Regina v Szelenczy

JUDGMENT 1 IPP AJA: This is an application for leave to appeal against sentence. On 25 August 2000 the applicant pleaded guilty before Mahoney DCJ to a charge that, at Sydney, between 15 and 23 December 1999, he imported into Australia not less than the trafficable quantity of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901. 2 A trafficable quantity of cocaine for the purposes of the Customs Act is between 2 and 2000 grams. The total weight of the substance imported was 953.3 grams. The cocaine was found to be 65 percent pure, meaning that the weight of pure cocaine imported was 614.4 grams. 3 The maximum sentence for the offence is 25 years imprisonment and/or a fine of $100,000. (S 235(2)(d)(i) of the Customs Act.) 4 The applicant was sentenced to imprisonment for a period of 9 years with a non-parole period of 5 years. 5 I shall set out in summary form the facts in relation to the commission of the offence. 6 On 19 November 1999 a co-accused of the applicant, Toni Cerullo booked for the applicant and his wife to fly from Sydney to Budapest then to Frankfurt and then to return to Sydney on 23 November 1999. The applicant flew alone on that journey that day. Before embarking on his flight in Sydney he met with another co-accused, Jim Soukoulis. 7 Senior counsel for the applicant submitted that Cerullo and Soukoulis were the moving lights in the drug transaction that followed, and have a higher degree of responsibility in that transaction than the applicant himself. I accept that submission. 8 On 17 December 1999 the applicant arrived in Sydney by air from Europe. Customs searched his belongings and found a DHL shipping label for a parcel of documents sent from Frankfurt to himself in Rose Bay. 9 Over the next few days the applicant exchanged telephone calls with a number of people including Soukoulis and Cerullo in which the lack of developments in relation to the arrival of a parcel in Sydney were discussed. They were mainly concerned with the fact that the parcel had not arrived. 10 On 21 December DHL employees discovered a DHL parcel consigned to the applicant at his Rose Bay address from a Joseph Kovac of 3 Essington Street, Frankfurt. The parcel had been mistakenly diverted to Austria from Frankfurt instead of being delivered to Australia. This was the cause of the delay that had given rise to such anxiety on the part of the applicant and the others. 11 Soukoulis and Cerullo on 22 December met in Sydney and travelled to the applicant's Rose Bay unit. That night, the parcel, which had arrived in Australia, was located in DHL and x-rayed by Customs. It was found to contain a large hard covered bible. Inside the hollowed out core of the bible was a wax covered block of cocaine wrapped in tape and covered in gel. 12 Later that day the parcel was delivered to the applicant at his Rose Bay unit. Soukoulis and Cerullo were with him when it was delivered. Those persons left the applicant's unit and they were arrested. 13 Shortly afterwards, the police entered the applicant's unit and found him with $1,000 in cash in each hand, with the parcel unopened on a coffee table. 14 It was submitted by senior counsel for the applicant in this Court that the $1,000 in cash in each hand was the only payment which the applicant had received for the transaction. There was no evidence (or argument) to this effect before the learned sentencing judge. The submission now raised was based solely on inference. It was said that the inference should be drawn from the mere fact that the applicant was found with this quantity of money as I have described. 15 I am not persuaded by the submission. In any event, I do not regard the degree of remuneration that the applicant received as being of much significance in this particular case, although I do accept that it may have a bearing on the degree of his responsibility with regard to the transaction as a whole. 16 After he had been arrested the applicant denied he knew Cerullo but admitted that he sent the parcel to himself from Frankfurt. He said at first that he met Joseph Kovac there, and Kovac asked him to convey the bible to Australia. The applicant said that he had the bible air freighted because he had bought too many books for himself. 17 Later it was found that the Frankfurt address and telephone number given for Kovac on the air freight documents did not exist. The applicant admitted completing these documents. That is to say, in effect, he admitted putting the false address and telephone number on the air freighted documents. 18 A primary argument raised on appeal was directed to the following remarks of the learned sentencing judge: "It was put to me by his learned senior counsel, that he ought to be regarded as having nothing more than a lowly role and that the arrival of Ms Cerullo in Europe just happened to occur while this offender was there as well. The coincidences and the unlikelihood of Ms Cerullo going to Europe in mid-winter for purposes other than associating with the importation is so unlikely as to make me reject the second portion of the proposition. Bearing in mind that the sender of the package was this offender, that he used an alias, that he used a false address in Frankfurt and a false telephone number, I am satisfied that puts him on the hierarchy at a higher level than what is sometimes referred to as a 'mere courier'." 19 It was submitted on the applicant's behalf that this finding was not justified and involved mere speculation. It was said that the applicant should not be regarded as a person any higher than someone low in the hierarchy of the organisation importing the cocaine. 20 This submission was directed to the guideline judgment of R v Wong and Leung (1999) 48 NSWLR 340 where a sentencing guideline was expressed as being intended to apply to couriers and persons low in the hierarchy of the importing organisation. According to this guideline the suggested sentence for low level trafficable quantity (being between 200 grams to 1 kilogram of cocaine) was 6 to 9 years imprisonment. 21 On this basis, having regard to the guilty plea and the other mitigating factors that are applicable, it was said that the period of imprisonment of 9 years with a non-parole period of 5 years was too severe. 22 In considering this submission it is important to bear in mind that, as Gleeson CJ and Gaudron, Hayne and Callinan JJ said in R v Olbrich (1999) 199 CLR 270 at 277, the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is not an essential aspect of the sentencing process, although in individual cases that kind of categorisation may be helpful. Their Honours pointed out (at 278): "Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia."

These remarks are particularly apposite in the present case. 23 Gleeson CJ and Gaudron, Hayne and Callinan JJ stressed (at 279): "it is always necessary, whether one or several offenders are to be dealt with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a "courier" or a "principal" must not obscure the assessment of what the offender did."

In the end what the applicant did is determinative of the sentence to be imposed in this case. 24 Significantly in R v Olbrich, their Honours went on to discuss the onus and standard of proof in sentencing. They said at 281: "It may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, to call evidence about it."

Their Honours then noted that in the proceedings before the primary judge the prosecution did not submit that the sentence should be increased because the appellant was a "principal". Rather, it was the respondent who submitted that the sentence should be mitigated because he was a "courier". In that event, their Honours said, "the respondent bore the burden of proving this fact. The judge was not persuaded of it." 25 It is apparent that, in the present case, the same situation obtained. Mahoney DCJ noted in his sentencing remarks: "It was put to me by his learned senior counsel, that he ought to be regarded as having nothing more than a lowly role and that the arrival of Ms Cerullo in Europe just happened to occur while this offender was there as well."

His Honour did not accept these submissions. The learned judge found that the criminal culpability of the applicant had to be determined by reference to his participation in the importation and, in particular, by reference to the fact that he apparently worked together with Ms Cerullo in Europe, that he sent the package with the cocaine from Europe to himself, that he used an alias, that he used a false address in Frankfurt and a false telephone number. In the result, his Honour found that the applicant played a significant role in, in fact, importing the narcotic drug into Australia. In effect, Mahoney DCJ applied the approach laid down in R v Olbrich to the letter. 26 In this Court, senior counsel for the applicant similarly submitted that in bringing in the cocaine the applicant was doing what he was told; he was a mere foot soldier occupying a very low rung in the hierarchy. The submissions made on behalf of the applicant hinged on the proposition that, as it was put, the applicant was a mere "courier". It was said that his participation in the transaction was minor, and should not mask the fact that he was a mere "courier". 27 There is little utility, however, in describing the appellant as a mere "courier", and then attempting to ascribe the degree of criminal culpability attaching to his conduct by simply by reference to the allegedly minor extent to which it could be said that he departed from this role. 28 The fact is that the applicant played a critical part in the transaction. This is demonstrated by the means he used to disguise his identity and to bring the cocaine into this country. The importation scheme was not unsophisticated and his role in it was significant. He was actively involved in the attempt to set up, as it were, a mirage of false facts so as to conceal from the authorities the importation of the drug. It is these matters to which the Court has to have regard when measuring the criminal responsibility for which the applicant is to be sentenced. 29 Senior counsel for the applicant then turned to the case of R v Ferrer-Esis (1991) 55 A Crim R 231, and based a series of arguments on it. He pointed out that in Ferrer-Esis the applicant was sentenced on a similar charge to 6 years imprisonment with a non-parole period of 3 and a half years. That it was said had to be compared with the substantial higher sentence imposed in this case. He drew attention to the fact that the quantity of pure cocaine in Ferrer-Esis was three times more than the quantity involved in the present case and rightly submitted that quantity is a significant factor in the sentencing exercise. He pointed out that in Ferrer-Esis the Court considered that there was no warrant for a discount for the plea of guilty whereas in the present case there was nothing to detract from the usual practice. So, he submitted, the respondent in Ferrer-Esis had displayed culpability greater than that of the applicant in this case. 30 I accept that the matters on which reliance was placed all carry weight. I am not persuaded by them, however, for the following reasons. 31 Firstly, and importantly, the respondent in Ferrer-Esis, in committing the crime of which he was charged, was found solely to have brought in a suitcase containing cocaine into this country. He did not otherwise participate in the transaction. This is to be contrasted with the far more significant role played by the applicant in this case. 32 Secondly, Ferrer-Esis is not the single touchstone against which all sentences in cases of this kind are to be compared. Since Ferrer- Esis, the case of R v Wong and Leung has established guidelines against which criminal conduct can be measured, even though the conduct concerned might not fall directly within that to which the guidelines are expressed to apply. Moreover, there have been several cases since R v Wong and Leung which bear on the issue. 33 Thirdly, due regard has to be had to the fact that Ferrer-Esis was a Crown appeal. 34 In the notice of the appeal the applicant claimed that Mahoney DCJ did not take into account the fact that hardship would be caused to the applicant because his family reside in South Australia. This submission was rejected by the learned judge, and in my opinion entirely correctly. I would simply paraphrase what I said in Heryadi (1998) 98 A Crim R 578 at 584. The applicant made a deliberate choice to participate in the criminal distribution in New South Wales of drugs, the trade known universally as being the cause of great harm and misery. He was content to import the drugs into this State, in the knowledge that the citizens of this State would suffer the consequences of his criminal acts. In these circumstances, to complain that he would be incarcerated in New South Wales and not in South Australia and he would miss his family is, in my view, futile. 35 Senior counsel for the applicant drew attention to the fact that the respondent is in a serious state of ill health, both physical and psychological. He is an alcoholic, and a compulsive gambler. Submissions were also made concerning the applicant's deprived upbringing, and the violence and abuse he had received as a child. 36 While these are undoubtedly factors of some relevance, I do not regard them as being of particular weight. In Quach v R [1999] WASCA 210 I said: "The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile. To argue that personal circumstances and antecedents have significant mitigatory force see, for example, Darwell v R (1997) 1994 A Crim R 35, Heryadi v R (1998) 98 A Crim R 578 and Musarri v R unreported CCA S Ct WA, Library No 980662, 17 November 1998."

These comments apply equally to trafficking in cocaine. 37 Senior counsel for the applicant drew attention to various other matters relating to the applicant's personal antecedents, including that he has a supportive and stable relationship with his wife and no relevant prior convictions. These matters are all covered by the remarks I previously made. While relevant, they too are not of particular weight. 38 In any event, the learned sentencing judge indeed expressly took into account several mitigatory factors relating to the applicant's personal circumstances. His Honour had regard to the applicant's early plea of guilty he had remorse and contrition. He had regard to the fact that the applicant sought treatment for drug and alcohol problems while in custody and is making genuine efforts to resolve his problems. His Honour noted that the applicant had strong family support and the applicant would obtain benefit from senior counselling and supervision. 39 The applicant committed the offences for monetary gain. It was said on his behalf, "The respondent was ill treated as a child which led to his alcohol and gambling addictions, which in turn led to financial difficulties, which again in turn led to the commission of the offence." Senior counsel for the applicant said that these matters should be taken into account in the same way as Simpson J is said to have suggested in the R v Henry (1999) 46 NSWLR (at 346 at 337 and 338). As I understand her Honour's remarks, however, they were substantially directed to the will of an individual being overborne or undermined by drug addiction. In my view, nothing said in that respect is comparable to the case where a person imports narcotic drugs into Australia for financial gain. There can be no question of the free will of the offender being overborne merely because he was in financial difficulty. The proposition merely has to be stated to be rejected. 40 Finally, it was submitted in general terms that, when all the relevant circumstances are taken into account, the sentence imposed was excessive as it substantially exceeded the guidelines in R v Wong and Leung. The present case, however, is not one to which the guidelines directly apply because it was not established that the applicant was a courier, or a person "low in the hierarchy of the importing organisation." The sentence, nevertheless, bears appropriate relation to the guidelines laid down. 41 All in all I am not persuaded that Mahoney DCJ made any error in principle, nor that the sentence imposed by him falls outside a sound sentencing discretion. I would refuse the application for leave to appeal against sentence.

44 IPP AJ: That will be the order of the Court. **********

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