Wright (a pseudonym) v The Queen

[2017] NSWCCA 289

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wright (a pseudonym) v R [2017] NSWCCA 289
Hearing dates:	10 November 2017
Decision date:	30 November 2017
Before:	Simpson JA at [1]; Rothman J at [45]; Hamill J at [46]
Decision:	(1)  Leave to appeal granted;  (2)  Appeal dismissed.
Catchwords:	SENTENCING – appeal against sentence – co-offenders – where co-offenders receive identical sentences – where co-offenders have different roles and involvement in conspiracy to import prohibited substance – applicant in superior position in enterprise – co-offender involved in importation of greater quantity – factors balance – whether applicant had justifiable sense of grievance in being sentenced identically to co-offender – relevance of co-offender’s separate appeal raising parity ground
Legislation Cited:	Criminal Code (Cth), ss 11.5, 307.11 Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)
Cases Cited:	Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 MI v R [2017] NSWCCA 225
Category:	Principal judgment
Parties:	Wright (a pseudonym) (Applicant) Regina (Respondent)
Representation:	Counsel: P Lowe (Applicant) M England (Respondent)   Solicitors: SJT Law (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2015/46865
Publication restriction:	Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 16 September 2016 Before: Hunt DCJ File Number(s): 2015/46865

Judgment

1. SIMPSON JA: On 25 November 2015, in the Local Court, the applicant entered a plea of guilty to a charge that, between 23 February 2014 and 15 February 2015, he conspired with another (MI) to import into Australia not less than the commercial quantity of a border controlled substance (pseudoephedrine) intended to be used to manufacture a controlled drug. (The language in which the charge was framed is in accordance with s 307.11 of the Criminal Code (Cth) (“the Code”) under which it was brought. Section 307.11 was amended with effect from 27 November 2015 by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth). For present purposes, there is no significance in the amendment; I mention it merely to explain why the charge is formulated in a way that does not conform to the current legislation.)

2. By ss 11.5 and 307.11 of the Code the offence carries a maximum custodial penalty of imprisonment for 25 years. A commercial quantity of pseudoephedrine is 1.2kg.

3. The applicant was committed for sentence to the District Court, where he adhered to his plea of guilty. On 16 September 2016 Hunt DCJ sentenced the applicant to imprisonment for 6 years and 6 months, with a non-parole period of 4 years. At the same time, the applicant’s co-offender, MI, who also entered a plea of guilty to the same charge, was sentenced in identical terms.

4. The applicant now seeks leave to appeal against the sentence. Although he has pleaded two grounds of the proposed appeal, his essential point is that, given the participation of the two offenders, he has a justifiable sense of grievance that the sentence imposed on him was the same as that imposed on MI. The point he seeks to make is that his involvement in the offence was less than that of the MI, and, accordingly, he was entitled to be sentenced less severely. It is, therefore, necessary to examine with some care the relative participation of the two offenders.

5. The relevant facts were put before the sentencing judge by way of a joint Agreed Statement of Facts. Also before the Court were lengthy statements made by both offenders (although these were admitted only for a limited purpose, and cannot be used to elaborate upon the content of the Agreed Statement of Facts), a psychiatric report in relation to the applicant, and testimonials as to his character. The applicant gave evidence in the sentencing proceedings. MI did not.

The facts of the offence

6. The enterprise involved the impregnation of pseudoephedrine into packages of tea that were to be sent by post from Iran to Australia. Pseudoephedrine is a precursor used in the manufacture of a controlled drug (methamphetamine). In August 2014 one consignment of tea was sent from Iran by air cargo, addressed to MI. It contained, as well as tea, approximately 17.76kgs of pure pseudoephedrine. Before the consignment could be delivered to MI, it was intercepted by NSW Police, the pseudoephedrine extracted, and the tea repackaged and delivered to MI. The applicant was not involved in this importation.

7. Thereafter, six postal consignments of tea, each containing a quantity of pseudoephedrine, were sent to MI’s residential address. All except one were intercepted by police and the pseudoephedrine extracted before delivery. The postal consignments arrived in Australia on the following dates, containing the following quantities:

Consignment 1:	28 September 2014	1097.4 grams
Consignment 2:	21 October 2014	872.6 grams
Consignment 3:	19 November 2014	782.1 grams
Consignment 4:	11 December 2014	1227.9 grams
Consignment 5:	5 January 2015	not detected but estimated to contain 1000 grams
Consignment 6:	19 January 2015	975.9 grams

The applicant was involved in each of these importations, as was MI.

8. There is some controversy about the date on which the applicant became engaged in the conspiracy, and therefore as to the period of his engagement. It was the Crown case that he became involved in the enterprise in early 2014. It will be necessary to make reference to this below.

9. On 24 February 2014 the applicant travelled to Iran. Much of his participation took place in that country. His role in the conspiracy was described in the Agreed Facts as:

“(a)  [The applicant] sourced, and paid for, the pseudoephedrine in Iran and arranged for its exportation to Australia. He communicated with [MI] in Sydney to:

(i)  discuss how the consignments would be packaged;

(ii)  confirm receipt of each of the consignments; and

(iii)  arrange the delivery of future consignments.

(b)  Shortly after sending the last consignment from Iran, [the applicant] arrived in Sydney on 14 February 2015 from Iran for the purpose of extracting and supplying some of the pseudoephedrine with the assistance of [MI].”

10. MI’s role was described as including delivery of the consignments of tea as directed by the applicant to a third person so that the pseudoephedrine could be extracted to be used in the manufacture of methamphetamine, and as having:

“… received, or made arrangements to receive, the consignments [and] retained custody of them before passing them on to [the third person or others]. [He] reported back to [the applicant] and [the third person]. He kept the last consignment.”

He worked through a customs broker to make arrangements for the consignment sent by air cargo, and arranged for its delivery to his home. He used a business entity which he registered in September 2013. It is a reasonable inference that the business was registered for the purpose of and intended to be used in, the importing of the pseudoephedrine.

11. Because MI was involved in the original air cargo shipment, of the substantial quantity of 17.76kgs, there was a significant discrepancy in the total quantities of the substance in which the two offenders were involved. It was accepted that the applicant had been involved in the importation of approximately 6.2kgs; MI of approximately 23.96kgs.

12. Early in the morning of 14 February 2015 the applicant arrived at Sydney airport on a flight from Iran. His luggage was searched. When asked about certain items of the contents, he gave what could only be described as a spurious explanation. He denied any knowledge of the postal consignments and denied sending packages to Australia. MI was arrested on the same day. Unlike the applicant, he immediately made what the sentencing judge called “full and frank admissions”.

The applicant’s personal circumstances

13. The principal evidence concerning the applicant’s personal circumstances came from the psychiatric report, supplemented by his oral evidence.

14. The applicant was born in Iran in January 1972. He was therefore 42 years of age at the time he became involved in this offence. He was the sixth in a family of seven children. The family also adopted another sister, the daughter of a friend of the applicant’s father who had died. The family suffered harassment by local officials, apparently for political reasons. One brother was shot and killed by government officials. As a result (at least on the applicant’s perception) his father suffered a fatal heart attack. The applicant left school at age 16 and took up employment in a factory in order to assist to support the family. Later, two brothers developed serious medical conditions.

15. The applicant was a talented sportsman, and represented Iran in international competitions, including the Barcelona Olympics in 1992.

16. The applicant came to Sydney in 2000 for the purpose of representing Iran in the Olympic Games. However, it appears that he was disqualified for failing a drug test, and did not compete. He applied for, and was granted, refugee status, and remained in Australia. He represented Australia in the 2004 Athens Olympic Games.

17. He told the psychiatrist, Dr Olav Nielssen, that he became involved in the conspiracy because he was in financial hardship and to make money to assist the family with medical expenses. He said that he had never made any money from his long and successful sporting career.

18. Dr Nielssen diagnosed the applicant as suffering from traumatic brain injury attributable to his sporting activities and a depressive illness. He considered that the brain injury will make the conditions of custody more onerous.

19. The applicant has a relatively extensive record of motor traffic offences, but no other criminal history. There was evidence that he (like MI) had given a level of cooperation to law enforcement authorities.

The remarks on sentence

20. In sentencing both offenders, the sentencing judge was conscious of the need to differentiate between the roles that they played. In summary, he said:

“In accordance with the agreement between the co-conspirators, [the applicant] sourced and paid for the pseudoephedrine in Iran and arranged for its exportation to Australia, having regard in that regard to the limitation about the air cargo matter, I expressed earlier.

In accordance with the agreement, Ml, received or made arrangements to receive, the consignments at his home address at Parklea in Sydney. He retained custody of the consignments before passing them onto a third person to extract the pseudoephedrine for use in the manufacture of methamphetamine.”

21. He then turned more specifically to consider the role of the applicant and noted that he had travelled to Iran in February 2014 for the purpose of sourcing and paying for the precursor. Whilst there he arranged the exportation to Australia, and remained in regular contact with MI, and gave approval to MI to distribute the pseudoephedrine. He accepted a contention made on behalf of the Crown that his position in the criminal enterprise was higher than that of MI who received the consignments and delivered them to a third person for extraction of the drug. With respect to MI, he noted that that offender registered a business, linked to his home address; used a customs broker to make arrangements for the passage and delivery to himself at his address of the initial cargo shipment (in which the applicant was not involved); declared himself to be the importer of that shipment and delivered the contents to the third person.

22. He noted that MI received and signed for delivery of the six postal consignments and discussed with the applicant arrangements for accommodation where the extraction process could be carried out.

23. While finding that MI was junior to the applicant in the hierarchy, he noted that he (MI) was nevertheless “clearly trusted”, and expected to receive a significant financial reward for his participation. He noted that the quantity of drug involved in MI’s case was significantly more than that involved in the applicant’s case – “about twenty three or twenty four kilos”, as against the applicant’s involvement in the importation of 6.2kgs.

24. In this context he added, with respect to the applicant:

“… but having in mind that the evidence discloses that he joined the conspiracy being aware of the air cargo matter, although not alleged to have had direct involvement in it.”

25. He concluded that each offender was involved in the enterprise “for the purposes of profit”, and that in neither case was the offending an isolated incident but was a course of conduct. He noted Dr Nielssen’s opinion that the applicant’s brain injury would make his incarceration more onerous than it otherwise might have been. He spent some time recounting and considering the effect of the applicant’s personal circumstances (as he did in the case of MI).

26. In each case, he determined that, in accordance with the decision of the High Court in Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, the pleas of guilty warranted a reduction of 25 per cent in the sentence that would otherwise have been imposed, and cooperation with authorities warranted a further reduction of 25 per cent.

27. He found that the offences fell “about the midrange of the objective seriousness for offences of this type”, but added that the conduct was clearly serious criminal conduct.

28. Importantly, in the light of the proposed grounds of appeal, he turned to the question of parity. He appreciated the difference in the objective seriousness of the offending, specifically by reason of the applicant’s “higher and more executive” position in the conspiracy, balanced by MI’s lesser role but involvement in the importation of a much greater quantity of the precursor. He also noted that the applicant’s subjective case was “more powerful” than that of MI. He came to the conclusion that the competing considerations were evenly balanced, and therefore determined to impose identical sentences.

The application for leave to appeal

29. In support of his argument that, by reason of the identical sentences imposed on the applicant and MI, the applicant has a justifiable sense of grievance, counsel for the applicant focussed upon three interrelated aspects of the participation of the applicant contrasted with that of MI, which, he argued, had not adequately been taken into account.

30. The first was MI’s involvement in the earlier air cargo importation. The second, a consequence of the first, was the significantly greater total quantity of pseudoephedrine in which MI was involved. The third was the time at which the applicant joined the conspiracy, and therefore the period over which he was involved. It was the applicant’s contention that he became involved in September 2014 and not, as the sentencing judge found, in February of that year.

31. The last calls for closer examination of the evidence. As counsel for the Crown acknowledged, there was an anomaly in the material before the District Court.

32. In par 2 of the Agreed Facts, it was said:

“In summary, during the period between about 23 February 2014 and 15 February 2015, the [applicant] and [MI] and others were involved in a criminal enterprise aimed at the ongoing importation of pseudoephedrine from Iran into Australia … [The applicant] joined this criminal enterprise shortly after one large air cargo shipment which contained approximately … 17.76 kg pure pseudoephedrine.”

As was then made clear in par 11 of the Agreed Facts, the air cargo shipment arrived in Sydney on 10 August 2014. At par 17, the Agreed Facts stated that that importation, occurred prior to the applicant’s joining the conspiracy.

33. Counsel for the Crown sought to explain the discrepancy by suggesting that the second sentence in par 2, and par 17, might have been intended to refer to the date of export from Iran, rather than the date of arrival in Australia. I find this explanation unconvincing. In par 17, in particular, it is said that “the importation” occurred prior to the applicant’s joining the conspiracy; that is not suggestive of his joining the conspiracy at a time after the export from Iran. Further, the shipment was by air cargo; it is unlikely that it would have taken six months to arrive.

34. As I understand the submission made on behalf of the applicant it was that it was not open to the sentencing judge to proceed on the basis, as he did, that the applicant’s involvement commenced in February, rather than September, after the air cargo importation and that the sentence imposed was adversely affected by the error.

35. I am not satisfied that there was an error. On the whole of the material, it was open to the sentencing judge to proceed on the basis that he did. It is to be noted that the charge to which the applicant pleaded guilty specified February 2014 as the commencement of his participation. Further, Dr Nielssen took a history of the offence from the applicant. Dr Nielssen recorded:

“[The applicant] said that he was asked by the organiser of the offence … to take money to Iran to hand to his contacts there and to make sure that they did the .job that they were paid to do …”

The only evidence of the applicant’s travel to Iran was that it occurred in February 2014.

36. I have concluded that the evidence did establish that the applicant was involved in the conspiracy from the earlier date, although the Crown at all times accepted that he was not involved in the air cargo importation. There is no inconsistency in a finding that the applicant was involved in a conspiracy to import, by post, consignments of pseudoephedrine at a time when another importation in which he was not involved was taking place.

37. A further complaint that the sentencing judge gave inadequate weight to MI’s involvement in the air cargo importation cannot be sustained. He mentioned on a number of occasions that MI but not the applicant was involved in that importation, and it was a significant aspect of that part of the sentencing remarks in which he directed express attention to issues of parity. In the same context, he noted the discrepancy in the quantities of pseudoephedrine in which the two offenders participated.

38. A discrete complaint was made about the observation by the sentencing judge that the evidence disclosed that the applicant was aware of the air cargo importation. Counsel, however, expressly accepted that the Agreed Facts did so indicate. His submission was:

“There is a nagging doubt that this submission may have influenced his Honour that the agreement reached by the applicant with his co-conspirators was co-extensive with the overall conspiracy, rather than being confined as indicated in the Agreed Facts by which the Crown accepted that the applicant only joined the conspiracy after the air cargo assignment … In this respect, it is contended that knowledge of the conspiracy cannot be equated with participation in that conspiracy.”

39. There is no basis in the sentencing remarks for such a conclusion. The sentencing judge on more than one occasion reiterated that the applicant was not involved in that importation, and it was a foundation for his treatment of the parity issue. Had MI not been involved in that importation, having regard to his inferior position in the organisation, it could have been expected that MI would have been sentenced more leniently than the applicant.

40. On that note, it is appropriate to mention one other matter. The Crown placed considerable reliance upon the circumstance that MI himself had sought leave to appeal against his sentence, also invoking the parity principle. He was granted leave to appeal, but the appeal was dismissed: MI v R [2017] NSWCCA 225. Counsel for the Crown urged that this Court give weight to the findings made by the Court in that decision.

39. I would reject that proposition. The Court considering MI’s case was dealing with the matters before it. Its findings are not evidence in the case of the applicant.

40. None of the specific complaints made by the applicant is made out. Having carefully considered the sentencing judge’s reasoning process, I am satisfied that the balance that he arrived at was justified and correct. He considered, in effect, that the applicant’s superior position in the enterprise balanced MI’s involvement in the air cargo importation.

41. In any event, I am satisfied that no basis has been advanced for finding that the applicant should have been sentenced more leniently than MI.

42. The orders I propose are:

(1)  Leave to appeal granted;

(2)  Appeal dismissed.

45. ROTHMAN J: I agree with Simpson JA.

46. HAMILL J: I agree with the orders proposed by Simpson JA and with her Honour’s reasons for making those orders. I would specifically endorse her Honour’s rejection (at [40]-[41]) of the respondent’s reliance on the decision of this Court in MI v R [2017] NSWCCA 225 (a judgment to which I was a party). The fact that the Court (differently constituted) rejected a parity argument advanced by the co-offender cannot logically inform the Court’s determination of the applicant’s parity ground. Different submissions were made in each case and different considerations arise. Further, the applicant was not represented at the hearing of MI’s application. There is no reason in logic that the Court might not reject a parity ground advanced by one co-offender and then, in a subsequent appeal, accept a parity argument advanced by another co-offender. It might also take a different approach to the facts and evidence, depending on the submissions made in each case.

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Amendments

30 November 2017 - substitute “NSW” with “Cth” in headnote and [1]

Decision last updated: 30 November 2017