Regina v Joseph Sukkar

Criminal Appeal Act 1912 LEGISLATION CITED: Customs Act 1901 (Cth) Crimes Act (Cth) 1914 Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth)

R v Bragias (1997) 92 A Crim R 330 R v Todd (1982) 2 NSWLR 517 Mill v The Queen (1988) 166 CLR 59 R v Cartwright (1989) 17 NSWLR 243 R v Mostyn (2004) 145 A Crim R 304 R v Gutierrez [2004] NSWCCA 22 R v Prasad [2004] NSWCCA 293 The Queen v Olbrich (1999) 199 CLR 270 R v Louis Sukkar [2005] NSWCCA 55 Veen (No. 2) (1988) 164 CLR 465 CASES CITED: R v McDonald [1998] NSWSC 569 R v Barker [2006] NSWCCA 20 R v Gibson [2006] NSWCCA 20 R v Perez Vargas (1986) 8 NSWLR 559 R v Hayes (1981) 3 A Crim R 286 R v Gallagher NSWCCA 16 May 1991 (unreported) R v Shepherd [2003] NSWCCA 287 R v El Hani [2004] NSWCCA 162 R v Wall [2002] NSWCCA 42 R v Speer [2004] NSWCCA 118 R v Schofield [2003] NSWCCA 3

PARTIES: Appellant - The Queen Respondent - Joseph Sukkar

COUNSEL: Appellant - W Abraham QC Respondent - AJ Belanto QC

SOLICITORS: Appellant - Commonwealth Director of Public Presecutions Respondent: Uther Webster & Evans

IN THE COURT OF CRIMINAL APPEAL 2005/2092

McCLELLAN CJ AT CL HOWIE J LATHAM J

1 McCLELLAN CJ at CL: I agree with Latham J and the additional remarks of Howie J. 2 HOWIE J: In this matter I have read the judgment of Latham J in draft. I agree with the orders proposed by Her Honour for the reasons she gives. I simply want to comment on one matter: the discount for assistance. 3 As Latham J points out, the discount for assistance reflects a number of considerations that impact upon the sentence to be imposed upon the offender. One factor has traditionally been that a person giving assistance will normally be at risk within the gaol environment and, therefore, may need protection for a substantial part, if not all, of the term of the sentence. When this Court has expressed the view that the appropriate range for the plea of guilty and assistance is between 20 and 50 per cent, that range has been formulated on the basis that some reduction was due, not only to encourage others to give information to the authorities but also "to compensate them for the more difficult conditions under which they will inevitably have to serve their sentences as a result of having given that information", see R v Cartwright (1989) 17 NSWLR 243 at 250. 4 However, It is no longer inevitable that an offender who has provided assistance will serve the sentence in more difficult conditions. As was pointed out in R v Mostyn (2004) 145 A Crim R 304 the experience of this Court at least has been that prisoners who have provided assistance are not serving their sentences, or even a significant part of their sentences, in any more onerous conditions than prisoners in the general prison population. In Mostyn the appellant's discount was reduced when the Court came to re-sentence him because of evidence placed before this Court that indicated that he was not serving his sentence in more difficult circumstances nor was he deprived of programmes to aid in his rehabilitation. 5 It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact. 6 In the present case there was simply no evidence that the respondent was at risk by reason of the assistance he had given or that the assistance would have impacted at all upon the manner in which he would be required to serve his sentence. There was no evidence placed before this Court in answer to the Crown appeal to show that in any way the respondent had been disadvantaged by the fact that he had given assistance. The Judge erred in the discount given to the respondent for his plea and assistance and one of the reasons is because he made the unjustified assumption that imprisonment would be more onerous for the respondent because of the assistance provided. 7 LATHAM J: This is an appeal by the Commonwealth Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed on the respondent on 2 September 2005 by Norrish QC DCJ in respect of an offence of being knowingly concerned in the importation of a commercial quantity of MDMA, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). 8 The offence was committed between March and December of 2001. A total of 123.6 kg of MDMA, of which 34.4 kg was pure MDMA, was imported in November 2001. The respondent was arrested on 5 December 2001 and pleaded guilty in the Local Court on 24 July 2002. Six co-offenders were also sentenced for their part in the importation. 9 The offence carries a maximum penalty of life imprisonment. The respondent was sentenced to imprisonment for 13 years 3 months with a non-parole period of 8 years 6 months.

Facts 10 The facts surrounding the commission of the offence are comprehensively set out in the Crown's submissions. No issue was taken with their accuracy and I adopt them for the purposes of these reasons.

The MDMA was imported into Australia in refrigeration equipment. In October 2001, a shipping container containing an Isocab cool room (refrigeration equipment) was loaded onboard a cargo vessel in Antwerp, Belgium for consignment to CJ Trade Consultants to be delivered to the port of Brisbane. The shipment consisted of three crates containing 48 modular plastic columns, 4 modular doors and a number of panels. Concealed in tubes inserted into the centre of each column, was approximately 480,000 MDMA tablets.

The shipment arrived in Brisbane on 17 November 2001. On 20 November 2001, Customs officials examining the container located the MDMA tablets. The tablets were removed and replaced with a substitute. The container was repackaged into its original condition and returned to the Brisbane wharf for collection and recovery. On 23 November 2001 the container was delivered to its intended destination, a warehouse in Brisbane.

The MDMA was in a consignment to CJ Trade Consultants. On 28 April 1999, Hyeon Joon Choi (Choi) registered CJ Trade Consultants Pty Ltd (CJ Trade) as a NSW company of which he was the principal shareholder and the Director. On the same day Steven Sukkar and Louis Sukkar were also appointed as Directors. On 28 January 2000, Steven Sukkar and Louis Sukkar resigned as Directors. The company was controlled by Choi. Steven Prasad (Prasad) was an officer and employee of the company. In March 2001, Choi procured Simon Prasad (brother of Steven) to assist in the importation of drugs. Prasad was to be paid $50,000 for his assistance. Prasad obtained the assistance of Maurice Shepherd (Shepherd), a commodity trader and importer/exporter carrying on business in Brisbane, to arrange for the clearance of the proposed consignment through Australian Customs. Shepherd was to be paid $25,000 for his role.

On 23 November 2001, after the container was repackaged by Customs officers, it was delivered to a warehouse in Brisbane leased by Shepherd.

On 20 November 2001, Louis Sukkar hired a truck in Sydney (using a false name) and travelled with another person (Bourke) to Brisbane for the purpose of taking delivery of the container from Shepherd. Choi also attended the vicinity of the warehouse in Brisbane.

The consignment was transported to Sydney. Choi and Louis Sukkar observed the events at the warehouse in Brisbane. Bourke drove the truck from Brisbane. Choi and Louis Sukkar travelled in convoy with the truck. At some stage Louis Sukkar took over the driving of the vehicle. On 24 November 2001 the consignment was delivered to 84 Consett Street, Concord West. The property was owned by Steven Sukkar. Louis Sukkar lived at that address.

On 24 November 2001, the respondent with the assistance of Louis Sukkar and Steven Sukkar, took part in the unloading and storage of the refrigeration parts. During this process the substitution of the drugs was discovered. Thereafter the respondent was involved in attempting to determine the circumstances of the substitution.

Leading up to the arrival of the drugs in Sydney on 24 November 2001 the respondent's movements were as follows: On 18 April 2001 the respondent flew from Sydney to Austria; On 7 May 2001 the respondent was recorded as having departed the Netherlands to travel to Lebanon; On 1 July 2001 the respondent was recorded as having travelled from Lebanon to the Ukraine; On 11 July 2001 the respondent was recorded travelling from the Ukraine to the Netherlands; On 16 July 2001 the respondent was recorded as having re-entered the Ukraine; On 3 August 2001 the respondent flew from Austria to Sydney; On 5 October 2001 the respondent flew from Sydney to Austria then to the Ukraine; On 23 November 2001 the respondent flew from Vienna to Sydney.

Between 24 November 2001 and 5 December 2001 the respondent made repeated efforts to recover the drugs. There were a number of telephone discussions which were intercepted and recorded between the respondent and others involved in the importation.

These attempts included:- (1) Communicating with "Jeff" and "Eric" in the Netherlands with a view to ascertaining how the loss of the MDMA had occurred and the identity of the person responsible. "Jeff" and "Eric" had, at the very least, supplied the drugs imported. (2) Directing and instructing Louis Sukkar to liaise with Choi with a view to obtaining documents relating to the passage of the cool room and its movement in Australia so as to identify when and how the theft of the MDMA had occurred. (3) Communicating with a co-offender, El Hani with a view to ascertaining how the loss of the tablets had occurred and the identity of the persons responsible. Arrangements were made by El Hani to travel to Australia to recover the lost MDMA tablets. On 3 December 2001, the respondent met El Hani in Sydney at 84 Consett Street, Concord West and showed him the substituted tablets.

The respondent and Louis Sukkar were to receive the proceeds from the importation. The retail value of the drugs was estimated at between $9.6M and $33.6M. The wholesale value was estimated at between $7.2M and $12M.

11 In March 1984, when the respondent was 23 years of age, he was arrested for his participation in the attempted supply of 60 kilograms of hashish oil, which had been imported into Australia on board a Lufthansa flight as part of a controlled operation. The respondent was charged with and pleaded guilty to Possess Prohibited Imports, Being Knowingly Concerned in the Importation of Prohibited Imports, Conspiracy to Supply a Prohibited Drug and Attempt Possess Prohibited Imports. On each offence, the respondent received a sentence of 8 years penal servitude, with a non-parole period of 5 years. All sentences were concurrent. 12 The material before his Honour as to the circumstances giving rise to these earlier convictions included the decision of the Court of Criminal Appeal of 2 July 1986 relating to the respondent's mother's appeal against sentence, following her conviction at trial on a charge of Conspiracy to Supply Cannabis. The very brief judgment on 2 July 1986 recorded the following: The charge arose out of the bringing into this country of three suitcases containing about sixty canisters which themselves were filled with hashish oil; in all the weight of the hashish oil was about ninety kilograms. The suitcases were, in fact, brought in by undercover agents by arrangement with Interpol. It was, in effect, a controlled importation carried out in order to seek to identify the persons in this country who were receiving and dealing in narcotic drugs. The Interpol couriers having arrived, they booked into a hotel and very shortly thereafter the appellant made contact with them. In the period that followed over the next few days, there were a number of contacts between the appellant and her son on the one hand and the Interpol couriers on the other hand. His Honour found that the evidence demonstrated "without any doubt that it is Salma Sukkar who was the local person leading in all negotiations and arrangements". Ultimately it was agreed that the couriers should make available to the appellant and her son sixty of the ninety kilograms. There was evidence that the wholesale value of sixty kilograms was something between $600,000 and $960,000. The wholesale value of the whole importation was in the order of $1.4 million, and, as his Honour observed, the retail or street value would be very substantially greater than that. 13 A statement of facts from the District Court file relating to the 1984 charges (Ex XX) gave a much more detailed account of the respondent's participation in the negotiations, over a period of 6 days, for the purchase of the imported hashish oil. The respondent met with, and paid large sums of money to, the couriers by way of meeting their expenses. On many occasions, he met with one or both couriers in the absence of his mother. The respondent took a sample of the drug on one of these occasions. The respondent also took delivery of the hashish oil and was arrested in possession of it. However one characterised their respective roles, the respondent and his mother jointly committed the conspiracy offence. 14 The terms of s 16A(2) of the Crimes Act (Cth) 1914 mandated the court to have regard to the respondent's antecedent criminal history. The extent of the respondent's criminality in the commission of this earlier offence assumed some importance in the course of the proceedings before Norrish QC DCJ and in the course of the proceedings before this Court. I return to this issue below. 15 In addition, the respondent stood trial before Norrish QC DCJ between 23 November and 15 December 2004 on a charge of being Knowingly Concerned in the Importation of not less than the Traffickable Quantity of MDMA. That offence was allegedly committed between 22 September 2000 and 16 July 2001. The respondent was ultimately acquitted on that charge. However, the transcript of that trial was before his Honour in the sentencing proceedings. His Honour noted in the course of his remarks on sentence the relevance of the trial transcript (and the fact that both the Crown and the respondent conceded its relevance) in the following terms: The investigation of this accused and his co-offenders, to whom I will refer to shortly, between September and December 2001, particularly through lawfully executed telephone intercepts, alerted authorities to the possibility of the previous importation of MDMA using a similar method to that the subject of the current charge. The Crown case in relation to the first importation was concerned with evidence that established that there was an importation of refrigerator parts, similar to those to which the facts of the second importation are concerned with, which had occurred in February/March 2001. The first and second importations involved in part the importation into Australia of legitimate refrigeration equipment manufactured by a company called Isocab. In respect of both importations it was alleged that MDMA tablets were hidden within the refrigeration equipment. The arrangements for the first importation began on or about 22 September 2000. There was evidence before me of various communications between a man known as John Choi, who was a principal of CJ Trade Consultants Pty Limited an import/export company, and parties in the Netherlands, as a consequence of which a consignment was shipped from Antwerp on 25 January 2001, consigned to CJ Trade Consultants. The importation of refrigerator parts occurred when the goods arrived in Sydney on or about 26 February 2001 and there was evidence before me that over the next three to four days the subject goods were cleared by Customs and were collected consequently on 5 March 2001. The Crown case in relation to the first importation was that having regard to the various conversations involving the accused and other people over October, November and December 2001 and the similarity of the method of importation, as well as some other circumstantial evidence concerning the existence of MDMA tablets in the possession of the accused or his co-accused not identical to those imported in November 2001, the February/March importation involved the importation of MDMA tablets, perhaps however not as great as that alleged in relation to the second importation. The accused's case, bearing in mind that the accused did not give evidence in the trial, was that it was reasonably possible that this first importation was in effect a dummy run for the second importation, the subject matter of the charge for which the prisoner is to be sentenced. In effect it was submitted to the jury on behalf of the accused, given the character of the Crown case which was essentially circumstantial, that there was a reasonable possibility that the first importation in time did not involve the actual importation of MDMA tablets. As the jury in that trial acquitted the accused, in sentencing the accused I am required to take into account the circumstances of the first importation, not as evidence of the commission of a previous offence, but as a reflection upon the extent of planning and perhaps the sophistication of the second importation, the subject of this current charge.

The Respondent's Assistance and the Issue of Delay 16 The respondent declined an interview with the police immediately after his arrest, but later indicated through his legal representative that he would be prepared to provide information against other members of the syndicate responsible for the importation. The respondent was interviewed on 4 December 2002. The police assessed the respondent's information as of little use or assistance. 17 In November 2003, two Dutch investigators travelled to Australia in order to investigate the role of "Jeff" and "Eric" in the exportation of the MDMA from the Netherlands. The respondent was interviewed and provided answers which the Netherlands authorities assessed as "truthful", albeit they related only to the offence for which the respondent stood to be sentenced. In a letter to the respondent's solicitors on 7 April 2004, the Netherlands prosecutor described the respondent's statements in the interview as significant "for the criminal inquiry in the Netherlands". 18 In mid 2004, the Netherlands' authorities sought the respondent's co-operation in travelling to the Netherlands to give evidence in the prosecution of "Jeff" and "Eric". On 11 February 2005, the respondent and El Hani were summonsed by the Office of the Commonwealth Director of Public Prosecutions to give evidence in the Local Court by way of audio-visual link to the proceedings against "Jeff" and "Eric". 19 In March 2005, the Netherlands prosecutor provided to the Commonwealth Director of Public Prosecutions an assessment of the respondent's evidence given in the Local Court. The prosecutor expressed his regret that the respondent "did not really want to speak about anything other than the intercepted shipment" and that "his evidence was not completely truthful". 20 On 13 July 2005, the Netherlands prosecutor wrote to the respondent's solicitor, informing her of the sentences imposed on "Jeff" and "Eric". In that letter, the prosecutor states that the respondent's statements were part of the evidence on which the convictions at trial were based. 21 It was against this background that the Crown submissions on sentence before Norrish QC DCJ stated that "the degree to which the offender has co-operated with law enforcement agencies in Australia is slight … however, the value of the offender's assistance or co-operation with the authorities in the Netherlands may be regarded as higher in terms of its effectiveness." That effectiveness lay in the prosecution of "Jeff" and "Eric", the suppliers of the MDMA. It would appear that nothing the respondent said to the Netherlands authorities or in the course of his evidence on 11 February 2005 exposed the respondent, or any member of his family, to any risk of reprisal within this jurisdiction. The respondent has not been in protection whilst in custody. The respondent's senior counsel contended that the value of the respondent's assistance was "extremely high" and that a substantial discount ought to be given. 22 The period of time between the respondent's arrest and sentence, one of almost 4 years, was attributable to a number of factors, the most significant of which was the respondent's trial and re-trial for the alleged importation in early 2001. The respondent's plea of guilty came 6 months after his arrest, following service of a large brief of evidence upon his legal representatives. He remained in custody from the date of his arrest. From late 2001 until late 2004 the respondent was a remand prisoner, who underwent 2 trials, the first resulting in a hung jury and the second in the respondent's acquittal, as noted above. A further period of time elapsed between the respondent's acquittal and the commencement of the sentencing proceedings before Norrish QC DCJ on 15 July 2005. It would appear that the parties were awaiting the outcome of the proceedings in early 2005 against "Jeff" and "Eric" and, in particular, an assessment from the Netherlands authorities of the value of the respondent's evidence. The respondent's solicitors regularly corresponded with the Netherlands authorities over this period on that subject. 23 The respondent's senior counsel on sentence (and on the hearing of this appeal) submitted that the delay between the commission of the offence and sentence "was caused by an over-zealous and inappropriate approach to prosecuting [the respondent] for the offence for which he was acquitted". Counsel relied upon R v Bragias (1997) 92 A Crim R 330, R v Todd (1982) 2 NSWLR 517 and Mill v The Queen (1988) 166 CLR 59 in support of the submission that the respondent had sustained the stress of the uncertainty of his fate for a substantial period of time, that the offence was stale and that the respondent had played no part in creating the delay. In addition, it was submitted that the stress occasioned by two trials and the burden imposed by his remand status called for a discounted sentence. 24 The Crown's written submissions on sentence were handed up on a day prior to the receipt of the respondent's counsel's submissions and did not address the question of delay. The final oral submissions on 12 August 2005 were not transcribed, and it is not possible to determine what, if anything, the Crown's representative said in answer to the respondent's submissions on this aspect of the sentence.

The Respondent's Subjective Case 25 At the time of sentence, the respondent was 44 years of age. His family emigrated from Lebanon in 1966, but the respondent almost immediately returned there to attend boarding school. He came to Australia in 1976, returning again to Lebanon three years later to marry. The respondent, his wife and four children have primarily resided in Australia since 1980, although the respondent was absent overseas for significant periods of time between 1998 and 2001. Those absences were apparently associated with the respondent's employment in a cattle transport business in Russia and the Middle East. The respondent reported to Probation and Parole (Ex.ZZ) and to Ms Robilliard (Ex 6) that by 1998 he was bankrupt, following the failure of a business venture, and that an uncle in the Ukraine offered him that employment. Initially, the respondent did well financially out of the business, but the outbreak of "mad cow disease" affected profitability. The respondent claimed to be in debt for $40,000 by early 2001. He claimed that he was to be paid $100,000 to $160,000 for his role in the offence. 26 The respondent was described by Ms Robilliard as "soundly intelligent", in good health and committed to his family. It was said that the respondent's many absences from home throughout the marriage were motivated by the respondent's willingness to take employment opportunities that might provide for his wife and children. 27 Two of the respondent's four brothers were co-offenders in the importation. The respondent said to Ms Robilliard that he deeply regretted involving his brothers in the offence and the shame his actions had brought on the family name. Ms Robilliard also described the respondent as "deeply remorseful". The respondent did not give evidence. 28 The respondent's wife and daughter gave evidence generally in accordance with the contents of the reports Exs ZZ and 6. The respondent's wife testified that when she first came to Australia with the respondent, the respondent's father was in prison for a drug-related offence. The balance of her evidence concerned the respondent's anxiety whilst waiting to be sentenced and his avowed remorse. The respondent's daughter spoke of the effects on her siblings and herself.

The Grounds of Appeal 29 The Crown asserts that the sentence imposed on the respondent was manifestly inadequate and that such manifest inadequacy may be demonstrated by a combination of the following errors:-

a) the failure of the sentence imposed to adequately reflect the respondent's criminality;

b) undue weight accorded to the respondent's plea of guilty and assistance to the authorities;

c) undue weight accorded to the respondent's prior convictions and to the delay between charge and sentence. 30 In particular, objection is taken to the adoption of a "starting point" for the purposes of sentence, that being the sentence imposed on the respondent's brother and co-offender, Louis Sukkar. It is submitted that this approach was misconceived, in that the culpability and personal circumstances of the respondent and Louis Sukkar were distinguishable. It is further submitted that the result of aligning the respondent and Louis Sukkar in terms of parity is the imposition of a sentence on the respondent which is significantly disparate to the sentences imposed on the respondent's co-offenders, particularly El Hani and Shepherd. This latter submission was pressed only for the purposes of assisting the Court in determining whether the respondent's sentence was manifestly inadequate. It is, of course, axiomatic that this Court would not intervene in a Crown appeal in order to maintain parity: R v Gutierrez [2004] NSWCCA 22; R v Prasad [2004] NSWCCA 293. 31 It is convenient to deal with the issue of disparity as an indicator of manifest inadequacy after considering whether there is substance to the Crown's specific complaints. Grounds (a) and (c) are intertwined and will be considered together.

The Respondent's Criminality, Delay and the Relevance of a Prior Conviction 32 The Crown's written submissions on sentence commenced with the often cited passage from The Queen v Olbrich (1999) 199 CLR 270 emphasising the importance of assessing what the offender did in the commission of the offence. The Crown pointed his Honour to nine features of the respondent's offending, namely:- i) Between March 2001 and 15 October 2001 the offender, by arrangement with Jeff and Eric in the Netherlands and others, procured the supply of approximately 480,000 high quality MDMA tablets to be shipped from Belgium to Australia concealed within a modular cool-room manufactured in Belgium. ii) Between March 2001 and 24 November 2001 the offender (directly and/or indirectly) procured Choi to effect all necessary arrangements for the purchase and shipment of the cool-room and for its clearance and delivery in Australia. For this work the offender undertook to pay Choi the sum of $300,000. iii) On 24 November 2001 the offender, with the assistance of Louis Sukkar and Steven Sukkar, took part in the unloading and storage of the cool-room parts at 84 Consett Street, Concord West. At some time during this process one or more of the cool-room columns were opened and the substitution of the narcotics was, to the knowledge of the offender, discovered. The offender was present at the premises when Choi subsequently attended and was observed to speak with Louis Sukkar and Steven Sukkar. Later that day Louis Sukkar reported to the offender that he had tasted some of the substitute tablets and confirmed that they did not have any narcotic content. iv) Between 24 November 2001 and 5 December 2001 the offender made efforts to recover the lost narcotics, in particular by communicating with Jeff and Eric in the Netherlands with a view to ascertaining how the loss of the tablets had occurred and the identity of the persons responsible. v) Between 24 November 2001 and 5 December 2001 the offender made further efforts to recover the lost narcotics, in particular by directing and instructing Louis Sukkar to liaise with Choi with a view to obtaining all documents relating to the purchase of the cool-room and its movement in Australia so as to identify where and how the supposed theft of the MDMA tablets had occurred. vi) On 2 December 2001 the offender, with the assistance of Louis Sukkar, Steven Sukkar and Paul Sukkar, emptied the remaining columns stored at 84 Consett Street, assisted in loading the empty columns on to a hire truck for removal to a place of safe storage, and thereafter he and his brothers sorted and separated approximately 13,000 genuine MDMA tablets from the substitute tablets. vii) On 3 December 2001 the offender met with El Hani who had travelled to Sydney to assist the offender in his efforts to recover the lost MDMA tablets and subsequently at 84 Consett Street showed El Hani some of the substitute tablets. viii) The offender was a principal in the importation venture, in partnership with Louis Sukkar, but with overall control of and responsibility for operations and connections with the foreign suppliers of the narcotics. ix) The offender and Louis Sukkar were the intended beneficial owners of the imported narcotics and all proceeds from their sale and/or distribution would have accrued directly to them, subject only to meeting necessary liabilities and overheads. 33 The submissions filed on behalf of the respondent on sentence conceded that the respondent played a prominent and significant role in attempting to discover how the substitution of the MDMA occurred. Beyond that, the submissions disputed that the judge could be satisfied beyond reasonable doubt of the respondent's role as characterised by the Crown. The respondent's case on sentence inferentially sought to portray the respondent's offending as an impetuous decision to assist others more culpable than he in the importation in the expectation of receiving a modest amount of money ($100,000 to $160,000). According to Ms Robilliard's reports, the respondent was motivated by his indebtedness to his uncle's family, and the need to continue to support his own family. Ms Robilliard proffered this view, that the respondent "does not appear to have anticipated any personal indulgence or gratification from the enterprise." (Report of 24 October 2002). 34 Of course, the objective evidence could not stand with such a representation of the respondent's criminality, as his Honour rightly recognised. His Honour found that the respondent had "a direct and substantial interest …. in the importation. [He was] shown to be giving directions to others so far as inquiries were concerned in relation to the issue of the substitution, as well as directions as to steps to be taken to remedy the situation." His Honour further found that the respondent "was a principal in the importation who had a leading role in the consummation of the arrangements and was at least in partnership with his brother, Louis … [The respondent] had an intimate knowledge and control of the Australian side and also … clear knowledge of the European side and would appear to have had prior contact with those who either manufactured the drug in Europe or who had brokered the supply of drugs by their manufacturers." His Honour also noted that the respondent's conduct was deliberate and calculated "over an extended period of time for personal profit" and further that the respondent's "involvement was a long-standing and intense one". This latter comment arose out of the material before his Honour relating to the alleged first importation. 35 At this point in the Remarks on Sentence, his Honour turned to a consideration of the respondent's subjective circumstances. The respondent's account of his offending to Probation and Parole and to Ms Robilliard was rejected. Next, his Honour dealt with the respondent's plea of guilty and the value of the respondent's assistance to authorities. Of some relevance to this ground, his Honour referred to this Court's decision in R v Louis Sukkar [2005] NSWCCA 55 in terms which suggested that his Honour was familiar with it. Some passing reference to the circumstances of that matter is warranted. 36 A principal ground in the severity appeal by Louis Sukkar against the imposition of a sentence of 18 years with a non-parole period of 12 years was an asserted error in attributing to the applicant the role of "co-principal and partner with [the respondent] in the importation, with the distinguishing factor that it was [the respondent] who had the connection with the overseas suppliers and was able to source the drugs in Europe"; R v Louis Sukkar [21]. The judgment of Bryson JA (with whom Barr J and Hoeben J agreed) contains the following:- The applicant in his evidence was at pains to depict himself as taking a less prominent or subordinate role, in comparison with the roles of Choi, of Joseph Sukkar; and perhaps of others. It is correct, as his counsel submitted, that evidence relating to the applicant's involvement does not show him participating any earlier than October 2001 by which time the importation was already on the water; there is no evidence that the applicant participated in negotiation with the suppliers in Europe, and the Trial Judge distinguished his position from that of Joseph Sukkar. … Other intercept transcripts between the applicant and Joseph Sukkar also show that dealings with and the identities of the European suppliers were within Joseph Sukkar's knowledge and not within the applicant's knowledge. In several respects Joseph Sukkar gave the applicant instructions about how to deal with aspects of the events; and the evidence shows the applicant conforming with such instructions. 37 Somewhat later, Bryson JA said:- The statement in his Honour's findings that the applicant was a co-principal and partner of Joseph Sukkar should not be elevated to some meaning which this statement does not bear; it is not a statement of overall equivalence of criminality, and it is really beyond question that the applicant was a principal, and a partner with Joseph Sukkar, no less so because, on the evidence before the sentencing Judge, it should have been found, if those facts were relevant, that Joseph Sukkar took the more prominent position, and notwithstanding that (as was found) Joseph Sukkar managed parts of the importation which were not managed by the applicant. 38 Two things emerge clearly from the above. First, the Court endorsed the approach of the judge who sentenced Louis Sukkar (Andrew ADCJ) in recognising that a distinction existed between Louis Sukkar and the respondent, despite the finding that they were co-principals and partners. Secondly, the latter finding did not compel treatment of Louis Sukkar and the respondent as entirely equal in criminality. To the objective differences identified by Bryson JA, I would add the absence of any criminal convictions against Louis Sukkar at the time of sentence. The respondent's criminal history was therefore a matter which was capable of demonstrating a continuing attitude of disobedience to the law : Veen (No. 2) (1988) 164 CLR 465. That submission was made by the Crown before Norrish QC DCJ. 39 It could not be suggested, in my view, that the respondent's prior conviction relating to the importation of the hashish oil in 1984 was not a significant factor in the assessment of the sentence to be imposed for a large-scale importation of another more serious drug. However, ultimately that was the approach his Honour took as the following makes clear. 40 Much of the argument before Norrish QC DCJ, and before this Court, centred on the alleged subservience of the respondent to his mother in the commission of that earlier offence. On the hearing of the appeal, the respondent's senior counsel submitted that the respondent's mother was "the principal offender" in the importation of the cannabis resin and that she "induced [the respondent] into committing the earlier offence". The written submissions on this aspect of the appeal were expressed somewhat differently. The respondent's previous conviction for a drug importation offence was said to be the product of poor modelling by his parents, given that both of them were also involved in drug activity. Similar submissions were made on sentence, culminating in the proposition that, for these reasons, the instance offence was an uncharacteristic aberration. 41 His Honour's approach to this issue was, with respect, confused. In short, his Honour was not prepared to find either that the instant offence represented a continuing attitude of disobedience to the law or that it was an uncharacteristic aberration. His Honour agreed with the Crown that the prior conviction could not be put aside and recognised that the prior conviction disentitled the respondent to any leniency. (Remarks on Sentence 32-33). Notwithstanding these remarks, his Honour went on to cite "the somewhat different circumstances of the other offence, the period of time since it was committed, the comparative youth of the offender at the time [and] the offender's lesser role in the context of his mother's leading role", in order to arrive at the conclusion that, in effect, Veen (No. 2) was not a relevant authority for the purposes of sentencing the respondent. 42 For my part, I would not regard "the comparative youth" of the respondent as a significant factor. The respondent was an adult male, the eldest of five, who undertook direct responsibility for the negotiations with the importers in 1984. I reject the submission that the respondent was in any way induced into the commission of the 1984 offence, or that he was in some way incapable of determining right from wrong because of the example set by his parents. As to the "somewhat different circumstances" of the 1984 offence, it is difficult to discern a relevant difference between the large-scale importation and distribution of one prohibited drug as opposed to another, when one is determining whether the respondent manifests a continuing attitude of disobedience to the law. I have come to the conclusion that his Honour's discretion miscarried on this aspect of the sentencing : see R v McDonald [1998] NSWSC 569. 43 Returning then to the assessment of the respondent's criminality, his Honour reviewed the sentences imposed on the respondent's co-offenders and ultimately determined that "the sentence imposed on Louis Sukkar [was] the most relevant sentence", notwithstanding that Louis Sukkar had no prior criminal convictions. His Honour declined to distinguish between them on that basis, because of the lesser weight usually accorded to an absence of criminal convictions when sentencing for serious drug importation offences, and because of the delay, and the alleged hardships arising therefrom, since the respondent's arrest. As to the first, it is a further manifestation of his Honour's erroneous approach to the relevance of a prior conviction for a like offence. The reluctance of the courts to attach weight to prior good character when sentencing for drug importation offences springs from the dependence of drug importation networks on those who do not attract the attention of law enforcement officials. That consideration bears no relationship to the relevance of a prior conviction for a similar offence, in the sense explained by Veen (No. 2). 44 As to the question of delay, his Honour rejected any suggestion that the prosecution was responsible for it, whilst at the same time accepting that the respondent had not created it. In fact, the respondent had sought the successive adjournments necessary to postpone the sentencing proceedings until after the conclusion of the trials. Granted, the prosecution had not opposed those applications, but the respondent chose the course which the proceedings took. He could not have been in any suspense as to his fate, in so far as he had pleaded guilty in mid 2002 and was aware he would receive a substantial sentence of imprisonment. The only uncertainty was whether or not he would be convicted for the earlier alleged importation, the subject of the trials. His Honour accepted that the respondent "had been forced to undergo the stress arising from those trials, and … the considerable disadvantage and discomfort of regular travel to court and custody on remand." Yet, his Honour was not sentencing the respondent for any offence the subject of those trials. It is therefore difficult to justify any significant weight being attached to the delay occasioned by the respondent's decision to defend charges of which he was ultimately acquitted. He was, of course, entitled to defend them, but he could equally have insisted upon a sentence date as soon as possible after his committal; see R v Barker; R v Gibson [2006] NSWCCA 20. 45 In accepting the Crown submission that the respondent and Louis Sukkar were "effectively partners", his Honour disregarded "the separate steps taken by each [of them] in furtherance of the criminal enterprise", and placed emphasis upon the fact that the respondent and Louis Sukkar were to share in the profits. This finding fell short of recognising that an offender may nonetheless bear greater or lesser criminal liability than his/her partner, depending on the prominence of their respective roles and the extent to which control of and responsibility for critical aspects of the offence is attributable to one or the other; R v Louis Sukkar [2005] NSWCCA 55 at [33] 46 The respondent's senior counsel contended on the hearing of the appeal that his Honour was in a unique position to appreciate the respondent's role in the commission of the offence and that the Crown could not, in effect, characterise the respondent and Louis Sukkar as "equal partners" for the purposes of the proceedings against Louis Sukkar and then seek to resile from that position for the purposes of sentencing the respondent. Whatever the content of the Crown submission on sentence and on appeal in the matter of Louis Sukkar, the court is not bound by those submissions; indeed, the court is bound to undertake an assessment of the objective gravity of an offender's conduct, having regard to all of the evidence before it. The submissions advanced by the applicant in this Court in the severity appeal of Louis Sukkar, namely that the latter was distinguishable from the respondent in terms of culpability because of the absence of any evidence linking Louis Sukkar to the importation before October 2001 and because of the respondent's negotiations with the suppliers in Europe were accepted, and, in my view, properly so. Neither the Court in Louis Sukkar, nor this Court should accept the proposition that the respondent and Louis Sukkar were to be considered equally culpable in every respect, simply because the Crown may have formerly intimated that approach, and certainly not in the face of evidence to the contrary. 47 In my view, his Honour erred in his assessment of the respondent's criminality, relative to that of Louis Sukkar and therefore failed to reflect that criminality in the adoption of a "starting point" of 36 years' imprisonment, which was identical to that adopted by Andrews ADCJ. The ultimate sentences imposed on each were the product of discounts for the assistance rendered and for the purposes of the now-repealed s 16G Crimes Act (Cth). 48 Before leaving this ground, it is appropriate that I refer to a concession said to have been made by the Crown before his Honour, to the effect that the maximum penalty was not the relevant "starting-point". His Honour expressly remarked on that concession (ROS 43). I would not have regarded a submission to the contrary as unwarranted by the circumstances of this offence. It was an importation of considerable size and sophistication. It had all the hallmarks of a professional enterprise. Given the respondent's previous convictions relating to the importation of a large amount of a prohibited drug, there was every justification for commencing with the notional imposition of a sentence of life imprisonment. The Respondent's Plea of Guilty and Assistance to Authorities

49 As noted above, the respondent pleaded guilty approximately 6 months after his arrest. Whilst it could not be said that the plea came at the earliest opportunity, the Crown recognised that it was a relatively early plea. His Honour found that the plea of guilty was entered very close to, if not at, the first reasonable opportunity, and on that basis determined that the respondent was entitled to a discount of "slightly higher than 20 percent but slightly lower than 25 percent upon the otherwise appropriate sentence". His Honour's reference to the first reasonable opportunity was premised upon the fact that the brief of evidence was served over a period of time between the charging of the respondent and 29th May 2002, at which time the matter was adjourned at the local court to allow the respondent's legal representatives the opportunity of familiarising themselves with the evidence.

50 I can discern no error in the approach taken by his Honour in the quantification of the discount appropriate to the respondent's plea of guilty. I accept, as the Crown has submitted, that the degree of contrition inherent in the respondent's plea of guilty was minimal, given the overwhelming nature of the Crown case. Indeed, the respondent's false account to third persons of his role in the commission of the offence militated against the recognition of any significant contrition. Be that as it may, the plea of guilty was indicative of a willingness to facilitate the course of justice, insofar as any trial of the offence would have been complex and lengthy. The gravamen of the Crown's complaint on this appeal resides in the quantification of a composite discount of 45 percent in order to take account of the respondent's plea of guilty and his assistance to authorities.

51 In the course of the proceedings on sentence on 15th July 2005, his Honour notes that "one matter that has to be taken into account in calculating an appropriate discount is the extent to which cooperation in Australia to prosecute someone in Holland affects his circumstances of custody here and his safety here. …. [If] one is giving evidence against people in Australia in relation to things that affect people that may be jailed in Australia, one's threat of danger in custody is far greater in that circumstance than giving evidence about some national in another country." The respondent's Counsel submitted that the respondent's vulnerability arose from his status as "a dog". His Honour countered by saying "anyway, I might need some evidence on that". It was at all times acknowledged that the respondent was not in strict custody. No evidence was called on behalf of the respondent tending to establish that the respondent was in any way at risk within the prison system.

52 It is somewhat surprising therefore, that the following appears in the course of His Honour's remarks on sentence (at 28): -- Although the prisoner's offer of cooperation in relation to matters affecting proceedings in Australia was not altogether timely and was regarded as of little or no value, it would appear on the chronology of events available to this court, the cooperation with the authorities in the Netherlands was relatively timely and was of significance to that investigation, adding to the material available to the authorities. Further the prisoner's cooperation extended beyond simply giving statements, but to giving evidence, implicating offenders in the Netherlands. One must assume that for the prisoner there is some element of risk in this cooperation . (emphasis added).

53 Shortly thereafter, His Honour noted that "the offer of assistance to the Australian authorities is some evidence of contrition. The assistance to overseas authorities was of significant practical value, although not of the highest order as urged by his counsel." In the light of the acknowledgement by his Honour that the respondent's assistance to the Australian authorities was tardy and regarded as of little or no value, the contrition inherent in that assistance was correspondingly slight. It was however, open to his Honour to find that the respondent's assistance to the overseas authorities was of some worth. The question remains whether a composite discount of 45 percent was excessive in the circumstances of this matter. 54 While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender. 55 It is helpful at this point to review the considerations which underpin the allocation of a discount for assistance to authorities. In R v Perez Vargas (1986) 8 NSWLR 559, Street C. J. reviewed the English authorities which were adopted for the purposes of guidance in the quantification of a discount for assistance. A significant factor in the English case law was the hardship occasioned to a prisoner who provided assistance to the authorities, both in respect of the serving of a sentence and upon release to the community. (See also R v Hayes (1981) 3 A Crim R 286). To similar effect is the discussion by Gleeson C. J. in R v Gallagher NSWCCA 16 May 1991 (unreported) : -- "The authorities which discuss the relevant principles demonstrate that, where an offender is entitled to have assistance to authorities taken into account in his favour, that will usually be upon a number of grounds,…. The considerations that are relevant are discussed in R v Perez Vargas (1986) 8 NSWLR 559. There is what might be called the utilitarian consideration involved in encouraging persons to provide information which will permit the apprehension and successful prosecution of other offenders. …. Other considerations that enter into the matter include the remorse or contrition which may be demonstrated in a given case by cooperation with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having co-operated. …. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations."

56 Bearing these considerations firmly in mind, I regard a discount of 45 percent as excessive in the circumstances of this case. The respondent's assistance could not, in my view, be characterised as assistance of a very high order. Whilst the respondent's evidence in the prosecution of Jeff and Eric contributed to the case against them, it was but part of the material upon which their convictions were based. As I have already noted, there was little in the way of contrition (expressions of remorse to the psychologist and to the Probation and Parole officer were of dubious value), and no evidence of any personal risk to the respondent or to any member of his family. There was no evidence of any hardship occasioned to the respondent, arising directly out of the provision of assistance to the authorities in the Netherlands. His Honour was being unduly generous to the respondent in assuming that such a risk necessarily resulted from the respondent's assistance. His Honour's approach to this issue on 15 July 2005 was, in my opinion, the correct one. I consider that a composite discount of 35 percent would have been appropriate to the recognition of both the respondent's plea of guilty and his assistance to the authorities, such as it was. The Sentences Imposed upon the Co-offenders

57 Of the seven persons sentenced for the importation offence (including the respondent), the respondent was, at the very least, a co-principal. There was no known person in Australia who could be said to have occupied a higher position within the hierarchy than the respondent. The co-offenders Louis Sukkar, Shepherd and El Hani pleaded guilty to the same offence as the respondent. The co-offenders Prasad, Steven Sukkar and Choi pleaded not guilty to the same offence. Insofar as the Court may be assisted, in determining whether the sentence passed on the respondent was manifestly lenient, by a consideration of the sentences passed on the relevant co-offenders, it is instructive to have regard to the sentences imposed on Shepherd and El Hani. The sentence passed on the respondent's brother and co-offender Louis Sukkar has already been the subject of detailed examination at paragraphs 36 and 37 above. 58 Shepherd received a sentence of 14 years imprisonment with a non parole period of nine years at first instance. His appeal to this Court was allowed, resulting in the reduction of his sentence to one of 11 years and six months, with a non parole period of seven years and four months (R v Shepherd [2003] NSWCCA 287). Shepherd successfully argued that a discount of 20 percent for the plea and his assistance was inadequate in the circumstances of his case. This Court determined that Shepherd's assistance went beyond that concerned with the offence for which he was to be sentenced and that his disclosure had been full and frank in relation to his role and that of others in the importation of the drug. This Court substituted a discount of 45 percent to reflect the plea of guilty, together with past and future assistance. Shepherd's role in the commission of the offence is set out at paragraph 10 of these reasons. He was to be paid $25,000 in return for arranging for the clearance of the proposed consignment through Australian Customs. 59 El Hani received a sentence of 15 years' imprisonment with a non-parole period of 10 years. That sentence was confirmed on appeal to this Court (R v El Hani [2004] NSWCCA 162). The finding of the sentencing judge that El Hani was "a senior person in the organisation who played an important managerial role when the drugs had been substituted", albeit not a principal, was also confirmed by this Court. A discount of 25 percent was allowed for the offender's plea and assistance. The quality or the assistance provided by El Hani was described as limited, in that the offender was not totally honest or frank in relation to his own involvement, whilst at the same time providing information in relation to the roles of Steven Sukkar and Shepherd, which added nothing to the strength of the prosecution case against those persons. An offer by El Hani to give evidence for the Crown in the prosecution of Stephen Sukkar was rejected for these reasons.

60 When one has regard to the sentence imposed upon the respondent, it is immediately apparent that a head sentence and non-parole period so far below that imposed upon El Hani cannot possibly sufficiently reflect the objective criminality of the respondent. In one respect, this disparity further illustrates the error inherent in the choice by his Honour of the respondent's brother Louis Sukkar as the appropriate co-offender for the purposes of parity. Had his Honour had regard to the sentence imposed upon El Hani, and the comments of this Court in the course of El Hani's appeal, the respondent could not have received a discount in the order of 45 percent (particularly in the light of the similarities between El Hani and the respondent in terms of the quality of their respective assistance), nor could the final sentence be allowed to stand.

61 Similar considerations apply when one has regard to the sentence imposed upon Shepherd. The non-parole period ultimately imposed upon Shepherd is only 14 months below that imposed upon the respondent. The head sentence imposed upon the respondent is a mere 21 months more than that ultimately imposed upon Shepherd. The major role of the respondent, taking into account the relatively poor quality of his assistance compared to that of Shepherd, should have been reflected in a head sentence and non parole period of a significantly higher order than is suggested by this direct comparison.

62 I have come to the view that the sentence imposed upon the respondent is manifestly inadequate. I should indicate that such would have been my conclusion, disregarding the sentences imposed upon the co-offenders. However, I am fortified in that conclusion by the analysis set out immediately above.

63 Having regard to the principles relevant to Crown appeals as summarised in R v Wall [2002] NSWCCA 42 and confirmed by this Court on a number of occasions since then, I would decline to exercise the discretion to refuse to intervene in the circumstances of this matter. It is therefore necessary to proceed to re-sentence, on the basis that the sentence to be imposed will be less than that which should have been imposed at first instance. There is no need to revisit the respondent's subjective case. This was a calculated, well-executed importation of a very large amount of MDMA, which was capable of releasing into the community a vast quantity of that prohibited drug. I regard a starting point of 45 years' imprisonment as appropriate to the scale of the importation and the pre-eminent position occupied by the respondent in the hierarchy. 64 Some brief remarks are necessary in order to explain why the respondent is to receive the benefit of the discount pursuant to the now-repealed section 16G Crimes Act (Cth). Whilst the commission of the offence and the respondent's plea of guilty occurred before the repeal was effected, that is before 16 January 2003, the transitional provisions of the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) applied the amendments "whether or not the offence concerned was committed before the amendment commenced." In R v Speer [2004] NSWCCA 118 this Court held that, where a relevant offence was committed and a plea of guilty was entered before the repeal of s 16G, the offender should receive a sentence at first instance consistent with the application of s 16G, notwithstanding the imposition of sentence after 16 January 2003. Such an approach was said to be appropriate in the exercise of the court's general sentencing discretion. In R v Schofield [2003] NSWCCA 3 the same approach was taken by this Court when proceeding to re-sentence, however that decision is distinguishable on the basis that the sentence at first instance was imposed before the repeal of s 16G. In R v Sukkar [2005] NSWCCA 55 the applicant pleaded guilty after the repeal of s 16G, yet still received the benefit of it, on the basis of a concession by the Crown that general discretionary considerations operated in circumstances where the co-offender Shepherd had been sentenced while s 16G was still in force. The Crown's representative before Norrish QC DCJ and before this Court made the same concession in respect of the respondent. 65 In the light of that concession, I have not found it necessary to reach any concluded view on this issue. I am by no means persuaded that parity arguments alone justify the application of s16G to a co-offender who pleads guilty before its repeal, but is sentenced after repeal, much less where both the plea and sentence occur after repeal. The particular circumstances may enliven general discretionary considerations in one case but not in another. In the present circumstances, applying s16G to the proposed sentence, and a discount of 35 percent in order to reflect the respondent's plea and the extent of his assistance to the authorities, I propose the imposition of a head sentence of 20 years' imprisonment, with a non-parole period of 12 years' imprisonment. At no stage did the Crown suggest that the finding of special circumstances was in error. 66 The proposed orders are :-

2. Sentence imposed by Norrish QC DCJ on 2 September 2005 is quashed.

3. In lieu, the respondent is sentenced to a term of 20 years' imprisonment, to date from 5 December 2001, expiring 4 December 2021, with a non-parole period of 12 years, to date from 5 December 2001, expiring 4 December 2013. **********

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