New South Wales Court of Criminal Appeal CITATION : Regina v Stead [1999] NSWCCA 41 revised - 19/03/99 FILE NUMBER(S) : CCA 60313/98 HEARING DATE(S) : 12/03/99 JUDGMENT DATE : 12 March 1999 PARTIES : Regina v Christian Stuart STEAD JUDGMENT OF : Spigelman CJ at 39; Abadee J at 2; Adams J at 40 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0962 LOWER COURT JUDICIAL OFFICER : Judge Viney QC COUNSEL : W. G. Roser - Respondent J. Conomos - Appellant SOLICITORS : Commonwealth Director of Public Prosecutions - Respondent Swioft Yvonne & Burn - Appellant CATCHWORDS : ACTS CITED : s 233(1)(cb) Customs Act (Cth) s 16G Crimes Act (Cth) Postiglione v The Queen (1996-1997) 189 CLR 295 per Dawson and Gaudron JJ at 302 CASES CITED: Regina v Watson (CCA 18 September 1998 unreported) DECISION : Leave to appeal the sentence is refused IN THE COURT OF CRIMINAL APPEAL 60313/98 SPIGELMAN CJ ABADEE J ADAMS J FRIDAY 12 March 1999 REGINA v Christian Stuart STEAD JUDGMENT 1 SPIGELMAN CJ: I will invite Abadee J to give the first judgment. 2 ABADEE J: The applicant seeks leave to appeal from a sentence imposed upon him by Judge Viney QC in the District Court. On 17 December 1997, the applicant was arraigned before Judge Hosking QC with John Viana and Wayne Bonette and others to import into Australia not less than a commercial quantity of cocaine. The charges were brought pursuant to s 233(1)(cb) of the Customs Act 1901 (Cth). The maximum penalty for breach of that section is imprisonment for life. The commercial quantity of the drug pursuant to schedule 6 of the Customs Act is two kilograms. The facts disclose that the conspiracy between the applicant, Viana and Bonette, was to import four (4) kilograms of cocaine. 3 On 1 June 1988 Judge Viney sentenced the applicant to a head sentence of ten years with a non-parole period of five years to commence on 25 June 1997. 4 In respect of the applicant several arguments have been advanced. First, that in view of his Honour's findings, a sentence of imprisonment of fifteen years was excessive. This should be explained as meaning this was the sentence first considered by his Honour before reductions under s 16G of the Crimes Act (Cth) were to be dealt with by his Honour. The applicant claims that his Honour should have started with less than fifteen years before applying the relevant reductions. He also argues that the sentence of ten years ultimately imposed was a very high sentence and not reflecting, amongst other things, the objective facts relating to the case. 5 Next it was submitted that having regard to the sentence of eighteen years imprisonment initially considered by his Honour as being appropriate in respect of the co-offender Bonette and the fifteen years imprisonment to which I have already made reference, that the eighteen years and fifteen years terms of imprisonment did not properly reflect the difference in the extent of the involvement of the applicant and Bonette in the commission of the offence. Thus it was said, that on the objective facts, fifteen years, in the case of the applicant, as a starting point, was too high. 6 Next it was submitted that the ultimate sentence of ten years imprisonment was excessive compared with that of Bonette. It was conceded by Mr Conomos, appearing on behalf of the applicant, that his Honour did not use as and against the applicant any favourable view of Bonette confirmed in the sentencing proceedings involving that particular co-offender. 7 It was also submitted that when one looked at the two sentences imposed that there was a sentencing disparity. 8 Before turning to the facts, it is appropriate to briefly advert to the position in respect of the co-offenders. Viana has entered a plea of guilty to the allegations alleged against him. The sentencing of Viana has been listed on a number of occasions before Judge Viney. On each occasion Viana has sought an adjournment. The matter is next listed for sentence before Judge Viney on 26 March 1999. 9 The sentencing reasons for the sentence imposed on Bonette are included in the appeal book and I will return to them in due course. It is, however, sufficient for me to mention at this stage that a head sentence of eight years with a non-parole period of three years and six months was imposed upon Bonette. 10 I now turn to the objective facts recounted by his Honour. His Honour stated that the facts were set out in the facts statement which was similar to the facts statement which had been tendered before him when he was involved in the sentencing of Bonette. His Honour did not consider it necessary to recite all that material again. Nevertheless, that material does show that in late May 1997 the Australian Federal Police commenced investigations into the activities of the three co-offenders. The investigation revealed that the three men were sending amounts of money abroad. There is no dispute or challenge as to the findings made by his Honour and they may be appropriately summarised also by reference to what appears in the sentencing remarks as well as in the evidence that was given by the applicant in the sentencing proceedings. 11 At the end of 1996 or early 1997 the applicant on some social occasion met Viana. He was impressed by Viana who invited him into his business activities. Viana offered him employment. The applicant claimed that the relevant business was to be commenced by Viana which involved the selling of computers and he was encouraged to enrol in a TAFE course. At the behest of Viana he arranged to lease premises at Narrabeen and thereafter he was visited from time to time at those premises. 12 In his evidence, the applicant said that Viana had introduced Bonette to him. He was told by Viana that Bonette was his Australian business partner. The applicant's job in the business activities of Viana apparently initially involved banking of considerable sums of money and transporting and disposing of considerable sums of cash at the direction of Viana. 13 It would appear that in 1997 Viana asked if he wished to travel to the United States. Viana said that his father was coming to Australia and was liquidating his affairs in the United States. Viana asked the appellant to send a computer to Los Angeles and to also travel to Los Angeles. As well, the appellant was given a lap top computer to be taken to the United States and to be given to Bonette on his arrival in Los Angeles. 14 On 24 May 1997 the appellant left Sydney for Los Angeles. Whilst in Los Angeles Bonette offered him a sniff of some cocaine and it was then, as his Honour stated in his reasons, it was "divined" by the appellant as to what was going on. Whilst in Los Angeles he received monetary payments from Bonette. There was discussion in Los Angeles about where a certain computer was to be sent. There was discussion about whether there was cocaine in the computer. There was an argument between him and Bonette. The appellant was given a lap top computer to bring back to Sydney and he was told to give it to Viana when he got there. 15 The appellant arrived back in Australia on 9 June 1997 in the possession of a lap top computer. Apparently the appellant went to his home. It appears from the facts sheet that on 11 June 1997 Customs officers identified an air cargo assignment addressed to the appellant, Mr Stead. It appeared to have been earlier tampered with by person(s) unknown. Within the package was a Commodore Omega computer hard drive. Chemical swab tests conducted by the authorities indicated a positive reaction to the presence of cocaine. 16 A discussion took place between the appellant and Viana and Viana told him to meet him in Newcastle. The meeting took place in Newcastle. Subsequently the appellant returned to Sydney where he found that his fiancee had left him. He then went to Cairns subsequently on 25 June 1997. He returned to Sydney and was arrested. He was conveyed to the Australian Federal Police headquarters. He declined to participate in a record of interview and was then charged with the offence the subject of the sentencing. 17 The facts set out in the facts statements relied upon by his Honour reveal that the then current street price of the four kilograms of cocaine that the appellant conspired to import would have realised between $1.7 million and $2.3 million. 18 In sentencing, his Honour initially acknowledged a difficulty arising from sentencing co-conspirators on separate occasions because of inter alia potential conflicting versions as to the facts, details of involvement in the enterprise and variations relating to the involvement or degree of involvement in the offence. His Honour, at the commencement of the sentencing remarks, reminded himself that he had earlier sentenced Bonette on 16 December 1995 and of some of the features of Bonette's case. 19 As regards to the role of the appellant, his Honour said (at p 6) of the sentencing reasons: "He specifically denied that he and Bonette were actively installing the cocaine in the computer at Los Angeles, although that is what Bonette said they were doing. That is one of the difficulties that arises in these circumstances. It is difficult to know just precisely what role Christian Stuart Stead was playing. I do have considerable reservations as to the accuracy of his evidence about all these things. It is awkward to know just where he stands, because in dealing with these sorts of cases, one has to try to evaluate precisely, or certainly as best one can, what the role was of the prisoner one is dealing with. Different principles apply to those who are at the top of the chain, and those who are at the bottom of the chain. On the face of it he was simply one of three people engaged in an agreement to bring in four kilograms of cocaine. But the fallout of the evidence lends some support to the fact that he certainly was not the principal, who seems to have been Viana, and he may not be as deeply involved as Bonette". 20 The Crown accepted that his Honour correctly assessed the role of the appellant in the terms described in the paragraph I have mentioned. That said, even if there be a dispute about the level of the applicant's involvement, then it might be fairly thought that the responsibility lay with him, for, as his Honour said in his sentencing remarks at page 6, he had several reservations about the accuracy of the evidence and in this connection there were several matters that his Honour specifically identified. Again, at page 8, his Honour remarked that the applicant impressed as being reluctant to fully discuss his involvement in the offence. His Honour at the same page, appears to have concluded and stated that the applicant was not a drug dealer or a person involved in such illicit trade and nor was he the main organiser or beneficiary of the operation, and that he was not the financier. 21 His Honour again stated at page 8 that the appellant's role was not as the originator of the scheme and again said that Bonette was more involved. His Honour found that the applicant had probably been seduced into the enterprise by the possibility of the dramatic influence in his lifestyle. His Honour gave very careful consideration to the objective facts. It is not suggested that his Honour's reasons reveal any error of fact. 22 His Honour also had full regard to the subjective matters, to the appellant's education and employment record. His Honour assessed him as a talented person, not gullible but easily impressed by the affluent lifestyle of his co-offenders. 23 His Honour took into account the plea of guilty, that the appellant's remorse was genuine. He had regard to the pre-sentence report and the contents of that. His Honour also had regard to the appellant's offer to give evidence. Nevertheless, his Honour did not think that was a matter of great significance, noting that the Crown had put a submission that were the applicant to give evidence it would probably not be of any value. Further, his Honour stated and observed that no statement had been provided and that the matter of the offer of giving evidence had been raised for the first time on the morning of the sentencing. 24 In sentencing, his Honour was particularly conscious of the relevance of the positions of Bonette and the applicant. He had already reminded himself of the sentencing proceedings relating to Bonette. Particularly relevant to the disparity argument, which I will turn to in greater detail in a moment, was his Honour's sentencing remarks that when he dealt with Bonette there were features of his case, including the lengthy statement he made to the police on his arrest and afterwards about what he had said were the total details of the enterprise to be considered. Mr Bonette had also undertaken to give evidence against the appellant and a third person called Viana. 25 I see nothing in his Honour's findings to suggest that his Honour's approach to the sentence, being one that initially should be considered in terms of fifteen years, was erroneous. In my view, the overt acts disclose a serious course of criminality in which the applicant, by his plea, agreed with his co-offenders to import a considerable amount of cocaine, being four kilograms of cocaine, into Australia. The appellant's role was an important one. Indeed, his Honour said that the appellant was recruited because he was able to do a number of things. 26 In my view, his Honour properly gave due and careful weight to the objective facts as well as to the various subjective factors. I see no error in his Honour's conclusion that the appropriate sentence should initially have been considered as being one in terms of fifteen years. 27 Next, the appellant submitted that the eighteen years (Bonette) and fifteen years (Stead) as sentences first considered by his Honour did not properly reflect the extent of the difference of the involvement of the appellant and Bonette in the commission of the offence. In my view, there is no substance in this point. His Honour was in the unique position of assessing the individual criminality of the parties to the conspiracy. His Honour assessed the position of the appellant as lower in the scale of the conspiracy than that of Bonette. 28 When considering a sentence of fifteen years for the appellant as I have said, no error is shown. In my view his Honour's assessment of the role and findings in respect of the appellant reflect no error. 29 Next, it was submitted that the ultimate sentence of ten years was somewhat excessive when compared with that imposed on Bonette and it gave rise to a justifiable sense of grievance. There is no contention by the applicant that the sentencing judge erred in relation to the non-parole period. That said, the head sentence is but one of the components of sentence and the proper comparison involved a consideration of all the components: see Postiglione v The Queen (1996-1997) 189 CLR 295 per Dawson and Gaudron JJ at 302. 30 It is to be remembered that this was a case involving a conspiracy to import cocaine as was the case of Postiglione. It is, perhaps, again worthwhile quoting, a particular passage from Postiglione dealing with the approach to discrepancy or disparity at least particularly in the context of such an offence of conspiracy to import. Their Honours Dawson and Gaudron JJ said at 301 to 302: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas." 31 In his sentencing reasons his Honour indicated the problems in sentencing co-offenders at different times. That said, his Honour was fully cognisant of the distinction between the two cases and was qualified to assess the respective situations of Bonette and the applicant. 32 Despite the different roles one should also remember that subjective factors concerning co-offenders may justify disparity in their sentences: see Regina v Dumbrell (CCA 9 May 1997 unreported). Again, as I have already indicated, differences in the actual circumstances of the co-offenders, apart from their different degrees of criminality, may also play a significant role when one is considering the matter of different sentences. As Postiglione reveals, one such different circumstance may involve significant assistance to the police and prosecuting authorities on the part of one co-offender. 33 In this particular case there are significant distinguishing features between the positions of the appellant and Bonette. At the very first opportunity Bonette not only pleaded guilty to the allegations at the Local Court but also gave an undertaking to give evidence in any hearing against the appellant and Viana in addition to the written undertaking tendered on his sentence. Bonette also supplied a seventy-page statement of his undertakings of assistance to the authorities. His Honour specifically took these matters into account in sentencing Bonette, holding that Bonette was entitled to a significant reduction of sentence in relation to those matters. 34 Further, Bonette would need to serve most of the time in a protection unit. As Dawson and Gaudron JJ said (at 303) in Postiglione even a difference in custodial situations may well be an aspect that is relevant to the question of disparity of sentence. 35 His Honour also took into account the need to distinguish between past assistance and future assistance and his Honour in fact did so. His Honour was, in my view, entitled to give little weight to the appellant's offer to give evidence. Its genuineness and usefulness was considered by his Honour and I need say no more. The importance of having rendered assistance to the police and prosecuting authorities is one of the circumstances falling within different circumstances of co-offenders which is also not only recognised in Postiglione but also again in Regina v Watson (CCA 18 September 1998 unreported), particularly Beazley JA at 11 to 13. 36 In my view, a significant circumstance of distinction is that Bonette co-operated with authorities and he was entitled to receive a significant discount to which the appellant here was not entitled. In my view, the disparity argument should be rejected. 37 That comes to the proposed order. Viana is still to be sentenced and he is a co-offender. That matter would suggest that leave to appeal should be refused rather than an order being made to grant leave and dismiss the appeal: see Postiglione at 305. 38 In the circumstances I would propose that leave to appeal the sentence be refused. 39 SPIGELMAN CJ: I agree. 40 ADAMS J: I also agree but I would like to add some brief comments. First of all, it is important to note that this Court, as has been said many times, is a Court of Appeal and whether, speaking for myself, I would have imposed a sentence reflecting the same differential which his Honour below did is immaterial. The question is whether his Honour erred in so doing. As Abadee J has said, there is no error discernible in his Honour's reasons, in comparing sentences passed on the appellant's co-offender. Accordingly, this appeal must be dismissed. 41 I wish, however, to mention a matter which has been referred to from time to time obliquely in judgments on this subject matter which I think is an important consideration when looking at the seriousness of offences such as this. It is trite to say that involvement in the importation of prohibited drugs, quite apart from possession and use of those drugs in the community, is a very serious offence. Breaking the law for financial gain, especially where it brings in its train the social consequences of corruption, violence and a host of secondary crime committed by those who otherwise cannot afford to satisfy their addiction, seems to me to represent the nub of the seriousness, rightly considered, of crimes such as that which we are presently considering. These matters magnify considerably the culpability involved merely in providing to persons drugs to satisfy their curiosity, and regrettably highly likely, their addiction need. Heavy sentences for these offences are therefore, justly imposed on those seeking to profit from the unlawfulness of the supply of such drugs. 42 SPIGELMAN CJ: The order of the Court is that leave to appeal is refused. 43 Mr Stead, the order of the Court is that leave is refused. That is a matter of some significance. Customarily the order the Court makes is that the Court grants leave to appeal and dismisses the appeal. Your counsel, Mr Conomos, will explain the difference to you. 44 APPLICANT: Excuse me, am I allowed to say something? 45 SPIGELMAN CJ: No. 46 APPLICANT: It is okay to speak? 47 SPIGELMAN CJ: No. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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