia, arrived in Sydney. It was intercepted by Australian Customs and the Australian Federal Police, and found to contain four blocks of off-white coloured powder. The total weight of the blocks was 1.395 kgs and they contained 708.5 gms of pure heroin. The wholesale value of the heroin ranged between $308,000 and $520,000. The street value was assessed to be $1,125,461. As such the consignment fell into the mid range of a trafficable quantity of heroin.
The blocks were removed and replaced with blocks of similar size, colour, shape and weight, of an inert substance and the package was reassembled for collection.
The operations of those involved in the offences came under intensive physical and electronic surveillance from the beginning of August 2001 until 9 April 2002. Inter alia, police monitored and intercepted calls made on the mobile telephone services of Andres, Mas Rivadavia, El Akkaoui and Kardoulias, involving phones to which they had subscribed under their own names, and others which had been leased under different names, some of which were fictitious.
This surveillance revealed that communications between the offenders had been carefully arranged, in so far as they held meetings in public places at night and in the early mornings, and spoke in code when using telephones. They often used public telephones to arrange their meetings.
Andres’ Role
During the period over which the conspiracy was charged, Andres was an employee of FedEx in Sydney.
He held the position of Customs Manager, having previously occupied office as a Customs Broker, and Manager of Import Operations. His responsibilities extended to liaising with relevant government agencies including the Australian Customs Service, the Australian Quarantine Inspection Service and the Australian Federal Police. They also extended to the selection, training and disciplining of the subordinate staff, who were responsible for attending to Customs requirements in respect of the importation and export of shipments.
On 10 October 2001, he also assumed responsibility for overseeing FedEx’s security operations, which included the operation of 24 security cameras, and the associated recording equipment which was located in his office. His duties in this respect encompassed liaising with ADT, an external agency contracted by FedEx to provide security services.
His Honour Judge Nield found, in his reasons for sentence, that the main participants in the conspiracy were Andres and Kardoulias, and that Andres recruited Mas Rivadavia and El Akkaoui to be his lieutenants. He also found that all important decisions were made by Kardoulias, either alone or with Andres, and that Andres gave directions to Mas Rivadavia and El Akkaoui, as to what was happening and as to whatever they were to do so. His role was found to be higher than that of these two offenders and closer to that of Kardoulias, although he was unable to say that it was equal. The relative roles of Andres and Kardoulias will receive further consideration in this Court’s judgment in Kardoulias. That matter is of no present relevance.
His Honour found that Andres had abused his position in FedEx and breached his employer’s trust in using his knowledge of the FedEx system to aid the conspiracy, and to ensure that the cameras in the FedEx office at Alexandria had not been operating when Aksu collected the package containing the heroin. He did not, however, regard this as an aggravating circumstance, by reason of the observations of Hulme J in R v Stanbouli [2003] NSWCCA 355 at paras 33 to 35.
Mas Rivadavia’s Role
Mas Rivadavia was also an employee of FedEx, having commenced employment there on 1 December 1997 as a Customs clerk. He held several other subsequent positions, before being appointed Associate Classifier on 25 February 2002. In that position he was under the direct supervision of Andres, and was responsible for processing FedEx computer entries to Customs, and for liaising with customers to ensure the prompt clearance of incoming shipments.
On the Crown case, his role in the conspiracy included the responsibility for passing messages from Kardoulias to Andres and advising El Akkaoui concerning the progress of the packages through the FedEx system.
He gave evidence in the course of which he said that he had become involved in the offence at the request of Andres. He acknowledged that he had been in daily contact with Andres during the entire period of the conspiracy, that he had accepted calls from Kardoulias and had passed on messages between Andres and Kardoulias and others, and that he had met with Kardoulias and acted in the place of the latter during a period while Andres was overseas. He also accepted that he had passed on these messages with the knowledge that Andres and Kardoulias were involved in an importation of narcotics, and had facilitated the venture by using code when speaking of it.
In relation to the dummy run, his involvement commenced with obtaining the airway bill number from Andres, and accessing the FedEx Computer system to determine the date of arrival of the package. He then made contact with El Akkaoui and made arrangements with him for the pickup.
To facilitate the collection of that package he supplied information that was available on the FedEx system. Later when El Akkaoui phoned to report its collection he gave directions as to what was to be done with it. He also reported back to Andres on its safe arrival.
In relation to the package containing the heroin, his activity commenced on 2 April 2002 when he spoke with Andres and provided him with the details of the relevant airway bill. This information he provided before the package had been lodged for consignment in Hong Kong.
On 4 April, he phoned El Akkaoui and indicated that he would SMS him with instructions as to what he was to do. Three such messages were sent, each for the purpose of arranging a meeting at which El Akkaoui was given further information regarding the collection of the package.
When El Akkaoui made contact with FedEx and experienced some difficulties in obtaining a clearance he phoned Mas Rivadavia, who advised him, on the basis of the information that he accessed on the FedEx computer, that it was ready for collection. He also made further inquiries of Andres about the readiness of the package for collection and as to whether any taxes were payable. He passed on the results of his inquiries to El Akkaoui, sent an SMS message to him advising, “come and get it”, and had a meeting with him.
After El Akkaoui collected the package he phoned him to check on its safe receipt, and then spoke to Andres confirming that everything had been all right. El Akkaoui went to his house later that night to confirm that he package had been dropped off. He then sent an SMS message to Andres to confirm that fact.
El Akkaoui’s Role
El Akkaoui gave evidence to the effect that he had been initially approached by Andres, who informed him that he was going to be involved in bringing some drugs into the country, and asked if he was interested in being involved. He said that he accepted the invitation because he thought that he might make some money out of it. His involvement, he conceded, had occurred as early as 21 August 2001.
He was observed meeting with Andres, Kardoulias, and Mas Rivadavia in early August 2001, following which there were intercepted conversations with Andres to show that he had been accepted into the conspiracy. He was similarly observed attending later meetings with Andres.
Thereafter he accepted that he had acted as a go between, in so far as he received messages in code, from time to time, which he passed on to Andres. He had been provided with a specific telephone by Andres for the purposes of contacting Kastellorizos.
He accepted that at the time of the arrival of the dummy run package, it had been his role to ensure that Aksu, whom he had recruited, attended to the collection of the package and to its subsequent disposal.
He acknowledged that his role in relation to the package containing the drugs had also been to ensure its collection. He said that Aksu had been recruited because he did not have sufficient time to attend to the collection phases for the two runs.
Before that he had other roles including meeting Kastellorizos, who was found to have been Kardoulias’ “errand boy or lackey”, to show him the house which had originally been intended as the place to which the package would be taken, and to test whether a key, which he had been given, fitted the door to those premises.
In relation to the package containing the heroin, he became responsible for inquiring as to its clearance, which he did by telephoning FedEx, giving the name “Rod McKenna”.
After meeting with Mas Rivadavia on the afternoon of 4 April, he then assumed the responsibility of driving Aksu to the FedEx world service centre at Alexandria, so that Aksu could collect the package. After Aksu collected the package he took the backpack containing the substitute blocks and delivered it to one Nitsas, who was separately placed on trial as the ultimate recipient, along with one Nicoforidis.
Aksu’s Role
Aksu had been a friend of El Akkaoui and was recruited by him to assist in the collection of the drugs when they arrived, as well as in the collection of the dummy run package. He conceded that for the purposes of discharging that role he had been in regular contact with El Akkaoui, with whom he communicated in code.
His Honour’s Findings in Relation to the Respective Roles of the Respondents
The reasons for sentence delivered in relation to the present Respondents record his Honour's assessment that Kardoulias “was a principal, if not the principal, in the conspiracy to import the heroin, the inference being clear that he gave the instructions about what was to be done, when it was to be done and how it was to be done, and that he was to pay the others”.
His Honour found that there was not any significant difference between El Akkaoui and Mas Rivadavia in their criminality observing:
“they were not principles (sic) in the conspiracy. They were recruited into it by Mr Andres. They were his lieutenants. Although they had not devised the plan they had a role to play in it and they were important in the execution of it”.
As such his Honour found that they were below Kardoulias in the conspiracy.
Aksu’s involvement, his Honour found, commenced after the heroin arrived in Sydney, and was a “small and limited involvement” confined to collecting and passing the package to El Akkaoui, at the behest of the latter. His Honour continued:
“It can be likened to the role of a courier in the hierarchy of a drug importing organisation. It was an involvement with knowledge that the package contained the prohibited drug and it was involvement for financial reward. He was regarded as ranking lower in terms of involvement than El Akkaoui.”
His Honour rejected Mas Rivadavia’s evidence that he was not to receive payment for what he did. He was however unable to determine what payments were to be made to him or to El Akkaoui. He found that Aksu was to receive $300 for taking delivery of the first package, and $1200 for the second package.
SUBJECTIVE CIRCUMSTANCES
The subjective circumstances found by his Honour were to the following effect.
Mas Rivadavia
He was born in Uruguay on 25 January 1980 and was a single man aged 21 years 6 months at the time of the offence. His parents died when he was young and from the age of 10 or 11 he was brought up in Australia by an aunt and uncle. He commenced a custom brokers course after leaving school, and was part way through the course at the time of his arrest.
After going into custody he became deeply depressed with associated psychotic features, and attempted to commit suicide. This necessitated treatment with anti depressant and anti psychotic medication. By the time he appeared for sentence his condition was in remission. Dr Neilssen however said that he carried a risk of a further episodes of depression and required long term psychiatric care.
He had no history of substance abuse and had an unblemished prior character, as was evidenced by the testimonials which were placed before the Court. His Honour accepted that he was to some extent contrite for the offence, as evidenced by the plea. His rehabilitation prospects were regarded as favourable.
While the plea was not an early plea, it was regarded as having some utilitarian value, justifying a 15% discount.
El Akkaoui
He was a single man born on 7 July 1979 in the Lebanon, and was aged 22 years 1 month when he became involved in the offence. His parents separated shortly after his birth, and he was raised by his father who later remarried. His parents and siblings from the blended family migrated to Australia during 1988.
After leaving school he obtained regular full time employment, firstly in his father’s restaurants and later with companies supplying photocopying equipment. He had no record of substance abuse, and an unblemished prior character. He was found to some extent to be contrite, and to have favourable prospects of rehabilitation. Similarly to the case of Mas Rivadavia he was given a 15% discount for the utilitarian value of the plea.
Aksu
He was born in Turkey on 16 July 1977 and was aged 24 years 6 months when he committed the offence. His father migrated to Australia in 1983, and was joined by the remaining family five years later, by which time the father had formed a de facto relationship with another woman and had fathered three further children. This led to some difficulties between him and his original family.
After leaving school Aksu enrolled in the Bachelor of Civil Engineering Degree course at the University of Western Sydney. Upon completing the first year of that course he transferred to the Bachelor of Health Science course. He had completed the first year of that course before being taken into custody.
He had no history of substance abuse, but he did have a minor criminal record, having been dealt with for three offences, one involving the use of violence and two involving the use of a motor vehicle.
His Honour noted that, at the time of his second interview by Australian Federal Police, he had been completely open and frank about this involvement and had confirmed everything that had been suspected or known about him. There is no suggestion that he provided additional information or assistance, but this fact and fact of the plea were taken into account as evidencing contrition.
His prospects of rehabilitation were similarly regarded as favourable, and he was given a 15% discount for the utilitarian value of the plea.
His Honour considered that the element of personal deterrence was not as important for these three Respondents, than it was for Kardoulias, who had a criminal record of some substance, since it was his Honour’s assessment that they were unlikely to reoffend. General deterrence was however held to be important.
There was nothing remarkable about the personal circumstances of any of the Respondents warranting any degree of leniency. While they had favourable prospects of rehabilitation, their prior unblemished records did not provide much by way of assistance, since, as has long been recognised, those who become involved in the implementation phase of a heroin conspiracy or importation very commonly take advantage of that circumstance, in order to reduce the risk of detection.
The Crown Appeal
The Crown submission at the time of sentencing was that the decision of this Court in R v Wong and Leung [1999] 48 NSWLR 340 provided useful guidance as to an appropriate starting point, subject to two qualifications. They were firstly that the range in Wongand Leung of 6 to 9 years for mid range trafficable offences, had been expressed as applicable to a “courier or person low in the hierarchy” which Mas Rivadavia and El Akkaoui were not; and secondly that the guideline range had assumed that an adjustment had been made reducing the sentence, by reason of the absence in NSW of a remission system, in accordance with s 16G of the Crimes Act 1914, which provision was no longer applicable since it had been repealed, on and from 16 January 2003.
His Honour did not refer to this decision, in the reasons for sentence, or to the submissions of the Crown in relation to it. It is now submitted that his Honour fell into error by selecting a head sentence of 8 years for Mas Rivadavia and El Akkaoui as a starting point, and of five years for Aksu, without taking into account an adjustment which needed to be made to the sentencing range or pattern that was reflected in Wong and Leung, now that s 16G has been repealed.
It was additionally submitted that further error was demonstrated, in so far as having selected starting points for the head sentences, within the 6 to 9 year range for Mas Rivadavia and El Akkaoui, and slightly below that range for Aksu, his Honour had then discounted those head sentences by 15% for the guilty pleas. In so doing it was argued, he had overlooked the consideration that the range suggested in Wong and Leung reflected all of the relevant sentencing discretions that go to the exercise of the sentencing discretion, including the existence of a plea of guilty. Otherwise the Crown accepted his Honour’s assessment of the respective objective criminality of the three offenders, and it does not cavil with the findings as to their subjective circumstances.
It is unfortunate that his Honour did not expressly deal with the submissions, which were put to him in relation to Wong and Leung. The omission to do so leaves it unclear whether his Honour had that decision in mind when selecting, as starting points, head sentences that fell broadly within or close to the suggested range, or whether he approached the sentencing exercise in some other way.
In order to make the appeal good, it is necessary for the Crown to show that the sentences were so lenient as to demonstrate latent error, that is, to bring the appeal within the exceptional category of case that was referred to by Gaudron and Gummow JJ in Dinsdale v The Queen (2000) 202 CLR 321 at para 22; and by Spigelman CJ in R v Baker [2000] NSWCCA 85 at para 19; see also R v Tait and Bartley (1979) 24 ALR 473 at 475-476, and Everett v The Queen (1994) 181 CLR 295 at 299.
The constraints on Crown appeals, and the discretion which is inherent in their disposition, were summarised in my judgment in R v Wall [2002] NSWCCA 42 at para 70:
“(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.
(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.
(c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62.”Wong and Leung and the repeal of s 16G and s 19AG
Notwithstanding the criticisms which were expressed by the High Court in Wong v The Queen (2001) 207 CLR 584 concerning the extent of the emphasis that had been given in the guideline to the weight of the narcotic involved, and concerning the need for greater attention to be given to the role played by the offender, the range of sentences which were suggested by the Court of Criminal Appeal continued to be regarded as providing a useful guide before the repeal of ss 16G and s 19AG (which had made similar provisions in relation to non-parole periods: see for example R v Taru [2002] NSWCCA 391; R v Marchando [2003] NSWCCA 71 and R v Cerullo [2003] NSWCCA 201.
Guideline decisions have occupied an important role, in this State in establishing general sentencing patterns which have emerged for offences of the kind to which they relate, and the decision in Wong and Leung is no exception. However, such judgments have never been intended to operate as straight jackets. Their role is to provide indicators of sentences that have been found to be appropriate, in the general run of cases, to which they are directed. They are, accordingly, expected to be taken into account, by sentencing judges although without excluding the important discretion to take into consideration the differences, objectively and subjectively, which exist in the individual case before the court: R v Karacic [2001] NSWCCA 12 and R v Whyte [2002] NSWCCA 343.
They are sounding boards which provide an important final check once proper consideration is given to the objective and subjective circumstances, and to the need to ensure that the sentence meets the various requirements of punishment, retribution and deterrence. As such they also provide a useful reference point for this Court when it is asked to review a sentence for manifest leniency or inadequacy.
Attention has recently been given to the consequences of the repeal of s16G of the Crimes Act in relation to the pattern of sentencing which had been developed during its currency, both before and after the decision in Wong and Leung.
As was observed by this Court in R v El Kaharni (1990) 51 A Crim R 123 at 136-137, that section required the court to adjust the sentence so as to take into account the absence of any remission or reduction. It was recognised throughout Australia, at the time of its enactment, that the reduction of custodial sentences for remissions was about one-third of the sentence. This was regarded “as an appropriate starting point” for an application of the section, although without specifying such a ratio in any fixed or arbitrary way.
In subsequent decisions it became the practice to make an adjustment in the order of that referred to in El Kaharni as “an appropriate starting point”. It was also recognised that, in an appropriate case, for example one involving particularly serious criminality, the discount might be moderated: R v Chan (2002) 128 A Crim R 119.
While in each of the three cases before the Court, the offence had been committed before the date of the repeal of s 16G, the pleas were not entered until after that date, so that the decisions in R v Speer [2004] NSWCCA 118 and R v Schofield [2003] NSWCCA 3, as well as that in Radenkovic v The Queen (1990) 170 CLR 623 were distinguishable. They were decisions where, in the exercise of the Court’s general sentencing discretion, it was held that, as a matter of fairness, sentences should be imposed that were no more harsh than those that would have been passed had the section still been in force.
It is implicit in these decisions, and it was accepted in R v Studenikin [2004] NSWCCA 164 and in R v Kevenaar [2004] NSWCCA 210, that the repeal of s 16G, at least in cases where there was a plea or conviction recorded after 16 January 2003, will normally lead to the imposition of a heavier sentence than that discernible in the pre-repeal pattern of sentencing.
Howie J, with whose reasons Grove J and Newman AJ agreed, observed in Studenikin said:
“50 I have no difficulty in accepting an argument that the repeal of s 16G should not result in a mathematical formula being applied to the existing range of sentences in order to derive a particular sentence or range of sentences that are appropriate to be imposed after the repeal. To do so would simply be to make the same error that was identified by this Court in El Kaharni in respect of taking into account the absence of remissions under s 16G. But if a sentencing court is minded to look at the range of sentences that were imposed when s 16G applied, then it has to bear in mind that the range of sentences referred to in decided cases and in the available statistical information, had factored into it a discount that is no longer applicable.”
An argument was advanced in Studenikin that the repeal of the section should not have any significant effect upon the established range of sentences, since there was no apparent intention, expressed in the amending legislation (s 4 Crimes Legislation Amendment (People Smuggling, Firearms and Trafficking and Other Measures) Act 2002), that sentences for federal offences should increase.
His Honour identified the error in this argument in the following passages of his judgment, which in my respectful opinion, are clearly correct:
“62 … it is wrong, in my view, to approach this matter on the basis that it involves a question of whether the courts in this State should increase sentences as a result of the repeal of s 16G. The issue is rather whether the courts in this State have the power to continue to apply the discount authorised by s 16G after the repeal of that provision. If this issue is stated in this way, the answer is obvious. In the absence of a statutory warrant to do so, a court has no power to reduce a sentence that has been determined by a proper application of the sentencing principles laid down by the statute or the common law to the facts and circumstances of the particular case. It seems to me, with respect, to be a matter of common sense and simple logic, that, if the courts of this State have been reducing the sentences imposed upon Federal offenders by reason only of the operation of a specific statutory provision, the courts can no longer reduce sentences in that way once the statutory authority to do so has been withdrawn.
…
66 …it is clear that the Government was concerned about two consequences it perceived as arising from the continued operation of s 16G and that advocated for its repeal: it led to a reduction in the effectiveness of the maximum sentence prescribed by the statute, and it created an unacceptable disparity between the sentences to be served by State offenders and Federal offenders in the same jurisdiction. It is clear, in my view, that the Government had reached the conclusion that it was no longer appropriate that sentences of imprisonment for Federal offenders should be discounted in the way that s 16G both authorised and required. It was not only foreseen that the repeal of the provision would have the effect of increasing the length of sentences imposed upon Federal offenders in those jurisdiction where it had operated, but that was the desired consequence.”
After repeating (at para 70) that a court cannot reduce a sentence for a purpose that is unauthorised by statute, his Honour continued in a passage which is critical for this appeal, and with which I express my full agreement:
“71 Insofar as the applicant contends that there is no warrant to increase the current range simply by applying some mathematical formula, I agree with that proposition. I also accept that the proper approach to sentencing a Federal offender is to determine the appropriate sentence without taking into account that s 16G once existed and has now been repealed. But I cannot agree with the submission that, before imposing a sentence, the court should have regard to the range of sentences that was established when s 16G applied and adjust a term of imprisonment, determined without consideration of that range, to conform with it. To do so would be to thwart the obvious intention of Parliament and, in effect, to preserve the operation of s 16G. If regard is to be had to the range of sentences established under the operation of s16G for any legitimate purpose, the sentencer must take into account that the level of the range of sentences is due to the operation of a provision, no longer existing, that reduced the otherwise appropriate sentences by approximately a third. To use that range for the purpose of determining whether a particular sentence is an appropriate one, without taking that fact into account, would be to err in the exercise of the sentencing discretion.”
Earlier in his reasons Howie J had made the following pertinent observations in relation to the sentencing discretion:
“51 A sentencing discretion is not properly exercised by simply determining where in a range of sentences the particular matter before the court falls, and that is so whether that range has been established by a guideline judgment, by a pattern of sentences reflected in statistics maintained by the Judicial Commission, or by a consideration of the sentences imposed in other identified cases. While an established range of sentences for a particular class of offence and offender is important because of the need for consistency in sentencing, a consideration of the range will normally be the last point of reference rather than the first.
52 The court should determine the sentence for an offender by applying the appropriate statutory and common law principles, including due regard to the maximum sentence prescribed for the offence, and then consider whether the sentence is consistent with the established range, or whether it departs significantly from the range either towards severity or leniency. If the sentence does depart significantly from the range and there is no good reason on the facts of the particular matter or the application of principle to explain and justify the departure, the sentencing court should reconsider the chosen sentence in the light of the established range. By adopting this process the court both exercises a sentencing discretion, unfettered except by the appropriate facts and relevant sentencing principles, and attempts, so far as is appropriate, to conform with the approach adopted by other courts or as laid down in a guideline and, thereby, to achieve a measure of consistency in sentencing.”
The consequences of the repeal of s 16G also arose for consideration in R v Kevenaar [2004] NSWCCA 210, a case in which, after citing Studenikin, Hulme J said, with the concurrence of Simpson and Howie JJ:
“46 … the pattern of sentences imposed after the repeal of s16G can be expected to accord with the pattern in earlier cases of the periods determined by the application of normal sentencing principles and the (other) relevant provisions of the Crimes Act prior to the application of the s16G discount rather than in the pattern of the length of the sentences ultimately imposed in the earlier cases. Those pre-discount periods are commonly to be found expressly stated in those cases.
47 As Howie J made clear, the discount figure of one third was not a fixed proportion. However, it was the reduction almost invariably applied. If demonstration of that proposition is required, an examination of many of the cases reviewed by me in R v Spiteri [1999] NSWCCA 3 and R v Schofield [2003] NSWCCA 3 will provide it. Simple mathematics demonstrates that once such a discount is removed, the pattern of sentences can be expected to be of sentences about 50% longer than when the discount was in operation.
48 Would-be offenders and sentencing judges should be under no misapprehension. The effect of the repeal of the section is that the length of sentences of imprisonment (and non-parole periods) for those offences to which s16G previously applied should, as a necessary and logical consequence of the way the courts implemented s16G, increase by approximately 50%.
49 That proposition of course depends on an assumption that the pattern of sentencing operating prior to the repeal of s16G was not excessive. After a thorough investigation of the cases in this area on a number of occasions, including in R v Spiteri, R v Schofield and R v Bourel (unreported, CCA, 11 December 1998) I am satisfied that it was not. There certainly has been no appellate court indication that it was.
50 There is one further point which may be made. Even in the absence of the Explanatory Memorandum which accompanied the Bill which provided for the repeal of s16G, Parliament can be assumed to have known of the sentencing practice which prevailed under it. It may fairly be inferred therefore that Parliament contemplated when it effected the repeal without any ameliorating measures, that sentences thereafter would reflect the periods expressed by the courts as appropriate but for the application of s16G.”
I do not understand his Honour, in this passage, to have suggested that the range which was proposed in Wong v Leung, or that the prior sentencing pattern should now automatically be taken to require adjustment so as to result in an increase of 50%. Such an approach would attribute too great a mathematical approach to the intuitive process of sentencing and to the line of authority, which recognises that there are cases that properly fall outside guideline ranges.
The question has most recently been considered by this Court in R v Dujeu [2004] NSWCCA 237 which also gave consideration to the consequences arising from the repeal of s 19AG of the Crimes Act.
Smart AJ noted the caution which had been sounded by this Court in R v Maclay (1990) 19 NSWLR 112 concerning the effect of the introduction of the Sentencing Act 1989:
“The primary task of sentencing judges is to apply the new sentencing system according to the terms of the statute paying due deference to established general principles of sentencing… In carrying out the task of fixing a minimum term in such a case as the present, the sentencing judge should address the prescribed maximum penalty fixed by statute, and the gravity of the offence, paying regard to the objective features of the case and subjective considerations relevant to the particular offender.
It is, of course, understandable that a judge may wish to have regard to sentencing patterns, including his or her own sentencing patterns, established under previous legislation; Regina v Paul James Oliver (CCA 20 March 1980, unreported), quoted in Regina v Visconti [1982] 2 NSWLR 104 at 107; Griffiths v The Queen [1977] 137 CLR 293 at 326-327; Regina v Pawa [1978] 2 NZLR 190 at 191. Some caution will need to be exercised in translating such sentencing patterns into actual decisions under the new legislation. Statistical information is occasionally advanced in support of the contention that some judges may have responded subconsciously to the problem of the 'fictional element' introduced in the 1983 legislation and identified in O'Brien by increasing non-parole periods in a way that to some extent "took account" of the remissions system, but if that were true it would only increase the need for caution to which we have referred. The question as to how prison terms resulting from sentences imposed under the new Act will compare with those resulting from earlier sentences is one the answer to which will emerge in due time. Preconceptions as to how they should compare cannot be allowed to dominate the appreciation of the new statute.”
The sounding of that note of caution, Smart AJ observed was “timely”.
His Honour continued:
“42. When s 16G and s 19AG were in force, judges in selecting starting points for calculating sentences were not unaware of the large reduction so often wrought by the application of s 16G. Its effect tended to have a subtle and perhaps unconscious influence. Inadequate sentences were avoided.
43. I agree with Howie J [in Studenikin] that there is no warrant to increase the current range of sentences for Federal offences simply by applying some mathematical formula and that the proper approach to sentencing for a Federal offence is to determine the correct sentence without taking into account that s 16G existed and has now been repealed (R v Studenikin [2004] NSWCCA 164 at par [71]). Insofar as regard is had to sentencing patterns which existed prior to s 16G caution must be employed. It would be crude and unfair to increase previous levels of sentences by 50 per cent to take into account the repeal of ss 16G and 19AG.
44. As was pointed out in Maclay (and by analogy) the correct approach will usually involve the sentencing judge addressing the prescribed maximum penalty fixed by statute and the gravity of the offence, paying regard to the objective features of the case and subjective considerations relevant to the particular offender and, of course, following the terms of the Crimes Act 1914 (Cth).”
So far as there is any difference between the view of Hulme J in Kevenaar on the one hand, and of Smart AJ in Dujeu and of Howie J in Sudenikin, on the other hand, then I prefer the views expressed in Dujeu and Sudenikin.
To the extent that regard is had to Wong and Leung, in the indicative way for which guideline sentences are intended, or to the extent that reference is made to pre s 16G and 19AG sentencing patterns, or to those which will now emerge following the repeal of those sections, it is important for Judges to bear in mind:
(a)That Wong and Leung was decided in a context where s 16G required an adjustment to be made, although that adjustment was not one that was mathematically and unequivocally linked to a discount of 30%, since there remained an area for sentencing discretion; and
(b)That it is no longer permissible to make an allowance for the s 16G
factor;
It is desirable for the judges, when sentencing, to make it clear that these circumstances have been taken into account, if reference is made to earlier sentencing patterns, or to Wong and Leung.
Sentencing must remain an exercise for intuitive synthesis, in which any relevant guideline judgment and sentencing patterns are recognised as important parts of the material available, to be considered alongside any other relevant sentencing principles, the objective and subjective considerations of the instant case, and most significantly, the maximum sentence prescribed for the offence, since it is that which indicates the legislative intentions as to its seriousness.
By reference to the pre existing sentencing pattern, and the range suggested in Wong and Leung for cases which were subject to the s 16G discount, it does appear to me that the sentences were lenient. Even allowing for the favourable subjective circumstances of these three offenders, insufficient weight seems to have been given to the punitive, retributive, and deterrent elements that should have been reflected, having regard to the objective criminality of these offenders. This was a well planned operation, that had been assessed as being capable of exploiting potential loopholes in the FedEx system. The case was one calling, in particular, for a very considerable deterrent element for the well recognised reasons analysed in the decisions such as R v Wong and Ng (1988) 39 A Crim R 1; and R v Saxon (1996) 86 A Crim R 353 as well as for a significant degree of punishment.
Allowance for a plea of guilty
The second aspect of the Crown appeal turned upon the circumstance that starting points for the sentences were selected which fell within or close to the guideline range, and then discounted by 15% for the guilty pleas.
In R v Karacic [2001] NSWCCA 12 Spigelman CJ observed (with whom Grove J and Whealy J agreed):
“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.”
It does not follow from this passage that any point, within the suggested range, marks a divide for those cases where there had been a plea. Nor does it follow that it would be inappropriate to allow a discount below the range for an appropriate case where the objective criminality was minimal, or where the subjective circumstances were favourable. So far as the Crown submission might suggest the contrary, it represents somewhat of an overstatement.
However, the fact that the range was intended to encompass cases where there had been a plea is a further factor to be taken into account in determining the adequacy of the sentence.
The role of the Respondents
As I have observed, the guideline of 6 to 9 years within which his Honour set a starting point was intended for couriers and persons low in the hierarchy of the criminal venture, who had been involved in a mid range trafficable offence.
That guideline took into account both the quantity of the drugs involved and the role of the offender. Subsequent authority has required courts to give greater attention to the nature and extent of the role played by the offender. The quantity of the drug involved, however, remains a relevant consideration.
This was confirmed in Regina v Cerrulo where Hulme J (with whom Spigelman CJ and Buddin J agreed), observed (at para 79) that the decision of the High Court in Wong had not resulted in the weight of the narcotic becoming an irrelevant consideration. There was no suggestion in that judgment to that effect. Indeed Gaudron, Gummow and Hayne JJ observed “in general … the larger the importation… the heavier the punishment that would ordinarily be exacted.”
Any other view would be lacking in common sense, since inevitably the nature and size of the importation to which offenders lend themselves has a relevance in weighing their objective criminality. So it is, in this case. The fact that the importation fell into the mid range for a trafficable quantity, having a potential wholesale value within a range of $308,000 to $520,000 was an appropriate matter to be taken into account, when determining where the sentence should fall against the statutory maximum.
The other circumstance of great significance, as the High Court pointed out, was the role occupied by the offender. In many cases, for the reasons outlined in Olbrich v The Queen (1999) 199 CLR 270 (per Gleeson CJ, Gaudron, Hayne and Callinan JJ) at para 14, it is impossible to determine precisely what that role is, and there is often limited value in striving to place the offender into a category which is expressed in the terms of courier, middleman or principal. However, as their Honours also pointed out:
“19. Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act 1901 . One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between "couriers" and "principals" may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a "courier" or a "principal" must not obscure the assessment of what the offender did.”
In the present case there was a wealth of evidence, to be derived from the electronic and physical surveillance, as well as evidence from the Respondents themselves, to show the nature and extent of their respective roles. Notwithstanding a somewhat faint attempt by counsel for El Akkaoui to argue that his role had been barely greater than that of Aksu, the sentencing judge’s findings in relation to the respective roles of all three offenders were, in my view, unassailable.
The material before his Honour clearly showed that El Akkaoui had played a considerable part in the venture, and had liaised, on many occasions, with those who occupied higher positions in the hierarchy of this conspiracy or with their assistants. Aksu acted at his direction alone, and although, at least in the mind of the offenders, he became the person who was potentially most exposed to arrest, by reason of his attendance at FedEx’s office to collect the heroin, his role remained that of a courier who picked up and handed over the consignment to El Akkaoui. El Akkaoui then took the drugs to Nitsas, in circumstances where he ensured that Aksu was not present, and able to learn the identity of the ultimate consignee.
The Crown does not cavil with his Honour’s findings, and so far as any submission was put by counsel for El Akkaoui in opposition to the Crown appeal, that would have involved any alteration of those findings, it should be rejected. Mas Rivadavia and El Akkaoui were clearly the lieutenants of the principals who headed the conspiracy, and they carried out significant roles beyond those customarily performed by couriers or underlings. They occupied positions beyond that to which the Wong and Leung guideline was directed.
Aksu was properly regarded as having performed a limited role, albeit an important role, in bringing the importation to fruition.
In circumstances where the subjective circumstances of the Respondent’s were unremarkable, and where there was a substantial importation involved, I have reached the conclusion that the sentences in the case of Mas Rivadavia and El Akkaoui were manifestly lenient. While patent error was not shown, the sentences imposed were outside the proper range for offences of the objective criminality that was here involved.
I am accordingly of the view that the Crown appeals should be allowed in their cases. Having regard to the time that has passed, which has seen the Respondents complete more than half of their non-parole periods, and also having regard to the discretion that applies to Crown appeals, the sentences which should be imposed should be significantly less than those which should have been passed at first instance.
In each of these cases I would maintain the ratio between the non-parole period and the head sentence set by his Honour of 63%, since there was no submission by the Crown to the effect that it was inappropriate.
In the case of Aksu I have also reached the view that the sentence imposed was unduly lenient, however, a separate discretionary consideration arises.
His matter proceeded by way of a paper committal on 13 January 2003, and he was originally scheduled to appear for trial with the various other offenders after their committal proceedings were completed. About a month before the date fixed for trial, his charge was excised from the indictment that was to be presented against the co-accused and his trial was listed to follow their trial. As a result there was a delay of 1 year and 6 months between the time of his arrest and the entry of the plea. By reason of the need to complete the trial of another offender (Nitsas), a further 4 months elapsed before he was sentenced, during which time he was detained in maximum security. On 18 December 2003, he was transferred to a minimum security centre, but once the Crown appeal was filed he was reclassified and returned to maximum security. He is currently due for release on 3 October next.
Taking these considerations into account, I am of the view that in the exercise of the Court’s discretion, the Crown appeal should be dismissed in his case. That decision should not, however, be regarded as providing any guidance for the future as to an appropriate sentencing pattern for couriers who are involved in heroin importations.
The orders I propose are as follows:
Mas Rivadavia
1. Crown appeal allowed;
2.Sentence below quashed, and in lieu thereof the Respondent to be sentenced to imprisonment for 8 years and 3 months to date from 8 April 2002 and to expire on 7 July 2010.
3.Specify a non-parole period of 5 years and 3 months to date from 8 April 2002 and to expire on 7 July 2007.
El Akkaoui
1. Crown appeal allowed;
2.Sentence below quashed, and in lieu thereof the Respondent to be sentenced to imprisonment for 8 years and 3 months to date from 5 April 2002 and to expire on 4 July 2010.
3.Specify a non-parole period of 5 years and 3 months to date from 5 April 2002 and to expire on 4 July 2007.
Aksu
1. Crown appeal dismissed.
ADAMS J: I agree with Wood CJ at CL.
SMART AJ: I agree with Wood CJ at CL.
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LAST UPDATED: 18/08/2004
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