R v Sukkar

[2005] NSWCCA 55

CITATION:	Regina v Louis Anthony SUKKAR [2005] NSWCCA 55
HEARING DATE(S):	14/02/2005
JUDGMENT DATE:	19 May 2005
JUDGMENT OF:	Bryson JA at 1; Barr J at 57; Hoeben J at 58
DECISION:	(1) Leave to appeal granted; (2) Appeal dismissed.

CATCHWORDS:	CRIMINAL LAW - sentencing - appeal by offender against sentence - convicted on plea of guilty - Customs Act s.233B(1)(d) knowingly concerned in importation of commercial quantity of MDMA (ecstacy) 34.4kg in 480,000 tablets - offence of possession of trafficable quantity 52.1 grams taken into account - 18 years, non-parole 12 years - no prior connections - consideration of - nature of participation of applicant and place in heirarchy compared to other participants - statement of reasons for fact finding where applicant gave evidence - discount for plea of guilty - discount for offer of assistance which prosecuting authorities did not accept because regarded as unreliable - parity - severity - sentence affirmed.
LEGISLATION CITED:	Customs Act 1901; s 233B(1)(ca); s235(2)(c) Drug Misuse and Trafficking Act 1985 (NSW); subs.25(2) Crimes Act 1914 (Cth); s.16A(1); s 16BA; s 16G
CASES CITED:	Pettitt v. Dunkley [1971] 1 NSWLR 376 R v. Olbrich (1999) 199 CLR 270 R v. Wai Thung Chu (NSWCCA, 16 October 1998, unreported) Soulemezis v. Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 R v. Lawson (NSWCCA, 12 December 1997, unreported) Gallagher v R (1991) 23 NSWLR 220
PARTIES:	Louis Anthony Sukkar - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2004/2457
COUNSEL:	A.J. Bellanto QC & K. Traill - Applicant B. Levet - Crown
SOLICITORS:	Uther Webster & Evans - Applicant Commonwealth Director of Public Prosecutions - Crown

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0888
LOWER COURT JUDICIAL OFFICER:	Andrew A/DCJ

2457/04

BRYSON JA
BARR J
HOEBEN J

THURSDAY 19 MAY 2005

Louis Anthony SUKKAR v THE QUEEN

Judgment

1 BRYSON JA: The applicant seeks leave to appeal against the sentence imposed on him on 11 March 2004 by his Honour Acting Judge Andrew in the District Court at Sydney. The applicant was convicted on his plea of guilty to a charge under s233B(1)(d) of the Customs Act 1901 (Cth) that between about 1 March 2001 and 5 December 2001 he was knowingly concerned in the importation of a commercial quantity of MDMA, an amphetamine compound referred to as ecstasy and chemically named 3,4-methylenedioxymethamphetamine. The maximum penalty prescribed for the offence, relating to a commercial quantity of MDMA is a fine not exceeding $750,000 or imprisonment for life or both; see s235(2)(c) of the Customs Act 1901. The quantity imported was 34.4 kilograms of pure MDMA compounded in about 480,000 tablets. The applicant was arrested on 5 December 2001 and has remained in custody since then. He was sentenced to eighteen years imprisonment with a non-parole period of twelve years, and the sentence was backdated to commence on 5 December 2001.

2 The Grounds of Appeal were these:

Ground 1
His Honour erred in finding that the role of the applicant was that of a co-principal in partner [sic] with his brother Joseph Sukkar.

Ground 2
His Honour failed to give an adequate discount for the utilitarian value of the plea and contrition.
Ground 3
His Honour failed to give an adequate discount for the offer of assistance by the applicant.
Ground 4
The sentence imposed was manifestly excessive.

3 In opening his oral submissions Mr A. J. Bellanto Q.C. for the applicant contended that the sentencing discretion miscarried in six respects:

1. A failure to evaluate the evidence of the applicant and to exercise a judgment on his credibility and reliability.

2. A failure to evaluate in any meaningful way submissions on behalf of the applicant.

It was said that these two failures resulted in the applicant’s role in the importation being unduly elevated, with the applicant having been given the appellation “principal” along with his elder brother Joseph Sukkar.

3. A failure adequately to discount the applicant’s sentence in respect of his plea of guilty.

4. A failure adequately to discount the applicant’s sentence in respect of his offer of assistance to prosecuting authorities.

It was said that these two failures were productive of an excessive sentence.

5. General manifest excessiveness of the sentence.

6. Excessiveness of the sentence on parity principles with co-accused.

4 Immediately after imposing the sentence under appeal the Sentencing Judge imposed on the applicant a further sentence of imprisonment for six years to date from 5 December 2001 and expire 4 December 2007, with a non-parole period of three years, for an offence under subs. 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). This sentence relates to an offence that between 23 November 2001 and 6 December 2001 the applicant offered for supply to Fred Nassif a large commercial quantity of MDMA. The application for leave to appeal does not relate to this sentence.

5 The Crown tendered a Statement of Facts which became Exhibit B. Some paragraphs in the Statement of Facts were not agreed, and were not put in evidence when the Statement was admitted as an Exhibit. However after argument and with minor modifications these paragraphs were admitted on terms which made them evidence of the facts, and it was left open to the applicant to dispute them by evidence. The paragraphs admitted on this limited basis were paragraph numbers 26, 27, 33, 37, 43 and 45; and several expressions in paragraph 43 as first tendered were modified. The Sentencing Judge set out the whole of the statement in his Remarks on Sentence, showing that he made findings accepting all the facts in the Statement including those which were disputed. The Statement is extremely detailed and it does not appear to me to be necessary to set it all out.

6 I will give a short summary of the facts in the following paragraphs. Hyeon Joon Choi (hereinafter Choi) formed a company called C J Trade Consultants Pty Limited (hereinafter the company) in 1999; the applicant, his brother Steven Sukkar and Choi were directors from 4 May 1999 until 28 January 2000. In 2001, Choi persuaded Simon Sunal Prasad (hereinafter Prasad) to assist him in an importation of MDMA tablets; Prasad engaged Morris Charles Shepherd (hereinafter Shepherd) to assist; and Choi proposed to pay Prasad and Shepherd $25,000 each for their assistance. Choi arranged for purchase and shipment of a pre-fabricated cool room from Belgium to Brisbane in the name of the company. Joseph Sukkar, also a brother of the applicant, travelled to Ukraine and arranged with persons in the Netherlands, who are not identified, for a quantity of MDMA tablets to be concealed within the cool room. The cool room has forty-eight modular plastic columns which were components of the cool room and approximately 480,000 MDMA tablets were concealed within tubes in the centres of the columns. The tablets weighed 123.6 kilograms and contained 34.4 kilograms of pure MDMA. The wholesale value in Australia has been estimated at $M7.2 to $M12 and retail at $M9.6 to $M33.6.

7 A shipping container containing the components of the cool room was consigned by sea from Antwerp to the company at Brisbane. Prasad and Shepherd took steps to obtain delivery of the importation, handle shipping documents, pay freight and charges, and arrange for payment of duties, clearance and delivery to Shepherd’s warehouse in Brisbane. Choi arranged for Prasad to inform Shepherd that a person referred to as Tom would assist Shepherd with unloading the shipping container on delivery at the warehouse, and that Tom would then take possession of the goods. (The person referred to as Tom is identified, but I do not give his name as he was acquitted at trial).

8 On 19 November 2001 at Petersham the applicant hired a Toyota van in a fictitious name for the purpose of collecting the MDMA tablets in Brisbane; on 20 November 2001 he exchanged the van for a larger truck and travelled to Brisbane. On the same day Customs officers in Brisbane examined the container, discovered the MDMA tablets, removed and replaced them mainly with substitute coloured tablets, but with about 13,000 of the genuine MDMA tablets mixed in. On 21 November 2001 Choi hired a car in Brisbane. The shipping container was delivered to Shepherd’s warehouse on 23 November 2001. Shortly afterwards Tom drove the truck which the applicant had hired to a place near the warehouse, met Shepherd and helped unload the container. The forty-eight columns and some other parts were loaded into the truck and Tom drove it away. The applicant and Choi observed these events from a distance in Choi’s hired car. The truck driven by Tom and the car driven by Choi, with the applicant as a passenger, travelled in convoy south, eventually to Sydney, and throughout the journey the applicant maintained intermittent telephone contact with Tom. Communications were made using a mobile phone, subscribed for in a fictitious name, which the applicant had provided to Tom. These communications were intercepted by police, and in the course of these communications the applicant demonstrated a precise knowledge of the contents of the shipping container and the manner in which the MDMA tablets had been concealed. The applicant spoke to Tom to confirm that Tom would open the correct crate, and also to confirm that it contained the correct number of columns, and the apparent absence of police interest.

9 The applicant was equipped with a forged driver’s licence which appeared to identify him by a name different to his own: he used this when stopped by police conducting random breath testing. The applicant exchanged vehicles with Tom near Kempsey and drove the truck from there to a house at Concord West (hereinafter the Concord house); he arrived there with the truck on 24 November 2001. This house was owned by the applicant’s brother Steven Sukkar and had been purchased several weeks earlier. The applicant’s brother Joseph Sukkar travelled from Vienna to Sydney and arrived on 23 November 2001. On 24 November 2001 the applicant and Joseph Sukkar were observed by police reversing the truck into the driveway of the house. Movements of the applicant, Steven Sukkar and Joseph Sukkar at the house were observed. The three brothers unloaded the columns from the truck and carried them into the garage, and then to a garden shed behind the garage. They opened one or more of the columns and discovered that most of the tablets were not MDMA. The applicant ate three of the substitute tablets to confirm that they did not contain narcotic substance. After discovery the applicant was observed meeting with Choi and then returning to the house; then movements of Steven Sukkar and Joseph Sukkar to and from the house were observed.

10 On 26 November 2001 the applicant and Joseph Sukkar returned the truck to the hiring company. Telephone intercepts on 26 November 2001 recorded the applicant speaking to persons about the missing MDMA tablets. In one conversation he said that he believed that the MDMA tablets had been stolen by someone in Belgium or Holland, and that he had lost $M7 worth of stock. In a telephone conversation with Choi, the applicant said that he wanted all the paperwork related to the movements of the container and the importation, which he described as “that work we were doing.” Further telephone conversations in which the applicant spoke to Choi were intercepted. Among other things the applicant said that he required documentary proof as to the time at which the container was delivered to Shepherd’s warehouse. He also expressed doubt and concern to Choi, and said that he and Joseph Sukkar were under a lot of pressure as a result of the loss, and that he had lost a fortune as $M10 worth of MDMA tablets had gone missing. Further telephone intercepts showed interest and concern of the applicant about assembling all paperwork related to the importation.

11 The applicant in conversation with Joseph Sukkar said that he was convinced that Choi was innocent, that it was impossible for the goods to be interfered with in Australia, and that he doubted that the police were responsible. The applicant and Steven Sukkar later spoke to Choi in the same telephone call. In an intercepted telephone conversation between the applicant and Steven Sukkar, Steven Sukkar said that he suspected that Choi was involved in the theft of the missing MDMA tablets and the applicant replied that he would kill Choi if that were true. Later the applicant said that the more he thought about it the more convinced he was that Choi was responsible for the loss of the MDMA tablets.

12 About 12.15pm on 2 December 2001 the applicant, with his brother Paul Sukkar as passenger, drove another hired truck to a warehouse in Granville, and stored the empty columns and other parts of the cool room. The applicant and Paul Sukkar returned to the Concord house with the empty truck; and set about separating the real MDMA tablets from the substitutes with Joseph Sukkar and Steven Sukkar. The applicant and Steven Sukkar then returned the hired truck, went back to the Concord house and resumed sorting and sifting the tablets. The applicant with his brothers discussed matters connected with the importation, including inflicting physical harm on Choi on his return from overseas.

13 On 3 December 2001 the applicant told Joseph Sukkar in an intercepted telephone call that he intended to ring Choi soon. In another telephone conversation that day Steven Sukkar told the applicant by telephone that he had spoken to a person who was prepared to recover $M5 from Choi at a cost of $500,000. In another telephone conversation that day the applicant told Steven Sukkar that he had recently been in contact with Choi and that Choi intended to return to Australia on 9 December 2001.

14 On 4 December 2001 the applicant met Joseph Sukkar and Anton El Hani (hereinafter El Hani), an associate of the unidentified persons in Europe, at the Concord house. The applicant was recorded stating that Choi had said that he was returning to Australia. Joseph Sukkar showed El Hani the substitute tablets, and said in the presence of the applicant that he did not have the heart to throw them away, and that the whole importation had been a disaster. In an intercepted telephone conversation on the same day the applicant spoke with Choi; Choi complained that the people he had hired for the importation were demanding payments and had been difficult to deal with; he asked the applicant what he should tell them; the applicant replied in terms which meant that the people he had hired should be told that they would probably not be paid until next week.

15 On 5 December 2001 the applicant again met with Joseph Sukkar and El Hani at the Concord house. That afternoon the applicant left the Concord house and was arrested. He was present when police forced access to the shed. When asked about the plastic bags containing substitute tablets with a few MDMA tablets the applicant said that he did not know how the bags came to be in the shed or what they contained. Most of the MDMA tablets which had been mixed with the substitute tablets were not located by police at the Concord house. The police on search found articles connected with the importation including small numbers of MDMA tablets and paperwork which the applicant obtained from Choi relating to the importation.

16 The paragraphs of Exhibit B which were not admitted, but which the Sentencing Judge must be taken to have found to be correct, were to the effect of the following six paragraphs:

26. [On the evening of 24 November 2001] the [applicant] was intercepted speaking by telephone to a person identified as Shane, in the course of which he spoke about the lost narcotics, indicating that he believed the narcotics had been stolen. There were supposed to have been about 500,000 tablets and “so basically we’ve had fourteen million worth of things go missing.”

27. On 25 November 2001, the [applicant] was intercepted speaking by telephone to Joseph Sukkar. Joseph Sukkar told him that he had spoken to persons in Europe concerning the missing narcotics, and that two or three persons were going to travel to Australia to investigate the matter. Joseph Sukkar indicated that the important thing [for] them to do now was to prepare for another importation.

33. About 10.30am [on 30 November 2001], the [applicant] and Joseph Sukkar continued their telephone conversation. The [applicant] said that he had spoken to Choi, and that the documents were available for collection at Choi’s office. He then asked in a coded fashion whether the Europeans proposed to send another shipment of narcotics. Joseph Sukkar replied that the next importation he proposed to be there and to do it personally with his own hands and eyes. The two men then again discussed the possibility that the police might be responsible for the substitution. However, the [applicant] discounted this because of the time that had elapsed since the delivery without any of them having been arrested. Finished, “…I could have moved it all ten times by now.”

37. On 2 December 2001, the [applicant], in company with Joseph Sukkar, hired another Toyota truck from Balmain Rentals which he then drove to his home at 84 Consett Street, Concord West. At about 10.40am, Steven Sukkar met with the [applicant] and Joseph Sukkar at Consett Street. Between about 11am and approximately 12.10pm, the offender and his three brothers removed forty-eight columns from the garden shed, then loaded all the empty columns and the four cool room doors into the back of the hire truck. During this process, the [applicant] was recorded as stating that, in his opinion, Choi had overstepped the mark this time, however the real MDMA tablets which the police had mixed with were still worth in excess of $200,000.

43. On 4 December 2001, the [applicant] was observed to drive to Choi’s office at 34/17-21 Henderson Street, Turrella, for the purpose of collecting additional importation documents and cash which Choi had promised the [applicant]. At 10.35am, the [applicant] was intercepted speaking by telephone to Choi. Choi complained that he had been unable to pay [Tom] and others to whom he owed money for their work in the importation. Choi asked “So what do I tell these people?” The [applicant] replied that Joseph Sukkar had no money, that “We all done our arse here, mate, you know we’re in the shit” and that Choi should tell them they will have to wait for their money. The [applicant] complained “I’m stilling trying to get the paperwork two weeks later. I tolf you two weeks ago, as soon as it happened, I said get all the paperwork together and I’m still trying to get it [from] you.”

45. At about 12.15pm [on 4 December 2001], the [applicant] was intercepted on a telephone speaking to Choi. The offender said that the people in Belgium were no longer coming to Australia and that he still wanted all the importation documents so as to satisfy them. Choi asked whether it was permissible to tell [Tom] and the others the true reason for the delay in payment. The offender stated “Yeah, I – we can’t pay them at the moment, you know. I’ll try and get some money. We haven’t got money, mate. What am I going to pay them with, paper? You know I haven’t got the money so, you know, now that they’re not coming, we’re going to sell all this shit out now and try to sell some of that stuff and we’ll have the money by the weekend, Monday, you know.” The reference to the “stuff” is a reference to the MDMA recovered from amongst the substitute tablets.

17 Much of the information in the Statement of Facts was based on the contents and interpretations of a large body of transcripts of intercepted telephone and other conversations; some overheard with listening devices. A large number of these transcripts was put in evidence.

18 After referring to and setting out the terms of the Statement of Facts, in a way which makes it clear that his Honour found that this statement was correct, the Sentencing Judge commented that the offence was particularly serious as indicated by the prescribed penalty. His Honour also commented on the size of the importation, 123.6 kilograms in bulk containing 34.4 kilograms of MDMA; whereas the commercial quantity of MGMA is 500 grams. His Honour also noted that the estimate of the wholesale value was between $M7.2 and $M12, and that there were approximately 480,000 tablets of MDMA.

19 His Honour then referred to the role of the applicant and mentioned convictions, sentences and prosecutions of others concerned or allegedly concerned in the importation. The passages in the Remarks on Sentence which dealt with this subject are as follows:

The role of the offender. Several co-accused have been convicted and sentenced for this offence. They include Mr Simon Prasad, Steven Sukkar, Mr Antoun El Mr Choi and Mr Joseph Sukkar are awaiting trial. Mr Paul Sukkar has been convicted as Hani an accessory after the fact shall return to the issue of parity in sentence, but first, in relation to the roles played by each, it has been noted already that, in sentencing for offences of this nature, the Courts have often been at pains to identify the position of the person and the hierarchy that exists, or is presumed to exist, of those persons involved in the importation. But what is important is an assessment of what the offender has done in carrying out his role in the importation, rather than in trying to identify precisely the position of the offender in the hierarchy and endeavouring to achieve an exactitude in determining the appropriate sentence to accord with that position, see The Crown v [Olbrich] (1999) 199 CLR 270.

As to the specific role and conduct of the offender, the Crown relies upon the following facts and matters as indicative of the degree of criminality involved. I am satisfied that those matters are established on all of the objective evidence.

(1) On 20 November 2001, the offender hired a truck at Petersham which he made available to [Tom] for the purpose of transporting the narcotics from Brisbane to Sydney.

(2) The offender, Choi and [Tom] travelled to Brisbane where on 23 November 2001 he and Choi supervised, at a distance, the delivery of the shipping container and its unloading at Mr Shepherd's warehouse. The offender had precise knowledge of the contents of the container and the manner in which the drugs were concealed.

(3) The offender supervised the transport of the columns from Brisbane to Kempsey and thereafter exchanged vehicles with [Tom] and completed the transport of the goods to his home at 84 Consett Street, Concord West.

(4) On 24 November 2001, the offender, with the assistance of Steven Sukkar and Joseph Sukkar, unloaded the columns at Consett Street, opened one or more of the columns and tested three of the substitute tablets. Later, after the substitution was discovered, the offender met with Choi at a distance from his house and escorted him back to Consett Street.

(5) Between 25 November 2001 and 22 December 2001, the offender made available his premises at Consett Street for the continuing safe storage of the columns and substitute tablets and the real MDMA tablets which had been separated from the substitutes.

(6) On 2 December 2001, the offender, with the assistance of Joseph Sukkar, Steven Sukkar and Paul Sukkar emptied the remaining columns stored at Consett Street, and thereafter he and his brother separated approximately 14,000 genuine MDMA tablets from the substitute tablets. In the course of this process, the offender, with the assistance of Paul Sukkar, transported the empty columns to a secure location away from his house.

(7) Between 2 December 2001 and 5 December 2001, the offender continued to provide safe storage at Consett Street for the substitute tablets and the genuine narcotic tablets that had been successfully sorted and removed from the substitutes.

(8) Between 24 November 2001 and 5 December 2001, the offender, in concert with Joseph Sukkar and Steven Sukkar, made efforts to recover the lost narcotics, in particular by liaising with Choi in connection with obtaining all documents relating to the purchase of the cool room and the movement of the container in Australia, with a view to identifying where and how the supposed theft of the MDMA tablets had occurred.

I am satisfied that the offender was a co-principal, in [and] partner with his brother Joseph Sukkar, in the importation of the MDMA from Belgium. I agree with the Crown’s assertion as disclosed in the evidence, and not only from the telephone intercept and listening device material but on all of the objective facts, that he had special responsibility for (a) dealing with Choi, an accomplice and notional consignee of the shipment, (b) supervising the safe collection and delivery of the narcotics, and (c) providing safe storage of the narcotics prior to their sale and distribution. I do not accept that the offender was somehow answerable to John Choi or acting under his direction, and that he thereby played a lesser role, but rather, in my view, he was a principal offender and joint owner of the imported narcotics with his brother Joseph and others, and they acted in combination to carry out the importation and to share in the sale and distribution of the narcotics. The only distinguishing factor between himself and his brother Joseph is that it is clear that it was Joseph who had the connections with overseas suppliers, one being Mr El Hani, and it was he, Joseph Sukkar, who was able to source the drugs in Europe.

(I have read the expression “in partner” in the second sentence of the last passage as “and partner” as I regard this as an obvious correction).

20 The principal attack upon the sentencing decision related to views and findings expressed by the Sentencing Judge about the role of the applicant in the importation overall. It was contended by the applicant’s counsel, seemingly correctly, that paragraphs numbered 1 to 8 and some passages of findings were drawn exactly or almost exactly from a submission made on behalf of the Crown. I do not regard it as a ground of criticism that a Judge should, in giving judgment, adopt in terms some parts of a submission before him without rephrasing them.

21 Criticism was particularly levelled at findings relating to the part taken by the applicant in events in comparison with parts taken by other persons, especially Joseph Sukkar and Choi. In my opinion, the Sentencing Judge’s conclusion that the applicant was a co-principal and partner with Joseph Sukkar in the importation, with the distinguishing factor that it was Joseph Sukkar who had the connection with the overseas suppliers and was able to source the drugs in Europe, was well justified. Indeed it was a compelling conclusion on a whole view of the undisputed parts of the Statement of Facts, which in a number of places show the applicant to have been highly informed about matters of detail relating to the source, transportation, nature, size and packaging of the MDMA tablets, and to have spoken and behaved as if he personally had a proprietorial interest in the venture and stood to gain or to lose very large sums with its success or failure. The Statement of Facts depicts the applicant acting as a principal and acting as if he were an owner of the MDMA tablets imported. He was highly active, and his concern in the importation occupied him practically full-time for over fourteen days.

22 In the Sentencing Judge’s Remarks on Sentence, his Honour made a finding on and disposed of a factual issue which arose out of the Statement of Facts and the oral evidence given by the applicant about the relative positions of the applicant and Choi in the importation venture. It is not reasonably open to contention that the applicant had special responsibility for dealing with Choi, for supervising safe collection and delivery, and for providing safe storage at Concord prior to sale and distribution; nor is it reasonably open to debate that he acted as if he were the joint owner of the MDMA tablets, taking control of them, taking the most prominent part in unpacking them, sorting the genuine from the substitutes, testing substitutes by ingestion and delivering the genuine tablets for Choi to keep them. The applicant always had the intention that he would go on to a later stage to participate in disposing of the MDMA tablets dealt with in a different offence, and that he would receive part of the price, and be paid other money for his participation.

23 The relative positions of the applicant and Choi and whether or not the applicant was in some way answerable to Choi or acted under his direction are not on a correct view of high importance when assessing an appropriate sentence; as is shown by the discussion in R vOlbrich (1999) 199 CLR 270 in the leading judgment (Gleeson CJ, Gaudron, Hayne and Callinan JJ) in the passage headed “The distinction between couriers and principals’” at 279-280, especially by paragraph 21:

Whether others stood to gain from the respondent’s conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity.

Much more important than positions in any hierarchy which might have existed is an assessment of what the applicant himself did.

24 In approaching the Sentencing Judge’s findings it is important to note his Honour’s reference to R v Olbrich and his Honour’s observations to the effect that what was important was an assessment of what the applicant did rather than identifying precisely his position in a hierarchy. In my view the Sentencing Judge’s observations show that he understood and correctly applied the passage in R v Olbrich.

25 Although the relevant positions of the applicant and Choi, to which much time and attention were given, both before the Sentencing Judge and on appeal, do not have the importance attributed to them, it is quite clear that the Sentencing Judge did not accept as a matter of fact that the applicant was in some way answerable to Choi or acted under his direction. It can be clearly understood, and is altogether clear from observations in the Remarks on Sentence, that the Sentencing Judge did not find the applicant’s evidence on this subject persuasive and hence did not accept it. The remainder of the findings in the passage I set out is fully justified by passages in the Statement of Facts which the applicant did not dispute.

26 On behalf of the applicant it was contended that the Sentencing Judge failed to address evidence of the applicant in relation to the extent of his knowledge. It was said that lengthy submissions were made to his Honour regarding the applicant’s role in the offences, that the applicant gave lengthy evidence, and that his Honour failed to address in any meaningful way those submissions or to evaluate the evidence of the applicant. It was said that the Sentencing Judge appeared to adopt the submissions advanced on behalf of the Crown without exercising a judgment that should normally be exercised where issues of credibility and reliability are before the Court. It was said that in this respect the sentencing discretion miscarried, and was open to re-exercise on appeal.

27 The applicant in his evidence was at pains to depict himself as taking a less prominent or subordinate role, in comparison with the roles of Choi, of Joseph Sukkar; and perhaps of others. It is correct, as his counsel submitted, that evidence relating to the applicant’s involvement does not show him participating any earlier than October 2001 by which time the importation was already on the water; there is no evidence that the applicant participated in negotiations with the suppliers in Europe, and the Trial Judge distinguished his position from that of Joseph Sukkar. In his evidence in chief (Appeal Book p116) the applicant stated: “Well [Choi] had to come and explain everything because I knew nothing about the importation. All I did was go to Brisbane and bring the drugs back to Sydney. I did not know the ins and outs of everything …” The transcript of a telephone conversation between the applicant and another participant on 24 November 2001 recorded among other things the applicant saying: “Yeah, so basically we’ve had $14,000,000 worth of things go missing” and “I’m the smallest player.” Other intercept transcripts between the applicant and Joseph Sukkar also show that dealings with and the identities of the European suppliers were within Joseph Sukkar’s knowledge and not within the applicant’s knowledge. In several respects Joseph Sukkar gave the applicant instructions about how to deal with aspects of the events; and the evidence shows the applicant conforming with such instructions.

28 In the course of his evidence the applicant affirmed that in his view he was the smallest player and gave his reasons, identifying whom he saw as the main players, and said that he did not have as much knowledge of the operation as Joseph Sukkar – “No, I hardly had any knowledge really” (Appeal Book 112). He stated that his participation in collecting paperwork relating to shipping arose from a request from Joseph Sukkar. The applicant’s Senior Counsel pointed to a number of aspects of the evidence which he contended supported the view that the role taken by Joseph Sukkar in the importation was at a higher level than that taken by the applicant. Counsel performed a similar review of evidence relating to the respective role of Choi in relation to that of the applicant; there were a number of respects in which Choi knew of or attended to aspects of the importation for which it was claimed that the applicant had no knowledge or no responsibility. It was to Choi and to arrangements with Choi that the applicant looked for any money to come to him out of his involvement, including payments specifically relating to his participation in collection and transport of the tablets when imported, and also arrangements for the applicant to sell what he understood was part of Choi’s share of twenty percent of the importation, and to receive part of the proceeds of sale, which he foresaw could be up to $100,000.

29 To my mind there is a marked contrast between the position of the applicant in the venture as depicted by his evidence, which shows him to be a person of small ability, bewildered and subordinate, and his position as it appears from the intercepted conversations. The transcripts show that he took an active and informed part in the importation as revealed by his participation in significant activities, including hiring vehicles, transportation of the tablets, his use of means of concealment of identity, his participation in unloading the tablets from the cool room columns, storage, disposition of the cool room columns, and telephone and other communications with persons involved. The transcripts also depict the applicant’s extensive knowledge of important aspects of the importation, particularly financial aspects, revealed by his conversations; his pursuit of paperwork relating to shipping and his professed interest in their contents, and the intensity of his interest in the size of the loss and in the prospects of vengeance against Choi. What the applicant said in evidence about his role has no inherent probability. His own depiction of his position is entirely irreconcilable with things which are objectively certain on other evidence.

30 Cross-examination of the applicant by counsel for the Crown was extensive, but not, on the face of the court transcript, altogether productive. In the context of what the applicant asserted in his evidence, I do not find it surprising that the Sentencing Judge rejected the applicant’s evidence out of hand. His evidence is so improbable that it had, in my opinion, little claim on the Sentencing Judge’s attention. The reasons which the Sentencing Judge gave make it plain that the applicant’s evidence was not accepted, and in the context including the nature of what had been asserted, a mass of other evidence including telephone intercept transcripts, and the course of the hearing and the challenges made in cross-examination, this should not reasonably have caused any surprise or sense of grievance. A close analysis of a body of material so markedly anomalous with agreed facts was not called for in the course of just disposition of the issues.

31 In a further submission Senior Counsel complained that the Sentencing Judge had not given reasons for rejecting the evidence of the applicant which tended to indicate that the applicant had a relatively minor role in the importation, and that the exercise of sentencing discretion was vitiated because the basis on which the evidence was not accepted had not been stated.

32 With respect to a sentencing decision, as for other decisions, fair disposition of proceedings usually requires that reasons be given for findings on facts significant for the outcome. The evidence of the applicant took some hours on three sitting days, and there were many challenges by counsel for the Crown cross-examining the applicant which it seems fair to say that the applicant withstood, without making much in the way of concession, in cross-examination. A contention that there was an error on the part of the Sentencing Judge in not stating reasons for not accepting the applicant’s assertions in evidence about his relative position attributes importance and centrality to those assertions which they do not have. The subject was incidental to the sentencing process and no more. Exposition is required of reasoning process on “…real and relevant issues of fact which are necessarily posed for judicial decision…” see Pettitt v. Dunkley [1971] 1 NSWLR 376 at 382 (Asprey JA); and see also Soulemezis v. Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. It is in my opinion necessary to guard against attribution of importance to an issue for the reason only that it is not mentioned in the judgment.

33 In my opinion the applicant’s many assertions in the course of his evidence to the effect that his part in the importation was relatively small did not have the importance which his counsel’s submissions attributed to them. Participation of the applicant in the importation, detailed in the findings of the Sentencing Judge was, on any view, quite important for the overall accomplishment of the importation, and it is to this rather than any apposition of the culpability of the applicant with that of Joseph Sukkar or of Choi that his Honour gave most of his attention. The statement in his Honour’s findings that the applicant was a co-principal and partner of Joseph Sukkar should not be elevated to some meaning which this statement does not bear; it is not a statement of overall equivalence of criminality, and it is really beyond question that the applicant was a principal, and a partner with Joseph Sukkar, no less so because, on the evidence before the Sentencing Judge, it should have been found, if those facts were relevant, that Joseph Sukkar took the more prominent position, and notwithstanding that (as was found) Joseph Sukkar managed parts of the importation which were not managed by the applicant. The same view applies to the supposed apposition between the participation of the applicant and Choi.

34 In my opinion there is no failure of procedural justice in respect of the degree of exposition of the reasons for findings on facts which were made by the Sentencing Judge.

35 In the course of his Remarks on Sentences the Sentencing Judge reviewed and dealt with matters set out in s.16A(1) of the Crimes Act 1914 (Cth) and referred to the considerations of general deterrence, severity appropriate in all the circumstance of the offence, and the absence of prior conviction; and also referred to the applicant’s expression of remorse, and to his contrition which the Trial Judge found was genuine. While dealing with contrition the Sentencing Judge found (Appeal Book 328) “True it is that there was an overwhelming prosecution case, but I do not think that that detracts from his obvious expression of remorse and of his contrition.”

36 The Sentencing Judge also took account into a Probation and Parole Service Pre-sentence Report prepared by Ms C A Perry, Probation and Parole Officer, which dealt with family and social factors affecting the applicant, including his employment history, gambling habit and drug usage. In relation to his attitude to offences it was reported: (at Appeal book 350)

Attitude to offences: Mr Sukkar stated that he pleaded guilty to the charges, saying that he was asked to pick up the drugs from Brisbane and store them in his garage. He said he did not know the quantity but that he just did it without asking questions. Mr Sukkar stated that he was promised $8,000 and needed the money to live on and pay gambling debts. He admitted that he did not consider the consequences and further stated that it is the worst thing he has done in his life and that it has ruined his life.

37 Under Summary and Sentencing Options Ms Perry reported:

Mr Sukkar presents as an unassuming and frank person whose life appears to have been de-stabilised by his separation/divorce. It is worth noting that whilst family members were convicted of cultivating marijuana when he was growing up, Mr Sukkar himself did not take up smoking marijuana until he was twenty. In addition, his current relationship is more conducive to his marijuana use and gambling and this does not augur well for him addressing these issues. During his incarceration he should seek help with his gambling and drug addictions. Upon release he may benefit from supervision and guidance of this Service.

The report then reviewed possible alternatives to a full-time custodial sentence.

38 When determining the sentence, the Sentencing Judge also took into account a further offence, possession of not less than the trafficable quantity of MDMA that may reasonably be suspected of being imported contrary to s 233B(1)(ca) of the Customs Act 1901; this is an offence pursuant to s 16BA of the Crimes Act 1914, and was related to the quantity of 52.1 grams of MDMA.

39 The Sentencing Judge then went on to deal with the significance of the plea of guilty (Appeal Book 329):

Plea of guilty. The Crown contends that the offender's plea of guilty was entered on 28 March 2003, being in excess of fifteen months after his arrest and charge and only three days before his trial, which at that stage of proceedings was due to commence on 31 March 2003. The Crown contends that the offender's plea was not entered at the earliest reasonable opportunity and, moreover, was only entered after a trial date had been set, thus necessitating considerable preparation and expenditure of resources on the part of the prosecution.

Following his arrest on 5 December 2001, the accused was not initially cooperative and denied the charge. Amongst other charges, there was a charge of conspiracy. This was withdrawn on 26 June 2002. It would appear that he could not have pleaded guilty, certainly to that charge, prior to that date. It appears that thereafter his then legal advisers were negotiating a plea of guilty. I do not think the offender should be penalised for that. It appears that when he was represented by his current advisers he then entered a plea of guilty. I am satisfied that he had expressed a desire to plead guilty and he expressed a willingness to facilitate the course of justice. The question is when it could have first been reasonable for a plea to be entered. I am not satisfied that it was at the earliest opportunity, but in the circumstances I would assess the plea of guilty as warranting a discount in sentence of fifteen per cent.

40 Senior Counsel for the applicant contended that the discount for the plea of guilty of fifteen percent was too low having regard to the utilitarian value of the plea and the contrition expressed.

41 Evidence shows that the applicant through the solicitor then acting for him gave an indication on 17 February 2002 that he was prepared to plead guilty to the principal offence, subject to conditions. Then there were some communications between prosecuting authorities and the solicitor then representing the applicant, followed by some advice by his then solicitor, of which the applicant’s evidence was that but for that advice he would have pleaded guilty. Some months later the applicant changed his solicitor, and there seems to have been a long delay before he was seen by the new solicitor Mrs Evans, who represented the applicant by the time of the hearing. Mrs Evans was retained on 16 December 2002, and there was some difficulty in getting the files from the previous solicitor. After being advised by Senior Counsel, Mrs Evans opened discussions about providing assistance. The Chief Judge of the District Court made an appointment for the trial of the applicant and four other persons charged with offences relating to the importation to commence on 31 March 2003 and set aside three months. Communications proceeded of which the applicant’s Senior Counsel observed that the prosecuting authorities were on notice that there probably would be a plea of guilty; yet it was not until a very late stage, it would seem the trial date or some date very close to it, before there was an unqualified indication that there would be a plea of guilty. Counsel for the Crown observed that preparations for trial and marshalling of witnesses were required for the trial of the other persons, which proceeded.

42 In light of the evidence I see the Sentencing Judge’s consideration as quite adequate and his conclusion as giving no indication of any error. The plea of guilty could not be regarded as an early plea, and earlier indications that there might be a plea of guilty did not have any real significance as they were qualified, conditional or part of a continued and unresolved chain of communication. There is ample room for full and appropriate recognition of the applicant’s contrition, and of the utilitarian value of the plea of guilty, in the discount of fifteen percent which the Sentencing Judge gave.

43 The Sentencing Judge dealt with the contention that an offer of assistance to the prosecuting authorities made by the applicant should lead to a reduction in sentence. In dealing with this subject the Sentencing Judge said: (Appeal Book 329-330)

Assistance. The question of assistance is in dispute. There is no dispute that the offender did make an offer of assistance. Overall it was assessed as being of no value. It was said that the information disclosed by Mr Sukkar has not resulted in the arrest of any person, nor have any other police inquiries been advanced as a result of the information provided. It appears that any discussions in relation to assistance broke down at an early stage due to the difference of opinion as to the role that he had played and over questions of veracity, but I would not dismiss the question of assistance entirely. There was in fact a practical benefit when a co-accused to the supply charge, that is, Mr Fred Nassif, pleaded guilty upon his learning the fact that the offender was prepared to give evidence against him. That is confirmed by Mr Nassif as one of the factors in his decision to plead guilty. Any trial of Mr Nassif was likely to have lasted for at least two weeks.

I do not assess the offer of assistance at a high level. Nevertheless, I do not think it is negligible, and there was a willingness in my view to assist the authorities. I think it answers the description of assistance, and some entitlement to discount is warranted. I would assess the combined effect of the plea of guilty and offer of assistance as warranting a reduction in sentence of twenty-five per cent.

44 The Sentencing Judge had earlier assessed the plea of guilty as warranting a discount in sentence of fifteen percent, suggesting that there was a further allowance of ten percent for assistance. It would be a mistake to infuse precision into the sentencing process; the process does not admit of precise expression in numbers and his Honour’s reasons mean that, taking the plea of guilty and the offer of assistance together, a reduction of twenty-five percent was warranted. The Sentencing Judge also made a discount of one-third under s 16G of the Crimes Act 1914. Section 16G had been repealed, and it was conceded by the Crown that because Shepherd a co-accused had been sentenced while s 16G was still in force the applicant should on a discretionary basis receive an equivalent benefit; and this was allowed. The Judge’s expressed reasoning was that the appropriate starting point was thirty-six years imprisonment; this was discounted by one-third or twelve years having regard to s 16G of the Crimes Act 1914; and the resulting period of twenty-four years was discounted by a further twenty-five percent for the plea of guilty and the offer of assistance. This produced a sentence of eighteen years imprisonment.

45 Senior Counsel for the applicant contended to the effect that the Sentencing Judge had not taken the correct view of the significance of the applicant’s offer of assistance because, on the correct view of the facts, the prosecuting authorities had not taken appropriate advantage of the offer of assistance because they took a wrong view about the value of the assistance which the applicant was in a position to give. After arrest the applicant declined to be formally interviewed and denied any knowledge of important facts relating to the offence. On 21 March 2003 solicitors representing the applicant wrote to an officer of the National Crime Authority referring to oral advice that the applicant would be prepared to give assistance to the Authority, and asked for arrangements for an interview “… in which our client would outline the material that he is prepared to provide assistance on, and then we can discuss the question of indemnity.” This led to an interview on 25 August 2003 at the Australian Crime Commission between the applicant and Detective Inspector Michael Birley (who was attached to the Commission). The applicant, in the presence of his solicitor and a Federal agent, spoke of the scope of evidence that he was prepared to give, principally in relation to a prosecution under State law against the applicant and Fred Nassif, and also relating to offences under Federal law.

46 Detective Inspector Birley formed the view that the information provided by the applicant was inconsistent with evidence that had been gathered throughout the investigation. After discussion police including Detective Inspector Birley decided not to take an induced statement at that point. On 18 February 2004 a letter from the Australian Crime Commission to the applicant’s solicitors confirmed that the offer of assistance was declined, and stated reasons. Part of the basis on which it was declined was a view to the formation of which Detective Inspector Birley was a party about the lack of value of any such assistance. In the account of events given by the applicant, particularly in evidence in the sentencing proceedings, all the MDMA tablets were removed from the columns on 24 November 2001 and were counted. The applicant, Steven Sukkar and Joseph Sukkar opened the columns on 24 November 2001; but Paul Sukkar was not present. The interpretation made by Detective Inspector Birley of investigation including intercepts available to him was that there was a further event on 2 December 2001 in which the applicant, Steven Sukkar, Joseph Sukkar and Paul Sukkar were present while columns were removed from the shed of the Concord house, and a number of columns which had not previously been opened were broken open, and tablets were removed from them.

47 When giving evidence in the sentencing proceedings the applicant said to the effect (Appeal Book 109) that on 24 November 2001 he unloaded quite a few columns and emptied them into plastic bags before Steven Sukkar arrived; and that the applicant got suspicious as the tablets did not look like real MDMA tablets to him. After he had unloaded about twelve of the forty-eight columns he rang Choi and Joseph Sukkar and told them there was something wrong. After Choi and Joseph Sukkar arrived the applicant continued unpacking and completed the process late that night . On about 29 November 2001 the applicant took the genuine MDMA tablets, separated out from the substitute tablets, to Choi’s office at Turella and left the tablets there. He also said (Appeal Book 122) to the effect that on 4 December 2001 Steven Sukkar wanted all the columns out of the Concord house; a truck was then hired, and the columns were taken out of the house, loaded on the truck and taken to a warehouse in Granville by Joseph Sukkar, Paul Sukkar and the applicant. The applicant said (Appeal Book 122) “So we did all that and then later on we sorted through it again to see if there was any other tablets and stuff.” The applicant’s evidence was to the effect that no more tablets were removed from the columns on 2 December 2001; although a few hundred tablets were found in the bags of substituted tablets which had been separated from the real MDMA tablets.

48 The applicant’s position was that the view that his information was unreliable and the rejection of his offer of assistance were based on a wrong view of what in fact had happened about removing the tablets from the columns, and on a wrong view about the applicant’s veracity. It was contended that the Sentencing Judge had not given appropriately detailed consideration to the question of assistance, and had not properly assessed the evidence relevant to assistance. The applicant contended that accordingly the sentencing discretion miscarried, resulting in an inadequate discount for the offer of assistance.

49 The Sentencing Judge did not express any conclusion about the applicant’s veracity in the information about the events of removing the tablets from the columns, or about whether Detective Inspector Birley’s view on the usefulness of the offer of assistance was soundly based. The Sentencing Judge identified a practical benefit which arose from the fact that the applicant was prepared to give evidence against Fred Nassif, and found that there was a willingness to assist the authorities, and that there were some entitlements to a discount. The Sentencing Judge decided in effect that a discount was warranted.

50 In R v Wai Thung Chu (NSWCCA, 16 October 1998, unreported) Spigelman CJ observed that the Court of Criminal Appeal has often emphasised that there is no fixed tariff for the provision of assistance to prosecuting authorities and that customarily in New South Wales, discounts range from twenty to fifty percent. The Chief Justice reviewed several then recent decisions in which a discount had been made for assistance, and of R v. Lawson (NSWCCA, 12 December 1997, unreported) in which a discount of fifty percent for assistance had been made. The Chief Justice then observed “It is common ground that the significance of the assistance was very high in the case of Rozic and also it appears that, but for the assistance that the applicant gave in the controlled delivery, the apprehension of Rozic may not have occurred.”

51 In Gallagher v R (1991) 23 NSWLR 220 at 226-230 Gleeson CJ gave extended consideration to elements in the sentencing process referred to as discount including (at 228E and following) discounts which give credit for assistance to authorities. Gleeson CJ showed, with supporting references, that discounts are discretionary, and that there is no binding tariff. Gleeson CJ concluded his observations by saying at 230C-D:

Even in cases where, as a matter of legitimate discretionary decision, a judge decides to give a specified discount it is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by "tariffs" derived from
other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice.

52 To my mind there is a distinction of some significance between assistance actually given to prosecuting authorities, and assistance which an offender was willing to give to prosecuting authorities, but did not give because the authorities did not regard it as useful, or because some other reason or circumstances defeated the giving of assistance. The cases of which Spigelman CJ spoke, in which discounts in the range of twenty to fifty percent have been given, are cases where assistance actually was given. Assistance which an offender wishes to give, but the prosecuting authorities do not feel that they should accept, does not have the same claim for discretionary allowance of a discount. It was, in my view, relevant and appropriate for the applicant to give evidence of circumstances which defeated his readiness to give assistance, but no examination by the Court of those circumstances can elevate the assistance which in his concept he was ready to give to the same claim for discount as assistance which was actually rendered, perhaps in the form of participating in entrapment of other offenders, perhaps in the form of giving evidence in Court and standing challenge on it, or in other ways. An offer which actually goes through the fire of a trial has a far stronger claim than assistance which an offender was prepared to but was not called upon to give.

53 A claim for a discount for an offer of assistance necessarily requires an assessment to be made of the practical value of the assistance; if it had no practical value, or relatively little practical value, that must have an impact on its significance, although it leaves the offer of assistance under consideration as an indication of contrition. Overall it appears to me that the applicant’s offer of assistance potentially had some practical value, although the prosecution did not take advantage of it. The Sentencing Judge was aware of this, and said: “I do not assess the offer of assistance at a high level” which I regard as a reasonable appraisal of its practical significance. His Honour took the offer of assistance into account so as to give it significant value in the reasoning process, leading to a discount of ten percent on the sentence, which was quite a high discount in the circumstances. In my opinion no error has been shown in the Sentencing Judge’s treatment of the discount for assistance to prosecuting authorities.

54 In connection with the contention that the sentence imposed was excessive counsel referred to questions of parity, and to sentences imposed on other persons concerned in the same importation. When the applicant’s sentence was passed Joseph Sukkar was awaiting trial; we were informed that at the time of the appeal hearing Joseph Sukkar had pleaded guilty and that his sentencing hearing was to take place in July 2005. We were not told to what offence exactly Joseph Sukkar pleaded guilty but it would seem to be the same offence as that to which the applicant pleaded guilty. Neither before the Sentencing Judge nor before us did any decision relating to Joseph Sukkar come under consideration on a question of parity. The Sentencing Judge did not engage in an exercise of comparison with any sentence imposed upon Choi or Joseph Sukkar, neither of whom had then been sentenced; for this reason appraisal of the applicant’s culpability relative to theirs is not of prominent importance. The Trial Judge’s findings, in the last part of the passages I set out, do not indicate that his Honour decided that the applicant should receive punishment appropriate to Joseph Sukkar or to Choi.

55 Shepherd’s participation in the offence was that he cleared the container through Customs, took delivery to his warehouse and handed over possession for the goods to be trucked to Sydney; Shepherd was sentenced to imprisonment for eleven and one half years with a non-parole period of seven years and four months. El Hani, who was found to be a senior person in the organisation and played an important managerial role when the MDMA tablets had been substituted, was sentenced to fifteen years imprisonment with a non-parole period of ten years. Prasad who participated in obtaining Customs clearance, delivery and recruitment of Shepherd was sentenced to fourteen years with a non-parole period of eight years and eight months. Steven Sukkar was sentenced to imprisonment for fourteen years with a non-parole period of nine years; at the time of argument of the present application Steven Sukkar’s appeal against that sentence was under reserved judgment in the Court of Criminal Appeal; the sentence was affirmed on appeal by majority on 16 March 2005. Having regard to the part taken by the applicant in the importation I do not think that any question of parity should have much influence on the outcome.

56 I recognise that the sentence imposed on the applicant, who had no prior convictions, was a very severe one. The considerations of pressing importance in appraising whether this Court should intervene are the enormous size of the importation and the intensity of the applicant’s activities in transporting the tablets and unpacking them, the large financial advantage which he expected to gain and the intensity and continuance, in all for about two weeks, of his activities directed to turning the importation to the best account possible; in the course of which he was very active and took the leading part in counting, testing, storing and handling the tablets. His involvement was intense, whether or not it can be said of other persons that their involvement was equally or more intense, or equally or more efficacious. In the circumstances I am of the view that the Court of Criminal Appeal should not disturb the sentence imposed, but should order:

(1) Leave to appeal granted.
(2) Appeal dismissed.

57 BARR J: I agree with Bryson JA.

58 HOEBEN J: I agree with Bryson JA.

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