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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading R v Mas Rivadavia
Sign in free to access the full text
Details
AGLC
R v Mas Rivadavia [2004] NSWCCA 284
Case
[2004] NSWCCA 284
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentences imposed on Mas Rivadavia, El Akkaoui and Aksu in the Federal Court. The appellant sought to have the sentences quashed and substituted with more severe penalties. The respondents cross-appealed against their convictions. The nature of the dispute was whether the sentences imposed by the primary judge were too lenient given the seriousness of the offences and the role played by the respondents in the importation of heroin. The appeal was heard by the Full Court of the Federal Court of Australia. The legal issues the court was required to decide were whether the primary judge had erred in imposing sentences that were manifestly inadequate, and whether the respondents’ convictions should be quashed. The court considered the principles of sentencing in relation to drug offences and the role of each respondent in the importation of heroin. The court found that the sentences imposed by the primary judge were manifestly inadequate and quashed the sentences. The court considered the totality of the offending, the degree of the respondents' culpability, and the need for deterrence and denunciation in imposing new sentences. The court concluded that the primary judge had failed to give adequate weight to the seriousness of the offences and the respondents' roles in the importation of heroin. The court also found that the respondents' convictions should be upheld. The court imposed new sentences on the respondents, which were more severe than the sentences originally imposed by the primary judge. The court ordered that Mas Rivadavia be sentenced to imprisonment for 12 years, El Akkaoui for 11 years, and Aksu for 8 years, with each sentence to commence from the date of their original imprisonment.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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.