R v Shatku - [2018] SASCFC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SHATKU
[2018] SASCFC 77
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Bampton)
9 August 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CONTRITION
The appellant and his co-offender were found guilty by jury verdict of one count of importing a material quantity of a border controlled precursor, namely pseudoephedrine – the appellant was sentenced to three years and six months’ imprisonment with a non-parole period of two years – the appellant appeals on the ground that the sentencing Judge erred in tempering the significance of his rehabilitation by having regard to the fact that he showed no contrition for the offending, pleading not guilty and going to trial.
HELD: Appeal dismissed – the Judge did not err in finding that the appellant’s lack of acceptance of the criminal wrongdoing and lack of contrition tempered the appellant’s claim to have rehabilitated himself.
Crimes Act 1914 (Cth) s 16A(2)(f); Criminal Code Act 1995 (Cth) s 307.12(1), referred to.
The Queen v Shannon (1979) 21 SASR 442; Vartzokas v Zanker (1989) 51 SASR 277, considered.

R v SHATKU
[2018] SASCFC 77
Court of Criminal Appeal: Kelly, Blue and Bampton JJ

KELLY J: I agree that the appeal should be dismissed for the reasons given by Bampton J.
BLUE J: I agree with Bampton J that this appeal should be dismissed for the reasons given by her Honour. I add the following observations.
It is common ground on appeal that, if the Judge had increased the sentence that would otherwise have been imposed because the appellant pleaded not guilty and went to trial, thereby treating the plea of not guilty as an aggravating factor, that would have constituted error. However, the appellant does not contend that the Judge so acted.
The appellant contends that the Judge treated his plea of not guilty as tempering a mitigating factor, namely rehabilitation. The appellant accepts that a sentencing judge is entitled to take into account contrition or a lack of contrition in assessing rehabilitation and that no error would have been made if the Judge had not included the words “pleading not guilty and going to trial”. He contends that the Judge treated his plea of not guilty not merely as a manifestation of lack of contrition but as an independent or additional reason tempering the mitigatory effect of his rehabilitation. He contends that this offends the principle that a defendant is not to be penalised by reason of pleading not guilty.
The relevant passage from the Judge’s sentencing remarks is as follows:
I have read the references handed up by your counsel. Clearly, you are well-regarded by the authors of those references but…

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 Shatku

Details

AGLC: R v Shatku [2018] SASCFC 77
Case: [2018] SASCFC 77
Decision Date: 9 August 2018

CaseChat Overview and Summary

The appellant, Mr Shatku, was found guilty by jury verdict of importing a material quantity of a border-controlled precursor, namely pseudoephedrine, and was sentenced to three years and six months' imprisonment with a non-parole period of two years. Mr Shatku appealed this sentence, arguing that the sentencing judge erred by diminishing the significance of his rehabilitation by considering his lack of contrition, evidenced by his plea of not guilty and decision to go to trial. The appeal was heard by Kelly, Blue, and Bampton JJ.

The central legal issue before the Full Court was whether the sentencing judge had erred in law by taking into account the appellant's lack of contrition, demonstrated by his refusal to plead guilty and his decision to contest the charges at trial, when assessing the weight to be given to his claimed rehabilitation. The appellant contended that this consideration improperly tempered the significance of his subsequent offence-free period.

The Court dismissed the appeal, holding that the sentencing judge did not err. The court reasoned that a lack of contrition, including a refusal to accept responsibility by pleading not guilty and proceeding to trial, is a relevant factor for a sentencing judge to consider when assessing the leniency that might be afforded to an offender, particularly in relation to claims of rehabilitation. The judge's remarks were interpreted as explaining why the appellant's failure to acknowledge guilt tempered the leniency that could be attributed to his rehabilitation, rather than increasing the sentence due to his decision to go to trial. The court noted that the judge had properly considered various mitigating factors, including the appellant's background, employment history, prior convictions, the time elapsed since the offence, and his compliance with bail conditions. The court concluded that the sentencing judge had correctly balanced the appellant's prospects of rehabilitation against his lack of contrition.

Orders

Orders of the court

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Background

Background to the litigation

Mr Shatku appeals against this sentence with permission on the ground that the sentencing Judge erred in tempering the significance of Mr Shatku remaining offence free since the offending because he had shown no contrition for his offending, had not pleaded guilty and had gone to trial.Background Mr Shatku was born in Albania. Whilst playing basketball professionally he visited Australia. He eventually migrated to Australia on his own in 1998. His only surviving relatives, his brother and mother, migrated from Albania to Canada. Mr Shatku met Mr Kasumovic through the Adelaide Albanian community. In early April 2013, Mr Shatku travelled from Adelaide to Toronto. On 14 April 2013, two tubs of creatine formula were purchased in Toronto. Between 14 and 16 April 2013, the creatine powder inside the tubs was replaced with a powder that contained 367.8 grams of pure pseudoephedrine. On 16 April 2013, the tubs containing the pseudoephedrine were lodged as a consignment at a Toronto post office and posted to “Matthew Loftys” at the Mansfield Park post office in South Australia. A tracking number was provided to the person who lodged the consignment at the Toronto post office. Between 16 and 18 April 2013, the tracking number was communicated to Mr Kasumovic, who in turn communicated it to a Mr Talab. On 18 April 2013, Mr Talab and Mr Kasumovic spoke by phone as they could not track the consignment online due to a missing digit from the tracking number. Accordingly, Mr Kasumovic contacted Mr Shatku in Canada and arranged for Mr Shatku to speak with Mr Talab via Facebook. Mr Shatku and Mr Talab subsequently spoke online and Mr Shatku provided the correct tracking number to Mr Talab. On 21 April 2013, the consignment arrived in Australia and was seized by customs authorities. The pseudoephedrine was removed from the tubs and repackaged with an inert substance (“the substituted consignment”). On 24 April 2013, the substituted consignment was placed back into the mail stream for delivery. Mr Kasumovic and Mr Talab subsequently took delivery of the substituted consignment at the Mansfield Park post office. Mr Talab conveyed the substituted consignment to Mr Kasumovic’s premises at West Croydon. A short time later, Mr Talab returned the box from the consignment to his vehicle and was followed by police to Mr Talab’s residence at Glenelg. Mr Kasumovic arrived at the residence and removed a plastic bag containing two cylindrical objects from his vehicle and entered the house. During a search of Mr Talab’s residence conducted on the same day, police found methylamphetamine, safrole and dimethyl sulfone, along with the box from the substituted consignment. The two tubs from the consignment were not recovered. On 26 April 2013, Mr Kasumovic was arrested and police located at his West Croydon premises two sets of digital scales. Methylamphetamine was detected on the surfaces of both sets of scales. Police also located plastic tubs and lids, dimethyl sulfone and a cash counting machine.The sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Contrition is a matter that a sentencing Judge is entitled to take into account in determining the leniency that might be afforded in arriving at a sentence. The Judge took into account matters that may mitigate a sentence, namely Mr Shatku’s background, his education, his working history, his prior convictions, the time that had lapsed since he had offended, and his good compliance with bail.Conclusion Mr Shatku played an essential role in serious drug importation and, following the jury verdict, has not expressed contrition for, insight into, or renunciation of his wrongdoing.[3][3] Vartzokas v Zanker (1989) 51 SASR 277 at 279 (King CJ). It is apparent that the Judge considered that Mr Shatku’s lack of acceptance of the criminal offending and his lack of contrition meant that his prognosis for rehabilitation was guarded and that this affected the leniency that could be extended to him. In my view, no process error has been made out. The sentence, by reference to the Comparative Sentence Schedule provided to the Judge, is comparable to (and indeed lenient compared to) sentences imposed by other courts for similar Commonwealth offending. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The Director submits that Mr Shatku was not punished for going to trial; it just meant he could not expect to receive the leniency he may otherwise have been entitled to had he pleaded guilty or in some other way shown remorse. It is submitted that a lack of contrition or remorse is evidenced, amongst other things, by refusal to take responsibility and a manifestation of that is refusing to plead and going to trial. A lack of contrition, typically, will reduce the leniency that might be afforded to a defendant, rather than increasing the sentence that would otherwise be appropriate on account of a lack of contrition.Consideration I accept the Director’s argument that the reference to pleading not guilty and going to trial was made in order to explain why the Judge came to the conclusion that Mr Shatku had a lack of contrition. The Judge was explaining why Mr Shatku’s failure to acknowledge guilt and the harm the offending may have caused the community tempered the leniency that could be attributed to rehabilitation. This is reinforced by the Judge’s remarks that immediately follow the statement complained of regarding the lack of contrition tempering the claim to rehabilitation: “You have shown no recognition of the harm your offending might have caused the community”. As submitted by the Director, there is nothing in the remarks to indicate that the sentence was increased on account of Mr Shatku pleading not guilty and contesting the matter at trial. Further, when the words complained of are read in the context of the paragraph in which they appear, it is clear that the Judge was balancing Mr Shatku’s prospects of rehabilitation against his lack of contrition in an attempt to assess the leniency that could be extended to him on account of what was said to be good prospects of rehabilitation. As King CJ said in The Queen v Shannon,[2] “An offender’s remorse, contrition or repentance has always been regarded as a matter making for leniency”.[2] (1979) 21 SASR 442 at 443. The remarks complained of should also be seen in the context of the Judge’s remarks addressed to Mr Kasumovic, where he said:Like Mr Shatku, you have shown no contrition or remorse for your offending. This does not suggest that you have rehabilitated yourself since 2013. Again, there has been no recognition of the harm your offending might have caused had your attempt at importation succeeded.In my view, it is clear that the remarks complained of are confined to the issue of contrition or the lack thereof. Contrition is a matter that a sentencing Judge is entitled to take into account in determining the leniency that might be afforded in arriving at a sentence. The Judge took into account matters that may mitigate a sentence, namely Mr Shatku’s background, his education, his working history, his prior convictions, the time that had lapsed since he had offended, and his good compliance with bail.Conclusion Mr Shatku played an essential role in serious drug importation and, following the jury verdict, has not expressed contrition for, insight into, or renunciation of his wrongdoing.[3][3] Vartzokas v Zanker (1989) 51 SASR 277 at 279 (King CJ).