Kemal v R

1. [1]

   SIMPSON AJA: I have had the advantage of reading in draft the judgment of Bellew J, in which the relevant facts and circumstances are comprehensively set out. I agree with the orders proposed by his Honour, and generally with his Honour’s reasons. Some points are worth emphasising.

2. [2]

   By s 3.1(1) of the Criminal Code (Cth) (“the Code”) an offence against a law of the Commonwealth consists of physical elements and fault elements. By s 4.1(1) a physical element may be conduct, a result of conduct, or a circumstance in which conduct, or a result of conduct occurs. By s 5.1(1) a fault element may be intention, knowledge, recklessness or negligence.

3. [3]

   The charge to which the applicant pleaded guilty was of an offence against s 307.1(1) of the Code. Section 307.1(1) is in the following terms:

4. [4]

   By subs (2) of s 307.1 the fault element for par 1(b) (that is, the nature of the substance imported) is recklessness. “Recklessness” is defined in s 5.4 relevantly in the following way:

5. [5]

   The applicant’s plea of guilty to the charge carried with it an acknowledgment, in terms of s 5.4, that he was aware of a substantial risk that the substance he was carrying was a border controlled drug, and that, having regard to the circumstances known to him, it was unjustifiable to take the risk.

6. [6]

   The sole ground of the proposed appeal is that the sentencing judge;

7. [7]

   The source of the applicant’s complaint is to be found in a single passage in the reasons given for the sentence, as follows:

8. [8]

   A little later, her Honour said:

9. [9]

   It may be observed that what her Honour said in each passage significantly understated what the applicant had admitted, which was that, more than turning his mind to the possibility that the substance he was carrying was a border controlled drug, or adverting to that risk, he was aware of a substantial risk that that was so. Counsel posited that the understatement might explain why the assessment of the level of recklessness was “relatively high”.

10. [10]

    The real answer to the applicant’s complaint, however, is that, in circumstances where recklessness (as defined and including awareness of a substantial risk that the substance was a border controlled drug) was admitted, and a given, there was no call for the sentencing judge to determine whether the applicant was reckless (and thus to apply a “test for recklessness”), and her Honour did not so. Her task was to determine, for the purposes of the assessment of objective gravity, the degree of recklessness in the applicant’s conduct. In the second sentence of the passage of which complaint is made, her Honour was recognising that the relevant fault element was recklessness, contrasted with what may be seen as a higher level fault element, knowledge.

11. [11]

    The passage of which the applicant now complains contributed nothing to the assessment of the degree of recklessness. It was factual background against which to make the assessment. There was no error in the approach taken by the sentencing judge.

12. [12]

    ADAMSON J: I agree with the orders proposed by Bellew J and with his Honour’s reasons. I also agree with the additional remarks of Simpson AJA.

13. [13]

    BELLEW J: Konuk Kemal (the applicant) pleaded guilty in the District Court [1] to the following offence:

14. [14]

    That offence was contrary to s 307.1(1) of the Criminal Code 1995 (Cth) (the Code) and carried a maximum penalty of life imprisonment.

15. [15]

    On 20 November 2020, the applicant was sentenced by her Honour Judge Tupman to imprisonment for 7 years and 6 months commencing 7 October 2018 and expiring on 6 April 2026, with a non-parole period of 4 years commencing on 7 October 2018 and expiring on 6 October 2022.

16. [16]

    The applicant now seeks leave to appeal against that sentence on the single ground considered below.

THE FACTS OF THE OFFENDING

1. [17]

   Her Honour found the facts of the offending to be as follows. [2]

2. [18]

   On 6 October 2018 the applicant boarded a flight at Larnaca Airport bound for Doha, where he caught a connecting flight to Sydney, arriving on the evening of 7 October 2018. His return flight was booked to leave Sydney for Cyprus on 12 October 2018.

3. [19]

   On arrival in Sydney, the applicant completed an incoming passenger a card in which he declared that he was an IT engineer, that he was intending to stay in Australia for a six day holiday, and that he was not bringing anything into Australia which was illegal, including illicit drugs.

4. [20]

   Having collected his suitcase, the applicant was stopped by an Australian Border Force (ABF) officer and taken to an examination area. His suitcase was subject to an x-ray which indicated anomalies. He was then taken to an interview room where he told ABF officers that he had travelled from Larnaca and was intending to stay in Sydney for six days. He also said that he had been given the suitcase by a friend.

5. [21]

   The ABF officers seized the applicant’s phone before examining the suitcase, in the course of which small pieces of a crystal-like substance were detected. A presumptive test was conducted on that substance which was positive for the presence of methamphetamine and cocaine. The applicant was then placed under arrest and was interviewed by officers of the Australian Federal Police. He told them that he was unaware of the contents of the suitcase before stopping the interview, saying that he did not feel well. He was then taken outside by an Australian Federal Police officer to have a cigarette, at which time he asked the officer to show him what was in the bag. The applicant then claimed to have borrowed the bag, saying that a friend had given it to him and that it was not his. He also said that thought he had been set up.

6. [22]

   A subsequent police examination revealed that the applicant’s bag in fact consisted of two identical brand suitcases which had been placed inside each other and glued together to give the appearance of a single suitcase. Police found two packages of a white crystalline substance inside the lining which, on subsequent analysis, was found to be methamphetamine. It had a gross weight of 2,793.5g with a purity of 80.3%, yielding 2,243.1g of pure methamphetamine. Swabs were taken from the plastic bags containing the methamphetamine but no DNA could be detected. Police were also unable to obtain any fingerprints.

7. [23]

   Police later examined the applicant’s phone and found a number of conversations which had been conducted over the “WhatsApp” platform. Although not referred to in detail in her Honour’s reasons, those conversations were set out in full in the agreed facts which were tendered. [3]

8. [24]

   In a conversation between the applicant and “Rasta” on 28 September 2018, the following was recorded: [4]

9. [25]

   In a conversation between the applicant and his sister, Burna Deveci, on 3 October 2018, the following was recorded: [5]

10. [26]

    In a conversation between the applicant and “My baby” on 3 October 2018, the following was recorded: [6]

11. [27]

    In a conversation between the applicant and “Kenya” on 4 October 2018, the following was recorded: [7]

The sentence proceedings

1. [28]

   The applicant gave evidence that a person by the name of Murat Bulat (Bulat) had booked his flights [8] and that he (the applicant) was not responsible for the use of the credit cards which were used to make his hotel reservations. [9] He said that he had met Bulat in Cyprus in 2007 [10] and that he was a “normal person”. [11]

2. [29]

   The applicant said that Bulat had put the bag in the taxi that he (the applicant) had caught to the airport in Larnaca, and that he had never actually handled the bag until he arrived at the airport. [12] However, he said that he had met with Bulat before getting into the taxi at which time he saw inside the bag. [13]

3. [30]

   He was then asked: [14]

4. [31]

   The applicant said [15] that Bulat had said that:

5. [32]

   The applicant also said [16] that Bulat had said asked him:

6. [33]

   The applicant's evidence in chief then continued: [17]

7. [34]

   Her Honour then asked: [18]

8. [35]

   Later, the applicant was asked: [19]

9. [36]

   The applicant said that he had been offered USD$3,000.00 to bring the suitcase to Australia [20] and that he was in debt for USD$4,000.00. [21] He described himself as being under “very much financial pressure” at the time. [22]

10. [37]

    In cross examination, the applicant was asked about his state of mind at the time of committing the offence: [23]

11. [38]

    Her Honour then asked (in reference to the WhatsApp conversation with “Kenya”): [24]

12. [39]

    The applicant was then asked: [25]

13. [40]

    The cross-examination of the applicant concluded with the following: [26]

14. [41]

    In written submissions provided to the sentencing judge, the applicant’s solicitor put the following: [27]

15. [42]

    The applicant’s solicitor subsequently submitted that it would not be open to the sentencing judge to find that the applicant was actually aware of the presence of the amphetamine, but accepted that the evidence supported a finding that the applicant was “clearly cognizant of the risk that there may have been” [amphetamine in the suitcase]. [28]

16. [43]

    The applicant’s solicitor then extended this submission somewhat, by putting to her Honour that it was not open to infer that the applicant was “aware of the risk” that the suitcase might contain “drugs specifically”. [29] In considering this submission, and specifically in the context of the WhatsApp conversation with Rasta on 28 September, her Honour said: [30]

17. [44]

    In written submissions [31] the Crown put its case on the basis that the applicant had acted recklessly in committing the offence. In oral submissions, the Crown maintained that position and expressly disavowed any assertion that the applicant had actual knowledge of the presence of the amphetamine. [32] However, the Crown submitted that the sentencing judge should view the applicant’s account of his level of knowledge with a “high degree of scepticism” [33] and that the evidence established that the applicant was aware that he was importing something illegal. [34]

The findings of the sentencing judge

1. [45]

   In the course of the Crown’s cross-examination of the applicant, the sentencing judge queried the forensic purpose of some of the questions which were being put in light of the Crown’s position that the applicant had acted recklessly. In doing so her Honour remarked: [35]

2. [46]

   In her reasons, the sentencing judge acknowledged that she was required to sentence the applicant in accordance with Part 1B of the Crimes Act 1914 (Cth), and that this, in turn, required her to take into account a number of factors, including the nature and circumstances of the offending. [36] In doing so, her Honour reviewed a number of aspects of the evidence [37] including:

3. [47]

   Having specifically referred to the WhatsApp conversation with “Rasta” on 28 September, her Honour said: [38]

4. [48]

   After reviewing the evidence, including what the applicant himself had said, her Honour expressed the following conclusion (the italicised part of the final paragraph being the focus of the ground of appeal): [39]

Submissions of the applicant

1. [49]

   It was submitted that in reaching the conclusion that the applicant had exhibited a high level of recklessness, her Honour had applied the incorrect test. In this regard, counsel emphasised what her Honour had said in the italicised passage above, and submitted that the terms of that passage reflected her Honour having applied the common law test of recklessness, rather than the test for recklessness which is set out in the Code.

2. [50]

   Such a conclusion, it was submitted, was reflected in her Honour’s reference to the appellant having turned his mind to the possibility that there was a border-controlled substance in the suitcase. Counsel submitted that her Honour was bound to apply the test for recklessness in the terms in which it is expressed in the Code, and which makes reference, not to a possibility, but to the existence of a substantial risk. Counsel submitted that it was not to the point that, in approaching the matter as she had, her Honour had arguably applied a less stringent test than that for which provision is made in the Code.

3. [51]

   In all of these circumstances, it was submitted that the ground of appeal was made out and that this Court should proceed to re-sentence the applicant in the fresh exercise of the sentencing discretion.

Submissions of the Crown

1. [52]

   The Crown accepted that if a conclusion were recached that the sentencing judge had applied the common law test of recklessness in assessing the applicant’s level of criminality, an error would be established. However, it was submitted that the sentencing judge had adopted a conventional approach to her assessment, and had correctly applied the law.

2. [53]

   The Crown submitted, in particular, that it was evident from the passages of her Honour’s reasons set out above that her Honour had assessed the nature and circumstances of the offending by reference to all of the evidence, including what the applicant himself had said. Counsel submitted that in terms of his level of knowledge, the effect of what the applicant had said was that he had adverted to the possibility that there were prohibited drugs in the suitcase, but proceeded to effect the importation in any event. This, it was submitted, was the source of her Honour’s use of the word “possibility” in her reasons. Counsel submitted that, understood in that way, her Honour was simply paraphrasing what the applicant had said, rather than applying an incorrect test.

3. [54]

   It was submitted that in these circumstances the asserted error had not been established.

Consideration

1. [55]

   Chapter 2 of the Code makes provision for general principles of criminal responsibility in respect of Federal offenders. To begin with, s 3.1(1) provides that an offence consists of:

2. [56]

   Section 5.1 addresses fault elements and is in the following terms:

3. [57]

   Section 5.4 defines recklessness as follows:

4. [58]

   As I have noted, the Crown put its case, in respect of the requisite fault element, on the basis that the applicant was reckless. In other words, for the purposes of s 5.4 of the Code, the Crown case was that:

5. [59]

   The reference to “substantial risk” in the definition of recklessness in the Code may be usefully contrasted with the test for recklessness at common law, under which the Crown must establish an awareness on the part of an accused of the possibility of the relevant circumstance, along with the fact that such accused proceeded, with that awareness, to perform the relevant act. [40] It is the applicant’s case that her Honour incorrectly applied the common law test, rather than the provisions of the Code, when assessing the applicant’s criminality generally, and his degree of recklessness in particular.

6. [60]

   The applicant pleaded guilty to the offence of importing a border controlled substance. That plea constituted an admission by the applicant to all of the elements of that offence, [41] including the fact that he had acted recklessly according to the definition contained in the Code.

7. [61]

   When giving evidence in the sentence proceedings, the applicant explained, on three separate occasions, that he thought at varying times that there “could” be drugs secreted in the suitcase. In other words, the applicant had turned his mind to the possibility that drugs were secreted. That evidence was not, of course, given by the applicant by reference to the provisions of the Code but was expressed (through an interpreter) in more colloquial terms. It could not be suggested that by expressing himself in that way, the applicant was traversing his plea of guilty.

8. [62]

   Against that background, her Honour was required, as part of the process of determining an appropriate sentence, to make an assessment of the nature and circumstances of the offending. [42] That necessarily included making an assessment of the applicant’s criminality, and his level of recklessness. Her Honour undertook that task by reviewing the evidence before her, including aspects of the what the applicant himself had said. Her Honour concluded, by reference to “evidence taken together, including (the applicant’s) evidence,” that the applicant had “turned his mind to that possibility” (i.e. the possibility of the presence of drugs in the suitcase), and that having done so, he had nevertheless proceeded with the importation and in doing so, had acted in a manner which was highly reckless.

9. [63]

   Reasons for sentence cannot be parsed. They must be read as a whole. In the context of the present case, that means that her Honour’s reference to the applicant having “turned his mind to the possibility” that drugs were in the suitcase is not to be viewed in isolation, completely divorced from the passages of the reasons which preceded it. Importantly, in those preceding passages her Honour expressly alluded to the applicant’s evidence. Viewed in this way, her Honour’s reference to the applicant having turned his mind to, and considered, the possibility that drugs were present in the suitcase does not reflect the application of an incorrect test. In expressing that part of her conclusion in those terms, her Honour was doing no more than paraphrasing, for the purposes of her assessment of the applicant’s criminality, what the applicant himself had said about his state of mind at the time of committing the offence.

10. [64]

    For these reasons the ground of appeal is not made out.

ORDERS

1. [65]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.