Regina v Wayne Robert Moore

CATCHWORDS: Possession of prohibited imports (MDMA) - sentence - departure from usual proportion between head sentence and non parole period - Assistance and plea of guilty - discount.

Chan (2002) 128 A Crim R 119 Shepherd (2003) NSW CCA 287 A (2004) NSW CCA 292: R v Barrientos (1999) NSW CCA 1 at par 45 Su (1997) 1 VR 1 CASES CITED: R v Chu NSWCCA (Unreported) 16/10/98 R v Bernier (1998) 102 A Crim R 44 R v Bugeja [2001] NSWCCA 196 per Adams J R v W [2002] NSWCCA 192. R v Waqa (No.2) 2005 NSWCCA 33

Crown PARTIES: Wayne Robert Moore - Applicant

M Kelly - Crown COUNSEL: T Watts - Applicant

S Kavanagh - Crown SOLICITORS: S O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/485

STUDDERT J HOWIE J LATHAM J

17 June 2005 REGINA v WAYNE ROBERT MOORE Judgment

1 STUDDERT J: I agree with Latham J 2 HOWIE J: I agree with Latham J 3 LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 2 September 2004, following a plea of guilty to a charge under s 233B (1)(a) (vi) of the Customs Act 1901 (the Act), namely that he was in possession of prohibited imports, being a quantity of MDMA not less than the commercial quantity applicable to that drug. The offence carries a maximum penalty of life imprisonment. 4 The commercial quantity for MDMA under the Act is 500 grams. The applicant was sentenced on the basis that he had in his possession 92.442 kilograms of pure MDMA. The applicant was sentenced to a term of twenty years imprisonment with a fifteen year non-parole period to commence on 24 December 2002. 5 The grounds of appeal assert that the sentence is manifestly excessive and that the discount allowed for the assistance provided by the applicant and the offer of further assistance was insufficient in the circumstances. A further alternate ground asserts that the total discount given for the assistance, the plea of guilty and remorse and contrition was insufficient. In addition, the applicant asserts error in that the sentencing judge fixed a non-parole period which was seventy-five percent of the total sentence. 6 A comprehensive statement of facts was before the sentencing judge as Exhibit A in the proceedings. In short form, between 8 October and 24 December 2002, the applicant was a party to an arrangement with persons known as Ballis, Anderson and Hinke, whereby the applicant was to obtain possession of approximately 980,000 MDMA or ecstasy tablets which had been imported from the Netherlands. Between those dates, the applicant had communicated on a number of occasions with Ballis, Anderson and Hinke concerning the anticipated importation of the MDMA tablets. Anderson was located in the Netherlands, whilst Ballis and Hinke were in Australia at the relevant time. Ballis, Anderson and Hinke were jointly responsible for procuring the supply of the ecstasy tablets from the importers to the applicant. 7 Between 10 December and 16 December 2002 the applicant assisted Hinke in his efforts to find accommodation in Sydney. On 16 December 2002 the applicant leased a self-storage unit at Dennison Street Hillsdale for the purposes of storing the MDMA tablets, which had arrived at Port Botany that day. 8 On 19 December 2002 the applicant leased premises at Unit 2/2 Mowbray Street Sylvania, in anticipation of delivery of the ecstasy. On 24 December 2002 the applicant, by arrangement with Ballis, travelled to Pagewood and took delivery of the MDMA tablets. The applicant then took the tablets to his premises at Mowbray Street, where they remained in a van parked in the applicant's garage until the applicant was arrested late in the evening of that day. The estimated value, on a retail basis, of the MDMA tablets was in the order of $37 million to $54 million. If sold wholesale, the estimated value of the MDMA tablets was approximately $14 million. 9 No useful purpose is to be served by setting out in greater detail the participation by the applicant in the distribution of the MDMA following importation. No issue is taken with the sentencing judge's characterisation of the applicant's role in the commission of the offence and it is conceded on the applicant's behalf that both the quantity of the drug and the level of involvement of the applicant reflect very great criminality. Having regard to the specific charge to which the applicant pleaded guilty, it could not be disputed that the possession of more than 92 kilograms of pure MDMA disclosed criminality of a very high order. 10 The evidence presented on sentence was constituted by the Crown's statement of facts (Exhibit A), the Crown's written submissions (Exhibit B) and a letter from the NSW Crime Commission (Exhibit C). There was no evidence in the applicant's case.

The Discount for Assistance and the Plea of Guilty 11 His Honour's remarks on sentence, with respect to the quantification of the discount for assistance and the plea of guilty appear at pages 4 to 5. His Honour said: It is also clear from the material that has been placed before me that, following your arrest, you co-operated to some extent with the investigating authorities. However, it would seem that assistance has been of limited value except for the fact that you did provide a name to (sic) one of the principals who, at that time, was living in The Netherlands. Prior to your providing that name the authorities were not aware of the name of that person, although they were aware of the existence of that person. Additionally you have, in the course of these proceedings, offered to give evidence if required to do so. Your offer in these proceedings was not as qualified as it previously was when you offered to give evidence in regard to any money laundering operation the Crown might seek to bring in regard to those with whom you are associated with. It seems that your offer to give evidence in any proceedings, if required to do so, is now unqualified. However, the Crown has indicated that that evidence is not required at this time. You did not enter your plea of guilty to this charge until shortly after you had been committed for trial thereon, although it must have been apparent to everyone that you intended to plead guilty, although that was not confirmed until the time I have indicated. In addition, it is clear that while you did not participate in any record of interview you have never sought to hide the part that you played in the criminal enterprise which gave rise to this charge. On the material that has been placed before me, the Crown case is an extremely strong one. However, I am satisfied that from your plea of guilty and the co-operation that you have given to the authorities and even though that plea was not entered at the earliest of opportunity, it does have a strong utilitarian value, as if you had pleaded not guilty then your trial on this charge would have, according to the Crown, taken some months. In addition to the utilitarian value of your plea, I am satisfied from your co-operation and your plea of guilty, in combination, that that represents some remorse and contrition on your part, even though this is a strong Crown case. I have come to the conclusion that, as a result of that remorse and contrition and co-operation, that you are entitled to a discount on sentence approximating some twenty-five per cent. 12 It is pertinent to note at this stage that His Honour was unduly favourable towards the applicant in two specific respects. Firstly, there was no evidence of the applicant's so called offer to give evidence against the co-accused who were shortly to stand trial. His Honour could only have been referring to submissions made by the applicant's then counsel, the applicant having given no evidence in the course of the proceedings or called any evidence on his behalf. Exhibit C did not support these submissions. The Crown objected to them and alerted His Honour to the fact that they were unsupported by any evidence. I return to this issue below. 13 Secondly, His Honour's reference to the applicant never having sought to hide the part that he played in the enterprise giving rise to the charge was somewhat curious, given that the applicant's position as "a senior and trusted member" of the organisation was amply manifested by the telephone intercepts, which were set out in detail in Exhibit A, and given that the applicant was caught red-handed in possession of the prohibited import. 14 His Honour acknowledged that the Crown case was an extremely strong one, and went on to note that the plea of guilty brought with it a measure of remorse and contrition. In the absence of any evidence by or on behalf of the applicant and in the face of an overwhelming Crown case, it would appear that the measure of that remorse and contrition was very small. 15 Turning firstly to the asserted inadequacy of the discount allowed for the applicant's assistance, and offer of future assistance, a consideration of this ground is necessarily complicated by the fact that no discrete discount for these purposes was identified by His Honour. 16 Of course there was no obligation on His Honour to do so. As has been observed on many occasions by this Court, there is no particular order in which discounts are to be applied, nor do they need to be applied as distinct and separate discounts, rather than as a single reduction: see Chan (2002) 128 A Crim R 119 referred to in Shepherd (2003) NSW CCA 287. To like effect is the following passage from the judgment in A (2004) NSW CCA 292: Where the factors of a plea and assistance are each available, it does not follow that any resulting discount is to be compounded or accumulated: R v Sharma (2002) NSW CCA 142 and R v Hameed (2001) NSW CCA 287. Otherwise there is a risk of the sentence becoming one which is not of a severity appropriate in all of the circumstances of the case. In such cases a combined discount will normally be appropriate: Thompson v Houlten at par 129: El-Harni (2004) NSW CCA 162 at pars 65-70 and R v Zaluaga-Gomez (2002) NSW CCA 358.

See also R v Waqa (No.2) (2005) NSWCCA 33 17 In any event the real value of the assistance that was in fact offered is critical to this ground of appeal. Moreover the terms of s 16A(2) of the Act require the Court to take into account "such of the following matters as are relevant and known to the Court", including "(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences". It was the extent of the co-operation in the investigation of the offence with which the applicant was charged or of other offences which was the focus of the enquiry before His Honour. 18 The only evidence to this effect was contained within Exhibit C, a confidential document dated 12 August 2004. That document disclosed that the applicant's offer of assistance was confined to the provision of information which was already known to the authorities, or which was capable of becoming known in the course of further investigations which were in train. There was no offer by the applicant to give evidence against the co-accused in respect of the importation.

19 As it happened, the co-accused Ballis and Hinke went to trial in respect of an offence of aid abet counsel or procure the possession of the MDMA by the applicant on 22 September 2004. Both Ballis and Hinke were acquitted by jury verdict on 15 and 16 November 2004 respectively.

20 On the hearing of the appeal, counsel for the applicant and the Crown tendered further affidavit material which confirmed that at the time of sentence, there was no sound basis upon which the applicant's assistance could be said to further the prosecution of the co-accused. 21 The applicant relies upon the judgment of Abadee J in R v Barrientos (1999) NSW CCA 1 at par 45, wherein His Honour refers to the Victorian Court of Appeal decision of Su (1997) 1 VR 1. Consistent with the Court of Appeal's decision in Su, Abadee J indicated that, in his view, "the establishment of an actual benefit to the authorities is not essential in all cases as a condition for making the allowance" However the full text of His Honour's judgment in that case on this particular aspect should be considered in full: In my view there needs to be recognition of the distinction between on the one hand the giving of no discount at all and on the other the quantum of discount where an entitlement to some discount is established. Entitlement to a discount does not necessarily depend upon the establishment of whether or not the information supplied turns out in fact to have been effective. It seems to me that the extent of the benefit which flowed from such assistance is a matter relevant to the evaluation of discount. …. Thus in the determination of any discount the relevance and importance of the benefits flowing from assistance is important: See also R v Gallagher (1991) 23 NSWLR 220. …. The law does not mandate the identification of a precise, discrete, quantifiable discount for assistance or that the assistance falls within the range. The matter of that discount or its quantification will depend upon a number of factors and the facts of the particular case under consideration. I do not see the authorities suggesting that once any assistance is found, then the allowance for such must reflect a range. The worth of the assistance may take it below the range. Whether it does is a matter of fact to be evaluated in accordance with the proved circumstances of the case. 22 In the result, the value of the assistance provided by the applicant was very limited. The applicant bore the onus of establishing some greater degree of assistance for the purposes of the sentencing proceedings and failed to discharge that onus. The sentencing judge correctly identified this aspect of the matter in the opening paragraph of his remarks set out above. In my view the extent of the assistance which was in evidence before His Honour justified a discount well below the range, that is below the range identified by Spigelman CJ in R v Chu NSWCCA unreported 16 October 1998, as twenty per cent to fifty per cent. 23 The alternative submission, that is that the total discount provided for assistance, together with the utilitarian value of the plea, remorse and contrition was insufficient, may be dealt with briefly in the light of the foregoing discussion. 24 The applicant's plea of guilty came in the District Court on 16 July 2004. However, the Crown acknowledged before the sentencing judge that the plea of guilty was indicated to the Crown as early as 7 May. Moreover, during the committal proceedings in April, it had been foreshadowed by the applicant's counsel that a plea of guilty was likely at some stage in the future. Accordingly, the Crown properly, in my view, conceded that the plea may not have been at the earliest opportunity, but it was at a very early opportunity. 25 Notwithstanding the relatively early plea and its expression of a willingness to facilitate the course of justice, it was, in the light of the strength of the Crown case a recognition of the inevitable. As noted above, there was no evidence of remorse and contrition on the part of the applicant independent of the fact of the plea. Taking all of those considerations into account, I am not persuaded that an overall discount of twenty-five per cent, as a reflection of the applicant's assistance, the plea of guilty and remorse and contrition was other than appropriate to the circumstances of the case. 26 Accordingly, this ground fails.

Was the Sentence Manifestly Excessive 27 The principal thrust of the submissions on this ground of the appeal derived from a mathematical calculation which takes account of the twenty-five per cent discount. The applicant's counsel argues that a starting point of twenty-six years and eight months, followed by the application of the twenty-five per cent discount produces the head sentence imposed by the sentencing judge upon the applicant. Next it is asserted that given the applicant's age on sentence, that is fifty years, the sentencing judge has effectively imposed a life sentence. 28 This analysis completely ignores the objective gravity of the offence. The logical extension of the applicant's argument would result in the imposition of a token sentence upon an offender who stood in the applicant's position but was in fact aged seventy years. Whilst due allowance should always be made for the subjective circumstances of an offender, including an offender's age and health, the ultimate sentence imposed, both as to the non-parole period and the head sentence, must not be disproportionate to the objective gravity of the offence. 29 Given the amount of the pure MDMA in the applicant's possession for distribution into the wider community, this was an offence approaching the worst category of an offence of this nature. In my view the head sentence of twenty years was well within His Honour's sentencing discretion.

The Non Parole Period 30 The applicant referred the Court to the submissions to His Honour by both the Crown and the applicant's counsel wherein the authority of R v Bernier (1998) 102 A Crim R 44 was cited in support of the usual ratio between the non parole period and the head sentence in Commonwealth matters. 31 There was no submission by the Crown suggesting that His Honour might regard the matter as one calling for a departure from that "norm". His Honour made no reference to it in the course of his remarks until after the imposition of the sentence. The following appears from the transcript in the closing stages of the imposition of the sentence:- "In these circumstances that sentence will expire on 23 December 2022 and you will be eligible for release on parole on 23 December 2017. Whether you are released on parole on that date will depend upon your behaviour while in custody, but that will be the earliest date on which you will be due to be released on parole Anything Mr Crown? [Crown's representative] Your Honour with some hesitation could I refer your Honour to the matters at p 9 of the Crown's submissions dealing with the ratio of the head sentence to the non-parole period in Federal matters where it's been stated that that ratio should be in the range of sixty to sixty-six per cent, that is approximately two-thirds and that if your Honour - if a sentencing Court is to depart from that ratio then some statement of reasons is desirable. HIS HONOUR: I have arrived at this sentence even though arguably it may not be in accordance with the accepted ratio set down by the legislation and the authorities, that is of two thirds to one third. I have done so bearing in mind the criminality displayed by the offender in committing this offence, bearing in mind the authorities to which I have referred and the sentences which have been imposed in those authorities. It seems to me that when one compares the criminality of those offenders to this offender, bearing in mind the discounts that they were entitled to on sentence, that the sentence that I have subjected him is an appropriate sentence in all the circumstances in this case. 32 It would appear from the above that His Honour considered a fifteen year non parole period as the least appropriate to reflect the applicant's criminality. The reference to the authorities to which His Honour had regard did not take the matter much further. They were, by and large, examples of sentences for like offences concerning MDMA, of which only one (out of fifty-four) resulted in the imposition of a non parole period greater than sixty-six per cent of the head sentence. 33 It is difficult to regard His Honour's reasons, delivered somewhat as an after thought, as sufficient to constitute a "comprehensive explanation": see R v Bugeja [2001] NSWCCA 196 per Adams J; R v W [2002] NSWCCA 192. 34 However, allowing for the possibility that His Honour had not devoted the required consideration to this aspect of sentence, I am not persuaded that a non parole period of the order in fact imposed is not justified by the circumstances of the offence. In my view, the extent of the applicant's criminality warranted a very substantial period of incarceration. The offence was approaching the worst case for possession of a prohibited import. 35 Moreover, there is no reason in principle why the usual ratio in Commonwealth sentencing matters should be imposed in every case, regardless of the length of the head sentence. In practical terms, the longer the head sentence, the more likely it is that ample time to allow the offender's re-integration into the community will be implicit in the non parole period, even where it exceeds the usual proportion. The present matter is a case in point. The applicant will have a period of five years following his release to parole to adjust to life in the community. It is not suggested that the applicant requires some longer period of supervision arising out of any special needs on his part. I regard the objectives of punishment and general deterrence as paramount in this case. Accordingly, I do not regard any lesser sentence warranted in law. 36 I would grant leave to appeal but dismiss the appeal. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.