Geraghty v R

Overview of the conspiracy

1. The prosecution case was that the appellant and his co-conspirators - Hamish Thompson, Glen Willcox, Yahay Majdalawi, David Wren and Valentino Fries - were involved in a conspiracy to import a commercial quantity of cocaine into Australia in the period between January 2014 and 2 February 2017, and that three attempts had been made to import the drugs in furtherance of that agreement. In his sentencing judgment, the trial judge found the conspiracy to be a "single and continuing" one. [2]
2. The plan involved in each attempt was essentially the same. The drugs would be sourced overseas, transported on a "mothership" into international waters where it would be met by a yacht, the Elakha, to which the drugs would be transferred. The Elakha would then sail to a pre-arranged point off the New South Wales coastline where it would be met by a motorboat, the Fredd S. The drugs would be offloaded onto the Fredd S, which would then return to the New South Wales coast.
3. The first attempt occurred between January and November 2014. This attempt failed. The second attempt occurred between April 2015 to April 2016. This attempt also failed. The third attempt occurred between January and February 2017. This attempt proceeded to the point when, on 2 February 2017, the Elakha was intercepted, approximately 210 nautical miles off the New South Wales coast, by the Australian Navy, Border Force officers and members of the Australian Federal Police.

The co-conspirators

1. The appellant, Majdalawi, Thompson and Willcox were connected prior to their participation in the conspiracy: they had met whilst serving sentences of imprisonment in various NSW prisons between 1999 and 2013. [3] The appellant and Mr Thompson maintained contact after they were released from custody. The appellant and Mr Willcox had known each other for approximately 30 years. The appellant introduced Mr Majdalawi to Mr Thompson in 2014.
2. The role and involvement of each co-conspirator was as follows: 1. The appellant: The appellant with Majdalawi and Willcox were the "Australian land based conspirators and engaged in separate acts in furtherance of the conspiracy, including the procurement of cocaine overseas". [4] The appellant, Majdalawi and Thompson "formed the nucleus of the conspiracy". [5] The judge concluded that: [6] "… the role of [the appellant], at all times in the course of the conspiracy, was paramount. He played a principal role throughout the conspiracy and oversaw the steps undertaken by each of the co-conspirators …. It was [the appellant] who played a primary role in initiating the agreement and brought together the other conspirators into the criminal enterprise. His role in recruiting others reflects his dominant role within the conspiracy". 1. Thompson: The Elakha was owned by Mr Thompson. He had purchased it in December 2013. Mr Thompson sailed the Elakha during the first attempt to import the border-controlled drug. He thus participated in the conspiracy "from the time of its commencement to the time the drug was seized on 2 February 2017". [7] Mr Thompson was found to have a "managerial role" and had "adopted an organising role" within the conspiracy. [8] Based upon an analysis of the intercepted communications between the appellant and Thompson, the judge found that the appellant and Thompson "acted in partnership with [each other] throughout the period of the conspiracy" and that they "operated together at the top of the hierarchy within this conspiracy", [9] albeit that, in assessing the respective roles as between the appellant and Thompson, the judge found that the appellant "and his overall management of every aspect of the importation places his role significantly above that" of Mr Thompson. [10] 2. Willcox: Mr Willcox had owned the Fredd S since at least January 2014. Mr Willcox was also engaged in a crucial meeting in Vietnam with the persons who sourced and procured the drug that was loaded onto the Elakha during the third importation attempt. [11] In addition, the landing vessel, the Fredd S, had been prepared and modified by Mr Willcox so that it could collect the drugs from the Elakha. Mr Willcox also purchased and installed the satellite communications system on the Elakha. [12] Mr Willcox entered into the conspiratorial agreement "in December 2014 and remained up until the time of seizure of the drug". [13] As to their relative positions, the judge concluded: [14] "Whilst Mr Willcox engaged in many steps which were crucial to the importation of the drug, he did not occupy the same managerial role as [the appellant], Mr Thompson and Mr Majdalawi. … Mr Willcox was at all times acting at the direction of [the appellant] and subordinate to him. … Mr Willcox operated at the lowest level within those engaged in the conspiracy here." 1. Majdalawi: Between November 2014 and October 2016, the appellant met with Mr Magjalawi at Majdalawi's home. The judge stated: [15] "… from about November 2014, Mr Majdalawi was engaged in some industry and activity in the procuring, supplying and instructing others as to the use of BlackBerry devices, which were used because of an encryption facility." "… Mr Majdalawi contributed to the planning of the importation at a high level, particularly in the first two failed importations. … Mr Majdalawi developed a close knowledge of the steps undertaken to bring the object of the conspiracy into effect, including the roles of others. He actively engaged in organisational matters, including implementation of communication devices and financing. … Mr Majdalawi was participating in the conspiracy intending substantial financial reward." [16] Nevertheless, the judge was not satisfied that Majdalawi "did anything beyond March 2016 to further the conspiracy", and, although Mr Majdalawi "maintained an interest in the successful pursuit of the object of the conspiracy", the judge was not satisfied that he "contributed anything towards the planning for the implementation of the third importation". [17] 1. Wren: Since April 2015, the Fredd-S had been stored at a training centre of the Maritime Union of Australia at St George's Basin on the south coast of NSW (MUA facility), of which Mr Wren was the caretaker. [18] Mr Wren was acquitted. 2. Fries: Mr Fries was a dual Swiss/Fiji national, and an experienced mariner. He sailed the Elakha on the second and third attempts. He was tried separately and was acquitted.

The third attempt to import a border-controlled drug

1. On the prosecution case, the third attempt to import drugs commenced in April 2016. At the request of the appellant, Mr Willcox travelled to Vietnam. Whilst in Vietnam, Mr Willcox coordinated the rendezvous for delivery at sea between the mother ship and the Elakha. Based upon intercepted conversations between the appellant and Mr Willcox, the sentencing judge inferred that the appellant was "playing an overarching role in coordinating between those who sourced and procured the drug" and Thompson and Willcox. [19] On 29 April 2016, Mr Willcox, after travelling to Vietnam, flew to New Zealand where he met with Mr Thompson in Auckland. Mr Willcox then returned to Sydney on 4 May 2016 to meet with Mr Thompson, after he had spoken with persons in Vietnam. The judge inferred that Mr Willcox provided information to Mr Thompson and "discussed preparations for the collection of a border controlled drug from a mothership for importation into Australia and preparations for the collection of the drug from the Elakha by the Fredd S". [20]
2. Following his return from Vietnam and New Zealand, Mr Willcox went with the appellant to the MUA facility in August, September and October 2016. On 10 September 2016, Mr Willcox sent a message to Mr Wren arranging to attend the MUA facility. In late October 2016, Mr Willcox returned to the MUA facility to undertake "work in preparation of the Fredd S". [21] The appellant also travelled to the MUA facility in November and December 2016.
3. On 13 July 2016 Mr Majdalawi made multiple attempts to contact the appellant and, ultimately, a meeting was arranged. On 21 August 2016 Mr Majdalawi made further multiple attempts to contact the appellant by telephone, but his calls were not answered. On 7 October 2016 the appellant left a voicemail message for Mr Majdalawi saying: "downstairs buddy, can you just let me in". From this, the judge inferred that the appellant had travelled to visit Mr Majdalawi "at his home and that they subsequently discussed preparations for the importation of a border controlled drug into Australia". [22]
4. The judge continued: [23] "On 9 January 2017, Mr Thompson and Mr Fries departed New Zealand on board the Elakha. On the same day, [the appellant] and Mr Willcox travelled to the MUA facility …. Mr Wiilcox returned to [the MUA facility] between 17 and 18 January, where he met with a marine mechanic who carried out work on the Fredd S." … "On or about 17 January 2017, Mr Thompson and Mr Fries took delivery of 1.42 tonnes of cocaine from a mothership at a point south of Tonga. After taking delivery of the drug, the Elakha sailed towards the east coast of Australia. … The Elakha was intercepted by the Australian Navy on 2 February 2017. At the time the Elakha was stopped it was about 210 nautical miles off the eastern coastline of New South Wales. Located within the cabin of the vessel were 43 large bags each containing 35 to 37 blocks of compressed cocaine with a pure weight of 1.11 tonnes. Mr Thompson and Mr Fries were detained and the Elakha was escorted to Sydney." [24]
5. On 3 February 2017, the appellant and Mr Willcox travelled to St George's Basin. During the morning they bought fuel and attached the Fredd S to Mr Willcox' vehicle. Shortly thereafter they were arrested. Mr Majdalawi was arrested at his home in Sydney on the same day. Blackberry devices were located in Mr Majdalawi's vehicle, Mr Willcox' vehicle and on the Elakha.

Ground 1: tendency evidence

1. The primary ground for the appeal against the appellant's conviction concerned the admission of tendency evidence comprising earlier drug importation offences committed by the appellant.

Tendency evidence notice

1. On 5 October 2018, the Commonwealth Director of Public Prosecutions served on the solicitor for the appellant a tendency evidence notice under s 97(1)(a) of the Evidence Act 1995 (NSW). The tendency notice identified 35 separate items of evidence, the bulk of which related to transcripts of telephone conversations between the conspirators in a period running from 4 December 2014 until 3 February 2017, which was the period of the alleged conspiracy. Only two items were controversial: the first was a statement of facts provided in the course of sentencing proceedings in 1999 involving the appellant with respect to four counts of importing and supply of commercial quantities of cocaine in November-December 1996 and January-May 1997. Secondly, there was a transcript of a conversation recorded between a registered informant and the appellant, with three other men, which took place at Panthers Resort, Penrith, on 21 April 1997, which was also tendered in the 1999 sentencing proceedings.
2. The tendency identified in the notice was in the following terms: "(a) To liaise with overseas drug suppliers for the purpose of sourcing border controlled drugs for importation into Australia. (b) To import border controlled drugs into Australia. (c) To be involved in illegal smuggling into Australia. (d) To be involved with others in the importation of border controlled drugs into Australia. (e) To be involved in the supply and/or distribution of prohibited drugs in Australia. (f) To use public (or pay) telephones as a method of covert communication." There is no need to consider further pars (b) and (c) of the supposed tendency, as they were abandoned by the time the judge directed the jury.
3. The notice also identified the "facts in issue" upon which the tendency bore in the following terms: "(i) that the accused had knowingly agreed with others to import a border controlled drug into Australia; (ii) that he used public telephones as a means of covert communication in furtherance of the agreement; and (iii) that he was part of the shore party preparing to meet the SY ELAKHA at sea aboard the MV FREDD-S and/or MV CHIRP and tranship the border controlled drugs for the purpose of bringing them onto Australian soil."

Legal principles

1. It is now clear (although it may not have been in the past) that this Court must form its own view about the admissibility of the evidence. That proposition was expressly adopted in the unanimous judgment of the High Court in The Queen v Bauer (a pseudonym) [25] : "61 The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was. [26] "
2. That passage is silent as to whether the Court should adopt a similar correctness standard in determining whether, pursuant to s 101 of the Evidence Act 1995 (NSW) "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused". [27]
3. There was limited discussion in the course of oral argument in this case as to how that exercise should be undertaken. In particular, there was a temporal element: was admissibility to be assessed at the time of the decision at trial, and on the material available to the trial judge in making the ruling? A second possibility was that it should be determined on the basis of the material available and the state of the trial when the evidence was adduced. Up to that point in time, the ruling could have been revisited. The third possibility was that admissibility should be assessed retrospectively by reference to the material available, and the submissions made, in this Court.
4. The third possibility appears to be wrong in principle. There was no real issue as to the reliability of the material in the present case, it being a summary of the circumstances giving rise to three earlier convictions of the appellant, which were readily confirmed by the appellant under cross-examination. However, in principle, it is possible that the appellant would not have given evidence had the tendency evidence not been admitted. Even if he had given evidence in any event, he would not have been cross-examined on the earlier convictions. Accordingly, the appropriate time for the appeal court to reconsider the admissibility of challenged evidence is either at the time admissibility was determined at trial, or at a time prior to the adducing of the evidence, if that did not immediately follow the judge's ruling on admissibility, and often it will not. In fact the judge deferred ruling on one aspect of the tendency evidence (relating to the conviction for supply within Australia) until after the prosecutor had opened, he having agreed not to refer to it in opening.
5. The reason for being clear as to when admissibility is to be addressed is the need to assess the tendency evidence in the context of the trial and of the other evidence called, or to be called, by the prosecution. Importantly in the present case, the prosecutor was not aware of the precise basis on which the applicant would seek to explain potentially incriminating evidence concerning his activities in the course of the alleged conspiracy. Had he admitted involvement in the attempted importation, but sought to limit or explain his role, the evidence of the earlier convictions may have been of limited probative value. However, the evidence of the earlier convictions for importing cocaine may have been of significantly greater probative value in circumstances where he denied that he was involved in any attempted importation. The prosecution was entitled to call all admissible evidence, and have its probative value assessed, on the basis that the defence would challenge all aspects of the prosecution case. In assessing admissibility the judge relied heavily on the "crown case statement".
6. Thus, it is appropriate to consider admissibility at the time the trial judge ruled upon the question, but allow for the possibility that any clarification as to the issues in dispute which occurred after that time but before the evidence was adduced, could be relied upon. The parties did not suggest there was any such further material to be considered in the present case and the submissions largely repeated the matters raised by trial counsel. Accordingly, it is sufficient to address the matter on the basis that it was addressed by the trial judge.
7. There is one further issue which may arise as a basis for having regard to later events. That matter concerns the possible engagement of the proviso in the event that this Court concludes that the tendency evidence was wrongly admitted. First, if the evidence has changed the course of the trial adversely to the interests of the accused, for example by rendering it forensically necessary for him to give evidence, then it may be unlikely that the prosecution can rely upon the proviso. Assuming that is not the case, it may be appropriate to have regard to the way the issues in dispute were narrowed in the course of the trial, including by way of addresses and summing up. At that stage (namely when the jury is about to retire) it may have become apparent that the tendency evidence, though wrongly admitted, could not have been sufficient to deprive the accused of a real chance of acquittal. It is not necessary to pursue these questions further, in circumstances where the Court is satisfied that the tendency evidence was properly admitted.
8. Although it is necessary for this Court to form its own view about the admissibility of the tendency evidence, it does not follow that the Court should ignore the reasoned judgment of the trial judge, any more than it would when forming its own opinion on an appeal by way of rehearing.

Reasoning of trial judge

1. The trial judge delivered a judgment with respect to the objection to the admission of tendency evidence in respect of each of the accused, prior to the empanelment of the jury on 12 February 2019. The judgment, dated 7 February 2019, included an overview of the application and, separately, an overview of the evidence to be led by the prosecution, in terms similar to those set out above, but to a greater extent. The judge then turned to a consideration of the requirements of s 97, including the need for the proffered evidence to have "significant probative value". That test, as has been noted in a number of cases, requires that the evidence have greater force than would be sufficient to allow its admissibility as relevant evidence, that is simply having "probative value". Referring to the judgment of Johnson J in R v LN; R v AW (No 1), [28] the judge noted: "As the terms of s 97(1)(b) make clear, an assessment of whether the evidence has 'significant probative value' is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party …. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution …."
2. The judge further stated: [29] "The fact that an accused has in the past committed an offence of a similar kind does not, on its own, mean the evidence of a prior conviction has significant probative value. There must ordinarily be some feature of, or about, the offending which links the two together, some common feature of, or about, the offending, before the requirement of significant probative value will be met."
3. The judge referred to various passages in the High Court judgments in Hughes v The Queen. [30] The judge then noted the need to consider whether the probative value of the evidence proposed to be called substantially outweighed any prejudicial effect it may have on the defendant, applying s 101 of the Evidence Act. The judge referred to an explanation in earlier authorities as to the operation of that provision, noting: [31] "In the Queen v Bauer…, the High Court described the expression 'prejudicial effect' as conveying the idea of harm to an accused's interests by reason of the risk the jury would use the evidence improperly in some unfair way (at [73]). A judge is required to balance probative evidence against the danger of unfair prejudice. In so doing, it is necessary for the judge to consider whether or not the unfair prejudice can be cured by directions."
4. The judge then turned to consider the issues raised by each accused in turn, commencing with the appellant.
5. The first material sought to be relied on concerned an importation of cocaine from the United States of America in November 1996. The appellant recruited a Peter Hardwicke to travel to Los Angeles to negotiate a source of cocaine supply, telling him where to place the cocaine on a United Airlines flight for Sydney, for later retrieval. Mr Hardwicke flew to San Francisco, collected cocaine from a supplier and provided it to two other persons who strapped 3.5 kg of cocaine to their bodies. During the flight, a package containing the drug was placed in a disposal bin located in the aircraft galley. Mr Hardwicke later met the appellant and asked whether he had collected the drug, to which the appellant replied, "are you kidding, we've already got the stuff, cut it and delivered it".
6. A second importation occurred in December 1996, using the same technique. There had, however, been a delay in Los Angeles when the appellant spoke to Mr Hardwicke, who told him that the suppliers did not have the drug ready. When the men who were to act as couriers returned to Sydney, the police searched the aircraft and located 10 kilograms of cocaine secreted in rubbish receptacles in the galley of the plane. The appellant met Mr Hardwicke and told him that the drug had been seized, but that he was making further plans for the importation of cocaine by aircraft travelling from the USA to Sydney.
7. The third importation relied upon occurred in May 1997. In October 1996, an AFP undercover agent had approached a man named Weininger to offer his services as a drug courier. The agent was told that Weininger and the appellant were principals of a cocaine importation syndicate which was encountering difficulties with an established method of bringing cocaine into Australia. The appellant agreed to pay the undercover agent for each kilogram brought into Australia and advised him that he (the appellant) would arrange for the delivery of cocaine from a Colombian cartel to a place in Los Angeles. The appellant instructed the agent to use public telephones in the United States to lessen the risk of interception. Further details of the arrangements, which also involved Mr Hardwicke, were obtained from intercepted calls. The appellant arranged for the agent to take cash with him and agreed to pay $40,000 for the importation of 5 kilograms, which were expected to return a total of $500,000. The agent and Mr Hardwicke met in Los Angeles and the informant obtained a bag containing six packages of cocaine which he provided to US authorities. The packages were found to contain 5.8 kilograms of cocaine with a street value of $2.5 million. The bag was returned to the agent who transported it to Australia. Upon arrival the Australian authorities continued to follow the movement of the bag and ultimately arrested the appellant.
8. In addition to the statements of fact tendered on the sentencing hearing in relation to the three offences, there was a transcript of a conversation between the appellant and three other men recorded on a listening device worn by the undercover agent. The meeting occurred at Panthers Resort, Penrith, on 21 April 1997. The judge summarised the hour-long conversation in the following terms: [32] "In the course of the conversation, Mr Geraghty refers to contacts in the United States and discusses with the others the arrangements for procuring and collecting drugs in the United States. Mr Geraghty refers to the provision of funds and negotiates payment to others. Mr Geraghty also discusses the organisation of flights and the payment of people who would be engaged to collect and transport the drug. Mr Geraghty informs the others that once he builds a substantial bank of money, payment will be made soon after each 'run'. Mr Geraghty speaks of substantial returns of money, at one time asserting 'I want between six and ten million'. It is clear from the intercepted conversation that Mr Geraghty's role included the sale of the drug upon its entry into Australia. At one point he asserts '… you don't do no selling, you don't do anything. I've got all that organised. I run this town. That's what my business is …'. When asked whether he had been 'doing this for a while now', Mr Geraghty responds 'I've been doing this for twenty years' …. Mr Geraghty instructs others to 'keep off the phones' and refers to talking on payphones."
9. The judge then referred to the thrust of the prosecution case for reliance on this material in the following terms: [33] "The Crown submits that the evidence of Mr Geraghty's prior involvement in drug trafficking is probative evidence which would place the alleged offence of conspiracy here into context and '… would overcome the false impression that… [Mr Geraghty] was a man in his sixties who enjoyed fishing and there was no explanation of how an otherwise innocuous elderly man could have the connections to source and distribute that quantity of drugs, to be trusted to communicate with overseas suppliers and be trusted by overseas suppliers to import the drugs on credit; that [Mr Geraghty] had no pre-existing reason, other than innocent friendships with the other co-accused to be communicating with and visiting them."
10. The judge identified the submissions made by counsel for the five accused, drawing upon the differences between the circumstances of the earlier convictions and the circumstances of the charged offences, in the following terms: "a) there is a 'gap' of about 16 years between them; b) the earlier importations were sourced in Los Angeles, the latter said to be by transhipment between vessels in the South Sea, following unsuccessful attempts from South America; c) the earlier offences involve the use of aircraft carrying the drugs into Sydney, as opposed to the use of a number of vessels ultimately bringing the drug ashore; d) couriers and other middlemen were used in the aircraft offences whereas the current matters allegedly utilised the hands-on participation of principals; e) [Mr Geraghty] pleaded guilty to the earlier charges."
11. Counsel for the appellant submitted that these discrepancies not only reduced the significance of the probative value of the earlier offending, but tended to engender massive prejudice incapable of being cured by directions to the jury.
12. In concluding that the evidence was admissible as establishing "a tendency to act in a particular way with a particular state of mind" the judge observed: [34] "The tendency established includes the tendency identified in the tendency notice that Mr Geraghty has a tendency to liaise with overseas drug suppliers for the purpose of sourcing a border controlled drug for importation into Australia; to import a border controlled drug into Australia; to be involved with others in the importation of a border controlled drug into Australia and to use methods of covert communication. The evidence of prior importations…, including intercepted conversations between Mr Geraghty and others, demonstrates Mr Geraghty has in the past been involved in importing drugs, at times involving large quantities, and has contacts with overseas procurers of drugs. Further, that he engages others, including 'runners', to work for him and that he undertakes strategies to avoid detection, including engaging in covert communications."
13. The judge then expanded upon the application of the tendency evidence to the facts in issue in the present proceeding. Turning to the application of the disqualification provided by s 101, the judge stated: [35] "I have considered whether the admission of the evidence would involve a risk of an unfair trial. Section 101 requires the exclusion of tendency evidence, even if relevant, if there is a danger of improper use of the evidence; whether the evidence will be taken by the jury to prove too much that the law seeks to guard against; whether there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. As the evidence to be adduced relates to convictions for prior criminal conduct of Mr Geraghty, I have also considered that the danger of unfair prejudice may involve a risk that a jury may be diverted from a proper consideration of the evidence and simply assume Mr Geraghty's guilt."
14. The judge expressed his satisfaction that appropriate directions "will ameliorate the risk the jury would use the evidence improperly". He rejected the objection to the evidence.

Reconsideration

1. As explained in Hughes at [41], the test of admissibility under s 97 of the Evidence Act requires "consideration of two interrelated but separate matters", namely support for the asserted tendency and the extent to which the tendency is probative of the charged offences. The fact that the matters are interrelated means that they are not necessarily to be addressed by a two-stage enquiry: the relevance of the alleged tendency will be determined by the facts in issue.
2. As the submissions for the Director noted, there has been extensive discussion in the reported cases as to the way in which relevant factors can be assessed. However, the cases are generally of limited assistance because the majority concern sexual offending which in turn invokes characteristics such as a predilection for sexual interaction with young children or a sexual attraction to a particular young person. The propensity in the present case, involves the carrying on of illegal criminal activities for financial reward. Apparently isolated evidence of sexual offending, separated by a period of some ten years can readily be seen not to involve tendency evidence having significant probative effect. By way of contrast, in the case of the appellant the "gap" of 16 years between the earlier offending and that which commenced in 2014 is of quite a different nature. First, for all but some two years of that period, the appellant was in custody serving the sentences resulting from his earlier offences, having been released on parole in November 2012.
3. Secondly, as noted in the prosecutor's submissions at trial, it was implausible that a 60-year old man with no prior involvement in drug importation would seek to set up a massive importation exercise. The claim that he was the organiser of such an activity would further test credulity. An innocent explanation would readily be accepted as raising a reasonable doubt. On the other hand, evidence that the appellant had earlier been involved in significant importation activities, of which he was at least an organiser, with the ability to source significant supplies of cocaine overseas and pay for others to import it into Australia, would provide an explanation having very substantial probative value. The test in s 97(1) was clearly satisfied.
4. The application of s 101 was the proper focus of the objection. There were two elements to the risk of misuse of the material. The obvious risk was that the jury, at least if not properly instructed, would slide readily from the proposition that the appellant had entered guilty pleas (and therefore admitted) his involvement in extensive importations of cocaine in the past to the conclusion that he was indeed guilty of the charged conspiracy. Often an appropriate warning will be sufficient to warn the jury against such prejudicial reasoning. The difficulty in the present case is that there is quite a subtle difference between saying that this man's record will allow you to disregard the implausibility of a 60-year old man embarking on an operation of this magnitude because he has established experience in conducting such operations (legitimate reasoning) and the necessary warning that you cannot rely upon his past convictions as evidence that he is a person who commits such offences and therefore committed this offence. The legitimate form of reasoning requires an intermediate step, but one which highlights the persuasive force of the tendency evidence by focusing on the significant common elements of the two periods of offending. Those common elements, including high level organisation, sourcing the drug overseas, having the apparent trust of suppliers and the ability to convince others (no doubt by way of financial reward) to participate in a dangerous activity, are powerful considerations. It follows that the probative value (applying the legitimate reasoning) substantially outweighs the potential prejudice of moving too hastily from the premise to the conclusion.
5. In short, this is a case where an appropriate direction as to the legitimate use of the evidence, rather than demonstrating the danger of misuse, is likely to increase the persuasiveness of the legitimate use.
6. For these reasons, the trial judge was correct in his assessment of its admissibility. No objection is raised as to the adequacy of the directions given to the jury. Accordingly, ground 1 should be rejected.

The challenged evidence

1. On 8 May 2015, police recorded a conversation between the appellant and Mr Majdalawi. The conversation related to fitting out a boat and was tendered as evidence that the conspiracy to import a border controlled drug was on foot at that time. At one point in the conversation, the appellant stated: "The only way you can do this is what we use to do [sic] with the hashish."
2. A few minutes later, there was a somewhat more obscure reference to "all that hashish".
3. The five accused, including the appellant, took objection to the reference to hashish, which they submitted should be redacted. The objection relied upon the operation of s 137 of the Evidence Act which provides that, in a criminal proceeding, "the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant".
4. The substance of the challenged conversation was as follows (with the indication of omissions referring to parts which were inaudible): "Geraghty: … we will cover them … they're looking for it … … Geraghty: … 700 on board where we can stash it … Geraghty: The only way you can do this is what we use to do with the hashish … Majdalawi: Yeah Geraghty: … rip the whole back out of the boat Majdalawi: Yeah Geraghty: Put it all in the sides Majdalawi: Yeah … Geraghty: Hundred and fifty million dollars… [Then four minutes later] Geraghty: Just something interesting aside because that stuff … now listen … boats what's coming, what's coming in and out … all that hashish… Majdalawi: Yeah."
5. Because it was no part of the prosecution case that the appellant had actually been involved in the importation of hashish, the words "what we use to" were redacted. The evidence was admitted in the form, "The only way you can do this is do with the hashish". [36] Mr Majdalawi's response, "yeah", was also redacted.
6. The context of the conversation was important. As summarised by the judge in his tendency judgment, and repeated in relation to the hashish application, the prosecution case was, relevantly, as follows: [37] "In the early months of 2015, a number of conversations between Mr Geraghty and Mr Majdalawi were intercepted. The Crown in particular relies upon conversations where Mr Geraghty and Mr Majdalawi discuss the amount of money each has outlaid and the expected financial return. On one occasion there is a reference to being 'out of pocket … up to half a million' … In early 2015, Mr Wren sought permission from the secretary of the [MUA] for a boat to be stored at the St George Basin premises. It is the Crown case that at about this time, Mr Geraghty and Mr Majdalawi discussed using a motorboat to collect goods from a boat at sea. … In a particular intercepted conversation between Mr Geraghty and Mr Majdalawi, they discuss whether Mr Majdalawi would be on the boat 'when we pick it up'. In the same conversation Mr Geraghty refers to stacking '300' in the front cabin and laying the floor back over it. It is the Crown case that it can be inferred this conversation relates to the loading of substantial quantities of drug onto a vessel at sea… In April 2015, Mr Geraghty and Mr Willcox moved the Fredd-S to the MUA premises …. On 4 April 2015, the Elakha departed New Zealand with Mr Thompson and Mr Fries on board …. During this period, it is alleged that intercepted conversations between Mr Geraghty and Mr Willcox relate to the preparation of the motorboat, the Fredd-S …. The Crown relies upon a particular intercepted call on 8 May 2015, where the Crown alleges Mr Geraghty and Mr Majdalawi discussed paying 'the captain… 400' and 'one hundred … for Dave' …. It is the Crown case that this conversation relates to payment to Mr Wren for his involvement in the provision of the MUA premises for the storage of the motorboat, the Fredd-S." (Mr Wren's first name was David.)

Reasoning of the trial judge

1. The judge summarised the submissions of the parties, the objections being articulated in similar terms to the submissions in this Court. In substance, counsel for the appellant submitted that the reference to hashish added nothing to the prosecution case. In other words, it was readily open to the prosecutor to invite the jury to infer that the appellant was planning an illegal importation by boat. On the other hand, the potential prejudice was said to be self-evident: the jury would readily understand that the appellant had been involved in an earlier importation of drugs, in this case hashish. That inference would remain likely, even with the redaction adopted by the trial judge. Thus, the jury might well ask itself, "how else would Mr Geraghty know about these methods of hiding drugs on a boat, unless he had already undertaken such an exercise himself?". Counsel had submitted: [38] "The total context of the conversation does not justify the inclusion of references to prior hashish importations to establish the conversation was in relation to a border controlled drug."
2. On the appeal, the Director observed that, at the time the question of admissibility arose, it was not known how the appellant would seek to explain or defend himself in relation to the telephone interception evidence. The answer to that question was only provided when the appellant gave evidence and stated that he made money by visiting fishing boats off the south coast of New South Wales which had exceeded their quotas and purchasing the excess fish from them for resale. Whether that explanation, if known at the time the evidence was admitted, would have resulted in a different outcome in the ruling on admissibility cannot be known. The question is whether it should affect this Court's assessment of the correctness of the ruling. On one view, the evidence confirmed that which the prosecution was entitled to assume, namely that the appellant would seek to provide an innocent explanation for the conversation, which the prosecutor was entitled to address in the prosecution case. On the other hand, if error were established, the later evidence might be relevant to whether there had been a substantial miscarriage of justice.
3. The trial judge noted that when objection had first been taken on 18 February 2019 (albeit several days after the prosecutor had opened the case, in the course of which he had referred to the impugned conversation [39] ) he, the judge, delayed ruling on the admissibility of the evidence because he was "unable to properly assess the probative value of the evidence in the context of other evidence in the Crown case". [40] The judgment noted that the prosecution had played "numerous intercepted conversations, a substantial number of which were guarded". [41] When the ruling was made on 11 March 2019, the trial had reached its twentieth day. In his determination the judge stated: [42] "Having now considered the context of the intercepted conversation of the 8 May 2015, I have formed the view that, in the absence of the reference to 'hashish', the meaning of the conversation may not be readily discerned and other inferences may be open. The inclusion of the term 'hashish' provides substantial support for the inference that the conversation related to the storing of significant quantities of a border controlled drug on a vessel to be used to collect drugs from the Elakha. The probative value of the evidence, in the context of other events at or about the time of the 8 May 2015 conversation, is substantial."
4. The judge then turned to assess the prejudicial effect of the evidence, noting the concession by the prosecutor that the reference to hashish was "capable of creating the danger of unfair prejudice to Mr Geraghty". [43] The judge set out a passage from the judgment of Brennan J in Harriman v The Queen, [44] a passage which remains pertinent in considering the operation of s 137, in determining whether the probative value of the evidence is "outweighed" by the danger of unfair prejudice to the defendant. The judge then returned to the probative value of the evidence, stating: [45] "The evidence is capable of informing the jury about the true topic of this particular conversation. The conversation is guarded. The content of the challenged extract is part of the res gestae. It provides particular context to the conversation and is capable of supporting an inference that the conversation related to arrangements for the collection of a border controlled drug at sea and informing the fact finders of the nature of other events and conduct by alleged co-conspirators at this time in furtherance of the conspiracy. It is capable of rationally affecting the assessment of the nature of the agreement to import a border controlled drug. Having considered the other evidence in the Crown case which might shed meaning on the particular contested extract, I am of the view that the probative value of the challenged extract is substantial… The reference to the term 'hashish' is capable of rationally affecting the assessment of whether the conversation is about the agreement to and arrangements for the importation of a border controlled drug. The use of the term 'hashish' by Mr Geraghty provides context to the conversation and makes it more likely the conversation is about a border controlled drug than some other illegal conduct or other innocent subject."
5. The judge addressed the danger of unfair prejudice, noting that (i) his proposal to redact the reference to "we" and (ii) to give a direction to the jury which would ameliorate any potential prejudice, meant that the danger of unfair prejudice did not outweigh the probative value of the evidence.

Reconsideration

1. It is, of course, impossible for this Court to achieve an understanding of the trial even remotely comparable to that of the trial judge. The evidence proceeded for over 60 days. However, there are three reasons for concluding that the refusal to exclude the references to "hashish" was correct.
2. First, although it would be impractical to repeat or represent in these reasons the scope of the conversations between the accused which were intercepted and played to the jury, it is clear that many were, as the trial judge described them, "guarded", meaning that they were deliberately not explicit in identifying the subject matter being discussed. No doubt some were clearer than others, but many were quite obscure in their references. Explicit evidence that the conversation of 8 May 2015 concerned concealment of drugs gave it significant probative value.
3. Secondly, it may be accepted that there was a danger that, even in redacted form, the jury might infer that the source of the appellant's knowledge was a prior importation in which he had been involved. That danger was no doubt mitigated by the proposition, expressly stated in the judge's summing up, that it was no part of the prosecution case that the appellant had been involved in such a criminal activity. [46] The jury was also given ample warning as to the manner in which they should treat evidence suggesting involvement in other criminal activity (including, far more importantly, the tendency evidence). The risk of unfair prejudice, in the sense of misuse of this evidence, was therefore low.
4. Thirdly, to the extent that there remained some risk of misuse of the reference to hashish, that risk should be seen in context. Perhaps ironically, defence counsel's objection to the reference to hashish relied upon what was said to be an otherwise overwhelming inference that the conversation was about drug importation. [47] If the references to hashish added little by way of probative value, it is difficult to accept that they gave rise to any real risk of unfair prejudice.
5. For these reasons, the submission that the probative value of the evidence, in its redacted form, was outweighed by the danger of unfair prejudice must be rejected. No objection was raised as to the adequacy of the directions given to the jury. Accordingly, ground 2 is rejected.

Conviction appeal - conclusions

1. Both challenges to the admissibility of evidence should be rejected. Accordingly, the appeal against conviction must be dismissed.

Introduction

1. The appellant, in addition to appealing against his conviction, appealed against his sentence. The sole ground of appeal was that the sentence imposed - specifically the non-parole period - was manifestly excessive.
2. As developed in written submissions, the appellant challenged the non-parole period on the basis that the sentencing judge erred in giving "insufficient weight" to two matters: first, the age of the appellant and, secondly, the appellant's health (being what the appellant described in submissions as "a musculoskeletal condition of his left hip with degenerative changes of the lumbar spine, in addition to hypertension managed with medication"). [48]
3. An affidavit of the appellant, affirmed 24 May 2022, was essentially directed to the appellant's custodial placement and health, since sentencing. An affidavit of Rory Macken, solicitor for the Director, affirmed 19 October 2022, annexed a copy of the appellant's custodial history. The evidence was received on the "usual basis" - that is, to show events that have occurred since the time of sentencing, not to enable a new and different case to be run in the event that this Court resentenced the appellant. [49] The evidence thus only became relevant in the event that this Court found error on the part of the sentencing judge, and resentenced the appellant. As no error has been demonstrated, it is unnecessary to refer further to it.
4. The appellant required leave to appeal against sentence: Criminal Appeal Act, s 5(1)(c). Leave to appeal should be granted, but the appeal in relation to this ground dismissed. Shortly stated, but as explained further in what follows, that is because the appellant has not established that the non-parole period fixed was unreasonable or plainly unjust and thus manifestly excessive.

The sentencing judgment

1. The background facts, drawn from the sentencing judgment, are in two parts, namely, (i) the objective matters and the role of the appellant in the conspiracy; and (ii) the subjective features, with focus upon the appellant's age and 'medical condition'.

Objective features and the appellant's role in the conspiracy

1. The appellant (with co-offenders Majdalawi and Willcox) were described as the "Australian land based conspirators and engaged in separate acts in furtherance of the conspiracy, including the procurement of cocaine overseas". [50]
2. In assessing the objective gravity of the offending, the judge found that the appellant's role could "be determined with quite some precision", [51] finding: 1. The appellant had a dominant, and overarching role "in coordinating with those sourcing and procuring the cocaine and in coordinating the conspirators"; [52] and, later, to similar effect, that it was the appellant who, throughout the period of the conspiracy, "played the primary role of negotiating, and communicating, with a person or persons who sourced and procured the drug for loading onto the Elakha". [53] 2. The appellant "adopted the same management role over the other conspirators engaged in different steps in putting into effect the object of the conspiracy …. The planning between the appellant [and Mr Thompson and Mr Majdalawi] put into effect the earlier stages of the conspiracy, from the foundation for the continuing attempts to import the border-controlled drug into Australia". [54] 3. The appellant's role in the conspiracy, which had been adopted "from the outset", was "paramount": the appellant "played a principal role throughout the conspiracy and oversaw the steps undertaken by each of the co-conspirators …. It was [the appellant] who played a primary role in initiating the agreement and brought together the other conspirators into the criminal enterprise. His role in recruiting others reflects his dominant role within the conspiracy". [55] 4. It was the appellant "who maintained overarching control over each of the steps in furtherance of the conspiracy". [56]
3. The sentencing judge described the "disposition" of the appellant, throughout the duration of the conspiracy, as "one of persistence and determination. He possessed a single-mindedness to put the conspiracy into effect", and that following the failure of the first and second attempts, the appellant on each occasion "acted to revive the conspiracy". [57]
4. The sentencing judge rejected a submission that the planning of the conspiracy lacked sophistication as "unfounded", finding that the planning for the importation "occurred over a considerable period and involved the attention to every logistical aspect of the importation" and, further, it would be "difficult to envisage what quality of the preparation or planning was lacking that would have enabled the classification of the enterprise as 'sophisticated'". [58]
5. The sentencing judge noted that the evidence that the appellant "engaged in the conduct for financial reward is overwhelming". [59] Although unable to find that the appellant, or the other conspirators, provided the finance for the procurement or sourcing of the drug, the evidence established that the appellant "outlaid considerable amounts of money in order to put the conspiracy into effect". [60]
6. In terms of the appellant's knowledge of the quantity of cocaine involved, the sentencing judge found that although there was no direct evidence that the appellant was aware of the actual quantity of cocaine that was seized, the evidence did establish that the appellant was aware "that a vast quantity of cocaine was to be loaded onto the Elakha" - specifically that the appellant "was at least aware" that quantities in the order of 600 kg "were to be brought into Australia", and that he was "expecting a substantial financial return". [61]
7. The Australia-based conspirators - which included the appellant - "were to be paid commensurate with, or proportional to, the financial return upon distribution". [62] Furthermore, the sentencing judge inferred that, following importation, the appellant "intended to play a significant role in the distribution of the drug".
8. Given the findings concerning the role of the appellant, the sentencing judge was of the view that the objective gravity of the appellant's offending was of the highest order, and that the appellant's "conduct falls within the highest band of objective seriousness for offences of this kind". [63] He found that no other sentence than imprisonment was appropriate: Crimes Act, s 17A(1). Additionally, the sentencing judge found that the features referred to brought the offending of the appellant and Mr Thompson "within the worst case category … when assessing the objective seriousness of their conduct". [64] The reasons continued: "Both operated at the highest level within the conspiracy throughout the whole period of the conspiracy and were instrumental in all three attempts to import the drug. I have found the conspiracy involved criminality of the highest order. The sheer gravity of the crime is manifest in the quantity of the drug seized. The harm to the community, if the importation had not been frustrated by the authorities, would have been profound".
9. Further, in terms of the gravity of the offending, the sentencing judge found that it was the significant role of the appellant within the conspiracy "which had as its scope the enabling of international drug traffickers to saturate the Australian community with a vast quantity of illicit drug, which places their conduct within the worst case". [65]
10. Earlier, the sentencing judge considered that the "sentence to be imposed must have strong elements of punishment, denunciation and deterrence, including specific deterrence". [66]

The subjective features

1. The sentencing judge recognised that any sentence imposed was required to take into account, as relevant, the "character, antecedents, age, means and physical or mental condition of the person": s 16A(2)(m) of the Crimes Act 1914 (Cth). [67] In particular, the sentencing judge clearly recognised that age and "physical ill-health are relevant factors": they "may be a mitigating consideration as they may make serving a sentence of imprisonment more onerous", albeit that they were not determinative of the sentence imposed. [68]
2. In relation to antecedents, the sentencing judge noted that, on 11 December 2000, the appellant was sentenced in the District Court on three counts of being knowingly concerned in the importation of a prohibited drug. Those offences related to an importation of a commercial quality of cocaine in November 1996, December 1996 and May 1997. On each of the three counts, the appellant was sentenced to 25 years' imprisonment, commencing on 5 May 1997. The non-parole period was 15 years and 6 months. The appellant was also sentenced to fixed terms of imprisonment of 10 years on two further counts - being a count of conspiracy to commit money laundering, and conspiracy to supply a large commercial quantity of cocaine. Those sentences were ordered to be served concurrently with the sentences imposed in connection with the importation offences.
3. In relation to this past offending, the sentencing judge noted that whilst irrelevant to determining the objective seriousness of an offence, "it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community". [69] The offending the subject of the present convictions occurred whilst the appellant "was on parole which is a significant aggravating factor. The parole period expired on 4 November 2017". [70]
4. In terms of prospects of rehabilitation, the sentencing judge observed that: [71] "The inevitable finding, because of his advanced age upon release, that he will not re-offend, is the only finding that can be made on the balance of probabilities."
5. Further, the sentencing judge also found that the appellant was "aware at all times of the enormous scale of [his] criminality, and … took a significant risk that, if detected, [he] faced a substantial period of imprisonment" and that the appellant "would have been aware of the risk that if detected there was a high likelihood [he] would serve the rest of [his life] in gaol". [72]
6. In relation to the appellant's age, the sentencing judge recognised that sentencing a person of advanced age required tensions to be resolved: [73] "Considerations of general deterrence, punishment and denunciation do not fall away when sentencing a person of advanced age. The sentence must be just and within the range … which reflects the objective gravity of the offending. Age cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence. It cannot be said that it would never be appropriate to impose a sentence that would mean that an offender may spend the rest of their life in gaol."
7. Later, the sentencing judge specifically accepted that the serving of imprisonment by offenders of advanced age creates special hardship, which was a significant matter "to be taken into account when setting the sentence". The sentencing judge also recognised that the extent of any leniency which "should be given to an offender of advanced age depends on all the facts and circumstances of the particular case". [74]
8. The judge accepted that the appellant's life expectancy was approximately 22 years from the date of commencement of the sentence. Notwithstanding that fact, the judge observed: [75] "It is to be recognised that each year of a sentence represents an unusually substantial proportion of the period of life left to an aged offender and the arduous nature of imprisonment is a harsh experience for offenders of advanced age. I recognise the prospect the offenders Mr Geraghty and Mr Thompson will spend the rest of their lives in gaol. The sentences I have imposed here, including the setting of the non-parole period, must be proportionate to the nature of the crime committed. In all of the circumstances any lesser sentence than that imposed would, in my opinion, undervalue the seriousness of the offending and pay insufficient regard to the requirements of just punishment, deterrence and denunciation, even when taking full account of the advanced age of the offenders Mr Geraghty, Mr Thompson and Mr Willcox and other factors in mitigation."
9. In relation to the appellant's physical condition, the sentencing judge noted that "illness of an offender may be a mitigating factor if it cannot be treated effectively in prison or if the nature of the illness will result in imprisonment being more onerous for the offender than would ordinarily be the case". [76] In relation to the matters put forward by the appellant as mitigatory, as the appellant did not give evidence the judge had regard to the following documentary evidence: 1. A report from Justice Health dated 11 October 2019, which stated that the appellant "suffers from a musculoskeletal condition in his left hip. X-rays reveal narrowing of his left hip joint with degenerative changes of the lumbar spine. Mr Geraghty suffers hypertension and is prescribed medication". [77] A forensic psychologist, Dr Milic, recorded that the appellant had told him he needed a hip replacement. However, the sentencing judge observed that, in light of the fact that the appellant did not give evidence, caution "should be exercised when assessing the weight to be given to histories provided in the course of preparation of reports which remain untested." [78] 2. A report from Justice Health dated 24 January 2020, which recorded that the appellant had been referred to a cardiologist to assess a systolic heart murmur.
10. The appellant submitted at the sentencing that the presence of the heart condition was "newly reported, and may be symptomatic of a further/continuing decline". The sentencing judge accepted that: [79] " … there are a number of factors which will make the serving of Mr Geraghty's sentence an arduous one. Mr Geraghty's health will further decline over the course of the lengthy sentence he will serve. His declining health means he will suffer hardship in the course of serving his sentence, which is a matter to be taken into account as part of the general mix of subjective circumstances."
11. The sentencing judge held that there was nothing in the evidence, nor in the subjective circumstances, that would militate against the imposition of a sentence of life imprisonment. The judge noted that (i) the appellant had a "significant prior record in importing and trafficking drugs, the seriousness of which is identified in the fact Mr Geraghty served a sentence of fifteen and a half years in gaol before being admitted to parole"; (ii) a period of only 14 months elapsed before the appellant entered into the conspiracy; (iii) the appellant expressed no remorse, and (iv) he "acted in his own interests, disregarding the potential harm to the Australian community". Specific deterrence was a matter "to be given substantial weight"; and the "need for general deterrence here has a tendency to overwhelm all other factors." [80]

Legal principles: manifestly excessive sentences

1. As explained in Dinsdale v The Queen, [81] manifest excess is a conclusion that "does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification". The ultimate question, determinative of whether a sentence is manifestly excessive, is whether the sentence is "unreasonable or plainly unjust", this being the language of the second category of error formulated in House v The King. [82] In this category of appeal, the specific error is not shown in the reasons of the sentencing court, but it may be inferred from the result that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance". [83]
2. Where an appeal raises a ground that the sentence imposed is manifestly excessive, the following principles are relevant. First, "judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian at [27]. Secondly, as "sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'", [84] so that "there will be a range of possible sentences that could be imposed without error". [85] Thirdly, it is for the appellant to demonstrate that there is a disproportion manifest on the face of the sentence "so as to be indicative of substantive error". [86] Fourthly, an alleged error as to the weight to be given to particular factors does not enliven any "of the forms of error identified in House v the King other than the last category". [87]
3. Thus, in connection with the complaint that insufficient weight was given to two matters, the sufficiency attached to those matters by the sentencing judge is to be assessed by examining the sentence ultimately imposed. [88] In SB v R, [89] Wilson J explained that the process to be followed to determine whether a sentence imposed was manifestly excessive, "… must be, to a degree, an instinctive one, as is the procedure for determining sentence at first instance. Just as there is no single or mathematically correct sentence that should be imposed by a sentencing court, there is no mathematical equation by which an intermediate appellate court can conclude that a sentence is manifestly excessive or inadequate … questions of the excessive … nature of a sentence are matters for evaluative judgment. Considering all of the facts and circumstances that apply in a particular case, and having regard to the applicable principles of law, is the sentence imposed so far outside the acceptable range of sentence that it is erroneous?"
4. It follows that a conclusion of manifest excess is not reached because an appeal court might have imposed a different sentence; nor are differences between the sentence imposed, and sentences imposed in other cases, necessarily a basis for intervention.

The appellant's submissions

1. Before addressing the substance of the appellant's challenge, it is important to note three matters. First, the appellant accepted that it was open to the sentencing judge to find "that the objective gravity of the offending … was of the highest order, falling within the highest band of objective seriousness for offences of this kind". [90] Secondly, the appellant accepted that it was open to the sentencing judge to impose a head sentence of life imprisonment. [91] Thirdly, the appellant's argument in support of the ground was directed to the weight that the sentencing judge attached to two matters (viz., the appellant's age and his physical health). That argument ran into the fourth principle noted above.
2. Based on the argument that insufficient weight had been given to two matters, the appellant submitted that those factors "should have led" the judge "to impose a lesser non-parole period". [92] In terms of age and the appellant's "declining physical health", the ultimate submission was that it was probable "that the effect of the non-parole period imposed on the [appellant] is that he will die in gaol", and that he "should be given some prospect of being granted parole for the remaining years of his life". [93]
3. There are difficulties with a challenge advanced in those terms.
4. It is true, as the sentencing judge recognised, that the appellant suffered from some ailments, the most significant being that the appellant had a degenerative condition of the left hip that possibly required hip replacement. The evidence relating to this ailment, however, had limitations: the appellant had been referred to an orthopaedic surgeon for review of his hip pain "and consideration for hip replacement", but that review had not taken place. Moreover, there was no medical evidence that a recommendation had been made for that procedure to take place nor, if it had been, when that might occur. And if it were recommended, there was no evidence that facilities for an operation would not have been provided. The possible need in this case for such a procedure cannot affect the length of the non-parole period.
5. As with the manner in which the sentencing judge addressed the issue of the appellant's physical health, the manner in which the sentencing judge dealt with the appellant's age was orthodox, and unexceptional. The appellant, it should be emphasised, does not suggest that the sentencing judge made any error of fact or principle - rather the complaint is confined to the submission that this outcome is, on its face, unreasonable or plainly unjust. For the reasons that follow, that submission must be rejected.

Fixing the non-parole period - legal principles

1. As the appellant was convicted of a federal offence, Part 1B of the Crimes Act applied to the sentencing of the appellant: ss 16(1) and 16A. When determining the sentence to be imposed, "a court must impose a sentence … that is of a severity appropriate in all the circumstances of the offence": s 16A(1). In addition to any other matters relevant, the Court "must take into account such of the following matters as are relevant and known to the court", as enumerated in s 16A(2). As earlier noted, that included, where relevant, the "character, antecedents, age, means and physical or mental condition" of the offender: Crimes Act, s 16A(2)(m).
2. Section 17A(1) prohibits a sentencing court from passing a sentence of imprisonment for a federal offence, unless the Court is satisfied that no other sentence is appropriate in all of the circumstances of the case. As earlier noted, the sentencing judge specifically found, for the purposes of this section, that no sentence, other than imprisonment, was appropriate: see [80] above. That finding was not challenged.
3. In cases where an offender is sentenced to imprisonment, in the aggregate, exceeding three years, or a federal life sentence, the sentencing judge is required to fix a non-parole period: Crimes Act, s 19AB(1)(c)(i), (ii). Other than requiring the sentencing judge to fix a non-parole period, neither the Crimes Act, nor any other relevant statute, requires the non-parole period of a sentence for a federal offender to represent any particular proportion of the head sentence. [94] Nor does any common law rule, or rule of practice: Hili at [12]-[13], [44].

Illness or poor health

1. When illness or poor health is relied on as a basis for mitigating the type and length of a sentence, there are two relevant principles in play. The first is that the weight to be given to illness or poor health is to be assessed in light of "all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life": R v Achurch. [95] The second was identified by King CJ in R v Smith: [96] "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill-health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his [or her] state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."
2. While the appellant had health issues, his subjective case in relation to them was modest. In connection with his degenerative left hip, which was the primary physical condition emphasised before the sentencing judge, it was not contended that any treatment that the appellant might require in the future cannot be provided by Justice Health, the body charged with responsibility for providing health services to "offenders and persons in custody". [97]
3. On the other hand, there can be little doubt that the appellant's ill-health will render his conditions of imprisonment more onerous than were he in good health.

Advancing years

1. In Gulyas v The State of Western Australia, [98] Steytler P (McLure and Miller JJA agreeing) undertook an extensive review of sentencing cases discussing advancing age, including such compounding factors as ill-health. He concluded with the following statement of principles, which may provide helpful guidance so long as the relevant overlapping considerations and qualifications are given appropriate weight, and they are not applied as rules in particular cases. "54 It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present: (1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor. (2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this. (3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release. (4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime."
2. In essence, the appellant's contention that insufficient weight was given to his age asserted no more than that a non-parole period should allow him an opportunity of release within his assumed life expectancy, in order to permit a productive and useful life following release. Authority for this proposition was derived from observations in R v Neale. [99]
3. In Neale it was argued that, in sentencing the offender to imprisonment for life, with a non-parole period of 21 years, the sentencing judge failed to turn her mind "to the realities", being that there was a prospect that the offender, who was aged 57 at the time of sentencing, would die in gaol. The broad thrust of that submission was accepted by Sully J (Grove and Kirby JJ agreeing), with the conclusion expressed in these terms: "84 … [I]n my opinion it is unnecessarily harsh to give the appellant the prospect of a non-parole period … and then to set the period at a level that will entail either that the appellant dies in prison, [or?] that he has upon release at the age of 78 years little if any productive and useful life in prospect."
4. Sully J favoured the substitution "of a non-parole period to expire … 10 days prior to the appellant's 70th birthday": at [85]. It is unclear precisely how that age was chosen. As the sentencing judge noted, if that approach were followed, then a non-parole period ending with the appellant's 70th birthday would be approximately seven years, something that the sentencing judge remarked "would not be considered just punishment and would not give effect to the need for general or specific deterrence". [100] That finding must be accepted.
5. The fact that the appellant's non-parole period extended beyond the date of his statistical life expectancy is not, of itself, suggestive of an unreasonable or plainly unjust result. Nor does Neale dictate a contrary result. First, Neale did not create a principle or presumption that in the case of an aged offender it was necessary for a sentencing court to fix a non-parole period which allowed an opportunity for release to permit a "productive and useful life". Secondly, although the appellant did not identify the limit of an appropriate non-parole period, implicitly it was some date short of the appellant's notional life expectancy. But if the purpose were not merely to avoid the appellant dying in custody, but to allow for a "productive and useful life" an even shorter non-parole period would presumably be required. Thirdly, to approach the matter on this basis is to give determinative weight to age. That is inconsistent with principle, as noted by the Victorian Court of Appeal in Barbaro v The Queen; Zirilli v The Queen. [101] Or, as stated by Allen J (Handley JA and RS Hulme J agreeing) in R v Holyoak, [102] it is "simply 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 [appellant], that he may well spend the whole of his remaining life in custody."
6. It is of course a "weighty consideration" that the appellant is likely to spend the whole, or a very substantial portion, of the remainder of his life in custody. [103] Nevertheless, the extent to which leniency is called for depends upon the circumstances of the case: "[j]ust punishment, proportionality and general and specific deterrence" must remain important sentencing considerations notwithstanding the age of the offender: RLP at 39. Age is but one consideration in the sentencing process and cannot justify the imposition of an erroneously lenient sentence: R v Bazley (1993) 65 A Crim R 154, 158. In this case, the appellant was mature and experienced, and made a considered decision to engage in an extraordinarily high degree of criminality for financial gain, as the sentencing judge found.
7. Inevitably there will be cases where, having regard to the objective seriousness of the offending (and other circumstances including any subjective case put), and the age of the offender, that the practical effect of the sentence imposed will mean that the offender is likely to die in gaol. It was plainly open to the sentencing judge to conclude that this is such a case, notwithstanding the appellant's subjective case concerning his physical health and his age. That is particularly so having regard to: (i) the finding "that the objectivity gravity of the offending … was of the highest order, falling within the highest band of objective seriousness for offences of this kind" - a finding that was properly accepted by the appellant to be open; (ii) the absence of facts mitigating the seriousness of the crime; (iii) the fact that the offending occurred shortly after the appellant's release on parole after serving a lengthy term of imprisonment relating to the importation of drugs; (iv) the absence of remorse; (v) the need for specific and general deterrence; and (vi) the fact that, as the appellant accepted, it was open to the sentencing judge to impose a head sentence of life imprisonment.
8. It follows that whether as a matter of impression, "instinct" (SB at [55]), or having assessed the sentence within the sentencing framework identified, the non-parole period fixed was not outside the range reasonably available to the sentencing judge, having regard to the appellant's age - alone or in combination with his ill-health. Nor was error otherwise to be inferred from the result, so that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance". The non-parole period fixed was not plainly unjust or unreasonable or manifestly excessive.

Orders:

1. The Court makes the following orders: 1. Order that the time for filing the Notice of Appeal be extended to 5 May 2022. 2. Dismiss the appeal against conviction. 3. Grant the appellant leave to appeal against the sentence imposed on 28 February 2020. 4. Dismiss the appeal against the sentence.

Endnotes

1. CCA Tcpt, 15/11/22, p 1(46).
2. Sentencing judgment, pp 3, 26.
3. Sentencing judgment, p 6.
4. Sentencing judgment, p 5.
5. Sentencing judgment, p 10.
6. Sentencing judgment, p 37.
7. Sentencing judgment, p 46.
8. Ibid.
9. Sentencing judgment, p 47.
10. Ibid.
11. Sentencing judgment, p 68.
12. Ibid.
13. Sentencing judgment, p 71.
14. Sentencing judgment, p 72.
15. Sentencing judgment, p 6.
16. Sentencing judgment, p 62.
17. Sentencing judgment, p 64.
18. Sentencing judgment, p 12.
19. Sentencing judgment, p 23.
20. Ibid.
21. Sentencing judgment, p 24.
22. Ibid.
23. Ibid.
24. Sentencing judgment, p 25.
25. (2018) 266 CLR 56; [2018] HCA 40.
26. R v Zhang (2005) 158 A Crim R 504 at [45] (Basten JA in diss); L v Tasmania (2006) 15 Tas R 381 at [55] (Underwood CJ, Tennent J agreeing at [86]); R v Ford (2009) 273 ALR 286 [93]-[107], [124] (Campbell JA), cf at [145]-[146] (Howie J, Rothman J agreeing at [157]-[158]); Dibbs v The Queen (2012) 225 A Crim R 195 at 211-212 [78]-[80] per Harper JA (Weinberg JA, T Forrest AJA agreeing at [1], [105]); Odgers, Uniform Evidence Law, (13th ed, 2018) at 802-805 [101.450]. See and compare McCartney v The Queen (2012) 38 VR 1 at [31]-[51].
27. That provision has been amended since the trial in this case to delete "substantially".
28. [2017] NSWSC 119 at [86].
29. Tendency judgment, p 13.
30. (2017) 263 CLR 338; [2017] HCA 20 at [40], [41] (Kiefel CJ, Bell, Keane and Edelman JJ), [104] (Nettle J, dissenting).
31. Tendency judgment, p 15.
32. Tendency judgment, p 18.
33. Tendency judgment, p 19.
34. Tendency judgment, p 22.
35. Tendency judgment, p 24.
36. Hashish judgment, p 9.
37. Hashish judgment, p 3.
38. Hashish judgment, p 5.
39. Tcpt, 12/02/19, p 33(40).
40. Hashish judgment, p 7.
41. Ibid.
42. Ibid.
43. Hashish judgment, p 8.
44. (1989) 167 CLR 590 at 594; [1989] HCA 50.
45. Hashish judgment, pp 8-9.
46. Tcpt of summing up, 29/05/19, p 122.5.
47. Hashish judgment, p 5; trial tcpt, p 742(5).
48. Appellant's written submissions at par 58.
49. Betts v Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; Ragg v R [2022] NSWCCA 150 at [56].
50. Sentencing judgment, p 5.
51. Sentencing judgment, p 36.
52. Sentencing judgment, p 36.
53. Sentencing judgment, p 39; see also p106.
54. Sentencing judgment, p 27.
55. Sentencing judgment, p 37.
56. Sentencing judgment, p 38.
57. Ibid.
58. Sentencing judgment, pp 80-81.
59. Sentencing judgment, p 41.
60. Ibid.
61. Sentencing judgment, pp 41-42.
62. Sentencing judgment, p 42.
63. Sentencing judgment, pp 42-43; see also pp 31, 105-106.
64. Sentencing judgment, pp 105-106.
65. Sentencing judgment, p 107.
66. Sentencing judgment, p 43.
67. Sentencing judgment, p 81.
68. Sentencing judgment, p 72.
69. Sentencing judgment, p 81.
70. Sentencing judgment, p 82.
71. Sentencing judgment, p 84.
72. Sentencing judgment, p 79.
73. Sentencing judgment, p 72.
74. Sentencing judgment, p 78.
75. Sentencing judgment, p 79.
76. Sentencing judgment, p 73.
77. Sentencing judgment, p 84.
78. Sentencing judgment, p 82.
79. Sentencing judgment, p 85.
80. Sentencing judgment, p 107.
81. (2000) 202 CLR 321; [2000] HCA 54 at [6].
82. (1936) 55 CLR 499, 505; [1936] HCA 40; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
83. House v King at 505; Dinsdale at [59].
84. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
85. AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].
86. R v Newman [2022] NSWCCA 218 at [54].
87. Carroll v The Queen (2009) 83 ALJR 579; [2009] HCA 13 at [9].
88. Hanania v R [2012] NSWCCA 220 at [33]; Nguyen v R [2019] NSWCCA 87 at [49].
89. [2022] NSWCCA 164 at [55] (Beech-Jones CJ at CL and Garling J agreeing).
90. Appellant's written submissions on sentence at par 53.
91. Appellant's written submissions on sentence at par 54.
92. Appellant's written submissions on sentence at par 55.
93. Appellant's written submissions on sentence at par 59-60.
94. Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [71] ('Hili').
95. (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [117] ("Achurch").
96. (1987) 44 SASR 587, 589 (Cox and O'Loughlin JJ agreeing), followed in R v Badanjak [2004] NSWCCA 395 at [9]-[11] and Achurch at [118]).
97. Crimes (Administration of Sentences) Act 1999 (NSW), s 236A.
98. [2007] WASCA 263; 178 A Crim R 539.
99. (2004) 148 A Crim R 493, [2004] NSWCCA 311 ("Neale").
100. Sentencing judgment at p 76.
101. [2012] VSCA 288; 226 A Crim R 354 at [55] (Maxwell P, Harper JA and T Forrest AJA).
102. (1995) 82 A Crim R 502, 507.
103. Holyoak at 507; R v RLP (2009) 213 A Crim R 461; [2009] VSCA 271 at [39].

Amendments 07 June 2023 - At [80] - remove paragraph number from quote. At [88] - remove paragraph number from quote. 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. Decision last updated: 07 June 2023