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Court of Criminal Appeal 18 December 2015

Mato v R; Rusu v R

[2015] NSWCCA 328

DrugsFraud & dishonesty
CRIMINAL LAW APPLICANTS WERE CO APPEALS DISMISSED

Citation: Mato v R; Rusu v R [2015] NSWCCA 328
Court: NSW Court of Criminal Appeal
Date: 18 December 2015
Judge(s): Gleeson JA; Hall J (principal judgment); Campbell J

Background

Two co-offenders were convicted after a jury trial in the District Court of conspiracy to import a commercial quantity of cocaine and dealing with the proceeds of crime exceeding $1 million. Between 2005 and 2006, they orchestrated six successful cocaine importations from Los Angeles totalling at least 209 kilograms, using a corrupt freight forwarding employee to generate false customs documentation and clear the shipments through Sydney.

The sentencing judge imposed an effective sentence of approximately 30 years on the first applicant and approximately 29 years and nine months on the second, with non-parole periods of 19 years and 18 years and 10 months respectively. Both sentences involved partial accumulation of the proceeds offence and the conspiracy offence.

Each applicant sought leave to appeal against sentence in the Court of Criminal Appeal, raising overlapping but distinct grounds including manifest excess, errors in accumulation and totality, parity between co-offenders, and the second applicant's assertion that his role in the conspiracy was less significant than his co-offender's.

  • Whether the sentences imposed were manifestly excessive having regard to the nature and scale of the offending
  • Whether the sentencing judge erred in accumulating the sentences for the conspiracy and proceeds offences, or in applying the totality principle
  • Whether the parity principle required the imposition of equal sentences on the co-offenders despite differences in their criminal histories and the amounts of money each dealt with
  • Whether the second applicant (Rusu) should have been permitted on appeal to argue for the first time that his role in the conspiracy was lesser than that of his co-offender, and if so, whether that argument succeeded
  • What onus of proof applies at sentencing when an offender seeks to establish a more junior role in a criminal enterprise

Decision

The Court dismissed both appeals, finding no error in the sentencing judge's approach on any of the grounds raised.

On manifest excess, the Court held that the sentences were not outside the range appropriate to the gravity of the offending. The conspiracy involved six successful importations of very large quantities of cocaine over an extended period, with both applicants as organisers who recruited and paid a key insider approximately $1.4 million. The scale and sophistication of the operation warranted the substantial sentences imposed.

On totality and accumulation, the Court found no error. The proceeds offences involved criminality additional to and distinct from the conspiracy itself, specifically the handling of the drug money flowing from the importations. Partial accumulation appropriately reflected that additional criminality without creating a crushing overall sentence disproportionate to the total offending.

On parity, the Court rejected the argument that identical sentences were required. Differences between the co-offenders in criminal history, and in the amount of money each dealt with for the proceeds offence, justified the modest differences in their sentences. Neither applicant demonstrated a justified sense of grievance of the kind recognised in Green v R; Quinn v R.

Regarding Rusu's attempt on appeal to argue a lesser role, the Court (Hall J, with Campbell J agreeing) held that this argument had not been raised before the sentencing judge and leave to appeal on the objective seriousness grounds was refused. Campbell J clarified the applicable onus: where an offender seeks to establish a more junior role in order to attract a lighter sentence, the onus falls on the offender to prove that on the balance of probabilities. Where the prosecution seeks to establish a more senior role as an aggravating circumstance, it must prove that beyond reasonable doubt. In this case, Rusu had not discharged his onus.

Orders Made

Application by Mato:
- Leave to appeal granted
- Appeal dismissed

Application by Rusu:
- Leave to appeal against sentence on Grounds 1 (objective seriousness) and 2 (disparity) refused
- Leave to appeal against sentence on Ground 3 (totality) granted
- Appeal dismissed

Key Takeaways

  • In dismissing both appeals, the Court of Criminal Appeal confirmed that sentences for large-scale, sophisticated drug importation conspiracies of this magnitude were not manifestly excessive even where the effective terms approached 30 years.
  • Where a proceeds of crime offence involves distinct criminality beyond the underlying drug conspiracy, partial accumulation of sentences is appropriate and does not necessarily offend the totality principle.
  • The parity principle does not require equal sentences for co-offenders where there are genuine differences between them, including differences in criminal history or in the quantum of money handled for a proceeds offence.
  • A co-offender who seeks, for the first time on appeal, to establish a lesser role in a criminal conspiracy faces the onus of proving that on the balance of probabilities; it is not for the Crown to disprove a junior role beyond reasonable doubt where no such issue was live at sentencing.
  • No general rule requires a sentencing court to identify the precise nature of each co-offender's involvement in a drug importation as an essential element of the sentencing exercise, though differentiation of roles remains permissible and useful where the evidence supports it.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(a)(iii) (since repealed)
- Criminal Code Act 2005 (Cth), s 400.3(1)
- Criminal Code 1995 (Cth), Pt 9.1
- Crimes Act 1900 (NSW)

Cases:
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- R v Storey [1998] 1 VR 359; 89 A Crim R 519
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- House v The King (1936) 55 CLR 499
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Johnson v R (2004) 78 ALJR 616
- Nahlous v The Queen [2010] NSWCCA 58; 77 NSWLR 463
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Loader v R; Dunn v R [2013] NSWCCA 215
- Zreika v R [2012] NSWCCA 44
- Romero v R [2011] VSCA 45; 206 A Crim R 519
- Thorn v The Queen [2009] NSWCCA 294
- Dela Cruz v The Queen [2010] NSWCCA 333
- R v Knight (2005) 155 A Crim R 252
- R v MAK [2006] NSWCCA 381