REGINA v Risto SLATINEC [1999] NSWCCA 2

New South Wales Court of Criminal Appeal CITATION : REGINA v Risto SLATINEC [1999] NSWCCA 2 FILE NUMBER(S) : CCA 60155/98 HEARING DATE(S) : 13/11/98 JUDGMENT DATE : 16 February 1999

PARTIES : Applicant - Risto Slatinec Respondent - Regina JUDGMENT OF : Sheller JA at 1; Abadee J at 1; Hulme J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Judge Mitchelmore

COUNSEL : Crown - C.P. O'Donnell Appellant - P.J.D. Hamill SOLICITORS : Crown - Commonwealth Department of Public Prosecutions Appellant - T.A. Murphy CATCHWORDS : Criminal Law - Sentence; Commercial quantity of ecstasy; Discount for assistance ACTS CITED : Customs Act S233B DECISION : 1. Leave to appeal granted.; 2. Appeal allowed.; 3. Sentence quashed.; 4. In lieu thereof the Applicant sentenced to 8 years imprisonment from 13 August 1996 with a non-parole period of 5 years from 13 August 1996.; 5. The court records for the purposes of S21E of the Crimes Act (Cth) that but for the further assistance to the Crown to which Judge Mitchelmore made reference and which has been referred to in the hearing of this appeal, the sentence imposed would be 13 years with a non-parole period of 9 years both terms dating from 13 August 1996.

IN THE COURT OF CRIMINAL APPEAL NO: 60155 of 1998

SHELLER JA ABADEE J HULME J

Tuesday, 16 February 1999

REGINA -v- Risto SLATINEC

JUDGMENT

1 THE COURT: These Reasons relate to an application for leave to appeal against the severity of sentences imposed by His Honour Judge Mitchelmore on charges of:- 1. Being knowingly concerned in the importation of N-methyl-1 (3-4-methylenedioxyphenyl)-2-butanamine (known as "MBDB" or "Eden") a drug analogue of 3, 4-methylenedioxymethamphetamine (known as "MDMA" or "Ecstasy") being not less than the commercial quantity applicable to MDMA, and 2. Supplying a prohibited drug being part of the same MBDB in an amount not less than a large commercial quantity. 2 At the conclusion of the hearing of the application on 13 November, last the Court made orders that:- 1. That leave to appeal be granted. 2. That the appeal be allowed. 3. That the sentence imposed by Judge Mitchelmore be quashed. 4. That in lieu thereof, the Applicant be sentenced to a total term of 8 years imprisonment dating from his arrest on 13 August 1996 with a non-parole period of 5 years also dating from 13 August 1996. 5. That this court records for the purposes of Section 21E of the Crimes Act (Cth.) that but for the further assistance to the Crown to which Judge Mitchelmore made reference and which has been referred to in the hearing of this appeal, the sentence imposed would be 13 years with a non-parole period of 9 years both terms dating from 13 August 1996. 3 The offence, the subject of the first charge is a breach of Section 233B (1)(d) of the Customs Act, that the subject of the second count offends Section 25(2) of the Drug Misuse and Trafficking Act. Both offences carry a maximum penalty of life imprisonment. 4 The sentence imposed on the first count was of 9 years imprisonment with a non-parole period of 6 years. The sentence imposed on the second count was a fixed term of 4½ years, running concurrently. Judge Mitchelmore indicated for the purposes of Section 21E of the Crimes Act (Cth) that, but for future assistance which was promised, he would have imposed a sentence of 13 years with a non-parole period of 9 years. The commencing date of the terms was 13 August 1996, the date when the Applicant was first arrested. This gave him the benefit of 2½ months when he was on bail, albeit on very strict conditions. 5 The quantity involved was 1214gms. Under the Customs Act the trafficable quantity of MDMA and of any drug analogue thereof is .5 of a gram and the commercial quantity is 500gms. Pursuant to Section 235 the maximum penalty for the importation of a commercial quantity is imprisonment for life and for the importation of a trafficable quantity, imprisonment for 25 years and a fine not exceeding $100,000. Sacrificing some accuracy for brevity, where a person has previously been convicted of an offence under Section 233B involving a trafficable quantity, the maximum penalty for a conviction involving a second trafficable quantity is life imprisonment. 6 Under the Drug Misuse and Trafficking Act there are more categories. It is sufficient to mention two. They and the maximum penalties prescribed are:- Commercial quantity 0.125kg 20 years + $350,000 Large commercial quantity 0.5kg Life + $500,000. 7 An agreed statement of facts indicated that while statistics were not available for the period July to September 1996 when the Applicant's offences occurred, on the basis of the prices prevailing in the preceding three months the drugs were worth between $120,000 and $200,000 (wholesale) and $380,000 (street) - approximately. On the basis of prices in the three months after September, the street value was between about $160,000 and $400,000. 8 The operation with which the Applicant was involved included an organiser or perhaps principal in the Netherlands and at least another three persons who travelled to Australia in connection with it. One of these would seem to have been an overseer or treasurer. The sentencing Judge's remarks concerning the Applicant and his role included the following:- "I am satisfied to the requisite degree that the offender's involvement was not at the lower end of the importation. I am satisfied that the Prisoner's activities showed considerable professionalism. I am further satisfied the Prisoner had significant authority so far as the distribution of the illicit substance was concerned… It is clear that the prisoner's involvement… was greater than that of a mere courier. Phone taps indicate the prisoner had a significant and important role relating to the distribution of the tablets. For example, the prisoner was involved in the releasing of tablets so that the drug could be tested by prospective purchasers. Sums of money discussed in the phone taps relate to large amounts… From that conversation it is clear that the prisoner was active in arrangements concerning the narcotics at a very early stage… In this conversation the obtaining of false bottom suitcases was also discussed, amounts of money and quantities were discussed… (Referring to other recordings) These two conversations demonstrate the offender was involved in the dealing and the price assessment of the drugs… This further confirms that the prisoner was far from being peripherally involved in the criminality. In fact, the Prisoner was deeply and significantly involved in the importation and the matters surrounding it." 9 However His Honour did record that the Applicant was not the Australian distributor. 10 On 12 August, 1996 the Appellant's car was stopped by police purportedly conducting a random breath test. The car was searched and a back pack he was earlier seen to have carried from a block of apartments in which an apparent accomplice was residing, was found. That back pack containing over 2,000 tablets, the net bulk of MBDB contained therein being about 680gms and part of that in respect of which the importation charge was laid. On interview the Applicant denied any knowledge of the tablets. He was released on bail. 11 Shortly thereafter he was telephoned from the Netherlands and in the course of that conversation the Applicant made mention of his arrest and gave further advice in furtherance of the operation including advice that a meeting should occur and a minimum of $10,000 be provided. There were other calls by the Applicant the contents of which the sentencing Judge described as "damage control" and "harm minimisation". The Applicant is aged 31 years. He came to Australia from Macedonia in 1992 and he is married and has two children. He is not addicted to any illicit substances or alcohol. He has no prior record and some good references were tendered on his behalf. The Judge said he took good character into account. The sentencing Judge said that he gave weight to the Applicant's plea of guilty for pragmatic reasons and that he regarded the plea as an expression of contrition. 12 Although we do not rely on it, in that respect it appears that in that finding His Honour was unduly favourable to the Applicant. The plea was entered on the first day set down for a 2 to 3 week trial albeit after some reduction in the indictment. His Honour observed it was a comparatively strong Crown case although apparently the other participants in the criminality had escaped conviction and the Judge observed that convictions in long trials are far from inevitable. Significant also to the topic of contrition is what the Applicant told a criminologist whose report was tendered shortly before the Applicant came to be sentenced. Such reports commonly consist of pure hearsay and untested evidence favourable to an offender and are of no weight or assistance although in this case, part of the document is unfavourable to the Applicant and any suggestion of contrition. The report records:- "(The Applicant) says that he was not the distributor in the operation but beyond that his role seems to be somewhat unclear. He certainly expresses regret for his implication and on his advice, he received no payment for any of his illegal activities. (The Applicant) claims that he was not aware of the extent of the operation and although he appeared to be attempting to diminish his own culpability in the offence, it was difficult to draw any clear conclusions as the crime was incomplete as far as the role of (the applicant) was concerned." 13 As we have indicated, the sentencing Judge reduced the head sentence and non-parole period he would otherwise have imposed by 4 years and 3 years respectively for further assistance which the Applicant has undertaken to provide. That assistance relates to a murder in jail witnessed by the Applicant. Fairly promptly he provided assistance by way of identification of the offenders in circumstances which can only be described as courageous. He has given undertakings to give evidence relating to the matter. During his incarceration prior to sentence he elected not to go into protective custody - an event calculated to inform the rest of the prison population that he has done something which they would judge contrary to their interests and justifying such custody. However, the sentencing judge recognised that protective custody would almost certainly occur in the future. On the hearing of the appeal, the Court was informed without challenge that the Applicant was now in extreme protection. 14 By reference to past decisions, counsel appearing for the Applicant submitted that the commencing point of 13 years the Judge had used in the determination of the sentence to be imposed was manifestly excessive. Certainly the court was not referred to a sentence imposed for MDMA or MBDB after the introduction of Part 1B of the Commonwealth Crimes Act which was higher than 13 years and the court was referred to a number of decisions where the sentence imposed was significantly lower. Thus in Hauser (unreported, CCA, 11 December 1997) a sentence of 6 years with a non-parole period of 3½ years was reduced by this court to one of 4½ years with a non parole period of 2½ years. In that case 6,000 tablets weighing 2 kgs with a street value of between $420,000 and $620,000 were involved. Reference to the Court file shows that the pure weight was 521 grams of MDMA and 80 grams of MDEA. Hauser, who pleaded guilty only on arraignment, was previously of good character and was regarded as a junior partner in the enterprise. The sentencing judge had, with perhaps undue generosity, taken 2 years off the sentence he would have otherwise imposed for Hauser's plea and limited co-operation with the authorities. This court's reduction of a sentence it described as "well within the range of a proper sentencing discretion" was based on grounds of parity. 15 In Moore and Weibe (unreported, CCA, 11 August 1992) the quantity of MDMA involved was some 632 grams pure, enough to produce over 6,000 tablets having a retail value of approximately $240,000. Weibe was sentenced to a minimum term of 3 years and an additional term of 1 year on a charge of supply under Section 26(2) of the Drug Misuse and Trafficking Act. He was 36 years, a Canadian with no previous convictions and a person of excellent prior character. He was regarded as a courier and had pleaded guilty at an early stage and was regarded as showing contrition. He received a reduction of 50% of the sentence which would otherwise have been imposed for co-operation with the authorities. This court was not satisfied that the sentence imposed was outside the proper sentencing discretion although the court clearly had reservations concerning the sentencing judge's allowance of the reduction for co-operation with the authorities. 16 Moore had been sentenced on a charge of conspiracy to supply the drug and was sentenced to imprisonment for a minimum term of 3 years and 6 months and an additional term of 1 year and 2 months. He also was a courier, had pleaded guilty and his criminality was not regarded as much different to that of Weibe but he was not entitled to the same credit for assistance. The sentencing judge had attempted to reflect differences between the two in his sentence and a Crown appeal against the result was dismissed although, as we read the remarks on sentence, on discretionary grounds rather than by way of any endorsement of the sentence imposed. 17 On the other hand there are a number of cases not as favourable to the Applicant's argument. In Bowers (1997) 97 A Crim R 461 the applicant pleaded guilty to a charge of importing not less than a commercial quantity of MDMA. The number of tablets involved was some 7,000 the value of which was estimated to range between $105,000 and $700,000 depending upon the level in the chain of distribution at which the assessment was made. The report does not disclose the quantity involved but reference to the court file shows it was 719.2 grams. The applicant was a courier. He had no prior convictions and had been unemployed for some period. He pleaded guilty at an early stage although the weight to be given to this was low as he had been apprehended at the airport with the tablets strapped to his body. This court recognised that there had been errors - operating in opposite directions - in the sentencing process but declined to interfere with a sentence imposed of 8½ years imprisonment with a non-parole period of 4½ years. Ireland J described the sentence as proper. Hunt CJ at CL, with whose observations Levine J agreed, said that he would not impose any shorter sentence and that the correct range was much higher than a number of decisions of the District Court to which reference had been made indicated. 18 In Soonius (unreported, CCA 29 May 1998) where the quantity involved was 3.34 kgs estimated to have a wholesale value of about $400,000 and an absolute maximum retail value of $2.063M, this court reduced a sentence of 11 years imprisonment with a non-parole period of 6 years to one of 9 years imprisonment with a non-parole period of 5¼ years. The applicant had been a courier but had pleaded not guilty and was not regarded as exhibiting remorse. The sentencing judge had discounted the head sentence he would otherwise have imposed by 2 years for assistance furnished to the authorities. A feature distinguishing that case from many others was Soonius' psychiatric condition, to which Wood J in Budiman (unreported, CCA 8 September 1998) referred as "powerful and unusual subjective circumstances". 19 In Budiman the applicant was convicted of being knowingly concerned in the importation of 8,095 tablets containing 591gms pure of ecstasy. He was regarded as a courier and had a previously unblemished character. Having maintained his innocence at the trial and subsequently he did not have the benefit of any finding of contrition. This court refused to interfere with the sentence imposed of 8 years and 3 months imprisonment with a non-parole period of 6 years and 3 months observing that the sentence was "one which His Honour was perfectly able to reach". 20 In Carey (1997) 97 A Crim R 552 the applicant pleaded guilty to importing a commercial quantity of ecstasy. The amount involved was about 2 kgs pure, the street value of which was said to be more than $1M. The applicant was apprehended at the airport and thereafter participated in a controlled delivery of the drugs. In consequence a number of persons were arrested and in the court's view much valuable information passed on to the police in the United Kingdom whence the applicant had come. The applicant had undertaken to give evidence on behalf of the Authorities. As facts operating in the applicant's favour, the sentencing Judge took cognisance of the following:- (i) that the applicant's offending was isolated to this occasion; (ii) that, as a courier, the applicant was low in the hierarchy of the enterprise; (iii) the applicant's early plea of guilty; (iv) the deprived and disadvantaged lifestyle of the applicant; (v) the demonstration by the applicant of his will to rehabilitate himself; (vi) his co-operation with authorities in the past. 21 The "deprived and disadvantaged lifestyle" of the applicant merits explanation. He was 25 years of age. He had lived in Liverpool all this life and his situation was described as follows:- "You were living a life of bare existence, close to the poverty line, in Liverpool. You have only rudimentary education. You have no skills. Not surprising therefore you had little or no work. You have lived in sub-standard accommodation. You had an alcohol problem. Life for you was miserable with no prospect of improvement in your lot." 22 The sentencing judge held that but for the reduction to be allowed for future assistance pursuant to Section 21E of the Crimes Act, the appropriate sentence was one of 12 years imprisonment with a non-parole period of 8½ years. The allowance which he made pursuant to Section 21E was 4 years and 3 years for the head sentence and non-parole period respectively. 23 Taking the view that the applicant's miserable and cheerless existence played a significant part in his succumbing to an offer of role of courier in return for a paid flight to Australia, the promise of a 2 week "holiday" and $10,000, the Victorian Court of Appeal said that 12 years was excessive, reduced it to 10 years ultimately imposing, once the Section 21E discount was taken into account, a sentence of 6 years with a minimum term of 3½ years. It appears from the report that Section 16G required adjustments to be made in Victoria as it does in New South Wales. The Court also made an examination of a number of previous decisions saying it disagreed with remarks in Bowers to the effect that a sentencing range or pattern had been emerging for the offence of importing a commercial quantity of ecstasy. However, it is unnecessary for us to pursue either of these aspects of that case. 24 In Behar (unreported, CCA, 14 October 1998) the applicant pleaded guilty to a charge of importing 1.231 kgs of MDMA. He was regarded as a courier. The view was expressed that in the working out of the appropriate sentence for an offence of the character under consideration, a starting point of 10 years was too low unless it were reached after the discount required by Section 16G of the Crimes Act (Cth) was allowed, and even then it might be at the lower end of the appropriate range. In Behar substantial discount was allowed for co-operation but it is not necessary to pursue that aspect. 25 When one has regard to the decisions and circumstances in Bowers, Budiman, Soonius and Carey, and the remarks in Behar, it is not possible to conclude that His Honour's starting point of 13 years is out of the range of sentences reasonably available to him. Accepting that the Applicant here was not a principal, the difference in criminality between that of a courier and that of the Applicant is nevertheless substantial. Nor was the Applicant's criminality lessened by his actions after first arrest. This difference in criminality and the difference in quantities is sufficient to explain the difference between 13 years and the head sentence imposed on Budiman. Bowers also was a courier who made early admissions, pleaded guilty and was contrite. Soonius was a courier and his psychiatric condition entitled him to some leniency for which this Applicant does not qualify. Against this is the fact that the quantity in Soonius' case was almost three times as great and he pleaded not guilty. 26 If 10 years was an appropriate starting point in Carey, once one has regard to the matters tabulated soon after we commenced reference to Carey, the Applicant was perhaps fortunate that Judge Mitchelmore in this case did not start off with a period higher than 13 years. 27 Neither must sight be lost of the terms of the legislation. The maximum penalty for the offence for which His Honour thought 13 years appropriate was life imprisonment. Furthermore the effect of the legislation is also that a person who is a first offender in respect of a trafficable quantity of ecstasy under but reasonably close to 500gms is, in a worst case within that category, liable for imprisonment for 25 years in those States where remissions still apply and, having regard to the terms of Section 16G of the Crimes Act and the reduction of about one-third commonly given on that account - see El Karhini (1991) 51 A Crim R 123, Doan (unreported, CCA, 27 September 1996), Li (1998) 1 VR 637 at 641-2 - about 16½ to 17 years in New South Wales. The applicant's criminality was high and the quantity involved was 2½ times the 500gms dividing line between trafficable and commercial quantities. We are not unconscious of the fact that in a number of decisions - see e.g. Budiman and Bushell (unreported, CCA, 7 August 1998) - ecstasy has been described as a middle range drug and regarded as creating less harm than e.g. heroin but the fact remains that Parliament has legislated as we have indicated, selecting the quantities which in its view were appropriate to fall into the categories of trafficable and commercial and for which the maximum penalties stated are prescribed. 28 We turn then to the discount His Honour allowed on account of the Applicant's promise of further co-operation. Discounts of 4 years from 13 years and 3 years from 9 years are by no means insubstantial. On the other hand, once it is recognised that the Applicant and, as His Honour seems to have found, his family, are now at risk and the Applicant will almost certainly have to serve his time in the significantly more onerous situation of protective custody, the value of the discounts is substantially lessened. There is no formula by which such discounts are to be determined and given that their determination is to a significant extent a matter of impression and subjective judgment an appellate court should be slow to interfere. However, when regard is had to the consequences, adverse to the Applicant, which we have mentioned, consequent upon his agreement for future co-operation with the authorities, the conclusion at which we have arrived is that His Honour, on this topic, erred. He should in our view have granted the Applicant a discount significantly greater than he in fact did and allowed 5 years rather than 4 years off the head sentence, making a somewhat similar adjustment to the non-parole period. 29 It was for these reasons that the Court made the orders set forth above.