Matthews v R - [2013] NSWCCA 187 - NSWCCA 2013 case summary — Zoe

NSWNSWCCA

Matthews v R

[2013] NSWCCA 187

Court of Criminal Appeal (NSW)|2013-06-13|Before: Hoeben CJ, Leeming JA, Beech-Jones J, Angel ACJ, Martin CJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2013-06-13

Before

Hoeben CJ, Leeming JA, Beech-Jones J, Angel ACJ, Martin CJ

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

& Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 - MK v Victoria Legal Aid [2013] VSC 49 - Morris v R [1987] HCA 50; 163 CLR 454 - Nudd v R [2006] HCA 9; 80 ALJR 614 - Papworth v R [2011] NSWCCA 253 - R v Anderson [2012] NSWCCA 175 - R v Basha (1989) 39 A Crim R 337 - R v Chandler [2010] QCA 21 - R v Chaouk [2013] VSC 48 - R v Chaouk [2013] VSCA 99 - R v KB [2011] NSWCCA 190 - R v Murphy (1985) 158 CLR 596 - R v Petras (Supreme Court of the Northern Territory, Angel ACJ, 30 January 2009, unreported) - R v Piggott, Griffiths, Simeon [2002] NSWCCA 218 - R v Seriban (Supreme Court of the Northern Territory, Martin CJ, 16 March 2009, unreported) - R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 - R v TAB [2002] NSWCCA 274 - R v Tran [2011] NSWDC 105 - R v Woodland [2007] NSWCCA 29 - Rasic v R [2009] NSWCCA 202 - Ratten v R (1974) 131 CLR 510 - RM v R [2012] NSWCCA 35 - Rouvinetis v Knoll [2013] NSWCA 24 - SKA v R [2011] HCA 13; 243 CLR 400 - Tabuan v R [2013] NSWCCA 143 - TKWJ v R [2002] HCA 46; 212 CLR 124 - Whitmore v R [2010] NSWCCA 157 - Wong v R [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Philip Lindsay Matthews (Appellant) Crown (Respondent) Representation: Counsel: In person (Appellant), with Ms E. Rautenberg (McKenzie Friend) C.P. O'Donnell (Respondent) Solicitors: In person (Appellant), with Ms E. Rautenberg (McKenzie Friend) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2009/008878 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-01-23 00:00:00 Before: Tupman DCJ

[2]

[3]

The Crown case and the evidence supporting it 4As the appellant contends that the jury's verdict was unreasonable it is necessary to set out the Crown case and the evidence supporting it in some detail. Section 307.11 of the Criminal Code provides: "Importing and exporting commercial quantities of border controlled precursors (1) A person commits an offence if: (a) the person imports or exports a substance; and (b) either or both of the following apply: (i) the person intends to use any of the substance to manufacture a controlled drug; (ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and (c) the substance is a border controlled precursor; and (d) the quantity imported or exported is a commercial quantity. Penalty: Imprisonment for 25 years or 5,000 penalty units, or both. (2) The fault element for paragraph (1)(c) is recklessness. (3) Absolute liability applies to paragraph (1)(d)." 5It was not in dispute at the trial that on 27 May 2008 the appellant and Marcos Garcia (aka "Gus") travelled to Thailand and returned to Australia on 14 June 2008. The Crown alleged that on the night before his return to Australia the appellant purchased a large amount of cold and flu tablets containing pseudoephedrine from various pharmacies in Bangkok. It alleged that the appellant ground down the tablets, secreted the powder in a "water heater", and arranged to ship it back to Australia. After his return to Australia, the appellant was arrested on 19 June 2008 for breaching his parole. The Crown alleged that while in custody he directed Garcia and Roxanne Thurling to continue facilitating the importation. It further alleged that he did so, intending to use or believing that another person intended to use the pseudoephedrine to manufacture methylamphetamine, commonly known as "speed". 6The evidence said to support the Crown case can be conveniently described as comprising four parts. 7First, there were certain agreed facts concerning the importation and some uncontested evidence that linked the appellant to the importation. Thus the following facts were agreed: (a) a wooden crate containing two boxes of water filters and one water pump arrived in Australia on or about 15 July 2008; (b) A4 sheets on the sides of the crate read: "Shipping Mark: Mr Eden Sydney T. 0416544414"; (c) the crate was sent from Bangkok, Thailand and loaded on about 23 or 25 June 2008; (d) it was estimated to arrive in Sydney on 16 June 2008; (e) the Thai shipping company referred to on the bill of lading was On-Line Shipping Co Ltd ("Online"); (f) various descriptions of the consignor on shipping documents included references to "Mark Cooper" and "Mark Hooper c/- Eden Indoors, 56 Cummins Road, Wagga Wagga"; (g) customs officers located 12.64 kilograms of off-white powder in the pump from the crate when it was examined on 22 July 2008; (h) the powder contained 2.47 kilograms of pure pseudoephedrine; (i) the powder was removed and replaced with an inert substance; (j) a controlled delivery of the pump to 196 Burley Griffin Way, Springdale NSW was effected on 29 July 2008; and (k) the appellant was not authorised or permitted by the relevant authority to import pseudoephedrine between 1 January 2005 and 21 January 2010. 8The telephone number on the side of the crate was subscribed to on 15 May 2008 in the false name Mark Mitchell, using the appellant's residential address. 9The Crown called evidence from Mr Mark Cooper. He denied having anything to do with the importation of the water pump. He denied being associated with the email address "m-h-cooper57@live.competition.au" which was used to liaise with the forwarding agent for the importation of the water pump. He said that he met the appellant while studying in 1992. They started a horticultural business called Eden Indoors in 1998. In 2000 they registered a company in that name with both as shareholders. By late 2002 they had fallen out. The appellant left Eden Indoors and conducted a business under the name "Inspired Design". Eden Indoors was deregistered in 2005. Mr Cooper said they incorporated the business with the purpose of developing a plant arrangement product known as "Pot Toppa". He said that at one point they used a nursery in Wagga known as Rapley's Nursery which was located at 56 Cummins Road and operated by Mr Geoff Rapley. 10Second, at the appellant's trial the appellant's co-offenders, Thurling and Garcia, gave evidence against him. They had both pleaded to guilty to various offences. They were sentenced having regard to undertakings they gave to give evidence against the appellant (see s 21E of the Crimes Act 1914 (Cth)). 11The relevant parts of their evidence were as follows. On 27 May 2008 the appellant and Garcia flew to Bangkok and then travelled from Bangkok to Kathmandu, Nepal before returning to Bangkok and then to Sydney on 14 June 2008. 12On their last night in Bangkok, the appellant told Garcia he wanted to acquire some pseudoephedrine and send it back to Australia. According to Garcia, the appellant stated he needed to raise money to pay for his home loan. Garcia suggested they buy bulk cold and flu tablets from different chemists in Bangkok. The appellant left with their driver and returned some time later with 500 boxes of tablets labelled "Sudor". 13The appellant and Garcia discussed packing the tablets and went to a supermarket in Bangkok where they purchased the water pump (also referred to as a "water heater") and the filters referred to in the agreed facts. They also purchased a grinder for reducing the tablets into powdered form. Garcia said that the appellant, either by himself or with the assistance of others, ground up the tablets. Garcia said he saw the appellant the next day at the front of their hotel where they caught a taxi to the airport. The appellant told him that he "went to the shipping company and sent it all off" in reference to the water heater filled with pseudoephedrine. 14Garcia said the appellant told him he had used the name Eden Indoors and an ex-business partner's name on the shipping documentation. He also said he had provided an email address which he would set up once back in Australia and a contact number. He told Garcia that the package was to be delivered to Rapley's Nursery at 56 Cummins Road, Wagga. 15As I have stated, the appellant and Garcia returned to Sydney on 14 June 2008. On 19 June 2008 the appellant was arrested for breaching a parole condition that he was not to travel overseas without prior notification. 16Garcia stated that on the night before the appellant was arrested he went to a social function at the home of Thurling's sister, Patricia Thurling. He said the appellant was present as well as Ben Petterson ("Petterson"). Garcia knew Petterson from gaol. Petterson provided him with amphetamine for personal use. Garcia said that in the presence of others, including the appellant, Petterson said he wanted to "cook" amphetamine. Furthermore, Thurling stated that she overheard a detailed discussion at this function between Garcia and the appellant about placing pseudoephedrine in a water heater. 17After the appellant was arrested Garcia said he then travelled to the gaol on 21 June 2008 to find out what the appellant "wanted me to do about this shipment". He was denied entry to see the appellant but Thurling was allowed in. Thurling stated that during this visit she obtained the email address from him so that she could liaise with the shipping company. Garcia said he was able to see the appellant at the gaol (on 5 July 2008) and he told the appellant that "everything was going to where it was being sent", that being a reference to Rapley's Nursery. He also told the appellant that he, Garcia, "wasn't up to cooking [the speed] and Ben [Petterson] was going to be doing it". 18From this point both Garcia and Thurling described how they assumed responsibility for arranging the receipt and delivery of the water pump under the appellant's direction, which was given during recorded telephone calls from gaol. The evidence concerning this is addressed below in the context of describing the transcripts of those conversations. At this point, it should be noted that both of these witnesses were subject to a long and detailed cross examination which highlighted a number of inconsistent statements they had made. It was suggested to Garcia that he sought to downplay his role in the importation at the expense of the appellant in order to achieve a reduced sentence, and to Thurling that she was an unreliable witness due to her self-confessed illicit drug use. 19Third, as noted, on the evening of 18 June 2008 the appellant attended a social gathering at the home of Thurling's sister. Thurling's de facto partner, Damian Worldon, testified that he met the appellant and that the appellant had boasted that he was "getting a heap of pseudo brought over to make heaps of speed and they were going to make heaps and heaps of money". Mr Worldon stated that the appellant said he had sourced it from Thailand and had it "packed in a water heater". In cross examination Worldon agreed that when he made a statement to the police he was suspicious of the appellant's (romantic) interest in Thurling, although he stated that "didn't mean I didn't like him". He also agreed that his police statement suggested that the conversation had occurred prior to the appellant's departure to Thailand. Worldon's evidence was strongly challenged in cross examination, but he maintained that the appellant referred to pseudoephedrine, a package from Thailand and a water heater or container. 20Fourth, a number of phone calls between the appellant, Garcia and Thurling were recorded while he was in custody. What follows is a description of the salient ones in the context of the events that unfolded after the appellant was arrested on 19 June 2013. 21As noted, on 21 June 2008 Thurling visited the appellant in gaol. She stated that she obtained an email address from him to liaise with one of the shipping companies. 22On 30 June 2008 an email was sent to the freight company for the water heater, "On-Line", from the email address m-h-cooper57@live.com.au and purportedly from a "mark h cooper". In a telephone call the same day ("call 3") Garcia and the appellant are recorded as having the following exchange: "[Garcia]: Yeah. Hey, you know, that number, what's the depot called in Sydney? [Appellant]: Um, no idea. It's, it will be on that email. Did you check the email? [Garcia]: Yeah, there's nothing there. [Appellant]: Well then you've got to wait till it comes cause it obviously hasn't been sent yet, m_h_cooper? [Garcia]: Yeah, 57 [Appellant]: You checked that, yeah, you checked that email? [Garcia]: yeah." 23The Crown contended that this exchange revealed the appellant and Garcia liaising over the manner in which Garcia should follow up with "On-Line" about the progress of sending the concealed pseudoephedrine. 24On 3 July 2008 a call was recorded in which Garcia told the appellant that he "just got an invoice from online" and the appellant replied "[y]eah" ("call 4"). Later in the conversation Garcia discussed an invoice from a "freight company". The appellant is recorded as saying that the invoice "obviously [has] got dates and everything on it" with Garcia replying that it has "got dates but not, of when it left ten days ago". The Crown contended that this conversation conveyed an appreciation by the appellant of the freight arrangements for the water heater, and involved a discussion about how Garcia could identify the date of delivery. 25As noted, Garcia stated that in a gaol visit on 5 July 2008 he and the appellant had a detailed discussion about the pending importation of the water heater and its contents. 26On 10 July 2008 the freight forwarder sent an email to the Mark H Cooper address attaching a "Sea Freight Arrival Notice" listing an estimated date of arrival of 16 July 2008 and describing the goods to be delivered as a "water heater". The email sought the details of the appointed customs broker. (Brian Somerville, from Clemenger Customs Brokers, became involved as broker.) 27In a telephone call on 12 July 2008 the appellant and Garcia discussed the appellant's mounting bills ("call 6"). The appellant asked Garcia "[l]ike, are [you] going to have anything before I get out", and Garcia replied "[y]eah". The conversation continued: "[Garcia]: I've got your water heater. [Appellant]: Good. [Garcia]: It's here. [Appellant]: Fantastic. [Garcia]: Gets here in a couple of days. [Appellant]: Ok. That's all good. No problem at all." 28On 15 July 2008 the water heater arrived in Australia. On 21 July 2008, Somerville telephoned the consignee's number specified on the bill of lading and spoke with Garcia, who purported to be Mark Cooper. Somerville requested an ABN to process the paperwork. Garcia said he would call back. On a later occasion Somerville spoke to Thurling (who also used an alias). 29In a telephone call on 24 July 2008 Thurling requested the ABN for Eden Indoors from the appellant ("call 9"). The call included the following exchange between Thurling and the appellant: "[Thurling]: Everything's excellent. [Appellant]: Everything's excellent? [Thurling]: Yeah. We've received ... [Appellant]: Hey? [Thurling]: We received it. [Appellant]: Really? [Thurling]: Yeah, so everything's fine. [Appellant]: You've already gone to Rapleys [sic]. [Thurling]: No, we've sent it somewhere else. [Appellant]: Sorry? [Thurling]: We've sent it somewhere else. [Appellant]: Beautiful. Well, that's all good ..." (emphasis added) 30As noted, the initial address for delivery of the water heater containing the pseudoephedrine was the address of Rapley's Nursery at 56 Cummins Road. In his evidence the appellant claimed in this conversation that he was referring to a (separate) package of water filters that he bought in Thailand. The only document in evidence concerning that package listed the delivery address as 16 Silverwood Road, Wagga Wagga. In so far as Thurling referred to the sending of something "somewhere else", on 26 July 2008 an email was sent from the Mark Cooper email address to Somerville changing the delivery address for the water heater from Rapley's Nursery to 196 Burley Griffin Way, Springvale. 31There was another recorded call in the afternoon of 24 July 2008 ("call 10"). During the call the appellant asked Garcia "[h]ow you going for money?" The conversation continued: "[Garcia]: Yeah, I've got Mick helping us. [Appellant]: Yeah. Good. [Garcia]: Cause I left him some." 32In his evidence in chief Garcia stated that this was a reference to promising "Mick" (Mick Kelly) part of the pseudoephedrine when the water heater arrived. The appellant then asked: "[Appellant]: And, and Benny and Kenny, did they come through with anything? [Garcia]: Benny did. [Appellant]: Yeah? [Garcia]: ... paid more. [Appellant]: Yeah, yeah good ..." The appellant conceded that the reference to "Benny" in this conversation was to Petterson. 33The appellant and Garcia then discussed the costs "for that parcel" including "import duties". The discussion continued: "[Appellant]: ....all I can say is put everything aside [until he is released on parole]. There's no need to rush everything. [Garcia]: Yeah. Well, I'm, we're, we've got - [Appellant]: No need to. [Garcia]: - one sold as is - [Appellant]: Yeah. [Garcia]: - to fix up the house money. [Appellant]: Yeah. [Garcia]: That's Mick arranging, that's why we're here. As soon as it gets here, just, I'll pull one out - [Appellant]: Beautiful." (emphasis added) 34Garcia explained that the reference to "everything" in "put everything aside" was to the water heater and its contents. He also stated that he was advising the appellant that he had already (pre)sold one kilogram of pseudoephedrine to "Mick" which would be supplied when he took possession of the water heater. 35Garcia and Thurling arranged for various payments to be made to clear the package through Customs. On 25 July 2008, both Thurling and Garcia were stopped by the police. Their vehicle was searched and various documents were located, including invoices relating to the water heater and emails to and from Somerville. They were released that evening and both went to a place called Wattle Farm in Ariah Park where Petterson operated a clandestine drug laboratory and was attempting to manufacture methylamphetamine. The drug laboratory was discovered during a police raid at approximately 3.20am the following morning after a tip-off. Various items were seized including the documents that Garcia had had in his possession relating to the water heater and emails with the customs broker. 36Petterson was arrested at the premises but he subsequently escaped. He telephoned either Thurling or Garcia and told them about what had happened. As stated, on 26 July 2008 Somerville received an email from the Mark H Cooper address advising that the package was to be sent to 196 Burley Griffin Way, Springdale. 37On 27 July 2008 Thurling told the appellant during a telephone call that "big stuffs [sic] gone down" and that "Gus wasn't there [but] Ben was" ("call 11"). In a telephone call on 28 July 2008 Thurling and the appellant discussed Petterson evading custody and being on the run ("call 12"). 38The water heater was delivered to the Springdale address on 29 July 2008. It was a controlled delivery and the premises were under surveillance. Petterson was at the premises and, once the package had been delivered, was heard saying on a phone "Yeah, got it, just smashed the top open and there it was". 39Shortly afterwards, police entered the premises and Petterson and another person were arrested. Petterson possessed a list of phone numbers that included phone numbers for Thurling and Garcia. He had received at least eight telephone calls from Garcia's phone that day.

[4]

The appellant's case 40The appellant gave evidence at his trial. He denied being the principal in any importation of pseudoephedrine. He denied the role attributed to him by Garcia and Thurling. 41The appellant described the history of his business relationship with Cooper, and claimed that when it ceased he left the rights to the "Pot Toppa" with Cooper on the basis that he would receive a royalty. He claimed that he discussed using Cooper's details with Garcia as a means of chasing up his outstanding royalty payments. He said he met Garcia in gaol in 2007 and also met a John Griffiths who claimed to be working on a contract with a pharmaceutical company in China. He said that after his release from custody he tracked down Griffiths and pursued the business in China. He stated that he left with Garcia to go to Thailand as a stop-over on the way to Nepal, which had a "very sophisticated chemistry university". He stated that Garcia had funded the trip and its purpose was for the appellant to hand a chemical formula to a professor at the university to have it made into an "active pharmaceutical ingredient" that could be brought back to Australia. 42The appellant said that he and Garcia travelled to Thailand sometime around 27 May 2008. While in Bangkok, he and Garcia went to a shopping centre and he bought "two stainless steel water filters". He said he went to Nepal between 31 May 2008 and 7 June 2008. He said he took a formulation he obtained from Griffiths for a product "closely related" to Viagra and he found a number of "manufacturing companies" that could make it. He returned to Thailand and spent four further days in Bangkok but hardly saw Garcia. He claimed that Garcia told him that he had sent the boxes with the water filters to the appellant's place. He denied going to any chemist shops in Bangkok to purchase pseudoephedrine or seeing Garcia do that. He returned to Australia on the 14 June and travelled to Wagga. He described meeting Thurling on the evening of 18 June 2008 but denied making admissions to Worldon. He claimed that Garcia suggested using Cooper's identity as a means of contacting various companies and finding out information about the Pot Toppa. 43The appellant addressed the period he was in custody, including the visits and the various recorded calls. He denied providing Thurling with an email address to deal with the shipping company during her first visit on 21 June 2008. He denied discussing the importation of pseudoephedrine with Garcia and Thurling during the second visit on 5 July 2008. He stated that, of the recorded telephone calls, the earlier calls were mostly concerned with logistical discussions about the China business, the business needs of Inspired Design and the attempts to find out information about the Pot Toppa by using the assumed identity of Mark Cooper. Thus in relation to call 3 he stated that the exchange noted at [22] above concerned seeking information about the Pot Toppa, and in particular what depot the Pot Toppa was stored at. With respect to call 4 noted at [24] he stated that he understood the reference to "invoice from online" was not a reference to an invoice from the shipping company "On-Line", but instead was a reference to a statement received online for his business. He claimed that the discussion of invoices concerned invoices relating to indoor plants for his business, Inspired Design. 44As already noted, in call 6, Garcia advised the appellant that the water heater had arrived or was about to arrive. The appellant claimed that he was about to have a solar water system delivered and that he had discussed that with Garcia. He claimed the cost of it was covered by a subsidy as it was solar powered and that it would save money, even though he was planning to sell his house. He was cross examined about this evidence as follows: "Q. Can I suggest this to you, you knew the reference to the water heater was a reference to the pending importation of the water pump containing pseudoephedrine? A. That's not my recollection of this at all. Q. And can I suggest this, it's code in which you're basically being told it will be here in a couple of days, that is the water pump containing the pseudoephedrine, what do you say to that? A. I wasn't aware of any water pump heater other than my solar hot water system. Q. And that's what you say you got a full subsidy for? A. Correct. Q. Are you telling the truth about that? A. Yes. Q. You got a full subsidy for a water heater? A. Yes, but the good thing was I didn't actually have to pay the balance of it because Ken can get generic models installed for the same price for the subsidy. I've had a second one. I've had two. Q. Was that the full subsidy that you got? A. I don't know what the full subsidy is. He worked it out and there was nothing to pay. Q. All right. Well your evidence was the other day that there was nothing wrong with the existing hot water system and in terms of cost it was covered it was a full subsidy? A. The subsidy covered the cost of the solar hot service from what I understood. Q. So you say - the Commonwealth Government was it? A. I'm guessing. I've never seen it. I've never been back to this house since. I had Ken put one on another house that I owned, 50B Plumpton Road, and I had him put one on this house. Q. But do I understand what you say is the government at that stage were providing the full subsidies for solar hot water systems? A. I don't know what their subsidy was. All I knew is it was covered with this particular item. Q. Well your understanding was you weren't out of pocket? A. That's correct. Q. And then you go on to say: 'That'll be good. That'll save a bit?' A. Yes Q. This is the house that you were planning to sell. A. Yes. Q. And move on? A. Yes. Q. And you thought it was good that you'd saved a bit? A. Yes." 45In relation to later calls the appellant asserted that he came to believe that Garcia had secreted pseudoephedrine in the water filters that he, the appellant, had bought, and he was trying to avoid it being sent to an address associated with him or his family. The appellant said that he did not wish to report that to the authorities as he was in prison and feared retribution for being an informer if he did so. Thus the appellant claimed that he understood that call 9, extracted above at [29], was about the water filters. The appellant said he had been told by this stage that Garcia had "replaced [the water filter canisters] with the same sort of style canister but with drugs in them". He further stated that he was glad to find out the parcel was not being sent to an address associated with him (ie "Rapleys"). 46With call 10, the appellant accepted that the reference to "left him some" in [31] was to leaving "Mick" some "speed", but claimed he did not relate that statement to the "parcel" whose importation costs Garcia and he then discussed. He claimed that discussion concerned the costs and charges for the importation of the water filters and not the water heater or pump. He stated that Garcia's reference to selling "one" was to selling either one of the filters or the "contents of the filter". 47Accordingly, the appellant asserted that by the time of the later calls he had learned that, while Garcia and he were in Thailand, Garcia had placed illegal drugs in the water filters that he had bought. He had accepted that he was discussing with Garcia and Thurling where the filters would be sent and Garcia's use of the proceeds of the sale of the illegal contents of the filters. 48In cross examination the appellant attempted to explain his question in call 10 about "Benny [Petterson] and Kenny" in which he asked "did they come through with anything" (see [32]). He asserted that he thought they might provide money because Garcia had told him that he gave "Kenny" a computer and "Kenny" therefore owed Garcia money. He had denied ever meeting Petterson. In cross examination he was asked as follows: "Q. Why would Benny and Kenny come through with anything? A. Because I was told they were. Q. But why? What was your understanding as to what was in it for Benny and Kenny? A. I don't know. It was to do with Gus and Gus was working with me. Q. But if this relates to a drug importation [in] which you are not involved, he's telling you this on a recorded telephone call? A. That's correct. Q. He says, 'Benny's here' and you go, 'Yeah.' He goes, 'Paid more' and you go, 'Yeah, yeah good'? A. Yes. Q. What did you mean by 'yeah, yeah good'? A. He was paid more so obviously he got more for whatever - I was told it was a computer so he obviously got more for it. Q. Why is that good? A. Well, because he was going to put it aside. He had - we had bills to pay and he had things to do. Q. You understood Benny and Kenny were in effect attempting to get you money so you could pay bills? A. I didn't expect Benny and Kenny would give me anything. They didn't know me from a bar of soap. Q. What do you mean by 'we had bills to pay'? A. Well, I had a contract to finish. I had work to do. I had plants to pay for. I had a business to run. Q. That's your business and your [plants]? A. Absolutely and Gus was, in my opinion, helping me at the time. It is clear through the progression of this operation [by what] he was doing that he's fallen by the way side and he's off doing his [own] thing. Q. I just want to ask you, on what basis did you believe Benny or Kenny would come through with any money at least for you in part that Mr Garcia could use? A. Only that he has sold something of his."

[5]

Ground 15: Unreasonable verdict 49Ground 15 of the appeal contends that the jury's verdict of guilty was "unreasonable, or cannot be supported having regard to the evidence" (see MFA v R [2002] HCA 53; 213 CLR 606 at [58]). It is appropriate to deal with this ground first. In raising this ground the appellant implicitly seeks a grant of leave under s 5(1)(b) of the Criminal Appeal Act 1912 to raise a ground of appeal involving a question of fact or of mixed law and fact (Rasic v R [2009] NSWCCA 202 at [12]). The Court will grant leave. 50The invocation of this ground of appeal requires this Court to "ask itself ... whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v R [1994] HCA 63; 181 CLR 487 at 493). In doing so this Court must undertake its own "independent assessment of the evidence both as to its sufficiency and its quality" (Morris v R [1987] HCA 50; 163 CLR 454 at 473). The Court must consider any competing evidence to that presented by the Crown and weigh the conflicting evidence (SKA v R [2011] HCA 13; 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ). 51In relation to the advantages enjoyed by the jury in hearing and observing witnesses compared to this Court in SKA at [13] French CJ, Gummow and Kiefel JJ stated: "The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M [at 494] went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred'." 52In his submissions the appellant contends that the Crown case "depended virtually completely" upon an acceptance of Garcia's evidence as to the appellant's conduct during their trip to Thailand. He submitted that Garcia's evidence was unreliable. He also attacked the reliance by the Crown on Thurling's evidence, given the evidence of her drug usage. He argued that the transcripts of the various telephone calls did not support the Crown case and that it was reasonably open to the jury to accept his explanations. 53The respective cases of the Crown and the appellant as well as the evidence supporting each have already been summarised. The Crown case was overwhelming. It would be wrong to view the Crown case as dependent upon the credibility of any or all of Garcia, Thurling or Worldon to any significant degree. There were obvious problems with the credibility of each. However the evidence of Garcia and Thurling only completed a narrative which was strongly pointed to by the other material, especially the telephone intercepts. The ability to consider their evidence in light of that material was an advantage the jury enjoyed that this Court did not (M v R supra). 54The pseudoephedrine was secreted in a water pump (or a water heater) and sent from Thailand to Australia via the shipping company "On-Line". All of the delivery details, ie the address for delivery, the identity of the consignee ("Mark Cooper") and the contact phone number, were associated with the appellant and not, originally at least, with Garcia. In call 2 Garcia specifically tells the appellant that an invoice has been received from "online." Later the delivery address is changed to another address associated with the appellant. 55The most significant objective circumstance pointing to the appellant's guilt is the discussion in call 6 on 12 July 2008. As noted, on 10 July 2008 an email was sent advising of the forthcoming delivery to Australia of a "water heater". Within two days Garcia reported to the appellant that the "water heater" was about arrive and this was acknowledged by the appellant (see [27]). What possible explanation for this conversation is there other than that Garcia was reporting the fate of the impending importation into Australia? The only potential answer to that question that emerged during the trial was in the cross examination of Garcia. Garcia agreed that he knew that telephone conversations with inmates were recorded. It was suggested to Garcia that by openly referring to a "water heater" he was trying to set up the appellant by attributing responsibility for the water heater to him ("your water heater") and that it was Garcia's "insurance policy if things went wrong". It was put to Garcia that he was trying to confuse the appellant, who was expecting a water heater (because his had broken). Garcia rejected these suggestions. 56This aspect of the cross examination reveals that the appellant's counsel had correctly realised the deeply incriminating nature of this conversation and was attempting to address it. However the attempt was not persuasive. Garcia would not necessarily have appreciated that such a discussion would be incriminating as that appreciation depended upon the listener having knowledge of something nefarious about the contents of the "water heater". However, even if the discussion about a "water heater" was meant by Garcia to incriminate the appellant, it would also incriminate himself. Thus, Garcia would not be taking "insurance" by initiating a recorded conversation on that topic, but would instead be exposing himself to greater risk of apprehension, especially as he was not in custody and was taking active steps to import the precursor albeit under the appellant's control. 57What this reveals is a matter confirmed by the balance of the evidence, namely that neither Garcia nor Thurling was as astute as the appellant. The transcripts of the intercepted calls reveal they required detailed instructions from the appellant to perform various menial tasks. This reveals a contradiction at the heart of the appellant's case. On the one hand he stated that he was the prime organiser of the various alleged legitimate activities which he contended that neither Garcia nor Thurling had the intellectual capacity or means to pursue. On the other hand the appellant was forced to allege that somehow they were able to, deliberately and without his knowledge until the very end, enmesh him in their scheme to import a precursor as some form of future insurance in the event they were charged and needed to reduce their sentence. 58In the end result, the appellant's response to the incriminating nature of call 6, namely that he just happened to be expecting another water heater, could at best only be described as lame. For that response to be accepted would mean that the unluckiest and unlikeliest of circumstances came about, namely the making by him of separate arrangements for the delivery of an apparently free energy efficient water heater to his home while his travelling partner to Thailand used his need for a new water heater as a cover to arrange an illegal drug importation. Otherwise it is implausible that the appellant would be so interested and happy to receive news of the delivery of the water heater in custody ("fantastic") given that he accepted that by that time his house would be sold (see [44]). 59Of course the onus of proof of the charge remained on the prosecution throughout the trial. However when considered with the other events that were unfolding, the transcripts of the telephone calls between the appellant, Garcia and Thurling clearly reveal that they were reporting to the appellant on the progress of the importation and taking guidance from him to effect it. The appellant's explanation of those conversations was specious. There is no doubt that a jury acting reasonably would reject them. As stated his attempt to explain the conversations culminated in him stating that he knew or believed that Garcia was arranging an importation of something illegal and expected to receive some of its proceeds, although it was not an importation he arranged or was charged with. The Court is satisfied that the true explanation for those conversations was that they all concerned the importation he arranged and continued to supervise while in custody. 60This ground fails.

[6]

Ground 1: Allegedly negligent conduct of the trial 61Ground 1 alleges that counsel for the appellant's conduct of the trial was "negligent" and involved "misconduct" resulting in a miscarriage of justice. The various complaints travel beyond matters of law. Thus leave is required (Criminal Appeal Act, s 5(1)(b)). 62In assessing complaints about counsel's conduct it must be borne in mind that the relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice (TKWJ v R [2002] HCA 46; 212 CLR 124 at [79] per McHugh J, Ali v R [2005] HCA 8; 214 ALR 1 at [18] per Hayne J). None of the alleged failings of the appellant's counsel is even close to the potential category of errors by counsel adverted to by McHugh J in TKWJ at [76], namely those that are of such a nature that of themselves they might render a trial unfair (see Nudd v R [2006] HCA 9; 80 ALJR 614 at [19] per Gleeson CJ and [87] per Kirby J). Instead the nature of his complaints are such that what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24] per Gummow and Hayne JJ; TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J). 63In conducting that inquiry a number of related matters should be noted. First, there is vested in counsel for an accused person control over and responsibility for the manner in which the trial will be conducted (TKWJ at [74] per McHugh J). Second, relevant unfairness will not be established simply because an "apparently rational decision" by trial counsel produced adverse consequences for the accused (TKWJ at [16] per Gleeson CJ). Third, inquiries into the subjective thought processes of counsel for taking the steps they did at the trial are to be avoided. Instead the question is whether there could be a reasonable explanation for the course that was adopted at trial (Ali per Hayne J, with whom Gummow J agreed at [25]; TKWJ at [110] per Hayne J). If there could be such an explanation then no error or defect in the trial occasioning any miscarriage of justice is shown to have occurred (Ali id). Fourth, although the inquiry into whether there was an explanation for counsel's conduct is an objective one, there are some perhaps limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel's instructions (Nudd at [10] and [17] per Gleeson CJ). 64The appellant has identified the failings of trial counsel under three broad headings, namely, failure to follow instructions, "improper conduct" and giving improper advice. Each will be addressed in turn. However at the outset it should be noted that a review of the trial record reveals that appellant's counsel opened the appellant's case and then cross examined the Crown witnesses thoroughly and competently. After the close of the Crown case he called the appellant and led him through his evidence. Later he addressed the jury in a thorough and persuasive manner. The difficulties he faced were considerable. The Crown case was extremely strong. The appellant's response was to attempt to weave his way through some highly damaging transcripts by reference to various extraneous matters such as the water filters, the Pot Toppa royalty dispute, the China project and the ongoing needs of his business, Inspired Design. It would have been a difficult task for any counsel to cross examine the Crown witnesses, lead the appellant through his evidence, and then address the jury concerning the appellant's version of events.

[7]

Failure to comply with instructions 65The appellant's lengthy written submissions contain a number of assertions about the "instructions" he gave to his counsel during the course of the trial. The appellant filed an affidavit reciting a list of complaints about his counsel and various instructions he asserts he gave. The affidavit did not place those instructions in the context of the trial as it unfolded. Nevertheless each complaint of a failure to follow instructions will be addressed. However it should be noted that if the appellant in fact gave all the instructions he asserts he did in his submissions on appeal and his affidavit, many of which are nonsensical, then that would only have made a difficult task for counsel that much harder. 66First, the appellant complained that he instructed counsel to apply for separate trial in 2009, but that no such application was made. This complaint leads nowhere. In the end result the appellant obtained a "separate trial" as he was the only defendant on trial. 67Second, the appellant complained that his instructions to his counsel "to [seek a] voir dire based on Campbell's case were not followed". This makes no sense. Thurling was originally charged with importation and committed for trial on that charge. The acts against her all concerned events after the drugs had arrived in Australia. The Crown no-billed that charge having regard to the discussion of the meaning of "import" in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272. After an unsuccessful voir dire in relation to the evidence of manufacture, Thurling pleaded to a charge of knowingly take part in the manufacture of a prohibited drug. The decision in Campbell was irrelevant to the appellant's position. No sensible basis upon which there could have been a voir dire concerning the appellant "based" on that decision is apparent. 68Third, the appellant complained that his instructions to counsel to undertake some form of "Basha enquiry" (R v Basha (1989) 39 A Crim R 337) concerning the transcripts of the telephone conversations that have been referred to were not followed. In particular he complains that some form of "preamble" in each discussion should have been rejected as "it was a constant reminder of prejudice against [him]". It is not clear what this is referring to but it might possibly be a reference to so much of the transcript as referred to him being incarcerated. If so, this complaint is groundless. There was no possible basis upon which the appellant's counsel could have applied to exclude the references to the appellant's incarceration as it was central to the narrative of the Crown's (and the appellant's) case. There was nothing inadmissible or relevantly objectionable in any of the transcripts. 69Fourth, the appellant complains that he instructed his counsel to seek an adjournment for "a Basha enquiry on Garcia's evidence upon [a] new statement during trial" and that otherwise his counsel did not have "time to prepare or read [the] new statement". It seems that a further statement from Garcia was served just prior to the trial. On the morning the trial was due to start the appellant's counsel sought and was granted a short adjournment to read it before the Crown Prosecutor opened. Garcia was not called as a witness until eight days later. He gave evidence in chief over a day and a half, and was then cross examined for in excess of three days. With the consent of the Crown, the appellant's counsel was allowed to ask Garcia various questions in the absence of the jury about some documents that were in his handwriting and prepared while he was in custody. Thus, to that extent, there was a form of Basha inquiry in relation to Garcia's evidence. Otherwise, there is no basis for contending that counsel did not have sufficient time to consider his statement or that counsel erred in not asking for more time. A decision as to whether counsel has had sufficient time to prepare for cross examination is quintessentially a judgment they are best able to make. Counsel should not ask for more time to prepare simply because their client tells them to. 70Fifth, the appellant complains that he instructed his counsel "to admit evidence from Ben Petterson's statement" in which Petterson stated that he had not met the appellant. There was a dispute at the trial as to whether the appellant met Petterson at the social gathering on the evening of 18 June 2008 referred to above. The appellant denied that he did so. This complaint has no basis for at least two reasons. First, assuming that Petterson had made such a statement, it could not have been tendered because it was inadmissible as hearsay. Obviously, to have called Petterson as a witness in the appellant's case would have been a potential forensic disaster. Second, whether or not the appellant had physically met Petterson was very much a side issue in the proceedings. The transcripts revealed that the appellant knew who Petterson was and of his involvement in drugs (see [48]). 71Sixth, the appellant complains that his counsel failed to follow instructions to require the officer in charge to be recalled for further cross examination. This complaint has no substance. The officer in charge was called on the first day of the trial. He was cross examined on that day and on the second day. His cross examination was interrupted as he needed to seek medical attention. He was recalled just prior to the close of the Crown case. He was then further examined by the Crown and cross examined by the appellant's counsel. 72Seventh, the appellant complains that his instructions were ignored "all round by counsel with regards to objecting to all manufacture and irrelevant evidence from trial". He contended that "60% of line of questioning from Crown to witnesses and 70% of evidence they admitted was in relation to the manufacture". The short answer to this contention is that the material concerning the manufacture of amphetamines was highly relevant to the charge against the appellant. The Crown case demonstrated that the appellant was aware that manufacture was being arranged, and that he was informed to that effect by Thurling and Garcia. It was an element of the offence charged that the appellant intended or believed that another person intended to use the precursor he imported to manufacture a controlled drug. The evidence the subject of this complaint sought to prove exactly that, as well as the appellant's ongoing supervision of the importation. The responsibility for objecting to evidence led by the Crown rested with the appellant's counsel. It would not have been a proper discharge of his duty to the Court or his client to make pointless objections, and he did not do so. 73Eighth, the appellant complains that his counsel refused to follow instructions to obtain evidence from John Griffiths, China Development Corporation or Ken Parkins. The nature of the evidence that these persons or entities could have given was not explained, but it is difficult to see how they could have said anything of relevance much less by way of rebuttal of the damning aspects of the Crown case that have been summarised above. The Crown case was not dependent on it disproving that the appellant was pursuing other transactions while overseas. Further, it was known that John Griffiths had convictions for manufacturing drugs. In the absence of knowing what evidence it is said these persons could have given, it cannot be concluded that there is not any "reasonable explanation for not calling [them]" (TKWJ at [107] per Hayne J). 74Ninth, the appellant complains that his counsel also ignored the instruction to inform the trial judge that her Honour's personal opinions were coming across by way of "facial expressions" and "fluctuating breaths and stares". This complaint has no substance. There is nothing in the material capable of supporting a complaint of bias on the part of the trial judge.

[8]

Improper conduct and administration 75Under this heading the appellant complains about a number of other aspects of the conduct of the trial on his behalf by his counsel and solicitors. 76First, he complains that counsel's instructing solicitor was rarely present during the trial. To address this, it is not necessary to address the large question of whether the trial of a person on a serious criminal charge who is not represented by counsel instructed by a solicitor who is present for most, if not all, of the trial would necessarily be unfair and thereby warrant a stay (see R v Chaouk [2013] VSCA 99; R v Chaouk [2013] VSC 48; MK v Victoria Legal Aid [2013] VSC 49). Where the trial has concluded and resulted in a conviction different considerations arise in determining whether a miscarriage of justice has occurred compared with the prospective assessment involved in considering whether to grant a stay. With the former there must be a consideration of the actual impact on the trial in question. In this case, there was no satisfactory evidence before this Court concerning the periods in which counsel did not have the assistance of an instructing solicitor, much less whether this caused any difficulties in counsel for the appellant's conduct of the trial. 77The transcript records that on one occasion during the trial the appellant's counsel advised the trial judge that his instructing solicitor was absent. He sought and was granted an adjournment until he attended so that counsel could confer with his client before deciding to re-examine. This illustrates that a temporary absence of an instructing solicitor will not necessarily occasion a defect in the trial process, much less a miscarriage of justice. 78The appellant identified one instance of what he said was the prejudice occasioned by the absence of an instructing solicitor as follows: "Regarding evidence given by the [appellant] in relation to a Simmone Von Viller from University of NSW. In re-cross examination, the Crown stated to the jury that this information was falsified and the person did not exist. The Crown continued to imply that the defendant was lying about the rest of his story too. It was subsequently discovered by the [appellant's] lawyer after conviction that Simmone von Viller in fact does exist. Unfortunately her name was misspelt by the [appellant] at trial. Had the [appellant's] lawyer been present during trial, this could have been avoided as he had prior firsthand knowledge of Prof. Simmone Von Viller in the form of an affidavit." 79In his evidence in chief the appellant stated that he had been told by John Griffiths that he, Griffiths, had an association with a "Professor Simone Von Wheeler" from the University of New South Wales. In cross examination the Crown Prosecutor suggested that there was no such person, to which the appellant responded "[t]hat could be true". There was then a discussion about the spelling of the professor's name. Ultimately the Crown Prosecutor did not submit to the jury that there was no such person, but instead submitted that the appellant did not "know too much about the technical side of either venture" and that the jury should not accept his reasons for travelling to Nepal. Thus the question of whether or not there was a professor of the same or similar name to the one he stated was never resolved but in the end did not matter. The appellant only claimed that he had been told of that person's existence by John Griffiths and the Crown did not ultimately dispute that claim. In those circumstances, to have called evidence that there was a person with a similar name to that of the professor, assuming there was such evidence, would not have advanced the appellant's defence. 80Another instance of prejudice from the absence of an instructing solicitor was said by the appellant to arise from the following: "A jury member informed the Judge during trial that he had been at a pub where the [appellant] was [playing music] during the trial. He and the [appellant] shared eye contact and the jury member claims he put his beer down and left. The [appellant] informed his solicitor that morning of the event via text message as the solicitor was busy with [another trial] and seldom came to court. As I was also present in the pub and witnessed this event, I can say that the jury member stayed drinking his beer for approx 20mins with his family. When the Judge read the jury note she commented in a very sarcastic and disapproving tone 'and thanks to the juror for bringing it to my attention. It probably would have been a good idea for your client to have told you, Mr Paish, as well'. No objection was made by counsel to clarify the situation." 81Again, this complaint does not identify any defect in the trial or matter capable of causing a miscarriage of justice. The comment of the trial judge complained of was made in the absence of the jury. Counsel for the appellant explained to the trial judge in the jury's absence that the appellant did not have the opportunity to speak to him about the matter but had contacted counsel's instructing solicitor. When the jury returned the trial judge stated: "To the juror that let me know about the chance meeting with the eyes across a crowded bar last night ... thank you for letting me know. The accused also let his solicitor know about [that]. There is no issue about that ..." (emphasis added) 82Second, the appellant complained that one of the solicitors from the firm of solicitors he retained was "disqualified" because he had been convicted of manufacturing drugs (with Griffiths). The details of this were not explored but it appears to have no substance. The solicitor named by the appellant in his submissions was acquitted in 2002, six years prior to the trial (R v Piggott, Griffiths, Simeon [2002] NSWCCA 218). 83Third, the appellant complains that he was "not informed of the change in Worldon's statement until the day Worldon was called at the trial", even though "Counsel for defendant was made aware 2 days prior". The nature of the change was not explained, but it does not matter. The appellant denied making any admission to Worldon. Worldon's evidence was strongly challenged in cross examination. The appellant's counsel put his client's version of events to Worldon. Assuming there was some aspect of Worldon's evidence that the appellant was only apprised of late, it was not productive of any defect in the trial or other matter occasioning any miscarriage of justice. 84Fourth, the appellant complains that "[c]ontrary to instructions, counsel failed to argue grounds of recklessness as requested by [the] trial Judge". This is misconceived. Prior to the Crown's address the trial judge raised with both counsel the form of the directions to be given concerning the elements of the offence. The only reference to "recklessness" in that exchange concerned the element identified in s 307.11(1)(c), namely that the substance is a border controlled precursor. Sub-section 307.11(2) provides that the fault element for that element is "recklessness". In the end result there was no need for any argument from the appellant's counsel because her Honour decided to direct the jury that that element could be satisfied by recklessness, but that the Crown had to prove actual knowledge of the importation ("intentionally imported") and the proposed use ("intended to use ... or believed that another person intended to use"). 85Fifth, the appellant complaints that "[c]ontrary to instructions, counsel failed to argue relevance of accessorial liability not advanced in the trial, contrary to case of principle lead [sic] by the Crown". This complaint also has no substance. From beginning to end the Crown case was that he was the principal in the importation. Her Honour directed the jury in terms that required them to be satisfied beyond reasonable doubt that he intentionally imported the substance into Australia. For the appellant's counsel to have raised any issue of accessorial liability would have only involved the agitation of another basis upon which his client could have been convicted. 86Sixth, the appellant contends that his counsel failed to apply for the discharge of a juror who was supposedly late for an international flight. The substance of this complaint is addressed when dealing with ground 12. In summary, the juror indicated that he had made alternative arrangements. 87Seventh and finally, the appellant also put forward a motley collection of complaints about his trial for which the fault apparently lay with his counsel. These included complaints about the late provision of transcript, the apparent tardiness of the trial judge in attending the Court while the jury was deliberating, and a failure to obtain copies of the exhibits or jury notes. None of these complaints has any substance.

[11]

Ground 2: Delay in the trial resulting in unfairness 91The appellant was arrested in 2008 and stood trial from February to March 2011. Ground 2 complains that a miscarriage of justice was occasioned either because of this delay or because the trial judge failed to direct the jury in accordance with s 165B of the Evidence Act 1995. 92In support of this ground the appellant referred to the three witnesses against him, Garcia, Thurling and Worldon, and submitted that "[g]iven the time the witnesses had with the brief before pleading guilty and the delay in the [appellant's] trial, the [appellant] argues delay in proceeding has resulted in procedural [un]fairness and a justifiable sense of grievance". 93This ground has no substance. The delay between the appellant's arrest on 25 September 2008 and the commencement of his trial in early February 2011 was unfortunate but certainly not exceptional. It appears to have come about by delays in the service of the Crown brief of evidence, the listing of committal proceedings, the making of a separate trial application by Thurling and the necessity for various adjournments to facilitate the pleas of guilty, sentencing and the subsequent assistance of Garcia and Thurling. 94Critically, nothing in the appellant's submissions has identified any relevant prejudice occasioned by delay that would warrant the extraordinary step of intervening. A permanent stay of a prosecution of a criminal offence where there is substantial delay is only to be granted in the extreme case where the apprehended defect causing unfairness to the accused is of such a nature that it goes to the root of the proceedings, and there is nothing a trial judge can do in the conduct of the trial to relieve its unfair consequences: RM v R [2012] NSWCCA 35 per Whealy JA; Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23; Barton v R [1980] HCA 48; 147 CLR 75; Dupas v R [2010] HCA 20; 241 CLR 237. 95In this case the only consequence of the delay was that it facilitated two of the appellant's co-accused pleading guilty and giving evidence against him. In substance the appellant's complaint is that the delay meant that the case against him gathered strength. 96The necessity for a direction under s 165B only arises: "(2) If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence." 97No direction under s 165B was sought. If it had been, no basis for a finding of a "significant forensic disadvantage" is apparent. 98Rule 4 of the Criminal Appeal Rules applies to all aspects of this ground. Leave to raise it is refused.

[13]

Ground 4: Miscarriage of justice by submitting evidence from "known perjured witness" 101Ground 4 alleges that a miscarriage of justice was occasioned because the Crown called evidence from a "known perjured witness", Garcia. He asserts that in sentencing Garcia the trial judge had stated that she "did not believe the evidence given by Garcia" and that the calling of such a witness by the Crown resulted in a miscarriage of justice. 102On 19 October 2010 Garcia pleaded guilty to the charges already referred to. He was sentenced on 10 February 2011 by the same judge who conducted the appellant's trial. Garcia did not give evidence at the sentencing hearing. However, placed before the sentencing judge were statements from Garcia in which he asserted that it was not until after 5 July 2008, ie after he returned from Thailand, that he became aware that the "water heater" being imported into Australia contained pseudo-ephedrine. The sentencing judge rejected these assertions and found his role was much greater. 103As I have stated, just prior to the trial the Crown served a further statement from Garcia in which he admitted a much greater role in the importation. This was confirmed in his oral evidence that is summarised above. All of the discrepancies in Garcia's various accounts were fully explored at the trial. 104Nothing in this course of events reveals a miscarriage of justice. The version of events that Garcia testified to at the trial was consistent with the sentencing judge's finding as to his true role. Unlike other versions that Garcia had provided, his version at trial at least had the virtue of being consistent with the remainder of the evidence. Both the appellant's counsel and, by reason of his efforts, the jury were fully aware of the variations and discrepancies in Garcia's evidence. Nothing in the Crown's conduct was inconsistent with the duties placed on Crown Prosecutors (as summarised in Banovec v R [2012] NSWCCA 137 at [59]-[60] per Hoeben JA, Basten JA and McCallum J agreeing). In particular, the Crown was entitled to conclude that the last version of events given by Garcia was generally reliable. 105Leave to raise this ground is refused.

[17]

Ground 8: Alleged denial by trial judge of (avenue of) cross examination of key witness (Thurling) 115Ground 8 alleges that a miscarriage of justice occurred because of "the trial judge's decision to suspend [the] questioning" of Thurling "given the history of the trial judge's involvement in the proceedings". It was contended that the "pre-existing bias of the trial judge prior to trial commencement, due to familiarity with the co-accused's trial and the familiarity with Griffiths' sentencing, has influenced her decisions throughout the [appellant's] proceedings". 116The background to the entry of a plea of guilty by Thurling to a charge of knowingly participate in the manufacture of methylamphetamine has been discussed above (at [67]). During the cross examination of Thurling, counsel for the appellant asked: "You weren't asked to enter a plea in the District Court to anything that stated that you were involved [in], [or] aided and abetted, an importation of a border controlled substance". At this point the trial judge sent the jury out. Her Honour explained the background against which Thurling came to enter a plea of guilty. During the exchange her Honour stated to the appellant's counsel: "Obviously you are entitled to cross examine her about all of that but I just thought it was fair that you knew some of the background of all of that, it is a somewhat peculiar case in that respect." 117The appellant's counsel considered what her Honour stated and advised the Court that "you have alerted me to - the legal [complexity] is such that the forensic advantage is worthless now that I understand the overall situation". The jury then returned and counsel for the appellant resumed questioning Thurling by reference to the charge she pleaded guilty to. 118The purpose of the trial judge's intervention was to bring to counsel for the appellant's attention the relatively complex legal background to the entry of a plea by Thurling. Her Honour did so because her Honour correctly apprehended that once that was made known to counsel for the appellant, he would appreciate that a lay person such as Thurling may not be able to provide much insight into the course of events that led to the charge against her changing from being knowingly involved in an importation to knowingly take part in manufacture. However, her Honour did not disallow any question or make any direction or order. Instead her Honour left it to counsel to exercise his judgment as to what line of questioning would be taken up with Thurling. 119This course of events does not reveal any defect in the trial, or any other matter that might give rise to a miscarriage of justice. It does not give rise to any possible basis for a claim of bias on the part of the trial judge by reason of her Honour's knowledge of the course of proceedings against either Thurling or Garcia. To the contrary, her Honour used her knowledge to "intervene" in a manner that assisted the appellant and his counsel. 120This ground fails.

[19]

Ground 10: Her Honour incorrectly characterised an aspect of the appellant's case in the summing up as a "red herring" 125Ground 10 complains about the manner in which the trial judge directed the jury concerning the relevance of that part of the appellant's evidence in which he asserted that ultimately he came to the belief that Garcia had secreted pseudoephedrine in the water filters that he, the appellant, had purchased in Bangkok. In particular, the appellant complains about her Honour's description of this part of his evidence as a "red herring". 126In summing up the Crown case her Honour stated to the jury: "Another thing that this case is not about, is what may or may not have been hidden inside some stainless steel water filters that may or may not have come by DHL ... ... the accused says that towards the end of the series of telephone conversations, he had become aware for the first time that Mr Garcia and others were in fact engaging in or about to engage in the manufacture of a drug using pseudoephedrine...[the appellant] thought that it was and this is based on what Garcia had said to him he claimed that it was pseudoephedrine secreted inside stainless water filters ... ... Well ladies and gentleman not only would you be careful about it but it is no part of the Crown case that, even if you accept the accused's evidence about his state of mind in relation to that importation that he became aware of after he had gone into custody, it is no part of the Crown's case that that constitutes the subject matter of this charge, nor could it be I direct you in the circumstances. If at the end of the day all you are satisfied about is that the accused in those conversations was talking about an importation of pseudoephedrine of which he had acquired knowledge that was contained in some stainless steel water flights that in fact were his because they had been bought for him by Mr Garcia and were being sent back to Australia - if that is all you are satisfied about at the end of the day, then you would have to acquit the accused because not only is it not part of the Crown case that this is the subject matter of the charge, but it could not be either, as a matter of law I direct you." (emphasis added) 127Against this background her Honour then directed the jury as follows: "... if all you come away with is a belief that the accused was talking about some later acquired knowledge of an actual importation taking place between Garcia and perhaps others in relation to which he had secreted some pseudoephedrine inside these stainless steel water filters that he was going to use with others to make methylamphetamine from, that the accused himself became aware of but did not say anything about [it] for a variety of reasons, including that he did not want to be a dog and did not want to be labelled as such in the prison system all for good reason, but in fact I tell you that that is in fact something of a red herring you might think because it is not part of the Crown case, could never [be] the subject matter of this charge and it is not something that you need to concern yourselves with as part of the proof that the Crown seeks to rely on as part of the circumstances in this trial otherwise." (emphasis added) 128These directions did no disservice to the appellant. To the contrary, what they clearly conveyed to the jury was that, if they accepted his evidence concerning his belief as to the contents of the water filters sent by air cargo, they could not use that evidence as a basis for finding him guilty of importation and instead should acquit him. Her Honour in effect directed the jury that they could not convict him of a different importation to that charged and alleged by the Crown. 129Later, in the absence of the jury, counsel for the appellant raised with her Honour the use of the phrase "red herring" in this context. In the ensuing discussion the trial judge (correctly) explained that the reference to it being a "red herring" was in the context of the Crown case, and in particular was designed to avoid the jury "accepting [the appellant's] belief about [the filters]" as a basis for finding him guilty of the offence he was charged with. Counsel for the appellant told the Court that he was "going to leave this alone". His judgment on this question was undoubtedly right. The appellant's position was that, contrary to the Crown case, he was not orchestrating the importation with which he was charged, but was instead informed of a different importation and was discussing his likely receipt of the proceeds of that importation. This was a particularly unattractive aspect of his defence. A direction to the jury that they should not convict him of the charged offence based upon that aspect of his evidence was clearly in his interest. It was the most advantageous direction he could have reasonably anticipated. 130Rule 4 applies to this ground. Leave to raise it is refused.

[22]

Ground 13: Trial judge failed to provide jury with aide memoire or "comprehensive explanation of summing up" 137The particular complaint made by the appellant in relation to this ground is as follows: "After Jury retired for verdict on 16 March 2011 at 11.56am, Trial Judge failed to appear or reconvene at court that morning until 3.30pm 17 March 2011 [when] she had a court officer check on the jury progress. A Jury note was then presented asking for a copy of [the] summing up transcript to clarify some things. Judge declined the request, stating the transcripts were not available. The jury informed the Judge they had questions regarding recklessness amongst other things (T16/03/11 p99). The Judge informed the jury to take the 'literal meaning' ('from the dictionary', this second statement has not been recorded in transcripts instructions to obtain audio has [sic] not been followed through by prior counsel, defendant has been unable to obtain a copy), no further clarification was made as to the elements in which this fault element can apply. ... Trial Judge adjourned after this to reconvene with any unanswered question in the morning of day 3 of deliberations. Judge appeared in court at approximately 11am [when] she informed counsel that the jury are still working on their questions (T18/03/11 p 101). The jury were never called into court for further assistance. At approximately 12pm [the] Trial judge informs that 'there has been no note forthcoming and they are continuing their deliberations'." 138The balance of the submissions also complain that the trial judge erred in proceeding to take a verdict while the jury still had questions to be answered, citing R v TAB [2002] NSWCCA 274 at [72] per Levine J. 139These submissions misstate what occurred following the jury retiring to consider their verdict. At around 4pm on 16 March 2011 the trial judge reconvened and adjourned the proceedings to the next day, 17 March 2011. The transcript for the next day does not record whether the Court reconvened at 10am, but it is clear that the jury assembled and resumed their deliberations. Sometime between 3.30pm and 4.00pm the jury sent a note asking for a "written copy of the judge's final directions". Her Honour reconvened and advised the jury that there was no written version of the summing up available at that time, but also pointed out that they were entitled to further assistance. Her Honour invited the jury to be a "bit more specific" and "tell me what is that you want". The foreperson said that the jury had been discussing "some of the definitions of the words, like recklessness". The trial judge then asked if they could "put that down into a note for me tomorrow, those areas where you think you need more assistance". Contrary to the appellant's submissions, the trial judge did not tell the jury that they should rely on a dictionary or use the "literal" meaning of recklessness. 140The transcript for the next day records that the jury did not send any note seeking clarification of any matter. Instead they sent a note indicating they had reached a verdict. 141All this reveals is that whatever initial concerns the jury had in relation to the meaning of recklessness, they were resolved. This is not surprising. To satisfy the other elements of the charge under s 307.11 the jury had to be satisfied that the appellant "intentionally imported the substance into Australia". In the context of this trial it meant that the jury had to be satisfied that he orchestrated the secretion of the ground down tablets into the water pump and its delivery to Australia. If the jury were satisfied of that, a conclusion that he was reckless as to whether the substance inside the water pump was a border controlled precursor, namely pseudoephedrine, was inevitable. 142Her Honour did not err in either failing to prevent the jury from deliberating while a transcript of the summing up was obtained, or failing to redirect them on the meaning of recklessness. No complaint in that regard was made by the appellant's counsel. Rule 4 applies to this complaint. Leave to raise it is refused.

[25]

Sentencing appeal 147At all times the Court below was, and this Court is, exercising federal jurisdiction. One source of that jurisdiction was and is s 68(2) of the Judiciary Act 1903 (Cth), which makes applicable the right of appeal sourced in ss 5 and 6 of the Criminal Appeal Act: see Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at [237] and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [8] and [90]-[92]. In that fashion there is avoided "the establishment of two independent systems of justice" for offences against State and federal laws: R v Murphy (1985) 158 CLR 596 at 617. Section 68(11) confirms that any other federal investment of jurisdiction, such as by Judiciary Act s 39(2), continues to apply, but nothing turns on that for present purposes. 148Section 68(2) makes applicable the requirement contained in s 5(1)(c) of the Criminal Appeal Act for leave to appeal against sentence. The question is whether this Court holds the opinion that some other sentence is warranted in law and should have been passed; if so then s 6(3) requires the sentence to be quashed and a new sentence imposed in substitution therefor. Although some questions remain as to the precise nature of the appeal under the Criminal Appeal Act: see Banovec v R [2012] NSWCCA 137 at [19] (Basten JA), it is not necessary for present purposes to address them. 149In R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, Spigelman CJ emphasised that two positive opinions were necessary to be formed in an appeal pursuant to ss 5(1)(c) and 6(3): first, that there was error and secondly, that "some other sentence ... is warranted in law and should have been passed". Each is an "essential pre-condition" for an exercise of power under s 6(3). Even if error is identified, it must be material, that is, not technical or trivial in nature (Maldonado v R [2009] NSWCCA 189 at [19]) and it is "not appropriate to make minor adjustments to the result in order only to give some practical recognition of or endorsement to the identified error if it is not otherwise warranted": Tabuan v R [2013] NSWCCA 143 at [28]. As Tabuan indicates, the residual discretion to decline relief which would constitute "tinkering" applies to all sentencing appeals, not merely Crown appeals, although that is where it is most commonly observed: Dinsdale v R [2000] HCA 54; 202 CLR 321 at [62]; R v Woodland [2007] NSWCCA 29 at [53]; R v KB [2011] NSWCCA 190 at [77]. 150The sentencing judge was obliged to impose a sentence that was "of a severity appropriate in all the circumstances of the offence" by reason of s 16A(1) of the Crimes Act, and to take into account the various matters identified in s 16A(2). 151The applicable principles are well-established. Sentencing judges have a "substantial discretion", as this Court said in Allpass (1993) 72 A Crim R 561 at 562, with which interference is warranted only if it is demonstrated that the sentencing judge fell into "material error of law or fact". That decision was approved in Lowndes v R [1999] HCA 29; 195 CLR 665 at [15]: "The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] 2 VR 520. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic: House v The King (1936) 55 CLR 499. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." 152In Adzioski v R [2013] NSWCCA 69 at [61], after referring to, inter alia, Allpass and Lowndes, Hoeben CJ at CL said, with the agreement of Slattery and Bellew JJ: "While those statements of principle were given in cases involving Crown appeals, they are not restricted to appeals of that kind but are of general application. One needs to approach the sentencing task by reference to the facts found by the sentencing judge and his application of principle." 153All those decisions reinforce the basic principle that the sentencing judge is required to perform a difficult balancing exercise, which very often involves competing and contradictory considerations: Wong v R [2001] HCA 64; 207 CLR 584 at [76]-[77], and that the onus lies upon the appellant to establish material error.

[26]

The sentencing judge's remarks on sentence 154The sentencing occurred on 23 January 2012, some months after conviction. The sentencing judge (who was also the trial judge) expressly addressed s 16A of the Crimes Act, and after stating as the "overriding principle" the obligation in s 16A(1), turned to address the nature and circumstances of the offence. That involved two main elements. The first was a detailed summary of the Statement of Facts which had been prepared by the Crown, dealing with the factual matters giving rise to conviction. The second, which is important insofar as the appeal on sentence is concerned, was that the sentencing judge expressly proceeded on the basis that the jury's verdict coupled with the evidence confirmed that the role of the appellant was that of "organiser" or "principal" of the operations, something to which further attention is directed below. The sentencing judge referred to the need for the sentence to reflect an element of general deterrence, the absence of a plea of guilty, and the fact that the appellant was on parole at the time (albeit not for a drug related offence), leading to the need for an element of specific deterrence. 155The sentencing judge referred to the pre-sentence report and a psychological report from Mr Watson-Munro, not all of which she accepted, and some statements and references including from the appellant and his partner, which, once again, her Honour was unable to accept at face value. Her Honour singled out for criticism the assertions in those statements that the appellant had no family and that he was a person of good character, especially in light of his criminal record. That record included convictions and sentences to terms of imprisonment for four offences including aggravated indecent assault of a child under sixteen, act of indecency with a child under ten, and doing an act with the intention of perverting the course of justice. At the time the offence the subject of this appeal was committed, the appellant was subject to a community service order of 300 hours for the offence of possessing child pornography, and he was also subject to the parole portion of a suspended sentence he had received for disseminating or producing child pornography. He had been taken into custody for breaching parole, which was when the telephone calls referred to above were recorded. 156Her Honour referred to the family background of the appellant, the death of his father when he was eleven, the death of his mother when he was twenty-four, the death of his stepfather, and the relationship with Ms Elke Rautenberg, who was described as appearing to be "somewhat naïve and trusting in relation to his earlier offences". There was reference to the intelligence and musical ability of the appellant, and his work history, which led to the likelihood that he would be able to obtain full employment when he was released. However, her Honour referred to the fact that he taught children while on bail, a matter to which it will be necessary to return. Her Honour assessed his prospects of rehabilitation as reasonable. Her Honour referred to the conditions of his bail which were "quite strict", preventing him from returning to Wagga Wagga. 157Finally her Honour referred to the question of parity or relativity. She noted that there was no strict parity arising because of the different nature of the offences between the appellant and a co-offender, but accepted that issues of relativity did arise, in reliance on which her Honour came to the conclusion that an overall term of imprisonment of seven and a half years was called for. 158In determining the length of the non-parole period, her Honour allowed for the delay both in the trial and the sentence proceedings, and that for some of the time the appellant had been on bail including initially daily reporting. Her Honour also had regard to the reality that the non-parole period would be served in two separate periods with the bail intervening, amounting to a more onerous impact and the fact that his time in prison would be served on protection (having regard to the earlier offending behaviour), which to an extent made his experience in gaol more onerous. 159For those reasons her Honour set a non-parole period of four years and six months commencing from 13 November 2010 to allow for the pre-trial custody of four months and six days. Her Honour rejected the submission that there should be "a little further back dating" to reflect totality. 160Each of the appellant's grounds of appeal on sentence is addressed in turn below, using the language from his notice of appeal.

[27]

Ground 1: Misconduct and negligence of Counsel and legal representation 161This ground resembles ground 1 of the appeal on conviction. The appellant advances an elaborate series of arguments, which include serious allegations of misconduct by his former counsel and by the Crown. It is convenient to address them chronologically. First, complaint is made about the barrister and solicitor appearing for him immediately after conviction, whom he advised the Court on 5 August 2011 he had sacked. The appellant relies on text messages sent by Ms Rautenberg to his then lawyers. The gravamen of the complaint includes the delay caused by an adjournment, the failure to follow instructions, the fact that an adjournment was sought and granted in the absence of the appellant, and seemingly the failure to secure bail after conviction. 162It is neither possible nor necessary on the materials before the Court to determine the correctness or otherwise of all of the factual matters, although in evidence was a letter from the appellant's former barrister dated 25 July 2011 which included the following (emphasis in original): "Your sentence was adjourned as you indicated you wished to provide police with relevant information for which you hoped to gain a discount. If you changed your mind that is a matter for you. The sentence would have been completed but for this decision. The delay was caused by you alone. ... I will appear at your sentence to advise Judge Tupman that I can no longer act for you. I don't need to go into detail as to why unless you insist." 163Further, on 4 November 2011, the sentencing judge said this: "I've also been told, or it's been suggested to me, that there have been delays in the sentence caused by the court or others. The sentence has been adjourned twice in the past on the application of the offender, and they can shake their heads as much as they like in the back of the court to that proposition. The fact is that the first time it was adjourned on the application of the offender through his counsel for matters that they wished to raise... The second time it was adjourned in ... circumstances [where] he withdrew his instructions from counsel and it became clear that there was a Legal Aid review application in place." 164However, whatever be the circumstances which occurred prior to August 2011, none is shown to have led to any material error when sentence was imposed in January 2012. 165The second tranche of complaints is directed to the counsel and solicitor retained to appear on the sentencing hearing. The complaints (which overlap) are a failure to clarify instructions, negligent preparation, and the failure to seek transcripts. The appellant says that "[t]he transcripts of past hearings were never supplied" and that counsel did not have a chance to read the summing up which was supplied by the Crown on the day of the sentencing hearing. 166However, newly retained counsel said he had been briefed with a copy of the transcripts of the hearing, and sought transcripts of the summing up on the first occasion and said that he obtained them prior to the sentencing hearing. At the sentencing hearing counsel relied on written and oral submissions. The written submissions are replete with transcript references, and concisely and effectively advance a wide range of factual and legal matters in the appellant's favour. 167It is true, as the appellant points out, that counsel said that the summing up "has only just been made available to me and I haven't finished reading all of it but I've got most of the way through". However, there is no basis on the material before the Court for concluding that there was any failure to advance points which properly could have been advanced on behalf of the appellant at the sentencing hearing, let alone any such failure as to constitute negligence or misconduct by counsel then retained. For those reasons, this ground lacks substance.

[29]

Ground 3: Sentencing judge bias resulted in a miscarriage of justice 171This complaint is principally based upon an exchange between the appellant and the judge on 5 August 2011 (when he represented himself) and the sentencing judge's finding that he was the principal, contrary to the submissions advanced on his behalf on 19 January 2012. The appellant says that in the exchange in August 2011, he felt that "the bias from Her Honour was not allowing his arguments to be heard". There is nothing in this complaint. The Court has read the entirety of the transcript of that hearing, in the course of which there is nothing that could possibly amount to apparent or actual bias. The appellant did not distinguish between the two, and it is appropriate to proceed on the significantly lower standard of apprehended bias: see Rouvinetis v Knoll [2013] NSWCA 24 at [10]. The appellant needed to identify the matter which might lead the judge to decide the case other than on its legal and factual merits, and he needed to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [63]. Nothing that took place in August 2011 might cause an informed bystander to conclude that her Honour might judge the case other than on its merits. To the extent that the complaint is that her Honour found that he was a principal, for the reasons already expressed that finding was open to her. 172One aspect of this ground extends to what occurred on 19 January 2012. For example, the appellant submits that: (transcript references omitted) "For example, defence counsel raises ABN number, in which Her Honour defends the Crown's inference by saying, 'Garcia wouldn't know an ABN number if it came and hit him in the head.' The defendant argues that the clear inference is available given Garcia himself was a director of Tweed Scientific with John Griffith, and ABN details existed in evidence in the Crown's Case of which Garcia confirmed [sic]." 173Essentially this amounts to no more than a complaint, labelled as bias, that her Honour rejected the submission that was being advanced. But as Basten JA said in Barakat v Goritsas (No 2) [2012] NSWCA 36 at [40]: "No authority is needed for the proposition that an apprehension of bias, in the sense of an apprehension of prejudgment, does not mean an apprehension that the case will be determined adversely to the interests of the complaining party. It means a reasonable apprehension that the trial judge has formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party." 174This ground fails.

[32]

Ground 6: Sentencing judge erred by acting on facts adverse to the defendant without proof beyond reasonable doubt, contrary to law in section 21A of Sentencing Act 178These two grounds are closely related. Twice within her Honour's sentencing remarks there was mention of the appellant's disregard for the law. The passages are as follows (emphasis added): "He is a gifted musician and whilst on bail from January 2009 worked as a guitarist both in performance and teaching in Sydney. That, in general terms, should be seen as a positive but it operates as something of a concern in relation to this offender because I accept from the evidence and references and reports tendered that this included his teaching children. He was at the time subject to the provisions of the Sex Offenders' Register and there is nothing in the evidence to suggest that any of these employers or individuals were notified of or became aware of his background. That has two ramifications on sentence. One is that it is some further evidence, together with the fact that he committed the offence on parole, of his disregard for the law and the other is that he apparently proposes to continue teaching guitar presumably including teaching children when released on parole. All of that reflects on his lack of insight and amounts to some caution in relation to an assessment of his real prospects of rehabilitation." "It would appear that there was no further offending whilst on bail and his bail conditions were quite strict, initially including daily reporting. He was prevented from returning to Wagga. He has not been charged with any other offending behaviour whilst on bail. Of course, that particular consideration if it goes to demonstrated rehabilitation whilst on bail, must always be viewed in the light of what on the facts appears to be his disregard for his legal obligations given that he was teaching children, which at least on its face would appear to be contrary to his obligations as a person on the Sex Offender's Register." 179On a fair reading of those passages, it is reasonable to infer that they played some not insignificant part in the exercise of the sentencing judge's discretion. 180Counsel for the Crown, Mr O'Donnell, candidly conceded that there was no evidence to support the finding by the trial judge that the appellant was a person on the Child Protection Register (often known as the Sex Offenders' Register). Although the pre-sentence report expressed concern that the appellant taught music to children in the inner city, it did not go so far as to assert a breach of bail conditions. 181It would appear that the appellant is a registrable person under the Child Protection (Offenders Registration) Act 2000. A letter dated 29 April 2013 addressed to the Registrar of this Court from Detective Sergeant Fenwich, Investigations Manager of the NSW Police Force, which was tendered without objection on appeal, attached a copy of an acknowledgement form for the Child Protection Register signed by the appellant on 6 September 2010. What is not clear, however, is whether the appellant undertook acts prohibited under Part 7 of the Commission for Children and Young People Act 1998, the relevant Act in force at the time the appellant was added to the Child Protection Register, related to child-related employment, which would support the sentencing judge's findings that the appellant had acted contrary to his obligations as a registrable person under the Child Protection (Offenders Registration) Act. Indeed, in the 29 April 2013 letter, Detective Sergeant Fenwich stated that the appellant had not been charged for any breach of the Child Protection (Offenders Registration) Act. 182On a fair reading of her Honour's sentencing remarks, her Honour was proceeding on the basis that the appellant had contravened his legal obligations. That was something of which her Honour was required to be satisfied beyond reasonable doubt: Leach v R [2007] HCA 3; 230 CLR 1 at [41]; Whitmore v R [2010] NSWCCA 157 at [93]. It will be seen that her Honour in both cases expressed her conclusion tentatively ("some further evidence"; "presumably including teaching children"; "what on the facts appears to be his disregard"). However, those matters were irrelevant to the sentencing discretion unless they were established beyond reasonable doubt, and there was no basis in the material before her Honour to reach that conclusion to that standard. What is more, it does not appear to have been something that was put to the appellant's counsel for a response. 183The foregoing discloses appellable error. The remainder of the grounds will be addressed before returning to the consequences of establishing these grounds.

[34]

Ground 8: Sentencing judge erred in application of parity rule, resulting in procedural unfairness and miscarriage of justice 187This ground focuses on Mr Garcia, who was sentenced to a term of four years with a non-parole period of two and a half years for aiding and abetting the importation. It was plainly open to the sentencing judge to form the view that Ms Thurling had a very different role. 188The starting point here is that although there were co-offenders in a broader sense, Mr Garcia and Ms Thurling were charged with different offences. As the High Court noted in Green v R [2011] HCA 49; 244 CLR 462 at [30] the parity principle can apply in those circumstances: "Those practical difficulties and limitations [of the difference between crimes of participants in the same criminal enterprise, and the inability of a court of criminal appeal to undertake a de facto review of prosecutorial charging discretions] however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged." 189The fundamental fact was that the sentencing judge correctly formed the view that there was "no strict parity arising", but had regard to questions of "relativity", which is apt to include the broader application of parity. Her Honour formed the view that the appellant was "the only person who knew all of the details necessary to follow up the consignment" and that the intercepted telephone calls "had the flavour of the offender's directing the other two to ensure that the importation and delivery occurred". For the reasons given in relation to the appeal against conviction, no error is thereby disclosed. 190Appellate intervention on review on the basis of parity and relativity is a consequence of the appearance that justice has not been done: Lowe v R (1984) 154 CLR 606 at 610. However, as French CJ, Crennan and Kiefel JJ said in Green at [31]-[32]: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders." 191In the present case, no appellable error is shown in the way the sentencing judge took into account the sentence of Mr Garcia. This ground fails.

[36]

Ground 10: Amendment in Commonwealth Law resulted in excessive undue stress and a miscarriage of justice 193The appellant complains that "Due to recent amendments, [he] now falls under the new law stating Federal Inmates must now sit before the state Probation and Parole Board". He said in his oral submissions that when he was first sentenced, the sentencing judge alluded to parole being "an automatic thing, that date [of parole] is an automatic time". He said that when he discussed parole with NSW Probation and Parole Board he was informed that they would "not be advancing [the appellant's] earliest release" but instead asking that it be held off. 194It seems that the "recent amendments" to which the appellant alludes in his written and oral submissions are contained within Schedule 7 of the Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth), which commenced on 4 October 2012. Prior to the commencement of the relevant part of this Act, federal offenders serving sentences of imprisonment of less than 10 years were released automatically upon the expiry of their non-parole period via a parole order made by the federal Attorney-General who had no discretion to refuse to release the prisoner on parole: Crimes Act, former s 19AL. The 2012 Act has abolished the automatic granting of parole. It has been replaced by the requirement that the Attorney-General, before the end of a prisoner's non-parole period, makes, or refuses to make, a parole order directing the person be released from prison on parole: current s 19AL. The introduction of this discretion enables the Attorney-General to consider reports from State and Territory corrective service agencies on the offender's behaviour in prison: House of Representatives, Crimes Legislation Amendment (Powers and Offences) Bill 2011, Explanatory Memorandum at 133. One of the reasons cited for this change was the ability, prior to the amendments, of federal child sex offenders to "refuse to participate in sex offender treatment programs, as they know they will be released at the end of their non-parole period regardless". Under the new arrangements it is thought that "[o]ffenders would be encouraged to take part in rehabilitation programs if they knew that this would be taken into account in deciding whether they should be released on parole" (House of Representatives, Parliamentary Debates (Hansard), 23 November 2011 at 13549). 195These recent amendments apply to the appellant's current term of imprisonment in relation to the importation of a commercial quantity of a border controlled precursor, as outlined in item 12(2)(a), Schedule 7 of the Crimes Legislation Amendment (Powers and Offences) Act. However, there can be no error in the exercise of discretion by reason of legislation which was not then enacted, no differently from any other fact which did not exist at the time of sentencing: Khoury [2011] NSWCCA 118; 209 A Crim R 509 at [110] (Simpson J). 196This ground fails.

[37]

Ground 11: Sentence manifestly excessive, resulting undue grievance 197The relevant test in relation to "manifest excess" was restated in Papworth v R [2011] NSWCCA 253 at [53]-[55] (Hoeben J (as he then was) with whom Whealy JA and Simpson J agreed), and applied in Adzioski at [71]-[72] by Hoeben CJ at CL (with whom Slattery and Bellew JJ agreed) (most citations omitted): " ... 'The relevant test is relation to 'manifest excess' was restated in R v Hayek [2010] NSWCCA 139: "57...the task is not for this Court to decide whether it would have exercised its discretion differently. The applicant must demonstrate that the sentence was 'unreasonable or plainly unjust'." While consistency in sentencing is an important consideration and a desirable goal, this Court has repeatedly endorsed the principle in R v Morgan (1993) 70 A Crim R 368 that the relevant question on appeal is whether the sentences are within a proper range. It is not a question of whether other sentences can be said to be more or less lenient by undertaking a detailed analysis of other decided cases, as these often possess wide and divergent differences in their objective and subjective circumstances to which the sentencing judge may have attached particular weight. In Hili v The Queen [2010] HCA 45 the plurality reiterated at [54] - [55] the limited value of statistics and previously decided cases in the sentencing process. They concluded: "59 As was said in Dinsdale v The Queen, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that 'the sentence imposed in these matters is so far outside the range of sentences available that there must have been error'."' It follows that to make out this ground, the applicant must satisfy the Court that the sentence imposed was unreasonable or plainly unjust. The focus of the applicant's submission is the starting point of the sentence before the 25 percent discount. Such an approach deflects attention from the proper question. The question for this Court is whether the sentence actually imposed was unreasonable." 198The appellant relies upon R v Chandler [2010] QCA 21, where a sentence of five years with a non-parole period of three years was imposed for a principal actor in the importation of pseudoephedrine. However, Keane JA there pointed out at [15] that: "The learned sentencing judge identified the applicant's early plea of guilty as the significant point in mitigation of sentence." 199The sentencing judge with respect correctly viewed the guilty plea in Chandler as significant. No case is established for the requisite unreasonableness or want of justice. 200It seems that the sentencing judge was not taken to them, but a comparison of other comparable sentences confirms the absence of any reviewable error. For example, in R v Tran [2011] NSWDC 105, a sentence of six years and three months with a non-parole period of four years was imposed in respect of the importation of 1.818 kg of pseudoephedrine, where there was a late plea of guilty, evidence of remorse (see at [48]), good prospects of rehabilitation (see at [27], [41]) and the sentencing judge was not persuaded (to the criminal standard) that Mr Tran was the central person involved (see at [37]). Mr Tran was 30 years old at the time sentence was passed. On the other hand, in R v Seriban (Supreme Court of the Northern Territory, Martin CJ, 16 March 2009, unreported) and R v Petras (Supreme Court of the Northern Territory, Angel ACJ, 30 January 2009, unreported) sentences of 15 and 12 years, respectively, each backdated by approximately a year, were imposed in respect of a conspiracy to import some 10 kilograms of pseudoephedrine. In the case of Petras, there was a plea of guilty at the earliest opportunity. Although all cases have their own distinguishing features, they may provide a useful yardstick (Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [304]). Those three examples illustrate the absence of unreasonableness or want of justice in the sentence imposed upon the appellant. 201To the extent that, in oral argument, a submission was advanced challenging the backdating of the sentence, the Crown accepted that because the appellant had been in custody between 25 September 2008 and 21 January 2009 (a period of four months and six days), it would be appropriate to backdate the sentence to take account of those periods in custody. The sentencing judge did so, but not fully. Her Honour formed the view that that was not called for, saying: "Already backdating it to 13 November 2011 provides a degree of partial accumulation to reflect totality because otherwise he would not have been due for release to parole until 11 November 2008 and on this basis he had been given full credit for the full four months and six days he spent in custody, bailed refused, following his arrest." 202No error is disclosed by this aspect of her Honour's decision. This ground fails.

[38]

Discretion to re-sentence 203The existence of not insignificant error in relation to grounds 5 and 6 warrants a grant of leave to appeal against sentence. However, that does not dictate that the appellant be re-sentenced. On the facts of this case, it would be wrong to do so. The second threshold question for this Court is whether it is of the opinion that "some other sentence ... is warranted in law and should have been passed". There has been an error as to one factual matter which was not proven beyond reasonable doubt by the sentencing judge. True it is that her Honour referred to it twice, and this Court has proceeded on the basis (favourable to the appellant) that it may be regarded as a material matter to her decision. However, the essential question for practical purposes is whether some lesser sentence is warranted in law. The short point is that in light of the nature of the criminal enterprise, the level of the appellant's involvement in the crime, and his criminal background including his breach of his bail conditions, the appellant's sentence could easily have been more severe. That is confirmed by the comparable sentences referred to above. At the very least all members of the Court are positively satisfied that no lesser sentence is warranted in law. 204One thing should be added for completeness. It is true that the discretion reposed in this Court falls to be exercised in light of the legislative regime as it currently stands, which includes the 2012 federal legislation the subject of ground 10 of the sentence appeal: see Douar [2005] NSWCCA 455; 159 A Crim R 154 at [121]-[124] (Johnson J, with whom McClellan CJ at CL and Adams J agreed); Baxter [2007] NSWCCA 237; 173 A Crim R 284 at [6]-[7] (Spigelman CJ, with whom Latham J agreed). However, the fact that parole is no longer automatic, but now involves an assessment of the offender's behaviour, is not a matter which operates in the appellant's favour so as to cause any different exercise of discretion. 205In those circumstances, were this Court to re-sentence, the result would be at best a minor adjustment. The authorities clearly state that it is not appropriate to re-sentence merely to make a minor adjustment. 206Leave to appeal against the sentence should be granted but the appeal should be dismissed. 207Accordingly, the orders of the Court are: (1)Leave to raise ground 15 of the conviction appeal is granted. (2)Leave to raise grounds 1, 2, 3, 4, 5, 6, 7, 10, 12 and 13 of the conviction appeal is refused. (3)The appeal against the appellant's conviction on 23 January 2012 is dismissed. (4)Leave to appeal against the sentence imposed on 23 January 2012 is granted. (5)The appeal against the sentence imposed on 23 January 2012 is dismissed.

Matthews v R

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Judgment (39 paragraphs)

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Legislation Cited (4)

Cases Cited (50)

Cited By (13)