R v Shatku

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 now that you have two convictions involving commercial dealing with illegal drugs, these are of limited value. You have shown no contrition for this offending, pleading not guilty and going to trial. That tempers your claim to have rehabilitated yourself. You have shown no recognition of the harm your offending might have caused the community had it succeeded.
It is well-established that sentencing remarks are not to be construed in the same manner as a legislative or contractual provision or even reasons for judgment. However, even applying ordinary principles of construction, when considered in context it is clear that the only relevance of the Judge’s reference to the appellant having pleaded not guilty was as a manifestation of lack of contrition.
The Judge did not say “You have shown no contrition for this offending and you pleaded not guilty and went to trial”; the Judge said “You have shown no contrition for this offending, pleading not guilty and going to trial”. The latter phrase is subservient to the earlier clause in the sentence referring to lack of contrition. This is reinforced by the reference to the singular “that” in the following sentence.
The Judge did not say that the lack of contrition (or not guilty plea) tempered rehabilitation. Rather the Judge said that it tempered the appellant’s claim to have rehabilitated himself. The Judge was factoring in the assessed lack of contrition in assessing the extent to which the appellant had rehabilitated himself.
The sentence containing the impugned words “pleading not guilty and going to trial” forms part of the assessment of contrition and rehabilitation made in the paragraph as a whole. It is preceded by reference to the appellant’s other convictions involving drugs which was considered by the Judge to be relevant to rehabilitation and it is succeeded by reference to a lack of recognition of harm to the community which was considered by the Judge to be relevant to contrition and rehabilitation.
My understanding is that the appellant does not ultimately contend that, if the Judge merely had regard to his plea of not guilty as one manifestation of a lack of contrition, this comprised appealable error. In any event, as the appellant acknowledges, a sentencing judge is entitled to have regard to contrition or lack of contrition in assessing rehabilitation. A sentencing judge is entitled to have regard to a plea of not guilty as relevant to an assessment of contrition or lack of contrition. This does not offend against the principle that a defendant is not to be penalised by reason of pleading not guilty.
Given this conclusion, it is not necessary to consider whether, if the Judge had had regard to the appellant’s not guilty plea directly in assessing rehabilitation, this would have offended against the principle that a defendant is not to be penalised by reason of pleading not guilty.
BAMPTON J: Altin Shatku and his co-offender, Rasim Kasumovic, were found guilty by jury verdict of one count of importing a marketable quantity of a border controlled precursor, namely pseudoephedrine, contrary to s 307.12(1) of the Criminal Code Act 1995 (Cth). Mr Shatku was sentenced to three years and six months’ imprisonment and a non-parole period of two years was fixed. At the time of sentencing, the maximum penalty was 15 years’ imprisonment and/or a fine of $510,000.
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
The sentencing Judge rejected Mr Shatku’s submission that his only involvement was to communicate the consignment number to Mr Kasumovic and Mr Talab, and that he did so without expectation of financial gain. The Judge inferred on the evidence that Mr Shatku was much more deeply involved. His Honour found that the operation was one motivated by the expectation of financial gain. As Mr Shatku declined to give evidence, the Judge said that there was no evidence to rebut the inference that Mr Shatku was motivated by financial gain.
In sentencing, the Judge noted that neither Mr Shatku nor Mr Kasumovic were addicted to methylamphetamine, nor were they seeking to finance a habit or intending to share with friends. He said it was “a commercial operation pure and simple” and, as such, the need to deter such activity was very significant. The Judge said that evidence was given at the trial to the effect that the pseudoephedrine seized could be used to manufacture over $100,000, perhaps even as much as $140,000, worth of methylamphetamine on the market.
The Judge noted that Mr Shatku was 45 years old at the time of sentence and had obtained a diploma in drafting and design following his migration to Australia. He had been employed, almost continuously, since he obtained his drafting qualification.
Mr Shatku moved to Melbourne in 2014 to make a fresh start after he had been questioned by police but before he was charged with this offence. At the time of sentence, he was working for a concrete company in Victoria.
Mr Shatku had two convictions for drug offences committed before April 2013. In 2001, he was convicted and fined $450 for producing a controlled substance. In January 2017, he and Mr Kasumovic were sentenced by the District Court for trafficking in cannabis and each fined $2,000. That trafficking offence was committed only seven months or so prior to this Commonwealth offending.
The Judge took into account that, during the five-year period between committing the Commonwealth offence and being sentenced, Mr Shatku had not committed any further offences and his compliance with bail had been good. The Judge took into account references that demonstrated that Mr Shatku was well‑regarded, but said that as he now had two convictions involving commercial dealing with illegal drugs, the references were of limited value. The Judge went on to make the following comments:
I have read the references handed up by your counsel. Clearly, you are well-regarded by the authors of those references but now that you have two convictions involving commercial dealing with illegal drugs, these are of limited value. You have shown no contrition for this offending, pleading not guilty and going to trial. That tempers your claim to have rehabilitated yourself. You have shown no recognition of the harm your offending might have caused the community had it succeeded.
(Emphasis added)
The emphasised words are complained of by Mr Shatku on appeal.
The Judge proceeded to sentence Mr Shatku, stating that he had considered the great need for general deterrence and the important role that Mr Shatku played in the commission of the offence. He stated that it was clear that he was one of the principals in the importation enterprise and that the precursor imported was more than one hundred times the level designated as a marketable quantity. His Honour considered the level of financial gain Mr Shatku expected to receive. He considered the need for personal deterrence, taking into account that Mr Shatku had trafficked in cannabis only seven months earlier, his age, background and personal circumstances, together with the sentences imposed in other States and in this State to ensure, as far as possible, that there is consistency in sentencing.
His Honour determined that a sentence of imprisonment was the only appropriate sentence and that it should be a substantial sentence. Mr Shatku was sentenced to three years and six months’ imprisonment with a non-parole period of two years. His Honour said that, even if he had sentenced Mr Shatku to less than three years’ imprisonment, he would not have exercised a discretion to release him on a recognisance release order or on home detention, because the need for general deterrence for commercial drug activity is so great.
Arguments on appeal
Appellant’s submissions
Mr Shatku complains that the benefit of his rehabilitation — as demonstrated by the fact that he had not committed any further offending, had relocated to Victoria to make a fresh start, had been in constant work, had provided three references attesting to his honesty and trustworthiness, and had strictly complied with his bail (which included him obtaining permission to travel to Canada) — had been neutralised or tempered in the sentencing process by the three factors identified by the Judge in his remarks set out above, namely, an absence of contrition, pleading not guilty, and going to trial.
Mr Shatku submits that these remarks were delivered by the Judge five weeks after hearing sentencing submissions and that they indicate that his decision to plead not guilty and insist on a trial played some role in counterbalancing or tempering his lengthy period of good behaviour. He submits that the Judge appears to have regarded the plea of not guilty and insistence on trial as separate factors tempering his claimed rehabilitation. He submits that the remarks reveal that the absence of contrition has been referred to in order to reduce the otherwise powerful mitigatory circumstance of rehabilitation. He argues that the Judge’s perception of the absence of contrition precluded him from a reduction in his sentence which might have otherwise been forthcoming. Mr Shatku submits that, as such, there was an error in the sentencing process and that, in resentencing, a lesser penalty should be imposed in the exercise of the Court’s discretion.
Respondent’s submissions
The Director submits that when the paragraph containing the words “pleading not guilty and going to trial” is read as a whole, the words complained of are put in context. In context, the Judge was balancing Mr Shatku’s prospects of rehabilitation against his lack of contrition in order to assess the leniency that could be extended to him on account of what had been submitted were his good prospects of rehabilitation.
The Director submits that contrition has always been regarded as a factor in favour of leniency.[1] The Director points to s 16A(2)(f) of the Crimes Act 1914 (Cth) which required the Judge to consider the issue of contrition in sentencing Mr Shatku. It is contended that a guilty plea may, but does not always, provide evidence of contrition and in this case, where Mr Shatku had failed to acknowledge his guilt, the Judge was entitled to take the view that he was not contrite for his offending. The Director submits that an offender’s contrition or lack thereof are matters that a sentencing Judge could properly take into account in determining, amongst other things, a defendant’s prospects of rehabilitation.
[1] The Queen v Shannon (1979) 21 SASR 442 at 443 (King CJ).
It is submitted that the words “You have shown no contrition for this offending, pleading not guilty and going to trial” were intended to refer only to the fact that Mr Shatku had shown no contrition.
The Director also points to the Judge’s comments in relation to Mr Kasumovic, where he said “Like Mr Shatku, you have shown no contrition or remorse for your offending”. It is submitted that this remark only serves to support the fact that the impugned remarks were confined to the lack of contrition.
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).
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.

[2018] SASCFC 77

9 August 2018

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Criminal Law

Evidence

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Sentencing

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Appeal

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