Klomfar v R

1. [1]

   PAYNE JA: I agree with Bellew J.

2. [2]

   BELLEW J: On 19 June 2017, which was the day on which his trial was to commence, Petr Klomfar (the applicant) pleaded guilty in the District Court to the following offence:

3. [3]

   The commercial quantity of cocaine is 2 kilograms. The quantity of pure cocaine imported by the applicant was 4.653 kilograms. The offence to which the applicant pleaded guilty is contrary to s 307.1(1) of the Criminal Code 1995 (Cth). It carries a maximum penalty of life imprisonment and/or a fine not exceeding 7,500 penalty units, or both.

4. [4]

   On 18 May 2018 his Honour Judge Zahra SC sentenced the applicant to imprisonment for 7 years and 8 months commencing on 2 March 2016, with a non-parole period of 5 years.

5. [5]

   The applicant now seeks leave to appeal against that sentence on the grounds more fully discussed below.

THE CIRCUMSTANCES OF THE OFFENDING

1. [6]

   A statement of agreed facts was tendered before the sentencing judge, on the basis of which his Honour found the facts of the offending to be as follows: [1]

The objective seriousness of the offending

1. [7]

   In terms of the objective seriousness of the applicant’s offending, his Honour reached the following conclusion: [2]

2. [8]

   However, his Honour also said: [3]

3. [9]

   His Honour rejected a submission that he should find that the applicant’s state of mind was one of recklessness, and concluded that the objective facts were consistent with a finding that the applicant knew that he was importing prohibited drugs. [4] His Honour also accepted the submission of the Crown [5] that the applicant was generally aware of the amount of cocaine that he was carrying. Having noted the weight of the drug, its estimated value, and the fact that the applicant had said that he had been promised $6,000.00 for his part in the venture, [6] his Honour concluded: [7]

The applicant’s subjective case

1. [10]

   Tendered in the applicant’s case before the sentencing judge was a report of Andrew Fordyce, Psychologist, from which his Honour drew the following summary of the applicant’s background. [8]

2. [11]

   The applicant was born in the Czech Republic, and was the eldest of four children. He described experiencing a stable home environment. He was an average student and had no behavioural difficulties at school. After leaving school he had maintained stable employment, and also maintained long term service with his local volunteer fire brigade. The applicant reported that he had generally enjoyed pro-social peer relationships, other than with those to whom he was exposed in the course of his offending. The applicant was 41 years of age at the time of his offending and had been in a relationship with Helen Dolejovska (the co-offender) for 6 months. That relationship ceased upon their arrest.

3. [12]

   When speaking with Mr Fordyce, the applicant denied any history of mental health issues but reported that he had experienced stress and anxiety since being taken into custody. Mr Fordyce did not diagnose the applicant as suffering from any mental health issue. Although he commented that the applicant continued to experience some anxiety, he appears to have taken the view that such anxiety stemmed from the applicant’s custodial environment. Mr Fordyce concluded: [9]

Specific considerations in the context of the applicant’s subjective case

1. [13]

   The sentencing judge made specific reference to particular matters set out in s 16A(2) of the Crimes Act 1914 (Cth). In particular, his Honour:

2. [14]

   His Honour dealt with the applicant’s assistance to the authorities at some length [17] and noted, in particular, that police had assessed the benefit of that assistance as “medium”. His Honour ultimately applied a total discount of 30%, 20% of which was referrable to the applicant’s assistance. Of that amount, 5% was referrable to the applicant’s undertaking to give evidence against the co-offender in the future. In light of the co-offender’s plea of guilty, that assistance was ultimately not rendered.

THE GROUNDS OF APPEAL

1. [15]

   There are two grounds of appeal. It is appropriate to firstly address ground 2.

The sentence imposed on the co-offender

1. [16]

   Approximately two months after the applicant was sentenced, the co-offender was sentenced by his Honour Judge Hunt in the District Court to imprisonment for 6 years and 3 months, with a non-parole period of 3 years and 6 months. There are several aspects of that sentence which are relevant for the purposes of this ground.

2. [17]

   Firstly, and unlike the conclusion reached by the sentencing judge in respect of the applicant, Judge Hunt concluded that the co-offender should be sentenced on the basis that she was reckless as to the existence of the drugs she had imported. His Honour said: [18]

3. [18]

   Secondly, Judge Hunt concluded that the co-offender had displayed a lesser degree of criminality than the applicant. His Honour said [19] :

4. [19]

   Thirdly, Judge Hunt concluded that at the time of her offending the mental health of the co-offender was “fragile”. He drew the inference that it was unlikely that the organisers of the importation would have entrusted her to carry such valuable material without being overseen and supervised by the applicant. [20]

5. [20]

   Fourthly, having noted that there had been issues raised about the co-offender’s fitness to plead, his Honour said: [21]

6. [21]

   Fifthly, having made reference to the co-offender’s psychosis, Judge Hunt accepted that there was no case analogous to that of the co-offender “because of the extremity of (her) mental difficulties”. [22]

7. [22]

   Sixthly, Judge Hunt concluded [23] that the co-offender’s time in custody had been, and would be, rendered more onerous because of her psychological condition. His Honour noted [24] that although there was authority for the proposition that those who come from foreign countries to commit this kind of offending, and who suffer in custody as a result, should not have that fact taken into account on sentence, that proposition was diluted, at least to some degree, where an offender had mental health issues.

8. [23]

   None of these matters to which Judge Hunt referred when sentencing the co-offender formed any part of the applicant’s case on sentence. Importantly, as a consequence of his Honour’s findings as to the co-offender’s mental health, it followed that the importance of general deterrence was reduced in her case.

Submissions of the applicant

1. [24]

   Before this Court, counsel did not submit that the sentences imposed upon the applicant and the co-offender should have been the same. However, he submitted that:

2. [25]

   Counsel pointed out that having regard to the pleas of guilty which were entered, and the respective discounts which were applied, there was a difference of approximately 3 years in the starting points which had been adopted for the respective head sentences. Counsel submitted that even allowing for the differences in the two cases, this represented an unjustified disparity.

Submissions of the Crown

1. [26]

   The Crown relied upon the passages from the remarks of Judge Hunt to which I have referred, and submitted that the differences between the applicant’s case and that of the co-offender, both in terms of objective criminality and subjective circumstances, explained the difference in the sentences which were imposed. It was submitted that this Court would only intervene if it considered that the extent of the disparity was wholly outside the permissible range of sentencing discretion, so as to disclose error. It was the Crown’s submission that this was not the case.

Consideration

1. [27]

   Consistency in the punishment of the offences against the criminal law is a reflection of the notion of equal justice, and finds its expression in the parity principle which requires that like offenders should be treated in a like manner. That principle also allows for different sentences to be imposed on like offenders, to reflect differing degrees of culpability and/or differing circumstances. [25] The same principle also recognises that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance arising from a sentence imposed on a co-offender. It is not simply a question of imposing different sentences for the same offence, but a question of due proportion being structured between such sentences. That proportion must be determined having regard to the different circumstances of the co-offenders, and the different degrees of criminality. [26]

2. [28]

   In applying these principles, sentencing judges are given a wide measure of latitude which will be respected by an appellate Court. As long as a sentencing judge has taken into account the relevant considerations of law and fact, an appellate Court will not ordinarily intervene merely because some arguable discrepancy appears between the sentences imposed upon otherwise connected or like offenders. [27]

3. [29]

   In the present case, there were a number of factors, both objective and subjective, which distinguished the applicant and the co-offender. Although the applicant had assisted the authorities and the co-offender had not, his criminality was objectively higher. Subjectively, the co-offender was suffering from a mental illness of significant severity. That was not a characteristic of the applicant’s subjective case, and was one to which Judge Hunt attached considerable significance when sentencing the co-offender. That factor gave rise to two further considerations in the co-offender’s case. Firstly, as a consequence of her mental state, her period in custody would be rendered more onerous than might otherwise have been the case. Secondly, general deterrence assumed reduced significance.

4. [30]

   These factors clearly explain the differences in the sentences which were imposed. There is no unjustified disparity in such sentences. It follows that this ground is not made out.

The sentence imposed was manifestly excessive

1. [31]

   In written submissions, counsel for the applicant summarised the findings reached by the sentencing judge, particularly as to the applicant’s role which he submitted was at the lower end of the scale. Counsel also pointed specifically to the applicant’s significant assistance to the authorities. In essence, counsel’s primary submission was that against a background of a series of positive findings, a notional starting point of 11 years with a non-parole period of 7 years and 2 months was indicative of manifest excess.

2. [32]

   In written submissions, counsel for the applicant relied on the observations of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [28] where, having reviewed sentences which had been imposed in groups of cases involving the importation of commercial quantities of narcotics, his Honour said. [29]

3. [33]

   The effect of counsel’s submission was that the quantity of cocaine which was imported in the present case fell within the group to which his Honour had referred, yet the sentence imposed was greater than the range of sentences that his Honour had identified. In oral submissions counsel stepped away from that position to some degree and sought to rely upon the judgment in De La Rosa only as a guide. However, he submitted that in all of the circumstances, a conclusion should nevertheless be reached that the sentence was manifestly excessive.

Submissions of the Crown

1. [34]

   The Crown pointed out that in order to succeed on this ground, it was necessary for the applicant to demonstrate that the sentence imposed was unreasonable or plainly unjust. The Crown’s position was that this was not made out for a number of reasons.

2. [35]

   The Crown submitted that the applicant’s reliance on the observations of McClellan CJ at CL in De La Rosa was misplaced, and that such observations did not constitute any prima facie guide to an appropriate sentencing range. It was further submitted that in any event, an examination of the cases to which his Honour referred did not support a conclusion that the sentence imposed upon the applicant was manifestly excessive.

3. [36]

   The Crown submitted that the sentencing judge had, with considerable care, assessed each and every aspect, both objective and subjective, of the applicant’s case. It was submitted that in these circumstances, there was no indication of a misapplication of principle by the sentencing judge, nor was this a case where the sentence imposed was so far outside the range of appropriate sentencing discretion that this Court would conclude that there must have been an error.

Consideration

1. [37]

   A complaint of manifest excess requires the applicant to establish that the sentence is unreasonable or plainly unjust. [30] In Vaiusu v R [31] , R A Hulme J summarised the principles which apply when a complaint of manifest excess is made. Included in those principles are the following:

2. [38]

   In my view, none of the matters on which counsel for the applicant relied are indicative of manifest excess. No submission was made that the sentencing judge had failed to have regard to a particular factor, or that he had failed to afford sufficient weight to a particular factor. Further, it was not suggested that the discount which his Honour applied to reflect the applicant’s plea of guilty and his assistance was somehow less than that to which the applicant was entitled. In my view, the sentencing judge carefully analysed all aspects of the applicant’s case, both objective and subjective.

3. [39]

   Further in my view, counsel’s reliance upon the observations in De La Rosa, even to the limited extent articulated in oral submissions, was inapposite. McClellan CJ at CL went to some lengths to point out that his observations were not to be regarded as any form of guideline judgment [32] . Subsequent decisions have made it clear that the categories to which his Honour referred are not binding, and that the overall criminality of an offence necessarily depends upon an evaluative assessment of all relevant factors. [33]

4. [40]

   The seriousness with which the Parliament views offending of this nature is reflected in the maximum penalty of life imprisonment. The applicant can draw no comfort from the reference by the sentencing judge to his being a “courier” whose role was “limited and lower and in the hierarchy”. Characterising an offender in that way must never obscure an assessment of what the offender actually did. [34] In the present case, the applicant, aware that he was carrying prohibited drugs, and aware (at least in a general sense) of the quantity he was carrying, engaged in a planned course of conduct centred upon a venture of drug importation. He left Europe, travelled to the United States to collect a large quantity of cocaine, and then imported that drug into this country. He did so in circumstances where he had been promised a substantial monetary reward. It has been observed on numerous occasions that those who act as the applicant did in this case perform an essential role in the process of organised drug trafficking. If an organisation is starved of such recruits, it will collapse. That demonstrates the significance of the role undertaken by the applicant.

5. [41]

   Moreover, there is no inevitable correlation between an offender who is said to have been in the lower echelon of a hierarchy, and the severity of the punishment that he or she can expect to, and will, receive. [35] These observations are appropriate for any drug importation, but particularly one such as the present which involved the importation of a quantity of cocaine which was substantially in excess of the commercial quantity, [36] and which was worth well in excess of $1 million.

6. [42]

   Finally, in terms of the applicant’s subjective case, the sentencing judge took all relevant factors into account. The most significant aspect of that case was the applicant’s assistance to the authorities. It was not suggested that the discount applied by the sentencing judge to reflect that assistance was less than that to which the applicant was entitled.

7. [43]

   For all of those reasons this ground is not made out.

CONCLUSION

1. [44]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

2. [45]

   CAMPBELL J: I agree with Bellew J.