Anderson v R

Court of Criminal Appeal (NSW)|2010-06-11|Before: Buddin J, Hislop J, Clellan CJ

Introduction 2 BUDDIN J: John David Anderson (whom I shall refer to as the appellant) was convicted after a trial in the District Court of conspiring with his son, Michael David Anderson, and others between 7 June 2006 and about 24 October 2006 to import a commercial quantity of a border controlled drug, namely cocaine. On 27 November 2008 he was sentenced to 18 years imprisonment to date from 25 October 2006 with a non-parole period of 11 years. He will accordingly be eligible for release to parole on 24 October 2017. The applicant seeks leave to appeal against his conviction and sentence. For that purpose he seeks an extension of time within which to bring his appeal against sentence. That application is not opposed by the respondent. The delay in bringing the application has been adequately explained and accordingly it should be granted.

Factual background 3 It is convenient for present purposes to draw upon what appears in her Honour's Remarks on Sentence concerning the factual circumstances which gave rise to the offence of which the jury convicted the appellant. Her Honour's description of that material is set out below: Between June and October 2006 a joint investigation was conducted by New Zealand Customs, Australian Customs, Australian Federal Police and the New South Wales Police into the importation of commercial quantities of the border controlled drug cocaine through the use of containers which were secured to the hull of vessels particularly the MV Tampa and the MV Taronga. On 26 June 2006 the authorities found in a container attached to the MV Tampa, 18.3 kilograms of cocaine which was 14.4 kilograms pure. And on 28 September 2006 they found on the MV Taronga a gross amount of 7.2 kilograms of cocaine which was 5.6 kilograms pure. The total amount of cocaine of pure cocaine was twenty kilograms. Between 13 October 2005 and 4 November 2005 Michael Anderson travelled to Panama South America at the same time as his father. John Anderson was in Panama from about 21 October 2005 to 10 December 2005 travelling under the false name of Victor Patrick Harris. Whilst Michael was in Panama his father attempted to send him at least US$7,500 which was seized by US Customs on 18 October 2005. On 7 June 2006 the MV Tampa departed Panama and entered Auckland Harbour, New Zealand on 25 June of 2006. The next day during a routine inspection of the hull of the ship conducted by divers engaged by the New Zealand Quarantine Service, a large watertight aluminium container was discovered. The container was secured by chains below the waterline to the strut of the gearbox within the port bow thrusters, a lateral propulsion device within the hull of the ship. The container was removed from the hull of the MV Tampa on that same day and on the next day it was deconstructed by the New Zealand Customs Service. Upon deconstruction New Zealand Customs Service officers found twenty-five plastic "Decor" brand one litre plastic containers and a silver foil bladder sealed within the aluminium container. Each of the twenty-five plastic containers was opened and found to contain an amount of white powder which tested positive to the presence of cocaine. In total the twenty-five containers were found to contain 18.368 kilograms of white powder which in turn contained 14.4 kilograms of pure cocaine. The aluminium container and its contents were retained by New Zealand Customs Service and not re-attached to the MV Tampa. On 26 June 2006 the Tampa left Auckland Harbour and docked at Fisherman's Island Brisbane Queensland on 29 June 2006. On the following day Michael Anderson flew to Brisbane from Sydney and on the same date John Anderson drove from Sydney to Brisbane towing a boat. On 30 June 2006 the Tampa departed Brisbane and travelled to Darling Harbour Sydney where it remained docked from 1 July to 2 July. Between 3 July 2006 and 9 July 2006 the MV Tampa travelled from Darling Harbour to Fremantle Harbour where it remained berthed until 11 July 2006. On 4 July John Anderson telephoned Michael Anderson and left the following message on his phone in relation to the MV Tampa and travelling to Perth. Mr Anderson was heard to say; "The lady's birthday is on or about the 9th so if er, you could make, get her present and that by about Thursday or Friday, or Friday, say Friday the 7th or the 8th. Make sure that we don't miss giving her presents. Okay, bye for now." On 5 July 2006 John Anderson flew from Sydney to Perth. He took diving equipment with him which included flippers, a mask and a wetsuit. Following his arrival in Perth he hired a white Toyota Corolla sedan registration 1CBK239 from Bayswater Care (sic) Rentals for the period 5 July 2006 to 12 July 2006. He also booked into the Canning Bridge Auto Lodge. On 7 July John Anderson phoned Michael Anderson. They agreed they were going ahead as planned. On 8 July John Anderson hired two oxygen cylinders and two weight belts from a dive hire shop in Fremantle for the period 8-11 July. On the same day he also purchased a 2.7 metre Aqua-Pro inflatable dinghy, a Honda brand outboard motor, a stern light, a foam float and rope, and a folding anchor. All these items were purchased from Dinghy World Como WA for a cost of $3,319.00 Australian. On 8 July Michael Anderson flew to Perth. John Anderson met him at the airport. They then travelled to various places around Fremantle Harbour and the Swan River. On 9 and 10 July they were observed in areas close to where the Tampa was expected to be moored. During the evening of 10 July they were observed to travel to Gilbert Fraser Reserve Joanna Street North Fremantle. They were there seen to remove various items from vehicle ICH934 which they carried towards the edge of the Swan River. They were later observed inflating and setting up a motorised dinghy. The dinghy was then seen to travel down the Swan River towards the Sterling Bridge in Fremantle Harbour where the MV Tampa was moored. The dinghy was seen to move underneath North Quay wharf. The offenders were seen to propel themselves towards the Tampa by hanging onto pipes underneath the North Quay. A sonar operator observed an object about 1.9 metres in length swimming purposefully around the bow thruster of the Tampa at that time. The movement was detected for about twenty minutes. The Crown case is that it was Michael Anderson diving on the hull of the MV Tampa at this time. The two offenders then propelled themselves back to their arrival point under the wharf and were seen to travel back to their initial launch point. The following day Michael Anderson travelled back to Sydney. He was arrested on 25 October 2006. John Anderson remained in Perth until 12 July. He left the dinghy and other items at Robert Cain's premises. On 28 July he persuaded a friend of his to transfer $5,357.02 to Panama for him. On 12 September 2006 the MV Taronga departed Panama. On 28 September 2006 the MV Taronga arrived in Auckland harbour. Later that day divers inspected it. On inspecting the hull of that vessel divers detected a metal container attached to the port side of the bow thruster of the vessel below the water line. The container was positioned in the same way as the container which had been found attached to the MV Tampa on 26 June. On examining the container it was found to be of a similar design to the container found on the MV Tampa. The container was removed by New Zealand Customs Service and examined. It was found to contain a silver foil bladder containing white powder and ten plastic containers also containing white powder. These were all similar to those which were located within the container from the MV Tampa on 26 June 2006. The white powder tested positive to the presence of cocaine. Subsequently it was found that the cocaine was about seventy-six per cent pure. That is around the same purity as the cocaine found on the Tampa. The total white powder removed from the eleven containers was 8.702 kilograms which was 5.6 kilograms pure. The New Zealand authorities conducted a full substitution of the narcotics found on the MV Taronga. On 29 September the Taronga with the substituted package departed New Zealand bound for Brisbane. Between 29 September and 24 October John Anderson was in constant contact with Jamie from Panama. They discussed the vessels which they called "senoritas". It became apparent during the course of the calls that John Anderson was not going to be able to remove the containers from the bow thruster without somebody's assistance. That assistance was never forthcoming. On 25 October 2006 the Australian Federal Police and New South Wales Police executed search warrants on various premises associated with John Anderson and in relation to a number of vehicles. The properties searched included; his residence at The Entrance; another premises at Long Jetty; a unit at North Wyong; Michael Anderson's premises at Mona Vale; and another unit at Asquith. During the searches of these premises police found; boats; items for diving; money; and a large number of documents associated with John and Michael Anderson's travel. At the premises at North Wyong containers were found which had within them a residue of cocaine. They were similar to the containers that had been taken from the Tampa and the Taronga. Also found was a large amount of Mannitol which was in bulk and fifty-six small packages of that substance. Mannitol is used as a cutting agent for cocaine. On the same day John Anderson was arrested and charged. The street value of the cocaine found on the Tampa is $8,245,000. The wholesale value of that cocaine is $2,480,000. The street value of the cocaine found on the Taronga is $3,231,200. The wholesale value of that cocaine is $975,000. 4 The appellant did not give evidence at his trial. The only evidence upon which he relied was a document which was shown to Senior Constable Ball during the course of cross-examination. That witness gave evidence of having operated the sonar instrument in Fremantle Harbour on 10 July 2006, a matter to which her Honour referred in her Remarks on Sentence. The appellant took issue with the evidence given by Constable Ball and the contents of the document were directed to that challenge. 5 Although he did not give evidence the appellant did provide police with a handwritten statement on 28 February 2007. He then participated in a tape-recorded interview with police in the presence of his solicitor. By that stage he had been served with a copy of the brief of evidence. In his statement he said that in either 2000 or 2001 he had met a man named Jamie Hotta in Hong Kong. He is the man with whom he was in contact in 2005 and 2006 in Panama. He said that Mr Hotta owned an emerald export company in Colombia known as "The Green Future". The appellant said that he had decided to smuggle uncut emerald rock into Australia from Panama with a view to avoiding having to pay customs duty on it. He said that Mr Hotta gave him several uncut emeralds in Hong Kong which he then sent back to Australia through the postal system. On his return to Australia he made contact with a jeweller, whom he knew, who was able to cut the emeralds so that they could be used as settings in rings. He said that he intended to have the emeralds placed in a container which would, in turn, be attached to a ship's hull. He said that in 2005 he went to Panama to discuss the importation of emeralds with Mr Hotta. He said that he became concerned when he was told by people there not to open the container when it arrived in Australia. He was told, he said, to secure it to a pier and leave it there until the ship left. He said that he was told that someone would then be made available to him to assist in unloading the container. His suspicion was that the container may contain cocaine. He said that his suspicion created a problem for him which he decided to resolve by not getting involved in taking any containers off the ship even though he had invested considerable sums of money in the venture. He said that he had asked his son Michael to assist him although he said that his son was initially reluctant to help out. He said that, although he had his suspicions, he nevertheless wanted to give the appearance to the people in Panama that he was continuing his involvement in the enterprise. He said that he did so out of fear of the repercussions were he simply to abandon the project. When he spoke to police, the appellant sought to place an innocent interpretation upon the numerous intercepted telephone calls which he had had with Mr Hotta in Panama. However it is to be observed that he used either public telephones or telephones belonging to other people in order to make contact with Mr Hotta. It is also clear that their conversations were in code. The Crown also relied upon the frequency of their contact, there being in excess of 40 calls in the month of October 2006 alone. The Crown also relied upon a number of lies which the appellant had told. Her Honour referred to those matters in her summing-up. [They are referred to at para 28 of this judgment]. The Crown also relied upon internet searches which were conducted by the appellant and his son between 1 August and 24 October 2006 in which they sought to ascertain the movements of the two vessels in question. They also sought information about cocaine seizures. The Crown also relied upon the fact that the appellant's conduct revealed his continuing interest in the MV Taronga when it was berthed in Sydney on 5 October 2006 and in the MV Tampa when it was berthed in Sydney on 20 October 2006. The Crown case, in essence, was that that combination of circumstances put the lie to the appellant's explanation for what he had said and done.

Grounds of appeal 6 The following grounds of appeal have been notified: 1 The trial miscarried in that the trial judge erred in failing to discharge the jury and instead asked the jury to return exhibits AX and AY.

2 The address to the jury by the Crown Prosecutor gave rise to a miscarriage of justice.

3 The trial judge erred in failing to discharge the jury at the close of the Crown Prosecutor's address.

4 Leave is sought to adduce fresh evidence relating to health status of the applicant, namely the report of Professor Lloyd dated 21 January 2010. 7 Because the grounds of appeal relied upon by the appellant do not involve a "question of law" alone, the appellant requires leave to appeal against conviction. The Crown took no point in respect of this aspect of the matter.

Ground 1 8 In order to place this particular complaint in context, it is necessary to refer to some background material. Before the trial commenced, objection was taken on behalf of the appellant to items which had been located by the police when they executed search warrants upon three separate premises with which the appellant was suspected of having an association. Having heard argument, her Honour made the following ruling on 28 April 2008: I'll give a judgment later but I propose to admit evidence that Décor containers that had a residue of cocaine in them were found at the address in Wyong but nothing else referred to in that paragraph . And I propose to admit the fact that a large amount of Mannitol was found and that documents in relation to cocaine and how to package small quantities of cocaine were found but I don't propose to admit the evidence of what was found at the other premises or, as I say, the test tube plastic pipes, other containers or a large number of resealable plastic bags . (emphasis added) 9 It is clear from the parts of the ruling which I have highlighted that her Honour was referring to a particular paragraph of the written submissions with which she had been provided by the Crown Prosecutor. That paragraph contained a description of what had been located at the Wyong premises and was in the following terms: (i) Numerous items were found that had residue of cocaine in them (see annexure of Customs Officer Fiona Wood). These items included: test tube; plastic pipes; décor containers, - other containers. The décor containers were the same type of containers which the cocaine was packed into in the metal containers which had been taken from the MV Tampa on 26 June 2006 and the MV Taronga on 28 September 2006. (ii) Large amount of mannitol. This is used, the Crown will allege, as a cutting agent for prohibited drugs, particularly cocaine (see statement of Hilton Swan). (iii) Large number of resealable plastic bags. (iv) Documents in relation to cocaine and how to package small quantities of cocaine. 10 On 2 May her Honour gave reasons for her ruling. The relevant parts of her Honour's judgment are set out below: [Police searches included] the finding at 31 Waterview Street, Mona Vale of a plastic resealable bag which contained a quantity of cocaine found in the bedroom of the co-accused, Michael Anderson, the cocaine was found to be 76.8% pure; a plastic resealable bag which was found to have a residue of cocaine in it and a number of plastic resealable bags; the finding at 8 Lakeside Parade, The Entrance of a plastic resealable bag which contained 11.5 grams of cocaine, this cocaine was found in the study of the accused, it was found to be 74.7% pure; the finding at unit 11, 5B Lucca Road, Wyong of numerous items that contained a residue of cocaine, including a test tube, plastic pipes, Décor containers and other containers. The Décor containers were the same type of containers which the cocaine was packed into in the metal containers which were taken from the MV Tampa on 26 June 2006 and the MV Taronga on 28 September 2006; a large amount of mannitol, a cutting agent for cocaine; a large number of resealable plastic bags an documents in relation to cocaine and how to package small quantities of cocaine. The Crown case is that the accused had a connection with each of these premises. … I indicated at the time that I would admit the following items found at unit 11, 5B Lucca Road, Wyong: the Décor containers; the mannitol and documents in relation to cocaine and how to package small quantities of cocaine but I would not admit the balance of items found at the various locations. Although each piece of evidence has some relevance, it is only in relation to the Décor containers, the mannitol and the documents that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused. In relation to the Décor containers I consider they are a highly probative piece of evidence, particularly in the light of the accused's claim that what he had agreed to import were uncut emeralds and not cocaine.

11 The issue with which the present ground of appeal is concerned arose when Customs officer Fiona Wood gave evidence on 7 May 2008. She gave evidence of having entered the Wyong premises on 25 October 2006 with another customs officer and several Federal Police agents. She said that she was equipped with a chemical detection system, known as an Itemiser, which is programmed to detect narcotics. She said that she took samples from the objects which had been located and recorded on a log sheet those items which had reacted positively to cocaine. That log sheet, which had been amended in purported compliance with her Honour's ruling, was provided to counsel then appearing for the appellant the day before Ms Wood gave evidence. It was admitted into evidence without objection and became Exhibit AX. A series of photographs of the items which were in the amended log, and which were also admitted without objection, became Exhibit AY. Ms Wood was then asked several more questions relating to items, including a number of mannitol packets, which were depicted in the photographs. Also depicted in the photographs were various storage bottles which were then identified by Ms Wood. When the Crown Prosecutor sought to tender the storage bottles, her Honour is recorded as saying: Mr Crown there is something that I need to raise with you in the absence of the jury. Sorry members of the jury, if you wouldn't mind just going with the court officer for a few minutes. You can stay there I think. 12 Debate then ensued as to the precise scope of her Honour's ruling in relation to the items located at the premises. At that stage her Honour's reasons had not been transcribed and so the parties had not had access to them. It is apparent that, in addition to the three Décor containers which her Honour had admitted into evidence, there were other items located at the premises upon which there were also traces of cocaine. During the course of the debate, counsel then appearing for the appellant said that there had been a misunderstanding between him and the Crown as to the effect of her Honour's ruling. It also seems that her Honour had not appreciated, at the time of giving her ruling, that those other items contained traces of cocaine. Be that as it may, trial counsel then sought a discharge of the jury upon the basis that the jury now had before it material that had been ruled inadmissible. As I have said, no objection had been taken to the tender of the impugned material. Indeed, as her Honour observed to trial counsel "You should have done that [ie raised an objection] a bit earlier. You knew what was coming. I did not." 13 Her Honour refused the application to discharge the jury and indicated that she intended to have the relevant exhibits retrieved from the jury in order that they could be amended. Her Honour then immediately summoned the jury and proceeded to inform them of what had happened. Her Honour said: Members of the jury, there's some material before you that shouldn't be before you. If you wouldn't mind each handing back exhibit AY and AX. Parts of those documents will be returned to you shortly. The parts that aren't returned shouldn't have been before you and I'd ask you, if you've looked at them, to put what you saw out of your minds. They do not form the evidence in this case. I'd ask you to go with the court officer again just so that we can ensure that what should be before you is before you, and that which shouldn't is not. 14 The material was then retrieved and the log sheet was further amended. When the jury returned to court her Honour directed them in the following terms: Members of the jury, before the case commenced I ruled that certain pieces of evidence were not relevant and would therefore not be part of the evidence before you. Unfortunately my ruling was not entirely understood with the result that you were given documents you should not have been. You now have what you should have. If you did look at the documents that were given to you earlier today I'd ask that you put the contents of them from your minds, they have no relevance to this case; they've got nothing to do with this case. 15 In written submissions counsel submitted that, for the following reasons, there had been a miscarriage of justice: "(i) the jury had the inadmissible material in its possession for a significant period of time;

(ii) the jury had its attention drawn to the inadmissible material by the nature of the questions asked by the Crown;

(iii) the jury became aware that evidence in relation to Décor bottles was being kept from them;

(iv) the Crown had allowed inadmissible material to be placed before the jury and, in the circumstances, realistically, no jury could be expected to put it out of their mind; and

(v) her Honour cautioned the jury at the time, although not in her Summing-Up, against relying on the inadmissible material. The direction was not comprehensive, nor could it have been inadmissible in the circumstances. (sic) This was a matter for discharge, not direction." 16 Clearly enough occasions arise in which inadmissible material finds its way into the jury room. However that does not necessarily mean that the jury must be discharged whenever such a situation occurs: see for example R v Shaw (1917) 34 WN (NSW) 150; R v Domican (No3) (1990) 46 A Crim R 408 17 In Clark v R [2010] NSWCCA 94 this Court recently observed: The failure to discharge a jury or a juror is not a ground of appeal in itself. The appeal is against conviction: Maric v The Queen (1978) 52 ALJR 631 at 634. The question on appeal is whether there was such a high degree of necessity for the discharge of the juror that the failure to order such a discharge has resulted in a mistrial. Much leeway must be allowed for the trial Judge to evaluate considerations relevant to the fairness of the trial, bearing in mind that the Judge will usually have a better appreciation of the significance of the events complained of, seen in context, that can be discerned from reading a transcript: Crofts v R [1996] HCA 22; (1996) 186 CLR 427 at 440-441. Nevertheless, the duty of the Court of Criminal Appeal, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. This Court must decide for itself whether in the circumstances, the result of the refusal to discharge the juror occasioned the risk of a substantial miscarriage of justice: Crofts v R at 441; Qoro v R [2008] NSWCCA 220 at [29]. (para 68) 18 Those observations are, in my respectful opinion, entirely apposite to the circumstances of the present case. Her Honour was well placed to make an assessment of any potential prejudice which may have been occasioned by the jury having, even for a short period of time, the inadmissible material. It is neither necessary, nor possible, to resolve the question of precisely how long it was in their possession. In any event, what was impermissibly before the jury did not materially alter the case which was presented against the appellant. On any view, the inadmissible material paled into insignificance when placed against the very damaging evidence concerning the discovery in those premises of the Décor containers which were of the same kind as those that were used to conceal the cocaine which was being imported. In my view, counsel who was then appearing for the appellant, must also bear some responsibility for what happened. Whilst it is true that he ultimately sought to have the jury discharged, the application was made only after her Honour had raised concerns about what was occurring. By then the impugned material had, as I have said, been admitted into evidence without objection. That may suggest that counsel was not unduly troubled by its admission. Regardless of whether or not that is the case, counsel must have appreciated that a problem had arisen. He had after all been present in court when her Honour delivered judgment in the matter. Furthermore, it is difficult to see how there could have been any scope for misunderstanding what her Honour's ruling entailed. But even more importantly, when her Honour became aware of the problem she acted decisively in having the inadmissible material immediately retrieved from the jury. Her Honour then gave appropriate directions to the jury about excluding from their consideration any of the inadmissible material in the event that any of them had, at that stage, had an opportunity to pay any regard to it. 19 In The Queen v Gilbert (2000) 201 CLR 414, Gleeson CJ and Gummow J, said that "[t]he system of criminal justice…requires the assumption, that, as a general rule, juries understand, and follow, the directions that are given by trial judges" (at para 13): see also McHugh J at para 31; John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 (at paras 103, 110); Kanaan & Others v Regina [2006] NSWCCA 109 at paras 26-30. In my view, the appellant has not demonstrated that there was a 'high degree of necessity for the discharge of the jury'. In any event, her Honour's directions cured any mischief that may have arisen. In all the circumstances, I am of the view that no miscarriage of justice has been occasioned. Accordingly, this ground of appeal must fail. Grounds 2 and 3 20 Counsel for the appellant dealt with these two grounds together. It is convenient to follow the same course. 21 In support of Ground 2 counsel directed attention to two particular aspects of the Crown Prosecutor's address to the jury. The first aspect concerned the discovery by police of the Décor containers at the premises in Wyong. Of that discovery the Crown Prosecutor observed: What she found in those three containers, Delcor (sic) containers, she found cocaine. This was locked up in the accused's unit and you remember that he had the keys, the security alarm number, but these containers were found in his unit at Wyong and you have the document which she made out at that particular time which showed that the cocaine was in those three containers. This supports the accused's conversations with Jamie when he said that he had been doing what they were doing for some time . This evidence also supports the overwhelming evidence that the accused was involved in a conspiracy to import cocaine in these Delcor (sic) containers and other containers of a similar type on the Tampa and Taronga. (emphasis added) 22 The second aspect related to evidence that the appellant had used false passports. John Payne, a fraud investigator, gave evidence that a passport had been applied for in 1997 at The Entrance Post Office in the name of Victor Patrick Harris. The proof of identity declaration was ostensibly signed by someone named Edwin Pragasam. Victor Harris gave evidence that he knew the appellant but that he had never himself applied for an Australian passport. Mr Payne also gave evidence that a further passport had been applied for in 1997 at Broadbeach Port Office in the name of Samuel McCutcheon. The proof of identity declaration was ostensibly signed by Gregory Stanton. Samuel McCutcheon gave evidence that he had never applied for an Australian passport. Nor, he said, did he know either Gregory Stanton or the appellant. Each of the false passports contained the appellant's photograph. 23 As to that aspect of the matter, complaint was made in written submissions about the following passages which have been extracted from the Crown Prosecutor's address. The parts which appear in bold were highlighted in that fashion in counsel's submissions: (i) To show what a dishonest and deceptive person the accused is and how he uses other people for his own advantage, you don't have to go past what he did in relation to the obtaining of the false passports in other persons' names which he used for his purposes to import this cocaine from the Panama. (ii) The accused has said to you in his statement to the police which has been tendered in these proceedings, and in the record of interview, 'believe me, I'm honest John'. Ladies and gentlemen, I suggest you would find that he is a totally dishonest deceptive person who will do anything and say anything if he thought there was an advantage to him. (iii) This shows, I suggest, what a skilled dishonest person the accused is. He has tried the same thing in this trial before you, saying I am an honest person, I am honest John, believe me when I say t was importing emeralds. The same he did prior to, during and the obtaining of the false passports in the names of Victor Harris and Samuel McCutcheon. He deceived not only those persons but he deceived every person in his travels, and the people that he dealt with in obtaining those passports. And he did that over the years. (iv) Then he got - and you'll see this in the application, a Gregory John Stanton, a barrister, to sign the application that he had known him as Samuel McCutcheon for 12 years, and that may show that for a long, long period of time, the accused assumed the identity of Mr McCutcheon prior to even 1998, because that person, Mr Stanton, barrister, said that he had known him for 12 years and signed the application on that basis. The accused then swore an oath that he was Samuel McCutcheon. I suggest, ladies and gentlemen, you use your every day experience, I suggest, you would say to yourself the person must be very skilled, deceptive and convincing dishonest person to be able to do all this and to acquire that information. (v) He fooled Gregory Stanton, the barrister, he fooled the certifying interviewing officer of the application. (vi) He had acquired another passport in Mr McCutcheon's name, using the same details that I've just set out to you and you'll have that application before you, back in 1984. So it started way back then of this dishonest aspects of the accused deception and dishonesty. As I suggested to you to all the authorities with a number of them being experts in detecting persons who had applied for or obtained and was travelling on false passports, all the security checks, he fooled all of them by his representation that he was honest John and would not tell a lie to anyone. All these authorities were deceived by this totally dishonest person. (vii) He even put in this application as you will see, the name of Mr Harris's de-facto wife and her address, her telephone numbers at home and work, RTA documents on identity and then he got a person to sign the document that he'd known him a Victor Harris for five years and he swore again that he was Victor Harris. (viii) As I suggested to you all the authorities was deceived by this person who convincingly told them, these authorities everywhere that he was an honest person and trust him. The same that he's asking you to do and I suggest you wouldn't be taken in like all these other people were and find that the story that he's put forward is just a pack of rubbish . He doesn't stop there. (ix) But his dishonesty has no bounds , and you may remember that in the conversation with Bob, and you'll have that in the intercepts, in Western Australia when he dropped off the boat. He told him that the other person, and I assume that's Michael because Michael went back to Sydney on 11 January, that he had to go back because he was sick. Another lie. So he has no propensity to tell the truth at all , I suggest you'd find. (x) I suggest, ladies and gentlemen, the accused is a totally dishonest person who has deceived people for years with his false stories, and he's attempted to do the same to you with the false story that he set out in his record of interview and his statement. And I suggest you would reject totally his assertions. (xi) I suggest, ladies and gentlemen, you would find that the accused's story is a pack of lies from a totally dishonest person … 24 Before the Crown Prosecutor had completed his address, her Honour raised with him a concern which she expressed in the following terms: Her Honour: There's one matters (sic) that causes me some concern. Mr Crown when you were addressing yesterday you were mentioning the three Décor containers found at the Wyong address and you said 'This supports the accused's conversations with Jamie when he said that he had been doing what they were doing for sometime' which is inviting them to use the Décor containers. 25 Shortly thereafter counsel then appearing for the appellant is recorded as saying: WASILENIA: Yes, I would like your Honour to tell the jury that that evidence is confined to what occurred and that the Crown's submission was in fact a matter of flourish and not supported by the evidence in the case. Then you Honour unfortunately has to deal with the three Décor containers. HER HONOUR: I know. And that is some evidence, it would be thought by the jury that this might have happened before but it certainly wasn't admitted on that basis. 26 Her Honour subsequently also expressed concern about the manner in which the Crown Prosecutor had addressed the jury in respect of the use by the appellant of the false passports. A lengthy debate then ensued. As it happens the jury was not in attendance because, for a period of nearly two days, one of the jurors was ill. It was only very belatedly, indeed on the day after her Honour first raised the matter, that counsel for the appellant sought a discharge of the jury. He did so upon the basis that the Crown had impermissibly raised the appellant's character and had raised matters that were not in evidence. It was also submitted that the Crown had raised the appellant's character in a fashion that was "intemperate and inflammatory". 27 In refusing that application her Honour said: I do not propose to discharge the jury. I consider that if I say something to the jury immediately they come into Court today about the use that they can make of the evidence about the false passport and repeat that and give them further directions in my summing-up, I can deal with the prejudice that I consider does flow from the way in which the Crown addressed the jury on Monday. The trial has been going for close to four weeks and it is only in circumstances where I do not consider that I can cure the problem by directions that I would find myself in a position where I had to discharge the jury. As I say, I do consider that if I do what I have outlined I intend to do, I can adequately deal with the issue. 28 Immediately after the jury returned to court, and before the Crown resumed its address, her Honour directed the jury in the following terms: I'm sorry for the delay members of the jury, there's just the matter that I was concerned about and it's this. I wish to say something to you about an aspect of the Crown's address to you on Monday. When I gave you my opening remarks four weeks ago I told you that I am the judge of the law and you must accept my directions on the law. Though the Crown and accused counsel may make submissions to you on legal matters, if they are in error I must correct the error. The Crown made some submissions to you on Monday which I consider are erroneous and which I must correct. In his address he encouraged you to use some of the evidence in the case in an impermissible way. That evidence is the evidence that the accused had applied for and used two false passports. That evidence is before you for one reason and one reason only, to support the Crown case that the object of the conspiracy was to import cocaine and to rebut the accused's case that what he had agreed to do was to import uncut emeralds on the basis that you might find it unlikely that you would go to the trouble of applying for and using false passports if all you were doing was importing uncut emeralds. It is not relevant that the accused managed to deceive a number of people, if indeed he did so. Which is far from established in the evidence that is before you. You must disregard any suggestion that because the accused applied for and used false passports he is a person of bad character. As I have said, the evidence about the passports is before you for one reason and one reason only, and that is to support the Crown case that the object of the agreement or the conspiracy was to import cocaine and to rebut the accused's case that what he had agreed to do was to import uncut emeralds. The only permissible process of reasoning that you're entitled to adopt with respect to the evidence about the false passports is whether if you consider it unlikely if what you were doing was importing uncut emeralds that you would apply for and use false passports. I'll repeat that again when I come to sum-up to you tomorrow, but I'd ask you to bear that in mind. 29 As her Honour had indicated, the issue was ventilated again at the outset of the summing-up. On this occasion her Honour provided the jury with even more comprehensive directions as to the limited fashion in which it could use the material presently under consideration: Now yesterday I said something to you about an aspect of the Crown's address. In his address he encouraged you to use some of the evidence in the case in an impermissible way. That evidence is the evidence that the accused had applied for and used two false passports. That evidence is before you for one reason and one reason only, to support the Crown case that the object of the agreement was to import cocaine and to rebut the accused's case that what he had agreed to do was to import uncut emeralds, as you might think, it would be unlikely that one would go to the trouble of applying for and using false passports if all you were doing was importing uncut emeralds. It is not relevant that the accused managed to deceive a number of people if indeed he did and Mr Wasilenia explained to you before lunch why there is no evidence of that, but as I say, that is not relevant to your task. You must disregard any suggestion that because the accused applied for and used false passports, he is a person of bad character. As I said, the evidence about the passports is before you for one reason and one reason only and that is to support the Crown case that the object of the conspiracy or the agreement was to import cocaine and to rebut the accused's case that what he had agreed to do was import uncut emeralds . It would be completely wrong to reason that because the accused applied for and used false passports, he is therefore the sort of person who would be likely to commit the offence here. The evidence is admitted on the strictly limited basis that I have set out. Now, the Crown Prosecutor pointed to a number of instances where he says the accused lied, which the Crown says would make you disbelieve the accused when he says that what he agreed to do was to import uncut emeralds. Those instances were firstly, when he told Bob Cain in the phone call on 11 July in Perth that the other person went back to Sydney from Fremantle because he was sick. The Crown says that other person must have been Michael Anderson and that you would find from all of the evidence that Michael Anderson had arranged well in advance to go home when he did and there was no suggestion that he went home because he was sick. Two, when the accused asked Madonna Williams to transfer money to Panama for him because a person was stuck in Panama and he, the accused, was helping that person get home. Three, when he told the police he put the money in photo albums to avoid paying Western Union Commission, when that is exactly what he did when he got Madonna Williams to transfer money to Panama for him. And four, when the accused told the US authorities that the money he had sent in a magazine and which was found by the US authorities was to be used by his son Michaael to travel through Central America with his Panamanian girlfriend, although he told the police in his record of interview that the money was going to be used to send some coffee samples back here for Michael Anderson's coffee business. 30 After giving the jury directions concerning the use which they may make of those apparent lies, her Honour continued: There is also evidence before you that the police found in the premises at Wyong, some Decor containers upon which there was a residue of cocaine. These containers were the same shape and type as those containing cocaine found in exhibits E and H, the metal containers attached to the Tampa and the Taronga. Again, this evidence is before you to support the Crown case that the agreement the accused had entered with at least one other was to import border controlled substance and to rebut the accused's case that what he had agreed to do was import uncut emeralds. You will remember Mr Wasilenia's submission that there is no evidence linking the accused with these items, no fingerprints, no DNA, no documentary link and that in those circumstances Mr Wasilenia says, you would have no regard to the items, but again, I must warn you with regard to this evidence, if you do accept the Crown's submission that the items are linked to the accused or to one of the co-conspirators, you must not use the evidence of the finding of the Decor containers as evidence which might suggest that the accused has previously committed offences of the type charged and you must not reason that because the accused may have done something wrong on another occasion, he must have done so on the occasion charged. 31 Counsel for the appellant in relying upon this ground drew attention to this Court's decision in Causevic v R [2008] NSWCCA 238 in which McClellan CJ at CL, with whom Barr and Price JJ agreed, observed: The principles which guide a prosecutor's function when addressing a jury in a criminal trial are well known: see R v McCullough (1982) 6 A Crim R 274; Whitehorn v The Queen (1983) 152 CLR 657; R v Rugari (2001) 122 A Crim R 1 ; Libke v The Queen (2007) 230 CLR 559; (2007) 81 ALJR 1309; R v Liristis (2004) 146 A Crim R 547; Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659; R v KNP [2006] NSWCCA 213; (2006) 66 NSWLR 227 and Gonzales v R [2007] NSWCCA 321.

The principles relevant to this appeal may be summarised as follows:

· A prosecutor is required to act in fairness and detachment and with the objective of establishing the whole truth ( Whitehorn at 663). · Although the Crown is entitled to put the Crown case firmly and vigorously this must always be done fairly, temperately and with detachment and restraint, bearing in mind that the prosecutor's function is to aid the attainment of justice, not the securing of convictions (see Liristis at [94]). · Whether or not the prosecutor has acted with the relevant degree of fairness and detachment may depend upon the atmosphere of a particular trial (see McCullough at 286). · In considering the question of fairness it is necessary to keep in mind that a criminal trial is of an adversarial nature (see Rugari at [52]; Libke [71] and [72]). · When complaint is made it is necessary to consider whether the prosecutor's conduct was such as to distract the jury from rational consideration of the case of the Crown and the defence (see Gonzales at [100]). It is wrong for a Crown prosecutor to become so much the advocate that he or she is fighting for a conviction and to quite impermissibly embark upon a course of conduct calculated to persuade a jury of a point of view by inspiring prejudice or emotion (see R v Roulston (1976) 2 NZLR 644 at 354).

In Livermore the court identified a number of matters in a Crown prosecutor's address which could lead to a miscarriage of justice (at [31]): (i) A submission to the jury based upon material which is not in evidence. (ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury. (iii) Comments which belittle or ridicule any part of an accused's case. (iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon their credit. (v) Conveying to the jury the Crown Prosecutor's personal opinions.

When it is submitted that a trial has miscarried by reason of the prosecutor's address it is necessary to consider the whole of that address. Each case will depend upon its particular circumstances. (paras 3-6) 32 In advancing this ground, counsel effectively repeated the submissions which had been advanced by trial counsel in support of the application to discharge the jury. It was submitted that there was no evidence that the appellant had suggested that he was "honest John". The use of that phrase on the part of the Crown Prosecutor was said to be no more than "an intemperate and inflammatory rhetorical flourish on the part of the Crown Prosecutor". 33 It was then submitted that those parts of the Crown Prosecutor's address which concerned the use of false passports by the appellant and lies which he had told were also "intemperate and inflammatory". It was accepted by counsel that the Crown Prosecutor was perfectly entitled to use that material as a basis for submitting to the jury that they would reject the appellant's version of events. It was nonetheless submitted that what the Crown did, but was not entitled to do, was to raise the appellant's bad character in the manner in which he had. What was said by the Crown Prosecutor, it was submitted, served only to create prejudice in the minds of the jury. In this context, particular attention was drawn to his remark, to which I referred earlier, that the appellant had been "doing what they were doing for sometime". It was also submitted that the Crown Prosecutor's observation that the appellant had "no propensity to tell the truth at all" was something that the jury could hardly ignore. No complaint was made either at trial, or on appeal, about the directions which her Honour provided to the jury upon this issue. The submission, put shortly, was that no directions could have cured the prejudice which had arisen and that, accordingly, her Honour had erred in not acceding to the application to discharge the jury. 34 It is unnecessary to repeat what I have already said about the principles which guide this court's approach to a complaint concerning a failure to discharge the jury. The Crown Prosecutor, who had also appeared at trial, endeavoured in this court to justify what he had said in his address to the jury. Some of the remarks when considered in isolation appear to be relatively innocuous. However, it was the repeated references to the appellant as being a totally dishonest person and the fact that the jury was encouraged to use the evidence about the false passports for an impermissible purpose that caused the trial judge concern. As is apparent, her Honour was also concerned that the Crown Prosecutor had raised bad character on the part of the appellant. Having read the entirety of the address, I am inclined to share her Honour's misgivings. The remarks about which complaint is made occupy several pages of transcript. This was not a case of a few isolated rhetorical flourishes. In my view, the Crown Prosecutor's address went beyond what was necessary to enable him to properly discharge his functions. Nevertheless, I do not believe that a miscarriage of justice has been occasioned because whatever prejudice may have flowed from the Crown Prosecutor's remarks was cured by her Honour's directions which, as I have said, were given even before he had completed his address. Any lingering concerns that may have existed were certainly extinguished by the time that her Honour gave the extensive directions, to which I referred earlier, in the summing-up: cf GDD v R; NJC v R [2010] NSWCCA 62. I would reject Grounds 2 and 3. 35 In my view, none of the grounds of the appeal against conviction have been made out. Moreover, even if error had been established, I would unhesitatingly conclude that this is a case in which the proviso should be applied upon the basis that there has been no substantial miscarriage of justice: Criminal Appeal Act 1912 s 6(1). Such a conclusion, in my view, is dictated by the fact that whilst the Crown case is compelling the defence case is threadbare, and the asserted errors would have had minimal, if any impact, upon the course of the proceedings. Accordingly, although I would grant leave, I propose that the appeal against conviction should be dismissed. Sentence 36 The appellant's son Michael Anderson was also charged with conspiracy to import the cocaine and originally he and the appellant were to stand trial together. However, before the trial commenced Michael Anderson pleaded guilty, although the extent of his involvement in the conspiracy was limited to the period between 7 June and 30 July. He was sentenced to 10 years imprisonment with a non-parole period of 6 years. He was able to call in aid a number of factors which served to mitigate the otherwise appropriate sentence including his plea of guilty, his expression of remorse, the absence of any prior convictions, the fact that he acted out of a sense of "misguided loyalty" towards his father rather than from greed and that, as the sentencing judge found, he "had early manifestations of a paranoid schizophrenic condition at the time he committed the offence and that this condition had some effect on his judgment". The applicant does not seek to suggest that there is any disparity, in the relevant legal sense, between the two sentences. 37 Although the challenge to the sentence is confined in its scope to what is asserted to be "fresh evidence", it is nonetheless necessary to have some regard to the sentence which was imposed and the process by which the sentencing judge arrived at it. 38 The starting point for the sentence is, as her Honour noted, s 16A of the Crimes Act (C'th) which requires the imposition of a penalty which is of a severity that is appropriate in all the circumstances. The seriousness of the offence is reflected in the maximum penalty which the legislature has prescribed, being one of life imprisonment. Her Honour made the following important findings about the appellant's role: In relation to [the appellant] I am of the view that his role was at a high level. Although the evidence does not permit me to find that he was the instigator of the conspiracy, I am satisfied beyond reasonable doubt that he was the primary participant in the conspiracy in this country. He provided money. He communicated with the conspirators in Panama. He made the arrangements for the removal of the containers from the vessels. He gave his son directions, and it was in his premises that the large quantity of the cutting agent was found. I am also satisfied beyond reasonable doubt that he knew the approximate amounts of cocaine in the containers and I am satisfied that his motivation for engaging in the conspiracy was the prospect of making a lot of money. 39 Nonetheless her Honour also accepted the submission advanced on behalf of the appellant "that the dimension of this conspiracy to import is closer to the middle level of criminality for substantial importations than to the upper level". 40 Her Honour summarised the appellant's subjective case in the following fashion: [The appellant] is sixty-eight years of age. He is an only child although he has two older half-siblings. He was raised in Kalgoorlie until he was about ten. The family then moved to Leeton. He did not see much of his father during his childhood but he got on quite well with his mother. He has described his family life as being rather insecure. He left school when he was fourteen and in year six. At that time he was sent to Mt Penang and Tamworth Juvenile Justice Centre and was given a school exemption. He left home at seventeen. He married when he was thirty-five, that marriage lasted five to six years and there are two children from it. He married again when he was forty-two. Although he and his second wife divorced in 2000 they are still best mates and his ex-wife continues to be supportive of him. He has two sons from that union aged eighteen and nineteen. Although he has been retired for the last few years, during his working life he had been involved in a variety of business (sic) such as importing lingerie, property development, and investing in bearer bonds. He has a relatively lengthy criminal history. It commenced in 1957. It contains matters of dishonesty, matters involving firearms, and in 1995 he was sentenced to a minimum term of eighteen months with an additional term of eighteen months for an offence of cultivate prohibited drug. The pre-sentence report indicates that he completed his eighteen month parole period without incident. This record does disentitle him from much leniency. He maintains his innocence in respect of the present charge. He says that he was attempting to import precious stones not cocaine. Of course he cannot be penalised for this approach but it does mean there is no evidence of remorse before me. He is not a well man. He suffers with anaemia, oesophageal psoriasis, cirrhosis of the liver, bilateral severe osteoarthritis of his right shoulder, rotator cuff degeneration, cervical spondylosis, hepatitis C, and coronary artery disease. The oesophageal psoriasis can cause bleeding and because he has low platelets he has an increased risk of bleeding. He has chronic pain. As at 14 February of this year he had received no treatment for his low platelets and has not had either of his shoulders replaced although Dr Bowker, a shoulder surgeon, recommended that he do so . Susan Anderson, the offender's ex-wife, gave evidence about her ex-husband's condition during a bail application in the Supreme Court on 14 February. The transcript of that evidence is before me. Her evidence there was, "When I see him he is always out of breath. His memory is dreadful. I do not usually have a full conversation without repeating myself several times to make him understand a lot of things that we talk about. His shoulders and his movement is less and less all the time." Psychologist Mr Taylor administered a number of tests. The results indicate that the offender developed a conduct disorder as a juvenile and went on to develop a personality disorder during his early adulthood. The results also reveal that although he has an above average tolerance for legal violations he does not have significant criminal tendencies at the present time. He has a moderate risk for recidivism based on the static factors but because there does tend to be remission of anti-social characteristics and behaviours in people with a personality disorder with anti-social characteristics as they age Mr Taylor is of the view that the offender has reasonably good prospects of rehabilitation. As [the appellant] will be an elderly man if and when he is released to parol (sic) I consider it unlikely that he will continue to offend and so I am prepared to accept Mr Taylor's opinion that in that sense he does have reasonably good prospects of rehabilitation.

Mr Wasilenia gave me some information about the life expectancy of a man the offender's age. He submitted that I would find that the offender's medical health and his age would increase the hardship of his sentence and should be taken into account when determining the length of the sentence I am to impose. The Crown did not disagree with the thrust of that submission but he did remind me that I must still maintain proper standards of punishment as the Court of Criminal Appeal in Price unreported CCA 2 September 1994 makes clear. I propose to take hardship into account when determining what sentence to impose. (emphasis added) 41 As I indicated earlier, the application for leave to appeal against sentence is cast in the following terms: "leave is sought to adduce fresh evidence relating to the health status of the applicant, namely the report of Professor Lloyd dated 21 January 2010". Professor Lloyd is involved in the care of the applicant in his capacity as the provider of specialist (UMO) hepatology services to Justice Health. His report relevantly states: [The appellant] has been under my care for approximately 12 months, primarily in relation to chronic hepatitis C infection, which is complicated by (presumed) cirrhosis, with evident liver failure. He has previously been treated with combination antiviral medication for chronic HCV - unfortunately this treatment was unsuccessful. Accordingly, there are no further interventions to cure this infection and halt the progression of his liver disease. Currently, the liver failure is evidenced by significant coagulopathy (i.e. a reduced ability for blood clotting in the event of bleeding) and by severe thrombocytopaenia (i.e a lowered platelet count, which is associated with a markedly increased risk of spontaneous bleeding - most commonly from the gasto-intestinal tract). He also has persistent jaundice (reflecting the reduced capacity of the liver to excrete bilirubin) and a lowered protein level (reflecting reduced protein synthetic capacity of the liver). The (sic) are no therapeutic interventions which can reverse these parameters, other than liver transplantation.

He has substantive co-morbidities with the liver failure, notably chronic airflow limitation and heart failure - both of these are significant but are currently under. reasonable control. Finally, he has early dementia manifesting with poor short term memory. It is possible that his liver failure is also contributing to poor cognitive performance by way of hepatic encephalopathy (it is not possible to definitely resolve these two contributors - he is being treated for hepatic encephalopathy). The combination of his age and co-morbidities make [the appellant] ineligible for liver transplantation. Given these disease processes (notably the liver failure), in my assessment [the appellant] has approximately an 80% one year mortality (i.e. there is an 80% likelihood that he will die within the next 12 months) . On this basis, I have discussed the prognosis with [the appellant], and arranged for he and his wife to document an advanced directive which stipulates conservative management (e.g. no cardio-pulmonary resuscitation) in the event of a major bleeding episode. (emphasis added) 42 Counsel for the appellant read three other affidavits but only for the purpose of resentencing should the court be persuaded to intervene. It included a report from Dr Sim, who is a consultant physician and geriatrician to Justice Health. It is in the following terms: [The appellant] currently resides in the Aged Care Rehabilitation Ward of the Long Bay Correctional Complex. He has been an inpatient since the 5th of March 2009. His medical history includes ischaemic heart disease, hypertension, osteoarthritis, left shoulder rotator cuff tear, end-stage liver disease secondary to viral hepatitis and depression. His current major medical problems are his progressive liver failure, osteoarthritis and fatigue secondary to the above mentioned problems. Over the last four months, he has not had any episodes of hepatic encephalopathy, acute decompensation of his liver disease, infective problems or cardiac ischaemia. He spends most of his time in bed and only goes to the lounge room for breakfast only (sic). His mobility is limited by his decreased exercise tolerance as he is easily fatigued. He is self-caring in most of his activities of daily living. His liver disease is managed by his specialist, Professor Andrew Lloyd who regularly sees him. [The appellant] is not receiving any active treatment for his chronic hepatitis and current aim of management is to monitor for complications and prevent the development of hepatic encephalopathy. His weight remains stable at around 81kg and there is no evidence of increasing ascites. His pain secondary to his osteoarthritis is adequately controlled with a combination of paracetamol and opiates. His recent blood tests results showed that most of his indices are stable. His INR is raised (increased tendency to bleed), both white cell and platelets count are low and bilirubin is elevated. All of these abnormalities are commonly seen in end-stage liver disease. He is not anaemic and his albumin level is normal. His current medications include citalopram (anti-depressant), MS Contin (strong painkiller), Panadol Osteo (for his arthritis), Losec (for peptic ulcer), Lactulose (for his liver failure) and Multivitamin. Regarding his prognosis, it is poor given his progressive liver failure. According to the Child-Pugh classification, a commonly used prognostic tools in end-stage liver failure, [the appellant] has a score of 10 currently, which gave a one and two-year survival of 45 and 35 percent respectively. However, in terms of determining his prognosis, I would rely on Professor Lloyd's opinion given he is the specialist in this field. I would only add that since the start of this year he has been medically stable. 43 The appellant also swore an affidavit in which he described the unit in which he is housed as being "like a hospital ward or a nursing home". He says that he has his own cell. His former wife swore an affidavit in which she indicated that if the applicant is released from custody, he can live with her and that she will undertake to care for his daily needs for as long as she is able to do so. 44 The question of "fresh evidence" in relation to an application for leave to appeal against sentence has been considered in a number of decisions of this court. At the outset of her submissions, counsel for the appellant referred to R v Goodwin (1990) 51 A Crim R 328. The court in that case enunciated the following principles: (1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision;

(2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and

(3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings. (at 330) 45 Counsel then drew the court's attention to RNM v Regina [2006] NSWCCA 375. Sully J, who wrote the principal judgment on behalf of the court, observed: It is convenient, in that connection, to begin by recapitulating the relevant legal principles. I take them from the judgment of McClellan CJ at CL, (Hulme and Hall JJ concurring), in Iglesias v R [2006] NSWCCA 261: [8] The conventional approach of this Court when error is not suggested to have occurred in the original sentence is that evidence of events occurring subsequent to sentence will not be admitted, the appropriateness of the sentence being determined by consideration of the facts before the sentencing judge. As Street CJ said in R v Munday [1981] 2 NSWLR 177 at 178 with the concurrence of Moffitt P and Lee J: It has been made plain in this Court on many occasions that the court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive government and not of an appeal court. [9] See also R v Cartwright (1989) 17 NSWLR 243; R v Goodwin (1990) 51 A Crim R 328 at 330. [10] Notwithstanding this general approach this Court has determined that in exceptional circumstances, particularly where a medical condition which existed at the time of sentencing but has later been found to be extremely serious, fresh evidence may be received. That evidence may, in appropriate circumstances, cause this Court to intervene and re-sentence. The relevant principles were considered in R v Bailey (1988) 35 A Crim R 458 where an applicant said that he had shared needles with other remandees whilst waiting to be sentenced. A subsequent test showed that he was HIV+ although the disease had not been diagnosed at the time the applicant was sentenced. Lee J with whom Maxwell and Yeldham JJ agreed said (at 462): In my opinion in a case such as the present where it is clear that the disease with which the appellant is now suffering, was in fact in existence at the time he was sentenced, it is proper for this Court to allow evidence to that effect to be given on the appeal and to reopen the matter of the proper sentence to be imposed. It has, for a long period of time, been the practice in this Court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate. Considerations of health are in this category." [11] In a decision of the Court of Criminal Appeal in South Australia, Smith (1987) 44 SASR 587, there was evidence before the sentencing judge that the applicant had tested positive for the HIV virus. However, King CJ, with whom Cox and O'Loughlin JJ agreed reopened the sentencing proceedings after having determined that events occurring after sentence showed the true significance of facts which were in existence at the time the sentence was imposed (see R v Ehrenberg (unreported NSWCCA, 14 December 1990)." These statements of principle can be supplemented usefully for present purposes by the addition of the following excerpt from the judgment of Carruthers J, (Sheller JA and Sully J concurring), in Jones v R (1993) 70 A Crim R 449 at 456 et seq: "In my view the appropriate principle of law to be applied by this Court is as follows. The first question is whether, independently of the applicant's medical condition which, as I have indicated, was not known to the judge or the parties, the sentences imposed by …(the sentencing judge)… were within the sentencing discretion available to him. In my view this question must be answered in the affirmative. I consider the sentences imposed by the judge were perfectly appropriate in the circumstances. The second question is whether the additional evidence "should lead to the imposition of a sentence different from that imposed by the judge": see Eliasen (1991) 53 A Crim R 391 at 394. It is to this second question which I now turn. It is not without significance that the applicant contracted the virus whilst incarcerated and awaiting sentence. He came forward for sentence as a relatively young man with a deplorable record of sexual offences. His Honour's summary of the relevant facts of the subject offences is eloquent of the objective seriousness of his subject criminal conduct. He showed no apparent remorse and, as I have indicated, displayed no prospects for rehabilitation. I note that in Smith (at 589; 317), King CJ stated that the applicant in that case "had no relevant convictions prior to the subject offending and ought to be a good candidate for parole". In Vachalec [1981] 1 NSWLR 351 this Court was concerned with the relevance for sentencing purposes of the fact that the applicant suffered from an oesophageal obstruction for which he had required 109 admissions to hospital. Medical evidence was before the Court that the applicant required a severely restricted and specialised diet. The origin of the applicant's condition was the swallowing of acid during infancy. At 353-354 Street CJ, with whom Nagle CJ at CL and Lee J agreed, said: "This Court as the Court of Criminal Appeal functioning within its well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well-established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. But, as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government." Carruthers J later noted a then recent decision of the English Court of Appeal: Starke (1992) 13 Criminal Appeal Reports (S 548). His Honour said: "An interesting English case in this context which has come to my attention since judgment was reserved in this matter is that of Starke (1992) 13 Cr App R (S) 548. That was an appeal from a sentence of four years imprisonment for possessing heroin with intent to supply. It would appear that by the time the appellant came forward for sentence the AIDS disease had developed. His life expectancy was very limited. Opinions varied between 12 months and two years. In dismissing the appeal, Jowitt J (with whom the Lord Chief Justice and Kennedy J agreed) said (at 549-550): "There is no doubt that the regime in prison bears hard on this man, and we have sympathy for his condition and sympathy for the effects of imprisonment upon him. What is urged upon us is that we should radically change an otherwise perfectly proper sentence by reducing the sentence in effect to allow this man's early release. That is because he wishes to be allowed to die with dignity and not in prison.

We have every sympathy with that desire. It seems to us, though, that to manipulate the sentence to achieve such a result is not within the province of this Court. The matter can be tested in this way. Suppose a very long sentence of imprisonment were imposed, and during the course of that sentence the prisoner contracted some disease such as AIDS. If Mr. Allen's submissions were correct it would be open for such a prisoner to file a late notice of appeal and ask this Court to review the sentence. One has only to state that proposition to see that it is untenable. Moreover, although in the case of Herasymenko (unreported) an adjustment was made to the sentence as an act of mercy because of a heart condition suffered in that case by the appellant, what is being asked of us today is that we should radically change a perfectly proper sentence." And later: "In the view of this Court the sentence of four years imprisonment was a proper one. It is not for this Court to manipulate the sentence so as to achieve a desirable social end. Desirable though that is, that seems to us to be a matter for the exercise of the Royal Prerogative of mercy and not for us. The appeal is therefore dismissed." (paras 50-52) 46 Finally, counsel referred to Springer v The Queen (2007) 177 A Crim R 13, in which McClellan CJ at CL made the following observations: This Court has an established practice by which it receives evidence of post sentence conduct which will be taken into account if patent or manifest error is demonstrated when determining whether a different sentence should be imposed. Douar v The Queen (2005) 159 ACrimR 154 at [121]; Baxter v The Queen (2007) 173 ACrimR 284 . However, there are exceptional cases where, although error in the original sentence cannot be demonstrated, evidence of post sentencing events will be received. I discussed some of the relevant principles in Iglesias v The Queen [2006] NSWCCA 261 at [8]-[12] (see also Perkins v The Queen (2007) 169 ACrimR 516 at [25]-[27]). Examples include: . Evidence which shows that the applicant's treatment in custody has been quite different to the expectation from the evidence led before the sentencing judge: R v Keir [2004] NSWCCA 106 in which reference was made to R v Goodwin (1990) 51 ACrimR 328 ; R v Bradley [2004] NSWCCA 88; Wilson v Department of Corrective Services (1997) 93 ACrimR 301 . That evidence may demonstrate that the basis upon which the sentencing discretion was exercised has been thwarted. . Evidence which shows that the sentencing judge has been unwittingly misled as to some material fact or significant aspect of the evidence at the time of sentencing. For example, fresh evidence which shows that the applicant had, as at the time of sentencing, given more assistance (2007) 177 ACrimR 13 at 16 than the police evidence had revealed to the sentencing judge (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Gallagher (1991) 23 NSWLR 220 at 232-233, 53 ACrimR 248 at 260). . Evidence of circumstances relevant to the sentence which, although in existence at the time of sentencing, were not discovered until after the sentence had been imposed. For example, where the offender was only found to be suffering from AIDS after sentence but was obviously infected at the time of sentence (R v Cartwright at 257; R v Bailey (1988) 35 ACrimR 458 at 462). A similar approach may be taken when, although symptoms may have been present their significance may not have been appreciated at the time of sentencing (Iglesias). . Evidence of facts or events occurring after sentencing, which show the true significance or provide the basis for a full appreciation of facts in existence at the time of sentencing (R v Smith (1987) 44 SASR 587 at 588, 27 ACrimR 315 at 316 per King CJ; R v P (2003) 142 ACrimR 94 at [19]; R v MJM [2004] NSWCCA 66 at [46]). . Evidence which demonstrates that the sentencing judge has drawn inferences on a misunderstanding of tendered medical evidence. (R v Swindale (unreported, Court of Criminal Appeal, NSW, No 60518 of 1997, 22 June 1998); R v Goodwin). . Evidence indicating that the offender knew of the existence of facts, but did not realise their significance at the time of sentencing and could not inform the legal advisers of them (R v Goodwin at 330 per Hunt J; R v Cartwright at 257; R v W [2001] NSWCCA 172 at [23]; R v MJM at [46]). (paras 2 - 3) 47 See also Barr J, (with whom Bergin J agreed) [at paras 26-31]. 48 In written submissions it was contended that "[I]n the applicant's case the evidence is fresh in the sense outlined in Goodwin and Springer. The evidence of likelihood of death within twelve months is of such significance that the sentencing judge would have regarded it as having a real bearing on her decision. Additionally, although the liver health issue was known, its significance was not realised and not made known to the applicant's legal advisers at the time of the sentence proceedings". 49 The Crown opposed leave being granted to the appellant to adduce the "fresh evidence" material upon the basis that the applicant's medical condition was known at the time of sentence. The material which was before the sentencing judge consisted of a number of medical reports as well as the appellant's medical records which are maintained by Justice Health. Sworn evidence given by the applicant and by his former wife, during the course of a bail application in the Supreme Court, was also in evidence. The evidence given during the bail application by Dr Virginia Nowell, who had clinical oversight of medical care provided to inmates by Justice Health, was also tendered. Her evidence was that the appellant suffered from chronic liver failure. She said that he was not then receiving any treatment for his condition, although he had had a course of interferon treatment in the past. She also said that he had been "offered review by our liver specialist at Prince of Wales Hospital but so far has declined that review". The sentencing judge was also provided with extracts from two published reports, one of them being from the Australian Institute of Health and Welfare, which concerned the issue of the life expectancy of a man in the appellant's position. Counsel relied upon that material in order to advance the submission that the appellant had a diminished life expectancy because of his health problems. 50 In light of that material, and in view of her Honour's findings to which I referred earlier, the Crown submitted that it was apparent that the sentencing judge had specifically taken into account on the appellant's behalf his various medical conditions, his age and his life expectancy. 51 It is pertinent to observe that the sentence which was imposed by her Honour, when proper regard is had to the very significant criminality displayed by the appellant, was decidedly lenient. The explanation for that leniency no doubt lies in what must have been the very considerable weight which the sentencing judge afforded to the appellant on account of his declining health and the burdensome nature of his incarceration in view of his various health issues. There were in truth, no other factors that the appellant could call upon to ameliorate the otherwise appropriate sentence. 52 The Crown submitted that this was a case, in any event, which fell to be considered in accordance with the principles identified in R v Munday (1981) 2 NSWLR 177 to which reference was made in the extract from RNM (supra) that appears at paragraph 44 of this judgment. It was submitted that this was a matter "within the proper province of the executive Government". Reference was made to s 19AP of the Crimes Act 1914 (C'th) which enables a person who is serving a federal sentence to make application to the Attorney-General to be granted a licence to be released from prison. Before the Attorney-General can grant such a licence he/she must be satisfied that exceptional circumstances exist which justify the granting of the licence: s19AP(4). 53 There can be little doubt that the process of sentencing offenders who are suffering from ill-health, particularly if they are of advanced age, provides particular challenges. The challenge is usually even more pronounced when the conduct of such an offender requires the imposition of a lengthy sentence and particularly if the offence warrants a penalty which is likely to extend to a point which is close to, or even beyond, the offender's anticipated life expectancy. The courts have had to consider issues of this kind in a number of cases. Some of them were brought to her Honour's attention. One such case was Holyoak v R (1995) 82 A Crim R 502 in which the court was dealing with an offender who was 75 years of age who had committed a number of sexual assaults upon children in his care. Allen J (with whom Handley JA agreed) said: It is argued, however, that his Honour fell into error in a number of respects. The first is that, it is said, he failed to give sufficient weight to the applicant's age. His counsel points out that the sentence imposed as a minimum term is such that the possibility of the applicant dying during the minimum term, despite his present state of health, is quite real. So it is. It is not to be contemplated that his Honour would not have realised that. Particular complaint is made that all that his Honour said, apart from the reference to his age to which I have already referred, was: "Age is not a licence to commit sexual offences, nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years." I find no fault with that observation. Indeed it would seem to be taken directly from the judgment of Badgery-Parker J in DCM (unreported, Court of Criminal Appeal, NSW, 26 October 1993) with whose reasons for judgment Kirby ACJ agreed. The question, rather, is whether there was other significance in his age such that his Honour's failure to identify it and specifically allow for it is demonstrative of error on his part. It is, of course, clear that a sentence imposed upon an offender when he is of such an age that, should he not die in gaol, he will have little worthwhile life left after his release is likely to bear more heavily upon the offender than a similar term imposed upon a younger man who can look forward to a worthwhile life after release. This is so obvious that I would not infer that his Honour did not recognise it. The real question, as I see it, is whether the objective gravity of the offences in the present case were such that it was within the proper bounds of judicial discretion for his Honour to impose the sentence that he did notwithstanding what, having regard to the applicant's age, the consequences well might be. It simply is not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced aged of the offender, that he well may spend the whole of his remaining life in custody. A helpful review of the relevant authorities is contained in Braham (1994) 73 ACrimR 353 . It is submitted for the applicant that Angel J was correct, in that case, in stating (at 369): "Where advanced age is a factor justifying significant leniency -- and the learned sentencing judge so held in fixing the disproportionate head sentences he did -- ex necessitate considerations of ... proportionality of sentencing are irrelevant and the case is an inappropriate vehicle to give voice to general deterrence -- as opposed to personal deterrence or deterrence to others of a like age." I would not accept, however, that any of those considerations is irrelevant when sentencing a person of advanced age who, albeit generally in good health, has a statistically short expectation of life. Of course, account must be taken of how much more onerous it will be for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant. Likewise, the effect of the sentence upon general deterrence is not irrelevant. What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free. These considerations weigh heavily upon me. So objectively horrendous, however, were the crimes for which the applicant fell to be sentenced, particularly considering the breach of trust which it involved, that I find myself unable to say that, assuming that all other matters he took into account were appropriate to be so taken, the severity of the sentences imposed is indicative that his Honour failed to give due weight to the significance of the plaintiff's age. (at 507-8) 54 Also brought to her Honour's attention was this court's decision in Goebel-McGregor [2006] NSWCCA 390 in which the offender, who was aged 64 at the time of sentence, had received a sentence of 20 years imprisonment with a non-parole period of 15 years for murdering his former de facto wife. He suffered from a number of ailments. The evidence showed that he had a life expectancy of 17.36 years. It was contended, in the circumstances, that the sentence was tantamount to a life sentence. James J, with whom Hidden and Hislop JJ agreed, said: However, a sentence must reflect the objective seriousness of the offence and when the offender is of advanced years a determinate sentence, in order to reflect the objective seriousness of the offence, may unavoidably extend for all or most of the offender's life expectancy. In DesRosiers v Regina [2006] NSWCCA 16 Latham J, with whom the other members of the Court agreed, referred with approval at par 30 of her judgment to a statement by Allen J in R v Holyoak (1995) 82 A Crim R 502 at 507:- "It simply is not the law that it can never be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he well may spend the whole of his remaining life in custody". In the present case the appellant was sixty-two years old at the time he committed the offence of murder by what the sentencing judge found to be a cowardly and brutal act. It was inevitable that there would be a real risk of the appellant dying in custody, before he completed serving even the non-parole period of any sentence which adequately reflected the objective seriousness of the offence. (paras 128-129) 55 For completeness I observe that those two decisions were referred to with approval in Barton v Regina [2009] NSWCCA 164. 56 There is also a further recent decision of this court that is particularly illuminating. In Anastasiou v R [2010] NSWCCA 100 the court considered an appeal from an offender who was described as "dying from cancer developed from cirrhosis of the liver that was caused by chronic hepatitis C infection from the use of drugs … his terminal disease, while it existed at the time that [the applicant] was sentenced, was unknown and not taken into account by the sentencing judge" [at para 3]. That applicant had only recently been diagnosed with incurable hepatocellular cancer, which is a common complication of cirrhosis of the liver. The tumour was too far advanced for surgical intervention to be contemplated. Nor was a liver transplant a viable option. Professor Lloyd also provided an expert opinion in that case. He also estimated that that applicant had approximately an 80% likelihood of dying by the end of this year. Rothman J, with whom McClellan CJ at CL and James J agreed, said: I have no doubt that Mr Anastasiou can be adequately treated in prison. There are available medical facilities conducted by Justice Health, which, on all the evidence, is at the very least reasonable and appropriate. It has been shown in this case that, in the past, he has been provided medical attention at Prince of Wales Hospital by leading specialists where more specialised attention is required.

There is no doubt that the terminal illness of the applicant, Mr Anastasiou, is one which evokes great sympathy, not least from the Court. But sympathy is not the test that this Court must apply. The Court must apply principle.

Mr Anastasiou is currently appropriately accommodated within the prison system. He will, of course, get worse (or at least that is the expectation of the medical experts). When he does (and even now), he is entitled to apply for and be granted parole or subject to the prerogative of mercy.

The terms of s 160(1) of the Crimes (Administration of Sentences) Act 1999 provide that, although not eligible for parole, "if the offender is dying or if the Parole Authority is satisfied that it is necessary to release the offender on parole because of exceptional extenuating circumstances", the Parole Authority could release him from prison. Further, s 270 of the aforesaid Act preserves the prerogative of mercy available in the Executive Government.

No doubt, there will come a time when it will be essential for Mr Anastasiou to be released from prison. His release from prison, at this stage, would be as a result of sympathy, not principle, and such sympathy is the province of Executive Government, either through the Parole Authority or the prerogative of mercy; not by the grant of the appeal. (paras 33-37) 57 I observe that his Honour's remarks were passed in the context of a case in which the non-parole period is due to expire on 27 October 2010. It is also important to recognise that, as in Anastasiou, there is no suggestion that the appellant is not being adequately cared for. 58 On one view the prognosis provided by Professor Lloyd about the appellant's life expectancy may be regarded as decidedly more pessimistic than the evidence before the sentencing judge tended to suggest. Alternatively, it may be that the appellant's condition has deteriorated in precisely the fashion that was to be anticipated at that time. 59 Counsel for the appellant was asked during the course of oral argument to indicate what practical consequence should flow, in the event that the court was persuaded to receive the "fresh evidence". Counsel realistically conceded that there was simply no basis upon which the court could reduce the sentence to such an extent that the appellant would be eligible for release on parole in the very near future. What was suggested however was that the court might reduce the non-parole period by "about 3 or 4 years". Even if a reduction of that order was otherwise warranted, it is not easy to determine what practical benefit it would provide to the appellant in view of Professor Lloyd's prognosis. 60 As I have already implied, the sentence which was imposed upon the appellant was at the lower end of the range of sentence for offences of this kind. No principled basis has been advanced which would call for this court's intervention. In R v Starke (1992) 13 Crim App R 548, referred to by Sully J in RNM (supra) [at para 44], the court said that "what is being asked of us today is that we should radically change a perfectly proper sentence". The same remarks are equally applicable to the present case. 61 In the circumstances, I need not reach a concluded view about whether or not the "fresh evidence" should be received. That is because even if it was received, in my view no less severe sentence would be "warranted in law and should have been passed": Criminal Appeal Act 1912 s 6(3). 62 Although the appellant's medical condition engenders considerable sympathy, I accept the Crown's submission that the appropriate remedy for the appellant lies not with this court but with the executive arm of government. That is an approach that has been consistently taken by this court as reflected in decisions such as Anastasiou (supra) and Iglesias v R [2006] NSWCCA 26 [at para 16]. It also seems to have found favour in England: see Starke (supra). 63 Accordingly, I propose that leave to appeal against sentence be granted but that the appeal be dismissed.

Orders 64 1 Grant leave to appeal against conviction but dismiss the appeal.

2 Grant an extension of time within which to seek leave to appeal against sentence.

3 Grant leave to appeal against sentence but dismiss the appeal.

23/06/2010 - year 2010 should be 2006[Counsel] changed to Mr Wasilenia - Paragraph(s) Par 5Par 40

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Anderson v R [2010] NSWCCA 130 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Anastasiou v R [2010] NSWCCA 100 Barton v Regina [2009] NSWCCA 164 Causevic v R [2008] NSWCCA 238 Clark v R [2010] NSWCCA 94 GDD v R; NJC v R [2010] NSWCCA 62 Goebel-McGregor [2006] NSWCCA 390 Holyoak v R (1995) 82 A Crim R 502 John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 CASES CITED : Iglesias v R [2006] NSWCCA 26 Kanaan & Others v Regina [2006] NSWCCA 109 R v Domican (No3) (1990) 46 A Crim R 408 R v Goodwin (1990) 51 A Crim R 328 R v Munday (1981) 2 NSWLR 177 R v Shaw (1917) 34 WN (NSW) 150 R v Starke (1992) 13 Crim App R 548 RNM v Regina [2006] NSWCCA 375 Springer v The Queen (2007) 177 A Crim R 13 The Queen v Gilbert (2000) 201 CLR 414

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