Calason v R

Court of Criminal Appeal (NSW)|2023-07-24|Before: Harrison J, Wilson J, Adams J

JUDGMENT

HARRISON J: I agree with N Adams J and the orders proposed by her Honour.
WILSON J: I have had the benefit of reading the judgment of N Adams J in draft, and agree with the orders proposed by her Honour, for the reasons that she has given. Despite its character as an appeal against sentence, this application can be readily characterised as an "armchair appeal", as that phrase was used in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [170]. It not only sought to advance a case not put at first instance but, further, raised an argument that is contrary to sentencing law, and common sense. It is devoid of merit. Notwithstanding that, the community's interest in achieving finality makes it appropriate to grant leave to appeal: Gould v R [2023] NSWCCA 103. As N Adams J has concluded, the appeal should be dismissed.
N ADAMS J: The applicant, Hakan Calason, seeks leave to appeal against the aggregate sentence imposed on him by Fitzsimmons SC DCJ on 28 October 2022 for importing a marketable quantity of a border-controlled drug (cocaine), contrary to ss 307.2(1) and 11.2A(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is 25 years imprisonment and/or 5000 penalty units ($1,110,000).
The applicant pleaded guilty to that charge and requested that the court take into account an attempt to import a marketable quantity of a border-controlled drug contrary to ss 307.2(1) and 11.1(1) with s 11.2A(1) of the Criminal Code on a s 16BA Crimes Act 1914 (Cth) schedule. He received a 25% discount for the utilitarian value of his plea.
The applicant received a sentence of 6 years imprisonment with a 4-year non-parole period. The non-parole period will expire on 6 June 2025 and the head sentence will expire on 6 June 2027.

Agreed facts

The applicant was sentenced on the basis of a statement of agreed facts.
The applicant's offending came to the attention of the Australian Federal Police (AFP) because he was using the encrypted communications platform named 'ANOM'. This platform was installed on his mobile phone. He was communicating with five other ANOM devices.
The Crown case is that the applicant was involved in the importation of cocaine whilst working at FedEx as a courier. Through encrypted exchanges over ANOM he was directly implicated in two importations. He also exchanged messages with another person, Ayhan Dogan, on ANOM about alleged importations of 4 kilograms of methamphetamine, as well as methamphetamine and heroin from Thailand and Germany and consignments from Los Angeles of 10 to 15 kilograms.
The first of the two consignments the applicant was directly implicated in related to the importation of one kilogram of cocaine. This was the offence taken into account on the s 16BA schedule. Messages in the ANOM "group chat" in April 2021 created by Dogan revealed that the people in the group had organised a consignment to be sent from the United States. When another user indicated the consignment would be sent on 23 April 2021, Dogan asked them to send the details to the applicant so he would know what to look for. Dogan updated the group chat on the delivery route of the consignment and specifically informed the applicant on 2 May 2021to "keep an eye out" for it tomorrow.
On 3 May 2021, the applicant took possession of the consignment containing one kilogram of cocaine while at his place of employment at FedEx Botany. Messages sent on ANOM confirmed receipt of the consignment and arranged the subsequent handover. On the same day, the applicant gave the consignment to someone else.
Following the exchange, Dogan and the applicant exchanged messages in relation to the applicant's ability to intercept future consignments. The applicant noted that there had been operational changes at the depot and messaged "wait for me I [will] let u know". Dogan replied, "OK sweet we will wait for you", informing the applicant that he would tell the overseas contacts sending the consignments to wait.
The second consignment was the basis of the charged offence. On 3 May 2021, messages were exchanged in the group chat arranging the importation of another consignment. The applicant provided his availability and information about new driving arrangements at FedEx. On 6 and 7 May 2021, in response to a question from Dogan the applicant told him about the best location for the delivery and advised of other locations within the delivery zone.
On 14 May 2021, Dogan requested the other person in the chat to send the second consignment on a Friday so it would be easier for the applicant to take possession of it.
The second consignment arrived at Sydney International Airport on 23 May 2021. Presumptive testing by the Australian Border Force indicated the presence of cocaine. Subsequent forensic testing confirmed that the substance weighed 991.2 grams, comprising 565.9 grams of pure cocaine.
On 24 and 25 May 2021, the group exchanged messages and the applicant was asked to check two addresses for the consignment. The applicant said he could not locate the consignment and messaged: "nothing here boys I double check everything. We need right tracking number, and we know what's happen after that". Call Associated Data (CAD) linked to the applicant's device showed that he was consistently in the vicinity of FedEx Botany on the mornings of 24 and 25 May 2021.
On the evening on 25 May 2021, the applicant and Dogan exchanged messages, expressing their concern about the delay of the consignment, and agreeing that Dogan would see the applicant on 26 May 2021 to discuss the consignment.
On 27 May 2021, since the substituted second consignment had not been collected, the consignment was seized by the AFP and removed from the delivery chain.
The applicant was arrested at his home on 7 June 2021 at which time the police located the ANOM device in his premises.

Proceedings on sentence

The proceedings on sentence took place on 16 September 2022. The Crown tendered a bundle containing the notice of committal; the court attendance notices; the s 16BA schedule (signed by the applicant); the agreed facts; the applicant's criminal and custodial history; and written submissions. Counsel for the applicant tendered the report of psychologist Anita Duffy dated 16 August 2022; a letter from the applicant dated 9 September 2022; an affidavit from the instructing solicitor, Michael Blair, deposed on 12 September 2022; and four reference letters or testimonials authored by Derya Calason, Anastasia Kontou, Hassan Abdallah and Atilla Unal.
The applicant did not give evidence at his proceedings on sentence. He relied upon the account he gave Ms Duffy regarding his subjective case.
The applicant's senior counsel provided detailed written submissions outlining the relevant sentencing principles in relation to fact finding, objective seriousness, joint commission liability, drug importation offences, deterrence, the s 16BA schedule and "matters personal to the offender". No written submissions were advanced concerning the principles derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy") or R v Millwood [2012] NSWCCA 2.
The Crown oral submissions before the sentencing judge were made first. They were detailed and covered, inter alia, the mandatory factors to be addressed under s 16A of the Crimes Act 1914. As for Ms Duffy's report, it was submitted that this was not a case in which the applicant's mental condition had contributed to the offending in any way such that his moral culpability is reduced. In that context, it was submitted that the applicant's mental condition "does not call for leniency".
His Honour indicated to the applicant's senior counsel that he had had the opportunity to read his written submissions and would be assisted if he would highlight the "aspects of the applicant's subjective material". The applicant's senior counsel turned to Ms Duffy's report and noted the following: "He related a number of childho od adversities, poverty, domestic violence, physical abuse and parental alcohol use which shaped his development and continued to have an impact upon his attitudes and behaviours"
The following submission was then made: "One thing I didn't go into writing about in the submission that's been provided to the Court is that there is an aspect of disruption to his childhood, which is a relevant matter on sentence. That issue is then engrossed upon in the report at para 4. Your Honour would be aware of that oft quoted decision of Millwood by Simpson J. Millwood was a case in extremis. That was a truly tragic upbringing. We don't suggest that there's a parallel actually. But the principle that came out of that case was the rejection of the Crown's submission that in effect a disrupted or deprived background did not impact on moral culpability. What her Honour said is I'm not prepared to accept that someone who hasn't had the same advantages in life should be treated in the same way when it comes to the assessment of moral culpability. That's the essence of it. (Emphasis added.)
Senior Counsel then went through Ms Duffy's report in some detail before making the following submission: "Once again I make that submission, that the circumstance is more nuanced than a situation where someone just commits a drug offence for greed in the full functioning of their faculties. Here is someone who was under a circumstance of strain, who was influenced by those circumstances, including considerable drug use, and these are matters importantly that he is seeking to address now."
Although it was submitted that the applicant's motive (financial) should be considered in the context of the strain he was under, it was not squarely submitted that the applicant's moral culpability should be reduced either on the basis of mental illness or for Bugmy reasons. The high point of the latter was the reference to R v Millwood in the context of a submission that a disrupted childhood was relevant on sentence, although it was submitted that the present case was not a "parallel" with that case.

Remarks on sentence

Given the narrow ground of appeal, it is not necessary to summarise his Honour's reasons in full. They are published on Caselaw: R v Calason [2022] NSWDC 544.
His Honour commenced his consideration of the applicant's subjective case by noting: "The offender is a 38-year-old divorced male with two sons aged 4 and 14. He was born and raised in Turkey before moving to Australia in 2006. The offender has a history of alcohol and drug dependency and reports some issues in relation to anger and mood."
His Honour summarised Ms Duffy's report in detail at [49]-[65] including the applicant's claim that the adversity he experienced as a child impacted his behaviour. His Honour noted that at the time of the offending the applicant needed money to support himself, to fund his cocaine habit and to provide for his wife and children.
The applicant reported to Ms Duffy that he worked part-time from the age of 13 and left school at the age of 15. He married his ex-wife who was visiting from Australia in Turkey before migrating to Australia in 2006. He eventually worked as a courier but had to take a year off due to a work-related injury. He described that around that time he started using cannabis to alleviate physical and emotional pain. His alcohol consumption increased, and he could drink a bottle of spirits in two days. He had a mid-range PCA charge in 2018. He began working at FedEx, where he was employed for approximately four years until his arrest.
His Honour noted that the Outcome of the Severity Dependence Scale indicated that the applicant's cocaine use in the period around the offending satisfied psychological criteria for dependence related to compulsive and uncontrollable use, despite the applicant wanting to reduce his use. His levels of depression, anxiety and stress were at the moderate range (above average). At [61], his Honour noted that Ms Duffy diagnosed him with a stimulant use disorder at the time of the offending that is now in sustained remission
At [96], his Honour noted the Crown submission that: "There was no evidence that any mental condition from which the offender suffered contributed to the offending. This was not a case where general deterrence should be given less weight. Any mental health condition from which the offender suffered did not justify a more lenient sentence". (Emphasis added.)
At [97]-[106], his Honour summarised the submissions made on behalf of the applicant. He did not refer to any submission being made consistent with R v Millwood or Bugmy (consistent with no submission being squarely put based on those issues). He did, however, note the following at [106]: "The offender did not contend that his mental condition entitled him to any leniency, although the Court was entitled to take into account this condition in support of a submission that it was these circumstances which meant he was, to an extent, compromised. Further it was evidence that he was presently seeking to address these issues. The offender disputed the suggestion that he was 'the door'. His role involved a high degree of risk and played a subordinate role in the importation."
His Honour then made his findings under the heading "Consideration" at [107]-[127]. In respect of the submissions of the Crown at [96] and the applicant at [106], his Honour's finding was as follows: "[119] It is apparent that the offender was raised in difficult circumstances including poverty, domestic violence, and physical abuse (s 16A(2)(m)). The offender suffers from depression, anxiety and stress, and it is apparent he resorted to the use of drugs to attempt to ameliorate these conditions. The offender has now recognised these issues and is taking steps to address them. Whilst these issues are not considered in the context of justifying any leniency in passing an appropriate sentence, they are still matters relevant to the sentencing process."

Applicant's submissions

The nub of the applicant's complaint was that the sentencing judge erred in excluding the applicant's childhood adversities as a mitigating factor when it was incumbent on his Honour, having accepted the credibility of the evidence, to make a finding that the applicant's moral culpability was reduced.
The applicant submitted that leniency and mitigation are the same thing for his purposes and conceded that if there is a difference between leniency and matters that are properly taken into account in mitigation the appeal falls away.
The applicant contended that while the applicant's then counsel invited the sentencing judge to treat the applicant's disadvantaged childhood as a mitigating factor and relied on R v Millwood, his Honour either misunderstood that submission or rejected that it should have a mitigating impact on the sentence imposed.
The applicant also submitted that the observation in Dungay v R [2020] NSWCCA 209 at [153] that a sentencing judge can have regard to an offender's childhood deprivation as part of the instinctive synthesis, as opposed to necessarily reducing moral culpability, is not correct. He submitted that in every case where the sentencing judge accepts that the offender has a deprived childhood, their moral culpability must be reduced.
During the hearing, I suggested to counsel for the applicant that if the applicant's subjective factors were not considered by the sentencing judge as aggravating factors, he must have had regard to them as mitigating factors. He accepted that the sentencing judge did not have regard to the factors as aggravating factors but submitted that his Honour excluded them from consideration as mitigating factors.

Crown submissions

The Crown submitted that the proposition that a deprived background must reduce moral culpability in every case is contrary to authority, including Bugmy, and contrary to first principles of sentencing by virtue of instinctive synthesis.
The Crown emphasised that paragraph [119] of the sentencing reasons must be read in the context of the sentencing judgment. His Honour had already noted the applicant's anxiety, depression and drug use. The Crown also contended that the sentencing judge could not be required to make a mandatory finding with an automatic consequence, as that would be contrary to instinctive synthesis sentencing.
The Crown also submitted that the sentencing judge was not invited to draw a causative link between the use of drugs and the commission of the offences.

Consideration

No submission was made to his Honour based on the decision in Bugmy. Despite this, the complaint made under this sole ground of appeal turns on whether the sentencing judge erred in his application of the principles derived from that decision. In Bugmy, the High Court considered the relevance of an offender's deprived background to offending as an adult. On that issue, the court observed the following at [44] (footnote omitted): "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (Emphasis added.)
Although no submission was made to the sentencing judge concerning Bugmy, reference was made in general terms to the decision of Simpson J (as her Honour then was) in R v Millwood. The oft cited passage from that decision is as follows: "[69] I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been 'tragic and dysfunctional'. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders."
The decision in R v Millwood pre-dates the decision of the High Court in Bugmy and was not cited by the High Court in Bugmy, although the decision in R v Fernando (1992) 76 A Crim R 58 was. Despite this, the paragraph from R v Millwood extracted above is regularly cited as authority for the same principle as articulated by the High Court in Bugmy at [44]. Although it is to be accepted that Simpson J eloquently articulated the same principle which was later stated by the High Court in Bugmy at [44], it is somewhat curious that reliance would ever be placed on the decision in Millwood v R as a stand alone principle in lieu of the High Court authority on the same principle.
The applicant's submission as to the relevance of the applicant's childhood is somewhat difficult to ascertain. There was no reliance on either Bugmy or R v Millwood in detailed written submissions. In oral submissions, reference was made to the decision in R v Millwood but, as the extracted transcript above makes clear, it was conceded in that context that the case in R v Millwood was different to the present case.
Having carefully considered the transcript of the proceedings on sentence and the sentencing reasons, I am not satisfied that any submission was squarely made to the sentencing judge that he would make a finding that the applicant's moral culpability was reduced because of his childhood adversity; the focus of the submissions insofar as the applicant's subjective case was concerned was as to the relevance of his anxiety and stress leading to cocaine addiction at the time of the offending such that the motive for the offending was more nuanced than simply being that of greed.
The sentencing judge carefully summarised the submissions of the parties. In doing so he made no reference to any Bugmy submission reflecting his understanding that none had been made. His Honour noted the Crown submission that the applicant's moral culpability should not be reduced due to any mental condition. In doing so, such a course (reducing moral culpability) was referred to by the Crown (at [23] above) and the sentencing judge (at [33] above) in terms of affording "leniency". When regard is had to the language of the submissions of the parties and his Honour's summary of those submissions, I am satisfied that his Honour's finding at [119] was that although he would not reduce the applicant's moral culpability on the basis of the matters referred to in that paragraph, "they are still matters relevant to the sentencing process". In other words, his Honour has adopted the language of the Crown submission on this issue.
To the extent that it is submitted that his Honour should have made a finding that the applicant's moral culpability was reduced even though such a submission was not squarely put to him, I am not satisfied that this is a case where such a finding was so obvious that error is disclosed despite the submission not having been put. This is a very different case to Kliendienst v R [2020] NSWCCA 98.
I see no error in the approach by the sentencing judge in having regard to the matters referred to at [119] of his reasons as being relevant to his instinctive synthesis rather than going to a finding of reduced moral culpability. Such an approach is consistent with my decision in Dungay v R (with whom Bell P (as his Honour then was) and Davies J agreed). The question addressed in Dungay v R at [137]-[153] was whether there needed to be a causal connection between an offender's deprived childhood and the offending behaviour in order for a finding that moral culpability was reduced. After considering a number of decisions of this Court, I concluded that there did not need to be such a causal connection. In that context, I stated the following at [153]: "Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender's moral culpability: Kliendienst v R [2020] NSWCCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence."
The applicant's counsel submitted at the hearing that this passage in Dungay v R is wrong. I note that it has been followed in a number of decisions in this Court including Newman v R [2021] NSWCCA 101 at [46]; Hoskins v R [2021] NSWCCA 169 at [57]; MH v R [2022] NSWCCA 287 at [35]; Lloyd v R [2022] NSWCCA 18 at [27]; DR v R [2022] NSWCCA 151at [36] and Nasrallah v R [2021] NSWCCA 207 at [24] and [88]. I have been unable to find any decision of this Court in which a submission has been made challenging its correctness nor any judgment in this Court in which doubt has been raised in relation to it. It was not suggested prior to the hearing of this appeal that a five judge bench should sit to consider its correctness. I propose to proceed on the basis that [153] of Dungay v R remains a correct statement of principle.
It seems to me that the applicant's submission that Dungay v R at [153] was wrong was made because if it is correct this appeal must fail. I am satisfied that the sentencing judge had regard to the applicant's depression, anxiety and stress, emanating from his childhood issues and which led to drug use, as matters "relevant to the sentencing process". It was conceded by the applicant's counsel during the hearing of the appeal that such matters could not be "relevant to the sentencing process" as aggravating factors. Nor, given that the sentencing judge described them as "relevant" could it be said they were put to one side by his Honour. That means that the only way that his Honour could have had regard to them were as mitigating factors; consistent with Dungay v R at [153].
For these reasons, this ground must fail. In order to bring this matter to finality, I propose to grant leave but dismiss the appeal: Bargashoun v R [2023] NSWCCA 17 at [70].
Accordingly, I would propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2023

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