R v Yavuz - [2020] SASCFC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v YAVUZ
[2020] SASCFC 87
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Livesey)
14 September 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING COCAINE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - SCOPE OF CONSPIRACY - CONSPIRACY TO COMMIT CRIME - GENERALLY
Appeal against sentence by Mr Yavuz, heard together with an application by the Commonwealth Director of Public Prosecutions for permission to appeal against sentence.
Mr Yavuz pleaded guilty to one count of conspiring to import cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). The object of the conspiracy was the importation of cocaine from Panama. In addition to central American conspirators, Mr Yavuz’s South Australian co-conspirators were Mr Kola and Mr Parise. It was proposed to transport the cocaine from Panama to Australia by boat. Mr Parise travelled to Panama and arrived on 20 May 2014, with the boat planned to leave Panama on about 21 May 2014. Due to the boat’s poor condition, it did not leave Panama on 21 May 2014. Mr Parise remained in Panama until returning to Australia by plane on 21 July 2014.
At the time Mr Yavuz was sentenced, he was serving a head sentence of six years and six months’ imprisonment, with a non-parole period of three years and six months imposed for offences of trafficking in cannabis contrary to the Controlled Substances Act 1984 (SA).
With respect to the importation of cocaine, Mr Yavuz was sentenced to nine years and six months’ imprisonment. Mr Yavuz appeals against that sentence on the ground that it is manifestly excessive and relies on particular aspects of the Judge’s sentencing approach. The Director appeals on the ground that the sentence is manifestly inadequate.
Held per Kourakis CJ (Peek and Livesey JJ agreeing), dismissing Mr Yavuz’s appeal:
1. The reduction in sentence by the sentencing Judge of 20 per cent is not manifestly inadequate.
2. Any greater degree of concurrency was not required by reason of the connection between the cannabis offences and the conspiracy. No lesser sentence could properly have been imposed having regard to the serious and persistent drug offending in which Mr Yavuz had engaged.
3. The non-parole period imposed is not manifestly excessive. An overall non-parole period of 76 per cent is not disproportionate for serious and persistent, national and international, high-value drug trafficking. The sentence imposed for the cocaine importation is a relatively low one by reference to comparable cases. Mr Yavuz will be supervised on parole for a period of three years, which is sufficient to support his long-term rehabilitation.
4. There was no error in the sentencing Judge’s characterisation of the relationship between the cannabis offending and the cocaine importation.
5. The complaint that excessive weight was given on the need for personal deterrence is not an appealable error.
6. There is no basis on which the loss of the benefit of Correctional Services administrative release can be taken into account as a reason to reduce Mr Yavuz’s subsequent sentence.
Held per Kourakis CJ (Peek and Livesey JJ agreeing), refusing permission to the Director:
1. There is uncertainty about the quantity of the cocaine which may have been imported if the enterprise had not failed.
2. Mr Yavuz played a secondary role in the conspiracy to Mr Kola.
3. The circumstance that Mr Yavuz will serve a substantial sentence before serving the subject sentence detracts from the utility of allowing a prosecution appeal in this case.
Controlled Substances Act 1984 (SA); Crimes Act 1914 (Cth) ss 16A, 16B, 19; Criminal Code Act 1995 (Cth) ss 11.5, 307.1; Sentencing Act 2017 (SA), referred to.
K, IC v The Queen [2020] SASCFC 34, discussed.
Cameron v The Queen (2002) 209 CLR 339; Mill v The Queen (1988) 166 CLR 59, considered.

R v YAVUZ
[2020] SASCFC 87
Court of Criminal Appeal: Kourakis CJ, Peek and Livesey JJ

KOURAKIS CJ: This is an appeal against a sentence of nine years and six months, with a non-parole period of six years and six months, imposed by a judge of the District Court (the Judge) on a plea of guilty of one count of conspiring to import cocaine, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is life imprisonment and/or $1,275,000. Mr Yavuz appeals against that sentence on the ground that it is manifestly excessive and relies on some particular aspects of the Judge’s sentencing approach, either in support of that ground or as vitiating errors in themselves. Mr Yavuz’s appeal was heard together with an application by the Commonwealth Director of Public Prosecutions (the Director) for permission to appeal against the sentence on the ground that it is manifestly inadequate.
At the time he was sentenced, Mr Yavuz was serving a head sentence of six years and six months with a non-parole period of three years and six months imposed for offences of trafficking in cannabis contrary to the Controlled Substances Act 1984 (SA). Section 19 of the Crimes Act 1914 (Cth) (the Crimes Act) required the sentence imposed by the Judge to commence at the expiration of that non‑parole period. In effect, therefore, there was a period of some three years of concurrency.
I would dismiss Mr Yavuz’s appeal. I would refuse permission to the Director. My reasons follow.
Personal antecedents
Mr Yavuz was 26 years of age at the time of the offending and 31 years of age at the time he was sentenced. His parents are Turkish immigrants who arrived in Australia in about 1978. Mr Yavuz is their eldest son. He grew up in Virginia where his parents were market gardeners.
Mr Yavuz left school prior to completing year 11. He worked in the family butcher shop in Croydon for several years before opening his own wholesale butcher shop. That business failed when Mr Yavuz became grief stricken by the death of his 11-year-old brother who accidentally fell from a balcony in Turkey. Mr Yavuz was left with debts of $150,000.
Mr Yavuz returned to the family’s market garden. In that period, Mr Yavuz made a profit on the renovation of a classic car, which he used to re‑establish a wholesale meat business. Mr Yavuz was then able to repay his debts. However, the wholesale meat business also failed, leading Mr Yavuz to take on gyprock fixing. At the height of that business he employed seven people. Mr Yavuz’s industry in lawful business pursuits provides some basis for guarded optimism about his future rehabilitation.
Mr Yavuz married when he was 19. He has three children whose ages range from four to 10 years. His wife struggles to support and maintain the family in Mr Yavuz’s absence. Mr Yavuz’s children, naturally enough, have found his imprisonment difficult to bear and have exhibited behavioural disturbances. Mr Yavuz’s wife is studying for a Bachelor’s degree in Education, hoping to support the family financially as a teacher.
It is convenient here to adopt the Judge’s summary of the character references provided in mitigation of penalty:
Your counsel provided me with a large number of character references from both family and community members who attest to your good character. Mr Murat Ersoy, the Vice President of the Murray Bridge Islamic Society, in his letter to the court dated 23 November 2019 speaks of his sadness in learning about your involvement in ‘such serious criminal activity’. He has known you for 25 years and states that ‘in that time, he has become aware that into the core you are a decent person’, as well as an ‘honourable individual’. Mr Ersoy states that after your State offending, and while serving a period of your sentence on home detention, you were selected to be a leader for the youth group to share with them your personal experiences with the criminal justice system in the hope that this would deter others from following in your footsteps.
Similarly, Dr Abdullah's letter to the court dated 26 November 2019, he is a practising general practitioner, speaks of having known you and your family for 30 years. Dr Abdullah outlines how your father, Mr Metin Yavuz, is a prominent leader in the Australian Muslim community. In addition to having held several positions in various community organisations, your father was also treasurer for the Australian Federation Islamic Council from 2014 to 2016. Dr Abdullah describes you as a ‘good, hardworking gentleman, (who is a) dedicated father who respects and cares (for) his elders, as well as (being) kind towards (young people)’ [sic].
The court has also received, through your counsel, two letters from Correctional Services officers at Yatala Labour Prison who have had dealings with you in the past few months. A letter dated 14 November 2019 from a Senior Correctional Services Officer of 31 years’ service, speaks of your work in the prison grounds as a maintenance worker. Your counsel submitted to the court that there are only four prisoners in the Yatala Labour Prison who are entrusted to do this work as it entails complete freedom of the grounds. He submits that this is a clear reflection of the regard in which you are held and an unusual letter for the court to receive.
(Emphasis in original)
The first count of trafficking in a large commercial quantity of cannabis for which Mr Yavuz was serving a sentence, was committed in May 2014, and the second in August 2014. He had also been convicted of cultivating cannabis between July and September 2014. The cannabis was trafficked from this State into Western Australia. Mr Yavuz pleaded guilty to those offences. One of Mr Yavuz’s co-conspirators in the attempted cocaine importation, Alfred Kola (Kola), was the principal of that criminal enterprise.
The offending
Mr Yavuz pleaded guilty to the conspiracy in the Magistrates Court and was committed for sentence. The Judge was provided with an agreed statement of facts from which the following summary is primarily drawn.
The object of the conspiracy was the importation of cocaine from Panama. Mr Yavuz’s co‑conspirators in South Australia were Kola, who was the principal Australian conspirator, and Kevin Tony Parise (Parise) who was recruited by Mr Yavuz and Kola to travel to South America to bring the cocaine to Australia. The central American conspirators were Juan Daniel Londono-Gomez (Londono‑Gomez) and other men referred to as Marco, Julio and Horta (the American conspirators). It was proposed to transport the cocaine from Panama to Australia by boat. Much of the evidence against Mr Yavuz came from Parise, who co‑operated with the police on his return to Australia, and from intercepted telephone communications.
In March 2014, Londono-Gomez visited Australia. He discussed money transfers with Kola by telephone from Brisbane. On 27 March 2014, on the instructions of Kola and Mr Yavuz, Parise transferred funds to Londono-Gomez following which Londono‑Gomez arrived in Adelaide on 2 April 2014. All four conspirators met at a hotel on the same day. Over the next month, Kola held discussions with Londono‑Gomez and made calls to Columbia. Londono-Gomez returned to Columbia on 2 May 2014.
On 13 May 2014, Kola received a call from Mario who instructed him to send someone to Panama to travel with the cocaine to Australia. On 14 and 15 May 2014, Kola made further arrangements by telephone with Londono‑Gomez and Mario.
On Kola’s instruction, Mr Yavuz arranged a meeting with Parise at Mr Yavuz’s farm. Parise was told that if he travelled to Panama to bring back the cocaine he would receive between $200,000 - $250,000 upon his return to Australia.
On 16 May 2014, Kola, Mr Yavuz and Parise met at a Flight Centre. Mr Yavuz and Kola purchased a return ticket for Parise from Adelaide to Panama. Mr Yavuz told Parise that the return airfare was a precautionary measure. Kola then sent a text to the American conspirators informing them of Parise’s itinerary.
On 19 May 2014, Kola engaged in a series of communications with the American conspirators. He then asked Mr Yavuz to bring Parise to his home where he gave Parise a telephone with pre-stored messages devised to support a concocted cover-story for Parise’s travel. Parise took a flight from Adelaide to Sydney, from which he made the connection to Panama, where he arrived on 20 May 2014.
After arriving in Panama, Parise maintained contact with Mr Yavuz who passed on messages to Kola. On one occasion, Kola spoke directly to Parise on Mr Yavuz’s phone and on the same call, spoke to Londono-Gomez.
Those communications disclose that the initial plan known to all three Australian conspirators was, as follows:
(a) the boat would leave Panama on about 21 May 2014.
(b)it would be met by another boat at set co‑ordinates onto which the cocaine would be transferred.
(c)if they were detained en‑route to Australia, Parise would say that the captain was teaching him to sail and was responsible for the vessel.
(d)Kola was assigned the codename George or G and Mr Yavuz the name Mark.
The boat did not leave on 21 May 2014. Over the following days the conspirators communicated about the delay and Parise travelled to the boat’s departure point. On 25 May 2014, after an inspection of the boat, Parise reported that it was in poor condition and was taking on water. Julio gave Parise $3,000 to finance repairs.
On 27 May, Parise asked Mr Yavuz to send him money. On 28 May 2014, Mr Yavuz deposited $400 into Parise’s bank account. On the same day, Parise told Mr Yavuz that the boat might not be ready for six months and they discussed Parise’s return without the boat. Mr Yavuz was concerned and passed the information through to Kola. Kola reassured him that the American conspirators were testing Parise’s mental resolve. On 2 June, Kola spoke to the American conspirators and again reassured Mr Yavuz who passed that information to Parise.
On the same day, Kola instructed Mr Yavuz to extend Parise’s ticket for four weeks. Mr Yavuz discovered that he was not able to change the ticket on Parise’s behalf and telephoned Parise to tell him to change the flight himself. Mr Yavuz assured Parise that he would pay the additional cost. On 3 June 2014, Parise told Mr Yavuz that he might soon be ready to sail. On 6 June 2014, Kola was assured by the American conspirators that the boat would sail soon.
However, on 10 June 2014, the boat was yet to sail. Parise told Mr Yavuz that he wanted to return to Australia. There were telephone conversations between Kola, Mr Yavuz and Parise later on that day.
On 17 and 19 June 2014, Londono-Gomez again gave Kola excuses for the delay. On 23 June 2014, arrangements were made for Mr Yavuz to deposit a further sum of $500 in Parise’s account. Mr Yavuz informed Parise that Kola intended to travel to America. On the same day, Kola spoke to Julio and asked for an explanation for the delay. He was told that the American conspirators were waiting for a ‘document’. On 24 June 2014, Mr Yavuz deposited $500 in Parise’s account. On that afternoon Kola told Mr Yavuz that he had informed Julio that Parise would return to Australia if the boat did not sail within a week. Later that day, Kola was told by Londono-Gomez that the captain did not want to sail with Parise. On 26 June 2014, Kola spoke to Parise on Mr Yavuz’s phone. Parise sent a text to Mr Yavuz saying that Marco did ‘coke’.
Between 28 June 2014 and 2 July 2014, Mr Yavuz and Parise exchanged texts about the delay. On 1 July 2014, Kola spoke with Londono-Gomez, who told him that he would send Parise home ‘with a little gift’. On 2 July 2014, Parise and Mr Yavuz communicated by text and Parise asked for additional money. On 5 July 2014, Kola sent a text to one of the American conspirators asking that Parise be returned before the end of the World Cup. Four days later Londono‑Gomez called Kola to discuss Parise’s return ticket and again referred to a present which would accompany Parise on his return.
On 16 July 2014, Mr Yavuz paid $1,706.15 to the Flight Centre for Parise’s return air ticket. Parise returned on 21 July 2014 and was arrested by police on his arrival. Following Parise’s return, Kola communicated with Londono‑Gomez about the failure of the enterprise.
In July 2014, Parise met Kola and Mr Yavuz at Mr Yavuz’s farm. Mr Yavuz told Kola that he ‘would have been set for life if this job went through’ and referred to 75 kilograms.
The Judge was provided with the following general information about the importing of cocaine from Columbia to Australia. Between 2014 and 2016 Columbia was the dominant growing region for cocaine seized by the Australian Federal Police. It is a very common trans shipment route for boats to travel from South America to Australia through the Pacific Ocean. Vessels are known to meet shore parties who are low level offenders tasked with the role of facilitating the transport of drugs from the point of entry to another location. In 2014 the price per kilogram of cocaine on the eastern seaboard ranged from $185,000 to $240,000.
Sentencing submissions
It was accepted that Mr Yavuz transferred, directly or indirectly, $3,400 to Parise. There was some debate before the Judge about how much Mr Yavuz expected to gain if the importation was successful. The expectation of the conspirators does bear on their motives and subjective criminality, but does not provide a sound basis on which to objectively evaluate the seriousness of the proposed offending, nor the effectiveness of their plans.
Counsel for Mr Yavuz made the following submissions on the conversation between Mr Yavuz, Kola and Parise at Mr Yavuz’s farm on the issue of the amount of cocaine they hoped to import:
The suggestions as to the volume of drugs that were to have been brought into this country range; the high point being the reference to 75 kg that appears at the close of the statement of the informant Parise dated 5 December 2014. That reference comes with a very significant qualification. There is a reference to 75 kg being the figure that was going to be imported but at the close of that - he goes on to observe ‘I am not sure if that was Mr Yavuz’ share’. He also concludes and I quote him ‘It is also possible that he, Mr Yavuz, was talking about something else’. There is a lack of clarity as to the precise volume.
Counsel then submitted that Mr Yavuz was sceptical about their prospects of success in shipping a large quantity to Australia. His submission was that he believed that the most probable result was that Parise would return by plane with two kilograms of cocaine in his luggage:
The defendant’s instructions are clear on these topics. Whilst a boat was clearly under contemplation and Mr Kola was talking about a boat and that was his plan, the defendant's expectation was Mr Parise would, in all likelihood, go there and then be brought back to this country not on a boat but with some drugs placed into his luggage with or without his knowledge.
…
The defendant sits there assisting Kola in getting Parise to that location. The defendant’s knowledge of Kola is he is someone who is often sprouting all sorts of ideas. The defendant’s knowledge of Kola is he has a propensity to lie to others to mislead them and to put them into circumstance[s] that serve his interests or his purposes. That is exactly what he did to the defendant. That fact was not totally transparent to the defendant at that point in time and the defendant desperately wanted to maintain his relationship with Kola and the cannabis trade. His instructions as to the financial motive which he concedes, obviously, that he hoped that by virtue of bringing Parise into that exercise the cannabis - the greasing of the wheels, the cannabis machine would continue in to country. The cannabis machine was operational. The cannabis machine was generating profit. The cannabis machine has already been the subject of a significant sentence. The motive that attracts to this offending, the connections that promote this offending are all very much at one with the cannabis offending. …
…
Before I leave the facts, we amplify that the defendant's plea admits the elements of the charge which requires an admission there was at least 2 kg of this drug under contemplation. When one looks at the values that are recorded within the Crown’s summary of facts we are looking at a drug that ranges in value between $185,000 and $240,000 per kilo, that is at para.82.
If it was under contemplation that 2 kg might have come back in via [sic] the luggage of Parise that can't be dismissed as something that would have been a waste of time or resources or effort on the part of Kola, quite the reverse.
It is not suggested that the defendant was someone who was possessing intimate knowledge or understanding of this drug, not for one second. It is conceded that he knew it was an illegal substance, he knew that Kola had an illegal plan in you [sic] mind, that he knew it involved bringing border controlled drugs into this country and he knew it was all about achieving a profit. Now all of those factors are absolutely conceded. So, your Honour can sentence him accordingly.

The prosecutor appears to have misunderstood the submission to be that the conspirators never planned to bring in more than two kilograms:
Parisi refers to a particular conversation which took place and specifically mentioned accompanying staff on a boat. There is also the mention by Parisi as to what he was told as to what he could expect to be his reward. That would not be consistent with what is put from the bar table with respect to a couple of kilograms brought back in luggage from South America.
…
… in my respectful submission, all of the information before your Honour and the underlying facts in the summary of facts which are not disputed - what is disputed is an inference or a conclusion to be drawn from those facts - would not in any way support that this was an enterprise to bring back a couple of kilograms in luggage. It may be that there was some movement in that direction towards the very end when the conspiracy did not bear fruit, but that is a very, very different matter.
More generally as to Mr Yavuz’s involvement, the prosecutor submitted:
… I haven’t done the totals but I don’t dispute that Mr Yavuz might have provided directly some $3,400. It should not be thought that the Commonwealth accepts that that reflects in any meaningful way what this man thought would be the reward to him, was this conspiracy to bear fruit. It appears to be the money that he is contributing towards the man that he recruited in order that he can get to South America and in order that he can be sustained in South America because he has to wait some considerable period of time and, indeed, longer than anyone seemed to expect would be required.
…
The Commonwealth does not put that Mr Yavuz was at the top of this enterprise, but it is plain that he played a very key role. He did more than recruit Mr Parisi to be the person to travel overseas. He is the person with whom Parisi dealt, he is the person to whom Parisi, from time to time, reached out for information and Mr Yavuz, among other things, responded to those requests or said that he would find out information so that he could pass that back. …
Sentencing remarks
The Judge’s findings on the quantity of cocaine which was the subject of the conspiracy were as follows:
The Crown concedes that the evidence does not reveal the precise amount of cocaine that was planned to be brought into Australia. This factual issue is not able to be resolved and the evidence on this issue is not conclusive. …
The threshold for a commercial quantity of cocaine was and remains 2 kilograms,[1] and this is the amount that your counsel submitted to the court on 18 December 2019 was under contemplation. Your counsel submitted that this was an amount that would still be of financial interest to Mr Kola given that in 2014 the price of cocaine per kilogram on the eastern seaboard ranged in value between $185,000 and $240,000.
(Citation in original)
[1] Criminal Code Regulations 2002 (Cth), schedule 3, item 41.
I interpolate here that defence counsel’s submission was not that no more than two kilograms was ever under contemplation. The submission was that Mr Yavuz doubted that a shipment would be made and thought that the most probable result was that Parise would return with two kilograms in his flight luggage. The Judge continued:
Counsel for the prosecution submitted that there is circumstantial evidence upon which the court can find that the amount to be imported was at least 75 kilograms. Such evidence includes the large sum of money (between $200,000 and $250,000) offered to Mr Parise for his role in the importation upon his return to Australia. I find that this evidence, alone, points to an inference that a larger amount than 2 kilograms was being planned to be imported. Given the value of the cocaine at the time, once Mr Parise was paid there would have been little profit left for all of the participants in the venture once the cost of airfares, the use or purchase of the boat etcetera, were recovered. After Mr Parise returned to Australia he attended your farm in Virginia in July 2014 and Mr Kola and another man were present. There you referred to 75 kilograms and said that you would have been ‘set for life if this job went through’.
The fact that the plan was for a boat to be used to bring the cocaine to Australia is another significant factor that leads to an inference that the amount of cocaine was more than 2 kilograms.
…
(Emphasis in original)
As can be seen, the Judge found no more than that the planned importation was of a quantity of not less than two kilograms. The Judge referred to the importance of general deterrence in sentencing for offences of importing cocaine. She described Mr Yavuz’s involvement in it as ‘a step up’ in his drug trafficking. The Judge then referred to Mr Yavuz’s personal antecedents.
The Judge referred to the controversy over Mr Yavuz’s expectations concerning the shipment:
The prosecution also does not accept your counsel’s proposition that the boat was Mr Kola’s idea, nor the proposition that while you were aware of this component of his plan you also believed Mr Kola to be the sort of person who made plans and then changed them. These are matters that I will need to make findings on from the evidence that has been provided, in sentencing you.
With respect to the Judge, it is not obvious to me from the prosecutor’s submissions that he did take issue with those particular submissions. Nonetheless, the Judge’s ultimate findings were:
Firstly, I find that you were fully engaged in the conspiracy to import cocaine to Australia. I accept that there is no evidence that you were involved in sourcing either the drug or the boat which was to be used in the importation. However, the evidence is that you were fully on board with the plan as soon as it was put to you. Your property was used for meetings with Mr Kola and Mr Parise. You recruited Mr Parise to be the courier and were involved in arrangements for his travel to South America. You provided funds to him that were needed for his travel and for his living expenses while in South America. You were in almost constant contact with him and others while Mr Parise was in Panama as the venture was imploding, and you facilitated his return to Australia. You even met with Mr Parise after his return to Australia. I sentence you on the basis that you were an active participant in the conspiracy to import cocaine to Australia and that your involvement spanned a period of at least four months.
I also find that at all times you understood that the plan was to bring the cocaine to Australia by boat. This is the clear inference to be drawn from the evidence. Not only was the use of a boat discussed with Mr Parise before he left Australia, including in the Flight Centre store where he was shown a map of the route the boat would take, it was discussed on a number of occasions when Mr Parise spoke to you from South America regarding his inspection of the boat and it not being ready, and also difficulties with the captain. The evidence of the conversations between you and Mr Parise only lead to one inference, and that is that a boat was to be used to bring the cocaine to Australia. Based on that finding, and as I have already outlined, I cannot accept that you believed that the whole exercise was to bring back only 2 kilograms of cocaine. I have already outlined the evidence that I find does not support that position.
That being said, this is an unusual case. The importation was frustrated by a leaky boat, and the Prosecution cannot prove the amount of cocaine to be imported. That, however, does not frustrate the prosecution. The matters that make your offending a criminal offence are the entry into, and the involvement in, a conspiracy to import an amount of illegal drugs, in this case cocaine. In sentencing you, I do so on the basis that the conspiracy was to import a large amount of cocaine that could be sold in Australia, and enough to make all those involved in the venture a large financial profit.
Three points can relevantly be made about those findings. First, the findings generally are consistent with Kola being the initiator, principal and controlling mind of the conspiracy. Secondly, I repeat that I do not understand defence counsel to have submitted that Mr Yavuz believed that the conspiracy only ever contemplated the importation of two kilograms of cocaine. Rather, as the prosecutor submitted, the plan changed as Mr Yavuz said he expected it would, to involve Parise returning by plane ‘with a small gift’. Thirdly, it is important that the Judge thought this to be an unusual case of a conspiracy to import cocaine.
The Judge accepted that Mr Yavuz was genuinely remorseful and stated that by reason of his remorse and for utilitarian reasons, she had reduced the sentence her Honour would otherwise have imposed. Her Honour went on to say:
Having considered all matters, including sentences imposed in interstate appellate courts for similar Federal offending, and the discount for your plea of guilty, I sentence you to a period of imprisonment of nine years and six months. In setting a non-parole period I take account of the references that have been provided, particularly by the prison guard at Yatala Prison in relation to your attempts at rehabilitation. I also take account of your relatively young age and your significant family responsibilities. I believe that you have time to turn our life around and I set a non-parole period of six years and six months.
…
Your counsel asked me to consider the question of concurrency given that the Federal offending was taking place at the same time as the cultivating and trafficking of cannabis. That enterprise involved the same players, including yourself, Mr Kola and Mr Parise. It was submitted that I should consider proportionality and the fact that you are to be punished twice for being tied up in drug-offending enterprises across the same time lines and with the same people. However, I find that this offending is very different. While the cultivating and trafficking of cannabis across state lines is very serious offending, the conspiracy to import cocaine into Australia using a boat takes that offending up a very serious notch. It is not enough to say that they are both offences about drugs. I find that the Federal offending is a quite different and much more serious in nature.
In any event, there is some concurrency provided to you by the Federal provisions. You were sentenced to six years and six months imprisonment for the state offences, with a non‑parole period of 3 years and 3 months. Your sentence for your Federal offending starts at the end of the non-parole period, that is three years six months into you [sic] sentence of 6 years and 6 months. That therefore provides some three years of concurrency. I therefore order that the sentence of imprisonment for the Federal offending is to commence on 31 January 2021.
Only after passing sentence, and in answer to an enquiry from the prosecutor, did the Judge indicate that she had reduced the sentence she would otherwise have imposed by ‘just over 20 per cent’.
Mr Yavuz’s appeal
Mr Yavuz’s first ground of appeal is that the reduction in sentence for his guilty plea and his contrition was inadequate. It is common ground that Mr Yavuz’s guilty plea was a relevant circumstance in itself.[2] It also evidenced his willingness to facilitate the course of justice[3] and was relevant in assessing the general sentencing considerations of rehabilitation and specific deterrence.[4]
[2]    Crimes Act 1914 (Cth) s 16A(2)(f).
[3]    Cameron v The Queen (2002) 209 CLR 339.
[4]    Crimes Act 1914 (Cth) ss 16A(2)(j), 16A(2)(n).
I accept that Mr Yavuz was entitled to a substantial reduction in sentence because he entered his plea in the Magistrates Court before his committal. There is no prescribed hierarchy of reductions in the Crimes Act as there is in the Sentencing Act 1917 (SA). I accept that some judges may have reduced the sentence by more than 20 per cent, but I am not persuaded that that reduction is manifestly inadequate. In any event, ultimately it is the length of the sentence imposed which is determinative on an appeal on the ground of manifest excess.
The second ground advanced by Mr Yavuz is that the Judge failed to have regard to the principle of totality.[5] I accept that the Judge was bound to have regard to the totality of the accumulation of Mr Yavuz’s sentences, even though her Honour was sentencing for the cocaine importation alone. The Judge considered that the commencement of the sentence her Honour imposed at the expiration of the non-parole period of the State sentence, in accordance with s 19 of the Crimes Act, sufficiently moderated the accumulation of the sentences. I am not persuaded that any greater degree of concurrency was required by reason of the connection between the cannabis offences and the conspiracy. Even though Mr Yavuz and Kola were both involved in the cannabis offending which financed the cocaine conspiracy, it nonetheless marked a significant escalation in their offending.
[5] Crimes Act 1914 (Cth) s 16B; Mill v The Queen (1988) 166 CLR 59 at 62-63.
Nor do I accept that the overall sentence was in any way crushing. It allowed adequate scope for rehabilitation, having regard to Mr Yavuz’s age. No lesser sentence could properly have been imposed having regard to the serious and persistent drug offending in which Mr Yavuz had engaged.
The third ground on which Mr Yavuz appeals is that the non-parole period was manifestly excessive. The overall non-parole period of both the State and Commonwealth sentences is 76 per cent of the combined head sentences. The non-parole period on the cannabis offending was just 53 per cent and the proportion on the importation conspiracy 68 per cent. That percentage is a relatively high one. I acknowledge that the Judge may have not fully appreciated the mathematical effect of accumulating what were, individually, moderate non‑parole periods, without allowing for the period of concurrency in the head sentences. However, I am not persuaded that the non-parole period is manifestly excessive for several reasons. First, an overall non-parole period of 76 per cent is not disproportionate for serious and persistent, national and international,

high-value drug trafficking. Secondly, the sentence imposed for the cocaine importation is a relatively low one by reference to comparable cases. Thirdly, Mr Yavuz will be supervised on parole for a period of three years; that is sufficient time to support his long-term rehabilitation.
The relationship with the cannabis offences is also the subject of ground 4. I see no error in the Judge’s characterisation of the cannabis offending as being ‘quite’ or ‘very’ different from the cocaine importation. Moreover, the Judge was correct to observe that Mr Yavuz’s involvement in commercial drug enterprises means that ‘personal deterrence is an important factor in sentencing’. Nor did the Judge err in observing that even though the conspiracy persisted over a short period of time it had to be considered in light of the cannabis offending, which occurred at the same time. I do not accept that the Judge treated the cannabis offending as an aggravating factor. Her Honour correctly treated it as limiting the scope for a more lenient rehabilitative sentence.
Ground 5 complains that excessive weight was given on the need for personal deterrence. That is not an appealable error. The sentence is not manifestly excessive.
Ground 6 complains the Judge failed to take into account that upon his arrest Mr Yavuz’s administrative home detention, on which he had been released by the Chief Executive of Correctional Services, was revoked. Mr Yavuz was released on home detention for four months between 16 October 2018 and 17 February 2019 before his arrest. There is no basis upon which the loss of the benefit of the Correctional Services administrative release can be taken into account as a reason to reduce his subsequent sentence. Mr Yavuz has had the opportunity to serve some time on home detention which he would not have had if he had been charged and sentenced earlier. Mr Yavuz had no legitimate expectation that he would be charged earlier and can have no sense of grievance that he was not. In any event, there is no evidence that the lapse of time in bringing the charge was deliberate or for any other reason deserving censure.
The Director’s application
It is accepted that in considering whether the Director should be given permission to appeal, this Court can properly have regard to common law principles which guard against double jeopardy. Those principles confine a prosecution appeal against sentence to correcting errors of principle and rectify egregiously low sentences which reflect an idiosyncratic approach. In K, IC v The Queen,[6] Bampton J explained the judicial reluctance to grant permission to appeal on a prosecution appeal against sentences as follows:
On the imposition of a sentence a defendant settles into an expectation of his or her release from prison after the expiration of the sentence imposed.[7] It is necessary to approach applications by the prosecution for permission to appeal with some indisposition, so as to ensure that the governmental power to ask for the imposition of a more severe penalty, which encroaches on the defendant’s anticipated post-sentence freedom, does not become an instrument of oppression. In R v Osenkowski, King CJ warned:[8]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
(Citations in original)
[6] [2020] SASCFC 34 at [62].
[7] Everett v The Queen (1994) 181 CLR 295 at 299.
[8] (1982) 30 SASR 212 at 212-213.
The Director makes three particular criticisms of the adequacy of the sentence. First, the Director contends that it does not properly reflect Mr Yavuz’s role as a principal in the conspiracy, the period of the conspiracy and the commercially driven nature of the offending and large financial reward Mr Yavuz expected to receive if the importation was successful. That criticism overstates Mr Yavuz’s responsibility. First, it is clear from the summary of the agreed facts that Mr Yavuz was very much Kola’s lieutenant. He shouldered the burden of most of the communication with Parise whilst Parise was in Panama, not because Mr Yavuz was a controlling mind of the conspiracy, but in order to shield Kola. The period of time over which the conspiracy subsisted, a little over two months, was not long, but in any event, most of that time was the result of the delay occasioned by the inability of the American conspirators to deliver what they had promised. Indeed, those delays and the explanations for them suggest that the American conspirators played Kola and Mr Yavuz along for reasons of their own. Mr Yavuz’s expressed hope to make substantial profits is important, but in the absence of clearer evidence as to what the conspiracy was realistically likely to deliver, Mr Yavuz’s statements may have been no more than the expression of a vain or deluded hope.

The second matter raised is that the sentence needed to reflect the need for personal deterrence in regard to Mr Yavuz’s largely contemporaneous State drug offending. However, Mr Yavuz was, of course, separately sentenced for that offending. Despite the degree of concurrency required by s 19 of the Crimes Act, it remained the case that Mr Yavuz’s sentence for the conspiracy to import the cocaine would weigh relatively more heavily on him because of the years he would serve on the State sentence before he commenced to serve the Commonwealth sentence. The circumstance that Mr Yavuz will serve a substantial sentence before serving the subject sentence detracts from the utility of allowing a prosecution appeal in this case.
Finally, the Commonwealth complains that the sentence does not maintain sentencing standards. I accept that the sentence is a relatively low one in comparison to the sentencing table provided by the Director. However, the sentences summarised therein, in the main, are the sentences of single judges which were not disturbed on an appeal brought by the defendant on the ground of manifest excess. Secondly, the sentences were imposed in cases, by and large, in which the cocaine was landed in Australia, or at least in cases in which the amount of cocaine actually procured by the conspiracy was known. That is not this case.
I would refuse the Director’s application for permission to appeal because:
·there is uncertainty about the quantity of the cocaine which may have been imported if the enterprise had not failed;
·Mr Yavuz played a secondary role to Kola;
·the indications suggest that the conspiracy was neither well planned nor executed; and
·the sentence will be served cumulatively on a relatively long sentence imposed on the State offence.
PEEK J: I agree with what is proposed by the Chief Justice and with his reasons.
LIVESEY J: I agree with Kourakis CJ.