Klomfar v R

Court of Criminal Appeal (NSW)|2019-03-11|Before: Payne JA, Bellew J

Judgment

PAYNE JA: I agree with Bellew J.
BELLEW J: On 19 June 2017, which was the day on which his trial was to commence, Petr Klomfar (the applicant) pleaded guilty in the District Court to the following offence: On or about 2 March 2016, at Sydney in the State of NSW, he did import a substance, the substance being a border controlled drug, namely cocaine, the quantity imported being a commercial quantity.
The commercial quantity of cocaine is 2 kilograms. The quantity of pure cocaine imported by the applicant was 4.653 kilograms. The offence to which the applicant pleaded guilty is contrary to s 307.1(1) of the Criminal Code 1995 (Cth). It carries a maximum penalty of life imprisonment and/or a fine not exceeding 7,500 penalty units, or both.
On 18 May 2018 his Honour Judge Zahra SC sentenced the applicant to imprisonment for 7 years and 8 months commencing on 2 March 2016, with a non-parole period of 5 years.
The applicant now seeks leave to appeal against that sentence on the grounds more fully discussed below.

THE CIRCUMSTANCES OF THE OFFENDING

A statement of agreed facts was tendered before the sentencing judge, on the basis of which his Honour found the facts of the offending to be as follows: [1] On 15 December 2015, Czech passports were issued to the offender Peter Klomfar and Helena Dolejskova in the city of Ceske Budejovice, in southwestern Czechia. On 19 February 2016, airline tickets and a holiday package were purchased for the offender and Ms Dolejskova through a travel agent in the Czech Republic. The travel itinerary indicates that the offender travelled from Prague to Frankfurt on the 23 February. On that day they flew to Las Vegas where they stayed until the 29 February. They then flew to San Francisco where they then caught a flight to Sydney. They arrived in Sydney on the 2 March 2016. When they arrived in Sydney they were each carrying two suitcases. Both the offender and Ms Dolejskova completed their incoming passenger declaration cards stating they would be staying in Australia for 5 days. The offender and Ms Dolejskova collected their suitcases and presented them to the Australian Boarder (sic) Force for examination. When questioned by officers they confirmed the four suitcases belonged to them; that they packed the suitcases themselves and that they knew what was in the suitcases. An examination of one of the suitcases by Australian Boarder (sic) Force officers revealed a plastic covering at the back of the suitcase. The suitcase appeared to officers to be heavier that a normal suitcase of that brand. Further examination of the suitcase revealed the presence of brick-shaped packages concealed under the lining, beneath plastic sheets between the frame extensions of the trolley arm. The packages were covered in plastic wrap covered in a tar-like glue substance. The packages contained a white coloured powder which when presumptively tested indicated the presence of cocaine. The offender was in possession of a folder containing various travel documents and a wallet containing AUD $I,000. Included in the offender's folder was a photocopy of an Australian incoming passenger card in the Czech language, with some handwriting on it in the nature of instructions as to how it should be filled out. When the Australian Federal Police later examined the offender's suitcases it was revealed that one suitcase was empty (but for the concealed cocaine) and the other contained a minimal amount of clothing and personal items. The offender and Ms Dolejskova were then arrested by Australian Federal Police and when in custody the offender engaged in a recorded interview with police. The following is an extract of the statement of facts setting out admissions made by the offender: • The offender and Ms Dolejskova travelled from Europe to Las Vegas, collected suitcases and travelled to Sydney, Australia; • They stayed in Las Vegas for four days and planned to stay in Sydney for four days before departing Sydney, leaving the suitcases behind; • This trip was paid for by a third party; • The offender knew a female who had done this before, the offender was assisted by the female's ex-husband to arrange the trip, which included applying for passports in December 2015; • Contact numbers of other individuals involved are stored in the offender's phone; and • The offender and Ms Dolejskova were told that they would be paid roughly AUD6,000 each once they home from Sydney. The offender was subsequently charged. Ms Dolejskova was also subsequently arrested and charged. Forensic examination of the suitcases Upon forensic examination each of the suitcases was found to contain blocks of cocaine concealed in the same fashion as the first-inspected suitcase. A total of 28 blocks of cocaine were removed from the four suitcases. Forensic examination of the four suitcases revealed (as extracted from the statement of facts): • The two suitcases carried by the offender contained a net weight of 6977.7grams of powder containing cocaine hidden within the lining. Purity testing revealed the pure weight to be 4653.0 grams • The two suitcases carried by Ms Dolejskova contained a net weight of 7017.7grams of powder containing cocaine hidden within the lining. Purity testing revealed the pure weight to be 4701.5 grams. • The total net weight of the powder containing cocaine within the four suitcases carried by the offender and Ms Dolejskova was 13,995.4 grams. The estimated wholesale value of the cocaine seized from the offender was between $1,395,540 and $1,535,094. The estimated wholesale value of the cocaine seized from Ms Dolejskova was between $1,403,540 and $1,543,894. Information provided to the Australian Federal Police: The statement of facts notes that on 16 August 2016 the offender provided the following information to the Australian Federal Police. The following is an extract of the statement of facts: • A person named (SP) had conversations with the offender on many occasions about taking suitcases to Australia, but he did not say what was in the cases and the offender did not ask. The offender and Ms Dolejskova were told that the trip would be paid for, including the hotels, and that he would receive money upon his return. • He had met up with SP in the village off Kostelec in the Czech Republic. • Ms Dolejskova was present and the offender was in a relationship with her at the time. • Another couple was arranging the trip and they knew SP. • The offender was told that the woman in the couple had done the trip before and there were no problems. • The woman of the couple said they would fly to Las Vegas, pick up suitcases and take them to Sydney. She said that only one person in the Czech Republic would really know what was in the suitcases but that it would be nothing dangerous or illegal. She said it would be something like 'chips'. The offender and Ms Dolejskova were told that if the chips were found then they may lose some of the money. • The couple gave the offender and Ms Dolejskova suitcases, Australian money and US money. They gave them an itinerary and a phone with one mobile phone number for a Vietnamese man in Las Vegas. • When they arrived in Las Vegas they contacted the Vietnamese man 'Tom'. They exchanged suitcases with him. The exchange was based on recognition of serial numbers on a bank note. They were told someone would collect the suitcases from them in Australia. Mobile Telephones The offender and Ms Dolejskova each had in their possession a personal mobile telephone with them. They also each had a second mobile telephone that contained one saved "contact". The second of the two phones had communicated only with that one "contact" and only during the period of travel. The statement of facts note the communications concerned updating the "contact" on how their travel was progressing.

The objective seriousness of the offending

In terms of the objective seriousness of the applicant's offending, his Honour reached the following conclusion: [2] I find on the evidence that the offender's role was that of a courier and, consistent with the submissions of the Crown, that his role was limited and lower in the hierarchy. There is no evidence that the offender was involved in the procuring of the drug or any other step other than transporting the drug. The evidence suggests that he was at all times being directed by others. There is no evidence the offender was to be involved in distribution of the drug after its arrival in Australia. The offending is towards the lower end of the scale of offending within those offences involving the commercial quantity.
However, his Honour also said: [3] The Crown properly points to the principles expressed in judgements of superior courts that illicit drug organisations are only able to prosper because people are ready, willing and able to act as couriers in the importation of drugs. It is well accepted that persons who participate at any level in the illicit drug trade should expect and receive heavy penalties.
His Honour rejected a submission that he should find that the applicant's state of mind was one of recklessness, and concluded that the objective facts were consistent with a finding that the applicant knew that he was importing prohibited drugs. [4] His Honour also accepted the submission of the Crown [5] that the applicant was generally aware of the amount of cocaine that he was carrying. Having noted the weight of the drug, its estimated value, and the fact that the applicant had said that he had been promised $6,000.00 for his part in the venture, [6] his Honour concluded: [7] The offender engaged in a planned course of conduct. He left Europe to collect the cocaine in the United States and then brought the drug into Australia for profit. The offender acted without regard to the potential harms of the drug he imported into the Australian community. The offence is therefore objectively serious. There are considerable social consequences that follow from the importation of drugs into Australia. Deterrence is to be given paramount weight.

The applicant's subjective case

Tendered in the applicant's case before the sentencing judge was a report of Andrew Fordyce, Psychologist, from which his Honour drew the following summary of the applicant's background. [8]
The applicant was born in the Czech Republic, and was the eldest of four children. He described experiencing a stable home environment. He was an average student and had no behavioural difficulties at school. After leaving school he had maintained stable employment, and also maintained long term service with his local volunteer fire brigade. The applicant reported that he had generally enjoyed pro-social peer relationships, other than with those to whom he was exposed in the course of his offending. The applicant was 41 years of age at the time of his offending and had been in a relationship with Helen Dolejovska (the co-offender) for 6 months. That relationship ceased upon their arrest.
When speaking with Mr Fordyce, the applicant denied any history of mental health issues but reported that he had experienced stress and anxiety since being taken into custody. Mr Fordyce did not diagnose the applicant as suffering from any mental health issue. Although he commented that the applicant continued to experience some anxiety, he appears to have taken the view that such anxiety stemmed from the applicant's custodial environment. Mr Fordyce concluded: [9] (The applicant) presents with several protective factors and has sound prospective (sic) of rehabilitation. He has a limited criminal history and no apparent mental health or substance abuse issues. He also has a sound employment history and positive social supports in the Czech Republic. Therefore, he has limited treatment needs. However, he would benefit from psychoeducation in basic stress management skills, and employment to assist him in maintaining his wellbeing while in custody. Given the recent death of his father, it would be helpful if regular telephone contact with his family could be facilitated to assist him in processing his grief. In my opinion, based on the information provided to me, the likelihood of recidivism for (the applicant) appears limited.

Specific considerations in the context of the applicant's subjective case

The sentencing judge made specific reference to particular matters set out in s 16A(2) of the Crimes Act 1914 (Cth). In particular, his Honour: 1. concluded that the applicant's plea was "some evidence" of remorse, along with his assistance to authorities: [10] 2. had regard, in accordance with the principles in Xiao v R [11] , to the utilitarian value of the applicant's plea of guilty, for which he allowed a discount "in the order of 10%"; [12] 3. noted the increasing prevalence of offences of this type, and the associated need for general deterrence: [13] 4. concluded that there was also a need for any sentence to reflect an element of personal deterrence, that there was an associated need to ensure adequate punishment, and that involvement in drug importation at any level must necessarily attract a significant sentence; [14] 5. set out, at length, the applicant's background and noted that he had denied any history of mental health issues in his consultation with Mr Fordyce; [15] and 6. found that the applicant had good prospects of rehabilitation and was unlikely to reoffend. [16]
His Honour dealt with the applicant's assistance to the authorities at some length [17] and noted, in particular, that police had assessed the benefit of that assistance as "medium". His Honour ultimately applied a total discount of 30%, 20% of which was referrable to the applicant's assistance. Of that amount, 5% was referrable to the applicant's undertaking to give evidence against the co-offender in the future. In light of the co-offender's plea of guilty, that assistance was ultimately not rendered.

THE GROUNDS OF APPEAL

There are two grounds of appeal. It is appropriate to firstly address ground 2.

Ground 2 - The applicant has a justifiable sentence of grievance by reason of a marked disparity between his sentence and the sentence imposed on the co-offender

The sentence imposed on the co-offender

Approximately two months after the applicant was sentenced, the co-offender was sentenced by his Honour Judge Hunt in the District Court to imprisonment for 6 years and 3 months, with a non-parole period of 3 years and 6 months. There are several aspects of that sentence which are relevant for the purposes of this ground.
Firstly, and unlike the conclusion reached by the sentencing judge in respect of the applicant, Judge Hunt concluded that the co-offender should be sentenced on the basis that she was reckless as to the existence of the drugs she had imported. His Honour said: [18] I would characterise (the co-offender's) involvement as being the barest of couriers. All she did, seemingly was (sic) in a state of recklessness, was carrying things around the company of (the applicant).
Secondly, Judge Hunt concluded that the co-offender had displayed a lesser degree of criminality than the applicant. His Honour said [19] : Additionally, it would seem that (the applicant) had a greater degree of involvement with the organisers than did (the co-offender). That is partly because of the (co-offender's) admissions that it was (the applicant's) friends who made certain arrangements and it was (the applicant's) friends who made certain financial contribution. Relevantly the prosecution material discloses contact by text messages between (the applicant) phone and the contact in both directions and in a number of unanswered calls (by inference from the contact) to (the applicant's) phone and there is no material like that in relation to (the co-offender's) extra mobile device. Further, (the applicant) held the relevant travel documents and by inference made certain land arrangements for both he and the (co-offender).
Thirdly, Judge Hunt concluded that at the time of her offending the mental health of the co-offender was "fragile". He drew the inference that it was unlikely that the organisers of the importation would have entrusted her to carry such valuable material without being overseen and supervised by the applicant. [20]
Fourthly, having noted that there had been issues raised about the co-offender's fitness to plead, his Honour said: [21] There was a period of 5 months when she was admitted as an involuntary patient to the forensic hospital within the women's correctional centre as a result of an order of the Mental Health Review Tribunal. That was only available to the Tribunal upon two registered psychiatrist forming a view at the relevant time that the offender was suffering from a mental illness. Although there is no material to know what her diagnosis was immediately before the offending or indeed on the day of her arrest, inferentially her mental health was at least delicate at the time. A range of skilled medical professionals have made assessments of her from time to time and it is only very recently that (the co-offender) has been in a mental condition where she would be able to give any kind of personal history and be in a position to consent to any proper assessment of psychiatric condition. In broad, she is thought by a range of skilled professionals to have diagnosis consistent with initially untreated schizophrenia.
Fifthly, having made reference to the co-offender's psychosis, Judge Hunt accepted that there was no case analogous to that of the co-offender "because of the extremity of (her) mental difficulties". [22]
Sixthly, Judge Hunt concluded [23] that the co-offender's time in custody had been, and would be, rendered more onerous because of her psychological condition. His Honour noted [24] that although there was authority for the proposition that those who come from foreign countries to commit this kind of offending, and who suffer in custody as a result, should not have that fact taken into account on sentence, that proposition was diluted, at least to some degree, where an offender had mental health issues.
None of these matters to which Judge Hunt referred when sentencing the co-offender formed any part of the applicant's case on sentence. Importantly, as a consequence of his Honour's findings as to the co-offender's mental health, it followed that the importance of general deterrence was reduced in her case.

Submissions of the applicant

Before this Court, counsel did not submit that the sentences imposed upon the applicant and the co-offender should have been the same. However, he submitted that: 1. the respective facts of the offending were basically the same, other than the differences referred to by Judge Hunt when sentencing the co-offender; 2. the amount of the drug imported by the co-offender was in fact marginally higher than the amount imported by the applicant; and 3. any suggested difference in the actual offending was, at most, "extremely slight".
Counsel pointed out that having regard to the pleas of guilty which were entered, and the respective discounts which were applied, there was a difference of approximately 3 years in the starting points which had been adopted for the respective head sentences. Counsel submitted that even allowing for the differences in the two cases, this represented an unjustified disparity.

Submissions of the Crown

The Crown relied upon the passages from the remarks of Judge Hunt to which I have referred, and submitted that the differences between the applicant's case and that of the co-offender, both in terms of objective criminality and subjective circumstances, explained the difference in the sentences which were imposed. It was submitted that this Court would only intervene if it considered that the extent of the disparity was wholly outside the permissible range of sentencing discretion, so as to disclose error. It was the Crown's submission that this was not the case.

Consideration

Consistency in the punishment of the offences against the criminal law is a reflection of the notion of equal justice, and finds its expression in the parity principle which requires that like offenders should be treated in a like manner. That principle also allows for different sentences to be imposed on like offenders, to reflect differing degrees of culpability and/or differing circumstances. [25] The same principle also recognises that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance arising from a sentence imposed on a co-offender. It is not simply a question of imposing different sentences for the same offence, but a question of due proportion being structured between such sentences. That proportion must be determined having regard to the different circumstances of the co-offenders, and the different degrees of criminality. [26]
In applying these principles, sentencing judges are given a wide measure of latitude which will be respected by an appellate Court. As long as a sentencing judge has taken into account the relevant considerations of law and fact, an appellate Court will not ordinarily intervene merely because some arguable discrepancy appears between the sentences imposed upon otherwise connected or like offenders. [27]
In the present case, there were a number of factors, both objective and subjective, which distinguished the applicant and the co-offender. Although the applicant had assisted the authorities and the co-offender had not, his criminality was objectively higher. Subjectively, the co-offender was suffering from a mental illness of significant severity. That was not a characteristic of the applicant's subjective case, and was one to which Judge Hunt attached considerable significance when sentencing the co-offender. That factor gave rise to two further considerations in the co-offender's case. Firstly, as a consequence of her mental state, her period in custody would be rendered more onerous than might otherwise have been the case. Secondly, general deterrence assumed reduced significance.
These factors clearly explain the differences in the sentences which were imposed. There is no unjustified disparity in such sentences. It follows that this ground is not made out.

The sentence imposed was manifestly excessive

In written submissions, counsel for the applicant summarised the findings reached by the sentencing judge, particularly as to the applicant's role which he submitted was at the lower end of the scale. Counsel also pointed specifically to the applicant's significant assistance to the authorities. In essence, counsel's primary submission was that against a background of a series of positive findings, a notional starting point of 11 years with a non-parole period of 7 years and 2 months was indicative of manifest excess.
In written submissions, counsel for the applicant relied on the observations of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [28] where, having reviewed sentences which had been imposed in groups of cases involving the importation of commercial quantities of narcotics, his Honour said. [29] In this group the head sentences range from 6.25 years through to 8 years, while the non-parole periods range from around 3 to 4.5 years. The cases are roughly split between those in which the offenders pleaded guilty and those in which they pleaded not guilty. Quantities of drugs range from 1 kg to 30 kg and offenders occupy roles variously described as instigators, overseers, collectors and couriers. Many offenders in this group had good antecedents and no prior convictions.
The effect of counsel's submission was that the quantity of cocaine which was imported in the present case fell within the group to which his Honour had referred, yet the sentence imposed was greater than the range of sentences that his Honour had identified. In oral submissions counsel stepped away from that position to some degree and sought to rely upon the judgment in De La Rosa only as a guide. However, he submitted that in all of the circumstances, a conclusion should nevertheless be reached that the sentence was manifestly excessive.

Submissions of the Crown

The Crown pointed out that in order to succeed on this ground, it was necessary for the applicant to demonstrate that the sentence imposed was unreasonable or plainly unjust. The Crown's position was that this was not made out for a number of reasons.
The Crown submitted that the applicant's reliance on the observations of McClellan CJ at CL in De La Rosa was misplaced, and that such observations did not constitute any prima facie guide to an appropriate sentencing range. It was further submitted that in any event, an examination of the cases to which his Honour referred did not support a conclusion that the sentence imposed upon the applicant was manifestly excessive.
The Crown submitted that the sentencing judge had, with considerable care, assessed each and every aspect, both objective and subjective, of the applicant's case. It was submitted that in these circumstances, there was no indication of a misapplication of principle by the sentencing judge, nor was this a case where the sentence imposed was so far outside the range of appropriate sentencing discretion that this Court would conclude that there must have been an error.

Consideration

A complaint of manifest excess requires the applicant to establish that the sentence is unreasonable or plainly unjust. [30] In Vaiusu v R [31] , R A Hulme J summarised the principles which apply when a complaint of manifest excess is made. Included in those principles are the following: 1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; 2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must be an error; 3. it is not to the point that an appellate court might have exercised the sentencing discretion differently; 4. there is no single correct sentence and a sentencing judge is to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; 5. it is for the applicant before this Court to establish that the sentence was unreasonable or plainly unjust.
In my view, none of the matters on which counsel for the applicant relied are indicative of manifest excess. No submission was made that the sentencing judge had failed to have regard to a particular factor, or that he had failed to afford sufficient weight to a particular factor. Further, it was not suggested that the discount which his Honour applied to reflect the applicant's plea of guilty and his assistance was somehow less than that to which the applicant was entitled. In my view, the sentencing judge carefully analysed all aspects of the applicant's case, both objective and subjective.
Further in my view, counsel's reliance upon the observations in De La Rosa, even to the limited extent articulated in oral submissions, was inapposite. McClellan CJ at CL went to some lengths to point out that his observations were not to be regarded as any form of guideline judgment [32] . Subsequent decisions have made it clear that the categories to which his Honour referred are not binding, and that the overall criminality of an offence necessarily depends upon an evaluative assessment of all relevant factors. [33]
The seriousness with which the Parliament views offending of this nature is reflected in the maximum penalty of life imprisonment. The applicant can draw no comfort from the reference by the sentencing judge to his being a "courier" whose role was "limited and lower and in the hierarchy". Characterising an offender in that way must never obscure an assessment of what the offender actually did. [34] In the present case, the applicant, aware that he was carrying prohibited drugs, and aware (at least in a general sense) of the quantity he was carrying, engaged in a planned course of conduct centred upon a venture of drug importation. He left Europe, travelled to the United States to collect a large quantity of cocaine, and then imported that drug into this country. He did so in circumstances where he had been promised a substantial monetary reward. It has been observed on numerous occasions that those who act as the applicant did in this case perform an essential role in the process of organised drug trafficking. If an organisation is starved of such recruits, it will collapse. That demonstrates the significance of the role undertaken by the applicant.
Moreover, there is no inevitable correlation between an offender who is said to have been in the lower echelon of a hierarchy, and the severity of the punishment that he or she can expect to, and will, receive. [35] These observations are appropriate for any drug importation, but particularly one such as the present which involved the importation of a quantity of cocaine which was substantially in excess of the commercial quantity, [36] and which was worth well in excess of $1 million.
Finally, in terms of the applicant's subjective case, the sentencing judge took all relevant factors into account. The most significant aspect of that case was the applicant's assistance to the authorities. It was not suggested that the discount applied by the sentencing judge to reflect that assistance was less than that to which the applicant was entitled.
For all of those reasons this ground is not made out.

CONCLUSION

I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.
CAMPBELL J: I agree with Bellew J.

Endnotes

Commencing at ROS 2.
Commencing at ROS 8.
At ROS 9.
At ROS 9.
At ROS 9.
At ROS 9.
At ROS 9-10.
Commencing at ROS 10.
At p.7 of his report.
Section 16A(2)(f), (g) and (h) at ROS 6.
[2018] NSWCCA 4.
Section 16A(2)(g) at ROS 6.
Section 16A(2)(ja) at ROS 7.
Section 16A(2)(j) and (k) at ROS 7.
Section 16A(2)(m) at ROS 10.
Section 16A(2)(n) at ROS 12-14.
Section 16A(2)(h) commencing at ROS 12.
At ROS 9.
At ROS 8.
At ROS 9.
At ROS 12.
At ROS 15.
At ROS 13.
At ROS 14.
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [28].
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ; Lowe v R [1984] HCA 46; (1984) 145 CLR 606 at 610-611 per Mason J (as his Honour then was).
Postiglione v R at 336-337 per Kirby J.
[2010] NSWCCA 194.
At [215].
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.
[2017] NSWCCA 71 at [28]-[29].
At [203]. See also his Honour's later observations in R v Holland [2011] NSWCCA 65 at [3].
See for example Lindsay v R [2012] NSWCCA 124 at [7]-[8] per Allsop P.
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [19]; 279 per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
Budiman v R (1998) 102 A Crim R 411 at 413-414 per Wood CJ at CL citing the observations of Wells J in Le Cerf v R (1975) 13 SASR 237 at 239.
Budiman at 414 per Wood CJ at CL. 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: 01 April 2019

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