King v R

Facts 9Given the nature of the grounds of appeal it is unnecessary to explore the facts in all their detail. I will largely confine my remarks to the activities of the applicant and the two co-offenders who are relevant to the parity issue. Except where indicated, the following is drawn from the judge's sentencing remarks. 10There was a drug trafficking syndicate based in the United Kingdom and Australia which imported about 165,000 ecstasy tablets weighing almost 32 kilograms into Australia in December 2003. A police investigation of the syndicate had been underway for the previous 6 months. 11The drugs were imported in a shipping container inside the doors of six refrigerators as part of a larger importation of 54 refrigerators. There had been two previous "dummy runs" importing of refrigerators. The drugs were intercepted upon arrival in Melbourne. Arrests occurred after syndicate members retrieved an inert substance that police had substituted for the drugs within the fridge doors. 12The applicant travelled to Australia in September 2003 for a week for the purpose of meeting with others to discuss the plan to import the drugs. He had previously consulted with others in the United Kingdom in relation to funding and sourcing drugs for the importation. The judge found that at this stage of the planning, the applicant was "in something of an equal role" with two other men, referred to as Cerisola and Salhani; the applicant was responsible for the organisation, Salhani for the money and Cerisola for sourcing the drugs. 13Peter Henry was a citizen of the United Kingdom who had come to live in Sydney in November 2002 (AB 293). He was described by the judge as the applicant's "trusted friend and associate". The applicant frequently discussed the planned importation with him and knew Henry would be in a position to organise others in Sydney to facilitate it. Her Honour said, "[t]o that extent [the applicant] was playing a very significant role at that stage in this importation, in fact setting it up or organising its inception." 14Mohamad Alchikh, a Sydney based conspirator, travelled to London in October 2003 to discuss the plan with the applicant and Salhani. By this time the applicant had decided to secrete the drugs inside refrigerator doors, as opposed to a previous plan to secrete them inside cranes. It was the applicant who had the contact in London that enabled the refrigerators to be purchased and his involvement included arranging the two earlier "dummy run" importations. He had conversations with Alchikh and Henry about the success of these "dummy runs". The judge said that she found the terms of these conversations had the "flavour of Alchikh and Henry reporting the outcome to [the applicant]". 15The judge also found that the applicant was "integrally involved in organising for the refrigerators with the concealed ecstasy to leave the United Kingdom on 2 November 2003 on their way to Melbourne." 16Reference was then made in the sentencing remarks to the preparatory activity of various syndicate members in Australia for the arrival of the drugs, such as liaising with freight forwarders, leasing factory premises, transportation and the like. The applicant was in constant contact with Henry discussing these various arrangements and activities. Again, her Honour found that these conversations had the "flavour of Henry reporting day-to-day activities" to the applicant. 17At this point of her remarks the judge observed that the applicant and Henry each stood to gain the benefit from 35,000 of the 165,000 tablets and were to each obtain "roughly the same financial gain". But whilst the judge said that this was a relevant matter in determining their roles, she added that "it is not determinative". Reference was made to a claim by the applicant that he stood to gain £120,000 and, later, to a contention by the Crown that his gain would have been significantly greater. The dispute was not resolved, her Honour being content to find that "[w]hatever the amount that he was to receive, it was clearly for financial gain and it was a relatively large amount." 18On 27 November 2003 there was a discussion between the applicant and an undercover operative who had infiltrated the syndicate in relation to the supply of ecstasy tablets. The applicant told the operative that there was a consignment already on its way to Australia. They also discussed further supplies of large quantities of the drug. The terms of the conversation led the judge to the "impression" that the applicant was "in control" and "a key organiser of this drug importation". 19Reference was then made to conversations and activities of syndicate members related to clearing of the shipment through customs, and transporting it to a location in Melbourne and ultimately to Sydney. In this context her Honour referred to Henry as having "played a significant and pivotal role in this syndicate". His activities included organising for another person (referred to as Warner) to come to Australia to assist once the drugs arrived in Sydney. 20The shipment arrived in Melbourne on 3 December 2003. The applicant had another conversation with the undercover operative about the latter paying $500,000 for the drugs. What were thought to be the drugs were transported to Sydney (the substitution of the inert substance by police having occurred in Melbourne). Two syndicate members set about retrieving the substance and took it to a proposed meeting with Henry to provide it to him. It was at that point that arrests were made. 21The judge turned to the question of the applicant's role. She accepted a Crown submission that he was "a key organiser whose role was critical to the success of the importation and that he was either the syndicate's principal or, at the least, a very senior member." She noted that invariably in such cases there no evidence of "one overarching principal". Her Honour found: As I have already said, it seems to me that there would appear to have been at least three people operating in the United Kingdom somewhat equally, involved at a senior level, namely Salhani organising the funding, Cerisola sourcing the drugs and [the applicant] overseeing the organisation of the importation from the United Kingdom. I accept that he did that in large part through Henry who was already in Sydney and who was a trusted friend. But it seems to me, on the evidence, that [the applicant] played a greater role in this importation than Henry, even though of course Henry was pivotal. Equally with Henry so was Alchikh a pivotal member of this syndicate. [The applicant] also undertook some of his organisation of this importation from the United Kingdom by contact with Alchikh. (ROS 9 - 10) 22A number of ways in which the applicant's role was thought to be "pivotal" were then set out, before her Honour said: Without in any way diminishing Henry's role, which as I have said was also pivotal, the role played by [the applicant], it seems to me on that basis, was more significant and as a result the sentence that he receives should be greater as a result of his increased role. (ROS 11) 23The findings made by the judge as to the role played by the applicant, relative to that of other members of the syndicate, were not subject to any challenge in this Court.

Subjective matters 24There is no challenge to any of the conclusions reached as to the applicant's subjective circumstances and no attempt has been made to claim that they are relevant to the grounds of appeal. One matter worthy of note, however, is that her Honour received evidence of assistance the applicant had provided to authorities while he was incarcerated in the United Kingdom. The details are presently unimportant but the ultimate result was that her Honour reduced the sentence she otherwise would have imposed by 20 per cent for the combination of the applicant's late plea of guilty and his assistance to authorities. The sentence of 16 years would otherwise have been one of 20 years. 25Another subjective matter of note is that the applicant had what was described as "a lengthy relevant criminal history including one conviction with imprisonment in the United Kingdom for a conspiracy to supply drugs in 1990 and another conviction for importing illegal drugs in 1991 for which he received a sentence of twelve years." 26The challenge to the sentence on parity grounds is confined to the length of the non-parole period, so it is also appropriate to note that the judge referred to the fact that the applicant had been held in maximum security since his arrest in 2003, a lengthy period of time albeit largely as a result of his various attempts to avoid extradition. Her Honour said that she took this into account in determining the appropriate non-parole period. It was also stated later in her remarks that: The appropriate non-parole period should reflect the minimum period of time which justice requires that he serve to reflect all of the circumstances of the offence. It must also take into account factors involving the offender himself and the nature of his incarceration and in this case ... this includes the whole time being spent in maximum security and that for the last eighteen months it was well away from his family and friends. The non-parole period should also allow for a reasonable period on parole, no doubt eventually in the United Kingdom, hopefully with supervision, in an attempt to reintegrate him into the law abiding community. (ROS 23-24)

The judge's approach to parity 27It is significant that her Honour was well aware of the relevance and importance to the sentencing exercise of the parity principle. She said: I then turn to what is the appropriate sentence given these findings in relation to the objective criminality and the subjective circumstances of the offender. The significant issue is that of parity or relativity. There is no strict parity with any of those others who have been sentenced. They all are different in one way or the other, either in relation to their role, the offence for which they have been sentenced, whether or not it was after a plea of guilty or following trial and similar issues. I have, however, been provided with and have read the remarks on sentence in relation to those six others who have been sentenced to finality in New South Wales for this importation. They include Alchikh, Hands and Alkarim sentenced by Judge Woods, Henry and Gravett sentenced by me and Swansson sentenced by Judge Zhara. It is argued that, as I have said, I should regard this offender as being on equal footing with Henry and pay significant regard to that and the sentence that Henry received in determining the appropriate sentence. I have already addressed the issue in relation to their respective roles. However, whilst his role is more significant for the reasons I have found, the sentences should bear some relativity. Further, when comparing Henry's sentence, I also take into account that he was being sentenced not for the same offence of conspiracy to import a commercial quantity of ecstasy, but for the offence of aiding and abetting and attempt to possess these drugs. That is the basis on which I sentenced him. In those sentence proceedings I found that on the facts of Henry's case this differentiation in charge did not, to any great extent, diminish Henry's objective criminality and, of course, the maximum penalty for the offence was the same. However, there is some difference between the two. Not only did this offender play a larger role than Henry, further Henry was sentenced for something which is, in its own terms, somewhat less serious. I was also, in the Henry case, constrained by the sentence originally imposed by Judge Woods after trial initially, that is overall an eighteen year term with a non-parole period of eleven years. I am mindful, and take into account too, the sentence imposed on Alchikh in circumstances where he pleaded guilty to exactly the same offence of conspiracy to import. He was given a thirty-three per cent overall discount which led to an overall sentence of twelve years with a non-parole period of seven years and three months. His role was found to be very significant but it seems to me, for the same reasons as I expressed in relation to Henry, he too played a somewhat smaller role than this offender in this particular offence. Alchikh's was an early plea of guilty and the sentencing judge allowed him a discount of twenty per cent for that plea. It follows that the sentencing judge must have used eighteen years as the appropriate starting point also for Alchikh. That is the same starting point originally used by Judge Woods for the first sentence of Henry. I take that into account. I reduced that when sentencing Henry ultimately to a lower figure for the reasons that I set out, namely the plea of guilty, albeit late, and the actual offence for which he has been sentenced. (ROS 21-23)

Sentencing of Mohamad Alchikh 28Mohamad Alchikh was sentenced by his Honour Judge Woods QC on 31 August 2005. He had pleaded guilty to a charge in the same terms and with the same maximum penalty as the applicant with the only differences being matters of particulars (the commencement date of the conspiracy and explicit nomination of co-conspirators). 29According to the remarks on sentence of Woods DCJ, Alchikh's role was "to arrange the importation, to organise the warehouse, then others of [the applicant's] associates were left in a position of being able to take the drugs ... out of the refrigerators with the intention no doubt of selling them in Australia to a person or persons unknown" (AB 177). His Honour also found that "his role was that of an organiser of the importation rather than of the proposed on-sale of the drugs thereafter. He was in frequent contact with Salhani, an old friend of his, and [the applicant's] offsider. He actually went to England to liaise with the head of the conspiracy, [the applicant]. ... He expected some major reward from the conspiracy, namely the foregoing of any debts he had to [the applicant]" (AB 179 - 180). 30Alchikh had "no relevant prior convictions". There was a plea of guilty in the Local Court and significant ("but not major") co-operation with authorities. The latter included that a statement by him had been used in the extradition proceedings against the applicant. 31Woods DCJ determined that all objective and subjective circumstances called for a sentence of 18 years. He allowed for a reduction of one-third on account of Alchikh's plea of guilty and assistance to authorities, resulting in a term of 12 years. In relation to the non-parole period, his Honour noted that Alchikh had been freed through administrative error whilst on remand but had voluntarily surrendered himself back to custody, and that he had been held for almost 20 months in "high level protective custody". For those reasons his Honour reduced the non-parole period he would otherwise have imposed from 8 years to 7 years 3 months.

Sentencing of Peter Henry 32Tupman DCJ sentenced the co-offender Peter Henry on 14 August 2009. He had pleaded guilty at a point at which his third trial was in jeopardy in the fourth week because of illness to jurors. He had previously been convicted after trial of conspiring to import a commercial quantity of ecstasy and sentenced by Woods DCJ to 18 years with a non-parole period of 11 years. The conviction and sentence were quashed on appeal. A second trial resulted in a jury being unable to agree. The Crown ultimately accepted a plea to a charge of aiding and abetting others to possess a commercial quantity of a prohibited import. The period referred to in the charge was confined to 12 to 17 December 2003. However, the charge carried the same maximum penalty as the conspiracy of life imprisonment. 33Tupman DCJ accepted from the facts before her in Henry's case that the applicant was "a principal of this syndicate and the UK based organiser of it". She referred to the sentencing remarks of Woods DCJ which included that Alchikh "played a significant role in the importation of these drugs including being involved in the financing of it and recruiting others to assist in the importation". She determined that Henry was "the Sydney based co-ordinator of those who would in fact take possession of these drugs. ...[He] was trusted by [the applicant] to undertake this important organisational role as something in the nature of a deputy to him". 34As to the relative seriousness of offences, her Honour said: I come to sentence him not for conspiracy to import, however, but for aiding and abetting and [sic - an] attempt to possess those prohibited imports. The offence before me I accept almost in its terms, is qualitatively less serious than an offence for conspiracy to import. However, I accept that whilst somewhat less serious, the distinction is not large. (AB 289) So, whilst this offence before me is different to that sentenced by Judge Woods and, in fact, ought be regarded as less serious, therefore leading to a lower sentence than that originally imposed, the sentence imposed by Judge Woods is nonetheless relevant for consideration. (AB 290) 35Once again, subjective matters were not raised by the applicant as an issue in his parity argument. However, it should be noted that Henry had no relevant previous convictions. 36Tupman DCJ resolved that a sentence of imprisonment of 11 years was called for. She referred to the prevailing assumption of a non-parole period of 60 to 66 per cent of the total term for Commonwealth offences (see however Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 532-534, [36]-[44]). Her Honour determined that the non-parole period would be 7 years which was "a little less than sixty-six per cent, having chosen to do that to reflect the fact that he is serving his term of custody away from family and friends and thus somewhat more onerously than otherwise" (AB 295).

Argument on the application 37The following points were raised in the written submissions by Mr James QC on behalf of the applicant in written submissions and some were further developed in oral submissions: (a) When imposing the non-parole period the judge did not take into account parity (AWS [6] and [10]). (b) The non-parole period did not show any relativity or parity to that imposed on Henry. Henry's non-parole period of 7 years is 3 years shorter than the applicant's notwithstanding the relative roles and, apart from the applicant's onerous conditions of custody, her Honour "appeared to find" that other considerations were "on a par" (AWS [10]). (c) The applicant's non-parole period does not reflect parity with the sentencing of Alchikh who received a non-parole period of 7 years 3 months against a total term of 12 years (AWS [11]). (d) The charges against the applicant and Alchikh on the one hand and Henry on the other were not significantly different (AWS [12]). (e) There was an "inexplicable difference in relative non-parole periods without express explanation" (AWS [13]). (f) "The difference between the Henry head sentence and [the applicant's] head sentence was 10% (18 years v 20 years) therefore it would be objectively expected, all other things being roughly equal, the difference in non-parole periods should be approximately the same, 10% i.e. King should have received a non-parole period of 7 years 6 months to 8 years which would properly make allowance for the onerous nature of his imprisonment as that applies particularly to the non-parole period applying the principles in Hill v The Queen and Jones v The Queen [sic]." (AWS [13]) (g) Although her Honour did not expressly refer to a non-parole period usually being 60 per cent to 66 per cent of the total term it appears that this is what has occurred and in consequence the parity principle has been infringed. (AWS [13]) 38An alternative submission was that "the non-parole period is manifestly excessive". I take it to mean that it is excessive, according to the parity principle, when compared to the non-parole periods imposed upon Henry and Alchikh but not otherwise. If that understanding is incorrect, I am nevertheless of the view that, as against a head sentence of 16 years (which was not challenged in the written or oral submissions), a non-parole period of 10 years for a principal offender in the importation of prohibited drugs in the quantity involved here is in no way "unreasonable or plainly unjust": Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 371 [25]. I record that I am of the same view in relation to the head sentence.

The proposed appeal has no merit 39It is significant that the sentencing judge was alive to the parity principle. Not only did she pay regard to the judgments on sentence in relation to six co-offenders, she was the sentencing judge in respect of one of the two in question. It is apparent from the lengthy quotation from her sentencing remarks set out earlier (at [27]) that careful attention was given to the need to impose a sentence which was just, having regard to the sentences imposed on the others. There is no merit in the applicant's first point (above at [37] (a)). 40The second point (above at [37] (b)) ignores the fact that Henry was sentenced for a different and less serious offence to that for which the applicant was sentenced. It was an aiding and abetting offence over a period of 5 days as opposed to a conspiracy over a period of almost 5 months. For those reasons alone it is incorrect to say, in my view, that the charges were "not significantly different" (above at [37] (d)). Further, the activity in which the applicant was involved in during that longer period was clearly more extensive and at a higher level in the importation syndicate in comparison to Henry's activity. 41The written submissions for the applicant seem to assume that there should be a close similarity of non-parole periods for offenders who received total sentences of 16 years (in the applicant's case), 12 years (Alchikh) and 11 years (Henry). The respective non-parole periods were fairly equivalent as a percentage of the total terms (60 to 66 per cent). Why they should have been fairly equivalent in duration despite the significantly longer head sentence imposed upon the applicant was not explained aside from the point which follows. 42The argument founded upon Henry's sentence being 18 years, and thus only 10 per cent less than the applicant's, is wrong. 18 years was the starting point that Woods DCJ had adopted in formulating the sentence in respect of a conviction that was quashed. 20 years was the starting point adopted for the applicant's sentence. What is relevant is that Henry's sentence was 11 years and the applicant's was 16 years. 43Aside from that aspect, the premise underlying Mr James' submission seems to be: If the starting point for the sentence imposed upon offender A is X per cent higher than that for offender B, then the non-parole period for offender A should be only X per cent higher than B's non-parole period. 44There was no quantification of the amount of reduction of Henry's sentence on account of his plea; the judge referred to it as showing a belated willingness to facilitate the course of justice so for present purposes it might be assumed that the sentence would otherwise have been about 13 years. If the premise underlying the submission is valid, then against Henry's non-parole period of 7 years 3 months, the applicant's non-parole period should have been just over 11 years. 45The final point advanced by the applicant was that her Honour felt bound by the previously approved "norm" of a non-parole period being 60 to 66 per cent of the total term for Commonwealth offences. There is no basis for this submission. The submissions to her Honour by the Crown made specific reference to Hili v The Queen; Jones v The Queen (AB 33). Her statement that "the non-parole period should reflect the minimum period of time which justice requires that he serve to reflect all of the circumstances of the offence" was, in fact, the precise words used in the statement of principle by the plurality in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629. This principle was subsequently affirmed in Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 at 367, Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 531, and, of course, Hili v The Queen; Jones v The Queen at 533 [40].

Conclusions 46Contrary to the submissions for the applicant, there is nothing in what her Honour Judge Tupman said (or did not say) that would suggest she adopted a mechanistic or formulaic approach, or that she considered herself bound to fix a non-parole period which bore any particular relationship to the total term of the sentence. 47I cannot discern any error in the manner in which the sentencing discretion was exercised. There was a correct application of sentencing principles and all relevant matters were taken into account in setting both the total term and the non-parole period. This included the need, of which her Honour was conscious, to set appropriate terms relative to the sentences imposed upon the co-offenders. 48If the applicant harbours any grievance concerning any aspect of the sentences imposed upon his co-offenders, it is not an objectively justifiable one. 49As the proposed appeal was completely lacking in merit I agreed that leave should be refused.

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