REGINA v. PEJOVSKI [2001] NSWCCA 182

No. 60811 of 2000 CORAM: HODGSON, JA. GREG JAMES, J. ADAMS, J.

1 GREG JAMES, J: The applicant for leave to appeal against sentence was convicted, following his trial in the District Court of New South Wales, on one count of attempting to obtain possession of prohibited imports, an offence under the Customs Act 1901, s.233B(1)(c). He was sentenced to six years imprisonment with a non-parole period of four years, the sentence and non-parole period to date from 14 July 2000. 2 The short circumstances of the offence were recited by the learned sentencing judge in his remarks on sentence. The applicant had attempted to obtain possession of a prohibited drug, namely methylene dioxymethamphetamine, commonly known as ecstasy, in an amount not less than the trafficable quantity. This drug had been imported into Australia in contravention of the Customs Act 1901. The maximum penalty for the offence is 25 years imprisonment. 3 On 7 December 1997 customs officers detected the drugs, which had a relevant pure weight of 214.4 grams, in a package addressed to Beck Architectural Company, 73 Vaumans Road, Peakhurst. The package had been sent by a person named Vlado in Belgium. 4 There was no such road in Peakhurst. A person phoned Australia Post from Belgium, asking about the package, and was told that it had been incorrectly addressed. 5 Later, a phone call was made to Australia Post, saying that the correct address was 73 Baumans Road, Peakhurst. That was the prisoner's address. He was, at the time, engaged in the process of doing extensive renovations to his home. 6 A controlled delivery was attempted by Australian Federal Police. The prisoner was not in attendance at the time, so a calling card was left. The prisoner later rang and made arrangements for the delivery of the package and, on the occasion of that delivery, the prisoner identified himself as being the person who could receive the material on behalf of Beck Architectural. 7 He signed for the package. He took it, wrapped it in a t-shirt, placed it in a plastic shopping bag, and put it in a filing cabinet in his shed, which he then locked and, in due course, provided the key to his co-accused, Messieurs Bunevski and Rahme, who went to the prisoner's shed and collected the package. He had provided the key after arranging a meeting with Bunevski. 8 Prior to that meeting, he had rung the person Vlado who had been responsible for the importation of the package into Australia from Belgium, no doubt to inform him that the package, notwithstanding its incorrect address, had been delivered. 9 It was his defence at trial that he was an innocent dupe. At trial, the trial judge noted, the accused had asserted that he had been rung by Vlado to pick up a parcel on his behalf, which he should not open. He was told by Vlado, having rung after receipt of the parcel, to contact Bunevski and pass the parcel to him. That innocent explanation was not accepted. It is not surprising. 10 The learned trial judge held, on the basis of those facts, that the prisoner played an important role in the attempted importation, in that his role was central to the receipt of the drugs and the intended distribution of the drugs. He said:- "However, I am unable to say that his role was greater or lesser than the others." 11 The learned trial Judge noted that the offence was a serious one, that the quantity of drugs was some 428 times the trafficable quantity, with a considerable street value. 12 On the other hand, he noted that there were favourable subjective circumstances in the applicant's prior life and behaviour. He had lived a simple life prior to emigrating to Australia, and a decent life here, with long term employment. He had been a dedicated husband and father and, according to the large number of testimonials from various members of his community, he was a person who had put a lot of time and effort into that community, thus attracting a high reputation. 13 The only other matter on which he had come before the courts was for a traffic offence of driving with the prescribed concentration of alcohol. 14 In respect of that good character, his Honour observed:- "I accept that the prisoner was of previous good character, however, due to the type of offence he has committed, not a lot of weight can be given to that matter." 15 His Honour adverted to the numerous pronouncements of the courts concerning the necessity to deter those that play a part in this evil trade, and had regard to the various matters to which his attention was required to be given under s.16A of the Crimes Act 1914 (Cth). 16 His Honour then turned in his remarks on sentence to the sentences of the co-accused. In respect of the man Rahme, his Honour had been provided, by the prosecution, with a three page note of considerations that had been expressed by Rahme's sentencing judge, Judge Wall. 17 The offenders had come to be sentenced separately, since this offender had not been found guilty at an initial trial with the others before Judge Wall and had gone to trial subsequently before the sentencing judge. 18 No advertence was then made by either Judge Wall or the sentencing judge to what course was likely to be taken in relation to the third offender, Bunevski, since his sentence had, at the time of the sentencing of both other offenders, been put over, due to a heart condition. Subsequently, we are informed he was sentenced to the same sentence as was passed on his co-offender. 19 Here, his Honour noted that Judge Wall had sentenced Rahme to six years imprisonment with four years non parole. His Honour noted that that was a sentence passed, notwithstanding that Rahme had a previous drug offence, but in a context where that offence was very old. His Honour said:- "I am satisfied that parity is desirable between the offenders. In addition, I do not see any reason to order a non parole period different to that which was set in Rahme's case." 20 His Honour then passed the sentence of six years imprisonment, but to date from 14 July 2000, taking into account previous custody, and directing a non-parole period of four years, which thus would expire on 13 July 2004. 21 Various grounds are asserted to show that his Honour fell into error. They include that his Honour erred in considering that the applicant's prior good character should be disregarded, or at least given "not a lot of weight", for this type of offence. 22 It was asserted that his Honour had erred in failing to discount the sentence for good character in itself. It was also asserted that his Honour had erred on a parity basis, he having sentenced on that basis, in failing to give to the applicant the benefit of his prior good character in circumstances where it was clear that Rahme was not entitled to such a benefit, the judge who sentenced him having held of Rahme:- "The approach I take in relation to his criminal antecedents is to note the record and to view the history of the drugs as being a matter which prevents the prisoner from having the benefit of being considered a first offender and that his criminal history does not assist him in that regard." 23 It was also asserted that Judge Wall had fallen into error in regarding the quantity of drugs as falling in the upper level trafficable quantity category, and reference was made to the decision of this court in the guideline judgment of Regina v. Wong & Leung (1999) 108 A. Crim. R. 531. It was asserted that the error seems to have been carried forward by some sort of silent but implicit acceptance into the sentence of this applicant. 24 For my part, I am not satisfied of that, or of the other asserted error; that is, that the role of the offender should have been estimated by the trial judge other than as he did; that is to say, on the basis his Honour was unable to say that his role was greater or lesser than the others or was a lesser role comparable with a bare or mere courier. 25 In respect, however, of the argument that his Honour failed to have regard to the offender's prior good character, whilst I am not satisfied that in respect of the head sentence such significant weight should be attached to that matter that one could conclude that there was a manifest disparity warranting interference, I am satisfied that when his Honour came to consider the question of the non parole period he did not afford to this matter such significance as was necessary. It appears that his Honour has simply proceeded to fix the non parole period on a comparison with that fixed in Rahme's case, without regard to this particular circumstance, which bears so much more heavily on the appropriateness of a non parole period as allowing an opportunity for rehabilitation in the context of the prospect of the individual to be rehabilitated. 26 Judge Wall had found Rahme's prospects for rehabilitation, in consequence of his prior offences having been some time ago and in consequence of his expression that he was abandoning the taking of drugs, to be fair. To compare that with this applicant's entirely satisfactory previous character is, having regard to how prior good character has been referred to in Ryan v. The Queen [2001] HCA 21, in my view, to err, particularly by mistaking the impact of the matters that need to be considered on fixing a non-parole period. 27 In those circumstances, I have come to the conclusion that his Honour fell into error in fixing the non parole period, though I am not persuaded that there is any other error such as would warrant interference by this court. That interference, of course, is only to be made in cases where some other sentence, warranted in law and significantly less, should have been passed. So, I have concluded that in this case it is appropriate that the non parole period should be reduced by a figure of some six months. I would propose, in that regard, that leave to appeal should be granted and the appeal upheld, but only insofar as the non-parole period should be varied to provide for a non parole period of three years, six months, to expire on 13 January 2004. 28 HODGSON, JA: I agree. 29 ADAMS, J: I also agree. 30 HODGSON, JA: The order of the court is leave to appeal is granted and the appeal is upheld in relation to the specification of the non-parole period. The non-parole period is now specified as a period of three and a half years, commencing 14 July 2000, and expiring on 13 January 2004. ********

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