Kemal v R

THE FACTS OF THE OFFENDING

1. Her Honour found the facts of the offending to be as follows. [2]
2. On 6 October 2018 the applicant boarded a flight at Larnaca Airport bound for Doha, where he caught a connecting flight to Sydney, arriving on the evening of 7 October 2018. His return flight was booked to leave Sydney for Cyprus on 12 October 2018.
3. On arrival in Sydney, the applicant completed an incoming passenger a card in which he declared that he was an IT engineer, that he was intending to stay in Australia for a six day holiday, and that he was not bringing anything into Australia which was illegal, including illicit drugs.
4. Having collected his suitcase, the applicant was stopped by an Australian Border Force (ABF) officer and taken to an examination area. His suitcase was subject to an x-ray which indicated anomalies. He was then taken to an interview room where he told ABF officers that he had travelled from Larnaca and was intending to stay in Sydney for six days. He also said that he had been given the suitcase by a friend.
5. The ABF officers seized the applicant's phone before examining the suitcase, in the course of which small pieces of a crystal-like substance were detected. A presumptive test was conducted on that substance which was positive for the presence of methamphetamine and cocaine. The applicant was then placed under arrest and was interviewed by officers of the Australian Federal Police. He told them that he was unaware of the contents of the suitcase before stopping the interview, saying that he did not feel well. He was then taken outside by an Australian Federal Police officer to have a cigarette, at which time he asked the officer to show him what was in the bag. The applicant then claimed to have borrowed the bag, saying that a friend had given it to him and that it was not his. He also said that thought he had been set up.
6. A subsequent police examination revealed that the applicant's bag in fact consisted of two identical brand suitcases which had been placed inside each other and glued together to give the appearance of a single suitcase. Police found two packages of a white crystalline substance inside the lining which, on subsequent analysis, was found to be methamphetamine. It had a gross weight of 2,793.5g with a purity of 80.3%, yielding 2,243.1g of pure methamphetamine. Swabs were taken from the plastic bags containing the methamphetamine but no DNA could be detected. Police were also unable to obtain any fingerprints.
7. Police later examined the applicant's phone and found a number of conversations which had been conducted over the "WhatsApp" platform. Although not referred to in detail in her Honour's reasons, those conversations were set out in full in the agreed facts which were tendered. [3]
8. In a conversation between the applicant and "Rasta" on 28 September 2018, the following was recorded: [4] APPLICANT: I am flying on Saturday Dude RASTA: I swear APPLICANT: At 12 morning And the it coming as a bombshell It is not money that I will carry It is important documents RASTA: mmm APPLICANT: I wonder what the documents are RASTA: I wonder how important they are. APPLICANT: [reply to Rasta] - ("how important they are"). They are very important Definitely I can't look at them It would be noticed if I open I have been warned RASTA: Exactly APPLICANT: I would never open And would I say something else They didn't take it RASTA: Yes. APPLICANT: This is not good in your opinion RASTA: Interesting APPLICANT: I mean a small bag staying folded It would be apparent if it is money And it is in the luggage to be given to cargo They pick up from other side There is also interesting The men waiting at each airport
9. In a conversation between the applicant and his sister, Burna Deveci, on 3 October 2018, the following was recorded: [5] APPLICANT: I'll be here on the 12th DEVECI: Where are you going stay? APPLICANT: In hotel It is organised Someone is going to meet me (when I get there) DEVECI: Does it worth it for 4,000 too little APPLICANT: It worths it. It is not for one time 3 times a month. APPLICANT: 25000 Turkish lira It's not too little DEVECI: Something is not right about this APPLICANT: 4,000 dollars APPLICANT: No, Turkish lira Never mind that now Don't make me feel sorry for telling you DEVECI: Anyway when you go first time You will see the situation, if good you can continue APPLICANT: In any case, I will open the case So that I can see DEVECI: Hahaha APPLICANT: What is inside DEVECI: They said don't open (it)? APPLICANT: They didn't say anything DEVECI: I too would say open (it) APPLICANT: I would open it But DEVECI: Play it safe. APPLICANT: I mean I am not an idiot Why do you think I told you So that you know DEVECI: Oh thanks APPLICANT: Would I hide it from you DEVECI: You did good APPLICANT: So that you come down (hard) on their head If something happens. But it won't Don't you worry, nothing happens to me I'll pay my debts (and) buy a car
10. In a conversation between the applicant and "My baby" on 3 October 2018, the following was recorded: [6] APPLICANT: Baby I have friends coming tonight my house about avustrali I think I'm flying early But before I fly I make sure you have money I think they want me to fly Friday night … [Images of flight details transmitted to 'My baby'] I'm staying only 6 days Not much
11. In a conversation between the applicant and "Kenya" on 4 October 2018, the following was recorded: [7] APPLICANT: I will send you pictures while I'm there To believe that I'm there Plus you never even ask why I'm going Which you not interested I think KENYA: I trust you, u know what you are doing APPLICANT: I'm not doing anything good that's for sure But I need money. KENYA: What do you mean? APPLICANT: Nothing It's ok KENYA: Ur not doing anything good APPLICANT: So so yes and no KENYA: Are you going in trouble? APPLICANT: No. I am clever enough KENYA: Then APPLICANT: Not to go trouble KENYA: Really now. R u APPLICANT: Sometimes people need money to survive deae I lost my job here Last month The time is been a bad boy

The sentence proceedings

1. The applicant gave evidence that a person by the name of Murat Bulat (Bulat) had booked his flights [8] and that he (the applicant) was not responsible for the use of the credit cards which were used to make his hotel reservations. [9] He said that he had met Bulat in Cyprus in 2007 [10] and that he was a "normal person". [11]
2. The applicant said that Bulat had put the bag in the taxi that he (the applicant) had caught to the airport in Larnaca, and that he had never actually handled the bag until he arrived at the airport. [12] However, he said that he had met with Bulat before getting into the taxi at which time he saw inside the bag. [13]
3. He was then asked: [14] Q. Did you put anything inside the bag? A. He took my clothes and put inside the bag, sir. Q. And your clothes, before being put inside the bag, were they inside the Nike sports bag? A. They were, sir. Q. So apart from your clothes that were inside the Nike sports bag - - A. Yes, sir. Q. And apart from the Nike sports bag yourself - - A. Yes, sir. Q. Did you see anything else inside that suitcase? A. No, sir, I didn't.
4. The applicant said [15] that Bulat had said that: … he's going to give me a bag and if it's ok with me to take money ….(not transcribable) to Australia.
5. The applicant also said [16] that Bulat had said asked him: … if I can bring the … (not transcribable) … and money to Australia and even if I know there was a risk, I said, 'I will do it'.
6. The applicant's evidence in chief then continued: [17] Q. Did he say what the documentation was? A. I asked him what the documentation was he said he won't be able to have a look because they are quite important and he told me not to ask any more questions. I want you to just take this documentation and the money that, it will be sealed inside the bag to the person that you come and give even though I know there was a risk I wanted to believe it was money and documentation but I also think that it could be drugs too. Q. Did he tell you who you were to deliver the bag to? A. Yes, he did. Q. Did he tell you the name of that person? A. He didn't, I asked him a couple of times he didn't tell me. Q. Well, how were you to find that person when you arrive in Sydney? A. He told me when I come to Sydney he will wait for me outside the airport then that's the time I will meet with him. Q. Did you have any way of contacting that person? A. No, sir. Q. Did you ever ask yourself what was necessary for documents to be carried from Cyprus to Australia? Did you ever stop and think about that? A. I always did ask myself but I couldn't find the answer, sir. Q. Did you ever think why the documents couldn't just be sent through the mail? A. I asked him and he said this, the only way I can send it here because I'm a trustworthy person and he can trust me and that he's' is better to send it by hand for someone. Q. Have you ever heard of that sort of thing happening before? A. This sort of thing has happened in our country, sir. Q. Were you told any other information or given any other instructions about what you were to do? A. No, sir. Q. Were you told anything about how the documents would be carried by you? A. No, sir. Q. Did he tell you how much money you would be carrying? A. I asked him and he said around, a little over $30,000 Australian dollars. Q. Australian dollars? A. Yes. Q. Did you ever see any money? A. No sir. Q. What was your understanding about whether it was permissible to carry that amount of money in Australia? A. I wanted to believe it was money and documentation, sir, I wanted to believe desperately, but I also think that it could be drugs too.
7. Her Honour then asked: [18] Q. It wasn't an envelope of documents or $30,000 in cash inside the bag when you looked at it? A. Yes, it's correct ma'am - - Q. Okay. A. - - but he told me that he was going to hide them and I won't be able to see them. Q. Okay. A. And that's what I believed.
8. Later, the applicant was asked: [19] Q. Mr Kemal, let me ask you this then. If you yourself appreciated that there was a risk that whatever you were told was hidden inside that suitcase might be drugs, why did you agree to carry it to Australia? A. I had a - I lost my job, I lost my business first I lost my job and after that and I was struggling with the banks financially and then I didn't - I wasn't thinking straight I didn't know what to do. I know I make big mistake in my life and I'm going to regret this for the rest of my life I'm not going to deny it for that. And I wish I could turn the clock back but I'm here for now and it's not nice things to be standing here and there's still things to do in my life. I really regret it; all I can say is just apologise for - - -
9. The applicant said that he had been offered USD$3,000.00 to bring the suitcase to Australia [20] and that he was in debt for USD$4,000.00. [21] He described himself as being under "very much financial pressure" at the time. [22]
10. In cross examination, the applicant was asked about his state of mind at the time of committing the offence: [23] Q. When you were carrying that suitcase in, whatever you thought or were told what was in the bag, was it your understanding that you would be imprisoned if you - or suspicion you'd [sic] imprisoned if you were to be caught doing that? A. I wasn't really - I wasn't thinking about how I would be end up to be in prison, sir. I wasn't thinking straight. Q. So it never occurred to you that illegally bringing items into Australia, that Australia clearly did not want it in Australia - - A. I know I would get into trouble, and I'm not going to deny it for that. But I wouldn't think about I'm going to end up in prison for this long, sir. Q. All right. It might just be my hearing but. A. I wouldn't think that I'm going to be ending up in prison, sir. Q. Well just if you suspected it was drugs, I mean, you must have - you must understand that there are very heavy - - A. I wanted to believe that it was money and documentation, sir. I think it could be the drugs, sir.
11. Her Honour then asked (in reference to the WhatsApp conversation with "Kenya"): [24] Q. Look, Mr Kemal, isn't this what you said to somebody on 4th of October? You didn't think you were going to get into trouble because you were clever enough to make sure you didn't get into trouble. A. Yes, ma'am.
12. The applicant was then asked: [25] Q. All right and you totally understood that Australia - that either drugs or illegal documents coming into Australia was something that could potentially do harm to Australia and Australia's community? A. Yes, sir. Q. You understood that all times, didn't you? A. Yes, sir.
13. The cross-examination of the applicant concluded with the following: [26] Q. And I want to suggest you, Mr Kemal, that it occurred to you well before the airport that you might well - that you might be taking drugs into Australia, didn't it? A. I did want to think about it because I couldn't believe. Q. The - you don't take drugs yourself? A. No, sir. Q. Because you know their harmful effects? A. Yes, sir. Q. You know their addictive properties? A. Yes, sir. Q. You know, they destroy people's lives? A. Yes, sir. Q. And you still took those risks to bring them into Australia? A. Yes, sir.
14. In written submissions provided to the sentencing judge, the applicant's solicitor put the following: [27] Notwithstanding what [the applicant] may have been told about the nature of what he was being asked to deliver, his plea of guilty to the offence carries the express acknowledgement that he at least adverted to the risk that it may be a border controlled drug; that the risk was a substantial one; and that it was unjustifiable for him to take that risk.
15. The applicant's solicitor subsequently submitted that it would not be open to the sentencing judge to find that the applicant was actually aware of the presence of the amphetamine, but accepted that the evidence supported a finding that the applicant was "clearly cognizant of the risk that there may have been" [amphetamine in the suitcase]. [28]
16. The applicant's solicitor then extended this submission somewhat, by putting to her Honour that it was not open to infer that the applicant was "aware of the risk" that the suitcase might contain "drugs specifically". [29] In considering this submission, and specifically in the context of the WhatsApp conversation with Rasta on 28 September, her Honour said: [30] But there's probably nothing in there from which I would infer that he had, as at that conversation, turned his mind to the possibility that there might be drugs. Unless "documents" means something other than documents. But even documents in drug parlance is usually money, not drugs. But I mean, there's no suggestion that I could actually give it that - any meaning like that as a code here.
17. In written submissions [31] the Crown put its case on the basis that the applicant had acted recklessly in committing the offence. In oral submissions, the Crown maintained that position and expressly disavowed any assertion that the applicant had actual knowledge of the presence of the amphetamine. [32] However, the Crown submitted that the sentencing judge should view the applicant's account of his level of knowledge with a "high degree of scepticism" [33] and that the evidence established that the applicant was aware that he was importing something illegal. [34]

Her Honour applied an erroneous test for recklessness under the Criminal Code 1995 (Cth) when assessing the objective seriousness of the offence.

The findings of the sentencing judge

1. In the course of the Crown's cross-examination of the applicant, the sentencing judge queried the forensic purpose of some of the questions which were being put in light of the Crown's position that the applicant had acted recklessly. In doing so her Honour remarked: [35] But his plea of guilty means that …. By the time he'd put the suitcase up, checked it in, he didn't believe it was just documents and cash, and he was reckless -- … about the fact that it might be something else. It had occurred to him that there was a substantial possibility …. Because he didn't see the bag after that, and he told lies about it when he got in, and he must have been reckless from the time he saw what was happening and agreed to go ahead and check it in and bring it to Australia.
2. In her reasons, the sentencing judge acknowledged that she was required to sentence the applicant in accordance with Part 1B of the Crimes Act 1914 (Cth), and that this, in turn, required her to take into account a number of factors, including the nature and circumstances of the offending. [36] In doing so, her Honour reviewed a number of aspects of the evidence [37] including: 1. the applicant's role in the offending; 2. the degree of planning involved; 3. the nature of the applicant's relationship with Bulat; 4. the circumstances in which the applicant had been given the suitcase; 5. the nature and extent of the applicant's knowledge; and 6. the applicant's expected remuneration for carrying out the importation.
3. Having specifically referred to the WhatsApp conversation with "Rasta" on 28 September, her Honour said: [38] In that message he is conversing with a person named Rasta and he refers to carrying or transporting documents or money. However the subsequent messages, it seems to me, indicate that even before he was given the suitcase in the taxi he was, at the very least, beginning to doubt the likelihood of this. There is nothing in those messages however to indicate actual knowledge that he was going to be carrying drugs, and the Crown does not submit that this knowledge can be established on the evidence.
4. After reviewing the evidence, including what the applicant himself had said, her Honour expressed the following conclusion (the italicised part of the final paragraph being the focus of the ground of appeal): [39] The state of mind necessary to prove this charge generally is that the offender was reckless about whether the items, or substances, which he knew he was carrying, was in fact drugs, and the plea of guilty here indicates that. The inference further, in my view, is clear from other evidence, especially the messages, and also the fact that by the time the offender saw the suitcase in the taxi it must have occurred to him that it was highly unlikely, at the very least, that there would documents or cash hidden somewhere in the suitcase. Further, he was being paid a substantial amount for undertaking the task, especially if what he was being asked to transport was documents. However there is no evidence from which I could find that the offender actually knew that he was carrying drugs. The evidence taken together, including his evidence, is that he was reckless about that, that he had turned his mind to that possibility and was hoping was not the case, but having done so and considered it as a possibility, he went ahead and took the suitcase on the flight in any event. The fact that this was his state of mind, and that the evidence is not capable of establishing that he had actual knowledge that what he was transporting was drugs, does indicate a somewhat lower level of moral culpability than if he actually knew that he was carrying drugs. In the circumstances, it is a relatively high level of recklessness however (my emphasis).

Submissions of the applicant

1. It was submitted that in reaching the conclusion that the applicant had exhibited a high level of recklessness, her Honour had applied the incorrect test. In this regard, counsel emphasised what her Honour had said in the italicised passage above, and submitted that the terms of that passage reflected her Honour having applied the common law test of recklessness, rather than the test for recklessness which is set out in the Code.
2. Such a conclusion, it was submitted, was reflected in her Honour's reference to the appellant having turned his mind to the possibility that there was a border-controlled substance in the suitcase. Counsel submitted that her Honour was bound to apply the test for recklessness in the terms in which it is expressed in the Code, and which makes reference, not to a possibility, but to the existence of a substantial risk. Counsel submitted that it was not to the point that, in approaching the matter as she had, her Honour had arguably applied a less stringent test than that for which provision is made in the Code.
3. In all of these circumstances, it was submitted that the ground of appeal was made out and that this Court should proceed to re-sentence the applicant in the fresh exercise of the sentencing discretion.

Submissions of the Crown

1. The Crown accepted that if a conclusion were recached that the sentencing judge had applied the common law test of recklessness in assessing the applicant's level of criminality, an error would be established. However, it was submitted that the sentencing judge had adopted a conventional approach to her assessment, and had correctly applied the law.
2. The Crown submitted, in particular, that it was evident from the passages of her Honour's reasons set out above that her Honour had assessed the nature and circumstances of the offending by reference to all of the evidence, including what the applicant himself had said. Counsel submitted that in terms of his level of knowledge, the effect of what the applicant had said was that he had adverted to the possibility that there were prohibited drugs in the suitcase, but proceeded to effect the importation in any event. This, it was submitted, was the source of her Honour's use of the word "possibility" in her reasons. Counsel submitted that, understood in that way, her Honour was simply paraphrasing what the applicant had said, rather than applying an incorrect test.
3. It was submitted that in these circumstances the asserted error had not been established.

Consideration

1. Chapter 2 of the Code makes provision for general principles of criminal responsibility in respect of Federal offenders. To begin with, s 3.1(1) provides that an offence consists of: 1. physical elements; and 2. fault elements.
2. Section 5.1 addresses fault elements and is in the following terms: 5.1 Fault elements (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
3. Section 5.4 defines recklessness as follows: 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
4. As I have noted, the Crown put its case, in respect of the requisite fault element, on the basis that the applicant was reckless. In other words, for the purposes of s 5.4 of the Code, the Crown case was that: 1. the applicant was aware of a substantial risk that border controlled drugs were in the suitcase; and 2. it was unjustifiable for the applicant to take that risk in doing what he did.
5. The reference to "substantial risk" in the definition of recklessness in the Code may be usefully contrasted with the test for recklessness at common law, under which the Crown must establish an awareness on the part of an accused of the possibility of the relevant circumstance, along with the fact that such accused proceeded, with that awareness, to perform the relevant act. [40] It is the applicant's case that her Honour incorrectly applied the common law test, rather than the provisions of the Code, when assessing the applicant's criminality generally, and his degree of recklessness in particular.
6. The applicant pleaded guilty to the offence of importing a border controlled substance. That plea constituted an admission by the applicant to all of the elements of that offence, [41] including the fact that he had acted recklessly according to the definition contained in the Code.
7. When giving evidence in the sentence proceedings, the applicant explained, on three separate occasions, that he thought at varying times that there "could" be drugs secreted in the suitcase. In other words, the applicant had turned his mind to the possibility that drugs were secreted. That evidence was not, of course, given by the applicant by reference to the provisions of the Code but was expressed (through an interpreter) in more colloquial terms. It could not be suggested that by expressing himself in that way, the applicant was traversing his plea of guilty.
8. Against that background, her Honour was required, as part of the process of determining an appropriate sentence, to make an assessment of the nature and circumstances of the offending. [42] That necessarily included making an assessment of the applicant's criminality, and his level of recklessness. Her Honour undertook that task by reviewing the evidence before her, including aspects of the what the applicant himself had said. Her Honour concluded, by reference to "evidence taken together, including (the applicant's) evidence," that the applicant had "turned his mind to that possibility" (i.e. the possibility of the presence of drugs in the suitcase), and that having done so, he had nevertheless proceeded with the importation and in doing so, had acted in a manner which was highly reckless.
9. Reasons for sentence cannot be parsed. They must be read as a whole. In the context of the present case, that means that her Honour's reference to the applicant having "turned his mind to the possibility" that drugs were in the suitcase is not to be viewed in isolation, completely divorced from the passages of the reasons which preceded it. Importantly, in those preceding passages her Honour expressly alluded to the applicant's evidence. Viewed in this way, her Honour's reference to the applicant having turned his mind to, and considered, the possibility that drugs were present in the suitcase does not reflect the application of an incorrect test. In expressing that part of her conclusion in those terms, her Honour was doing no more than paraphrasing, for the purposes of her assessment of the applicant's criminality, what the applicant himself had said about his state of mind at the time of committing the offence.
10. For these reasons the ground of appeal is not made out.

ORDERS

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

Endnotes

1. AB 4.
2. AB 45 - AB 47.
3. Commencing at AB 60.
4. AB 64. The messages have been reproduced in the terms in which they appear in the agreed facts.
5. AB 63-64.
6. AB 63.
7. AB 62.
8. AB 18.27 - AB 19.38.
9. AB 11 - AB 16.
10. AB 21.12.
11. AB 21.39.
12. AB 20.6 - AB 20.24.
13. AB 20.28 - AB 20.32.
14. AB 20.33 - AB 20.48.
15. AB 22.30 - AB 22.31.
16. AB 22.36 - AB 22.37.
17. AB 22.41 - AB 23.46.
18. AB 24.31 - AB 24.42.
19. AB 26.19 - AB 26.28.
20. AB 26.30 - AB 26.35.
21. AB 26.40 - AB 26.41.
22. AB 27.17 - AB 27.18.
23. AB 30.16 - AB 30.34.
24. AB 30.40 - AB 30.43.
25. AB 31.22 - AB 31.28.
26. AB 37.20 - AB 37.38.
27. AB 93 at [11].
28. AB 38.11 - AB 38.14.
29. AB 43.15 - AB 43.16.
30. AB 43.27 - AB 43.32.
31. AB 74 at [16].
32. AB 39.41 - AB 39.42.
33. AB 39.41 - AB 39.47.
34. AB 40.5 - AB 40.10.
35. AB 35.23 - AB 35.35.
36. AB 47.5.
37. Commencing at AB 47.8.
38. AB 49.3
39. AB 49.7 - AB 50.4.
40. Ke v R [2021] NSWCCA 117 at [14].
41. Meissner v The Queen (1995) 184 CLR 132; [1995] HCA
42. Crimes Act 1914 (Cth) s 16A(2)(a). 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: 27 April 2022