R v Arikan [1999] NSWCCA 331 (20 October 1999)

Last Updated: 22 October 1999

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Arikan [1999] NSWCCA 331

FILE NUMBER(S):

60425/99

HEARING DATE(S): 20/10/99

JUDGMENT DATE: 20/10/1999

PARTIES:

Regina

v

Mehmet Reha Arikan

JUDGMENT OF: Mason P James J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUICIAL OFFICER: Woods DCJ

COUNSEL:

C K Maxwell QC (Crown)

P Byrne SC/A G Jamieson (App)

SOLICITORS:

S E O'Connor (Crown)

Abigails (App)

CATCHWORDS:

CRIMINAL LAW

Practice and Procedure

Crown appeal against inadequacy of sentence

ACTS CITED:

Drug Misuse and Trafficking act, 1985 - s24(1)

DECISION:

Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60425/99

MASON P

JAMES J

KIRBY J

Wednesday 20 October 1999

REGINA v Mehmet Reha ARIKAN

JUDGMENT

1 KIRBY J: This is a Crown appeal against a sentence imposed upon Mehmet Reha Arikan by his Honour Judge Woods QC. The sentence is said by the Crown to have been inadequate. Mr Arikan was charged with an offence under s24(1) of the Drug Misuse and Trafficking Act 1985. The indictment was in these terms:

"That between 23 May 1997 and 12 August 1997 at Sydney and at Booral in the State of New South Wales, did knowingly take part in the manufacture of an amount of prohibitive drug, namely methylamphetamine, which is not less than a commercial quantity applicable to that drug."

2 Mr Arikan pleaded not guilty to that charge. A jury was empanelled. The matter proceeded for a day before Mr Arikan changed his plea. Having entered a plea of guilty, Mr Arikan then gave evidence, as did a number of other witnesses. On 1 July 1999 his Honour imposed a sentence of 18 months imprisonment to be served by way of periodic detention. On 9 July 1999 a letter was sent to Mr Arikan putting him on notice that the Director of Public Prosecutions was giving consideration to an appeal. An appeal was then lodged on 28 July 1999.

3 In 1997 the police became aware that a person, Lesley George Kalache, was involved in the widespread distribution of drugs. An investigation began. It included surveillance and listening devices. Mr Lyndon Marskell was revealed to be an associate of Mr Kalache. He was a person involved in the manufacture of amphetamines. Mr Arikan is a friend of Mr Marskell. In 1997 he had known him for about ten years. On occasions he had worked at Mr Marskell's restaurant at Bondi Junction.

4 On 11 August 1997 the police arrested Mr Marskell and Mr Arikan. The arrest took place at a remote farm known as Lot 9, Washpool Creek Road, Booral. Booral is a small town north of Newcastle. At the time of their arrest, a laboratory was operating for the manufacture of amphetamines. Detective Sergeant Clarke gave the following description of the scene:

"A generator was operating at the time. A search of the area was conducted and I saw a long extension cord originating at the generator and laying on the ground about 12 to 15 feet to the side of the track. The cord disappeared further into the scrub and ran parallel to the track itself."

Later on in his evidence he said this:

"After a short drive, the vehicle came to a stop in a small clearing and we left the car. As we entered the clearing, I saw a large reaction vessel containing a quantity of red liquid substance. There were two condensers at the top of the reaction vessel, the upper one which was tied by a rope to a wooden stick, this stick having been nailed to a tree.

Making an inspection of the site I saw that the reaction vessel was immersed in an oil bath, inside a large steel pot. There was a thermometer in the oil and the whole of the pot was sitting upon an electric hot plate. It was obvious from the reaction the apparatus was being heated at the time. Next to the reaction vessel I saw a large plastic garbage bag filled with water. There was an electric pump immersed in the water and the hoses and buckets were attached to the condenser."

5 This was the culmination of the police investigation. The charge against Mr Arikan, however, defined the period of his involvement as extending from May until this date in August 1997. It is obviously important, as senior counsel for the respondent has submitted to this Court, to identify with some precision the role of Mr Arikan in the manufacture of the amphetamines (Queen v Raz (CCA, unreported, 17 December 1992) per Hunt CJ at CL; R v Olbrich (CCA, unreported, 19 June 1998) per Spigelman CJ at 3). His Honour Judge Woods variously characterised Mr Arikan's role as "minimal" or "minor" or "tangential". His Honour described Mr Kalache as the principal, Mr Marskell as a lieutenant, and Mr Arikan as "just a hanger on".

6 The manufacture of amphetamines involves what is known as a "cook". A cook is the combining of a number of ingredients, including large quantities of a non-prescription drug known as Sudafed. Acetone and methylated spirits are also used. There is a significant smell associated with the process. For that, amongst other reasons, the manufacturer often takes place in a makeshift rural laboratory, as in this case.

7 In June 1997, Mr Marskell purchased the property at Washpool Creek Road, Booral. Mr Arikan assisted in the selection of that property. He later helped Mr Marskell transport to the property a caravan and equipment. Mr Marskell at this time was not able to drive, his licence having been cancelled. It plainly was in Mr Marskell's mind that the property would be used to manufacture the drugs. His Honour made no finding that Mr Arikan at that time shared that objective. It is possible that, at this time at least, Mr Arikan was acting out of friendship towards Mr Marskell.

8 However, that was to change. On 27 June 1997, Mr Marskell went to the property with a large quantity of Sudafed tablets, recently procured by Mr Kalache. Preparations began for what was termed "the first cook" on 29 June 1997. Mr Arikan arrived part way through the process. The property was then under surveillance. The statement of facts, which forms part of the material, includes a description of the actions of Mr Marskell and of Mr Arikan. They were seen to interact in various ways throughout the day, and perform various tasks. They were at that time the only two on the property.

9 On 30 June 1997 Mr Marskell and Mr Arikan were seen to enter a shed. The police carrying out surveillance then heard pots and glassware being moved within the shed. Mr Marskell was seen to emerge from the shed wearing gloves at a time when Mr Arikan left the shed carrying a bucket. Mr Arikan in his statement acknowledged that he became aware that Mr Marskell was "cooking speed". In that statement he said this:

"It was this trip that Lyndon (referring to Mr Marskell) showed me what he was doing. Soon after I arrived, Lyndon led me to a paddock a few hundred metres west, where an extension cord was leading from the generator behind the shed. Lyndon showed me a glass bowl that was bubbling with a substance in it and had a very strong smell. There was also other glass tubes and laboratory equipment and the generator was going the whole time."

10 During the process, Mr Marskell sustained an injury. He received burns to the arm. Having sought medical attention, Mr Arikan and Mr Marskell left the farm somewhat hurriedly. Before leaving, Mr Marskell asked Mr Arikan to remove and dispose of two metal acetone drums. They were loaded onto Mr Arikan's car and taken back to Sydney. Mr Arikan later disposed of them at Rose Bay. Before leaving Booral, however, Mr Arikan observed the end result of the manufacturing process. He said this in his statement:

"Whilst Lyndon was starting to clean up, I saw him carefully pack a pillowcase that was weighed down. Lyndon was not very happy with it and I assumed that the bag contained the final product. Lyndon did not open the bag for me to see, but it looked the size of a bag of sugar."

11 Mr Marskell and Mr Arikan returned to Sydney. Mr Marskell arranged to deliver the amphetamines to Mr Kalache. One gathers, though it is not entirely clear, that it was then passed into the hands of a Mr Fabri and seized the next day, 2 July 1997, by the police, as a consequence of their surveillance. The amount of drugs seized was 2.7 kilograms.

12 At the time of delivery, there was a conversation between Mr Kalache and Mr Marskell as to recompense. The conversation was recorded. Mr Marskell spoke of giving $20,000 to a friend. Mr Arikan, when giving evidence, denied ever having discussed payment with Mr Marskell. He stated what he did for Mr Marskell, he did out of friendship. The only reward he received from Mr Marskell was an amount of cannabis, on two occasions, given to him in sandwich bags, and amounting to about half an ounce. His Honour, in those circumstances, did not find that Mr Arikan was participating in the production for reward, and specifically for the $20,000 referred to on the tapes. One can well understand why his Honour reached that view.

13 The police, having seized the drugs, a second "cook" was then planned. On 8 August 1997, Mr Arikan drove Mr Marskell to the western suburbs to take delivery of a generator. Mr Arikan acknowledged that he was aware that a generator was used as part of the process of manufacture. Mr Marskell apparently transported a generator to the property, independently of Mr Arikan. However, on 10 August 1997, that is two days later, Mr Arikan drove to the property. The laboratory had been moved to a more remote location. Mr Marskell told Mr Arikan about the second cook and the new location, which he described as "pretty invisible."

14 The following day, 11 August 1997, Mr Marskell and Mr Arikan were arrested at a time when the second cook was proceeding. The drug manufactured weighed 3.7 kilograms. The profit estimated by Messrs Marskell and Kalache in a recorded conversation before the second cook took place was estimated to be $350,000.

15 There is unquestionably a difference between the roles of Mr Marskell and that of Mr Arikan. His Honour, in the course of his judgment, made a number of findings in relation to Mr Arikan which were open to him. He, somewhat charitably, found that the role played by Mr Arikan, as described in surveillance evidence, was not unambiguously associated with the production itself, as opposed to other chores which needed to be carried out. However, I do not believe that Mr Arikan's role can be described as minor, having regard to the primary facts found by his Honour. In another context, in the course of a judgment in the trial before it was terminated by the entry of a plea by Mr Arikan, his Honour said this (in the context of the admissibility of certain evidence):

"I have no doubt that a jury will look very carefully at the evidence, but a jury might well find on the whole of the material, there was clear and convincing evidence of a sequence of events which involved discussions between Mr Kalache and Marskell - Marskell reporting to Kalache, in effect, that the use of Mr Arikan as an associate or a helper in the practical business of lugging materials up to the property at Booral and assisting with their movement about the place, while the process of chemical activity was allowed to proceed."

16 Mr Arikan provided support for Mr Marskell. He did so not once, but twice. Knowing of the manufacture of illegal drugs on the first occasion, he returned to the property to help out on the second.

17 The offence is plainly very serious; the maximum penalty is 20 years or a fine or both. A commercial quantity of methylamphetamine is 250 grams. The drug manufactured in the first cook exceeded that amount many times, as did the second cook. His Honour recognised, in these circumstances, the correct principle. A full-time custodial sentence was called for in the absence of exceptional circumstances (R v Clarke (CCA, unreported, 15 March 1990) per Hunt J at page 3). His Honour, however, regarded the respondent's position as exceptional. He appears to have done so upon a number of bases. The first is the aspect to which I have already referred, namely the role of Mr Arikan. He regarded it as minor. For the reasons I have stated, I do not so regard it. It was minor in comparison with Mr Marskell. It was not minor in terms of the enterprise, or the criminality involved.

18 Secondly, his Honour saw the culpability of Mr Arikan as being significantly diminished by Mr Arikan's mental state. He was suffering from depression. His depression was referable in part to certain domestic turmoil. It had recently been revealed that a child whom he loved, the product he thought of a de facto relationship, was not his. In these circumstances his Honour said this in his remarks on sentence:

"My finding is, however, as I have said before, that his thought processes were substantially impaired by the depression from which he undoubtedly suffered and for which, on my observation, he is still suffering from. This substantially mitigates his culpability. I see this case as being quite exceptional."

Elsewhere his Honour said this:

"But I am satisfied on the basis of the medical evidence before me, on my observation of the defendant in the witness box and in Court, that his thought processes at the relevant time were significantly impaired. To put it in the vernacular, he was not thinking straight."

19 Unquestionably this was a matter which formed an important part of Mr Arikan's subjective case. However, it must be acknowledged, as the plea of guilty did acknowledge, that Mr Arikan knew precisely what he was doing.

20 General deterrence called for a full-time custodial sentence. The circumstances of Mr Arikan are not, in my view, exceptional to the point where they would have relieved the sentencing judge of the need to recognise that principle. I therefore believe that there was error in the approach of his Honour.

21 Having said that, nonetheless there is an element of double jeopardy involved in any Crown appeal. The sentence that this Court would impose in such circumstances must therefore be weighed with that consideration in mind.

22 Here Mr Arikan had a strong subjective case, as I have mentioned. He is a man of 41 years. He has no convictions, apart from a mid-range alcohol offence in 1993. He is a person who has had more than his share of hardship. His father was the Turkish ambassador to Australia. He was made a Turkish ambassador to the United States. Mr Arikan remained in Australia. His father, whilst in the United States, was assassinated by Armenian terrorists. The depression from which Mr Arikan suffers has been traced, in part, to the loss of his father.

23 I believe that taking account of the overall circumstances, and especially having regard to the double jeopardy which inevitably arises in a Crown appeal, that though I believe there was error, I would in the circumstances dismiss the appeal. The order I would therefore propose is that the appeal be dismissed.

MASON P: I agree.

JAMES J: I also agree.

MASON P: The appeal is dismissed.

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LAST UPDATED: 22/10/1999