Mato v R; Rusu v R

1. [1]

   GLEESON JA: I agree with Hall J.

2. [2]

   HALL J: The applicants, Zoltan Mato and Marius Rusu, both seek leave to appeal in respect of sentences imposed by the District Court (his Honour, Frearson SC DCJ) on 3 September 2010.

3. [3]

   Each of the applicants was charged on indictment with the following offences:

4. [4]

   In respect of the conspiracy offence, both applicants were charged with conspiring with each other and others to import not less than a commercial quantity of cocaine. The other persons included Luke Sparos, Alen Moradien, Matthew Stockwell and Adam Ballard.

5. [5]

   Each of the applicants entered not guilty pleas to the charges.

6. [6]

   The trial commenced on 8 February 2010. On 29 March 2010, the jury returned verdicts of guilty on Counts 1 and 2.

7. [7]

   The conspiracy charge under s 233B(1)(a)(iii) of the Customs Act 1901 carried a prescribed maximum penalty of life imprisonment. I note that s 233B has since been repealed with serious drug offences now found in Pt 9.1 of the Criminal Code.

8. [8]

   The proceeds offence charged under s 400.3(1) of the Criminal Code carried a maximum prescribed penalty of 25 years imprisonment.

9. [9]

   The applicants were sentenced on 3 September 2010 as follows:

Grounds of Appeal

1. [10]

   The applicants seek leave to appeal against the sentences imposed on them.

2. [11]

   In his Grounds of Appeal dated 3 June 2011, the applicant, Zoltan Mato, relied upon the following grounds:

3. [12]

   Leave was sought and granted at the hearing of the application on 6 October 2015 for the applicant Mato to rely upon an additional ground of appeal in the following terms:

4. [13]

   In his Grounds of Appeal filed 21 March 2014 the applicant, Marius Rusu, relied upon the following grounds:

Facts

1. [14]

   The factual circumstances constituting and surrounding the offences were summarised in some detail in the Crown’s written submissions as follows:

2. [15]

   In relation to the defence case, apart from the first importation, neither of the applicants disputed at trial that one Mathew Stockwell was involved in the importation into Sydney of cocaine from Los Angeles. Stockwell was a director of International Freight Forwarding and Sales at Stockwell International Pty Ltd, an international logistical company. The applicants’ defence was that Stockwell had falsely implicated them as being part of the conspiracy and importation.

3. [16]

   The applicant Mato gave evidence at trial.

4. [17]

   Mato’s case was that he was not involved in the conspiracy with Stockwell or any other persons in any conspiracy to import cocaine. His evidence was that he had not met or entered a relationship with Stockwell until April 2006 at which time the relationship was solely related to his limousine business, during which business he exported vehicles through Stockwell International to the United States to be “stretched” and then returned to Australia.

5. [18]

   The applicant Rusu did not give evidence at trial.

Remarks on Sentence

1. [19]

   The sentencing judge set out in a detailed summary the facts relating to the six importations. The summary included, in particular, his Honour’s determination as to the particular quantities of cocaine the subject of each importation. At page 3 of the Remarks on Sentence his Honour stated:

2. [20]

   The sentencing judge noted at p 4 that, prior to February 2003, the applicants had enlisted Adam Ballard to speak with Stockwell with a view to securing Stockwell’s cooperation in regard to the importation of cocaine from the United States, and at that point the offender Mato had a long-standing friendship with Alan Moradien (p 4). Stockwell was in a position to contribute to the conspiracy because of his position in Stockwell International Pty Ltd. He participated and assisted the applicants in the six importations from Los Angeles.

3. [21]

   In relation to the dealing charges (Count 2), the sentencing judge also set out his factual findings including a finding at p 16 in these terms:

4. [22]

   His Honour found that the applicant Rusu dealt with the proceeds of cocaine sales well in excess of $1 million, namely, in the order of at least $2.5 million, including the money that he paid to Stockwell (p 17).

5. [23]

   The applicant Mato was sentenced on the basis that he had dealt with the proceeds of crime in the order of $4 million, including the money paid to Stockwell (p 17).

6. [24]

   His Honour noted at p 17 that there were no common elements regarding the conspiracy offence and the dealing charges of the type referred to in Pearce v The Queen [1998] HCA 57; 194 CLR 610, but stated at pp 17-18:

7. [25]

   His Honour additionally observed at pp 18-19:

8. [26]

   The sentencing judge had regard to the matters required to be taken into consideration under Part 1B of the Crimes Act 1914 (Cth), including, in particular, those specified in s 16A of the Criminal Code. His Honour noted that the maximum sentence for the conspiracy offence was life imprisonment and the maximum for the dealing charges was 25 years imprisonment.

9. [27]

   His Honour proceeded at pp 19-20:

10. [28]

    In addition, his Honour took into account other relevant matters which included the fact that a number of persons were involved in the combination apart from the two offenders, the extremely high level of organisation involved in the criminal conspiracy and the totality of the acts performed by the offenders and other conspirators. His Honour, as earlier noted, also had regard to the quantity of cocaine imported. Although not decisive of the objective gravity of the offending, his Honour noted that the quantities involved were nonetheless an important feature to be taken into account. By reason of their respective roles, the applicants were said to have had direct knowledge of not only what was agreed to be imported but what was actually imported pursuant to the conspiracy (p 20).

11. [29]

    On the issue of the objective gravity of the offending, his Honour observed at p 23:

12. [30]

    His Honour determined that the criminality of the offending was at a very high level but declined to find that the conspiracy offence was a “worst case”, stating at p 23:

13. [31]

    His Honour also identified and considered relevant subjective factors. The applicant Mato’s criminal antecedents were taken into account, they involving, his Honour noted, very minor matters of assault and malicious damage. The applicant Rusu had convictions of supplying a prohibited drug and possession of prohibited drug. His Honour took into account the fact that the convictions in respect of those offences had occurred a long time before, namely, in 1997 and 1998, and that they were not “particularly significant matters”. He noted that the applicant Mato should be dealt with more favourably in those terms than the applicant Rusu: Remarks on Sentence at p 22.

Ground 3.1: The sentences were manifestly excessive and were not "just and appropriate" to the totality of the offending behaviour

1. [32]

   The applicant, Zoltan Mato, relied upon written submissions dated 3 June 2011 and further written submissions dated 30 September 2015. Mr David Dalton SC appeared on his behalf in this application and made oral submissions.

2. [33]

   At the hearing of the application leave was sought and granted to file in court the affidavit of Lionel Peter Kramer sworn 1 October 2015. There was no objection to the affidavit being read in the event that this Court intervened and was required to re-sentence the applicant Mato.

3. [34]

   It was submitted on Mato’s behalf that the sentences imposed on him were manifestly excessive and were not "just and appropriate" in respect of the totality of the offending conduct, with reference made to Johnson v R (2004) 78 ALJR 616 at [18].

4. [35]

   The net effect of the sentences imposed on the two applicants was set out in a table included in the written submissions as follows:

5. [36]

   It was contended that the head sentence imposed with respect to the conspiracy count was excessive.

6. [37]

   It was initially submitted that in addition to the sentences being excessive, they were well outside of the range for offences of the same kind, and that his Honour failed to consider comparative sentences, though these submissions were withdrawn in the further written submissions.

Ground 3.2: The trial judge erred in not fully cumulating the sentences for the conspiracy and money laundering offences

1. [38]

   It was submitted that the sentencing judge erred in ordering:

2. [39]

   The period of accumulation was said to be erroneous having regard to the fact that the criminality associated with the conspiracy was one and the same as that involved in the money laundering offences in respect of monies dealt with during the period of the conspiracy. In that regard it was argued that there had existed “an overt act of conspiracy” pursuant to which the appellants received and dealt with the proceeds of their offending: Written Submissions for Mato at [364] – [365].

3. [40]

   In his oral submissions in relation to Grounds 3.1 and 3.2, Mr Dalton emphasised the importance of the question of accumulation: T 2-3. After citing well-established principles, it was submitted that the sentencing judge had made an error of the House v The King (1936) 55 CLR 499 kind and that as a consequence he adopted “… a far too high level of accumulation …: T 3:12. The submission continued:

4. [41]

   The money the subject of the “dealing” charges was said to have been “… an intrinsic part of the Crown case against the applicant in respect of the conspiracy to import”: T 3:35-37.

5. [42]

   In these circumstances it was argued the total accumulation of the sentences would not have involved the applicants receiving a discount in what was a case of multiple offending, with reference made to R v Knight (2005) 155 A Crim 252 at [112].

6. [43]

   It was further submitted that by failing to pay proper attention to the principle of totality, the overall sentence was ultimately a crushing one: R v MAK [2006] NSWCCA 381 at [17]; R v Rossi (1988) 142 LSJS 451 at 453.

7. [44]

   For those reasons, it was contended that even if the sentencing judge was not in error in respect of the head sentences imposed for the conspiracy count, the sentences for those counts should have been accumulated with the money laundering sentence such as to yield a non-parole period of two-thirds of the total sentence in each case: Written Submissions for Mato at [370].

8. [45]

   In the further submissions of 30 September 2015 the applicant Mato adopted the submissions made on behalf of the applicant Rusu in relation to grounds 3.1 and 3.2 as set out in paragraph 13 of the written submissions for Rusu dated 21 March 2014. Paragraph 13 of those submissions alleged a breach of the parity principle citing the High Court’s decisions in Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 and Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 339. The submission was that the applicant Mato had a “justified sense of grievance given the sentence imposed upon the co‑applicant and the principle of parity”.

9. [46]

   The submission did not seek to advance a conventional ground based upon parity principles in relation to the sentencing of co-offenders, but to raise a very narrow point which was limited to an alleged failure to have “balanced out” the co‑offender Rusu’s prior criminal record involving drug offences. Given this somewhat unusual and limited point it is as well to set out in full the submissions made in relation to Ground 3.3 as follows:

Principles

1. [47]

   I set out below relevant principles concerning the exercise of this Court’s supervisory jurisdiction in appeals against sentence which may be summarised as follows:

   1. (1)

      In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a re-hearing of the plea in mitigation: Romero v R [2011] VSCA 45; 206 A Crim R 519 at [11]; Zreika v R [2012] NSWCCA 44 at [81] per Johnson J.

   2. (2)

      Sentence appeals are not the occasion for the revision and reformulation of the case presented below: Romero, supra, at [11].

   3. (3)

      By reason of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not, advanced on the plea: Romero at [11]; Zreika at [81].

   4. (4)

      There is a need for exceptional circumstances before this Court will entertain arguments that could have been put but were not advanced on the plea: Zreika at [81]. Exceptional circumstances include those where it can be shown there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero at [11]. In this latter respect, Johnson J in Zreika, supra, at [82] further observed:

Consideration of Ground 3.1: Manifest Excess

1. [48]

   The criminality of the conspiracy offence associated with the six importations referred to above at [14] was, as the sentencing judge stated, at a very high level approaching that of the worst case category.

2. [49]

   No challenge was made in the written or oral submissions for the applicant Mato to the relevant factual findings made by the sentencing judge and no submission was made that his Honour erred in the application of relevant sentencing principles.

3. [50]

   The submissions on sentence for the applicant Mato emphasised that Moradien and Sparos were “far bigger players”. No attempt was made before the sentencing judge to suggest that there was any relevant distinction to be made between Mato and Rusu.

4. [51]

   Whilst it was contended that the sentences imposed were manifestly excessive, the contention was unsupported by reference to sentences imposed in comparable cases.

5. [52]

   The Crown prepared a schedule of comparative cases for the sentence hearing which was relied upon by it before the sentencing judge. The schedule of cases was not challenged. The Crown submitted that the schedule of cases established the contrary position to that argued for the applicant: Crown Submissions at [169].

6. [53]

   Mr Dalton in his oral submissions concentrated largely upon the issue of accumulation as the “principal ground” for the application.

7. [54]

   I do not consider that the sentences imposed were manifestly excessive. Each of the six importations was part of a carefully planned criminal enterprise involving very significant quantities of cocaine (at least 209 kilograms of the drug in total) imported into Australia from the United States. The six importations were undertaken between February 2005 and July/August 2006. As previously mentioned, the material facts concerning each importation were detailed in the Remarks on Sentence at pp 5-8.

8. [55]

   Although the applicant Mato had a modest legitimate source of income, he spent large sums of money (often in cash).

9. [56]

   He, as earlier noted at [14], dealt with proceeds of crime from the sale of cocaine in the order of $4 million. As previously stated, the sentencing judge determined:

10. [57]

    His Honour also observed:

11. [58]

    His Honour also determined that both applicants were principals “in a sophisticated conspiracy”:

12. [59]

    In addition, his Honour had regard to the number of persons involved in the combination, the extremely high level of organisation and the totality of the acts performed by the applicants and the other conspirators. In addition, his Honour had regard to the quantity of drugs involved and their direct knowledge of not only what was agreed to be imported but what was actually imported pursuant to “unrestrained greed” (ROS pp 20-21).

13. [60]

    His Honour further noted that there was no evidence of contrition by the applicants, nor was there any evidence of any acceptance by them of responsibility. He found that it was unlikely that either offender would re-offend by reason of his Honour’s proposal to impose a “deterrent sentence” (ROS p 21). He found that the prospects of rehabilitation of the applicants to be good (ROS p 21).

14. [61]

    His Honour then turned to consider the criminal antecedents of each of the applicants (ROS pp 21-22).

15. [62]

    On the basis of the matters set out above, in my opinion, the ground contending that the sentences imposed were manifestly excessive is without merit. Ground 3.1 should be dismissed.

Consideration of Ground 3.2: The trial judge erred in not fully cumulating the sentences for the conspiracy and money laundering offences

1. [63]

   This ground (presumably intended as a submission that the sentences ought to have been made wholly concurrent), was based upon the contention that the criminality associated with the conspiracy “was one and the same as that which applied to the money laundering offences and was dealt with during the period of the conspiracy …”: Written Submissions for Mato at [365].

2. [64]

   As noted above, a similar ground was relied upon by the applicant Rusu. There is, in my opinion, no merit to this ground. Mr Dalton’s oral submission that the money involved in the money laundering offences was “an intrinsic part of the Crown case in respect to the conspiracy to import” does not, with respect, bring into account both the fact and the significance of the extensive activities of the applicants involved in the commission of the money laundering offences.

3. [65]

   The nature and scale of the activities undertaken in laundering the money generated by the importations of cocaine were significant. They were undertaken by each of the applicants. Though related to the monies generated by the conspiracy offence separately, there were a series of transactions and associated acts that constituted means by which the money laundering offences were committed.

4. [66]

   In that respect, both applicants paid large amounts of cash to Anthony Hogan. Those monies were then laundered through the business accounts of Terry Hogan Prestige Cars and paid to accounts nominated by the two applicants.

5. [67]

   As the Crown’s written submissions state at [117]:

6. [68]

   Mato was party to a large number of transactions involving the purchase of motor vehicles from Terry Hogan Prestige Cars. These involved payments in cash. Eight cars were sold back to Terry Hogan Prestige Cars within a relatively short period of time. In relation to three of those vehicles, at the time of sale back, the applicant Mato received a greater amount of money than the amount originally paid for them. The inference the Crown relied upon was that some of these transactions were undertaken in order to launder money. The total amount of purchases was $1,568,740: Crown Submissions at [119].

7. [69]

   These matters, the Crown submitted, distinguished the applicants’ cases from Dela Cruz v The Queen [2010] NSWCCA 333; Thorn v The Queen [2009] NSWCCA 294 and Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463, each of which is discussed below at [115]-[122]. As the Crown correctly observed in her oral submissions, the laundering of the money was effected by the applicants “hiding it, changing the source etc”: T 21:10-12.

8. [70]

   The conduct of the applicants in relation to the money laundering accordingly involved added criminality over and above the conspiracy offence. The Crown properly acknowledged that there was overlap between the conspiracy offence and the money laundering offences a fact recognised by the substantial concurrency of the sentences: T 21:15-20.

9. [71]

   The extent of concurrency, as the Crown observed, was a matter for evaluation by the sentencing judge. His Honour was alert to that fact and allowed for the “overlap”. I accept the Crown’s submissions that additional criminality attached to the money laundering offences over and above that involved in the conspiracy offence. The extent of concurrency and accumulation were matters for assessment and evaluation by the sentencing judge. No error, latent or patent, was established as to the level of concurrency and accumulation determined in respect of the sentences imposed.

10. [72]

    In my opinion there is no merit to Ground 3.2 and it should be dismissed.

Consideration of Ground 3.3: Parity

1. [73]

   As noted above, the parity argument was based on a claimed need for the sentencing judge to have offset Rusu’s criminal record as against the fact of the applicant Mato having dealt with a greater sum of laundered money than the applicant Rusu. The failure to have done so is said to have constituted an error.

2. [74]

   It has been observed in a number of cases that this Court will be cautious before determining that one co-offender has a justifiable sense of grievance where the same judge has sentenced each. The various authorities are gathered in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96]. The present case differs from many parity cases by reason of the fact that the “grievance” arises in respect of one aspect of the sentencing exercise, namely, the extent of the significance attached by the sentencing judge to Rusu’s past offending, in a case in which there was no dispute but that their roles in the criminal conspiracy offence were indistinguishable.

3. [75]

   Criticism was directed at the “finding” made by the sentencing judge in relation to the convictions of the applicant Rusu for prior offences, being one offence of supplying a prohibited drug and another offence of possess prohibited drug. The criticism was that the “finding” of the sentencing judge in respect of these two offences was that they were not particularly significant matters because they were a long time in the past, although they were held to be relevant in denying him leniency. Such offences were said to have in fact been “significant” in the sentencing process: Further Written Submissions for Mato at [11]. For reasons discussed below, I disagree with that submission.

4. [76]

   The sentencing judge had evidence as to Rusu’s prior convictions for the two drug offences. The question is whether, as contended for the applicant Mato, though Mato dealt with a greater amount of money than Rusu, that fact should have been counter‑balanced taking into account Rusu’s prior offences.

5. [77]

   The Crown responded to the applicant’s submissions on parity by observing that it was not suggested at the sentence hearing that the role of the applicant in relation to the conspiracy offence was in any way distinguishable.

6. [78]

   The significance to be attached to the past offending by Rusu was a matter of evaluation and the weight to be attached to it was an issue that was encompassed in the sentencing discretion. No error of fact or of principle was identified in the submissions for the applicant Mato in terms of his Honour’s conclusion as to the significance of Rusu’s past drug offences.

7. [79]

   It is to be noted that Rusu’s prior drug offences were at the very low end of offences involving the supply and possession of a prohibited drug. His criminal history included the following particulars of offence and sentence:

8. [80]

   The Remarks on Sentence establish that the sentencing judge gave specific attention to Rusu’s criminal history and undertook an assessment as to the significance, if any, to be attached to it. Although his Honour concluded that his prior offences did not entitle him to leniency, it was not thereby incumbent upon the judge to have concluded that the prior offences called for or required some counter‑balancing as contended for in this application.

9. [81]

   It is to be noted that the submissions in relation to what was styled a “parity” point failed to identify any error or misapplication of principle based on parity or other grounds. As earlier discussed, his Honour carefully evaluated the role and activities of each of the applicants. Whilst the applicant Rusu’s prior convictions were noted by the sentencing judge to have occurred “a long time ago”, his Honour’s observation that “they are not particularly significant matters” has not, in my opinion, been established as erroneous in any material respect. The Remarks on Sentence at p 22 also indicate that his Honour was mindful of the fact that the applicant Mato had a more favourable prior history and took that into account as but one of a number of matters to be considered before determining the sentences to be imposed.

10. [82]

    I do not consider there is any substance in this ground. Ground 3.2 should accordingly be dismissed.

Ground 2: A miscarriage of justice resulted from disparity of sentence

1. [83]

   Grounds 1 and 2 for the applicant Rusu, it was stated, could be considered together. I proceed upon that basis.

2. [84]

   The applicant’s submissions asserted error insofar as the sentencing judge equated the seriousness of the offence committed by the applicant as at the same level as the offending conduct of the applicant Mato. This argument rested upon a contention that Mato was at a higher level in the hierarchy than the applicant, that is to say, that Mato was the “boss” whereas the applicant Rusu was said to be “Mato’s lieutenant”.

3. [85]

   This submission brought forward particular issues and contentions concerning the role that each had in the commission of the conspiracy offence.

4. [86]

   The differences between the applicant Rusu and the applicant Mato were said to be such that the objective seriousness of their respective criminality was not at the same level.

5. [87]

   I note that notwithstanding the absence of any submission or contention at the sentence hearing to that effect, it is clear from the Remarks on Sentence that his Honour nonetheless was conscious of the fact that he was required to assess the objective seriousness of the offence vis-à-vis each applicant. Having done so, his Honour in that respect concluded:

6. [88]

   Plainly his Honour assessed the objective gravity of the conspiracy offence of each offender before determining that the gravity of their offending was equal. As indicated above, no submission was made for the applicant Rusu to the sentencing judge either to the effect that Rusu’s particular role in the conspiracy was at a different level (that is, at a lower level) than that of the applicant Mato, or that, on the evidence, the objective gravity of the applicant’s offence should be found to have been less than that of his co-offender, Mato.

7. [89]

   In oral submissions Mr Odgers SC, for Mr Rusu, acknowledged that in this application he was required to confront the difficulty that the submissions for his client at the sentencing hearing did not raise or contend for such a “difference” in the respective positions of the two applicants.

8. [90]

   Mr Odgers addressed Grounds 1 and 2 together. He noted that if the applicant failed on Ground 1 (assessment of the seriousness of the offences), then Ground 2 (the parity ground) would also fail.

9. [91]

   Mr Odgers accepted that it was open to conclude that his client had been actively involved in the conspiracy and had obtained large amounts of money from it. However, it was argued that the applicant Rusu was the one who generally performed tasks such as maintaining phone contact with Stockwell, making money payments and giving Stockwell amounts of cocaine. The applicant Mato on the other hand, it was contended, was “plainly” higher in the hierarchy than the applicant: Written Submissions for Rusu at [9]. There was said to be evidence of Stockwell that pointed to Mato being the “boss” and that Rusu was his “lieutenant”. The only matters relied upon to support this contention were the following matters set out in the written submissions with references to evidence given at the applicants’ trial by Matthew Stockwell:

10. [92]

    It was submitted that these differences between the applicant Rusu and Mato “required the judge to find the objective seriousness of their criminality was not at the same level”: Written Submissions for Rusu at [11].

11. [93]

    In his oral submissions, Mr Odgers frankly conceded that, in the absence of any submissions having been made to the sentencing judge which sought to differentiate the objective criminality of the applicant Rusu from that of the applicant Mato, there was difficulty in now pursuing such a line of argument. In that respect he observed:

12. [94]

    Mr Odgers submitted:

13. [95]

    Mr Odgers formulated the following four points in the course of his oral submissions:

    1. (1)

       The sentencing judge sought to look for reasons to treat the applicants separately and in the absence of any material in that regard, he treated them both as principals. It was submitted that this involved an erroneous approach as the onus was on the Crown in relation to what was asserted to be “an aggravating factor” – that the Crown had the onus of proving beyond reasonable doubt that Rusu was a principal.

    2. (2)

       If the applicant was unsuccessful in establishing error in terms of point (1) above, then it was argued that the sentencing judge failed to take into account relevant factors, namely, the type of matters referred to in para [9] of the applicant’s written submissions (being the matters extracted in para [87] above).

    3. (3)

       That in light of the material summarised in [9] of his client’s written submissions, the conclusion that he was a principal at the same level as Mato was unreasonable in the sense of House v The King (1936) 55 CLR 499.

    4. (4)

       In relation to an offence involving a conspiracy to import drugs, whilst it is relevant to look at what was done by the parties to it, at the end of the day it is well-established that the offender’s position in the hierarchy is certainly a relevant, and indeed an important consideration in determining the objective seriousness of the offence, the culpability of the offender, and the appropriate penalty: T 11.

14. [96]

    It was submitted that the sentencing judge focussed exclusively on what the two applicants did in terms of their conduct. That was said to have run the risk of falling into error in failing to make an assessment of whether or not there is evidence raising a doubt on the question, “Was one of them effectively giving instructions to the other?”: T 11-12.

15. [97]

    The Crown submitted that Ground 1 is to be considered in light of the matters established in evidence as to the modus operandi of each of the importations and the defence case at trial, reproduced above at [14].

16. [98]

    The Crown noted that at the sentence hearing (T 30 July 2010 at p 11) counsel for Rusu submitted that the importations (apart from the third importation) were undertaken:

17. [99]

    In this Court it was noted by Ms Abraham QC for the Crown that there was no submission made to the sentencing judge on behalf of the applicant Rusu as to the existence of any basis upon which “… to legitimately distinguish between the two”: T 22:8-12.

18. [100]

    The Crown’s written submissions identified the facts and circumstances referred to in the Statement of Facts and Circumstances dated 1 June 2010 which was relied upon by the Crown before the sentencing judge and which was said to be relevant to the sentencing of both applicants. In this Court the Crown submitted that the activities detailed in the Statement of Facts and Circumstances were activities carried out in partnership between the applicants. In that respect the Crown submitted:

19. [101]

    The Crown submitted that the particular matters relied upon at the page references set out in [9] of the submissions for the applicant Rusu in relation to the present application, do not support the proposition that Mato was clearly the boss, or somehow more senior and that Rusu was the lieutenant: T 23. The Crown submitted:

20. [102]

    In relation to the first two references contained in [9] of the submissions for Rusu, Ms Abraham submitted that the particular instances referred to in that paragraph are good examples of the care required to be taken, in hindsight, after the trial has happened, in making an argument based on an interpretation of facts that was not relied upon below: T 23:35-40

21. [103]

    It was submitted for the Crown that the references relied upon in [9] of the written submissions for Rusu must be considered in their proper context.

Consideration: Grounds 1 and 2

1. [104]

   The only evidence, Mr Odgers conceded, which was relied upon for the proposition that Mato was “the boss” were the references to the evidence extracted in paragraph [87] above. These included what Stockwell is alleged to have said to others as to who he, Stockwell, thought was “the boss” and what Stockwell allegedly told Sparos and Moradien on that aspect. That, however, was not evidence that proved the fact of whether Mato was in fact the “boss”. The other matters relied upon in paragraph [87] were at best equivocal and not determinative of whether Mato was at a higher level in the criminal enterprise. The failure of counsel for the applicant Rusu to pursue such a proposition at the sentence hearing is readily understandable. The evidence was not directed at establishing a relevant distinction as to the “role” played by each offender.

2. [105]

   This is entirely consistent with the assessment formed by the sentencing judge, namely, that there was no basis to make a distinction in their roles or more particularly as to the respective gravity of their offending conduct. They were both highly active participants in a significant criminal conspiracy performing a range of functions consistent with them acting as joint participants or partners in the criminal importation. In my opinion, no error has been established in the findings made by the sentencing judge.

3. [106]

   The evidence does not, in my assessment, establish that the applicant Mato was at a higher level in the “hierarchy” than the applicant. In particular, the evidence does not support the submission that there were relevant differences between the applicants Rusu and Mato which required the sentencing judge to find that the objective seriousness of their criminality was not at the same level. I accept, as submitted by the Crown, that, in essence, the two applicants acted together in the conspiracy to import a border controlled drug, cocaine, as equal partners.

4. [107]

   On this basis leave to appeal in relation to Ground 1 should be refused. As earlier noted, it was accepted by Mr Odgers that the outcome in relation to Ground 2 was dependent upon the outcome of Ground 1. Leave to appeal in respect of Ground 2 should be refused.

Ground 3: The sentencing judge erred in applying the totality principle

1. [108]

   Mr Odgers in his written submissions noted that the proceeds of crime offence added 2 years 9 months to the overall non-parole period and sentence imposed on his client: Written Submissions for Rusu at [12].

2. [109]

   He submitted that it was unreasonable (in the House v The King, supra sense) to impose that level of partial accumulation in the circumstances of this case. This submission was based upon the contention that the criminality involved in the conspiracy offence very largely comprehended the criminality of the proceeds of crime offence. It was observed in this respect that the sentencing judge accepted that all the proceeds came from the conspiracy to which the applicant and Mato were party: Written Submissions for Rusu at [13]. It was further submitted that a lesser degree of partial accumulation should have been adopted: Written Submissions for Rusu at [13].

3. [110]

   Mr Odgers submitted, in essence, that if the applicants had simply been dealing with money, that is, moving money made from the importation of cocaine, then there was a real issue of principle as to avoiding “double counting”: T 17:40-45. He submitted that it was inherent in the commission of the “importation offence” that it “necessarily reflected the large amount of drugs, the large amount of money that flowed from the drugs and the bribery involved in respect of services provided by Stockwell”: T 18:1-5.

4. [111]

   On this basis it was submitted that the degree of partial accumulation was “grossly excessive”. The submission in this respect was sought to be supported by reference to the decisions of this Court in Thorn v The Queen [2009] NSWCCA 294; Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463 and Dela Cruz v The Queen [2010] NSWCCA 333.

5. [112]

   The Crown responded in its written submissions at [181] that the applicant’s submissions appeared to accept that it was open for there to be some degree of accumulation of the sentences and accordingly Ground 3 involved a question as to the degree of accumulation. In other words, the Crown observed that it was not suggested that the criminality of the proceeds offence was wholly subsumed by the conspiracy offence.

6. [113]

   The Crown also observed that the applicant did not contend that the sentencing judge, in determining the extent of accumulation of the sentences, had incorrectly applied relevant legal principles. Rather, the complaint was with the result: Crown Submissions at [182].

7. [114]

   The Crown additionally relied upon its written submissions at [171]-[174] made in respect of the applicant Mato in relation to the applicant Rusu.

8. [115]

   The principle of totality was the subject of consideration by Howie J in Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]. His Honour there observed:

9. [116]

   There was, no doubt, a degree of commonality in the circumstances of the offending as the sentencing judge himself recognised and stated. The sentencing exercise required the imposition of sentences that reflected the criminality involved in each offence and for a determination then to be made as to the extent of accumulation that was just and appropriate. This is what his Honour expressly did in the passage extracted above at [24].

10. [117]

    His Honour noted at p 23:

Consideration: Ground 3

1. [118]

   At the outset, I do not, with respect, consider that the judgments in the cases mentioned above at [65] and [107] (Thorn, Nahlous and Dela Cruz) provide guidance in the circumstances surrounding and constituting the money laundering activities of the applicants.

2. [119]

   In Nahlous, the applicant was sentenced in respect of a number of offences. These included six offences contrary to ss 135ASB(1) and 135ASC(1) of the Copyright Act 1968 (Cth) (the “decoder offences”) concerning the sale of, or offer to sell, unauthorised decoders. A decoder is a device that enables the owner to obtain paid television services without paying a subscription fee to a service provider.

3. [120]

   The applicant was also charged and pleaded guilty to an offence contrary to s 400.6(1) of the Criminal Code 1995. In that respect he sold to an undercover police officer fifty decoders and received payment of $15,000 in cash.

4. [121]

   In the course of the decision of the Court (McClellan CJ at CL, Howie and Rothman JJ) it was stated:

5. [122]

   In Dela Cruz, the applicant was sentenced in respect of two separate charges of obtaining a financial advantage by deception on specified dates contrary to s 178BA(1) of the Crimes Act 1900. She had also been charged with an offence of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act.

6. [123]

   In Dela Cruz, the applicant had devised a scheme whereby monies of her employer were transferred to her own bank account.

7. [124]

   In that case no question was raised that the prosecution of the relevant activities as separate offences was oppressive. The issue was whether or not there should have been any accumulation of the sentence for the offence.

8. [125]

   Reference was made in that case to the decision in Thorn v R, supra, where the Court was dealing with a case where the accused had been charged with fraud offences under the Commonwealth Criminal Code and also with a count of dealing with the proceeds of crime contrary to s 400.4(1) of the Code. The Court in Thorn (Howie J) had observed at [27]:

9. [126]

   In Dela Cruz the criminality involved in the charges was, significantly, the fraudulent obtaining of significant amounts of money, a large part of which had not been recovered. The activity had involved a considerable level of planning and sophistication in obtaining the money. It was held that an additional penalty was not appropriate in respect of the charge of knowingly dealing with the proceeds of crime in that case. The applicant had simply gained access to the funds the subject of the fraud: see Dela Cruz at [19].

10. [127]

    In the present case, as I have stated, the facts are very different from the abovementioned cases.

11. [128]

    The Crown’s written submissions provide a detailed summary of the modus operandi employed in the money laundering activities at [116]-[144].

12. [129]

    As has been mentioned in relation to the applicant Mato’s grounds of appeal, that summary indicates that the applicants paid large amounts of cash to Anthony Hogan which was then laundered through the business accounts of Terry Hogan Prestige Cars and then paid to bank accounts nominated by the applicants. Between 13 July 2006 and 29 June 2007, the applicants funnelled a total of $870,000 through the business account of Terry Hogan Prestige Cars, $615,000 of which was ultimately paid into the accounts nominated by Mato.

13. [130]

    In addition, there was the purchase of a large number of motor vehicles from Terry Hogan Prestige Cars, paid for wholly in cash or at least in substantial cash amounts, a number of which were subsequently sold back to Terry Hogan Prestige Cars within a relatively short period.

14. [131]

    The detailed facts and circumstances concerning the money laundering activities accordingly revealed a sophisticated plan involving a number of activities carried out in order to “launder” cash monies received from the sale of cocaine.

15. [132]

    The applicants’ cases are plainly distinguishable on substantive grounds from the cases (referred to above) relied upon by the applicant, Rusu. Whilst, as the sentencing judge observed, there was some commonality between the conspiracy offence and the dealing charges, there was a sound basis for the sentencing judge’s determination as to the accumulation of sentences in this case. No factual error or error of principle has been identified in the applicant’s submissions in that respect.

16. [133]

    Ground 3 should accordingly be dismissed.

17. [134]

    The orders I propose are:

    1. (1)

       Leave to appeal be granted.

    2. (2)

       The appeal be dismissed.

18. [135]

    CAMPBELL J: I agree with the orders proposed by Hall J for disposition of each of these applications. I also agree with his Honour’s reasons for the orders proposed.

19. [136]

    Mr Odgers SC argued on behalf of Mr Rusu that it was for the Crown to prove his client’s actual role in the conspiracy beyond reasonable doubt because characterisation of his part as that of a principal is “a matter that aggravates, because it tends to point to a higher sentence” (15.45T).

20. [137]

    The only rule is that established in The Queen v Olbrich [1999] HCA 54; 199 CLR 270 adopting the principle expressed in R v Storey [1998] 1 VR 359; 89 A Crim R 519 at 531:

21. [138]

    However, as the majority judgment in Olbrich demonstrates there is no general rule that “identification of the precise nature of [an] accused’s involvement” in drug importation “is an essential aspect of the sentencing process” (Olbrich at 277 [13]). This is not to say that when sentencing co‑offenders differentiation of roles, where the evidence permits such differentiation is not permissible or useful: Olbrich at 278 [14].

22. [139]

    Where this is possible on the evidence the onus may vary from case to case. It may possibly shift. Where the prosecution wish to persuade the judge that an offender is worthy of a heavier sentence because he had a more senior role in a criminal hierarchy than a co-accused, it will carry the onus of proving those facts beyond reasonable doubt. Where an offender wishes to persuade the judge that his role was more junior to others entitling him to a lesser sentence, he will carry the onus on the balance of probabilities.

23. [140]

    In the circumstances of the present case where the offender Rusu wishes to establish (for the first time on appeal) that he had a more junior role to his co-offender, Mato, he carried the onus of establishing that. For the reasons given by Hall J, he failed in that endeavour.

24. [141]

    The important point in the circumstances of the present case is it was not necessary for the Crown to prove facts that put Rusu into a particular category. It was enough for the Crown to prove what he did.