24 In approaching the Sentencing Judge's findings it is important to note his Honour's reference to R v Olbrich and his Honour's observations to the effect that what was important was an assessment of what the applicant did rather than identifying precisely his position in a hierarchy. In my view the Sentencing Judge's observations show that he understood and correctly applied the passage in R v Olbrich.
25 Although the relevant positions of the applicant and Choi, to which much time and attention were given, both before the Sentencing Judge and on appeal, do not have the importance attributed to them, it is quite clear that the Sentencing Judge did not accept as a matter of fact that the applicant was in some way answerable to Choi or acted under his direction. It can be clearly understood, and is altogether clear from observations in the Remarks on Sentence, that the Sentencing Judge did not find the applicant's evidence on this subject persuasive and hence did not accept it. The remainder of the findings in the passage I set out is fully justified by passages in the Statement of Facts which the applicant did not dispute.
26 On behalf of the applicant it was contended that the Sentencing Judge failed to address evidence of the applicant in relation to the extent of his knowledge. It was said that lengthy submissions were made to his Honour regarding the applicant's role in the offences, that the applicant gave lengthy evidence, and that his Honour failed to address in any meaningful way those submissions or to evaluate the evidence of the applicant. It was said that the Sentencing Judge appeared to adopt the submissions advanced on behalf of the Crown without exercising a judgment that should normally be exercised where issues of credibility and reliability are before the Court. It was said that in this respect the sentencing discretion miscarried, and was open to re-exercise on appeal.
27 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 negotiations with the suppliers in Europe, and the Trial Judge distinguished his position from that of Joseph Sukkar. In his evidence in chief (Appeal Book p116) the applicant stated: "Well [Choi] had to come and explain everything because I knew nothing about the importation. All I did was go to Brisbane and bring the drugs back to Sydney. I did not know the ins and outs of everything …" The transcript of a telephone conversation between the applicant and another participant on 24 November 2001 recorded among other things the applicant saying: "Yeah, so basically we've had $14,000,000 worth of things go missing" and "I'm the smallest player." 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.
28 In the course of his evidence the applicant affirmed that in his view he was the smallest player and gave his reasons, identifying whom he saw as the main players, and said that he did not have as much knowledge of the operation as Joseph Sukkar - "No, I hardly had any knowledge really" (Appeal Book 112). He stated that his participation in collecting paperwork relating to shipping arose from a request from Joseph Sukkar. The applicant's Senior Counsel pointed to a number of aspects of the evidence which he contended supported the view that the role taken by Joseph Sukkar in the importation was at a higher level than that taken by the applicant. Counsel performed a similar review of evidence relating to the respective role of Choi in relation to that of the applicant; there were a number of respects in which Choi knew of or attended to aspects of the importation for which it was claimed that the applicant had no knowledge or no responsibility. It was to Choi and to arrangements with Choi that the applicant looked for any money to come to him out of his involvement, including payments specifically relating to his participation in collection and transport of the tablets when imported, and also arrangements for the applicant to sell what he understood was part of Choi's share of twenty percent of the importation, and to receive part of the proceeds of sale, which he foresaw could be up to $100,000.
29 To my mind there is a marked contrast between the position of the applicant in the venture as depicted by his evidence, which shows him to be a person of small ability, bewildered and subordinate, and his position as it appears from the intercepted conversations. The transcripts show that he took an active and informed part in the importation as revealed by his participation in significant activities, including hiring vehicles, transportation of the tablets, his use of means of concealment of identity, his participation in unloading the tablets from the cool room columns, storage, disposition of the cool room columns, and telephone and other communications with persons involved. The transcripts also depict the applicant's extensive knowledge of important aspects of the importation, particularly financial aspects, revealed by his conversations; his pursuit of paperwork relating to shipping and his professed interest in their contents, and the intensity of his interest in the size of the loss and in the prospects of vengeance against Choi. What the applicant said in evidence about his role has no inherent probability. His own depiction of his position is entirely irreconcilable with things which are objectively certain on other evidence.
30 Cross-examination of the applicant by counsel for the Crown was extensive, but not, on the face of the court transcript, altogether productive. In the context of what the applicant asserted in his evidence, I do not find it surprising that the Sentencing Judge rejected the applicant's evidence out of hand. His evidence is so improbable that it had, in my opinion, little claim on the Sentencing Judge's attention. The reasons which the Sentencing Judge gave make it plain that the applicant's evidence was not accepted, and in the context including the nature of what had been asserted, a mass of other evidence including telephone intercept transcripts, and the course of the hearing and the challenges made in cross-examination, this should not reasonably have caused any surprise or sense of grievance. A close analysis of a body of material so markedly anomalous with agreed facts was not called for in the course of just disposition of the issues.
31 In a further submission Senior Counsel complained that the Sentencing Judge had not given reasons for rejecting the evidence of the applicant which tended to indicate that the applicant had a relatively minor role in the importation, and that the exercise of sentencing discretion was vitiated because the basis on which the evidence was not accepted had not been stated.
32 With respect to a sentencing decision, as for other decisions, fair disposition of proceedings usually requires that reasons be given for findings on facts significant for the outcome. The evidence of the applicant took some hours on three sitting days, and there were many challenges by counsel for the Crown cross-examining the applicant which it seems fair to say that the applicant withstood, without making much in the way of concession, in cross-examination. A contention that there was an error on the part of the Sentencing Judge in not stating reasons for not accepting the applicant's assertions in evidence about his relative position attributes importance and centrality to those assertions which they do not have. The subject was incidental to the sentencing process and no more. Exposition is required of reasoning process on "…real and relevant issues of fact which are necessarily posed for judicial decision…" see Pettitt v. Dunkley [1971] 1 NSWLR 376 at 382 (Asprey JA); and see also Soulemezis v. Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. It is in my opinion necessary to guard against attribution of importance to an issue for the reason only that it is not mentioned in the judgment.
33 In my opinion the applicant's many assertions in the course of his evidence to the effect that his part in the importation was relatively small did not have the importance which his counsel's submissions attributed to them. Participation of the applicant in the importation, detailed in the findings of the Sentencing Judge was, on any view, quite important for the overall accomplishment of the importation, and it is to this rather than any apposition of the culpability of the applicant with that of Joseph Sukkar or of Choi that his Honour gave most of his attention. 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. The same view applies to the supposed apposition between the participation of the applicant and Choi.
34 In my opinion there is no failure of procedural justice in respect of the degree of exposition of the reasons for findings on facts which were made by the Sentencing Judge.
35 In the course of his Remarks on Sentences the Sentencing Judge reviewed and dealt with matters set out in s.16A(1) of the Crimes Act 1914 (Cth) and referred to the considerations of general deterrence, severity appropriate in all the circumstance of the offence, and the absence of prior conviction; and also referred to the applicant's expression of remorse, and to his contrition which the Trial Judge found was genuine. While dealing with contrition the Sentencing Judge found (Appeal Book 328) "True it is that there was an overwhelming prosecution case, but I do not think that that detracts from his obvious expression of remorse and of his contrition."
36 The Sentencing Judge also took account into a Probation and Parole Service Pre-sentence Report prepared by Ms C A Perry, Probation and Parole Officer, which dealt with family and social factors affecting the applicant, including his employment history, gambling habit and drug usage. In relation to his attitude to offences it was reported: (at Appeal book 350)
Attitude to offences: Mr Sukkar stated that he pleaded guilty to the charges, saying that he was asked to pick up the drugs from Brisbane and store them in his garage. He said he did not know the quantity but that he just did it without asking questions. Mr Sukkar stated that he was promised $8,000 and needed the money to live on and pay gambling debts. He admitted that he did not consider the consequences and further stated that it is the worst thing he has done in his life and that it has ruined his life.
37 Under Summary and Sentencing Options Ms Perry reported:
Mr Sukkar presents as an unassuming and frank person whose life appears to have been de-stabilised by his separation/divorce. It is worth noting that whilst family members were convicted of cultivating marijuana when he was growing up, Mr Sukkar himself did not take up smoking marijuana until he was twenty. In addition, his current relationship is more conducive to his marijuana use and gambling and this does not augur well for him addressing these issues. During his incarceration he should seek help with his gambling and drug addictions. Upon release he may benefit from supervision and guidance of this Service.