Youssif Tawfik v The Queen
[2021] VSCA 289
•21 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0212
| YOUSSIF TAWFIK | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2020 0075; S EAPCR 2020 0117
| BAMBANG SAPUTRA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, McLEISH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 June 2021 |
| DATE OF JUDGMENT: | 21 October 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 289 |
| JUDGMENTS APPEALED FROM: | [2018] VCC 1665 (Judge Chettle) |
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CRIMINAL LAW – Appeal – Application for leave to appeal – Conviction – Conspiracy to import a commercial quantity of a border controlled drug – Whether convictions unreasonable or unable to be supported by evidence – Whether proven beyond reasonable doubt applicants knew substance being imported was a border controlled drug – Whether open to jury to reasonably exclude alternative hypothesis consistent with innocence – Alternative hypothesis not reasonable when considered in conjunction with other evidence – Leave to appeal refused – Criminal Code 1995 (Cth) ss 11.5(1), 301.1(1), Criminal Procedure Act 2009 s 276(1)(a); R v Baden-Clay (2016) 258 CLR 308 applied.
CRIMINAL LAW – Appeal – Application for leave to appeal – Sentence – Manifest excess – Whether relevant sentencing comparators illustrate error in sentencing exercise – Role of current sentencing practices in sentencing exercise – Current sentencing practices informative but not decisive in sentencing exercise – Principle of parity – Whether misinterpretation of intercepted conversation led judge to mischaracterise co-offenders’ relative roles in drug importation – Leave to appeal granted on Tawfik’s ground of manifest excess – Co-applicant Saputra resentenced to avoid creating disparity between sentences – Director of Public Prosecutions (Cth) v Brown (2017) 268 A Crim R 309, R v Yuan [2015] NSWCCA 198, Chan v The Queen [2020] NSWCCA 335, Kuo v The Queen [2018] NSWCCA 270, Director of Public Prosecutions (Cth) v Peng [2014] VSCA 128, McCraw v The Queen [2011] NSWCCA 162, Saab v The Queen [2012] VSCA 165, Nguyen v The Queen (2011) 31 VR 673 considered; Gorman v The Queen [2019] VSCA 128, Collins v The Queen [2015] VSCA 106.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Tawfik) | Mr B Walker SC with Mr P J Smallwood, of counsel | Milides Lawyers |
| For the Applicant (Saputra) | Mr T Game SC with Ms L Hutchinson, of counsel | Stephen Andrianakis & Associates |
| For the Respondent | Mr O P Holdenson QC with Ms K Breckweg, of counsel | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of McLeish and T Forrest JJA (‘the joint judgment’). For the reasons which their Honours give, I too would refuse both applications for leave to appeal against conviction.
I would also allow both applications for leave to appeal against sentence, and resentence the applicants as their Honours propose. I respectfully agree with the reasons and the conclusions in the joint judgment, except that I would express somewhat differently my reasons for upholding the manifest excess ground in the Tawfik application, as follows. (I gratefully adopt their Honours’ summary of the arguments directed at that ground, and their analysis of the comparable cases relied on.)
Complaints of manifest excess dominate the sentence appeal work of this Court. And, almost invariably, comparable cases are relied on to make good such a complaint. In the present case, the ‘relevant sentencing comparators’ are identified as ‘particulars’ of the manifest excess ground.
The contention which comparable cases are deployed to make good is that there is an unjustifiable disparity between the sentence imposed on the appellant and the sentences imposed in those other cases. Because the relevant circumstances of offence and offender are comparable, it is said, the imposition of a heavier sentence on the appellant amounts to unequal — unjust — treatment.
‘Unjustifiable disparity is an infringement of the equal justice norm.’ So said the High Court majority (French CJ, Crennan and Kiefel JJ) in Green v The Queen.[1] Their Honours explained the foundational importance of equal justice, as follows:
‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of law. It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order’. It has been called ‘the starting point of all other liberties’. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law.[2]
[1](2011) 244 CLR 462, 475 [32] (‘Green’).
[2]Ibid 472–3 [28] (emphasis added).
In thus enunciating the norm with great force and clarity, their Honours drew on earlier statements by the Court invoking the principle of equal justice. Of particular significance is their adoption of the following passage from the judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.[3]
[3](2001) 207 CLR 584, 608 [65] (‘Wong’) (emphasis in original). They referred also to the almost identical statement of Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295, 301 (‘Postiglione’).
The Court in Green also drew on the seminal statement of Mason J in Lowe v The Queen, where his Honour had said:
Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[4]
[4](1984) 154 CLR 606, 610–11 (‘Lowe’).
The exposition of the equal justice norm in Green has important implications, both for this case and for sentence appeals generally. First, the Court endorsed the Wong characterisation of equal justice as requiring ‘identity of outcome in cases that are relevantly identical’.[5] The ‘outcome’ referred to is the outcome of the sentencing decision itself, the sentence actually imposed. McHugh J made essentially the same point in Cameron v The Queen, when he said:
Where the facts and circumstances of crimes and the subjective factors of those who commit them are the same, arguably equal justice requires that
there be an identity of, and not different, outcomes in the punishments that they receive. [6]
[5]Green (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ) (emphasis altered).
[6](2002) 209 CLR 339, 353 [45] (emphasis added).
A complaint of ‘unjustifiable disparity between sentences’ is, of course, a complaint about outcomes. The frequency with which this Court hears such complaints in relation to custodial sentences is hardly surprising, given the profound consequences of the loss of liberty. Self-evidently, every month, every day, spent in prison is a matter of great significance to the sentenced person and his/her dependants.
The equal justice question is whether the difference in outcomes can be justified. If it cannot — because, for example, the cases are seen to be relevantly identical — then on the authority of Green equal justice requires that the disparity be rectified. It is thus no answer to a complaint of unjustifiable disparity to say that there was consistency in the application of sentencing principles in the cases under consideration. As Mason J said in Lowe, what is required is ‘consistency in punishment’.[7]
[7](1984) 154 CLR 606, 610.
Nor, in the light of Green, is it an answer to such a complaint to say that no two cases are exactly alike. That is, it might be thought, a self-evident truth.[8] But, as Wong makes clear, the equal justice principle is not concerned with immaterial factual differences (whether between offences or between offenders) but rather with whether cases are ‘different in some relevant respect’ or are, instead, ‘relevantly identical’.[9]
[8]Postiglione (1997) 189 CLR 295, 336 (Kirby J).
[9](2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (emphasis altered).
On the Green formulation, the criterion of relevance is whether the point of similarity or difference is ‘relevant to the scope, purpose and subject-matter of the law’.[10] In sentencing, therefore, a matter will be relevant if (but only if) it has a bearing on the sentencing court’s assessment of the offence and/or of the offender. In the consideration of sentencing disparity, the key points of comparison will be offence gravity; offender role and moral culpability; offender criminal record; and any significant personal circumstances.
[10](2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ).
The second important implication of Green flows from the generality of the terms in which the Court enunciated the equal justice norm. Although Green (like Lowe and Postiglione) was concerned with the parity principle, the Court made clear that that principle was simply a particular application of the equal justice norm to co-offenders, there being obvious comparability of offending.[11] That the norm is of general application follows necessarily from its being, as the Court said, an aspect of the rule of law. But its applicability to the comparison of any two (or more) sentencing outcomes is confirmed by Wong, which was not a parity case. What was said there about ‘identity of outcome’ was, of course, expressed in wholly general terms.[12]
[11]Ibid 462, 473–4 [30].
[12]See also Leeth v The Commonwealth (1993) 174 CLR 455, 502 (Gaudron J).
In short, complaints of unjustifiable disparity are not the exclusive preserve of co-offenders. On the contrary, every offender is entitled to invoke the equal justice norm. And reference to comparable cases is the most common and effective means of doing so. Thus, if an appellant has received a longer sentence than that imposed on another person for ‘relevantly identical’ offending, then — unless the disparity can be justified by material differences in their criminal records or other personal circumstances — equal justice requires that the disparity be corrected.[13]
[13]See Winch v The Queen (2010) 27 VR 658, 663 [24] (Maxwell P and Redlich JA).
In the present case, there is an unjustifiable disparity in outcome between the sentence imposed on Tawfik and those imposed in Director of Public Prosecutions (Cth) v Brown[14] and R v Yuan[15] respectively for drug importation offences of comparable scale and seriousness. As the analysis in the joint judgment reveals, the
relevant similarities are substantial, and the relevant differences insignificant, such that the disparity in sentences cannot be justified. There has been an infringement of the equal justice norm, which must be corrected.
[14][2017] VSCA 162.
[15][2015] NSWCCA 198.
In my view, it is the engagement of the equal justice norm which both justifies and requires this Court’s intervention, rather than some inferred error of principle on the part of the sentencing judge. For the reasons given by Mason J in Lowe, public confidence in the administration of justice is likely to be enhanced if appellate intervention is understood as being necessary to prevent ‘unfairness and unequal treatment’.[16] As Lord Devlin said more than 40 years ago, ‘a sense of injustice is more easily aroused by the apprehension of unequal treatment than by anything else’.[17]
McLEISH JA
[16](1984) 154 CLR 606, 610–11.
[17]Patrick Devlin, The Judge (Oxford University Press, 1979) 85.
T FORREST JA:
On 16 August 2018 a jury found each of Youssif Tawfik and Bambang Saputra (the applicants) guilty of one charge of conspiracy to import a commercial quantity of a border controlled drug (cocaine), contrary to ss 11.5(1)[18] and 307.1(1)[19] of the Criminal Code 1995 (Cth) (‘Criminal Code’).
[18]Offence of conspiracy to commit an offence punishable by 12 or more months’ imprisonment or by a fine of 200 or more penalty units.
[19]Offence of importing or exporting a commercial quantity of border controlled drugs or border controlled plants. The maximum penalty for this offence is imprisonment for life and/or 7,500 penalty units.
The applicants were tried together with Moshey Youkhana, Christopher Peroulis, Vasilios Triantafilopoulos, Mohammed Kaddour, Matthew Massoud and Jing He; all were alleged to be co-conspirators. Youkhana was found guilty of the conspiracy charge but all of the others were acquitted of this charge either by direction (He) or by the jury (Peroulis, Triantafilopoulos, Kaddour and Massoud).
On 11 October 2018 Tawfik was sentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Conspiracy to import a commercial quantity of a border controlled drug | Life | 25 years | - |
| Total effective sentence: | 25 years’ imprisonment | |||
| Non-parole period: | 16 years 9 months | |||
| Pre-sentence detention declared pursuant to s 18(1) of the Sentencing Act 1991: | 232 days | |||
On the same day, Saputra was sentenced as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Conspiracy to import a commercial quantity of a border controlled drug | Life | 18 years | - |
| Total effective sentence: | 18 years’ imprisonment | |||
| Non-parole period: | 12 years | |||
| Pre-sentence detention declared pursuant to s 18(1) of the Sentencing Act 1991: | 113 days | |||
Both applicants seek leave to appeal their convictions and sentences. The grounds of appeal against conviction are as follows:
Tawfik
Ground 1:The verdict was unreasonable or cannot be supported having regard to the evidence.
Particulars:
(a)The evidence did not establish that the applicant was not attempting to import pseudoephedrine; and
(b)The evidence did not prove beyond reasonable doubt that the applicant was attempting to import a border controlled drug.
Saputra
Ground 1:The verdict is unsafe and cannot be supported having regard to the evidence.
Ground 2:The trial miscarried by reason of the erroneous characterisation of both the ‘buyer for 195’ and ‘5–10 million/rip-off’ conversations by the Crown in her closing address and by his Honour’s summing up on the ‘is there pseudo …?’ conversation.
The grounds of appeal against sentence are as follows:
Tawfik
Ground 1:The sentence imposed and the non-parole period fixed were manifestly excessive.
Particulars:
The sentence imposed and the non-parole period fixed were manifestly too long having regard to:
(a)Relevant sentencing comparators, including Director of Public Prosecutions (Cth) v Brown (2017) 268 A Crim R 309 and R v Yuan (2015) 252 A Crim R 422;
(b)The role alleged against the applicant;
(c)The applicant’s subjective circumstances; and
(d)The principle of parsimony.
Saputra
Ground 1:The applicant’s sentence infringes the principle of parity when regard is had to the sentence imposed upon the co-applicant, Tawfik.
Ground 2:The sentence miscarried by reason of his Honour’s erroneous characterisation of the ‘5–10 million/rip-off’ conversation.
The primary ground advanced by both applicants, although expressed in slightly different ways, is that the verdict is unreasonable and cannot be supported by the evidence. Section 276(1)(a) of the Criminal Procedure Act 2009 provides that we must allow an appeal against conviction if the applicant satisfies the Court that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
It is undisputed on this appeal that, for each applicant to succeed on this ground, he must demonstrate that the verdict of guilty was not reasonably open to the jury. This requirement has been expressed in various ways,[20] but it is accepted between the parties that all of these expressions amount to the same thing. In the context of a circumstantial case, such as the present case, the test has been expressed in this way: was it open to the jury to reject competing and reasonable hypotheses consistent with innocence?[21] If it was not so open, it follows that the jury were obliged to experience a reasonable doubt.
[20]See, eg, M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); R v Hillier (2007) 228 CLR 618, 637 [46] (Gummow, Hayne and Crennan JJ) (‘Hillier’); R v Klamo (2008) 18 VR 644, 653 [38], 654 [39] (Maxwell P) (‘Klamo’); SKA v The Queen (2013) 243 CLR 400, 408 [21] (French CJ, Gummow and Kiefel JJ) (‘SKA’); Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J); Chidiac v The Queen (1991) 171 CLR 432, 453 (Dawson J); R v Baden-Clay (2016) 258 CLR 308, 323–4 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (‘Baden-Clay’).
[21]Baden-Clay (2016) 258 CLR 308, 323–4 [46] (French CJ, Kiefel, Bell, Keane and Gordon JJ), quoting Barca v The Queen (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ) (‘Barca’), Peacock v The King (1911) 13 CLR 619, 634 (Griffiths CJ) (‘Peacock’), Plomp v The Queen (1963) 110 CLR 234, 252 (Menzies J) (‘Plomp’).
In this case, both applicants advanced, at trial and before this Court, this type of alternative hypothesis. In short, the applicants contended that on all the evidence the jury could not reasonably exclude the hypothesis that the applicants had conspired to import a commercial quantity of a border controlled precursor[22] (namely pseudoephedrine) as opposed to a border controlled drug, in this case cocaine.
[22]Contrary to the Criminal Code s 307.11. The maximum penalty for this offence is 25 years’ imprisonment and/or 5,000 penalty units.
It will be apparent that the issues under this ground, as it concerns both applicants, are quite narrow. It is convenient to set out a summary of the evidence that constituted the prosecution case.
Factual background
In November 2016 the Kaiyo Maru (‘the KM8’) sailed from Ningke port, China, bound for the southeast coast of Australia. The KM8 was a converted fishing vessel, 49 metres in length, and modified to store extra fuel so as to increase its range to facilitate longer voyages.
Secreted in the KM8 was a large quantity of high-quality cocaine.
The KM8 sailed south along the west coast of Australia and then east towards Victoria and Tasmania. By early December it took up a position approximately 300 nautical miles (556 kilometres) south of Port Fairy. Port Fairy is a fashionable fishing village at the western end of what is known as the Shipwreck Coast. The KM8 ‘loitered’ in that position for some days. Its crew consisted of the captain, Jing He, eight other Chinese men and a Singaporean man.
In Victoria, various activities had been undertaken in the lead-up to the ship’s arrival. These were said by the prosecution at trial to be overt acts carried out by various members of the conspiracy. Youkhana was a director of a company called Boat Tech Pty Ltd (‘Boat Tech’). His role in the drug importation enterprise was said to be to procure a vessel capable of effecting a rendezvous with the KM8 at its position in the Southern Ocean. He purchased, ultimately, three boats for this purpose, and regularly met with Tawfik.
Tawfik was responsible for selecting Port Fairy as the launching point for the rendezvous voyage.
In October 2016 a boat called the Shark Cat was worked on by Boat Tech at the direction of Youkhana to prepare it for long-range sea travel. Youkhana had engaged a man called Hudaverdi to carry out these works, however, by mid-October Hudaverdi became ill and could not complete the work. Another boat was sought and the Lucky Strike, a ‘Formula’ brand twin-engine boat 25 feet long from stem to stern, was purchased. It was purchased from a Mr Zammit, including trailer and a Ford tow vehicle, for $185,000. This purchase was negotiated by Peroulis after a test run on 18 October.
Youkhana and Peroulis undertook a number of acts to effect the purchase of the Lucky Strike. On 26 October Peroulis, Triantafilopoulos and Mr Zammit attended at VicRoads offices in Broadmeadows and completed the transfer of ownership into Triantafilopoulos’s name. Arrangements were made for various people to attend at Port Fairy on 27 October 2016 in order to sea test the Lucky Strike. Tawfik travelled alone. Youkhana, Peroulis and Triantafilopoulos occupied the newly purchased tow vehicle with the trailer carrying the Lucky Strike attached.
At 2:05 am on 28 October the Lucky Strike arrived at Port Fairy. The sea test took some hours and, at 3:15 pm, the boat returned to Port Fairy, with Youkhana, Peroulis and Triantafilopoulos aboard. Tawfik arrived as the Lucky Strike was being loaded onto its trailer. The men talked. Tawfik returned in his car to Melbourne and the Lucky Strike was returned also to Melbourne.
As already mentioned, the Shark Cat was the initial vessel selected for the rendezvous purpose, but Mr Hudaverdi had taken ill and had been unable to complete the necessary conversion works. These works were completed sufficiently to sea test the Shark Cat on 16 November. This occurred that day. The Shark Cat was registered on 18 November in the name of Jamal Patto.
Listening devices had been secreted by Australian Federal Police (‘AFP’) members in various strategic locations. We shall examine the content of certain recorded conversations later in these reasons,[23] however, it is sufficient at this stage to refer to certain preparations, undertaken by Tawfik, and recorded on a listening device concealed in his Toyota Hilux (the ‘Hilux’).
[23]While there were hundreds of relevant conversations recorded by the AFP in the course of the investigation, we have excerpted only some, particularly important, conversations in these reasons.
Tawfik, who on occasions referred to himself as ‘Mark’, was recorded on 18 November 2016 purchasing equipment for a forthcoming sea voyage. He enquired about a bracket for his ultra-high frequency (‘UHF’) radio, which radio was said by the prosecution to enable contact at sea with the KM8. He also attempted to purchase fuel storage tanks, said to be necessary to increase the travel range of whichever vessel was chosen for the rendezvous.
On 29 October 2016 Youkhana took the Shark Cat out onto Port Phillip Bay. At St Kilda Marina multiple cards were used to purchase 1,222 litres of fuel, which were pumped into the Shark Cat. Perhaps unsurprisingly, the Shark Cat sat very low in the water after taking this quantity of fuel and it was deemed unfit for purpose.
Attempt no. 1
By 1 December, the KM8 had been circling in the Southern Ocean for several days. It remained in international waters about 300 nautical miles south of Port Fairy. At about 7:30 am that day Tawfik and Youkhana met with Peroulis and Triantafilopoulos at Funky Customs in Campbellfield, a suburb of Melbourne, where the Lucky Strike had been stored. Tawfik left in the Hilux. Youkhana, Peroulis and Triantafilopoulos (and an unknown man) then left in the tow vehicle, towing the Lucky Strike. They were heading towards Port Fairy when disaster struck. As the tow vehicle-trailer combination neared Colac travelling at about 100 kilometres per hour, the Lucky Strike’s luck ran out. The vessel came off the trailer, slid onto the roadway and then onto a grass verge to one side of the Princes Highway.
Youkhana drove to Super Cheap Auto in Colac to purchase some fibreglass repair tape. The Lucky Strike was reloaded onto the trailer, secured fast, and the journey to Port Fairy resumed. Numerous discussions occurred at Port Fairy, some of which were recorded. A conversation was recorded in Tawfik’s vehicle, between him and an unknown man, in which (on the Crown case) the unknown man asked Tawfik to contact China and advise that the Lucky Strike was running behind schedule. The relevant extract from the conversation was as follows:
UNKNOWN MALE: … message. Fuckin’ …
MR TAWFIK: Yeah, fuckin’ oath … someone else. Just tell them to slow it down. Well, just say we’re running two hours late. But he’ll know … fuckin’ we’ll know how far and all that shit. They’d know how long it’d take to get there roughly …
Within that conversation, it was also alleged, the men talked about how close the Lucky Strike would need to get to the KM8 before radio contact could be established. There seemed to be concern that ocean conditions were rough. While this conversation was occurring, hasty repairs were being undertaken on the Lucky Strike.
The repairs were seen to be unsuccessful and the Lucky Strike was abandoned as the rendezvous vessel.
The KM8 continued in its holding pattern in the Southern Ocean. Peroulis and Triantafilopoulos departed for Melbourne and returned the Lucky Strike to Funky Customs.
Attempt no. 2
By now it had become a matter of urgency to purchase another rendezvous vessel; the Lucky Strike was damaged and the Shark Cat was unfit for purpose. The Perceive was a charter vessel sailing out of Port Fairy. On 2 December 2016, one day after the Lucky Strike’s Colac accident, Peroulis called the owner of the Perceive, and, using a false name (variously ‘John’, ‘Johnny’ or ‘Johnno’), questioned the seller on the boat’s fuel capacity and travel range:
[PEROULIS]: All right, mate. Um my name is Johnny, how are you today?
[MALE]:Yeah, all right.
[PEROULIS]: I’m callin’ about your boat here for sale.
[MALE]:Yeah. …(indistinct)…
[PEROULIS]: What’s the story?
[MALE]:Had another bloke there ringing me this mornin’.
[PEROULIS]: Yeah, that’s the same bloke, that’s my cousin.
[MALE]:Oh, righto.
[…]
[PEROULIS]: What can you tell me about her?
[MALE]:What do you want to know?
[PEROULIS]: Fuel consumption, reliability.
[MALE]:Well, it’s only done four thousand two hundred odd hours at the moment.
[PEROULIS]: Yeah.
[MALE]:[…] four hundred and thirty horsepower um ---
[PEROULIS]: What’s the fuel consumption of …(indistinct)…
[MALE]:Oh, roughly about forty an hour at twenty-two hundred revs. Um, under that, like, if you’re not doin’ that, um, speed all the time, well, you’re probably back to twenty, yeah.
[PEROULIS]: And how many knots would you be pushing at twenty-two hundred revs?
[MALE]:Ah, thirteen, fourteen. Can do twenty-five, twenty-six hundred revs but I don’t run it over twenty-two, that’s all just the cruising speed.
[PEROULIS]: Yeah.
[MALE]:It — it’ll probably do sixteen knots if you open her up a bit more, fifteen, sixteen, yeah. It’s um, it’s heavy construction, like, it’s, um, fibreglass, heavy fibreglass.
[PEROULIS]: Yeah.
[MALE]:[…] it’s the older model type, um, ah ---
[PEROULIS]: How thick do you reckon the fibreglass on the boat is?
[…]
[MALE]:Oh, it’s fairly thick, the, um — got pretty ---
[PEROULIS]: Ten ml ---
[MALE]:Got pretty big ribs and that in it. You know, it — you know, big ribs for a boat that size, yeah.
[PEROULIS]: The floor, the…(indistinct)…, is it all okay?
[MALE]:Yeah, yeah, it’s all, um, it’s, um, no problem there or anything, it’s, ah ---
[PEROULIS]: She’s a self-cleaning hull from what I see from the pictures?
[…]
[MALE]:Yeah, yeah, yeah.
[…]
[PEROULIS]: How far can you take it out from where you are?
[MALE]:Where I go to the shelf, thirty mile.
[PEROULIS]: Thirty mile?
[MALE]:Yeah.
[PEROULIS]: What’s the biggest waves if you’re over there?
[MALE]:What’s the biggest waves?
[PEROULIS]: Yeah.
[MALE]:I dunno ---
[PEROULIS]: Three, four, five, six, seven?
[MALE]:What are you talkin’ swell or you’re talkin’, um, slop, like ---
[PEROULIS]: Swell.
[MALE]:Swell? Oh, it’ll fuckin’ go over anything, like, that doesn’t make any difference the size of the swell.
[PEROULIS]: Right. The other one?
[MALE]:The slop?
[PEROULIS]: Yeah.
[MALE]:Oh, it’d work in twenty, twenty-five knots if you want it. All depends what the — she’s handled that all right.
[PEROULIS]: All right. So say, um, I want to cruise it back home to Tassie ---
[MALE]:Yeah.
[PEROULIS]: --- will she take it?
[MALE]:She what?
[PEROULIS]: Will she be able to make it?
[MALE]:Oh, shit, yeah. Yeah. Um, I change the oil and everything every two hundred hours on it and I change all the filters and I got a book there with all the work I’ve done on it. The boat’s accredited. Ah, it’s just been surveyed. Um, ah, what else can I tell you about it? Just been on the slip, I’ve just repainted the bottom and put new zinc blocks on it, um, all that sort of stuff.
[PEROULIS]: If I had ten customers on board, would she handle all right or would she be very slow?
[…]
[MALE]:It’ll — it’ll still do fourteen knots, thirteen, fourteen knots.
[PEROULIS]: No problems?
[MALE]:It could — yeah. It’s got, um, it’s — it’s, ah, surveyed for twenty.
[PEROULIS]: Right. So if I hit a five metre swell, she’ll be okay, yeah?
[MALE]:Yeah, it should be. Like, out in — just goin’ up and down the swell?
[PEROULIS]: Yeah.
[MALE]:Oh, right. Yeah, that won’t — that won’t worry her at all. So, um ---
[PEROULIS]: And you reckon she’ll make it from where you are to Tassie no problems?
[MALE]:Oh, shit, no problems at all, yeah.
[PEROULIS]: Will have enough fuel to take her there?
Peroulis then offered to purchase the Perceive and to bring ‘a bag full of cash’ to effect the sale:
[PEROULIS]: Now, what’s the best price you can do on that boat?
[MALE]:Hundred and ten. It was a hundred and twenty. That’s — that’s got all the, ah, it’s got two life rafts on it.
[…]
[PEROULIS]: Mate, I’ll bring — I’ll bring a little briefcase with a few greens in there, what do you reckon we do something — better deal with that?
[…]
[PEROULIS]: I’ll bring a bag full of cash, how much can you do better, I’m saying.
Over the course of several more phone conversations, Peroulis eventually agreed to purchase the boat for $110,000 in cash, in the face of the seller’s initial reluctance to accept that form of payment.
At about 7:00 am on 3 December, Peroulis and Triantafilopoulos travelled to Port Fairy to purchase the Perceive. Youkhana travelled down to Port Fairy with Massoud in Tawfik’s Hilux. Among other things, they discussed weather conditions, the earlier attempt, the fact that people had been directed not to take mobile phones on board for the rendezvous voyage, and the purchase of two large Eskies, which the prosecution said were to be used to conceal the cocaine upon its introduction onto the Australian mainland at Port Fairy. They ultimately purchased the two large Eskies at Bunnings Warehouse in Colac at 11:00 am on 3 December.
Du Nguyen, an associate of Tawfik and Saputra, was at that time arranging to rent, for one week, two waterproof satellite phones, which he told the hirer were to be used for fishing. In a recorded conversation later on 3 December, Tawfik said to Massoud and Youkhana that he was on his way to get the satellite phones that had been rented by Nguyen.
At around 12:45 pm on 3 December, Peroulis and Triantafilopoulos boarded the Perceive with its owner. They renegotiated its purchase for $100,000. At around 3:30 pm that day, Tawfik arrived at Port Fairy. He met with Youkhana and Massoud in the Hilux and, in a recorded conversation, they discussed satellite phones. Tawfik gave Youkhana a satellite phone to take onto the Perceive. Tawfik kept the other. Tawfik also stated in that recorded conversation that he would message those on the Perceive. The prosecution alleged that that was a reference to Blackberry encrypted devices.
Tawfik said words to the effect that he could send a message to the Chinese through his encrypted Blackberry who would then communicate with the KM8 crew via the satellite phone:
MR TAWFIK: Another thing is if I don’t answer or anything you can send me a message sayin, ‘eight hours away’ ‘cause I can message them and they can call their boat, do you get me?
Youkhana, Massoud and Tawfik then drove to the harbour at Port Fairy. They were joined by Peroulis and Triantafilopoulos. A conversation was recorded in which the KM8’s location coordinates were discussed. A piece of paper was found subsequently at Peroulis’s house with these coordinates written on it.
The Perceive set off from Port Fairy, crewed by Youkhana, Peroulis and Triantafilopoulos, at 7:45 pm. At about 8:30 pm Tawfik and Massoud had a recorded conversation in the Hilux. The content of the exchange suggests that they were watching the Perceive travel out to sea:
MR MASSOUD: Is that them out there?
MR TAWFIK: Where? Point it out, point em out. Yeah.
MR MASSOUD: That’s them huh.
MR TAWFIK: Yeah.
MR MASSOUD: Mate if he’s panicking now he’s gonna fuckin’ die out there. He’s gonna jump off the boat bro, he’s going …
MR TAWFIK: Nah they might make Shamasha turn back.
MR MASSOUD: … nobody turning back bro … whatever bro (Blackberry message tone) it’s out of our hands now cuz.
[…]
MR MASSOUD: Oh that’s a massive wave, bro, look at that.
MR TAWFIK: …
MR MASSOUD: That’s gangster shit …
Tawfik also visited a number of websites on his mobile phone to do with satellite and communication sites.
Early on 4 December, the KM8 left its holding pattern and picked up speed to travel between eight and 11 knots towards a position in line with the Perceive’s direction of travel. At about that time the Perceive had travelled approximately 132 kilometres south from Port Fairy.
The seas then became increasingly rough. Peroulis became seasick. The Perceive performed an about-turn and headed north back towards Port Fairy, its rendezvous with the KM8 apparently abandoned.
Later that day the Perceive arrived back in Port Fairy. The crew returned to Melbourne.
Attempt no. 3
On 5 December at around 11:52 am Tawfik and Youkhana met and drove to Savages Wharf in Williamstown, and then to Campbellfield. During the trip, in the Hilux, a recorded conversation took place to which the prosecution attached particular significance. We shall call it the ‘195’ conversation.[24] Within that conversation, the following exchange was recorded:
MR YOUKHANA: I know … they — they’ll give us something. What they want?
MR TAWFIK: They wanna buy it. They just — they reckon they got a buyer straight away for 195, all of them. They say ‘match it, take it … or take our share from that.’ I go ‘fuck off’ … as long as someone’s giving me my money, there’s no harm in what they’re doin’, probably, our share, I couldn’t sell this off, I’m holdin’ ‘em, till the …
MR YOUKHANA: Yeah.
MR TAWFIK: … they got them. I go ‘we’re not doing this risking, in case he gets … don’t give a fuck …
[24]This conversation was referred to as the ‘buyer for 195’ conversation in Saputra’s written case: see above [21].
The prosecution submitted to the jury that in this conversation Tawfik was discussing selling the cocaine for $195,000 a kilogram. Evidence was led at trial that the wholesale price of a kilogram of cocaine at the time was between $180,000 and $240,000.
At about 6:30 pm on 5 December Tawfik and Youkhana drove to Funky Customs. While there, Tawfik told Youkhana that he had been in touch with China. Youkhana seemed upset that Peroulis and Triantafilopoulos had pulled out of the next attempt to rendezvous with the KM8:
MR TAWFIK: Do you see that message there … I don’t care who he tells … these cunts awake in China now. He’s saying bro we all checked the weather … the weather’s good, what’s wrong with your captain? Come back and do your job they saying. And their boat is saying the weather’s normal. And they’re checking on their chart.
MR YOUKHANA: Yeah.
[…]
MR TAWFIK: What’s wrong?
MR YOUKHANA: Nothing --- him, it was not me. I’m, I’m ---
MR TAWFIK: What’s upset?
MR YOUKHANA: Oh, nuh, I’m just — yeah, than I — why they not coming the cunts.
MR TAWFIK: … Please …
MR YOUKHANA: Yeah.
MR TAWFIK: You’re looking stressed, but.
MR YOUKHANA: ‘Cause he fucking’ knows the deal, man. They … ‘We’ll go anywhere, we’ll — we’ll — fuckin’ anything.’ One’s wife now says, ‘Oh, you can’t … My wife asking questions’, fuck.
MR TAWFIK: He’s … the other day. I’ll give ‘em five each, if they don’t turn back, that’s fair, for their effort.
MR YOUKHANA: Yeah … if the weather shit we come back.
…
MR TAWFIK: I’m gunna go — that’s … hes gunna get into that water and they won’t come back. They got anxiety from yesterday.
MR YOUKHANA: They were dead.
…
MR YOUKHANA: Ah, it’s killing me.
MR TAWFIK: It’s killing me too, man. I went on — I — I went to the pub. I had [p]arma and pot, like I said.
MR YOUKHANA: Mm.
MR TAWFIK: And that — on my second one and I start getting messages from overseas like they’re sending to me. I go, ‘What the fuck?’ And then bro — it said, ‘Bro, check --- check the weather, man’[.]
The ‘pseudo’ conversations
On 5 December at 8:04 pm Tawfik and Youkhana were recorded in conversation. The parties placed alternative interpretations on what was actually said, and an alternative transcript was put before the jury on behalf of Tawfik. The two transcripts are identical in relation to the first part of the exchange, as follows:
MR TAWFIK: Well … safety but I still don’t go kill ourself. This trip of a life time — fuck.
MR YOUKHANA: Mm.
MR TAWFIK: Gotta drink …
MR YOUKHANA: Man, it’d be … without a car accident, man. They — mother-fuckin’ P-I-M-P ---
MR TAWFIK: We’re the best, mate …
MR YOUKHANA: …
MR TAWFIK: … gunna get kicked out of school tonight mate, yeah I reckon. On a — after a bad buzz today --- on a bad buzz.
MR YOUKHANA: Look for the …
At this stage of the exchange, however, the transcripts diverge. The defence’s preferred transcription records Mr Tawfik saying, at this point:
MR TAWFIK: And we won’t even have pseudo, just kicked out …
This reference to ‘pseudo’ was not in the prosecution transcript,[25] however, when the recording was played in court Detective Senior Constable Sward agreed he heard ‘pseudo’. This conversation, which we will refer to as the ‘We won’t even have pseudo’ conversation, was ruled to be evidence in Tawfik’s case but not in the case against Saputra.
[25]The prosecution transcript records this statement as largely inaudible, reading only, ‘And won’t even how …’
At 11:35 am on 6 December at Funky Customs, Saputra and Tawfik were recorded in conversation. Alternative interpretations were again advanced of the actual words spoken and thus alternative transcripts were again placed before the jury. While the prosecution transcript in this case also recorded a reference to ‘pseudo’, it omitted or recorded as inaudible some words which, the defence contended, could in fact be heard in the recording and disclosed a belief on the applicants’ part that the KM8 contained pseudoephedrine. The defence transcript reads as follows, with material not included in the prosecution transcript emphasised:
MR TAWFIK: It’s sitting there … so trying to fix a six-month job — a one and a half, two-month job, fix it up, they’re trying to fix it in less than 24 hours and it’s not gunna be right, they’re gunna put — have it in the water tomorrow, it’s gunna sink bro … put it in the water, gunna wreck the fuckin’ expensive boat. I dunno what else to say. We’re not lying. Is there pseudo at the moment?
MR SAPUTRA: Nothing at the minute man. Everyone waiting for all this shipment/shit. I think these guys are pretty big man.
MR TAWFIK: Yeah, they are bro. Remember.
MR SAPUTRA: (inaudible) everyone’s waiting for stuff, remember my mate he actually offered the best pseudo (inaudible).
MR TAWFIK: Then where is it?
MR SAPUTRA: Huh?
MR TAWFIK: Ask him where is it then … Ask him where is it then.
MR SAPUTRA: Who?
MR TAWFIK: Your mate.
MR SAPUTRA: My mate? He said next week which is fucken’ he won’t get it any more, cos I know it’s ours.
MR TAWFIK: Ask, ask, maybe someone’s gettin’ a shipment.
MR SAPUTRA: I will, he’ll, no, these guys will give it to me anyway it’s mine. This guy, this is another crew, do you get what I mean? This is different crew.
This conversation was evidence in both Tawfik’s case and Saputra’s case. We will refer to it as the ‘Is there pseudo’ conversation.
Just prior to that conversation, on 6 December at about 11:04 am, Saputra’s voice had been captured on a listening device for the first relevant time. At Funky Customs he converses with Tawfik about the challenges and stress that come with organising this kind of venture, and about Tawfik’s preparedness to explain those issues to the overseas interests:
MR TAWFIK: … after this I’m taking these days off … I’ve been stuck in this cunt’s face. We were about to pull out but lucky these cunts are sick cunts.
MR SAPUTRA: Flat out.
MR TAWFIK: Pull out, bro, ‘cause I’m telling this cunt ‘Go now, go do this.’ But these cunts are on no sleep so we’re all punching on — not punching on, they’re listening but they’re actually — we done it good, bro.
MR SAPUTRA: I know you done it good.
MR TAWFIK: … saving the fuckin’ boat. I’ll show you where everything that happened on the way there. We’ll go for a drive bro, reminisce, I kicked on and all that but I’ll do it again. So you’re gunna look at the boat and think there’s nothing wrong with it. It takes on water, bro. Moshey is gunna say the same thing but you don’t believe him. I’m not saying this to cancel a job, I want this boat for the job. Do you get me?
MR SAPUTRA: I got what you mean. Trust me, like I got ---
MR TAWFIK: Like, definitely — what I said to this guy — I’m not gunna buckle in a desperate situation … do you get me? And that’s the truth, that’s the bottom line, do you get me? That’s what I’m here for. Do you get what I mean?
MR SAPUTRA: Yeah.
MR TAWFIK: Everyone’s down, I get it, but what’s down got to do with — like, not making it there.
MR SAPUTRA: Shit, yeah, I know, fuck.
MR TAWFIK: But don’t stress, I’ve — ‘cause I’ve done all the stressing, man. I’m not sitting here comfortable now but just …
MR SAPUTRA: The worst, yeah.
MR TAWFIK: Like, the land part — this part of the job ---
MR SAPUTRA: Yeah, I know.
MR TAWFIK: --- the pressure on. It’s very stressful, man, and I’ve already analysed everything so pretend you’re me and it is what it is. Do you get me?
MR SAPUTRA: Yeah.
MR TAWFIK: Any other day of the week when you’re press (sic) and you received that much. You personally? No, bro, so don’t go putting your life on that risk. Do you get me?
MR SAPUTRA: Mm.
MR TAWFIK: Just ‘cause these guys are fuckin’ — we done our best, bro. We had a fuckin’ plan. We done everything. Mother nature, bro. Do you get me?
MR SAPUTRA: Mm.
MR TAWFIK: I’m not saying it in a happy way but I dunno what other way to say it.
MR SAPUTRA: …
MR TAWFIK: And I’m not gunna … like, I’ll take you for the drive, we’ll go see everything. That’s about it, man … before you come down. We’ll see him now, right, this guy. I just calmed him down on the road. Just relax, man … he’s heartbroken this guy, he was heartbroken for days, man and I thought he was gunna … every day, mate, and then he’s fuckin’ tired, bro. He hasn’t slept, bro. Every time — every night we’re going, it’s like, it’s never gunna happen. Every time we came back — it’s been, like, six days now, yeah?
MR SAPUTRA: Yeah.
MR TAWFIK: And then every night, I go, ‘Fuck, it’s finished, I cancelled it,’ yeah, and in the morning I messaged him again, bro. I found, ‘We can do it.’ Somehow, I dunno. It was a bit up and down every day, yeah?
MR SAPUTRA: That’s what I mean it’s a bit up and down.
MR TAWFIK: And then he’s like, ‘Bro, you know me, man, just 6 am I’m here,’ and he’s like, ‘any time.’ Every day he’s been saying the same thing. Now, stop asking me, so just hurry up. If the weather is good we’re going … these fuckin’ cunts … the captain’s out of the picture today man.
MR SAPUTRA: Oliver? The main ---
MR TAWFIK: The main one … bro.
[…]
MR TAWFIK: … do you know what I mean … they just wait for us … they’re not gunna understand it, bro. I’m telling you that now, man. Not me, I’m not waiting for this first … in our situation to put pressure on us and we try working under pressure. It’s not how we work, bro. Do you get me?
MR SAPUTRA: Yeah.
MR TAWFIK: We’re not — we’re not this guy’s puppets, bro. Do you get me? Like, imagine if our — it was our money over there, yeah, that was the situation, man. We’d probably most likely let it go, yeah? Like, it is what it is, think of it like that. Do you get me?
MR SAPUTRA: Yeah.
MR TAWFIK: … got an accomplice to be doing that … I’d love to see them do that, man, like, we’re not puppets, we’re men.
MR SAPUTRA: Yeah.
MR TAWFIK: I’m ready to do whatever but I — I know you’re coming with this pressure in your head and I’m putting this pressure every single day but there’s — we still know what we’re doing, bro … do you get me?
MR SAPUTRA: Yeah.
MR TAWFIK: Just ‘cause someone’s telling us to do this, all right? If the — if the conditions were right, we’d be doing it. Do you get me?
MR SAPUTRA: Yeah.
MR TAWFIK: … to the dollar bro.
The men left Funky Customs. At 12:59 pm on 6 December Tawfik was recorded saying to Saputra that he had ‘soldiers here ready to go’, and he referred to his ‘captain’:
MR TAWFIK: We’re not bitching bro, we’re just being realistic. My captain’s going to be out there, bro. I didn’t — did you get … but I’ve had other … doing the job on the day at the last minute and they say what my captain saying and no one is going to risk their life unless they’re the fuckin’ retards from fuckin’ China. You hear me?
MR SAPUTRA: Yeah.
MR TAWFIK: Like, no, they know — they know what’s coming. Do you hear me? You see, I told you the … that according to weather we can’t just freestyle it. Do you hear me? The ocean is different … I’ve got soldiers here ready to go but I know you came down from Sydney to come here.
MR SAPUTRA: Yeah.
MR TAWFIK: I’ve got soldiers here. I’m ready to go, bro, and don’t give a fuck about the weather. I’m the one that’s stopping it. Do ya know what I mean? Like, no one’s bitching it bro.
In a conversation recorded at 1:22 pm, Tawfik further discussed how he had engaged ‘his’ captain, and also referred to ‘a couple of bricks’:[26]
[26]We will refer to this conversation as the ‘5–10 million/couple of bricks’ conversation. This conversation is referred to as the ‘5–10 million/rip-off’ conversation in Saputra’s written cases: see above [21] and below [162].
MR TAWFIK: Guess who’s our captain?
MR SAPUTRA: Huh?
MR TAWFIK: …
MR SAPUTRA: … found a captain.
MR TAWFIK: … I can’t think of another captain will still go, yeah. Do you get me?
MR SAPUTRA: Yeah.
MR TAWFIK: Whether they make it back … it’s up to their call, you get me, not our call after that, you get me? They can judge it themselves.
MR TAWFIK: … we’re out sourcing you’re here to do your job and get the fuck out of our life. You don’t know any of us, you get me?
MR SAPUTRA: Yeah, yeah.
MR TAWFIK: And I’ll never use ‘em again, it’s a desperate situation.
…
MR TAWFIK: I’ve up[ped] the pay.
MR SAPUTRA: …
MR TAWFIK: … I just want it done. I just … bro
MR SAPUTRA: … 3 mil …
MR TAWFIK: … 2 and a half … but drivers and double that, you know … I’ll give em the last 200k …
MR SAPUTRA: … said 100 K extra they’ll pay …
MR TAWFIK: He’s already paid 1.9 mil for the plane drivers, you get me?
MR SAPUTRA: We’ll talk about it …
MR TAWFIK: … there’s no captains, mate, but we’ll see what he says. Do you get me? We’ll see what they say. It’s just we were a bit with the … capatain (sic) do you get me … if I get …
MR SAPUTRA: …
MR TAWFIK: His mate — his guy said he’ll find somebody to rip that way we take five, ten million each.
MR SAPUTRA: Did what? You what?
MR TAWFIK: … I’ll find someone who … the rip, I’ll find someone ‘cause we can do anyone with 10 million, do you get me? I go, ‘Yeah, yeah, whatever.’
…
MR TAWFIK: Oh, yeah, he goes — he goes — he goes to me, ‘Hey what kind of boat is it, I might have a captain’ I go ’12 meter fishing boat, inboard diesel engine, cruising speed 13 to 15 knots, 18 hour trip one way, 18 hour back, a crew ready to go.’ That’s why I’m saying to him, do you get me, but I honestly can’t do a rip bro I’ll pay him two hundred and I’ll chop you out for doing nothing a couple of hundred K or I’ll give you a couple of bricks, up to you. Just make sure he’s experienced and solid and we’re ready … [laughing] true? They never asked me another question … a very good mate of mine, what sort of model and how … we could rip ‘em, bro.
MR SAPUTRA: …
MR TAWFIK: I know you can work it out.
MR SAPUTRA: What?
MR TAWFIK: Like, we can rip em, bro. Yeah, make sure you can work it out.
MR SAPUTRA: No, way, man …
At about 5:00 pm on 6 December there was a discussion recorded between Tawfik and Saputra in which Tawfik read out to Saputra a Blackberry message that he, Tawfik, had sent to the Chinese syndicate, lamenting the bad weather, and stating that another attempt should not be made:
MR TAWFIK: … I go ‘Ultimately when people have spent big bucks on these boats and planning and organisation, we are as devastated as you as we planned this thoroughly and didn’t foresee any of this as a …’ Yeah? … that’s what they want to see, but, do you get me? We are the …
At about 9:00 pm on 6 December, Kaddour, Youkhana and another man set off for Port Fairy.
At about 9:20 pm a further conversation was recorded between Tawfik and Saputra,[27] who were travelling in the Hilux towards Port Fairy:
[27]We will refer to this conversation as the ‘nine bags’ conversation.
MR SAPUTRA: … this (sic) cunts just chuck it, bro, every fuckin’ bag, they don’t give a fuck … it all, bro.
MR TAWFIK Happy … just out there … gotta make sure we don’t get robbed.
MR SAPUTRA: So nine bags.
MR TAWFIK: But how many’s in each? See, I don’t know exactly ---
MR SAPUTRA: 25, the last few …
MR TAWFIK: ‘Cause his mate said, ‘You’ll need to count it if they don’t know exactly how much is there.’
MR SAPUTRA: They — they said nine bags. One bag is 24, all of them — the rest is 25’s …
MR TAWFIK: … actually know.
MR SAPUTRA: Huh?
MR TAWFIK: I don’t think they actually know. His mate said clearly in the — here. He’s like, ‘They don’t know how much is in there.’
MR SAPUTRA: Yeah. There is — they — they —they don’t really know how much exactly. But they’re — that’s what they — they’re finding out man.
MR TAWFIK: …
MR SAPUTRA: That’s what they’re looking at, 184. If it’s less then we can’t take any of it, if it’s over, we take some. You get what I mean?
MR TAWFIK: Yeah, yeah.
MR SAPUTRA: Huh, if there’s 190 ---
[MR TAWFIK]: Yeah — yuh, yuh.
MR SAPUTRA: We take it but if it’s less than 190 ---
[MR TAWFIK]: …
MR TAWFIK: Yeah, right. Nuh, this …
MR SAPUTRA: Yeah. If — if it’s — if it’s more than 184 we’ll take it, but if it’s less than 184 we can’t take it.
A further conversation occurred at about 11:00 pm between Tawfik and Saputra wherein they appear to joke about how rough it is ‘out there’, and that the crew might ‘end up going to China’. The prosecution submitted that this was a reference to the crew being compelled by the rough seas to go in the KM8 on its journey back to China.
On 7 December at about 12:30 am Youkhana, Kaddour and another man met with Saputra and Tawfik. Work began on the Perceive. LED lights were installed and various bags were taken aboard. Tawfik and Saputra returned to the Hilux where, in a recorded conversation at 1:17 am, they discussed various numbers, including ’41.1’ and ‘140.3’. Mr Tawfik was recorded saying, ’41.1 … And 140.3. That’s what we confirmed …’. The prosecution case was that these were the target coordinates for the rendezvous between the KM8 and the Perceive.
At 1:18 am on 7 December Youkhana, Kaddour and another man boarded the Perceive. Tawfik and Saputra departed the marina in the Hilux. At 1:55 am Tawfik read out a message. The prosecution alleged that message was sent to Youkhana on the Perceive. The message read:
Bro, if you’re worried about fuel, they have some on the big boat they can pass you when you arrive as they boarded the fuel boat to start coming down on their way back to Asia so they can spare some. And if at all, any concerns about weather on the way back just camp there, bro. And I’ll make sure it’s all fine that end if you take whatever for yourself … you’re a fuckin’ champion, man.
The Perceive did not need additional fuel. At 2:05 am it failed to negotiate the harbour exit and ran aground on rocks. Youkhana, Kaddour and the other men abandoned ship. Tawfik and Saputra were in the Hilux. We reproduce part of their conversation:
MR TAWFIK: There’s rocks underneath on the right. It’s high tide over here but it’s low tide — you can’t see at night, bro. You’ve got to know where the reef is … just rocks hanging … ‘come back. We need help.’
MR TAWFIK: ‘Come back. We need help.’
MR SAPUTRA: …
MR TAWFIK: They’re stuck.
MR SAPUTRA: Huh?
MR TAWFIK: So we’ve fucked all our boats now.
MR SAPUTRA: Huh? What?
MR TAWFIK: We’ve fucked all our boats now.
MR SAPUTRA: Huh?
MR TAWFIK: … I give up. I really give — I’m really finished. I’m done with this shit. I’m moving on, bro, to my next job. We failed, bro, failed, bro, failed.
Tawfik and Saputra drove to the nearest land position to the Perceive and picked up the three men. They drove them back to Port Fairy to their vehicle and all participants then set off in convoy for the long journey back to Melbourne.
KM8 changed direction and travelled south to about 380 nautical miles southwest of Hobart. It then commenced to sail east towards New Zealand.
On 12 December at 3:45 am KM8 was intercepted and boarded by personnel from HMAS Adelaide acting pursuant to a warrant issued by the Royal Australian Navy. At this stage the KM8 was about 375 nautical miles southeast of Hobart. Nine hessian sacks were located in the storeroom of the ship. Other items were seized. The crew were detained and taken to Hobart.
The nine sacks contained a total of 186 vacuum-sealed parcels, each roughly in the shape of a rectangular block, or ‘brick’. Eight of the sacks contained 20 blocks each and the ninth contained 26 blocks. When analysed the 186 blocks were found to contain a total of 123 kilograms of pure cocaine. Each block weighed about one kilogram; it follows that each block contained about 66 per cent pure cocaine.
No other border controlled drugs or border controlled precursor substances were found on board. Specifically, no pseudoephedrine was found. The above is a bald summary of the evidence relied upon by the prosecution to establish that both Tawfik and Saputra conspired to import a commercial quantity of a border controlled drug. A commercial quantity of cocaine is two kilograms or greater.
It will be recalled that the issue between the parties at trial was very narrow. There was no dispute, nor could there be, that both Tawfik and Saputra had agreed to import something from the KM8. What was in dispute was whether the prosecution could demonstrate beyond reasonable doubt that the cocaine found on the ship on 12 December was the subject of the agreement. To this end the defence pointed to a number of recorded conversations that, both Tawfik and Saputra contended, raised a doubt about cocaine being the object of the conspiracy, and which suggested that the real purpose of the conspiracy was to import pseudoephedrine.[28]
[28]Pseudoephedrine is a border controlled precursor and its importation is a different offence to that charged on the indictment, being contrary to s 307.11(1) of the Criminal Code, as opposed to s 307.1(1).
As noted earlier, there was some dispute at trial as to the precise content of the ‘pseudoephedrine’ conversations. For the purposes of this application we are content to proceed on what the applicants contend to be the true content of these conversations.
Applications for leave to appeal against conviction
Ground 1
We have observed that the primary ground advanced by both applicants is, although expressed in slightly different language, that the verdict was unreasonable or cannot be supported by the evidence.
The applicants’ submissions
Tawfik
Senior counsel for Tawfik contended in written submissions that:
·Much of the evidence was silent or at most neutral as to Tawfik’s precise knowledge or intent.
·Twice, however, the applicant was recorded discussing pseudoephedrine in the context of discussing the KM8:
(a)The conversation between Tawfik and Youkhana recorded at 8:04 pm on 5 December 2016 — the ‘We won’t even have pseudo’ conversation;[29] and
[29]See above [59]–[60].
(b)The conversation between Tawfik and Saputra recorded at 11:35 am on 6 December 2016 — the ‘Is there pseudo’ conversation.[30]
[30]See above [61]–[62].
·The applicant directly referred to pseudoephedrine in both of these conversations. Initially, both conversations had been overlooked by investigators.
·The prosecutor, at trial, contended that the proposition that Tawfik had agreed to import pseudoephedrine ‘was not supported by any evidence whatsoever’. It was submitted that this contention was incorrect, in light of the two conversations referred to above, which, it was said, best illuminated Tawfik’s intent.
·In none of the recorded conversations did Tawfik mention cocaine.
·The evidence of Li Ye Wang[31] supported the proposition that Tawfik had agreed to import pseudoephedrine.
·The use of the term ‘brick’ in one conversation did not impede Tawfik’s defence, as was contended by the prosecution. While ‘brick’ could refer to a block of cocaine, it could also refer to pseudoephedrine, which can take the form of a compressed powder.
·The transcript referring to Tawfik and Saputra anticipating ‘five, ten million’ each[32] is incorrect. In fact, there is no mention of ‘each’ and the transcript is referring to the total value of the consignment on KM8 at $5–10 million. This is consistent with the value of 186 kilograms of pseudoephedrine.
[31]Referred to in relation to Saputra’s submissions: see below [86].
[32]The ‘5–10 million/couple of bricks’ conversation: see above [65].
At the hearing of these applications, senior counsel for Tawfik submitted that the Court, upon hearing the ’pseudo conversations’ recorded on 5 and 6 December,[33] ought conclude that there is no rational counterview to the evident reference to pseudoephedrine, regardless of whether the jury adopted the prosecution or defence view of these conversations. This being the case, it was said, the jury could not have excluded the reasonable hypothesis that Tawfik agreed to import a border controlled precursor as opposed to a border controlled drug.
[33]See above [59]–[62].
Senior counsel for Tawfik contended that it would be logically unsustainable to focus on the fact that the consignment actually contained cocaine, and reason backwards from that fact to infer that the agreement must therefore have concerned cocaine: ‘As soon as one puts it that way, the ground collapses.’
Senior counsel concluded by submitting that the question could be expressed this way: ‘Do the references to pseudoephedrine give rise to the real possibility that Tawfik (and Saputra) were talking about this shipment?’ If so, it was submitted, the verdict is unreasonable and ought to be set aside.
Saputra
Saputra likewise submitted that the evidence did not exclude the reasonable possibility that he thought it was pseudoephedrine on the KM8. As with Tawfik, it was accepted that Saputra was a party to an agreement to import something. The evidence supported the view, it was said, that the object of the intended importation was pseudoephedrine, not a border controlled drug (ie cocaine). Accordingly, it was not open for the jury to conclude beyond reasonable doubt that the applicant was guilty of the offence charged.[34]
[34]SKA (2011) 243 CLR 400, 408 [21] (French CJ, Gummow and Kiefel JJ).
It was submitted that the fact that Li Ye Wang, the First Officer on the KM8, had been deceived as to the nature of the cargo on board made it more likely that Saputra had also been so deceived. Saputra referred to the discussion between Wang and Wen Shan Zhang (the man who had engaged him to work on the ship) that occurred after the KM8 stopped to refuel near Jakarta. Wang’s evidence was that Zhang had told him that the goods on board were raw materials for cold and flu medications; further, Wang stated that neither Zhang nor anyone else ever mentioned cocaine to him. Saputra submitted that it was common in drug importations for information to be withheld from those lower down the informal hierarchy of the drug importation enterprise.
Senior counsel for Saputra then referred to the 6 December conversation in which Saputra and Tawfik discussed ‘pseudo’.[35] It should be noted that, while Tawfik was a participant in two conversations in which ‘pseudo’ was mentioned, one being this conversation recorded on 6 December, the other conversation was between Tawfik and Youkhana[36] and was ruled inadmissible in Saputra’s case.
[35]The ‘Is there pseudo?’ conversation: see above [61]–[62].
[36]The ‘We won’t even have pseudo’ conversation: see above [59]–[60].
It was submitted that the ‘pseudo conversation’ between Tawfik and Saputra supported the proposition that Saputra (and Tawfik) believed the substance on the KM8 was pseudoephedrine. Saputra submitted that, ‘properly understood’, this was a conversation about the current ‘pseudo’ market, and the fact that there was nothing currently available in the market, such that ‘everyone’ was waiting for the KM8 shipment. Saputra’s ‘mate’ who ‘actually offered the best pseudo’ was the same person who would ‘know it’s ours’. When Tawfik responded, saying either ‘maybe someone’s gettin’ a shipment’ or ‘maybe it’s on a different shipment’,[37] he is hoping Saputra’s ‘mate’ and his ‘crew’ will be ignorant of the ‘pseudo’s’ true source and thus a turf war will be avoided. It was further submitted that this was the ‘most coherent’ interpretation of the relevant parts of this conversation, and that if the Crown cannot exclude beyond reasonable doubt the reasonable possibility that it bears such a construction then ‘the verdict cannot stand’.
[37]Depending on whether the Crown’s contended transcription or the applicant’s contended transcription is preferred.
Saputra’s senior counsel then submitted that the fact that there was no recorded mention of cocaine by either Saputra or any of the other co-conspirators supported the proposition that Saputra was ignorant of the presence of cocaine on the KM8. It was conceded that clearly there were references to getting something off the KM8, but maintained that there were never references to what it actually was, nor was any code word used to refer to the cocaine. This was significant, it was said, because the nature of the conversations actually recorded demonstrated that the participants thought they could talk freely.
Saputra submitted that other circumstantial evidence relied on by the prosecution was equivocal and could not exclude the reasonable possibility that he believed the shipment was pseudoephedrine. The matters relied upon by the prosecution — the amount of money expended on the venture; the attendant secrecy; the distancing from overt acts of the venture undertaken by some co-conspirators; the sums of money expected to be derived from the venture by certain co-conspirators; and the references to the substance to be imported as ‘bricks’ — either applied equally to an agreement to import pseudoephedrine or else could be readily explained by such a belief.
Senior counsel for Saputra contended that the prosecution construction of the ‘5–10 million/couple of bricks’ conversation[38] was clearly mistaken. Tawfik offered to pay out, in the form of ‘a couple of bricks’, a third party — not Saputra. Once this is accepted the conversation ceases to have force against Saputra.
[38]See above [65].
The prosecution also relied on the ‘nine bags’ conversation,[39] in which Saputra told Tawfik, ‘[T]hey said nine bags. One bag is 24, all of them — the rest is 25’s …’, and that ‘they’ were ‘looking at 184’, or ‘expecting 184’. Senior counsel for Saputra submitted that this conversation did not advance the prosecution’s case as to Saputra’s knowledge of cocaine. The information was not correct either as to the make-up of the nine bags (eight of which contained 20 packages, rather than 25), the total number of packages (186 rather than 226), or the total quantity (187 kilograms rather than 184 kilograms).
[39]See above [68].
Further in relation to the ‘nine bags’ conversation, it was submitted that, when one listens to it, the manner of Saputra’s delivery suggests that he is reading out a text message to Tawfik, and that his knowledge is second-hand. The fact that Saputra appeared to be notified by those expecting delivery of the packages of the expected quantity and packaging of whatever the substance was does not necessarily increase the likelihood that Saputra knew the content of those packages. He was receiving instructions (accepting the text message hypothesis) rather than giving them.
It was further submitted (again accepting the text message hypothesis) that this message demonstrates that Tawfik knew a lot more of the details of the collection than Saputra. Finally in relation to this conversation, it was submitted that the two men were talking about taking something for themselves from this shipment, that this evidence connects back to the ‘Is there pseudo’ conversation,[40] and that this was a reference to pseudoephedrine, not cocaine.
[40]See above [61]–[62].
As to the ‘195’ conversation,[41] senior counsel for Saputra reminded us that this conversation was ruled by the trial judge to be inadmissible against Saputra. We shall consider this further under ground 2.
[41]See above [56].
Like Tawfik, Saputra submitted that we should not work backwards from the discovery of cocaine aboard the KM8 and ‘reverse engineer’ a finding of guilt. We should focus on whether the direct evidence against Saputra allowed for the proof of the hypothesis of guilt.
The respondent’s submissions
Senior counsel for the respondent submitted that there was a powerful circumstantial case against both applicants and that they had failed to demonstrate on this application that it was not open to the jury to convict them of the conspiracy charge alleged.
Tawfik
The prosecution relied on the following combination of circumstantial evidence:
(a) There were 186 blocks containing 123.84 kilograms of pure cocaine located on board the KM8 — this was contended to be logically probative that the conspirators intended to import cocaine.
(b) There was no pseudoephedrine or any other type of precursor substance located on board the KM8.
(c) Tawfik was communicating with the Chinese organisers and the Sydney syndicate (via Saputra) as to the progress of his endeavours. It is logical that he knew what the Chinese had placed on board the KM8.
(d) The ‘195’ conversation.[42] In this recorded conversation, Tawfik said to Youkhana, ‘[T]hey reckon they got a buyer straight away for 195, all of them.’ This was a reference to the price of a block of cocaine being $195,000. This is consistent with the market price of cocaine, but not that of pseudoephedrine.
[42]See above [56].
(e) The ‘5–10 million/couple of bricks’ conversation.[43] In this 6 December recorded conversation, Tawfik told Saputra about a person who said ‘he might have a captain’ for another attempt to rendezvous with the KM8, and that payment of that person might be ‘a couple of hundred K or … a couple of bricks’. It was open to the jury to accept this was not a reference to pseudoephedrine.
(f) The ‘nine bags’ conversation.[44] In this 6 December recorded conversation, Tawfik and Saputra discuss the contents of ‘every fuckin’ bag’, ‘nine bags. One bag is 24 … the rest is 25’s’. The men note that ‘they’re looking at 184’, and that ‘if it’s less then we can’t take any of it, if it’s over, we take some’.
(g) The cocaine was located in nine hessian bags with 20 brick-shaped packages in eight bags and 26 in the last bag. The information shared in the ‘nine bags’ conversation was submitted to be ‘strikingly consistent’ with what was ultimately located on the KM8.
[43]See above [65].
[44]See above [68].
The respondent contended that none of the recorded conversations individually, or in combination, raised a reasonable doubt such that it was not open to the jury to convict. The ‘We won’t even have pseudo’ conversation and the ‘Is there pseudo’ conversation lacked the ‘crucial’ evidentiary value attached to them by Tawfik. Further, the respondent submitted that the evidence of the relative values of the relevant amounts of cocaine and pseudoephedrine not only did not support the conclusion that Tawfik was endeavouring to import pseudoephedrine, but it positively supported the conclusion that the object of his efforts was cocaine.
As to Wang’s evidence that he was told that the shipment contained raw materials for cold and flu medications, there was no evidence that anyone told Tawfik this.
Saputra
Senior counsel for the respondent relied on largely the same suite of circumstantial evidence as he relied upon in the case against Tawfik. It was contended that Saputra had failed to prove that it was not open to the jury to be satisfied beyond reasonable doubt that he had conspired to import cocaine, a border controlled drug. Senior counsel noted that Saputra, like Tawfik, had defended the trial on the very narrow basis that the prosecution had failed to establish that he knew that what he had agreed to import was a border controlled substance, namely cocaine, as opposed to pseudoephedrine.
It was submitted that the jury could infer Saputra’s guilt from the following:
(h) There were 186 blocks containing 123.84 kilograms of pure cocaine located on board the KM8.
(i) There was no pseudoephedrine or any other type of precursor substance located on board the KM8.
(j) Saputra was the representative of a Sydney-based syndicate that had a significant financial interest in the importation. He had travelled from Sydney to Port Fairy to oversee the third attempt to rendezvous with the KM8. Given his role, it would defy logic that Saputra would not know precisely what had been loaded by the Chinese syndicate onto the KM8.
(k) The jury could infer that the ‘5–10 million/couple of bricks’ conversation was about cocaine and that the cocaine was on the KM8.
(l) The jury could infer that Saputra knew there was cocaine on board the KM8 from the ‘nine bags’ conversation.
(m) Evidence given as to the relative values of cocaine and pseudoephedrine supported the conclusion that the participants in the agreement to import the KM8’s cargo knew that it was cocaine and not pseudoephedrine. The very large expenditures made in trying to retrieve the substance were inconsistent with an intention to import pseudoephedrine.
(n) Whilst Saputra was not apparently present until relatively late in the currency of the conspiracy, his close involvement and his level of seniority became immediately apparent from the recorded conversations.
Joint ground 1 — Analysis
We have observed at [24] of these reasons that each applicant, in pressing this ground, must demonstrate that it was not reasonably open to the jury to find him guilty of conspiring to import a commercial quantity of a border controlled drug. We have also observed that, in the context of a circumstantial case, the same question can be expressed in a slightly different way:[45]
The principles concerning cases that turn upon circumstantial evidence are well settled.[46] In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’.[47] To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’.[48]
For an inference to be reasonable, it ‘must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’[49] (emphasis added). Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’[50] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[51]
[45]Baden-Clay (2016) 258 CLR 308, 323–4 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (emphasis in original).
[46]Barca (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ).
[47]Peacock (1911) 13 CLR 619, 634 (Griffiths CJ).
[48]Plomp (1963) 110 CLR 234, 252 (Menzies J). See also Thomas v The Queen (1960) 102 CLR 584, 605–6.
[49]Peacock (1911) 13 CLR 619, 661 (O’Connor J), quoted in Barca (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ).
[50]Hillier (2007) 228 CLR 618, 637 [46] (Gummow, Hayne and Crennan JJ) (citation omitted).
[51]Ibid 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535 (Gibbs CJ and Mason J).
In considering this ground we must undertake our own independent assessment of the evidence as a whole to determine whether the jury (as opposed to this Court) must have had a reasonable doubt as to each applicant’s guilt.
Each applicant contends that there is a reasonable hypothesis consistent with a conclusion other than his guilt, namely, that each believed the KM8 to contain pseudoephedrine. For the reasons that follow, we have concluded that it was open to the jury to reject this pseudoephedrine hypothesis, in the case against each applicant, as unreasonable and involving no more than mere conjecture. Put another way, upon a consideration of all of the circumstances, it was open to the jury to be satisfied beyond reasonable doubt that the object of the conspiracy was to import a commercial quantity of cocaine into Australia, and thus it was open to the jury to find each applicant guilty of the charge alleged. We have reached this conclusion for the following reasons.
Tawfik
We consider that it was well open to the jury to be satisfied beyond reasonable doubt, on the basis of the following combination of circumstances, that the object of Tawfik’s agreement was to import cocaine.
We begin with the fact that there were 186 blocks of high-quality cocaine loaded on board the KM8. We do not accept that this is irrelevant or only marginally relevant to the issue of Tawfik’s intention. Further, we do not accept that proper use of this fact involves ‘reasoning backwards to guilt’, as submitted by Tawfik (or ‘reverse engineering’, as submitted by Saputra).
The fact that the KM8 was loaded with cocaine in China and then sailed to loiter off Port Fairy is logically probative of the proposition that those involved in organising its loading, transit and unloading intended to import cocaine.[52] As noted earlier, both applicants conceded that they had made, and were seeking to effectuate, an agreement to import something, unlawfully, that was carried by the KM8. Since the KM8 was actually carrying cocaine when it reached its agreed destination, the inference is reasonably open that cocaine was what they had agreed to import.
[52]See Suri v DPP (Cth) [2014] VSCA 260, [25] (Redlich, Priest and Coghlan JJA).
This is no more than orthodox inferential reasoning, the process of reasoning from observed facts to plausible explanations of those facts.[53] In the same way, if (for example) Sweet & Maxwell delivered to a person a copy of Stroud’s Judicial Dictionary, the most obvious explanation is that the recipient had agreed to purchase that publication and had requested its delivery.
[53]G v H (1994) 181 CLR 387, 390 (Brennan and McHugh JJ); R v Wannouch [2019] VSCA 97, [59] (Priest, Kyrou and Emerton JJA).
It would not be, of course, the only explanation. An alternative explanation would be that there had been a mistake, that what had been delivered was not what the recipient had ordered. In the present case, the applicants in effect rely on mistake as an alternative explanation for the finding of the cocaine on the KM8. This opened up two alternative hypotheses to the jury: either the applicants (and their superiors within the syndicates) had agreed to import pseudoephedrine and, by mistake, the shippers in China loaded cocaine; or, they had been misinformed by their superiors as to the substance they were importing. They contend that the prosecution did not eliminate either alternative explanation.
In respect of the latter possibility, it will be recalled that Saputra submitted on this application that those lower down the hierarchy of a drug importation enterprise are not uncommonly deceived in this way, and, in support of this observation, pointed to the misapprehension of Wang as to the nature of the cargo on the KM8. Tawfik also adverted to the fact that Wang had been misled in his written case.
But the plausibility of mistake as an explanation depends on the nature and extent of the observed facts. The more complex the arrangements for purchase and delivery, and the more prolonged and active the recipients’ involvement in the transaction, the more unlikely it becomes that what is delivered is (by mistake) different from what the recipients had agreed to purchase. That is a matter of ordinary human experience. In this case, in our view, mistake was a highly implausible explanation, given what the evidence established about the elaborate and costly arrangements for purchase and delivery of the goods in question, about the respective applicants’ knowledge of those arrangements, and about the steps they each took to ensure that the arrangements were carried through to fruition.
Your conspiracy failed because of your inability to implement your plans. You [botched] every step you took. Had you succeeded, drugs worth more than $50m would have reached Australia. Every sentence involves the exercise of judicial discretion and the synthesis of the factors I have referred to previously.
As the Court of Appeal in this State has said often, there is clearly no correct sentence. There clearly should be consistency in sentenc[ing], but comparable cases are simply to provide guidance as to the identification of relevant sentencing principles and the establishment of a possible range of sentences for similar offending.[97]
[96]Ibid [46].
[97]Ibid [46]–[48].
The judge then sentenced the applicants as set out at [19] of this judgment.
Applicants’ submissions
Tawfik
Tawfik contended that the sentence imposed was manifestly excessive having regard to relevant sentencing comparators (including Brown and R v Yuan[98]), his role, his subjective circumstances, and the principle of parsimony.
[98](2015) 252 A Crim R 422 (‘Yuan’).
It was submitted that the ’applicable sentencing range was informed by … Brown and certain of the cases considered [therein]’. Tawfik noted that the accused in Brown was convicted at trial and, after a successful Crown appeal, was sentenced on two charges of importing a commercial quantity of a border controlled drug. On charge 1, which dealt with the importation of 4.5 times the commercial quantity of methylamphetamine, he was sentenced to 11 years’ imprisonment. On charge 2, which dealt with an amount of methylamphetamine 60 times the commercial quantity threshold, he was sentenced to 16 years’ imprisonment. In all, a total effective sentence of 20 years was fixed. It was submitted on behalf of Tawfik that the sentence imposed on him was manifestly inconsistent with the sentencing range applied in Brown and also inconsistent with the comparable cases that had informed that range.
One of those cases was Yuan. In that case, the accused was convicted after trial. After a successful Crown appeal, he was sentenced to an individual sentence of 15 years’ imprisonment for a methylamphetamine importation that was 73 times the commercial quantity.
Tawfik also referred to Director of Public Prosecutions (Cth) v Peng,[99] McCraw v The Queen,[100] Saab v The Queen[101] and Nguyen v The Queen[102] as contributing to the range identified in Brown.
[99][2014] VSCA 128 (‘Peng’).
[100][2011] NSWCCA 162 (‘McCraw’).
[101][2012] VSCA 165 (‘Saab’).
[102](2011) 31 VR 673 (‘Nguyen and Phommalysack’).
Tawfik further submitted that, as he was neither (using the sentencing judge’s terms) the ‘ultimate importer’ nor a ‘principal supplier’, the judge had overvalued his role in the enterprise; he had the ongoing support of his family; at 27 (at the time of sentence) he was still relatively young; and he had not offended since 2010.
It followed from the factors cited above, it was submitted, that there must have been some misapplication of principle.
Saputra
Under ground 1, Saputra asserted that his sentence infringed the parity principle when measured against Tawfik’s sentence. He contended that the disparity between their respective sentences was insufficient given their respective backgrounds and roles in the offending, such as to engender a justifiable sense of grievance in the applicant, and the objective appearance of injustice.
In particular, Saputra contended that:
·His involvement in the conspiracy was for a much shorter time period than Tawfik’s involvement.
·Tawfik’s role in the overall combination of the organisation, planning and implementation of the importation was ‘markedly more significant’ than his own.
·Tawfik’s prior criminal history was ‘markedly more significant’ than his own.
·Unlike Tawfik, he faced the likelihood (or at least the substantial risk) of deportation at the conclusion of his sentence, thus adding to the burden of imprisonment.
·He, arguably, had better prospects for rehabilitation than Tawfik.
·The difference in head sentences (25 years as opposed to 18 years) and the difference in non-parole periods (four years and nine months) lacked due proportion.
Under ground 2, Saputra contended specific error by reason of his Honour’s erroneous characterisation of the ‘5–10 million/couple of bricks’ conversation. He contends that throughout the trial and sentencing process, the judge erroneously found that he and Tawfik ‘discussed ripping off the cocaine and making $5–$10 million each’.
Saputra submitted that the mischaracterisation of this conversation served to bring him closer to Tawfik in the hierarchy of conspirators, and, further, wrongly cast doubt on the assertion, advanced by his trial counsel, that the evidence disclosed his financial gain to be $10,000.
Respondent’s submissions
Tawfik
The respondent submitted, correctly, that the ground of manifest excess is a stringent ground, difficult to make out, and then only when the sentence imposed is ‘wholly outside the range of sentencing options available’.[103] It was incumbent on Tawfik to demonstrate that it was not reasonably open to the sentencing judge to impose this sentence on this offender for this offence in these circumstances.
[103]R v Boaza [1999] VSCA 126, [42] (Winneke P).
In this case, it was submitted, the sentence imposed was not manifestly excessive, when regard is had to the following:
·The maximum penalty for the charge was life imprisonment.
·There was no plea of guilty that could otherwise have mitigated the sentence imposed.
·123.84 kilograms of pure cocaine represents 61.7 times the applicable commercial quantity of two kilograms.
·Tawfik played a significant and essential role in the importation, vital to the success of the venture.
·The wholesale value of the drugs was between $33 million and $45 million and the street value was between $82 million and $123 million.
·Greed was the motivating factor for the offending.
·The offending was protracted and involved three separate attempts to obtain possession of the drugs.
·General deterrence was the primary applicable sentencing principle, with personal mitigatory factors remaining relevant but assuming less weight than otherwise might be given.[104]
·As Tawfik had significant prior convictions, specific deterrence and protection of the community had to assume importance in the sentencing process.
·There were no sentencing reductions available for mental impairment.
[104]The respondent cited DPP (Cth) v Thomas [2016] VSCA 237, [193]; R v Nguyen (2010) 205 A Crim R 106, [72] (‘Nguyen’); Nguyen and Phommalysack (2011) 31 VR 673.
The respondent contended that there was no foundation for Tawfik’s assertion that relevant sentencing comparators illustrated manifest excess. In particular, the respondent contended that Brown, contrary to Tawfik’s submissions, did not set the applicable sentencing range in this matter. The respondent referred to R v Pham[105] and Elfar in this context. It was submitted that, by remarking that Brown was ‘simply’ an example of a case,[106] his Honour was saying no more than that there is no one clearly correct sentence and that each case turns on its own unique circumstances. Both Brown and Elfar are single examples of sentences imposed by appellate courts and neither case establishes sentencing limits for these sorts of offences. As part of sentencing history, the judge regarded them as being of assistance, but no more than that.
[105](2015) 256 CLR 550, 557 [23] (French CJ, Keane and Nettle JJ), 563 [41] (Bell and Gageler JJ) (‘Pham’).
[106]See Reasons for Sentence [45].
Even if Brown were used as a yardstick, it was submitted, it was not a useful comparator: Brown had no prior convictions, played a lesser role in the offending, and was entitled to a sentencing benefit arising from the delay in charging him.
The respondent then reviewed the cases referred to in Brown as comparators,[107] and other cases which it submitted may provide useful comparators.[108]
[107]These were McGraw [2011] NSWCCA 162; Saab [2012] VSCA 165; Peng [2014] VSCA 128; Nguyen and Phommalysack (2011) 31 VR 673; Luong v DPP (Cth) (2013) 46 VR 780; Nguyen (2010) 205 A Crim R 106; Pham (2015) 256 CLR 550; Jaafar v The Queen [2017] NSWCCA 223; Elfar [2017] QCA 170.
[108]These were R v Banker [2016] QCA 74; Kev v The Queen [2015] VSCA 232.
In conclusion the respondent submitted that the head sentence and non-parole period adequately reflected the serious nature of the Tawfik’s offending and the primacy to be given to the principles of general deterrence, community protection and just punishment.
Saputra
On the parity ground the respondent referred to well-established principles governing the principle of parity and referred to Gorman v The Queen[109] and Collins v The Queen.[110] The respondent submitted that, whilst there was disparity between Saputra’s and Tawfik’s respective sentences, the degree of disparity was justifiable given the similarities and differences between their respective culpability, criminal records and personal circumstances. The respondent referred to Tran v The Queen,[111] in which the Court noted that, when considering arguments of disparity (and its extent and degree), sentencing is not a mechanical exercise where circumstances are weighed with mathematical precision.[112]
[109][2019] VSCA 128 (‘Gorman’).
[110][2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (‘Collins’).
[111][2017] VSCA 346.
[112]Ibid [22]–[24] (Ashley JA).
In this case, the respondent submitted, the parity principle was not breached because of a combination of the following:
·It was reasonably open to the judge to differentiate between Saputra and Tawfik in the way that he did. The head sentence imposed on Tawfik is seven years more than Saputra’s head sentence, and Tawfik’s minimum term is four years and nine months more than that of Saputra. These are substantial differences which adequately reflect the differences in roles, circumstances and prior criminal histories.
·Saputra’s role was not insignificant. He represented the Sydney syndicate responsible for the importation, and travelled to Victoria to oversee the third attempt to retrieve the cocaine. He had full knowledge of the nature and extent of the shipment, and was obviously a very trusted member of the importing syndicate.
·He had a sound awareness of the identities of several members of the Victorian syndicate, the earlier failed attempts to possess the cocaine, and the location of the KM8.
·The disparity between the sentences, whilst adequately reflecting Tawfik’s more serious offending, also adequately reflected Saputra’s own nonetheless extremely serious offending.
·The disparity also adequately reflected that, whilst the subjective circumstances of each offender were different, there was nothing overwhelmingly mitigatory in Saputra’s circumstances that would justify the imposition of an even lesser sentence as compared to Tawfik. The sentence of 18 years’ imprisonment with a non-parole period of 12 years, considered either alone or as against Tawfik’s sentence, is well within the appropriate range for offending of this nature.
Consideration
Tawfik
Ground 1 — Manifest excess
It will be recalled that Tawfik contended that relevant sentencing comparators, including Brown and Yuan, illustrated manifest excess in the sentence imposed on him.
In Brown, the offender was convicted at trial of two charges of importing a commercial quantity of a border controlled drug. Charge 1 involved the importation of methylamphetamine in an amount 4.5 times the commercial quantity threshold for that substance. Charge 2 involved the importation of 60 times the commercial quantity threshold of the same substance.
At first instance Brown received sentences of seven years’ and 10 years’ imprisonment for charges 1 and 2 respectively. The total effective sentence was 12 years’ imprisonment with a non-parole period of seven years. On a Director’s appeal, both sentences were held to be manifestly inadequate and sentences of 11 years (charge 1) and 16 years (charge 2) were substituted. The total effective sentence was fixed at 20 years’ imprisonment with a non-parole period of 15 years. Thus the head sentence was elevated by 67 per cent and the minimum term by over 100 per cent.
The wholesale value of the drugs the subject of charge 1 in Brown was between $660,000 and $968,000, and their street value was between $3.3 million and $4.4 million. On charge 2, the wholesale value of the drugs was between $8.4 million and $12.3 million, and the street value was between $42 million and $56 million. Brown was motivated by greed and (by inference) expected significant returns. By running a trial he exhibited no remorse; he had no prior convictions of relevance but had committed drug possession offences whilst on bail.[113]
[113]Brown (2017) 268 A Crim R 309, 316 [28].
Brown was 31 years old at the time of offending, single and had enjoyed an unremarkable early life. His role in the enterprise was ‘important and essential’, having responsibility for unloading and dismantling the imported engines within which the prohibited substances were secreted.[114] He was also responsible for storing the drugs pending delivery to a buyer and then carrying out the delivery. He was not involved in the actual sale of the drugs or receiving money for them.[115] Brown did not know the precise nature of the border controlled drug concerned in the first importation, but did so in respect of the second importation.[116]
[114]Ibid 317 [30].
[115]Ibid.
[116]Ibid 317 [34].
There was a delay of two and a half years between the institution of the charges and the trial which was taken into account in his favour.[117]
[117]Ibid 317 [35].
The total effective sentence imposed on Tawfik was nine years longer than the sentence the Court of Appeal imposed on charge 2 in Brown, and five years longer than the head sentence. We consider that Tawfik and Brown each played conceptually similar roles in the importation enterprises in their respective cases. Tawfik was the coordinator of the Melbourne syndicate — a group whose object was to facilitate the importation of 61.7 times the applicable commercial quantity of a border controlled substance. Tawfik’s group was neither the supplier nor the purchaser of the cocaine with which they were dealing, but his role was essential to the success of the ultimate importation. He communicated with the Chinese supplier. He planned the logistics of collecting the cocaine and purchased expensive equipment to achieve that end. His role was ‘critical and long-lasting’.[118]
[118]Reasons for Sentence [34].
Brown, as we have observed, was vital to both importations of which he was found guilty: he unpacked the drugs secreted within the engines, stored those drugs pending their delivery to a buyer, and then delivered them. Brown had a different but similarly responsible role to that of Tawfik. In committing the second charge, he facilitated the importation of a similar quantity of a border controlled substance relative to the relevant commercial quantity, although the street value of the drugs Tawfik imported was significantly higher than that of the methylamphetamine that Brown imported.
While Tawfik’s role was conceptually similar to Brown’s, his overall situation was less favourable to him from a sentencing perspective. He was clearly head of a group of men involved in the importation, whereas the same could not be said of Brown, who either worked alone or with one assistant, depending on the task. At 25 at the time of his offending, Tawfik was six years younger than Brown was at the time of his. Tawfik’s participation extended over a longer period of time, although Brown had participated in two importations to Tawfik’s one. Tawfik had prior convictions of some significance, whereas Brown had none.
Considered alone, it is difficult to see how Tawfik’s sentence of 25 years’ imprisonment can be consistent with the 16-year sentence imposed in Brown. The head sentence is more than 50 per cent greater than that imposed on charge 2 in Brown. Even allowing for the differences in the circumstances of the offending and the subjective circumstances, the disparity in the sentences is striking. Further, we are of the view that the sentence of 25 years would appear to be inconsistent with most of the other examples of sentences imposed in broadly similar cases that were referred to in Brown.
Insofar as charge 2 in Brown was concerned, that Court examined the cases of Yuan, Peng, McCraw, Saab and Nguyen. These cases were said by the Court to enable useful comparisons to be drawn, and provided a convenient summary of them at [78]–[83], which we shall set out here:
In relation to the sentence on charge 2, the Director referred first to R v Yuan, where the pure weight of the methamphetamine imported was 54.961 kg (more than 70 times [the commercial quantity]). Convicted after trial, the offender was sentenced to 10 years imprisonment with a non-parole period of six years. The New South Wales Court of Criminal Appeal held that the sentence was manifestly inadequate and resentenced the offender to 15 years imprisonment with a non-parole period of 10 years. The Court held that the offender’s role was ‘pivotal’. He was the ‘supervisor of what occurred at the Australian end’. His involvement had extended over a lengthy period; he had obviously occupied a position of trust ‘within the criminal group’; he was motivated by greed; and he had shown no remorse.
In Director of Public Prosecutions (Cth) v Peng, the offender pleaded guilty to one charge of [commercial quantity] importation (methamphetamine). The total quantity of pure methamphetamine was 23,154.2 g (or 31 times [the commercial quantity]). The offender was sentenced to 11 years imprisonment with a non-parole period of seven years and six months. This Court upheld a Director’s appeal on the ground of manifest inadequacy, and resentenced the offender to 13 years imprisonment with a non-parole period of 10 years. The offender had been responsible for organising the importation of the drugs. He had played ‘a critical and extensive role’. As the Director pointed out, the offender’s role was thus comparable to Brown’s role in the second importation. On the other hand, the quantity imported in Peng was only half the size of the second importation.
In McCraw v The Queen, the offender was convicted after a trial of conspiring to import no less than [the commercial quantity] of MDMA (commonly known as ‘ecstasy’). The amount was approximately 60 times [the commercial quantity]. The offender was a waterside worker who assisted in the reception of drugs into Australia. The sentencing judge described his role as ‘essential and crucial’. He had supervised the unloading of the drugs from the ship and their transport to their first Australian destination. He had no prior convictions. He was sentenced to imprisonment for 17 years, with a non-parole period of 11 years and two months. His appeal on the grounds of parity was dismissed. He disavowed any complaint of manifest excess. The Court said that he had done so ‘correctly’.
The submission for the Director noted that the importation in McCraw involved the same quantity as was the subject of charge 2 in the present case (60 [times the commercial quantity]). It followed, counsel argued, that the sentencing range for importation on this scale — for an offender who pleaded not guilty — was ‘in the high teens’. Moreover, the Director submitted, the offender in McCraw had performed a less significant role than did Brown in the second importation. We accept that submission.
In Saab v The Queen, this Court dismissed an appeal against sentence by an offender who imported 14.6 kg of cocaine (7.3 times the commercial quantity]). The appellant acted as the ‘Australian link’ to the persons overseas who had arranged the importation. He oversaw the collection and retrieval of the drugs. He was found to be ‘the principal organiser’ of the scheme, although he may not have been ‘at the very apex’. He had pleaded guilty at the earliest practical opportunity. The sentencing judge found that his plea was ‘accompanied by genuine remorse’. He was sentenced to 14 years imprisonment with a non-parole period of 10 years.
In Nguyen v The Queen (2011), the first applicant had pleaded guilty to one count of attempted importation, and one count of attempted possession, of the drugs in question. She was found to have been ‘an integral facilitator of the importation’. She offended not out of greed but because of indebtedness. The quantity of drugs amount to approximately 56 times [the commercial quantity]. She was sentenced to 10 years imprisonment on the importation count, and seven years on the possession count. The total effective sentence was 12 years imprisonment, and a non-parole period of eight years was fixed. The sentence was reduced because of the offender’s co-operation with the authorities.[119]
[119]Citations omitted.
It will be recalled that Tawfik submitted that the judge was unduly dismissive of Brown and the cases referred to therein, whilst the respondent contended that Brown did not set an applicable range of sentences, and nor did any of the other cases that judgment referred to. Whilst consistency in sentencing means consistency in the application of sentencing principles[120] (as opposed to numerical consistency), then, assuming such consistency exists, the numerical product of that application should also be broadly consistent. In other words, making all due allowances for variables such as role, plea, prior criminal history and general background, if the numerical product of the application of sentencing principles can still be seen to vary widely in like cases, then it is reasonable to suspect that there has been an inconsistent application of those sentencing principles.
[120]See Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ).
In this case, we consider that the sentence imposed, being over 50 per cent greater than that imposed on the similar charge 2 in Brown, at least raises the spectre of inconsistency. We are confirmed in this view by the sentences imposed in the cases summarised in Brown as set out above.
The respondent to this application emphasises that ‘past sentences are no more than historical statements of what has happened in the past’,[121] and that history does not necessarily establish the correct range, nor the upper or lower limits of that range.[122] Accepting all of the foregoing statements of principle as correct, current sentencing practices in comparable cases, whilst not being decisive in the outcome of an appeal,[123] will always inform the ‘instinctive synthesis’. Every sentencing court is required to consider them.[124]
[121]Hili v The Queen (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Hili’), quoting DPP (Cth) v De La Rosa (2010) 243 FLR 28, 98 [304] (Simpson J).
[122]Hili (2010) 242 CLR 520, 537 [54].
[123]DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 433 [2] (Kiefel CJ, Bell and Keane JJ).
[124]Sentencing Act 1991 s 55(2)(b).
Two further cases, not referred to in argument, should be mentioned. In Chan v The Queen,[125] after a trial, the offender was convicted of attempting to possess a commercial quantity of methylamphetamine. The amount was 108 times the commercial quantity threshold. Chan had been described by the sentencing judge as a ‘trusted significant participant’, and there was no evidence of players higher in the hierarchy.[126] He had no prior convictions. His sentence of 23 years’ imprisonment with a non-parole period of 15 years was described as ‘stern’ on appeal,[127] but was upheld.
[125][2020] NSWCCA 335.
[126]Ibid [23].
[127]Ibid [156], [162] (Jonson J).
In Kuo v The Queen,[128] three offenders, Kuo, Shih and Huang, were convicted, after pleading guilty, to attempting to possess 142 kilograms of methylamphetamine. This was 228 times the commercial quantity threshold. Shih was sentenced to 27 years’ imprisonment with a non-parole period of 18 years, and both Kuo and Huang to 22 years’ imprisonment with non-parole periods of 14 years and six months. After an appeal each was resentenced: Shih to 22 years with a non-parole period of 14 years, and Kuo and Huang each to 19 years with non-parole periods of 12 years.
[128][2018] NSWCCA 270 (‘Kuo’).
Shih had been described by the sentencing judge as being at the ‘apex of the syndicate’, but the Court on appeal reassessed his status as ‘middle level’;[129] Kuo, to whose role Huang’s was similar,[130] was ‘important’ but ‘not a principal’.[131]
[129]Ibid [124] (Hoeben CJ at CL, Davies and Hamill JJ).
[130]See ibid [108]–[109].
[131]Ibid [97]
In considering this appeal we do not proceed on the basis that any of these cases, or all of them together, establish any range for Tawfik’s sentence. They are each, and in combination, of assistance in enabling us to form our own conclusion as to whether the sentence imposed on Tawfik was ‘wholly outside the range available’.
In passing sentence, the judge stated that ‘there comes a time when the quantity of drugs becomes so large that there comes little point in the fact that the quantity could have been greater’.[132] In the abstract, this is undoubtedly correct, but we doubt that in this case that point was reached. Consider, for example, if counsel in Kuo (involving 228 times the commercial quantity of a border controlled drug) had submitted to the Court in that case that ‘this quantity is really, from a sentencing perspective, not much worse than say, 60 times the commercial quantity of the same substance’. In our view that submission would have been poorly received.
[132]Reasons for Sentence [38].
After concerted deliberation, we have concluded that the sentence imposed on Tawfik was manifestly excessive. We consider it to be beyond the range of sentences reasonably available to his Honour in the proper exercise of his sentencing discretion. Whilst the maximum penalty for this offence is life imprisonment and that is of course a significant factor in the sentencing calculus, Tawfik was neither the ultimate purchaser nor the original supplier. His role was to facilitate the importation by retrieving the cocaine shipment and passing it on to the Sydney syndicate — its eventual purchasers. He did so for an undetermined but no doubt substantial fee. His role was protracted and significant, but he was not at the apex of either syndicate, whether purchasers or suppliers. At the time of sentence he was 27 years old and 25 at the time of offending, and was entitled to cite youth as a moderating factor; it appears that he had last offended, leaving aside driving offences, when he was 18 years old. He had previously received a partially suspended term of imprisonment and a CCO for trafficking in cannabis and other quite serious offences. Whilst the judge was correct in characterising Tawfik’s prior criminal history as significant, this was ameliorated to some extent by its relative antiquity and his youth at the time of committing those prior offences. Although the judge made no finding as to Tawfik’s prospects for rehabilitation, on the material presented and apparently accepted by his Honour, these would appear to have been at least reasonable, and probably better than that.
For the reasons expressed, we are of the view that Tawfik has established this ground of appeal.
Saputra
Ground 2 — The judge’s mischaracterisation of the ‘5–10 million/couple of bricks’ conversation
It is convenient to commence with Saputra’s ground 2.
Saputra placed some emphasis on the judge’s mistake in the trial, and in his reasons for sentence, in proceeding on the basis that Tawfik and Saputra discussed ‘ripping off’ the cocaine and benefitting by $5–10 million each.[133] At [149]–[150] of these reasons we set out the full context of that exchange between the two men. As we state, it is clear to us that Tawfik was recounting to Saputra an earlier conversation with a third party and there is no basis to suggest that Tawfik and Saputra were seriously planning any ‘rip-off’ of this size. So much is clear, however, we consider it to be of little significance to the sentencing process. Both Tawfik and Saputra were motivated by enrichment and within the same ‘5–10 million/couple of bricks’ conversation, Tawfik did, in fact, propose a conditional rip-off, albeit of more modest scope, which, it seems, Saputra, after some hours’ consideration, accepted.[134]
[133]That is, in the ‘5–10 million/couple of bricks’ conversation.
[134]See above [149]–[152].
We consider there is nothing in this ground, and reject it.
Ground 1 — The parity ground
Saputra’s ground 1 alleges an insufficient disparity between the sentences imposed on Tawfik and Saputra given what he contended were ‘very different levels of culpability’. Saputra’s head sentence was 72 per cent of Tawfik’s. This is a substantial disparity. Saputra’s criminal culpability, while less than that of Tawfik, was still very significant. He was the ‘eyes’ of the ultimate purchasers of this large shipment of cocaine. He was sufficiently trusted by the Sydney syndicate to travel to Melbourne for two days and then to Port Fairy to oversee the third attempt at importation, and to investigate what had gone wrong on the earlier occasions. He had full knowledge that cocaine was being transported on the KM8. We agree with the judge that Saputra played an ‘important [role] in the proposed crime’.[135]
[135]Reasons for Sentence [33].
Saputra pointed to other factors of difference between his position on sentence and that of Tawfik. In particular, he relied on his relative lack of prior convictions, his stable family situation (including a six-month-old child), isolation in custody and the likely prospect of deportation upon completion of his sentence. That said, Tawfik had had a very deprived early life and was significantly younger than Saputra.
In Gorman, this Court confirmed[136] the well-established principles concerning the principle of parity set out earlier in Collins:[137]
The principles governing parity are well-established.[138] Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed.[139] However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.[140] When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[141]
[136]Gorman [2019] VSCA 128, [41] (Priest and Kaye JJA).
[137]Collins [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (citations in original).
[138]See Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87 (‘McCloskey-Sharp’); Roujnikov v The Queen [2015] VSCA 97, [24]–[25] (Weinberg and Kyrou JJA) (‘Roujnikov’).
[139]Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462.
[140]Roujnikov [2015] VSCA 97, [25], quoting McCloskey-Sharp [2015] VSCA 87, [17] (Osborn JA).
[141]Holder v The Queen [2011] VSCA 192, [38]–[39] (Maxwell P).
In our view the extent of disparity between Tawfik’s sentence and Saputra’s sentence is unremarkable. We consider that the judge gave proper weight to the similarities and differences between the offenders as regards culpability, criminal records and personal circumstances.
However, given that we have allowed Tawfik’s appeal on the basis of manifest excess, were we not to interfere with Saputra’s sentence, a manifest disparity would then be created. Accordingly, we shall allow this ground and adjust Saputra’s sentence in order to preserve the degree of disparity correctly identified by his Honour. In other words, Saputra’s adjusted head sentence will remain in the range of 70 per cent of Tawfik’s.
Conclusion
Given our conclusions on Tawfik’s ground 1 and our consequent conclusion on Saputra’s ground 1, we will order that the sentences imposed on them in the County Court on 11 October 2018 be set aside and will resentence each as follows.
Tawfik will be resentenced to 20 years’ imprisonment with a minimum term before parole eligibility of 14 years. We will declare pre-sentence detention of 1338 days. Saputra will be resentenced to 14 years’ imprisonment with a non-parole period of nine years and six months. Pre-sentence detention of 1219 days will be declared.
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