R v Klasan[2007] QCA 268

SUPREME COURT OF QUEENSLAND 

[1]  de JERSEY CJ:  On 1 May 2007 the applicant pleaded guilty to carrying on the business of unlawfully trafficking in cocaine and ecstasy at Brisbane and elsewhere in Queensland between 1 May 2002 and 27 September 2002.  The applicant was aged 35-36 years at the time of offending, and was 40 years of age at the time of sentence.  He had no prior criminal history. 

[2]  On 2 and 3 May 2007 the learned sentencing Judge heard evidence adduced by the prosecution, in the form of the recordings of numerous telephone calls, in order to determine disputed matters of fact.  The applicant did not give or call evidence.  The Judge then expressed his findings. 

[3]  On the basis of those findings, the prosecutor submitted for a range of 10 to 12 years imprisonment.  Counsel for the applicant did not dispute that range, although he urged that the Judge sentence at its lower level.  The learned Judge imposed a sentence of 11 years imprisonment, and that, by s 161A(a) of the Penalties and Sentences Act 1992 (Qld), meant the applicant was convicted of a serious violent offence. 

[4] In contending that the 11 years term is manifestly excessive, the applicant now challenges two of the findings made by the Judge, as emerges from these amended grounds of appeal:

“(a)The learned sentencing Judge erred in finding that the references ‘20, 20, 20’ on the telephone call of 9 August 2002 at 7.02pm were references to weights in ounces of the drug cocaine rather than references to sums of money;

(b)    The learned sentencing Judge erred in finding that the applicant was involved in the distribution of cocaine to the extent alleged by the Crown.”

[5]  The issue is whether the relevant findings were reasonably open, not whether this appellate Court would necessarily itself have made those findings.  We have perused the transcript of relevant calls.  Counsel did not suggest we would, at this appellate level, be advantaged by listening to the tapes as did His Honour.  Substantial reference was made to the transcript of the calls at the hearing before us.

[6]  The learned Judge was presented with a summary of facts which became exhibit one.  That summary reveals the applicant dealing in wholesale quantities of ecstasy tablets and large amounts of cocaine.

[7]  It was undisputed that in relation to ecstasy, the applicant dealt at a wholesale level with one Raciti, in quantities of 500 to 600 tablets worth approximately $10,000.  With a person Betham, he dealt in quantities of the order of 1,000 to 3,000 tablets.

[8]  But in addition, and even more significantly for sentencing purposes, the applicant dealt in large quantities of the schedule one drug cocaine.  There was a large stockpile of cocaine in Cooktown, astonishingly washed up ashore after a ship foundered in the Coral Sea.  Unsurprisingly it attracted evil patronage.  The applicant sought to obtain large quantities from the stockpile through one Porter, via Mustafa, then one Varitimos to the applicant, with subsequent supply to Betham, Nabhan and other drug dealers in Sydney.  It was the applicant’s belief he had secured “sole rights” to the cocaine originating through this Cooktown connection.

[9]  The prosecution position was that the applicant twice expected substantial supplies along this chain.

[10]  The first occasion, 8 to 9 August 2002, involved an expected supply of 60 ounces of cocaine over three days, as an introduction for purchasers to large scale continuing supplies.  That scenario did not proceed however beyond a one ounce sample, because of “jitters” experienced by the Cooktown suppliers.

[11]  For the second occasion, the applicant had arranged to receive five kilograms of cocaine.  That transaction was aborted by police intervention.  Porter was intercepted at Brisbane Airport in possession of almost seven kilograms of cocaine, from which, on the Crown case, five kilograms were destined for Mustafa, thence the applicant. 

[12]  The first matter of factual dispute to be resolved by His Honour was whether the proposed transaction on 8 to 9 August 2002 involved $60,000 worth of cocaine (that is, 3 x $20,000), or the much more substantial deal, as accepted by the Judge, of 60 ounces (that is, 3 x 20 ounces), or approximately 1.7 kilograms.  It fell to His Honour to interpret what was said by parties to telephone conversations.  The prosecutor informed the Judge that “things are said in, for want of a better word, code and that really is one of the issues in relation to this contested sentence, what some of the conversations mean”.  His Honour listened to the relevant intercepted telephone calls in the course of the two day hearing.  That obviously placed him potentially in a very good position to determine what they meant. 

[13]  The calls disclosed the applicant had procured Varitimos to cultivate Mustafa to secure “sole rights” for any of the Cooktown cocaine received by Mustafa.  The applicant believed he had been successful in that.  Having listened to the calls, His Honour was also in a good position to assess the respective roles of the participants.  He was justified in designating the applicant the leader of the group. 

[14]  Having heard the calls, he was also entitled to conclude that in the period 8 to 9 August 2002, the applicant was expecting to source significant quantities of cocaine, which he would then supply to others.  It was not disputed that a one ounce sample was delivered on 8 August 2002.  When the proposed larger transaction did not eventuate, the applicant complained to Varitimos about lost opportunity. 

[15]  In that particular call on 9 August 2002, the applicant said the purchasers had been waiting since the previous Wednesday and were unhappy because they only got one (ounce), and that “they wanted to go, they wanted to go um three days, 20, 20, 20”. In the context of the calls, His Honour was justified in finding that to be a reference to 20 ounces, consistently with the size of the transactions the applicant was hoping to fulfil.  The preceding reference to ‘one’, just before, was obviously to one ounce, not one dollar.  (The one ounce was supplied for $4,400.)  That provides a compelling foundation for the conclusion ‘20’ referred to quantity not price. 

[16]  Mr Byrne QC sought to challenge His Honour’s interpretation by references to things said by other persons in other conversations.  None of those references provides reliable ground from which to doubt His Honour’s interpretation of the instant conversation.

[17]  That the Cooktown source was able to supply very large quantities of cocaine is demonstrated by the fact that Porter was carrying seven kilograms when intercepted at Brisbane Airport. 

[18]  People who speak in ‘code’ in an endeavour to conceal their criminal intent cannot complain when a court, doing its rational best to decipher what was said, is in the end unable to present a comprehensively precise basis for the interpretation adopted.  In this case, however, there was a reasonably precise basis for the deciphering of the code.  It sufficed in this case for the court to rely on the close proximity between the references to “one” and “20”:  that provided, as said, a compelling justification for His Honour’s conclusion.

[19]  In these circumstances the Judge was justified drawing the inference that the applicant was “expecting to negotiate to obtain and further sell significant quantities of cocaine”, and that the references to “20” were to weights in ounces.

[20]  It has been submitted for the applicant that His Honour did not apply the applicable, strict standard of proof in his approach to the findings he made.

[21] I set out the following passage from his findings:

“Mr Glynn SC for you submitted that an equally plausible inference was that the references to ‘20, 20, 20’ were references to lots of five ounces worth of cocaine, each worth approximately $20,000 rather than three lots of 20 ounces worth perhaps $80,000 each, and that I could not be satisfied to the requisite standard that the quantities were such as you were speaking of.  It seems to me, however, to be more probable than not, even on the strict standard which applies to cases like this, that the references, admittedly to quantities of cocaine, are much more likely to be references to weights expressed in ounces than to dollar figures, having regard to the reference by you to one ounce, which I think is legitimate to infer was referred to immediately before in that conversation.  In any event, it is a clearly available inference that you were expecting to negotiate to obtain and further sell significant quantities of cocaine.”  (emphasis added)

[22]  There is no basis for doubting that His Honour applied the correct standard of proof, as prescribed by s 132C sub-ss (3) and (4) of the Evidence Act 1977 (Qld). 

[23]  I turn to the second presently significant finding of fact, as to the applicant’s involvement in the five kilogram transaction.  After the playing of the tapes of the relevant telephone calls, the defence no longer disputed before His Honour that the applicant expected to receive substantial quantities of cocaine on a continuing basis.  But it was disputed whether the applicant knew the transaction of 24 September 2002 involved five kilograms.  There was a suggestion that Varitimos may have kept the actual quantity from the applicant, acting on his own behalf in relation to some of it. 

[24]  Now it must at once be said that on any view of the matter, the applicant was clearly intent on obtaining access to very large quantities of cocaine for purposes of supply at substantial profit.  As the Judge found:  “It is a clearly available inference that you were expecting to negotiate to obtain and further sell significant quantities of cocaine”.  The calls establish that the applicant believed he had secured “sole rights” to the supply chain from Cooktown for a very substantial quantity.  He was “shattered” when that supply was interrupted because of police intervention.

[25]  But beyond that, the Judge was justified in finding the applicant was involved in this particular five kilogram transaction.  There were calls where the applicant directed Varitimos to cultivate his contact with Mustafa to obtain the sole rights, and believed he had done so.  There was continuing anticipation of a successful supply leading up to 24 September 2002, including the applicant enquiring of Varitimos whether it was “sorted”.  Then following the interception, one hears the applicant discussing his disappointment with Varitimos.

[26]  Before His Honour, it was argued Varitimos may have been acting separately from the applicant in relation to some of that cocaine.  But there was no evidence Varitimos had any other avenue through which to sell large quantities of the drug, other that is, than through the applicant.  His Honour was entitled to reject that contention.  It is now suggested before us that on an earlier occasion Varitimos had bypassed the applicant and supplied cocaine to Kozionas for Raciti.  But the calls reveal that particular transaction was conducted on the applicant’s behalf and at his direction.

[27] It remains to mention a contention raised on the hearing of the application, that His Honour had effectively reversed the onus of proof.  Counsel for the applicant fastened upon His Honour’s statement, in the context just covered:

“What leads me to conclude that it is unlikely that he [Varitimos] was operating separately from you [the applicant] is that there was no suggestion that he had some alternative to supplying you, where it was you who was able to link into subsequent purchasers such as Betham.”

[28]  It was submitted His Honour thereby, “by relying principally upon the absence of a suggestion of an alternative supply chain, reversed the onus of proof”.  But His Honour was suggesting no more that this, as my synthesis of the implicit position on appeal:  this multitude of intercepted telephone calls reveals the network among these respective participants, from which the court may discern their comparative roles; the detail emerging from those intercepted calls gives a reasonably comprehensive picture of that network, and had there been an alternative line of supply, one would have expected it to emerge in the course of those calls. 

[29]  This rather contrived suggestion of a reversal of the onus should in my view be rejected. 

[30] There was a related suggestion that because His Honour was circumspect about accepting the prosecutor’s abandonment of a particular point, there was “almost a presumption on the part of” the Judge “in favour of the prosecution case theory”.  Mr Byrne QC expressed his submission in the following form:

“The prosecutor’s original position … alleged a discussion between the applicant and Varitimos in ‘code’ about the cost of cocaine, namely $6,500 per ounce.  This interpretation by the prosecutor was based upon the phrase ‘65 cents per litre’ in call number 61.  This interpretation was not pressed by the prosecutor in the course of submissions.  In fact the prosecutor conceded ‘it probably isn’t in fact a reference to the price of cocaine’…

Despite the prosecutor withdrawing this allegation of fact, the learned sentencing Judge still considered the price of petrol and cocaine at the relevant time before finding he was not satisfied the inference could reliably be drawn.  This demonstrates almost a presumption on the part of the learned sentencing Judge in favour of the prosecution case theory unless it was shown by the applicant to be inconsistent with some external evidence.”

[31]  The Judge’s approach was no more than appropriately cautious.  Counsel’s thinly veiled allegation of bias against the Judge is unwarranted and inappropriate.

[32]  The findings made by His Honour were in my view open and justified.  In any event, even if the applicant did not know the precise quantity to be delivered along the chain on 24 September 2002, the sentence of 11 years imprisonment was justified.  Likewise in relation to the 8 to 9 August transaction, whether the deal was of the order of 15 ounces of cocaine as a prelude to continuing substantial supply, or 60 ounces as contended for by the Crown: on either view the applicant’s involvement was still substantial. 

[33]  His Honour’s findings not being vulnerable to challenge, the sentence imposed is unassailable, and it is significant that counsel before His Honour were effectively at one as to the range (10 to 12 years).  Counsel before us at one stage conceded that if the factual findings stand, the penalty imposed was appropriate.  The sentence imposed is justified in the context of R v Bradforth [2003] QCA 183 and R v Raciti [2004] QCA 359.  Anything less would in my view have been inadequate and not sufficiently deterrent in a field where general deterrence is a prime goal.

[34]  Mr Byrne did however subsequently seek to contrast the involvement of Mustafa, whose penalty (imposed by another Judge) was 12 years imprisonment, and that of the present applicant.  In terms of comparative criminality and other relevant considerations, there was no reason why this applicant should have received a lesser term than 11 years.  Mustafa was sentenced for large scale trafficking in heroin, and assisting Varitimos (thence the applicant) in relation to cocaine.  Significantly, unlike Mustafa, this applicant contested the facts, so that Mustafa’s pleas of guilty carried substantially more weight.  Also, with the sentencing of multiple offenders at this level, suggestions that disparate sentences should be susceptible of precise arithmetic reconciliation should be rejected.  In addition, some allowances must in the end be made for inevitable differences in the legitimately varying approaches of respective Judges to these value judgments.

[35]  I would refuse the application for leave to appeal against sentence.

[36]  JERRARD JA:  I agree that the application should be dismissed, for the reasons given by the learned Chief Justice. 

[37]  KEANE JA:  I agree with the Chief Justice.