Reported Decision : 147 A Crim R 385 New South Wales Court of Criminal Appeal CITATION : Regina v Prasad [2004] NSWCCA 293 HEARING DATE(S) : 22/7/04 JUDGMENT DATE : 1 September 2004 JUDGMENT OF : Wood CJ at CL at 1; Hidden J at 43; Smart AJ at 44 DECISION : Appeal Dismissed. CATCHWORDS : Criminal law - importation of commercial quantity of ecstasy - s 233B(1)(d) Customs Act 1901 (Commonwealth) - whether sentence inadequate. LEGISLATION CITED : Customs Act 1901 (Commonwealth) - s 233B(1)(d) Crimes Act 1914 (Commonwealth) Cranssen v The Queen (1936) 55 CLR 509 Olbrich v The Queen (1999) 199 CLR 270 R v Allpass [1994] 72 A Crim R 561 R v Benais [1999] NSWCCA 236 R v Bimahendali (1999) 109 A Crim R 355 R v Budiman (1998) 102 A Crim 411 R v Ceissman [2001] NSWCCA 73 R v Chan [2002] 128 A Crim R 119 R v Dujeu [2004] NSWCCA 237 R v El-Hani [2004] NSWCCA 162 CASES CITED : R v Gutteriez [2004] NSWCCA 22 R v Hayes [1987] 29 A Crim R 452 R v Howland [1999] NSWCCA 10 R v Kevenaar [2004] NSWCCA 210 R v Mas Rivadavia [2004] NSWCCA 284 R v Rose NSWCCA 23 May 1996 R v Simon [2003] NSWCCA 147 R v Shepherd [2003] NSWCCA 287 R v Studenikin [2004] NSWCCA 164 R v Wall [2002] NSWCCA 42 Wong and Leung v The Queen (2002) 185 ALR 233 PARTIES : Regina Simon Sunil Prasad FILE NUMBER(S) : CCA 60015/04 COUNSEL : R Sutherland SC (Crown) S Odgers SC (Respondent) SOLICITORS : Commonwealth Director of Public Prosecutions HardinLaw LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/1167 FILE NUMBER(S) : LOWER COURT Andrew ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60015/04 WOOD CJ at CL HIDDEN J SMART AJ Regina v Simon Sunil Prasad The respondent, Simon Sunil Prasad, was sentenced to 14 years imprisonment with a non-parole period of 8 years and 8 months following his conviction of being knowingly concerned in the importation of a commercial quantity of ecstasy into Australia in contravention of s 233B(1)(d) of the Customs Act 1901 (Commonwealth). The importation was intercepted by Customs officers, who found 480,000 ecstasy tablets secreted in freezer panels in a container that had arrived from Antwerp by ship. The total consignment of pure ecstasy weighed 123.75 Kgs or 34.401 Kgs, with a wholesale value of between $7.2 million and $12 million. He had agreed to participate in the importation in return for a sum of $50,000 and a promise that a $100,000 debt would be cleared, in circumstances where his business had debts and he was in serious financial difficulties. The prior sentencing of two co-offenders had provided context for the Respondent's own sentencing. One, Shepherd, after a guilty plea and assistance had been taken into account, had been sentenced to 14 years with a non-parole period of 9 years. The other co-offender, El-Hani, after being found to have had a central role, received a term of 15 years with a non-parole period of 10 years. The Crown appeals against the asserted inadequacy of the sentence Held: The objective criminality of the Respondent was ascertainable through the active and important role he assumed in the importation. This included insulating other co-offenders from direct contact with the consignment, ensuring the clearance of the drugs, engaging Shepherd and passing on documents. The large size of the importation should also be taken into account: Olbrich v The Queen (1999) CLR 270, and Wong and Leung v The Queen (2002) 185 ALR 233. Like Shepherd, the Respondent had sought monetary gain. While he stood to gain more in terms of profit, Shepherd performed additional and important work including the forging of the entry documents and arranging for the collection, transference and storage of the consignment while the freezer panels containing the drugs were identified and booked on a truck for transport to Sydney. The submission that the Respondent's role was equal to and more significant than that of Shepherd is rejected. Held: The constraints on Crown Appeals summarised in R v Wall (2002) NSWCCA 42 applied. The question for the Court was whether the sentence was manifestly lenient, falling so far outside the permissible range, as to show demonstrable error: Cranssen v The Queen (1936) 55 CLR 509; R v Holder (1983) 3 NSWLR; R v Hayes (1987) 29 A Crim R 452 and R v Allpass (1994) 72 A Crim R 561. Held: The starting point and resulting sentence were unduly lenient and fell outside the sentencing range, after taking into account the very large size of the importation, the Respondent's own role, the matters referred to in s 16A(2) of the Crimes Act and the favourable subjective circumstances of the Respondent. The general deterrence factor was not adequately reflected: R v Budiman (1998) 102 A Crim R 44 and R v Benais [1999] NSWCCA 236; nor was the available maximum penalty: R v Bimahendali (1999) 109 A Crim R 355 and R v Simon [2003] NSWCCA 147. A proper sentence would have been in the range of 17 years with a non-parole period of 11 years and 2 months. The appeal should be dismissed, taking into account the discretion reserved for Crown appeals, and allowing for the fact that when there is Court intervention, the least sentence properly imposed at trial will be ordered: R v Rose NSWCCA 23 May 1996, R v Howland [1999] NSWCCA 10 and R v Ceissman [2001] NSWCCA 73. - 5 - IN THE COURT OF CRIMINAL APPEAL 60015/04 WOOD CJ at CL HIDDEN J SMART AJ Wednesday 1 September 2004 Regina v Simon Sunil Prasad Judgment 1 WOOD CJ at CL: The Crown brings this appeal against the asserted inadequacy of the sentence which was imposed upon the Respondent on 18 December 2003 by Acting Judge Andrew, in the District Court. The sentence, of 14 years imprisonment with a non-parole period of 8 years and 8 months, was passed following the conviction of the Respondent, at trial, on one count of being knowingly concerned in the importation into Australia of a commercial quantity of ecstasy, contrary to s 233B(1)(d) Customs Act 1901 (Commonwealth). The maximum available penalty for the offence is life imprisonment and/or a fine of $750,000. Facts 2 During 2001 the Respondent agreed to assist Huynh Joon Choi, also known as John Choi, with the importation into Australia of a shipment of narcotics. At the time of this agreement, he was in serious financial difficulties following the collapse of his import and trading business. He owed Choi $100,000 and apart from the significant indebtedness of his company, he also had substantial personal debts. Choi promised him $50,000 in return for his assistance in the venture, and agreed to forego the debt which was owed to him. 3 The Respondent discussed his financial predicament with his adviser and business associate, Maurice Shepherd, who advised him that he had little option other than to accept the offer. In giving this advice he had a personal interest in that he was also a creditor of the Respondent. Shepherd went further than giving advice in that he agreed to assist the Respondent in carrying out the work required for clearance of the consignment, which was due to arrive in a container, through Customs, and in taking delivery of the container into a factory unit which he leased. In return for this assistance the Respondent agreed to share his expected return from the venture, by paying to him $25,000. 4 Between August and November 2001 the Respondent received from Choi the documents and money that were needed to clear the container. He also received instructions from Choi to the effect that Glen Bourke had been engaged to assist with the unloading. Arrangements were put in place to identify the goods in the container, which contained the drugs, and to arrange their transport to Sydney where they were expected by Louis and Joseph Sukkar and other associates. 5 One of those associates was asserted by the Crown to be Steven Sukkar, who went to trial with the Respondent and was also convicted. He has brought an appeal against his conviction to this Court, as well as an application for leave to appeal against sentence. The Crown has also appealed against the sentence. Those appeals were argued at the same time as the present appeal, and they will be the subject of a separate judgment. 6 The vessel containing the container left Antwerp on 15 October 2001 and arrived in Brisbane on 17 November 2001. The container was searched by Customs officers on 20 November 2001 and found to contain freezer equipment. Within the freezer panels were 480,000 ecstasy tablets. Thirteen thousand tablets were left in the freezer panels and the container was released for the purpose of a controlled delivery. The total consignment of drugs weighed 123.75 Kgs or 34.401 Kgs of pure ecstasy, with a wholesale value between $7.2 million and $12 million. 7 On 23 November 2001, during the unloading of the container, the Respondent liaised between Shepherd and Choi and also assisted in restoring communications between Bourke and Louis Sukkar. 8 When the freezer panels arrived in Sydney and were searched, it became apparent to the Sukkars that the expected quantity of ecstasy tablets was not there. A series of recriminatory conversations took place between them and Choi, and also between them and the overseas interests, in which various suspicions were aired as to who had stolen the drugs. It was apparent that no one at that stage suspected a Customs/Police interception. 9 Steps were taken to collect and examine the documentation in order to locate a possible time and place for the removal of the drugs. The Respondent lent his assistance to this exercise by liaising with Choi and Shepherd in order to obtain the necessary documents. 10 Throughout, the Respondent acted as a cut out between Shepherd and Choi, and also between the Sukkars and Shepherd, so as to compartmentalise their involvement. Shepherd, however, carried out a critical role in forging invoices and a Quarantine Declaration, and in arranging for the consignment to be cleared and delivered to his factory unit. It was he who paid for the Customs clearance. He also assisted in the unloading of the container and in the unloading of some of the freezer panels onto the truck that was to take them to Sydney. Later he sold the panels that remained in the factory unit. 11 Neither the Respondent nor Shepherd had any financial interest in the ultimate disposal of the drugs, at least so far as the evidence disclosed. The Sentence Imposed on Shepherd 12 Shepherd pleaded guilty and provided assistance to the authorities, which included an undertaking to give evidence in the trial of the co offenders. He was sentenced by Judge Gibson, on 8 November 2002, to imprisonment for 14 years with a non-parole period of 9 years. In sentencing him, his Honour found that he had "made a cold blooded decision to become involved in the importation", and that it was his own greed to be paid the money that was the real reason for his involvement. His part was found to have been "vital to the importation". 13 In his reasons for sentence Judge Gibson made it clear that he had selected a starting point, which he had initially discounted by approximately 30% for s 16G of the Crimes Act 1914 (Commonwealth) which was still in force at the time of the plea and sentence, and had reduced that period by three years for Shepherd's undertaking to give evidence, and had then given a discount of 20% for the plea and past assistance. The head sentence which would have been imposed, but for the future assistance, His Honour explained was one of imprisonment for 17 years with a non-parole period of 10 years and 11 months, a period which was equivalent to 64% of the head sentence. It would appear, from this calculation, that the starting point had been about 32 years which was discounted to about 21 years for the s 16G discount, was further reduced by 3 years for the future assistance to about 18 years, and then reduced by about 20% for the plea and past assistance. 14 There is no set order in which discounts are to be applied nor is there any need for them to be applied as distinct and separate entities, rather than as a single reduction: R v Chan [2002] 128 A Crim R 119 so long as the various reductions are calculated upon a percentage basis. 15 Upon appeal (R v Shepherd [2003] NSWCCA 287) this Court held that an appropriate discount to reflect the plea, and the past and future assistance, was 45%. Assuming a term of 21 years after a s 16G adjustment, the Court substituted a sentence of 11 years 6 months with a non-parole period of 7 years 4 months. The Court specified, in accordance with s 21E of the Crimes Act, that the sentence which would have been imposed, but for the undertaking to give future assistance, was one of 16 years 9 months with a non-parole period of 10 years 9 months. Upon that basis, the discount for future assistance was equivalent to a period of 5 years 3 months for the term of the sentence and 3 years 5 months for the non-parole period. 16 In this exercise it appears that the Court followed his Honour's approach by commencing with a starting point in the order of 32 years, discounting it by about one third for the s 16G discount, and by finally discounting the term of about 21 years so derived, by 45% for the plea and for the past and future assistance. 17 The Court did not give separate consideration to the appropriate starting point, other than to note the Crown's concession that it would have been at the "very top of the range". There was no necessity for it to have done so: R v Budiman (1998) 102 A Crim R 411. The Respondent's Sentences 18 By the time that Acting Judge Andrew came to sentence the Respondent he had the benefit of the judgment of this Court in Shepherd, as well as the sentence passed on another co offender, El-Hani, who had been sentenced by his Honour Judge Shadbolt to a term of 15 years with a non-parole period of 10 years. His sentence had been reduced from one of 20 years, by 25%, for his limited assistance and plea, and had also presumably been adjusted for the s 16G factor. An appeal from that sentence was dismissed by this Court: R v El-Hani [2004] NSWCCA 162. 19 El-Hani had been sentenced as an offender who had a more central role, being a senior person in the organisation who had come to Australia in an attempt to discover what had gone wrong with the importation, and to put the matter to rights. It was he to whom Joseph Sukkar had appealed when the expected drugs were not found. 20 His Honour recognised the parity principle, and the need to make allowances for any relevant differences between the respective offenders. Shepherd, he noted, had provided assistance and pleaded guilty. On the other hand, he found that the present Respondent's role had not been as involved as that of Shepherd. He additionally found that he had more compelling subjective features than Shepherd. 21 His Honour said "...overall I cannot equate [the Respondent's] role as matching that of Shepherd's such that he should receive a sentence that Shepherd might have received had he not pleaded guilty and cooperated with the authorities". He noted that while s 16G had been repealed by the time that the Respondent was found guilty, he accepted the Crown's concession that, in all of the circumstances, it would be fair, in the exercise of his discretion, to allow to him an equivalent benefit. 22 In this respect his Honour's sentence preceded the decisions of this Court in R v Studenikin [2004] NSWCCA 164, R v Kevenaar [2004] NSWCCA 210, R v Dujeu [2004] NSWCCA 237 and R v Mas Rivadavia [2004] NSWCCA 284. The Crown does not, in this appeal, seek to resile from that concession, and there is no occasion for this Court to approach the matter on any different basis. 23 His Honour then stated that he took, as an appropriate starting point for the sentence a term of 21 years, which he initially reduced, by reference to the s 16G factor, to 13 years and then revised to 14 years after further submissions were received during which his Honour realised that an arithmetic error had been made. 24 In the course of those submissions the Crown pointed out that the period of 21 years, which had been reached in the case of Shepherd, before the discounts for the plea and assistance, had been arrived at following a s 16G discount. To discount that figure again, it was submitted, involved a double discount. 25 His Honour observed "I note what you say, but I am not specifically following the sentence in Shepherd's case", adding that his sentence "remains as the starting point of 21 years". The only correction made was to correct what he accepted to have been an arithmetic error in so far as one-third of 21 years was 7 years, thereby arriving at a head sentence of 14 years. The non-parole period of 8 years and 8 months, first pronounced, remained unchanged, even though this resulted in a small reduction of the ratio of the non-parole period to the head sentence from 66% to 62%. The Appeal 26 The Crown submitted that his Honour erred in two respects: first, in not equating the Respondent's culpability with that of Shepherd; and secondly, in commencing with a starting point of 21 years and then discounting it by one-third so as to allow the Respondent to have a similar benefit to that which Shepherd had been entitled, by reason of s 16G. In this respect it advanced the same submissions as had been made to the sentencing judge at the conclusion of the sentencing proceedings. 27 The principles in relation to Crown appeals against sentence are well established. The constraints on Crown appeals, and the discretion which is inherent in their disposition, were summarised in my judgment in R v Wall [2002] NSWCCA 42 at para 70: "(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." Objective Criminality 28 Clearly the Respondent performed an active and important role in relation to the importation. By taking on the task of ensuring the clearance of the drugs, and engaging Shepherd to attend to the documentary and other tasks involved, he was able to insulate Choi and the Sukkars, who were obviously the Australian principals, from direct contact with the consignment, and hence was in a position to limit their possible disclosure. Subsequently he became an important conduit in the collection, and passing on, of the documents that were required by the Sukkars to determine where and when the bulk of the consignment had been diverted. 29 While there is limited value in tagging offenders in an operation such as the present as principals, middlemen, couriers, and so on, this is a case where the offender's role was clearly identifiable and was disclosed, inter alia, in the evidence of Shepherd. It is that role which primarily determines the degree of his objective culpability, although, as a matter of common sense, the vast size of the importation also had considerable significance: Olbrich v The Queen (1999) 199 CLR 270, and Wong and Leung v The Queen (2002) 185 ALR 233 at para 64. 30 The Crown contended, on appeal, that the roles of the Respondent and of Shepherd were at least equivalent, it being arguable that the Respondent was in fact somewhat more culpable in that he had recruited Shepherd. I am not persuaded that his Honour erred in finding Shepherd to have been somewhat more culpable, having regard to his conduct in advising the Respondent to accept Choi's proposal, and in then assisting him by forging the necessary customs clearance documents, and by attending to the physical clearance of goods. 31 The reasons of each offender, in lending themselves to the importation, were similar, in that the Respondent sought to earn some easy money to clear his debt to Choi, and to obtain some relief from his other creditors, while Shepherd expected to receive the money he was already owed by the Respondent. The potential financial gain for the Respondent, however, was very much greater since the debt to Choi, which was to be released, had been very substantial. 32 His Honour properly rejected the Respondent's claim that he had been acting under duress and that he or his family had been threatened. He accepted, however, that the Respondent had been in serious financial difficulties and had been somewhat depressed at the time. Gibson DCJ had rejected Shepherd's claim to have provided his assistance out of friendship and concern for the well-being of the Respondent, holding that his primary motivation had been personal financial reward. It follows that each offender's reasons for entering into the venture were similar. 33 I am not however persuaded that his Honour erred in finding Shepherd's role to have been somewhat greater, having regard to the nature and extent of the additional and important work, which he performed. The precise extent to which it was found to be so was not stated, although it could not properly have been found, on the evidence, to have been substantially greater. Did his Honour Give a Double Discount for a S 16 G Allowance? 34 The Crown contention resembles a parity argument, in so far as it assumes that Shepherd and the Respondent occupied similar roles, and that Shepherd would entertain a sense of grievance by reason of the sentence imposed on the Respondent, since unlike the Respondent, he had pleaded guilty, had offered assistance and had agreed to, and did, give evidence in the trials of the co offenders. 35 For the reasons outlined in R v Gutteriez [2004] NSWCCA 22 at paras 143 to 148, it is not open to the Crown to advance a parity argument in support of an appeal against the leniency of a sentence by reference to the sense of grievance which would be entertained by a co-offender unless the sentence was increased. It is however permissible for the Court to have regard to the sentence imposed on the co offender, because it may assist to inform the court as to whether the sentence under challenge was manifestly inadequate. 36 If it had been the case that his Honour had proceeded to sentence upon the basis that the starting point selected by this Court for sentencing Shepherd, before the s 16G adjustment, had been 21 years, and that the Respondent should be sentenced by reference to a similar starting point, which should be discounted to allow him a similar discount, then clearly there would have been a latent error and a failure by his Honour to have understood this Court's decision or to achieve his intention. That would have followed from the fact that the starting point for Shepherd had in fact been 32 years, discounted to 21 years by reason of s 16G, and then further discounted by reason of the plea and the assistance. A failure to appreciate that fact would have meant a failure by his Honour to achieve an intention to maintain some general parity between them. 37 I am not, however, persuaded that this is what occurred. Rather it seems that his Honour assessed the appropriate starting point for the Respondent as 21 years, after taking into account his findings that Shepherd's culpability had been somewhat greater, and that the Respondent had more favourable subjective circumstances. 38 So understood the question becomes one for this Court to determine whether the sentence was manifestly lenient to the point where error was shown of the kind and degree referred to in decisions such as Cranssen v The Queen (1936) 55 CLR 509 at 519-520, R v Holder (1983) 3 NSWLR 245 at 269, R v Hayes (1987) 29 A Crim R 452 and R v Allpass (1994) 72 A Crim R 561. That will only be the case if the sentence is so far outside the range of a permissible exercise of sentencing discretion as to demonstrate error, thereby requiring appellate intervention. 39 Consideration of this question is not to be confined to the decision in Shepherd or to the sentence imposed on El-Hani. Reference may also be made to the sentencing statistics and to the cases that were cited in the table annexed to the Crown's submissions. So far as they established a range, it would appear that the Crown's concession as to a 32 year starting point having been at the very top of the range, was appropriate. 40 Taking into account the very great size of the importation, and the Respondent's role in it, and making full allowance for his wholly favourable subjective circumstances, as well as the matters referred to in s 16A(2) of the Crimes Act, all of which were carefully and comprehensively taken into account by his Honour, and which included the finding that he was unlikely to reoffend, I am of the view that the starting point and resulting sentence fell outside a legitimate sentencing range, being unduly lenient. 41 A proper sentence, in my view, would have been one in the order of 17 years with a non-parole period of 11 years and 2 months. What was particularly important in this respect was the factor of general deterrence, which the sentence needed to reflect: R v Budiman (1998) 102 A Crim R 44 and R v Benais [1999] NSWCCA 236 as well as the maximum available penalty: R v Bimahendali (1999) 109 A Crim R 355 and R v Simon [2003] NSWCCA 147. 42 However, in the exercise of the discretion which is reserved for Crown appeals, and bearing in mind the practice that, when the Court does intervene in such a case, it will impose the least sentence that could have been properly imposed at first instance: R v Rose NSWCCA 23 May 1996, R v Howland [1999] NSWCCA 10 at para 7, and R v Ceissman [2001] NSWCCA 73 at para 46, I have reached the conclusion that the appeal should be dismissed. 43 HIDDEN J: I agree with Wood CJ at CL. 44 SMART AJ: I agree with Wood CJ at CL. ********** Last Modified: 09/02/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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