R v Edmund Cyril RAS [2012] NSWDC 214

District Court New South Wales

Medium Neutral Citation: R v Edmund Cyril RAS [2012] NSWDC 214 Hearing dates: 27 February - 7 March 2012 Decision date: 07 September 2012 Before: Judge Knox SC DCJ Decision: Sentence of imprisonment of 8 years and 3 months with a non-parole period of 5 years and 6 months Catchwords: CRIMINAL LAW - sentence - import marketable quantity of border controlled drug - cocaine - concealment in suitcase - prior imprisonment overseas for cocaine importation Legislation Cited: Criminal Code Act 1991 (Cth) Crimes Act 1914 (Cth) Cases Cited: DPP v De La Rosa [2010] NSWCCA 194 R v Crouch (District Court of NSW, 19 August 2011, unreported) R v Haule (District Court of NSW, 22 October 2010, unreported) R v Muanchugingkan (1990) 52 A Crim R 354 R v Strode (District Court of NSW, 6 May 2011, unreported) R v Vargas [2011] NSWDC 89 Category: Sentence Parties: Commonwealth Director of Public Prosecutions Mr Edmund Cyril Ras Representation: Mr T Anderson (Crown) Ms N Carroll (Accused) George Sten & Co (Accused) Commonwealth Director of Public Prosecutions File Number(s): DC 2011/54

SENTENCE 1Edmund Cyril Ras appears for sentence following his conviction on 7 March 2012 after a trial before a jury on the following count: "On 31 December 2010, at Sydney in the State of New South Wales, did import a substance, the substance being a border controlled drug, namely cocaine, and the quantity being imported a marketable quantity." 2The charge is brought pursuant to s 307.2(1) of the Criminal Code Act 1991 (Cth). The maximum penalty for that offence is twenty-five years imprisonment, five thousand penalty units or $550,000 or both. 3The sentencing proceedings are taking place today following two adjournments. To explain the delay, there was initially an adjournment on the offender's application on 8 June 2012, when a letter was faxed by the Department of Corrective Services from Prince of Wales Hospital, indicating the offender was unable to come to court. That was because of a total right knee replacement. No notice of this operation was given either to the Court or apparently the offender's counsel. The operation was apparently the result of ongoing trauma for some time. It did not result from his incarceration. It was carried out at no cost to the offender. As I understand it his prognosis is good and his health needs can be managed within the prison system or the Justice Health system. 4Given the offender's operation and the availability of the parties, the date was then fixed for 24 August 2012, but vacated on the application of the Crown, that application not being opposed by the offender's legal representatives. 5In terms of factual background, the offender Mr Ras entered Australia at approximately 2pm on 31 December 2010, at the Sydney Kingsford Smith Airport. He handed his incoming passenger card, referred to as the IPC, to a Customs officer and was then directed to an area where he presented a single black Travelite brand bag. At that time, he told the Customs officer that he had packed the bag himself and was aware of the contents of it. The Customs officer conducted a baggage inspection, in which he emptied the suitcase. He noted the bag felt heavier than a normal suitcase of that size. 6Another Customs officer, Ms Holtz, examined the bag, noted its weight and then took the bag for an x-ray. At that time the Customs officer told Mr Ras that she had x-rayed the bag. He then confirmed it was his bag and he had bought it new from a Chinese shop. The Customs officers were clearly suspicious of answers given by Mr Ras, not the least of the causes for their suspicions were the weight of the bag and the answers given by the offender. 7The bag was subject to a series of IONSCAN inspections and was also x-rayed. Photographs of the bag were tendered during the trial, which showed that the bag had an internal section behind a zipped, lined area. Secreted in that section was a flat parcel of cocaine admixture weighing 792 grams. The packet contained 718.5 grams of what is regarded for these purposes as pure cocaine. However, its percentage purity was 71.8 percent. The contents of the package had a wholesale value of between $189,000 and $225,000. That was set out in the evidence of Federal Agent Lavetta at transcript p 165. 8Mr Ras was then cautioned and interviewed by the Australian Federal Police. A series of conversations took place in which he indicated, amongst other things, that there was not supposed to be anything in it, but that someone else, namely, a Nigerian man, had given him the bag. Someone was going to take the bag from him at a Sydney hotel and give him another bigger bag with a ticket for ongoing travel to Peru. It was intended, and he knew, that he would be bringing drugs in from Peru to Australia. He said at that stage, "I was going to look at it, if it was drugs I was going to throw it away." 9Mr Ras gave evidence during the trial, in which he said that immediately prior to coming to Australia he had been on a car convoy trip to Pretoria via Johannesburg. During the trip he had been contacted by a Nigerian man called John. He thought he was originally going to Africa at the behest of the Nigerian men. On his account they, or at least John, met him at a Forumla 1 hotel in the suburbs of Johannesburg, and exchanged his damaged shoulder bag for another bag - the bag which he ultimately brought into Australia, which contained the cocaine. He removed his clothes from the shoulder bag and packed them into the bag. 10He was then taken to Tambo International Airport in a taxi with the man called John, who gave him a folder of documents. That included a ticket to Australia for his travel that same day. Indeed on his account, within two hours of him being taken to the airport. That evidence was presumably part of his case that there was little premeditation or planning on his part. If that is the case, it was difficult to accept that he was prepared to travel halfway around the world on essentially one day's notice. He was interviewed by officials from the South African Embassy in accordance with arrangements made through the AFP. He did not tell them of his involvement with the South African Police as he said he did not trust them. His account was also that they would not know of, nor be able to verify, his involvement because he was an unregistered informant. 11Evidence was given at the trial by Federal Agent Daniel Lavetta (transcript p 172, line 30) to the effect that the AFP intelligence had linked Dominic de Santos, Cyrildine Travel, and a travel agent number to a Nigerian syndicate run out of South Africa. To that extent the offender's account has some connection with reality. 12Consistent with the jury's verdict, I find that the offender knew when he came into Australia that he was in possession of drugs. I find there was also considerable planning involved in the operation and that involved the offender. I do not accept the offender's account of his undercover or other involvement with the South African Police. No evidence was adduced by him or on his behalf either at the trial or at the sentencing proceedings. There had been a period of eighteen months during which that evidence could have been produced by Mr Ras, or those acting on his behalf, if it was available. 13In terms of evidence given on the sentencing proceedings, a pre-sentence report dated 4 May 2012 was tendered. That forms part of exhibit 1, the Crown papers. Mr Ras is a South African national aged forty-nine. His parents separated when he was three. He was placed in a group home then in a foster care arrangement from the age of six to twelve, when he was returned to his mother's care. One of his step-brothers was murdered in 1993 and another brother died in February this year. That has been a matter that has caused him some distress, particularly as it occurred whilst he was in custody. 14Mr Ras completed the equivalent of the School Certificate. He has had a variety of employment, including work as a panel beater, spray painter, fibreglasser, plumber and farm manager. On one view, he is a very versatile individual. At the time of coming to Australia he claims to have been driving vehicles for a second-hand car company part time. He indicated to the report writer that he had had financial problems and was supplementing his income with work as a security guard for the company. 15He was married in 2001 and divorced in 2004. He has no children. The report notes a history of suicidal thoughts following the breakdown of his marriage. I note that the 2004 interruption of his marriage coincided with the experience he had in Switzerland, to which I will refer later. Mr Ras has a history of drug and alcohol abuse, having taken cannabis from the age of thirteen, graduating to smoking crack and taking cocaine. The report notes that Mr Ras disclosed being convicted of the importation of cocaine into Switzerland in 2004, for which he spent time in custody. 16Two faxed letters dated 19 September and 13 October 2001 were tendered from the Federal Criminal Police in Switzerland. Those reports dated 19 September and 13 October 2011 indicate that he was apprehended in March 2004 at the Zurich Airport, with 1,988 grams of cocaine, attached to the lower legs. There were a total of six packages altogether. He appears to have been imprisoned for exactly two years and then expelled to South Africa. 17The Justice Health report contains a detailed outline of his situation to which I have referred. That has become exhibit S6. It indicates his prognosis is good and his treatment able to be carried out within Justice Health in the correctional setting. 18The prior convictions to which I referred earlier from South Africa are on top of what appears to be an unfortunately extensive criminal history while he was in South Africa. That does seem to have involved matters of theft and fraud, for both of which he received relatively minimal periods of imprisonment, but also a lengthy sentence following a conviction for rape. There is some strength to the defence counsel's submission that I cannot take that into account as the precise details are not known to me, and sentencing regimes differ from country to country. 19In terms of principles from the relevant authorities, both counsel have provided a summary of similar sentences. The Crown's summary of authorities is exhibit S7 and the defence summary is exhibit S9, many of which I am familiar with. They do refer to relatively comparable drug importation matters, involving similar amounts under the same section but the vast majority of those proceeded by way of pleas of guilty, which is not the case here. 20There were frequently extenuating factors in those cases which are not present here as well. I indicate for the purpose of these proceedings that I have considered the authorities of R v Crouch (District Court of NSW, 19 August 2011, unreported), R v Strode (District Court of NSW, 6 May 2011, unreported), R v Vargas [2011] NSWDC 89, R v Haule (District Court of NSW, 22 October 2010). All of those comparable authorities involve offenders with different personal circumstances and history. There are a variety of different weights of drugs involved, and as I say many were preceded by pleas of guilty. 21Here, on the basis of those authorities, the Crown submits that the fact that the offender has performed a relatively menial or limited role, such as the role of a courier, does not entitle him to any degree of leniency. He cites as the authority R v Muanchugingkan (1990) 52 A Crim R 354 at 356. It seems the facts here come very much within the description of the offender as a courier, as defined by McLellan CJ at common law in DPP v De La Rosa [2010] NSWCCA 194 at 256: "A "mere" or "bare" courier may be recruited to bring in border controlled drugs on the promise of a modest reward, commonly although not invariably a monetary sum. A mere courier, although being the importer and critical to the importation, is incidental to the entire enterprise and acts at the instigation and direction of others. He or she will normally have had his or her travel plans, including flights and accommodation, arranged or at least funded by superiors. The mere courier will have had little, if any, input into the travel plans and no input into the planning of the offence" 22Mr Ras, on the evidence, is to be sentenced by me as a courier, not a principal, nor indeed as having any greater role than that of a courier. He was said to be paid about 20,000 Rand. There is some difference about the precise conversion rate but it seems to be of the order of AUD$2,500. It is also clear from De La Rosa and other authorities that couriers and intermediaries do not receive any particular leniency, because without them the narcotics trade would cease. True it is, as Ms Carroll has submitted, that they take the greatest risk; however, they are an essential and integral part of the supply chain. The consequential need for general deterrence must be reflected in the sentence. 23The authorities also make it clear that there needs to be a sentence which reflects society's abhorrence of the trafficking of drugs of this nature. Further, a sentence should be imposed sufficient to deter the offender himself from further offending in this way, in the light of what appears to be a history of a similar offence in 2004. The seriousness with which the legislature has regarded this offence is reflected in the maximum penalty to which I have had regard. 24Justice McLellan in DPP v De La Rosa to which I have referred held at para 221 that: "The head sentences in this group range from six to nine years. The non parole periods range from three years to just over five years. The quantity of drug does not appear to be of particular significance. The significant factors which are common are the role played by the offender, the anticipated reward, the nature and timing of any plea as well as the level of any assistance provided. The majority of the offenders in this group were mere couriers." 25Here, the amount and value of the drugs was substantial. It was about 300 times the limit of the marketable quantity threshold, and was seventy-one per cent pure. 26The offender is a mature man. He is not impressionable or a young person. He has had a variety of life experiences with a prior criminal record involving incarceration in one of South Africa's toughest gaols. He must have known what penalty awaited him, given his experience in Switzerland. He gave evidence at the trial and he is and was knowledgeable about the ways of the law enforcement and police intelligence community on his account. He described working as a police informant, and with police in undercover activities, see transcript pp 239 and following, although his actual involvement does not appear to have been on the side of any recognised governmental agencies. 27Absent any evidence in this regard, and it is clear that the South African authorities were notified about these proceedings, it does seem to me that this is matter where his denials up to the time of the trial, if not a concoction, were otherwise delusional or deliberate. 28In my view he was at the level of, and fulfilled the role of, a courier. I do not regard the evidence as enabling any greater role to be found, although on his account he had knowledge of a wider scheme. What was involved was a premeditated planned attempt to import a significant quantity of cocaine of considerable value into Australia. 29He was clearly involved with others. The drugs were concealed in a relatively sophisticated manner - as I have said, the Swiss authorities noted the secretion and hiding of the cocaine that he imported into Switzerland by way of packets being attached to his lower legs. This practice obviously continued, although he extended it to the bag which he brought into the country. 30Given the offender's age and his apparent life experience, it defies belief that he did not have more that a suspicion, or more than the suspicion he said he came to develop late in the piece as a result of the change of plans and the documentation he was given. It is unclear, even on his account, why he was going to travel to the other side of the world, across at least two continents, to make his mind up about the illegality of a course of pre-arranged conduct, about which he said he had clear suspicions. The jury clearly rejected this evidence, and so do I. 31I do not regard there as being any relative assistance to any police authorities. As I say, the South African authorities were certainly contacted prior to the trial. I would have had considerable doubts, absent evidence to the contrary, about his association with the South African agencies of any shape or form, given his prior record and the matters for which he had already been convicted. He has maintained his innocence and is not eligible for any reduction in his sentence or other discount. While on the law as it currently stands the offender cannot be subject to any harsher penalties for his failure to cooperate or to provide assistance to the authorities, it does become relevant to my assessment of the likely prospects of rehabilitation. 32He has remained steadfast in his denials of guilt, and that is confirmed in the most recent pre- sentence report. There is no evidence that I am prepared to accept on which a finding of prospects of rehabilitation can or should be based. 33I then turn to consider the matters referred to in the authorities, particularly De La Rosa, specifically the role played by the offender; the anticipated reward; the nature and timing of the plea; as well as the absence of any assistance provided. The street value of the drugs involved was substantial on any view. His motivation was purely financial in circumstances where he was well aware, in my view, of the illegality of the operation in which he was involved. He was to receive a cash payment. 34There was no plea, no acknowledgement of guilt and there has been no assistance - just the reverse. The account that he gave was a story which took some time and effort on behalf of the AFP and presumably the South African authorities to investigate and assess. 35As I say, that needs to be set against the background that the offender has the prior conviction in Switzerland for a similar matter a relatively short time ago. He was attempting to import into this country a pernicious drug in an amount and at a purity level which would have done this community considerable harm. 36What is in his favour was that the defence at trial was conducted with appropriate concessions and expedition. That is going to be taken into account by me in the offender's favour, as well as the fact that during his police interviews he was cooperative with the police. I have taken into account the matters referred to in s 16A(2) and (3) of the Crimes Act 1914 of the Commonwealth. In my view, the sentence I propose to impose is of a severity appropriate in all the circumstances as required by s 16A. I take into account the statistics of sentencing matters as published by the Judicial Commission, as an indication, or as a method, of checking that the sentence that I am proposing to impose is within the bounds of the permissible range in the exercise of my discretion. 37I have considered the nature and severity of the conditions which will be relevant to the offender as a foreign national with few relatives in Australia. I was informed that he is not being visited by members of his family; further that his brother to whom he was quite close has died whilst he has been in custody. He was unable to attend his brother's funeral and my assessment is that that has upset him. English is his first language, however he has been in gaol before on a number of occasions in a number of cities. There is no evidence that he will experience any additional hardship in the Australian custodial environment. Indeed, he has already been provided, free of charge to him, an operation for a total knee replacement. 38It is likely that the offender will be deported at the end of the nonparole period of imprisonment. Despite that fact he is entitled to be sentenced as if he was to be subject to supervision in this country. There is no evidence before me that the criteria described in s 16A(2)(b), (c), (d), (e), (fa), (g) and 2A of the Crimes Act are relevant to the current circumstances. 39In terms of the remainder of the matters specified, I note as follows. In terms of the nature and circumstances of the offence, as I say, it was 618.5 grams of cocaine with a seventy-one percent purity level. In terms of paragraph 16A(2)(f), the offender has not accepted the jury's verdict. He continues to maintain his innocence. He does not have the benefit of any expression of remorse or contrition, nor is any discount appropriate for a plea as was referred to in many of the authorities to which I have been taken. 40Paragraph 16A(2)(j): here the offender has a previous conviction and incarceration in Switzerland in 2004, for a remarkably similar offence. That is on top of his already extensive prior criminal history in South Africa. He is not in my view, as I have said, entitled to leniency. His antecedents are set out in exhibit S3 in terms of his character, antecedents, age and means. He is a middle aged man, not a young, susceptible individual. 41He has a character consistent with the findings I have made. He is a person with some health issues, having had the operation that he has, but in my view there are some areas of concern given his apparently delusional belief that he can come to Australia and manufacture a story as he did in this particular instance. 42In terms of rehabilitation I have given this matter considerable thought pursuant to 16A(2)(n). There is no evidence on which I would be prepared to make a finding of good prospects of rehabilitation. He has not worked in custody although that may well be because of his knee operation, and I take that view favourably to him. In my view the sentence should commence on the date the offender was taken into custody; namely, 31 December 2010. 43The offender is convicted. The offender is sentenced to a total period of imprisonment of eight years and three months commencing 31 December 2010 and expiring on 30 March 2019, consisting of a non-parole period of five years and six months imprisonment commencing 31 December 2010 and expiring on 30 June 2016. An additional period of two years and nine months commencing on 1 July 2016 and expiring on 31 March 2019. 44In turn, that reflects the ratio of 66.67 per cent between the head sentence and a minimum term which I regard as appropriate, having regard to all the factors I have listed.