Muldrock v The Queen

Supreme Court of NSW|2014-02-07|Before: Button J

Judgment 1This is an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 ("the Act") for the referral of a sentence to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. The application has been made on behalf of Gary El-Helou ("the applicant"). The key legislative provisions are as follows: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. ... 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. ..." 2The application has two bases. The first is that, after an application for leave to appeal against sentence to the Court of Criminal Appeal was no longer available to the applicant, a sentence was imposed on a co-offender that is said to give rise to a "doubt or question" as to whether erroneous disparity may be demonstrated between the sentences imposed upon the two offenders. 3The second basis is said to be evidence that was not before the learned sentencing Judge that raises a doubt or question about a finding of fact made by his Honour that was adverse to the applicant. 4The application consists of written submissions prepared by senior counsel for the applicant that attach and refer to a number of documents that establish the relevant background. 5The Crown Advocate and junior counsel have also provided helpful written submissions. In those submissions, the Crown Advocate accepts that it would be open to me to experience a doubt or question founded on the first basis. However, the Crown Advocate resists the submission of senior counsel for the applicant that I would experience a doubt or question founded upon the second basis.

Chronological background 6On 10 July 2009 in the District Court of New South Wales, Judge Solomon sentenced the applicant for a single offence. That offence was knowingly taking part in the supply of not less than the large commercial quantity of a prohibited drug; namely, pseudoephedrine. The applicant had pleaded guilty to that offence in the Local Court. 7The applicable maximum penalty was imprisonment for life. There was also an applicable standard non-parole period of 15 years. 8To state the facts found by his Honour very succinctly, the applicant was the "transporter" and "warehouseman" with regard to 259kg of pseudoephedrine, which is a well-known precursor to the prohibited drug methylamphetamine ("meth"). The applicant permitted his garage to be used as a place of storage with regard to an illicit importation of a very large quantity of pseudoephedrine that had been detected and disrupted by the Australian Federal Police. 9His Honour rejected the evidence of the applicant that he was to be paid the relatively paltry sum of $2000 for his involvement, in light of the massive value of the chemical in question. His Honour also rejected the evidence of the applicant that, during the vast majority of his involvement, he believed that he was involving himself in criminality with regard to steroids only. Contrary to the evidence of the applicant and the submissions of his counsel, His Honour found that the applicant had a "deep knowledge" of the criminal enterprise. 10However, his Honour accepted that one could not be satisfied beyond reasonable doubt that the applicant was involved in the crime for more than two days. 11As far as subjective aspects are concerned, the applicant was a person of good character. A family business had failed and that was the context for his crime. He did not have a problem with drugs or alcohol. He received a discount of 25 per cent for the utilitarian value of his plea of guilty. His Honour found that the applicant was remorseful, and possessed good prospects of rehabilitation. Special circumstances were found that permitted a variation in the ratio between the head sentence and the non-parole period. 12Judge Solomon imposed a head sentence of imprisonment for 10 years 6 months with a non-parole period of 6 years 6 months, each to commence on 11 July 2008. The head sentence was to expire on 10 January 2019, and the non-parole period was to expire on 10 January 2015. 13Despite his plea of guilty, the applicant appealed against conviction to the Court of Criminal Appeal. That appeal was founded upon constitutional arguments. As well, the Crown brought an appeal founded on an asserted failure by the sentencing Judge to pay proper regard to the standard non-parole period, and asserted manifest inadequacy of sentence to the same Court. 14On 21 April 2010, that Court delivered its judgment. The appeal against conviction was dismissed. The Crown appeal was allowed. The Court of Criminal Appeal re-sentenced the applicant to a head sentence of imprisonment for 12 years with a non-parole period of 8 years, each (as before) to commence on 11 July 2008. The head sentence expires on 10 July 2020, and the non-parole period expires on 10 July 2016. That is the sentence to which the applicant is currently subject. 15On 16 December 2010 in the District Court of New South Wales, her Honour Judge Hock sentenced Constantine Anagnostopoulos for two offences to which he had pleaded guilty in the Local Court. (Although Constantine Anagnostopoulos was not a co-offender of the applicant with regard to those two offences, for reasons that will become apparent shortly it is convenient to refer to him as "the co-offender".) 16The first offence was importing a commercial quantity of a border controlled precursor; namely, pseudoephedrine. The maximum penalty for that Commonwealth offence was imprisonment for 25 years and a very large fine. 17The second offence was dealing with the proceeds of crime, being money worth $100,000 or more. The maximum penalty for that Commonwealth offence is imprisonment for 20 years and a very large fine. 18To state the facts very simply, the co-offender was the principal in the importation of over 839kg of tablets of pseudoephedrine by way of three international consignments. He expected a profit of over $300,000. The pure pseudoephedrine amounted to over 117kg. That amount of the chemical could have led to the manufacture of between 66kg and 108kg of meth, with a street of value between $10 million and $19 million. 19Her Honour found that the co-offender played a "very significant role in the importation and used the legitimate history of his business ... as a cover for the importation". 20With regard to the second offence, on arrest the co-offender was found to be in possession of $230,000 in cash that was the proceeds of crime. 21Subjectively, the co-offender was aged 39 years and had no prior convictions. A business venture was at first successful but had ultimately failed. He had developed a problem with the prohibited drug cocaine. Her Honour referred to there being evidence of remorse on the part of the co-offender. The sentences were reduced by 35 per cent in order to reflect not only the utilitarian value of the plea of guilty but also material in a confidential exhibit. 22With regard to the importation, a head sentence of imprisonment for 11 years to date from 11 July 2008 was imposed. With regard to the second offence of dealing with the proceeds of crime, a shorter head sentence of imprisonment for 4 years and 6 months, to commence on the same date, was imposed. It can be seen that the operative head sentence is imprisonment for 11 years, and that it will expire on 10 July 2019. 23Pursuant to the Commonwealth sentencing regime, her Honour imposed a single non-parole period of 6 years and 6 months to date from the same date. That non-parole period will expire on 10 January 2015. 24On 5 October 2011, the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 was handed down. 25On 1 June 2012, his Honour Judge Solomon sentenced the co-offender in the District Court of New South Wales for a single offence. That was an offence of supplying not less than a large commercial quantity of the prohibited drug pseudoephedrine. Again, the applicable maximum penalty was imprisonment for life, and there was also an applicable standard non-parole period of 15 years. 26The subject matter of that offence included, but went beyond, the 259kg that was the subject matter of the offence for which the applicant had been sentenced by his Honour in 2009. The offence was founded on two discrete acts of supply. The first was the supply of about 323kg of a substance that the co-offender believed to be pseudoephedrine. The second was the supply to the applicant of 259kg of a substance that the co-offender believed to be the same precursor. 27The subject matter of the single count for which the co-offender was sentenced by his Honour Judge Solomon was a portion of the pseudoephedrine that he had imported and from which he had benefited financially, and for which he had been sentenced by her Honour Judge Hock. 28His Honour found that the co-offender played a "very significant role" with regard to the drugs. That included planning for the supply of the drugs, warehousing them, arranging delivery and storage, collecting and delivering them himself, and assisting in the breaking open of crates in order to obtain access to them. His Honour found that the co-offender "played a crucial and necessary role in what can be described as a large-scale commercial supply." 29His Honour reviewed the subjective features in general conformity with the brief summary that I have provided of the subjective features found by her Honour Judge Hock. 30With regard to this offence, a plea of guilty had been entered on the day of trial. However, that was in the context of a real question about whether, in light of the fact that the co-offender had received lengthy sentences for closely related offences dealt with by her Honour Judge Hock, the Crown would continue to pursue the supply offence. In light of the utilitarian value of the plea, and the contents of the same confidential exhibit to which Judge Hock had referred, his Honour provided a combined discount of 25 per cent. 31His Honour referred to the sentence that his Honour had imposed upon the applicant three years previously, along with the fact that that sentence had been quashed by the Court of Criminal Appeal and a greater sentence substituted. Judge Solomon was aware that the judgment of the Court of Criminal Appeal was delivered before the judgment of the High Court of Australia in Muldrock v The Queen. In that regard, his Honour remarked "the Court of Criminal Appeal's decision may have been different had the Court of Criminal Appeal's decision been made after the decision of the High Court in Muldrock v The Queen". 32For the single count of supply, his Honour imposed a head sentence upon the co-offender of imprisonment for 12 years and 9 months to date from 11 July 2008. A non-parole period of 8 years and 6 months was imposed, to commence on the same date. The head sentence is to expire on 10 April 2021, and the non-parole period is to expire on 10 January 2017. 33A number of aspects of that sentence are immediately noteworthy. 34First, the head sentence of 12 years and 9 months imposed upon the co-offender is only 9 months longer than the head sentence imposed by the Court of Criminal Appeal upon the applicant. 35Secondly, the non-parole period of 8 years and 6 months imposed upon the co-offender is only 6 months longer than the non-parole period imposed by the Court of Criminal Appeal upon the applicant. 36And yet, as the very brief summaries above demonstrate, there was a marked divergence in the objective criminality of the co-offender and the applicant that favoured the applicant, and their subjective features were roughly similar. 37Thirdly, the head sentence imposed by his Honour upon the co-offender only extended the pre-existing head sentence imposed by Judge Hock by a period of 1 year 9 months (that is, from 10 July 2019 to 10 April 2021). And the sentence imposed by his Honour upon the co-offender only extended his pre-existing non-parole period by a period of 2 years (that is, from 10 January 2015 to 10 January 2017). 38The final piece of the chronological background is that, on 10 October 2012, the current solicitor for the applicant swore an affidavit to the effect that he had received from the previous solicitors for the applicant a disk that contained listening device product. The product is a record of a conversation between the applicant and the co-offender that occurred on 11 July 2008. Senior counsel for the applicant submits, in short, that the listening device product calls into question the finding by his Honour in the remarks on sentence of 10 July 2009 that the applicant possessed a "deep knowledge" of the criminality with which he had involved himself.

Submissions with regard to the asserted first basis for referral 39Senior counsel for the applicant submits that, in light of the Crown appeal having been determined against him, the applicant does not have available to him an application for leave to appeal to the Court of Criminal Appeal founded on erroneous disparity said to arise from the sentence subsequently imposed upon the co-offender. 40And yet, as events have subsequently transpired, he submits that there is now a real question about the sentence imposed upon the applicant. On any objective measure, the co-offender was very much more culpable than the applicant, and the subjective circumstances of the two men were roughly equivalent. Despite those facts, the head sentence and non-parole period imposed upon the co-offender for the supply that reflected the offence of the applicant (and indeed went beyond it to include an entirely separate act of supply) are only marginally longer than the head sentence and non-parole period imposed upon the applicant. 41Not only that, as a matter of practical reality (in the sense of extra time actually to be served in custody), in light of the sentences imposed by Judge Hock, the sentence imposed by his Honour upon the co-offender for the criminality encompassed by the supply is far shorter than that imposed upon the applicant. Senior counsel referred in that regard to Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. 42Finally, senior counsel submitted that a referral was made to the Court of Criminal Appeal in similar circumstances in R v Yin [2007] NSWCCA 350. 43In short, senior counsel for the applicant submits that I would experience a doubt or question as to a mitigating circumstance in the case, founded upon the proposition that there could well be erroneous disparity, in light of subsequent events, that has worked a real injustice to the applicant. 44As I have indicated, the Crown Advocate and her junior did not dispute that it would be open to me to experience a doubt or question about the first issue identified by senior counsel for the applicant.

Determination with regard to first asserted basis for referral 45I respectfully accept the submission of senior counsel for the applicant that is not, in a practical sense, the subject of opposition. I experience a doubt and a question (in the sense of a feeling of unease or disquiet: see Varley v Attorney-General (NSW) (1987) 8 NSWLR 30) about a mitigating feature of the sentence imposed upon the applicant. 46The recent decision of Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 establishes that, in the context of an application such as this, such doubts with regard to sentences can extend beyond matters of fact to include questions of law. In these circumstances, I consider that there is no need for me to seek to classify questions of erroneous disparity founded on subsequent sentences as questions of fact, questions of law, or questions of mixed fact and law. 47That decision also establishes that the doctrine of finality should not inflexibly stand in the way of such referrals with regard to sentences. 48Finally, that decision also demonstrates that "Muldrock error" can form a basis of referral. Although the applicant in this case relies primarily upon an assertion of erroneous disparity founded upon the sentence imposed upon the co-offender subsequent to the disposition of the applicant's matter in the Court of Criminal Appeal, there remains a flavour of "Muldrock error" that perhaps underpins and explains the seeming inconsistency between the sentence imposed upon the applicant and the sentence imposed upon the co-offender. As I have indicated, his Honour and the Court of Criminal Appeal sentenced the applicant in accordance with R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; but his Honour, years later, sentenced the co-offender in accordance with Muldrock v The Queen. 49Further, senior counsel for the applicant is correct in saying that a referral pursuant to Part 7 of the Act was made in similar circumstances in R v Yin. 50I do not consider that there is any reason why, in the exercise of my discretion, I should decline to refer the matter, having experienced the question or doubt to which I have referred. 51In short, I consider that there should be a referral on the first basis.

Determination with regard to second asserted basis of referral 52The second asserted basis for referral does not require a lengthy analysis by me. That is because, the first basis having been established, s 79(1)(b) speaks of referral of "the whole case" to the Court of Criminal Appeal. Accordingly, I am neither required nor empowered to decide that some but not other aspects of the matter should be referred to that Court, or that some but not other grounds may be relied upon there. 53But it may be convenient for me to state that, having read the agreed facts that were placed before his Honour in the proceedings on sentence, the evidence on oath of the applicant in those proceedings, and the material now relied upon. My own view is that the sworn evidence of the applicant strained credulity to a marked degree; that it was perfectly open to His Honour to reject it; that some of the findings of fact of his Honour were generous to the applicant; and that the material now relied upon is by no means conclusive proof that the finding of fact about which complaint is now made is wrong. Indeed, many parts of that material are notably contrary to the proposition that the applicant was a person of good character who involved himself in very serious criminality fleetingly and more or less unintentionally.

Order 54Pursuant to s 79(1)(b) of the Crimes (Appeal And Review) Act 2001, the whole case is referred to the Court of Criminal Appeal, to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912.

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: 12 February 2014

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