Regina v Adorjany

COUNSEL : P. Hastings QC with G. Tabuteau (Crown) S.J. Odgers (Applicant) SOLICITORS : Commonwealth DPP (Crown) Watsons (Applicant) CATCHWORDS : Criminal Law and Procedure; Sentence; Drug Trafficking; Rank and Role of Offender ACTS CITED : Customs Act 1901 DECISION : Appeal dismissed

JUDGMENT 1 GROVE J : The applicant appeared before her Honour Judge Karpin in the Sydney District Court where he was on 19 December 1997 sentenced to ten years imprisonment with a specified non-parole period of six years and three months for being in possession of a traffickable quantity of cocaine contrary to s 233B(1)(b) of the Customs Act. That offence was charged in an indictment as an alternative to a count contrary to the same statutory provision alleging attempted possession of a commercial quantity of the drug. To that count the applicant pleaded not guilty and the Crown accepted his plea of guilty to the other in full discharge of the indictment. 2 On 15 February 1997 James Whitney arrived at Sydney Kingsford Smith Airport on a flight from Tahiti although Mr Whitney's journey had originated in Colombia. He was intercepted by customs officers and later arrested by Federal police as there was found secreted in his luggage an amount of drug later demonstrated to consist of 2,796.2 grams of pure cocaine. Mr Whitney acknowledged his culpability and offered to cooperate with law enforcement authorities. That offer was accepted. It is unnecessary for present purposes to detail his movement in Sydney nor to recapitulate the content of conversations between various persons in telephone connections and between the applicant and Mr Whitney who was wearing a listening device with which he had been fitted by Federal police. No issue arose concerning the existence of lawful warrants for these activities. 3 Two days after the arrival of Mr Whitney in Australia the applicant telephoned him and arranged to meet him at a hotel on that afternoon. The applicant travelled from his home in a remote part of the Southern Highlands to Canberra where he boarded a flight to Sydney travelling under a name other than his own. He met Mr Whitney and after some activity the applicant was handed a briefcase containing inert substance which police had substituted for the bulk of the cocaine imported into the country by Mr Whitney which was disguised by a small amount of illicit drug. The applicant gave Mr Whitney $1,000 of his own money and travelled to Mona Vale where he entered an apartment which had been rented for one week by an acquaintance of his Ms Sherry. Shortly before midnight the applicant left the apartment and was arrested by police. A search warrant was executed on the premises and the black briefcase which had been handed to him by Mr Whitney was located in the premises. The "controlled delivery" consisting of the inert substance and small amount of cocaine had been decanted from its original container into two clear plastic bags which themselves had been placed in a shopping bag. 4 The applicant gave evidence before the learned sentencing judge in which he claimed that he was merely holding the substance for an acquaintance of his Mr Juan Diaz whom he expected to arrive in Australia shortly thereafter. The applicant had, on legal advice, declined to answer police questions after his arrest. As I have said, the proposition that he was holding the apparent drug for Mr Diaz was raised in evidence at the hearing by the applicant. It is notable that there was an absence of any evidence suggesting that Mr Diaz ever arrived in Australia seeking to claim his property. 5 It is expressly acknowledged by counsel for the applicant that there is no appeal against the factual finding by her Honour that the applicant travelled from his home "with the intention of taking possession of the bag which, to his knowledge, had been brought into Australia, containing cocaine." 6 Argument in support of the application to appeal against sentence has been focussed upon two matters adverted to in her Honour's remarks on sentence together with a submission that in any event, the sentence was manifestly excessive. 7 The first matter focussed upon a Crown submission at the sentencing hearing that the applicant "should be treated as having greater involvement than Whitney, who was a mere courier……….(and)……… that he was indeed a principal in the planning and execution of the importation." 8 In dealing with matters germane to that submission her Honour said: "I deal with the prisoner on the basis that whilst unable to determine the precise level of his involvement in this offence, he was a participant at a higher level than Whitney, bearing in mind that the Crown has accepted a plea to the lesser offence." 9 It was complained that this statement was ambiguous and that it did not expressly find what the nature of the involvement of the applicant was. 10 There was no evidence other than that emanating from the applicant (whose credibility had been rejected) that there was anyone in particular higher in the organization of the drug trafficking upon which the offence centred. As I have observed, Mr Diaz remained notably absent. Nevertheless the Crown submission was that the applicant should be treated as a middleman in the organization which as a matter of description and scale is an assessment of rank higher than that of a courier. 11 The activity of the applicant demonstrated by the evidence included the long journey from his home to Sydney via Canberra, using a false name in the air leg, and that he met a courier from whom he accepted a briefcase in circumstances in which he conceded he knew that he was receiving a quantity of cocaine. He paid that courier $1,000 of his own money, took the briefcase to a flat which had been rented for a short period which was contemporaneous with the transaction and, as he was the only person who entered or left the flat while it was under surveillance, necessarily he was the one who opened the briefcase and repackaged the drugs. He conceded that he "tasted" some of the content. 12 It was contended that it was not clear how her Honour bore in mind the fact that the Crown had accepted the plea to lesser offence. Immediately following the above recited extract from her Honour's remarks which were reproduced in submissions on behalf of the applicant, her Honour had expressly said "the prisoner must be sentenced for the offence to which he has pleaded guilty and no other. Nonetheless, in arriving at a sentence it cannot be determined, isolated as it were, from the totality of the circumstances which bring him before the Court." 13 I am unpersuaded that any error has been demonstrated. It is true that her Honour was not able to determine from the evidence the terms upon which the applicant was involved. Such a determination would have involved speculation but it is not inconsistent with refraining from so doing to reach a justifiable conclusion as to the ranking of the applicant in the transaction in contrast with the courier. 14 I do not seek to detract from observations about the importance of precision concerning the role of a participant in drug trafficking: R v Raz CCA Unreported 17 December 1992; R v Olbrich CCA Unreported 6 July 1998 but it can be recognized that participants in such criminal activity are almost invariably engaged in masking their role and, wherever possible, deceiving any investigators. This is particularly apparent when dealing with persons in the higher echelons of trafficking. Deceit should not attract advantage. There is no reason why a tribunal of fact cannot determine on the appropriate standard of proof what rank a participant holds without necessarily being able to determine every detail of the offender's activity. 15 The second matter advanced on behalf of the applicant referred to a Crown submission that he "should be dealt with on the basis of an intention to obtain possession, not merely of the traffickable quantity but of the commercial quantity which was in possession of Whitney when he arrived in Australia". 16 It is contended that this submission was an invitation to breach the principle in The Queen v De Simoni 1981 147 CLR 383. That well known authority proclaims the error of taking into account as a matter of aggravation when proceeding to sentence a fact which would have rendered the offender liable to more serious penalty than that prescribed for the offence upon which he has been convicted. 17 The attention of the sentencing judge was drawn specifically to that authority and her Honour expressly made reference to it. It is conceded that she did not make a finding that the applicant intended to take possession of a commercial quantity of cocaine but it is contended that she impliedly must have breached the principle expressed in the authority having regard to three considerations. First that the sentence is extremely heavy for possession of the actual amount of cocaine (being that small amount with which police had "salted" the inert substance), second that there was reference to the wholesale and street value of the total importation by Whitney and third her finding that the applicant was a participant at a higher level than the courier. 18 I am unpersuaded that those considerations either in isolation or cumulatively demonstrate the error sought to be attributed. I have already dealt with the legitimacy of the finding on the third matter in relation to the first submission by the applicant. An omission of reference to the actual importation would leave the sentencing of the applicant in a context of extreme artificiality. Her Honour recorded her consciousness of the limitations stemming from the actual offence for which the applicant appeared for sentence and I do not infer that she departed from her expressed intention. 19 Whether the sentence merits quantification as "extremely heavy" is dependent upon the circumstances in which the offence was committed. Absent the background of activity which her Honour was entitled to take into account it might be said that simple possession by some offender of that quantity of drug would be unlikely to attract a sentence of the present length. Its length however does not demonstrate that her Honour fell into the error of punishing the applicant for an offence more serious than that to which he pleaded guilty. 20 The final submission was that the sentence was manifestly excessive. Her Honour was entitled to take into account the degree of criminality involved. That included the activity by the applicant which I have already sketched. I should record that there has been an interesting and not altogether relevant debate about the intention to have in possession a larger quantity of drug than what I have called the "salt" with the inert substance. Reference was made to R v Derbas CCA Unreported 7 October 1983; R v Lawless CCA Unreported 24 June 1994 and R v Laurentiu & Becheru 1992 63 A Crim R 402. I discern no breach by her Honour of any principle discussed in those cases. Her Honour was entitled to find that the degree of criminality of the applicant was serious and this is reflected in the appropriately severe penalty. 21 In my opinion the arguments advanced on behalf of the applicant should be rejected. I propose that the applicant be granted leave to appeal but the appeal be dismissed. 22 DUNFORD J: I agree. 23 GREG JAMES J: I agree also. 24 GROVE J: The order of the Court will be as I have proposed.

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