R v C.A.S. [2005] NSWCCA 192

Reported Decision : 160 A Crim R 451

New South Wales Court of Criminal Appeal

CITATION: R v C.A.S. [2005] NSWCCA 192

HEARING DATE(S): 18/05/2005

JUDGMENT DATE: 18 May 2005

JUDGMENT OF: Simpson J at 27; Buddin J at 1; Hall J at 28

DECISION: Leave to appeal refused.

CATCHWORDS: Sentence - offence of aid and abet importation of commercial quantity of MDMA - limited role - very large quantity of drugs - assistance to authorities - parity.

LEGISLATION CITED: Crimes Act (Cth)

Postiglione v The Queen (1996-7) 189 CLR 295 R v Budiman (1998) 102 A Crim R 411 CASES CITED: R v Gallagher (1991) 23 NSWLR 220 R v Olbrich (1999) 199 CLR 270 Wong and Leung v The Queen (2001) 207 CLR 584

Regina PARTIES: C.A.S.

FILE NUMBER(S): CCA 2005/274

MJ King (Cth Crown) COUNSEL: RJ Button (Applicant)

Commonwealth Director of Public Prosecutions SOLICITORS: Ford Gaitanis (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0851

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/274

SIMPSON J BUDDIN J HALL J

WEDNESDAY 18 MAY 2005 REGINA v C.A.S. Judgment 1 BUDDIN J: This is an application for leave to appeal against a sentence of 8 years imprisonment with a non-parole period of 5 years which was imposed upon the applicant in the District Court. 2 On 31 October 2003 the applicant pleaded guilty to aiding and abetting the importation of not less than the commercial quantity of MDMA (commonly known as ecstasy) into Australia. The drugs were located on 11 April 2003 when a shipment of freezers which had been sent from Malaysia and consigned to the applicant was searched by the Australian Customs Service. Located in three of the freezers was a quantity of powder which upon analysis was found to constitute 136.913 kilograms of pure MDMA powder. Its street value has been estimated at approximately $115 million. The Australian Federal Police commenced a controlled delivery of the container. On 26 April 2003 the controlled delivery was stopped when the principal overseas target, who was in Australia, attempted to leave the jurisdiction. The applicant was arrested and charged that same day. 3 The maximum penalty for the offence is imprisonment for life and/or a fine of $825,000. The commercial quantity prescribed by the legislature for MDMA is 500 grams. 4 The applicant was interviewed by police upon his arrest. He subsequently provided two statements to police in which he outlined his involvement in this offence. The facts upon which he was sentenced are derived from that material. They are set out in the following extract which is taken from the sentencing judge's Remarks on Sentence: In his interviews and statements the prisoner stated that he commenced work as a customs data entry clerk with O'Farrells Global Logistics Pty Ltd in August 1999. O'Farrells Global Logistics merged with Maersk Logistics Pty Ltd in September 2000. During this period the prisoner continued his employment with the merged company and worked in the export section. In September 2002 he began working in the import section where he liaised with clients, requested and prepared import documents for customs clearance purposes, lodged documents with the Australian Customs Service and arranged for the delivery of freight. The prisoner said he had known the co-accused Jessica Somogyi ("Somogyi") socially since 1999 and that in January 2003 Somogyi introduced him to the co-accused Dario Milicic ("Milicic"). During this first meeting the prisoner says that Milicic asked him whether he was interested in assisting with the importation of computer monitors and electrical goods from Asia. The prisoner said that he told Milicic that Maersk Logistics could arrange for the goods to be imported and gave Milicic his business card. The prisoner said that in late January 2003 Somogyi asked him to meet her at a bar. While they were at the bar Milicic arrived. The prisoner said that he was not expecting to see Milicic and that Milicic said to him: "You will definitely be working for us. I say this because I have information about you, about Horizon and about your dad. I know you live in Manly in a flat, I know Horizon has an office in Zetland and I know your're (sic) your father is a taxi driver. We know he lives in Lang Road and drives an orange taxi, 1794 is the registration. We can use this information against you, do you understand what I am talking about." The prisoner states that Milicic then left the bar and returned a short time later with the co-accused NP. NP questioned the prisoner about Maersk Logistics and the prisoner's role there and asked him whether he had any experience importing drugs. NP told the prisoner that he was going to import some material, asked whether he would be interested in assisting and said that he would be compensated for his involvement. In early February 2003 Somogyi arranged for the prisoner to attend a meeting at which the prisoner met with NP again. At that meeting the prisoner says that he was introduced to the co-accused Wei Kwong Cheng ("Cheng"). The prisoner says that Cheng asked him a number of questions about importation procedures including whether the goods could be consigned to and stored by the prisoner's company and asked the prisoner to provide information to facilitate the importation. The prisoner answered Cheng's questions, agreed that the importation could be addressed to Maersk Logistics care of him and agreed to provide Cheng with the information he sought. The prisoner says that at the end of the meeting Cheng said: "You know we have information about you. You are not to mention to anyone about these meetings. You are just to do the work in your normal procedure. If we find out that you have contacted the Police there will be dire consequences, do you understand?" The prisoner said that he told Cheng that he would provide the information Cheng sought and said; "I don't want to know what's concealed, all I'm doing is just handling the container to (sic) for you. I don't really want any interest in whatever it is that's in the container and I don't want to know how much. You just need to give me the documents for getting it customs cleared and we can store the product in our warehouse and you can take delivery when you choose." Following the initial meeting with Cheng, Somogyi arranged for the prisoner to attend a further meeting at which the prisoner met Cheng and NP. At that meeting the prisoner provided Cheng with the documents Cheng had previously asked him to provide – a list of goods commonly imported from Malaysia, a fumigation certificate, a packing declaration list and contact details for Maersk Logistics in Malaysia. During this meeting Cheng and NP asked the prisoner a number of further questions about importation procedures and the prisoner answered those questions. In late February 2003 Cheng arranged to meet the prisoner at Maersk Logistics to make arrangements for the consignment. At that meeting Cheng asked him to arrange a quote for the cost of forwarding the freight from Malaysia to Sydney, arranging the customs clearance and collecting, storing, unpacking and delivery of the consignment. The following day the prisoner met NP and provided further information regarding importation procedures to NP. In mid-April 2003 the prisoner met with Cheng at Maersk Logistics and Cheng paid the prisoner $1,7000.00 for freight and local wharfage costs. Cheng asked the prisoner to contact him when the consignment was received. Cheng said; "If it looks all good then just say 'we've received the container and there is nothing broken'." The prisoner obtained the relevant documentation and forwarded it to another employee of Maersk Logistics to arrange for customs clearance. The prisoner and Cheng had a further meeting at which arrangements were made for the unpacking and delivery of an itemised part of the consignment. The consignment was customs cleared and the prisoner arranged for its delivery to Maersk Logistics. After the container was delivered to Port Botany but prior to its delivery to Maersk Logistics Cheng telephoned the prisoner and asked how everything was. The prisoner said; "We have received the container, we have unpacked it and its all OK there is nothing broken." The prisoner has stated that he told Cheng the consignment had been delivered because Maersk Logistics had closed for the night and he was unable to remain there while the container was delivered. The plan was that the consignment would be delivered to Maersk Logistics where it would be stored, unpacked and freezers earlier indicated by Cheng would be forwarded to another place. The prisoner was arrested after the consignment was delivered to Maersk Logistics but prior to it being unpacked. 5 The sentencing judge concluded that: …the role of the prisoner in the importation was that of the Customs clearance officer. I am satisfied that he played a junior role in the importation. I am satisfied that that role included advising members of the drug syndicate of the means of bringing drugs into Australia. 6 His Honour however also observed that: "whilst the subjective matters relating to the offender are of some moment, I must not lose sight of the fact that the accused played a significant part in a major importation of drugs into this country". (emphasis added) 7 As his Honour observed there were a number of subjective features which were to be weighed in the applicant's favour. He was a single man, aged 31 who had a good employment record and no prior convictions. He pleaded guilty at the earliest opportunity and had displayed significant contrition for his actions. 8 Of particular significance was the fact that the applicant had rendered assistance to the authorities which the sentencing judge described as being of a "high order". To reflect that finding, the sentencing judge allowed an overall discount of 50%, which was divided equally between past and future assistance, from the sentence that would otherwise have been appropriate. In arriving at that adjustment of the sentence for the applicant's assistance to the authorities, the sentencing judge had regard to the fact that the applicant had been serving, and would continue to serve, his sentence in protective custody. 9 The sentencing judge also had regard to the fact that the applicant's involvement "was to some degree, precipitated by threats made to him by members of the syndicate. There is no evidence before me as to any benefit the offender was to derive from his involvement in the importation, and I am therefore unable to find that the offender's participation in the drug importation was based on his expectation of financial gain." It may be thought that they were rather generous findings particularly since the applicant did not give evidence at the sentence hearing. Moreover, he had denied having been subjected to threats when first interviewed by police and had said that he had been promised by a co-offender "that he would be compensated for his involvement". 10 The first ground upon which the applicant relies is that the sentence imposed was manifestly excessive. It was not asserted that the sentencing judge had fallen into error of any identifiable kind. Furthermore the applicant acknowledged that he was unable to rely upon s 16G of the Crimes Act (Cth), which had been repealed prior to the commission of this offence. 11 The submission began with the proposition, which may be accepted, that the sentencing judge's "starting point", before the discount for assistance was applied, must have been 16 years. That, it was contended, exceeded the applicable range given the subjective features of the case to which reference has already been made, and particularly given his Honour's favourable findings as to the applicant's role in the offence and the factors that motivated him to commit the offence. 12 Particular emphasis was placed by counsel upon the fact that the applicant had been assessed to have performed only a "junior" role in this enterprise. The applicant's role may well have been a subsidiary one, particularly when it is compared with what other persons in the enterprise did. Nevertheless, it was far from being an unimportant one. The applicant provided valuable information, based upon his experience working in the area of customs clearance, which was designed to facilitate the importation of what transpired to be a very large quantity of prohibited drugs. In doing so, it was clear that he had misplaced the trust which his employers had reposed in him. 13 Moreover, the fact that his role was a "junior" one serves to reduce his criminality to only a limited extent, a matter which this court has frequently recognised. In R v Budiman (1998) 102 A Crim R 411, for example, Wood CJ at CL (with whom Beazley JA and Dunford J agreed) observed: As I had occasion to point out recently in Smith (unreported, Court of Criminal Appeal, NSW, 20 August 1998) the observations of Wells J in Le Cerf (1975) 13 SASR 237 at 239 are worthy of reminder. His Honour there said in relation to an offender, who was lowly placed in an organisation involved in the importation, distribution and marketing of cannabis, that: "It is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were not middlemen and underlings, there would be no top men in an organisation. If an organisation is starved of recruits it must collapse." His Honour later said: "The simple truth, that a man who participates in such an organisation at any level -- I repeat at any level -- must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organised crime. But I wish it to be clearly understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive." In Smith , I added: "It is time that this Court reminded those who would seek to establish chains for the importation of substances such as cocaine and heroin into this country, and their potential recruits, of those remarks. Too often has it been the case that recruits have been selected to act as couriers and the like, upon the basis either that they are free of conviction and possess apparent attributes of respectability such that they are likely to escape detection or alternatively upon the basis that they possess personal circumstances relating to family or otherwise such that they can press a powerful argument for leniency upon subjective grounds." Those remarks are appropriate for any drug importation, particularly one involving a commercial quantity of a prohibited substance. To similar effect have been observations by this Court in Muanchukingkan (1990) 52 ACrimR 354 at 356; Laurentiu (1992) 63 ACrimR 402 and Thiagarajah (1989) 41 ACrimR 45 at 49 where Campbell J said: "The Court has frequently said that the importance of people who perform the more menial operations, who include couriers, people who pick the goods up and people who transform the form of the goods, to the operation of organised drug trafficking, is such that the Court should not treat such persons for that reason alone with the measure of leniency which might be applied in other forms of crime to distinguish principals from persons of a lesser role." And later: "There is, in my view, no significant difference in this context between one who helps as a courier and one who assists in transforming the goods during a stage in the total operation." (at 413-414) 14 Nonetheless, it was appropriate for the sentencing judge to make an assessment of the applicant's role in this enterprise in determining his overall criminality: See R v Olbrich (1999) 199 CLR 270. However it is also clear that the quantity of the prohibited substance in question still remains a relevant consideration in fixing the appropriate sentence. In Wong and Leung v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ observed that: The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities. No doubt, within both of these categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. (at par 67) 15 We were informed by the Crown that the present case appears to be the largest seizure of MDMA for which any offender had been sentenced in NSW. That factor must play its part in the sentencing process, although clearly it ought not be permitted to overwhelm other relevant considerations. 16 The applicant referred the Court to sentencing statistics maintained by the Judicial Commission for this offence since the repeal of s 16G. The limited utility of such information is well-documented. There are two particular problems which arise in the present case. First, the number of cases in the sample is still quite small. Secondly, it is not possible (given the form in which the data has been furnished to the court), to determine whether a particular sentence is, or is not, affected by subjective features such as a plea of guilty and, more importantly, a discount for assistance. That latter consideration is a not unusual feature of sentences imposed for Commonwealth drug offences and can, as the present case demonstrates, have a significant impact upon the ultimate sentence. For those reasons, I have derived much greater assistance, in deciding whether this Ground of Appeal has been made out, from the schedule of what are said to be comparable cases which the Crown provided to the Court. A copy of the Crown's schedule of cases is attached to these reasons. 17 Before departing from the question of providing discounts for assistance to the authorities, it is timely to recall what was said by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220. His Honour observed: Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards. (at 232) 18 For all those reasons, I am of the view that the sentence imposed upon the applicant was well within the sentencing judge's discretion. Accordingly, I would reject this Ground of Appeal. 19 The second ground of appeal asserts what is said to be "erroneous disparity with regard to the sentence imposed" upon a co-offender, NP, who was sentenced to a term of 11 years imprisonment with a non-parole period of 7 years for his role in the importation. 20 It is acknowledged by the applicant that there are a number of common features between the case which he advanced and the one presented by NP. Each made full admissions, each pleaded guilty at the earliest opportunity, each demonstrated remorse and each was provided with a 50% discount on sentence for his assistance to the authorities. 21 On the other hand, however, it was submitted that there were also a number of features of the case which placed the applicant in a more favourable light than NP. First, there was the fact that the sentencing judge found that NP was more involved in the planning and organisation of the enterprise and that he occupied a higher position in the hierarchy of offenders than did the applicant. Moreover, his involvement had extended over a longer period of time. Secondly, NP, unlike the applicant, stood to receive a "considerable financial benefit" from his involvement and was thus motivated by greed. Thirdly, there was no evidence of any threats operating upon NP, whereas there were in respect of the applicant. Fourthly, the sentencing judge found that NP had not been entirely truthful in giving evidence. He rejected, for example, his claim that he believed that the importation involved only a "few thousand pills". Finally, unlike the applicant, NP was not a man of entirely unblemished character, particularly given that telephone intercepts revealed that he had arranged for the supply of illicit drugs to a number of persons. 22 The submission, in essence, is that given the list of features that distinguished their respective cases, there has been "insufficient differentiation" in the sentences imposed, and that accordingly the applicant entertains a justifiable sense of grievance. 23 It is to be observed that the applicant and NP were sentenced by the same judge. His Honour was particularly aware of the need to have regard to the principles of parity. Indeed his Honour referred, in terms, to each of the matters which distinguished their respective case. In Postiglione v The Queen (1996-7) 189 CLR 295, Dawson and Gaudron JJ said: 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. (at 301-2) 24 In the final analysis, the sentencing judge imposed a head sentence upon the applicant which is approximately 27% shorter than the sentence imposed upon NP. Conversely, NP received a head sentence which is approximately 38% longer than the one imposed upon the applicant. Having given careful consideration to the manner in which the sentencing judge approached this aspect of the sentencing task, I am not persuaded that it has been demonstrated that his Honour fell into error of the kind asserted, or, putting it another way, that his Honour failed to maintain a "due proportion" between the two sentences. 25 I would also reject this Ground of Appeal. 26 Counsel for the applicant invited the court to refuse leave to appeal in the event that it formed the view that neither Ground of Appeal was made out. Counsel urged this course in order that the applicant, so it was submitted, could preserve his entitlement to bring a further application should it subsequently transpire that he entertained a "justifiable sense of grievance" in respect of sentences which may be imposed in the future upon co-offenders, that is other than NP. Counsel relied upon Postiglione (supra) in support of this proposition. In view of counsel's stance, and as the Crown did not oppose the court taking that course, I propose, in those circumstances, that leave to appeal should be refused. 27 SIMPSON J: I agree. 28 HALL J: I also agree. 29 SIMPSON J: The order of the court will be as proposed by Buddin J. So far as this matter is concerned there should be an order that there be no publication of any matter that would identify the applicant or the co-offender who has been named in the course of the hearing. **********