Regina v Markar [2000] NSWCCA 72 | Case summary

2 ABADEE J: The applicant seeks leave to appeal out of time against a sentence imposed on 27 November 1998 by Judge Christie in the District Court. 3 The applicant was sentenced to imprisonment by way of a head sentence of six years and six months with a non-parole period of four years and six months to date from 6 October 1998. As at the date of the sentence, 27 November 1998, the applicant had been in custody for a period of approximately six months. 4 The applicant on the 6 October 1998 pleaded guilty to an offence of attempt to obtain possession of prohibited import on 14 October 1997. The offence, under section 233B(1)(c) of the Customs Act (1901), related to narcotic goods consisting of a quantity of cocaine which had been imported into Australia and being not less than the commercial quantity relating to cocaine. As his Honour stated in his reasons for sentence, the cocaine was found to be 69 percent pure, had a net weight of 2.635 kilograms of pure cocaine and was said to have a street value of approximately $1.5 million. On any view, his Honour's statement that the amount of cocaine imported was a very substantial amount could not be challenged. 5 It is appropriate for me to state that the maximum penalty imposed is one of life imprisonment. It is also appropriate for me to observe that whilst it is not essential as an aspect of sentencing to attempt to identify with precision the exact role played by the applicant in the present instance, his Honour described the applicant as being at or about the level of a courier. As his Honour also said (page 4 of the sentencing remarks), it is perfectly obvious that the applicant was aware of the enterprise with which he was involved and in respect of which he was arrested and charged and that was a matter that clearly carried considerable weight with his Honour. 6 Against this background, I turn to briefly to consider in greater detail the objective facts and a consideration of the nature of the enterprise in which the applicant was involved. There is no challenge to his Honour's findings of fact for sentencing purposes. It appears that on 10 October 1997 an Express Mail Service package addressed to an electronics communications company in Sydney was intercepted. In the particular container was a satellite receiver. Located within it was a commercial quantity of cocaine, being the cocaine that I have described. The Customs notification card was sent to the consignee's address. 7 The applicant was telephoned on 13 October 1997 by a co-offender, who the Judge in later sentencing remarks considered to be the principal; if not, possibly the major player in the entire enterprise. Be that as it may, a conversation took place between the applicant and the co-offender which his Honour considered demonstrated, as I have already indicated, that there was an expectation, including an expectation on the part of the applicant, that the package that arrived contained imported cocaine. Indeed, his Honour specifically found that the applicant, together with a co-offender, had driven to the Mail Exchange where the applicant left the vehicle, entered the Mail Exchange and returned with the consignment which he then placed in the boot of the vehicle. One of the co-offenders, indeed the suggested principal, was waiting in the vehicle when such occurred. 8 From his sentencing remarks, it is quite clear that his Honour found that a very significant monetary gain was to be made by the participants, including that of the applicant's. Such as is undoubtedly a correct statement of the real situation. 9 Whilst in his sentencing remarks his Honour stated that the Crown had submitted that the case against the applicant could not be considered to be a strong Crown case, his Honour nevertheless said that that was something which differed from his own view of the materials placed before the court. I can understand why his Honour said so. Be that as it may, his Honour nevertheless stated that he was prepared to sentence the applicant upon the basis inter alia of the Crown's statement. Further, his Honour said that the applicant was entitled to a not insignificant consideration in relation to his entry of a plea of guilty and such was clearly taken into account by his Honour. 10 The applicant, as I have said, was sentenced to a non-parole period of four years and six months. A number of matters have been put before the court by the applicant's counsel, and by way of written submissions. He has further summarised them in oral submissions this afternoon. Three particular matters have been advanced on behalf of the applicant. 11 First of all, it is submitted that the actual sentence that was involved, which was one of six and a half years with a four and a half year non-parole period, was in fact an excessive one and that in the circumstances, the applicant should have been sentenced to a non-parole period less than the four and a half years actually involved. 12 Then it was argued by the applicant, as I would understand it, that when regard was had to the relationship between the non-parole period and the head sentence that this too, was an additional reason, for concluding that the non-parole period was an excessive one. In respect of the appropriate ratio, the Crown in its written submissions has submitted that on one view the appropriate ratio was 69 percent, on another view advanced by the applicant it was submitted that it perhaps was in the order of 75 percent. Mr McCrudden, properly conceded that the matter was however a discretionary matter. 13 The authorities do not in my view suggest that the ratio is one that is fixed and immutable, irrespective of the circumstances. Mr McCrudden as I have indicated conceded that it was a discretionary matter, a concession which I consider was one properly made. I do not consider that there is substance in the proposition that the non-parole ratio was an erroneous one and that therefore the non-parole period too was an inappropriate one. 14 Next it was submitted by Mr McCrudden that there was inappropriate weight given to the plea of guilty made by the applicant. In my view, his Honour gave due and appropriate weight to the plea of guilty in the circumstances and I see no error in what his Honour did. 15 Mr McCrudden submitted that the question of a reduction for a plea of guilty, which in this case he calculated as being in the order of 12 and a half percent, was inadequate and inappropriate. Mr McCrudden accepted that there was no need for his Honour to give a discrete percentage adjustment, and in my view such is a correct approach. 16 Ultimately, Mr McCrudden accepted, and I believe he is correct in this approach, that the matter of the appropriate reduction was one really going to a matter of discretion. Looking at that question in terms of a matter of discretion, I am unable to see error involved in what his Honour did or any error involved in terms of failing to give adequate weight to the matter or factor of cooperation. It was clearly taken into account and his Honour said so. 17 Next, Mr McCrudden turned to the actual construction of the sentence submitting that in the circumstances the sentencing judge erred mathematically or otherwise in the non-parole period calculation. It was submitted in oral argument, as indeed it had been submitted in written argument, that in the circumstances of this case what happened was that because of the six months that had been served pre-sentence, that such was not properly reflected and taken into account by his Honour in sentencing. It was argued that what his Honour had really in fact done was to impose a head sentence of seven years, with an inadequate failure to reflect both in that head sentence and in terms of the non-parole period, the proper allowance that should have been made for the six months pre-sentence custody. 18 It is true that there is some obscurity in his Honour's language, and it is perhaps also true to say that some of his Honour's remarks, particularly when explaining the question or effect of the sentence to the applicant, could give rise to some degree of confusion. Accepting for the purposes of the argument that Mr McCrudden is correct, that his Honour failed to properly bring into account the six months pre-sentence custody that the applicant had served, that still leaves open the question at the end of the day as to whether or not this Court should interfere in the sentence that was imposed. I am prepared to assume that there is some mathematical error, but at the end of the day, even if error has been shown in the sentencing reasons, it does not follow that the Court need vary the sentence. Indeed it generally perhaps ought not do so unless it believes that a more lenient sentence is warranted in accordance with the provisions of the Act (see R v Astill [No 2] (1994) 64 A Crim R 289). 19 Having regard to the circumstance of this case; the applicant's involvement, the amount of cocaine, and indeed the street value of the cocaine, and having regard to his Honour's finding, I would not be satisfied that even accepting that some mathematical error has been shown that some other sentence should be imposed by this court. Indeed, I would not consider it appropriate to impose a lesser sentence upon the assumption that the mathematical argument has been made good or, indeed, that any other argument has been made good by Mr McCrudden. 20 It seems to me then that in the circumstances no fresh sentence is warranted. There is no ground or basis for redetermining the sentence. I would propose that in the circumstances, leave to appeal against the sentence be allowed, but I would propose that the appeal be refused. 21 FITZGERALD JA: I agree. 22 BARR: I also agree. 23 FITZGERALD JA: The orders will be as proposed by Justice Abadee.

Regina v Markar

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Judgment (9 paragraphs)

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