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