ALCHIKH, Mohamad Raghid v R [2007] NSWCCA 345 | Case summary

Friday 14 December 2007 MOHAMAD RAGHID ALCHIKH v R Judgment 1 HANDLEY AJA: This is an application for leave to appeal from the sentence imposed by Woods DCJ on the applicant who pleaded guilty to a charge of conspiracy to import narcotic goods being a commercial quantity of ecstasy contrary to s 233B(1)(b) of the Customs Act 1901 (Cth) and s 11.5 of the Criminal Code (Cth). The goods comprised 164,462 tablets weighing 31.95 kilograms containing 10.44 kilograms of pure ecstasy. This was 20 times the minimum commercial quantity. The tablets had a potential retail value of up to $11.4 million. 2 The tablets were hidden in the insulation of six refrigerators in a consignment of 54 in a container which left the United Kingdom by sea in November 2003. The container was unloaded in Melbourne in December and transferred to a warehouse. Customs, who had been alerted to the shipment, removed the drugs and replaced them with harmless tablets before allowing the importation to proceed. The container was taken by road to Sydney and delivered on 17 December 2003 to a warehouse in Botany that had been leased for this purpose. 3 The applicant's associates were removing the supposed drugs from the relevant refrigerators when the Federal Police intervened and they were arrested. The applicant who had left the area shortly before was then arrested. The principal in the whole affair was a Mr King who lived in the United Kingdom. His deputy in Sydney, Mr Henry, was arrested shortly afterwards. 4 The applicant pleaded guilty at committal on 14 May 2004 and despite some later equivocation, maintained his plea. The Judge imposed a sentence of 12 years imprisonment with a non-parole period of 7 years and 3 months to date from 17 December 2003 when the applicant was taken into custody. The maximum was imprisonment for life. The sentence was moderate given the applicant's knowledge and managerial role, and the quantity and value of the narcotic goods involved. 5 The Judge took as his starting point a sentence of 18 years imprisonment but allowed a discount of 20 per cent for what he said was relevantly an early plea. The applicant had given significant assistance to the authorities, including giving evidence at the committal proceedings against his co-conspirators, and swearing affidavits for the extradition proceedings against Messrs King and Salhani, the conspirators resident in the United Kingdom. The Judge had the benefit of a confidential exhibit detailing the assistance given to the authorities which has been made available to this Court. He concluded that the applicant's assistance, although significant, was not major and he was not likely to give further assistance in the future. 6 In his evidence at committal and at trial the applicant attempted to exculpate Messrs Swansson and Alkarim, who he had recruited for the importation, because, as he said, they were not aware that illegal drugs were involved. The Crown decided that this evidence was not truthful. It did not call him to give evidence at the trials of his co-conspirators but tendered him for cross-examination. 7 The Crown cross-examined the applicant as an adverse witness at the trial of those accused. The jury convicted them and must have rejected his evidence. An appeal by Swansson to the Court of Criminal Appeal on the ground that his conviction was unsafe and unsatisfactory has not yet been heard. Alkarim has not challenged his conviction. 8 The Judge allowed a discount of six years or 33⅓ per cent for the plea of guilty and the assistance to the authorities. Counsel for the applicant submitted that the allowance for assistance of 13⅓ per cent was appellably inadequate and the combined figure should have been of the order of 40 per cent or more. Counsel for the Crown was correct in submitting that the discount for assistance can be assessed as a fraction or proportion of the sentence discounted for the plea of guilty and on this basis the discount was 16⅔ per cent. This approach is supported by R v El Hani [2004] NSWCCA 162 para [70] per Howie J and the case there cited. 9 The applicant gave evidence in the proceedings on sentence as well as at the trial of his co-accused before the same Judge. The sentencing Judge was therefore in a position of advantage in evaluating the Crown's decision that the applicant was not a reliable witness and should not be called in future to give evidence for the Crown. 10 The considerations which are relevant when fixing the discount for a plea of guilty, such as the presence of genuine contrition, are also relevant when fixing the discount for the provision of assistance, and care has to be taken to prevent this overlap leading to double counting when fixing the discounts: R v Gallagher (1991) 23 NSWLR 220, 227-8 per Gleeson CJ and R v El Hani [2004] NSWCCA 162 paras [66] - [68] per Howie J. 11 The applicant also argued that the Judge had failed to take into account or give sufficient weight to the evidence in report form from a psychiatrist Dr Allnutt. The Judge said that he had taken into account the applicant's mental condition (remarks p13) and had considered Dr Allnutt's report. He was satisfied that the applicant had a history of depressive illness "not amounting to a major mental illness", and that it was probable that at the time of the offence he was "somewhat affected by depressive mood disorder". 12 He appeared at the time to be quite rational and the Judge considered that his nervousness was due to an awareness of the risks he was running. In these circumstances any moderation called for was modest: R v Wright (1997) 93 ACR 48. There is nothing in the sentence to indicate that the Judge failed to give this matter proper weight. 13 The Judge found that the applicant's role was limited to arranging the importation and organising the warehouse where the tablets would be removed from the refrigerators. However these acts were at the heart of the offence, and the fact that he was to have no role in the marketing did not diminish his criminality for the offence charged. 14 The applicant relied on the sentence subsequently imposed by the Judge on the co-conspirator Henry to support a parity argument. The Judge said that although their roles were quite different they were comparable. Henry's role was to arrange the marketing, and the telephone transcripts showed his managerial involvement in the conspiracy. He said that the intended marketing was "merely an aspect of the conspiracy to import". 15 The Judge said he had been careful to confine the sentence imposed on Henry to the offence for which he had been found guilty by the jury. His ultimate conclusion in Henry's case was that the criminality of the applicant and Henry was approximately the same. 16 In sentencing Henry the Judge took as his starting point a sentence of 18 years which was the same as that for the applicant. As the Judge said, Henry had pleaded not guilty, in the face of overwhelming evidence, had not cooperated with the authorities, and was not entitled to the discounts allowed to the applicant. However he was a UK citizen who would be serving his sentence in a foreign gaol a long way from home and for this reason his non-parole period was reduced from 12 to 11 years. This Court set aside Henry's conviction on technical grounds and ordered a new trial and the sentence which was the foundation for this argument no longer exists. 17 There was no breach of the parity principle, given the finding that the overall criminality of the applicant and his co-accused were comparable. Each had a managerial role. The Court is not entitled to disturb those findings. 18 There remains for consideration the applicant's challenge to the adequacy of the discount for his assistance to the authorities. The Judge rejected the Crown's submission that his assistance should be rated as only moderate. He held, as has been noted, that it was significant although not major and the applicant was not likely to give further assistance in the future. 19 The applicant's principle submission was that his evidence exculpating Swansson and Alkarim was truthful. The Judge was therefore in error in devaluing his assistance and in finding that there would be none in the future. 20 The Judge said (remarks p 11): "Because of various stories that he has told, a mere reading of the telephone conversations themselves, not to mention the offender's own admission of inventing false names and using false names and so on, gives a flavour to his evidence which the Crown would no doubt find unhelpful were he to be called upon as a prosecution witness in any future proceedings." 21 The applicant's evidence about his association with Alkarim and Swansson given during his cross-examination by the Crown prosecutor (T 14/9/05 pp 1126-1167 AB 719-760) shows that the Crown had good reasons for not relying on his evidence. He was cross-examined at the trial after he was sentenced but the transcript was before us without objection. 22 At the conclusion of the oral hearing on 5 April this year the Court intimated that it would defer giving judgment until the decision of this Court, differently constituted, in the appeal by Swansson. This had been fixed for hearing on 1 June. This date and a subsequent hearing date were vacated and the appeal is now fixed for hearing on 13 February 2009. 23 Although the applicant is not responsible for the delays this Court has decided that further delay is unacceptable and judgment should now be given without waiting any longer for the decision in Swansson. 24 At the time, and without the benefit of argument or reflection, the result in Swansson's appeal was thought to be arguably relevant to the applicant's challenge to the adequacy of the discount for his assistance to the authorities. 25 The discount allowed for assistance to the authorities is for assistance that is accepted and used by them. The value of that assistance, and the discount to be allowed, are to be determined on objective and pragmatic grounds. If the authorities reject the proffered assistance, and it is not used, the prisoner will have given no assistance in the result and will not be entitled to any discount on that basis. In such a case the prisoner may be entitled to a greater discount for his plea of guilty but only if the sentencing Judge is able to find on the civil onus that his proffered assistance was honest and truthful. 26 If the prisoner is prepared to give evidence that X is guilty but Y is not and the Crown believe that both are guilty and decide not to call the prisoner he will not, to that extent, have given assistance to the authorities. In such a case the Court cannot be expected to undertake a mini trial of the guilt of Y in the course of the sentencing proceedings in order to fix a discount for assistance where, rightly or wrongly, there was none in fact. 27 A decision by this Court that Swansson's conviction was unsafe and unsatisfactory, and that he should be acquitted would not necessarily establish that he was in fact innocent. Nor would it necessarily establish that the applicant's evidence which exculpated him was truthful. The acquittal could be the result of evidence by the applicant which was false. 28 For these reasons the result in Swansson's appeal, even if successful, should not affect the present application which otherwise fails. Accordingly I propose that the following orders be made: 1. Leave to appeal granted;

ALCHIKH, Mohamad Raghid v R

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