Citation: Valsamakis v R [2016] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 4 August 2016
Judges: Bathurst CJ, Hall J, R A Hulme J
Background
The applicant was a Customs officer stationed at Sydney International Airport whose primary duties included detecting and preventing illegal cross-border activity. Between late 2011 and mid-2012, he participated in a criminal enterprise involving corrupt Customs colleagues and a baggage handler, all of whom abused their positions to facilitate the importation of pseudoephedrine into Australia. The scheme involved bribing officers, manipulating rosters, and disabling CCTV surveillance to ensure couriers and their drug-laden luggage passed through the airport undetected.
The applicant pleaded guilty in the District Court to four counts: conspiracy to import a commercial quantity of a border controlled precursor (a rolled-up count covering five importations), bribery of a Commonwealth public official, and two counts of abuse of public office for advantage. He was sentenced to an aggregate of 9 years' imprisonment with a non-parole period of 6 years.
On sentence, the applicant's co-offenders David Harb and Bruno Napoli were dealt with at the same time. Other participants, including senior Customs officer Christopher Cranney and Adrian Lamella, were sentenced separately. The applicant sought leave to appeal his sentence on four grounds.
Legal Issues
- Whether the sentencing judge misapplied the parity principle, particularly in comparison with sentences imposed on co-offenders Cranney, Napoli, Harb, and Lamella
- Whether the sentencing judge gave insufficient weight to the applicant's cooperation with law enforcement authorities
- Whether the sentencing judge failed to give adequate weight to the nature and ongoing severity of the applicant's imprisonment, including time spent in protective custody
- Whether the sentences were, in all the circumstances, manifestly excessive
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds.
On parity, the court found no marked disparity between the applicant's sentence and those of co-offenders that would give rise to a justified sense of grievance. While Cranney held a more senior position and received a 14-year starting point for his conspiracy charge, the court noted that the applicant's conspiracy involved five importations compared to Lamella's three, and that Lamella's undiscounted starting point of 16 years had been assessed as toward the lower end of the appropriate range for less serious conduct. A starting point below 16 years for the applicant would have inadequately reflected the objective seriousness of his offending. Ground 1A, added by amendment to address Cranney's later sentence, was also dismissed.
On the cooperation discount, the court considered the evidence of assistance provided and accepted that the sentencing judge had taken this into account. The court was not persuaded that any error was established in the degree of the discount applied.
Regarding the conditions of custody, the applicant had been held in protective custody at Long Bay Correctional Centre's Special Protection Centre. The court acknowledged this as a relevant consideration in sentencing, but concluded the sentencing judge had properly taken those circumstances into account and no error was demonstrated. The court also rejected the contention that the sentences were manifestly excessive, finding the aggregate sentence fell within an appropriate range given the gravity of the offending by a law enforcement officer whose duties were specifically directed at preventing the very conduct he facilitated.
Orders Made
- Leave to appeal against sentence granted
- The appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that parity requires a "marked disparity" giving rise to a justified sense of grievance, and differences in the number of importations charged and the relative seriousness of each co-offender's conduct are legitimate factors distinguishing sentences, even where co-offenders are charged under the same conspiracy.
- Differential charging of co-offenders within the same conspiracy does not of itself establish a parity error; the court must assess the totality and relative culpability of each offender's participation.
- Where a sentencing judge has already assessed a co-offender's undiscounted starting point as toward the lower end of an appropriate range, a lesser starting point for a more culpable offender would be inconsistent with proper sentencing principle.
- Protective custody conditions are a legitimate consideration in the assessment of the ongoing severity of imprisonment, but the sentencing court must be shown to have failed to take those conditions into account before an error is established.
- An offender's position as a law enforcement officer, whose specific duties included preventing the very conduct charged, is a significant factor going to the objective seriousness of the offending.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 11.5(1), 307.11(1), 141.1(3), 142.2(1)
- Crimes Act 1914 (Cth)
Cases
- Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
- Postiglione v The Queen [1997] 189 CLR 295
- Markarian v R [2005] HCA 25; 228 CLR 357
- Jimmy v R [2010] NSWCCA 60
- R v Lamella [2014] NSWCCA 122
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- SL v R [2015] NSWCCA 30
- SZ v R [2007] NSWCCA 19; 168 A Crim R 249
- FS v R [2009] NSWCCA 301; 198 A Crim R 383
- Haouchar v R [2014] NSWCCA 227
- R v Henderson [2014] QCA 12
- England v R; Phanith [2009] NSWCCA 274
- Lewins v R [2007] NSWCCA 189; 175 A Crim R 40
- R v Chandler; Chandler v R [2012] NSWCCA 135
- R v Joseph Sukkar [2006] NSWCCA 92; 172 A Crim R 151