R v OPA [2004] NSWCCA 464

New South Wales Court of Criminal Appeal

CITATION : R v OPA [2004] NSWCCA 464 HEARING DATE(S) : 21 June 2004 JUDGMENT DATE : 17 December 2004

JUDGMENT OF : Giles JA at 1; Levine J at 6; Hulme J at 7 DECISION : Refer to paragraph 64

PARTIES : Regina OPA FILE NUMBER(S) : CCA 60120/04 COUNSEL : Crown: P Power SC Applicant: G Bashir SOLICITORS : Crown: S Kavanagh Applicant: S O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0513 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER :

- 22 - IN THE COURT OF CRIMINAL APPEAL 60120/04

GILES JA LEVINE J HULME J

Friday 17 December 2004 R v OPA Judgment 1 GILES JA: I have had the advantage of reading the reasons of Hulme J in draft. I agree with the orders his Honour proposes and, subject to the following observations, with his reasons. 2 The judge's sentencing miscarried because he took into account information not properly before him. If we are of the opinion that some other sentence was warranted in law and should have been passed, we must resentence (Criminal Appeal Act 1912, s 6(3)). It is necessary to consider what sentence was warranted in law and should have been passed. 3 When the Crown acknowledged that a trial would have been "a very very lengthy and complicated trial indeed", I would be reluctant to interpose some other view of the utilitarian value of the plea of guilty. The plea was at an early time, and taken alone would in my opinion attract a discount of 25 per cent. To that extent, in considering the appropriate sentence my view is more favourable to the applicant than that of Hulme J. 4 On the other hand, my view of an appropriate sentence prior to discounts is less favourable to the applicant. The amount of the ecstasy was much greater than that for which the legislature has ascribed a maximum penalty of imprisonment for life. Some indication of a scale at the top of which is imprisonment for life is give by the maximum penalty of twenty years imprisonment where the amount is not less than a commercial quantity. As Hulme J says, the applicant's role was not that of a principal, but it was substantial. Notwithstanding the guidance in a pattern of sentencing for other offences and on other facts his Honour has found and thought it proper, in the light of the Crown's position, to follow, I would take a higher starting point, of the order of 13 years. 5 These differences from his Honour balance out in the result. The sentence warranted in law was appealably less than that imposed by the judge, and the applicant should be resentenced as his Honour proposes. 6 LEVINE J: I agree with Hulme J. 7 HULME J: In June 2003 the Applicant for leave to appeal pleaded guilty at the Central Local Court to a charge that between 3 October and 7 November 2002 he did knowingly take part in the supply of a large commercial quantity of a prohibited drug. The drug is commonly known as MDMA or Ecstasy and the quantity involved was 3.1kgs. Pursuant to Section 25 of the Drug Misuse and Trafficking Act the offence carried a maximum penalty of life imprisonment and/or a fine of 5000 penalty units. 8 When the Applicant appeared before Judge Patten he adhered to his plea and on 12 September 2003 was sentenced to imprisonment for a term which included a non-parole period of 6 years and a total length of 8 years, both periods dating from 6 November 2002 when the Applicant was arrested. 9 The drugs, the subject of the charge against the Applicant were in two parcels. At about 9.45 on the evening of 6 November 2002 a vehicle in which the Applicant was being driven was stopped by police. The vehicle was found to contain approximately 2000 MDMA pills of various colours and descriptions. The total weight of the pills was 541.9gms. Later that night the police entered an apartment in the Century Towers complex where a search revealed some 8500 MDMA pills, again of a variety of colours and descriptions. These pills weighed 2604.3gms. 10 Evidence before Judge Pattern in the form of a statement of facts which was admitted without objection shows that the Applicant and a number of other persons had been under surveillance at least since early October. That statement provides clear evidence of an extensive operation revolving around the sale of MDMA pills. Those principally involved seemed to have been a Mr Chua, a Ms Dewind, and the Applicant, all of whom arrived on the same day from overseas, a Mr Lee of Sydney and someone referred to as "the boss" who also seems to have arrived in Sydney from elsewhere. 11 Intercepted telephone calls show the Applicant involved in conversations on the topics of the number of pills on hand, the proceeds of sale, the arrival of the boss, orders for pills and the sale of pills by the Applicant, where pills might be stored, packaging of the pills and shortages. Those calls make it clear that one of the Applicant's principal activities was to obtain orders for the drugs, physically supply the drugs in substantial quantities to persons who were interested in acquiring them and to receive moneys in return. He clearly knew of the quantities, or numbers of tablets, in which he was dealing. While it seems clear that the Applicant was obliged to pay over to Mr Chua much of the money he obtained by way of proceeds, records contained within a mobile phone found in the Applicant's possession indicated he was involved in the transfer of the money. Other records show some $29,300 transmitted from Australia into an account in his name in Singapore. 12 Having regard to the fact that the only drugs the subject of the charge against the Applicant were the 3.1 kgs to which reference has been made, there are limits on the use to which some of the evidence in the statement of facts can be put. However, that evidence can be used to indicate the nature of the Applicant's role in the enterprise concerned. As is apparent from the details in the immediately preceding paragraph, his role was a substantial one. At the time of the sentencing proceedings the Crown accepted that the Applicant was an underling of Mr Chua. 13 The above summarises the evidence by which the Applicant's criminality is to be judged. However, it appears from other material that later in November 2002 the Applicant agreed to help the authorities and provided other information on the condition that it would not be used against him. 14 It is unnecessary to set out at length the nature and extent of the Applicant's assistance. He has provided information by means of an ERISP and two signed statements and undertaken to give evidence against his co-offenders and any other persons for offences arising out of or connected with the drugs with which he was involved. The letter of comfort describes the information he provided as "vital", his co-operation "essential" and his willingness to testify as contributing greatly to the Crown case against his co-offenders. 15 So far as the Applicant's subjective circumstances are concerned, he was 39 at the time of sentencing and had no criminal record in Australia or overseas. His Honour referred to the Applicant being single and having no dependents. That is information which was not tendered in the proceedings and accordingly I shall disregard it. 16 At the time of sentence, the Applicant was then on special protection. Evidence tendered during the hearing of the appeal on the issues of discretion and re-sentencing if the Court reached that stage indicated that he is now in the Custodial Witness Protection Program and the Special Purpose Centre at Long Bay Correctional Centre. The evidence extended to the topic of the restrictions involved in that program and the details of services and facilities available to the Applicant. 17 It should be mentioned also that during the course of the sentencing proceedings, counsel appearing for the Applicant sought to rely on part of an induced statement of 16 March as indicating how the Applicant came to be involved in the transaction. According to those paragraphs the most the Applicant was expecting to be paid was between AUD$20,000 and $30,000 for his participation and the Applicant's motivation was to obtain funds to pay for kidney dialysis for two of his siblings. The need of one of these siblings for some dialysis was confirmed by medical records of February and March 2001. One of those records observed "renal function showed progressive deterioration". 18 The statement included the assertion, usual in witness statements obtained by the police that what was said was true to the best of the maker's knowledge and belief and it was attached to the Applicant's undertaking to give evidence in the course of which he also asserted that what was said in the statement was true. It should also be observed that there was no evidence before Judge Patten as to what other resources the Applicant had available to pay for the dialysis. In the same paragraph in which he said he needs money to help in this regard he also said that he had a business.