Sukkar v The Queen

[2007] WASCA 166

SUKKAR -v- THE QUEEN [2007] WASCA 166

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 166
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:25/2007	Heard:	25 MAY 2007
Coram:	WHEELER JA	Delivered:	10/08/07
No of pages:	10	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	DAVID SUKKAR THE QUEEN
Catchwords:	Turns on own facts
Legislation:	Customs Act 1901 (Cth), s 233B(1)(b), s 233B(1)(c)
Case References:	Cheung (1997) 97 A Crim R 283 R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26 Tulloh v The Queen (2004) 147 A Crim R 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SUKKAR -v- THE QUEEN [2007] WASCA 166 CORAM : WHEELER JA HEARD : 25 MAY 2007 DELIVERED : 10 AUGUST 2007 FILE NO/S : CACR 25 of 2007 BETWEEN : DAVID SUKKAR

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JENKINS J

File No : INS 110 of 2005

Catchwords:

Turns on own facts

Legislation:

Customs Act 1901 (Cth), s 233B(1)(b), s 233B(1)(c)

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Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Ms L Black
Respondent : No appearance

Solicitors:

Appellant : William O'Brien
Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cheung (1997) 97 A Crim R 283
R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107


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1 WHEELER JA: This is an application for leave to appeal against sentence. The appellant was convicted of one count of aiding the importation of a commercial quantity of prohibited goods (s 233B(1)(b) Customs Act 1901 (Cth) ("the Act")) and one count of attempting to possess a commercial quantity of a prohibited import (s 233B(1)(c) of the Act). He initially entered a plea of not guilty to those counts and at his first trial gave evidence, which his later plea demonstrated to be false. The jury could not agree. On the second day of his retrial, he entered a plea of guilty, and was therefore convicted. He was sentenced to 21 years' imprisonment on each count with a 13-year non-parole period. The sentences are to be served concurrently.

2 The relevant facts are as follows. On 22 July 2004, the appellant's co-accused, a man by the name of Jose Melgar Sevilla, arrived in Sydney from South America. He came to Australia for the purpose of supervising the safe importation of approximately 100.6 kilograms of cocaine with an average purity of 77.8 per cent. The drugs were contained on board a vessel known as the Marcos Dias ("the vessel"), whichwas bound for Albany.

3 Following a "tip off", the Australian Federal Police began to monitor Sevilla's conversations and movements and it soon became apparent that the appellant had some involvement in the enterprise. On 24 July, the appellant called Sevilla using a mobile phone and the two arranged to meet for lunch. It seems that at least from that time, the appellant understood the purpose of Sevilla's visit to Australia. On that day, the appellant assisted Sevilla by making telephone calls and accompanying Sevilla to purchase a mobile telephone. Later that day, Sevilla travelled to Albany via Perth.

4 On 26 July, the appellant travelled to Perth and, on the following day, purchased two mobile telephones which were later provided to Sevilla. The appellant used a fictitious name to register one of the phones. The appellant also looked at used cars. The primary Judge found that the appellant did these things in order to aid in the importation of the cocaine.

5 On 28 July, the vessel anchored off of Albany and the appellant travelled to the town by bus. When he arrived, he met Sevilla who drove him to Albany harbour and around Frenchman Bay towards Quaranup Road. The appellant shared accommodation with Sevilla and accompanied him when he made calls from public telephones. The primary Judge found that a recorded conversation between the appellant and Sevilla indicated that the appellant was helping Sevilla to plan how

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and where the cocaine would be brought ashore and how it would be hidden once ashore.

6 Between 29 July and 3 August, the appellant and Sevilla hired a dinghy using a false name and boated around the harbour looking for places to bring the cocaine ashore. The appellant was present while Sevilla made various phone calls to arrange the importation.

7 The docking of the vessel was delayed and, in order to avoid arousing suspicion, the pair travelled back to Perth on 3 August and, on the following day, the appellant returned to Sydney. The appellant continued to maintain contact with Sevilla and Sevilla asked the appellant to find four bags in which to store the cocaine. The appellant also made contact with another man by the name of Taouk.

8 On 5 August, the vessel docked in Albany and Sevilla made contact with a crew member involved in the enterprise. He gave the crew member one of the mobile telephones purchased by the appellant and arranged to take possession of the goods in the early hours of 7 August.

9 Sevilla spoke to the appellant on 6 August and advised him to come urgently. The appellant flew into Perth with Taouk at approximately 10.15 pm that night. In the early hours of 7 August, while the appellant was still in Perth, Sevilla took possession of the cocaine which he eventually hid in some bush on Quaranup Road.

10 Later that day, the appellant and Taouk travelled to Albany where they met Sevilla. On 8 August, the appellant, Taouk and Sevilla drove to the location on Quaranup Road. The appellant and Sevilla got out of the vehicle and entered the bush. The appellant held a torch while Sevilla uncovered what he thought to be the blocks of cocaine but soon realised were blocks of wood which had been placed there by the Australian Federal Police in lieu of the drugs. Shortly thereafter, the appellant was arrested.

11 There are two proposed grounds of appeal. By the first, the appellant contends that the sentences imposed by the primary Judge were manifestly excessive given the circumstances of offending and the appellant's personal circumstances. In particular, the manifest excess is alleged to have derived from the following factors:

(a) the appellant was a junior participant in the enterprise;

(b) the appellant's involvement was not crucial to the success of the importation;

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(c) there was no evidence that the appellant was going to take part in the distribution of the drugs;

(d) insufficient weight was given to the appellant's age, antecedents and prospects of rehabilitation;

(e) too much emphasis was placed on the quantity of drug as opposed to the appellant's level of criminality; and

(f) the non-parole period did not reflect the appellant's antecedents and prospects of rehabilitation.

12 The second ground alleges that the primary Judge "erred in giving insufficient weight to the [a]ppellant's pleas of guilty, acknowledgement of wrongdoing and remorse". It therefore really amounts to a further particular of the manifest excess ground.

13 A significant difficulty with the proposed grounds is that, to the extent that they, and the submissions in support of them, directly or implicitly make factual assertions, the assertions appear to be inconsistent with the primary Judge's findings of fact, which are not directly challenged.

14 Those assertions of fact fall into two categories. In the category concerned with the appellant's role, particulars (a), (b) and (c) allege that the sentences are excessive because they do not reflect the fact that the appellant was a junior participant who did not intend to distribute the drugs and whose involvement was not crucial to the success of the operation. In relation to these issues, the learned primary Judge made the following comments (t/s 1468 - t/s 1470):

"… You have not told the court or the authorities who it was exactly who recruited you, what you expected to receive from your offending, who else was involved in it, or what was your understanding about what was going to happen to the drugs after you and your co-offender retrieved them from their hiding place in Albany …

…

It is accepted that Australia was not the original destination for this cocaine but that it became the destination after the Marcos Dias was contracted to take on cargo in Albany. Thus, it is accepted that you were not involved in arranging for the drugs to come to Australia.

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…

By [31 July 2004] you were well and truly involved in aiding Sevilla in the importation of the cocaine. For example, you had already travelled to Albany in order to assist Sevilla. I do not know all the details of how, why or when you became involved and I do not know whether you were to receive any reward for your involvement."

15 The primary Judge then detailed the evidence which established the specific ways in which the appellant had been involved in the operation; these are primarily the incidents that I have noted above. Her Honour then went on to say (t/s 1473 - t/s 1474):

"Your counsel submits that your involvement was not crucial to the success of the operation. Whilst it is true that Sevilla managed to bring the drugs ashore by himself, he clearly wanted and got your assistance both before and after that to facilitate the importation and the subsequent possession or attempted possession of the cocaine in Australia.

The recorded conversations between you and Sevilla show that Sevilla did not speak very good English. Your abilities in that regard were no doubt of assistance to Sevilla as he tried not to arouse suspicion in Sydney, Perth and Albany. You also provided assistance by purchasing the mobile phone, making telephone calls, looking for items such as the car and bags to use to transport the cocaine, hiring the boat, booking into the holiday unit and providing general assistance and support to Sevilla.

Further, whilst you have not made any disclosure about what plans there were for the future of this cocaine your counsel acknowledged that with Sevilla you would be one of two, maybe three people if I count Taouk, who would know where this exceptionally large amount of valuable cocaine was to be located. Sevilla was in Australia on a tourist visa that expired on or about 13 August. It is clear that he would not have wanted to bring attention to himself by overseeing [sic] that visa. Once he left Australia your role, as perhaps the only person in Australia to know of the whereabouts of the cocaine, would have been crucial. Consequently you were a vital link in the intended chain of distribution of the drug into Australia even

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if there is no evidence before me that you were going to take part in that distribution."

16 At the leave application hearing, since counsel then appearing had not read the transcripts of the conversations which had assisted her Honour in forming the views set out above, I granted the appellant 14 days to file submissions on the limited issue of whether it was open for her Honour to make the abovementioned findings. The appellant subsequently elected not to avail himself of this opportunity. Having read the transcripts, I am satisfied that they support the primary Judge's findings. They verify the way in which the appellant registered the mobile phone using a false name immediately before Sevilla performed the same exercise in his presence. They record a conversation between Sevilla and the appellant, in which Sevilla provides a very detailed description of the shipment and the way in which the two men would take possession of the drugs.

17 The primary Judge's inference about the appellant's likely role after Sevilla's intended date of departure was something which was largely conceded by his counsel in submissions on sentencing. Having noted, by way of background, that the persons who appeared to have originally been the intended Australian principals or distributors had been "tipped off", counsel conceded that would have left the appellant as the person in Australia with knowledge of the whereabouts of the drug, and as the person to convey that knowledge to the purchaser when one was located (t/s 1449). That concession was well founded, on the material before her Honour, and she was entitled to draw the inference which she did about the appellant's likely role.

18 In oral argument before me, it was submitted that her Honour was wrong to place any weight on the fact that the appellant had not volunteered information about his recruitment, his precise role and what he expected to receive. It was submitted that, as he was a "junior participant", he may have lacked information about these matters. That reasoning, however, is circular, since it assumes that he was a junior participant, and therefore alleges that he was unable to provide information; it then relies in part on the absence of any clear information about the appellant to justify the assertion that he must have been a "junior participant". It is, however, obvious that the appellant must have known at least how he was recruited and by whom, and what he expected to receive. It seems likely, from the transcript of those conversations which were intercepted and recorded, that Sevilla would have been reasonably forthcoming with the appellant about other aspects of the

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operation. At the least, if the appellant had limited knowledge or understanding of any other aspects of the operation, a full and frank disclosure of how he came into it might have enabled an inference of that kind to be drawn. The appellant was represented by Senior Counsel, who must have been well aware by that stage of the case against him and of the inferences which might be drawn about his role, but the appellant nevertheless, as her Honour found, provided effectively no relevant information about his role.

19 Turning to the category of assertions about the appellant's personal circumstances, it is startling to suggest, as ground 2 does, that insufficient weight was given to the plea of guilty. That plea came on the second day of a retrial. That was almost as late as it was possible for the appellant to have pleaded guilty. Despite that, her Honour accepted during the course of her sentencing remarks that the plea did facilitate the course of justice and expressly advised that the appellant would receive "some reduction" in sentence for it (t/s 1467). Her Honour found, however, as it was open to her to do, that, notwithstanding the inability of the first jury to reach a verdict, the Crown case against the appellant was strong. She considered that neither the plea nor any of the other materials before her Honour indicated that the appellant was truly remorseful for his offending, although she did accept that he felt shame, felt sorry for himself, and for the predicament that he was in. In my view, all her Honour was obliged to do in the circumstances of this case was to give "some weight" to the plea of guilty. There is nothing to suggest that she erred in making the finding that she was not able to find that the appellant was, in fact, remorseful.

20 Finally, it is suggested that her Honour failed to pay sufficient regard to the personal circumstances of the appellant. She referred in her sentencing remarks, in some detail, to the relevant personal circumstances. She specifically noted those which were mitigating, as well as the appellant's criminal history of traffic offences and minor drug offences. Her Honour expressed the view that there was hope for the appellant's rehabilitation and that she had taken that fact, and the personal circumstances, into account. She also observed, manifestly correctly, that as a matter of sentencing principle, the seriousness of these types of offences and the damage they cause to Australian society made general and personal deterrence extremely important factors.

21 In my view, the fact that the grounds and the particulars, and the submissions in support of them, rest largely on the erroneous propositions that the appellant played but a limited role in the importation, that he was

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remorseful, and that her Honour did not give any or adequate weight to personal factors, means that the grounds have no reasonable prospect of success. However, it is desirable finally to consider briefly whether, accepting as I do the findings which her Honour made, there is any reason for considering that it may be arguable that the sentences imposed were manifestly excessive.

22 As McLure JA observed in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 at [46], there are instances in sentencing in which "the comparative exercise can be of limited utility because each case turns on its own facts and circumstances". As her Honour noted, the weight and purity of the drug is not determinative. However, as her Honour also noted, it is a relevant factor. It is particularly important where it is plain, as, in my view, it was in this case, that the offender has a reasonably good appreciation of the quantity and type of drug which he is engaged in importing. In those cases, the deliberate decision to import a significant quantity of a drug into Australia may reasonably be regarded as giving rise to a greater level of criminality than a decision to import a much lesser quantity, or even a decision to import a quantity which is unknown (at least where there is nothing to indicate that the quantity, while unknown, is likely to be very significant).

23 In the present case, the quantity of drug involved is unusual, in the sense that a "large" quantity of drug is generally one of a few kilograms, or thereabouts. This amount was very significantly in excess of the quantity of drug which is often described as "large". However, it is plainly not the largest quantity which could ever be imported. The only case which appears to involve a roughly comparable quantity, although a different drug, was Cheung (1997) 97 A Crim R 283, involving the conviction after trial of an offender who was knowingly concerned in the importation of 45 kilograms gross (32.41 kilograms pure) of heroin. In his case, a sentence of 25 years' imprisonment was imposed and that was upheld on the basis that he was "a participant at the top of the range ... [and that] there was no mitigation in his case" (at 294 per Pidgeon J). In the present case, the quantity of drug was greater and the appellant was, while not a participant at the top of the range, an active and willing participant who played a crucial role. On the other hand, there were some significantly mitigating factors, including his age and the other factors to which her Honour referred.

24 Roughly 10 times the present quantity was imported by those offenders whose roles are described in the case of R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26. It should be noted that in Reaves,

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Reaves and his co-offender Suarez-Mejia, notwithstanding an early plea of guilty in each case, received sentences of life imprisonment with minimum terms of 18 years in the case of Reaves and 20 in the case of Suarez-Mejia.

25 Finally, I would note that the co-offender in this case, Sevilla, was sentenced, following a plea of guilty, to life imprisonment with a non-parole period of 21 years. An appeal against that sentence was dismissed.

26 Taking those comparable cases into account, and having regard to the maximum penalty available of life imprisonment and a fine of $750,000, it appears to me that it cannot be suggested that a sentence of 21 years' imprisonment with a 13-year non-parole period was manifestly excessive. For those reasons, I would refuse leave in relation to both grounds and would dismiss the appeal.