R v Capar [2002] NSWCCA 517 | Case summary

Wednesday, 18 DECEMBER 2002 R v Yasin CAPAR Judgment 1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the alleged inadequacy of the sentences imposed upon the respondent, Yasin Capar, by his Honour Judge Shadbolt on 19 September 2002 and subsequently corrected by his Honour on 11 October 2002. A notice of appeal was served on the respondent on 1 October 2002 and the amended notice of appeal was filed and served on 18 October 2002. 2 The respondent was sentenced following his pleas of guilty on four counts: firstly, supply not less than a large commercial quantity of a prohibited drug (heroin), contrary to the provisions of s 25(2) of the Drug Misuse and Trafficking Act 1985, the maximum penalty for which is life imprisonment or a fine of $550,000, or both: s 33(3); secondly, supply not less than a commercial quantity of a prohibited drug (cocaine), contrary to the provisions of s 25(2) of the Drugs Misuse and Trafficking Act 1985, the maximum penalty for which is imprisonment for twenty years or a fine of $385,000, or both: s 33(2); thirdly, money laundering contrary to the provisions of s 73(2) of the Confiscation of Proceeds of Crime Act 1989, the maximum penalty for which is twenty years or a fine of $220,000 or both, and fourthly, discharge of a firearm in a manner likely to injure another person contrary to the provisions of s 93G(1)(c) of the Crimes Act 1900, the maximum penalty for which is imprisonment for ten years. 3 At the same time the learned sentencing Judge was asked to take into account in accordance with the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 two charges of hindering police, a charge of intimidating police, a charge of offensive conduct and a charge of purchasing a firearm from an unlicensed person. 4 On 11 October 2002 his Honour corrected the sentences he had previously imposed and sentenced the respondent as follows: on Count 4 to imprisonment for two years commencing on 23 February 2001 and expiring on 22 February 2003 with a non parole period of twelve months; on Count 1, and taking into account the matters on the Form 1, imprisonment for a term of five years commencing on 23 February 2002 and expiring on 22 February 2007 with a non parole period of two years; on Count 2 to imprisonment for three years and six months to commence on 23 February 2002 with a non parole period of eighteen months; and on Count 3 imprisonment for a term of two years to commence on 23 February 2002 with a non parole period of twelve months. The total effective head sentence was imprisonment for six years with an effective non parole period of three years. 5 From 1998 the respondent's brother Oktay Capar operated a business of supplying heroin, which his brothers Kanan and Yilmaz Capar later joined. They prepared, cut, weighed, and distributed heroin and later cocaine onto the streets from Kanan Capar's house at Hurlstone Park, which was heavily fortified to prevent the police from gaining access; Kanan Capar was the leader. 6 In December 1999 the respondent was approached by Oktay Capar and joined the business. At first the respondent's role was to go in a car with a driver selling heroin; later he instructed a new driver David Sukkar in the method of the business and took telephone orders, either at the family house or in the car, and delivered the drugs to the eventual purchasers. 7 The business was well organised with methods to avoid capture by the police and operated continuously seven days a week. At about the end of October 2000 heroin became hard to obtain and they began to deal in cocaine also. 8 The respondent was employed on a daily wage amounting to $600 per week at first and later, at the time of his arrest on 23 February 2001, amounting to $1,100 per week. He also received drugs, he was not the principal of the enterprise, and did not have any capacity to direct the operations or share directly in the profits, but was seriously involved and was responsible for the return of money received from customers to Kanan Capar. 9 During the period that the respondent was involved in the business more than 1 kilogram of heroin (Count 1) and over 600 grams of cocaine (Count 2) were supplied. 10 The estimated turnover of the business according to the evidence of Detective Sergeant Don, was approximately $10,000 per day, of which approximately half was profit; during the period of the respondent's involvement the profit of the business was perhaps $1.8 million. 11 In relation to Count 3, on nineteen separate occasions between 1 October 1999 and 8 September 2000, on the instructions of Kanan Capar, the respondent paid various amounts of cash totalling $329,000, being the proceeds of the sale of heroin and cocaine by the business in which the respondent took part, to George Danias of Danias Timbers, at Marrickville. Danias took commission at the rate of 13% and drew company cheques in favour of Kanan Capar and Kanan Property investments, which Kanan Capar used to purchase property. The delivery of the cash was part of the role of the respondent for which he received payment. 12 In relation to Count 4, because the business was a burgeoning one, other suppliers resented it and threats were made. On the afternoon of 13 February 2001 at Hurlstone Park Railway Station the respondent thought himself to be threatened by Ali Moustafa, a member of a rival gang, and whilst in the company of Robert Moustafa and Oktay Capar screamed at Moustafa "get out of my area" and fired three or four shots from a .22 calibre semi-automatic pistol, one of which hit Ali Moustafa in the face, causing him serious injury. Ambulance officers arrived later and found no exit wound. The bullet was later removed from Ali Moustafa's cheek. 13 The facts giving rise to the offences that his Honour was asked to take into account under the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 were that on 14 September 2000, when stopped in a car by police officers, he attempted to prevent the arrest of another occupant of the car and threatened three separate police officers (Charges 1-5); on 16 October when questioned in the presence of Kanan Capar and Robert Mansour by a police officer, he threatened him, using offensive language (Charges 6-7); on 7 February 2001 he purchased from Brent Caltibiano, a person not licensed to sell firearms, the firearm used in the offence Count 4 on the indictment for a price of $2,500. 14 At the time of the sentence hearing the respondent was aged thirty, married with two young boys aged six and two years. After his arrest he had been stripped of his assets, the Crime Commission confiscating approximately $50,000, and his wife and children were living in rented accommodation provided by the Housing Commission. 15 The respondent pleaded guilty, gave information to the authorities, and on 22 August 2002 undertook to give evidence against his brothers Kanan, Oktay, and Yilmaz Capar and Robert Mansour when their trial takes place; the information was treated as reliable by his Honour. The respondent had been placed in virtual solitary confinement and had already received one bashing; it was more than likely that he would spend the rest of his confinement under those conditions, which denied him the opportunity to work and obtain other benefits. 16 The respondent had a modest criminal record, but his Honour regarded him as a man of previous good character. However, during part of the time he was committing the offences which gave rise to Counts 1 and 2 in the indictment and at the time of the commission of the offence which constituted Count 4, he was at conditional liberty on bail in relation to various other matters. 17 At the time that he joined the business he had a significant drug problem, having become a drug addict when in his presence his father murdered his mother by cutting her throat, just as his father had murdered his mother; and he had received constant bashings from his father who had previously inflicted drunken violence on his mother. 18 Dr Westmore, forensic psychiatrist, was of the opinion that the respondent suffered from polysubstance abuse, chronic post traumatic stress disorder and a depression of mood. He considered that the respondent's depression probably commenced in 1994 with the death of his mother in the circumstances earlier referred to. 19 The offences were all serious, particularly the supply of heroin and cocaine, and the courts have referred on many occasions to the seriousness of offences of trafficking in drugs which all too frequently result in the death of the users; and in addition, any unlawful discharging of a firearm is a serious matter, because of the risk someone may be injured or even killed. 20 The use of firearms seems to be a concomitant of the drug trade and consequently persons who become involved in the drug trade must realise there is a risk that sooner or later they will become involved in offences relating to the use of guns. 21 Although the respondent's brothers' business was a large and pernicious one, the respondent's part in it was essentially as a messenger/courier and order clerk. He had no say in the running of the business and, whilst he received a set and generous wage and a supply of drugs to feed his personal addiction, he had no share in the profits of the business as such. For those reasons his Honour was entitled to regard his criminality as towards the lower end of the scale in these serious offences. 22 In addition the respondent's objective features were favourable. His previous record was comparatively minor. He had earlier been in employment and the experience of actually seeing his father fatally stab his mother must have been a traumatic experience, and was partly responsible for his drug addiction. His Honour was satisfied that he was remorseful and repentant. 23 Moreover, the respondent had pleaded guilty, though not at the first available opportunity, he had assisted police with information regarding his brothers' activities, which had resulted in the recovery of a large amount of money, and he had furthermore undertaken to give evidence against them in court. The result of this assistance was that his sentence was being served, and was likely to be wholly served, in strict protection amounting almost to solitary confinement. 24 It was therefore proper for his Honour to give appropriate discounts for the pleas of guilty and for his assistance to the authorities, including his undertaking to give evidence against his own brothers: ss 22 and 23 of the Crimes (Sentencing Procedure) Act 1999 and R v Thomson (2000) 49 NSWLR 383. 25 Accordingly, although I consider it somewhat generous, I do not regard the total discount of fifty percent as being outside the range of a proper sentencing discretion, notwithstanding that he was on bail at the time of the offences and there were the matters on the Form 1 to be taken into account. Having regard to the respondent's comparatively minor role in the business of the drug cartel and his favourable subjective features, I would not regard sentences of ten years on the first Count, taking into account the other matters, seven years on the second Count, four years on the third Count and four years on the fourth Count with a total effective sentence of twelve years, as being manifestly inadequate. These sentences were the sentences which his Honour had in mind before reducing them by fifty percent on account of the pleas of guilty and the assistance to the authorities, and which resulted in the sentences actually imposed by his Honour. 26 His Honour made some of the sentences wholly or partly concurrent and partly cumulative to give effect to the principle of totality. The basis on which he did so was explained by his Honour as follows: "The sentence I intend to impose for the supply of heroin will run concurrently with the one imposed for cocaine, both being parts of the same enterprise and the former representing the total criminality. I regard the money laundering as an incident of the enterprise and that too will run concurrently. But the shooting is separate and it must be seen by those who deal in drugs that violence which their trade incurs will sound in additional penalties". 27 I am of the view this was an appropriate approach and in accordance with the principles laid down in Pearce v The Queen (1998) 194 CLR 610. 28 My only concern is his Honour's finding of special circumstances because of the need for the respondent to serve his sentence in virtual solitary confinement. One of the reasons why generous discounts are given to offenders who provide assistance to the authorities, and particularly to those who undertake to give evidence against their former accomplices, is the likelihood of their being required to serve their sentence in harsher custodial conditions as a consequence of the assistance or undertaking to assist: Crimes (Sentencing Procedure) Act s 23(2)(g). 29 Where the offender has already been given a generous discount on the head sentence, partly because of the need to serve his sentence on protection, to then find the same consideration as special circumstances justifying a reduction in the non parole period amounts to the person having that circumstance taken into account in his favour twice. As Spigelman CJ said in R v Simpson [2001] NSWCCA 534, 53 NSWLR 704 at [67]: "Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non parole period. Before a sentencing judge further reduces the non parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence". See also R v S [2000] NSWCCA 13 at [19], 111 A Crim R 225. 30 In this case the total sentence of six years would normally have resulted in a non parole period of four and a half years. To find special circumstances and reduce it further to three years represents a discount of a further thirty three percent. I am therefore satisfied that although the head sentence and the adjustment of such sentence by way of concurrency and partial accumulation discloses no error, the finding of special circumstances on the ground specified was erroneous; but having regard to the principles which apply to Crown appeals, I consider that this Court should exercise its discretion and decline to intervene. Accordingly, I propose that the Crown appeal be dismissed and the sentences affirmed. 31 MASON P: I agree. 32 JAMES J: I also agree. 33 MASON P: The orders of the Court will be as indicated. **********

R v Capar

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