R v Kulatunge[2023] QCA 252

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The applicant, Mr Kulatunge, and his co-accused Mr Dumenil were charged with one count of importing a commercial quantity of a border-controlled drug and one count of attempting to possess a commercial quantity of a border-controlled drug.
2. [2]
   Mr Dumenil pled not guilty to both counts.  Mr Kulatunge pled guilty to the offence of attempting to possess a commercial quantity of an unlawfully imported a border-controlled drug, but not guilty to the offence of importing a commercial quantity of a border-controlled drug.
3. [3]
   After a nine day trial, the jury returned a verdict of guilty against Mr Dumenil in respect of the offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug.  The jury were unable to reach a verdict on the importing offence and the prosecution elected not to prosecute it further.
4. [4]
   Following the trial, Mr Kulatunge and Mr Dumenil were remanded in custody until sentencing submissions were taken on 30 January 2023.  The primary judge, observing that there were disputed questions of fact upon the sentence, adjourned his decision upon sentence “to review” the evidence.  The primary judge was “required to determine the facts relevant to the sentencing process” provided the facts found were consistent with the jury’s verdict.^[1]  On 8 February 2023, the primary judge sentenced Mr Kulatunge to 12 years’ imprisonment with a non-parole period of seven years and two months.  Mr Dumenil was sentenced to 11 years’ imprisonment with a non-parole period of seven years and two months.
5. [5]
   Mr Kulatunge argues that the sentence is affected by two errors of principle and that upon a re-exercise of sentence discretion, the appropriate sentence for Mr Kulatunge is a head sentence equivalent to that of Mr Dumenil of 11 years but with a non-parole period of “not greater than” six years’ imprisonment.
6. [6]
   The two errors of principle alleged by Mr Kulatunge are:

   1. Breach of the parity principle;
   2. Breach of the principles in Strbak v The Queen (2020) 267 CLR 494.

Grounds 1 and 2 Parity and Strbak

7. [7]
   Mr Kulatunge argues that the primary judge has breached the principles in Strbak by imposing a harsher head sentence upon Mr Kulatunge in circumstances where the Crown had alleged, and Mr Kulatunge did not dispute that Mr Kulatunge and Mr Dumenil’s culpability was roughly equal.
8. [8]
   Mr Kulatunge argues that the primary judge breached the parity principle by failing to properly reflect Mr Kulatunge’s early plea of guilty and his demonstrated remorse in his sentence when compared to the sentence imposed upon Mr Dumenil.
9. [9]
   In Strbak, the High Court confirmed that a sentencing process is an accusatorial process.^[2]  Section 132C of the Evidence Act 1977 (Qld) applies to sentencing proceedings in respect of both State and Federal offences.^[3]
10. [10]
    As s 132C(5)(d) defines an “allegation of fact” to include “other information” the prosecutor’s allegation that “the defendants were of roughly equal standing” is an allegation of fact to which s 132C applies.  In R v RBE Burns J with whom Morrison JA and McMurdo JA agreed said:^[4]

“[23] It is to be observed that s 132C is concerned with allegations of fact, the onus of proof of which necessarily rests with the prosecution: R v Carrall [2018] QCA 355. The sentencing judge may act on an allegation of fact that is admitted or not challenged, but he or she is not obliged to do so. Where an allegation of fact is not admitted or is challenged, the judge may act on the allegation if satisfied on the balance of probabilities that it is true and the degree of satisfaction required in that regard varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true. Indeed, the required degree of satisfaction may be high where proof of the disputed fact carries with it significant consequences for the offender’s sentence: R v Ta [2019] QCA 53; R v Cumner [2020] QCA 54. Furthermore, s 132C is not merely concerned with the presentation by the prosecution of the primary facts; it also governs the making of an allegation based on any inferences that are alleged to arise from those facts (such as motive). Importantly, information advanced to a sentencing court (through the medium of an agreed statement of facts or otherwise) does not suddenly become a factual repository for the Court to make of it what it will. It is for the prosecution to allege what is to be inferred and, where that allegation is not admitted or challenged by the offender, it is for the sentencing judge to decide whether such an inference should be accepted.

[24] In the case of submissions made on behalf of an offender, a sentencing judge is likewise not obliged to accept defence assertions from the bar table, even if no evidence is led by the prosecution to the contrary and even if the prosecution makes no submission about the matter: R v Olbrich (1999) 199 CLR 270; R v Galeano [2013] 2 Qd R 464. Of course, if the judge is inclined to reject such an assertion, that inclination must be made known to the offender who must be given a reasonable opportunity to make good that which has been asserted: R v Field [2017] QCA 188. That said, in cases where differing versions of relevant events have like probability then the version most favourable to the offender should be accepted: R v Welsh [1983] 1 Qd R 592, 595; R v Field [2017] QCA 188.”  [footnotes omitted]

11. [11]
    Mr Kulatunge argues that as he did not challenge the allegation in paragraph 14(c) of the Crown Prosecutor’s written submissions, that Mr Kulatunge and Mr Dumenil “were of roughly equal standing in [their] attempt to possess the cocaine,” that ought to result in equal criminal culpability and therefore equal “head” sentences of 11 years.
12. [12]
    Mr Kulatunge also relies on the allegation in paragraph 14(g), of the prosecutors written submissions that “Mr Dumenil’s role was broadly similar to Mr Kulatunge’s” and by his oral submissions, “That the defendants were of roughly equal standing in their attempt to possess the cocaine”.^[5]  Mr Kulatunge’s argument is that as the Crown has alleged that Mr Kulatunge and Mr Dumenil were of roughly equal standing in the criminal culpability, then the primary judge’s conclusion of a higher head sentence for Mr Kulatunge over Mr Dumenil suggests that the primary judge concluded, contrary to the Crown’s submission, that Mr Kulatunge was more criminally culpable than Mr Dumenil which is a breach of the accusatorial process required in sentencing.
13. [13]
    Similarly, Mr Kulatunge’s argument in respect of the breach of a parity principle is that with roughly equivalent criminal culpability being alleged against both Mr Kulatunge and Mr Dumenil, it called for an equal head sentence such that the additional year of imprisonment imposed upon Mr Kulatunge in the head sentence breached the parity principle.
14. [14]
    In our view, the appellant’s argument insufficiently appreciates that the use of the adverb “roughly” could not be taken to suggest that there were no differences between the assessment of the defendants’ standing in their attempt to possess the cocaine.  The Macquarie Dictionary suggests the adverb “roughly” may be defined as “inexactly; without precision” or “approximately; about”.  Similarly, the Oxford English Dictionary offers the definition “without strict accuracy or precision; in an approximate or general way.”  The use of the adverb permits of identification and evaluation of differences in that standing.  Moreover, and in any event, the applicant’s argument does not accurately state the position adopted by the Crown at sentence.
15. [15]
    For the reasons detailed below, it is an inaccurate summary of the prosecutor’s submissions to conclude that he submitted nothing more than the criminal culpability of the defendants was “roughly equal”.  What the Crown had alleged upon sentence and his Honour accepted, was that Mr Kulatunge and Mr Dumenil had different roles in the attempted possession of the cocaine, and there was, as his Honour stated, “significant differences”.^[6]
16. [16]
    Three significant differences were highlighted in the Crown Prosecutor’s submissions.  The first was, as set out in paragraph 14(c) of the Crown Prosecutor’s written outline, that “Mr Kulatunge’s conduct may be regarded as more serious than Mr Dumenil’s in so much as he delivered the supposed cocaine to the Buitrago-Aguilar Brothers.”  The second was that Mr Kulatunge had an earlier involvement in the scheme to attempt to possess cocaine with the Crown alleging Mr Kulatunge had involvement from November 2017 as opposed to Mr Dumenil’s involvement from early 2018.  The third was the Crown submission that Mr Kulatunge was a representative of four persons, including Dumenil and that Kulatunge was the senior person in that group of four.^[7]
17. [17]
    Although the primary judge did not make clear finding as to the precise commencement dates for the respective involvement of Mr Kulatunge and Mr Dumenil, the primary judge referred to Mr Kulatunge as having a more significant role.
18. [18]
    The submission that Mr Kulatunge had a more significant role negotiating on the unnamed group of four persons that included Mr Dumenil was supported by Mr Dumenil’s communications with the Buitrago-Aguilar Brothers and accepted by the primary judge.^[8]
19. [19]
    On behalf of Mr Kulatunge, reference is made to the comment by the primary judge in summary that “I consider that the objective overall features of each ….. offences should result in cognate sentences.”^[9]  The next sentence in his Honour’s reasons is “Well, a longer sentence of imprisonment for you, Mr Kulatunge, than Mr Dumenil. Then a greater benefit to you, Mr Kulatunge in respect of the non-parole period to be served before possible release on parole because of your plea of guilty and personal circumstances.”
20. [20]
    It appears to be submitted on behalf of Mr Kulatunge that the primary judge’s use of the word “cognate” suggests equivalent sentences whereas, as would appear plain in the primary judge’s sentencing remarks, the word “cognate” does not mean equivalent, rather, as defined, as it ordinarily means, related or connected.  Undoubtedly, the criminal responsibility of Kulatunge and Dumenil was related or connected.  Moreover, the primary judge was careful to state in his sentencing remarks the differing but related roles of Kulatunge and Dumenil, in the attempt to possess the cocaine.
21. [21]
    With respect to differing roles, the primary judge recorded that on 8 January 2018, Australian Border Force detected numerous packages hidden in the hollow roof beams of a 40-foot container being shipped through the port of Brisbane.  Australian Federal Police removed 99 packages concealed in the hidden roof beams of the container.  The packages had a gross weight of 32.95 kilograms, containing 26.6895 kilograms of pure cocaine.
22. [22]
    Following detection of the packages of cocaine, the Australian Federal Police removed the cocaine and substituted an inert substance in its place.  That inert substance, referred to as “fake cocaine” remained in the container.  Mr Dumenil had arranged for cargo of rubber to be placed into the container and organised for the importation of the container.  The rubber was “essentially a valueless cargo”.^[10]  Rather than have the essentially valueless cargo of rubber delivered directly to the rubber manufacturer, Mr Dumenil, prior to 18 January, paid additional transport fees to have the container delivered from the port to his warehouse in Wacol.
23. [23]
    Mr Dumenil and Mr Kulatunge had numerous communications in the period between 9 to 19 January.  On 17 January 2018, Mr Dumenil flew from Melbourne to Brisbane and stayed in a Brisbane hotel.  On the morning of 18 January 2018, Mr Kulatunge flew from Melbourne to Brisbane and went to Mr Dumenil’s shed at Wacol and met Mr Dumenil at approximately 3.00 pm.  On the afternoon of 18 January 2018, both Mr Kulatunge and Mr Dumenil removed the rubber from inside the container.
24. [24]
    Mr Kulatunge then went to Bunnings Warehouse and bought materials including a grinder, and cutting disks which were used to extract the fake cocaine from the container on the morning of 19 January 2018.  The exercise to extract the fake cocaine from the roof beams of the container was said to be prolonged and complicated, taking a few hours.  Mr Kulatunge and Mr Dumenil extracted 99 packages of fake cocaine from the roof beams, placed 60 of them in a suitcase that had been given to Mr Kulatunge by the “Buitrago-Aguilar brothers” with the remaining 39 packages being secreted in Mr Dumenil’s shed.
25. [25]
    Mr Kulatunge and Mr Dumenil then repaired the roof beams of the container to cover up where the fake cocaine had been extracted from.  During that process, conversations were recorded between Mr Kulatunge and Mr Dumenil concerning the additional cocaine which had been discovered.  The conversations and the location of the additional cocaine is an important feature accepted by the primary judge.  That is, it was expected that there would be 25 kilograms of cocaine located, for which Mr Kulatunge’s group was to be paid $700,000, however there was approximately 33 kilograms obtained and Mr Kulatunge, as representative of the group of four, demanded from the Buitrago-Aguilar brothers an additional $200,000 for the additional cocaine.  As the primary judge observed, Mr Kulatunge had a pivotal role in a scheme to import 26.6895 kilograms of pure cocaine for a share of $700,000.
26. [26]
    The primary judge carefully detailed the differing roles of Mr Kulatunge and Mr Dumenil.  The prosecutor did not simply rest upon his written submissions of roughly equivalent, but not equivalent criminal conduct, but specifically alleged in his written outline that Mr Kulatunge’s conduct was more serious than Mr Dumenil’s and he provided detailed oral submissions as to the superior or more important role played by Mr Kulatunge.  In those circumstances, the prosecutor’s conduct was orthodox and in keeping with the accusatorial process.
27. [27]
    In our view, therefore, there is no breach of the principles of an accusatorial process as discussed in Strbak and RBE nor is there a breach of the parity principle as the prosecutor did not argue, and the primary judge did not accept that the criminal culpability of Mr Kulatunge and Mr Dumenil were the same.  The primary judge expressly referred to the reduction of the non-parole period for Mr Kulatunge due to Mr Kulatunge’s early plea and “personal circumstances.”  The disparity between the two sentences does not give rise to a justifiable sense of grievance when objectively assessed in the manner required by the High Court in Green v The Queen (2011) 244 CLR 462 at [32] per French CJ, Crennan and Kiefel JJ.
28. [28]
    We would make the following order:

1. Leave to appeal against the sentence is refused.