R-v-CASSAR [1999] NSWCCA 152

New South Wales Court of Criminal Appeal CITATION : R-v-CASSAR [1999] NSWCCA 152 revised - 18/06/99 FILE NUMBER(S) : CCA 60090/98 HEARING DATE(S) : 28TH May 1999 JUDGMENT DATE : 28 May 1999

PARTIES : Regina v-Charles Michael CASSAR JUDGMENT OF : Barr J at 1; McInerney AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0826 LOWER COURT JUDICIAL OFFICER : Rummery DCJ

COUNSEL : For the Applicant: M.A.Green QC For the Crown: PG Berman SOLICITORS : For the Applicant; CK Smith For the Crown : Michael Croke & Co. CATCHWORDS : CASES CITED: Veen No. 2 164 CLR 465 DECISION : The appeal against conviction is dismissed. Leave to appeal against sentence is granted and the appeal allowed. The sentence imposed by H.H. is quashed, as are H.H.'s directions about supervision on parole. In lieu of the sentence imposed, the appellant is sentenced to penal servitude for ten years, comprising a minimum term of seven years and six months, commencing on 16th June 1997 and expiring on 15th December 2004 and an additional term of two years and six months commencing on 16th December 2004 and expiring on 15th June 2007. The appellant will be eligible for release on parole on 15th December 2004.

IN THE COURT OF

CRIMINAL APPEAL

60090/98

BARR J MCINERNEY AJ

28th MAY 1999 REGINA -v- CHARLES MICHAEL CASSAR JUDGMENT

1 McINERNEY AJ: This is an application for leave to appeal against sentence by the applicant in relation to a sentence imposed on him by Rummery DCJ on 18 September 1998 for the offence of supply prohibited drug, namely heroin, a large commercial quantity in the amount of three and a half kilograms. His Honour sentenced him to a minimum term of eight years and three months with an additional term of two years and nine months, being a total sentence of eleven years. 2 He had pleaded not guilty to the charge and he was indicted with a fellow associate, one Zoran Udorovic. The trial commenced on 2 February and concluded on 24 February when both were found guilty by the jury. 3 The Crown case is set out by his Honour in some detail and it does not require me to go through it in the same detail, except to point out some salient factors about the matter in order to disclose the serious criminality involved. 4 It appears at about 8.15am on 29 November 1995 the applicant was seen to leave premises at 3 Benalla Crescent Marayong and drive a red Holden Commodore motor vehicle owned by his de facto wife to lot 43 Aldington Road Kemps Creek, where the co-offender Udorovic resided. On arrival at Kemps Creek, he parked in the driveway. The prisoner was then seen in company in the backyard and garage of the premises and in front of the garage. The prisoner Udorovic then wearing a goatee beard, was seen to carry a green duffel bag and place it in the boot of the red Holden after the prisoner Cassar had removed a spare wheel. 5 They were surveilled by the police when they drove to premises at 18 Mason Road Box Hill where they entered the premises carrying the green duffel bag and left shortly thereafter. A few minutes later they were stopped by the Highway Patrol and their car was searched. 6 The police did not arrest them on that occasion but they later went to the premises at Box Hill which was unoccupied and apparently devoid of furniture and gave the appearance of being unlived in. Under a mattress in one of the bedrooms, 3.36 kilograms of heroin was found. In addition, a large number of resealable plastic bags in which was a powder, analysed to contain heroin. Most of the bags had numbers marked on them. There were a further eighty two bags which had no marking or writing on them. Also found in the house was a set of electronic scales, Glucagon, a substance commonly mixed with heroin, further resealable bags and a coffee grinder and a further set of electronic scales. 7 Inquiries by the police disclosed that the premises had been leased by the applicant using an alias at the time when he entered into the lease. He was accompanied by his accomplice who also used an alias and both gave false places of employment. The Crown case clearly was that the premises at Box Hill were leased by both in order that they could make use of it as a safe house in which to store the materials. They had used aliases to conceal their connection with the house. 8 That same day the applicant was observed driving his motor vehicle. He was followed by the police but they lost contact and he was not seen again by the police for some eighteen months. 9 On the other hand, Udorovic was observed at his home arriving in a pantechnicon which was placed close to the garage and he was then arrested. Certain matters were noted in the premises and clearly he was connected with the safe house and other material was found on his premises to suggest that he was involved in this episode of which there could be no dispute. 10 His Honour categorised the offence committed by the applicant and the Co-accused as deliberate and well planned. The quantity of heroin involved was a large commercial quantity as I have stated. The potential financial gain to the accused was enormous, as was the likely misery, damage and other consequences of its distribution to users. The community, he said, expects that a severe penalty would be imposed in circumstances such as this, the legislature having provided a maximum sentence of twenty five years' penal servitude. 11 Evidence was given if the heroin had been cut to fifteen per cent purity the heroin found would have retailed for approximately $3,900,000 and could have a wholesale value of $670,000. Those figures clearly show that this was no doubt a major criminal enterprise and called for condign punishment. 12 After a sentencing hearing, Udorovic who did not give evidence was sentenced to a total sentence of nine and a half years with a minimum term of five and a half years with an additional term of four years three months. The applicant on the other hand was sentenced to a minimum term of eight years and three months with an additional term of two years and nine months, a total sentence of eleven years, one and a half years more than the total sentence of Udorovic but more importantly the minimum term imposed on this applicant was three years more than that imposed on Udorovic. 13 An attack is made by Mr Green on a number of bases which would he submits would lead this Court to interfere. 14 Firstly, his Honour having found that the offence had been committed whilst on parole and that that added to the seriousness of the offence, on being corrected it is submitted he was obliged to adjust the sentence in favour of the applicant, which on the face of his remarks he did not do. That ground of appeal is conceded by Mr Berman who appears on behalf of the Crown and consequently it will be necessary to interfere with his Honour's sentence on that ground alone. 15 Secondly, it is submitted that whilst his Honour directed his mind to the question of parity, the sentences demonstrated such an excessive disparity that the sentence should be set aside. 16 Thirdly, that his Honour heard evidence that the applicant had fears for his safety in gaol and whilst acknowledged he would serve a substantial portion of his sentence in protective custody, the judge did not give to this consideration at all in the sentence that he subsequently imposed. 17 There are a number of common features between the two offenders, as they had both pleaded not guilty and there was no question of contrition from either of them. Secondly, his Honour found at page 11 in his remarks on sentence "The degree of criminality and the involvement of each prisoner appears to the Court to be equal." 18 Surprisingly however at the same page of his remarks, he considered separately the involvement of the Co-offender when he said that he believed he was involved more with the simple rudimentary activities involved in this large scale criminal operation, rather than the more sophisticated planning. In other words, although his role was important and necessary, he was but a small cog in the workings of the criminal operation and by no means a person or persons who initiated, controlled or managed it. His Honour concluded that it was more likely than not that this was an accurate description of the prisoner's role and he accepted that submission. 19 With respect to his Honour, I find that finding by his Honour as somewhat surprising. However, be that as it may, I would approach this matter on the basis that his Honour having found equality in criminality that it must of necessity follow that his Honour regarded the applicant in like terms as he had noted at the outset that the starting point in respect to the criminality involved in this case of both offenders was in the order of eleven years. 20 In respect to the Co-offender, he was a person aged thirty three years and had not previously been in custody. His Honour assessed that Co-offender's prospects of rehabilitation as being good and was prepared to find special circumstances which led him to vary in his favour the ratio between the additional term and the minimum term and he then sentenced the Co-offender in the terms that I have set out previously. In respect to Udorovic, his Honour took a very expansive view of his prospects of rehabilitation. He, contrary to that of the applicant, had a minor criminal background and he had never served a sentence in custody. His Honour assessed his prospects of rehabilitation as good at page 12 of his remarks on sentence. This was apparently brought about by the number of glowing references that were tendered on behalf of that person and also references from Wirelink Business Unit at Silverwater where he is said to have been an efficient worker, had taken on responsibilities and had done an excellent job. In addition, he had apparently had passed an introductory TAFE course in computing skills for the office. 21 On the other hand, no material was put before his Honour in respect of the present applicant and this was apparently deliberately done on his behalf by his counsel. When the sentence hearing was taking place before his Honour, his counsel made it quite clear that he was making no submissions other than submitting on the aspect of the particular offence. He said this at page 7: "If I could just put to your Honour so that you are very clear why I'm not making any other types of submission (that is, in addition to submission he was making about him serving his sentence on protection) I have certain instructions from Mr Cassar, the prisoner, relative to his belief in his innocence and of course I'm not cavilling with the decision of the jury but those instructions tie my hands in relation to whatever I can say." 22 Needless to say, by those instructions there was no contrition or remorse, in fact there was a trial and the trial was of lengthy nature and he said I just wanted to place that on record. Furthermore, in answer to a question from his Honour he said "he understands that but the point I am making there is he intends to appeal his conviction". 23 So it is quite clear that there was nothing in the applicant's case put before his Honour to enable his Honour to come to any conclusion on the question of special circumstances. Nevertheless Mr Green has submitted that the disparity between the two sentences is so great that there is a justifiable sense of grievance in the applicant's conviction. 24 The applicant, contrary to the Co-offender, has a criminal record which consists of a number of drug offences and other matters. In 1982 for example he was charged with possessing a prohibited drug, obviously not a very serious matter. In 1983, possess a prohibited drug and fined $300. He was put on a recognisance to be of good behaviour for two years and fined $1000. But in 1988 he was convicted of a conspiracy to supply a drug of addiction where he was initially sentenced to eleven year's imprisonment with a non-parole period of seven years and six months but that was readjusted. 25 The learned Crown Prosecutor in his submission referred to the case of Veen Number 2 164CLR 465 and in particular the passage in the judgment of the court at page 477. It is not necessary for me to read that part of the judgment out but it is important to understand that in considering a past criminal record, the antecedent criminal history is relevant to show whether the instant offence is an uncharacteristic aberration, or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. It is said in the latter case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders. 26 In my view, having regard to the conviction of a serious offence relating to heroin on a previous occasion and within a few months of that sentence expiring, he is involved in criminal activities to this extent, did in fact warrant condign punishment on this applicant. 27 Therefore, on the question of parity, even conceding the criminality of both was equal, there were differences. One, the age difference, although in the circumstances this is not a matter of great moment or any moment; two, there was no evidence of any of the prospects of rehabilitation, whereas the co-offender's prospects were found to be good; three, one offender with a minor record, never been gaoled, the applicant with a record of drug dealing and in particular a very serious previous offence of a conspiracy to supply heroin, which in my view showed a propensity to be involved in large scale dealing in drugs and the need to impose condign punishment. 28 In respect to the parity argument, thus there are many differences between the offenders such as to distinguish them. In my view, on an examination of all the circumstances of this case, I would not be satisfied that there was any basis for claiming that this parity of sentence was such imposed on this applicant as this Court to interfere. On the question of serving his sentence in protective custody his having had regard to that fact. The basis therefore that I would propose that we should interfere because of is the misunderstanding by his Honour of the applicant being on parole and when that matter was brought to his attention, his Honour determined not to alter the sentence. In those circumstances it would be my view that this Court should intervene. The question is, to what extent. In my view, an appropriate discount for that would be one year. 29 There being no special circumstances, I would propose that the sentence be quashed, that a minimum term of seven and a half years be substituted as a minimum term and an additional term of two and a half years. The minimum term is to commence on 16 June 1997 and conclude on 15 December 2004 with an additional term of two and a half years to commence on 16 December 2004 and expire on 15 June 2007. At the conclusion of the minimum term on 15 December 2004 he may be admitted to parole. 30 It has also been pointed out by the learned Crown that his Honour made an order that when he is released on parole he is to be supervised by the New South Wales Protection Service and obey all directions of that service. It has been pointed out that his Honour had no power to impose that order and I would propose that that order be quashed also. 31 BARR J: I agree. Mr Green, I notice that the notice of appeal is against conviction. Has that been abandoned? 32 GREEN: It has been abandoned, I'm not sure if the notice-- 33 BARR J: I do not think it has formally, has it? 34 GREEN: I don't know if it was formally done but certainly there was never an intent from some months ago to prosecute that. 35 BARR J: I think just to remove any possible doubt later on we had better dismiss the conviction. 36 GREEN: Yes, very well, your Honour. 37 BARR J: I agree with his Honour's reasons and the orders proposed by his Honour. The orders of the Court will therefore be as follows. 38 The appeal against conviction is dismissed. Leave to appeal against sentence is granted and the appeal allowed. The sentence imposed by his Honour is quashed, as are his Honour's directions about supervision on parole. 39 In lieu of the sentence imposed, the appellant is sentenced to penal servitude for ten years, comprising a minimum term of seven years and six months, commencing on 16 June 1997 and expiring on 15 December 2004 and an additional term of two years and six months commencing on 16 December 2004 and expiring on 15 June 2007. The appellant will be eligible for release on parole on 15 December 2004.