R v Handlen [2015] QCA 292

SUPREME COURT OF QUEENSLAND

CITATION: R v Handlen [2015] QCA 292

PARTIES: R v HANDLEN, Dale Christopher (appellant)

FILE NO/S: CA No 80 of 2014 / SC No 87 of 2012

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: Supreme Court at Brisbane – Unreported, 28 March 2014 (Conviction); Unreported, 10 April 2014 (Sentence)

DELIVERED ON: 18 December 2015

DELIVERED AT: Brisbane

HEARING DATE: 4 September 2015

JUDGES: Chief Justice and Margaret McMurdo P and Gotterson JA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: The appeal against conviction is dismissed.The application for leave to appeal against sentence is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant was charged with two counts of importing a commercial quantity of border controlled drugs (counts 1 and 6); possessing a commercial quantity of border controlled drugs (count 2); and attempting to possess a commercial quantity of border controlled drugs (count 7) – where the appellant was found not guilty on counts 1 and 2 and guilty on counts 6 and 7 – where the appellant was sentenced to 27 years imprisonment with parole eligibility after 18 years – where counts 1 and 2, where the appellant was acquitted, related to the first importation of drugs into Australia from Canada – where counts 6 and 7 related to a subsequent importation of drugs into Australia from Canada – where the subsequent importing involved concealing drugs in used computer monitors – where unknown to the offenders, customs officials discovered drugs inside a monitor in the subsequent shipment – where they alerted federal police who found 135.7 kilograms of powder in packages in the monitors which was analysed to be cocaine of 69 to 79 per cent purity totalling 103 kilograms of pure cocaine – where they also found 121,291 tablets containing a mix of 3, 4-methylenedioxymethamphetamine and methamphetamine – where the police removed the drugs and replaced them with packages of a harmless substance, recreating the original appearance – where police began surveillance of the group and placed intercepts on their mobile phones – where the appellant contends that the jury verdicts were inconsistent, particularly with respect to count 6 – whether the guilty verdicts on counts 6 and 7 were inconsistent with the not guilty verdicts on counts 1 and 2 / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES – where the evidence led at trial included conversations contained in telephone intercepts where the parties to the calls were not themselves called to give evidence or made available for cross-examination; evidence of discreditable conduct involving the appellant’s co-offender; and evidence of the appellant’s alleged accomplice who gave evidence implicating the appellant – where the appellant contends that the judge erred in allowing that evidence to be given at trial and this has caused a miscarriage of justice – whether there was a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to 27 years imprisonment with parole eligibility after 18 years – where the appellant contends that the judge erred in finding that the appellant occupied a position of authority over the co-offenders and acted in a management role – where the appellant contends that the sentence is manifestly excessive – whether the sentence imposed is manifestly excessive / Crimes Act 1914 (Cth), s 21E(1) / Evidence Act 1977 (Qld), s 130, s 132(c) / Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39, cited / Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited / Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, cited / C v The Queen (2013) 229 A Crim R 233; [2013] NSWCCA 81, cited / Cheung v The Queen (1997) 97 A Crim R 283, cited / Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, cited / Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51, related / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3, cited / MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, cited / R v Campillo Vaquere [2004] NSWCCA 271, considered / R v Flavel [2001] NSWCCA 227, considered / R v Gonzalez-Betes [2001] NSWCCA 226, considered / R v Handlen & Ors [2012] QSC 317, related / R v Handlen & Paddison (2010) 207 A Crim R 50; [2010] QCA 371, related / R v Handlen, Nerbas and Paddison, unreported, Supreme Court of Queensland, Byrne SJA, SC No 73 of 2008, 9 May 2008, related / R v Jackson (2003) 138 A Crim R 148; [2003] QCA 31, cited / R v Meggett (1999) 107 A Crim R 257; [1999] NSWSC 606, cited / R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199, related / R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, considered / R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, cited / R v Perry [2011] QCA 236, related / R v Yuan [2015] NSWCCA 198, considered / Shen v The Queen [2009] NSWCCA 251, related / Subramaniam v Public Prosecutor [1956] 1 WLR 965; [1956] UKPC 21, considered / Vanit v The Queen (1997) 190 CLR 378; [1997] HCA 51, cited / Wang v R [2010] NSWCCA 319, cited / Wangsaimas, Vanit and Tansakun v R (1996) 6 NTLR 14; (1996) 133 FLR 272; [1996] NTCCA 58, cited

COUNSEL: W Terracini QC, with E Nicholson, for the appellant/applicant / W J Abraham QC, with B J Power, for the respondent

SOLICITORS: Burchill & Horsey Lawyers for the appellant/applicant / Director of Public Prosecutions (Commonwealth) for the respondent

CHIEF JUSTICE: I agree with the reasons of McMurdo P and the orders she proposes.

MARGARET McMURDO P: The appellant, Dale Handlen, was charged under the Criminal Code (Cth) with two counts of importing a commercial quantity of border controlled drugs (counts 1 and 6); possessing a commercial quantity of border controlled drugs (count 2); and attempting to possess a commercial quantity of border controlled drugs (count 7). On 28 March 2014 after a 10 day jury trial, he was found not guilty on counts 1 and 2 and guilty on counts 6 and 7. On 10 April 2014 he was sentenced to 27 years imprisonment with an order that he be eligible for parole after 18 years. Pre-sentence custody of 2,760 days between 20 September 2006 and 10 April 2014 was declared as time served under the sentence.

He has appealed against his convictions on two grounds. The first is that the jury verdicts were inconsistent, particularly with respect to count 6. The second is that the primary judge wrongly allowed the following evidence to be given at trial:

Hearsay evidence contained in the telephone intercepts where the parties to the calls were not themselves called to give evidence or made available for cross-examination;

Evidence of discreditable conduct involving his alleged co-offender, David Shen;

Evidence of his alleged accomplice Matthew Reed in circumstances where Reed’s account of events had been led by investigating police officers and his evidence ought to have been viewed as so unreliable that it ought not to have been placed before the jury; and

That these errors, individually and in combination, caused a miscarriage of justice.

He has also applied for leave to appeal against his sentence contending that the primary judge erred in finding that he occupied a position of authority over Reed and Dennis Paddison or was acting in a managerial role over Reed, Paddison and Kelsey Nerbas and in finding that Reed’s position in the hierarchy was below that of the appellant; and that the sentence was manifestly excessive in all the circumstances.

Before discussing the various grounds of appeal, I will summarise the evidence at trial.

The evidence at trial

The prosecution case on all counts substantially turned on the evidence of Reed. The prosecution alleged that the appellant procured and otherwise aided Reed and others to import two shipments of large quantities of ecstasy, methamphetamine and cocaine from Canada into Australia by hiding the drugs inside cathode ray tubes in used computer monitors. Reed was sentenced in April 2007 to 12 years imprisonment with a non-parole period of eight years. He was due for parole in September 2014. His sentence was reduced because he gave an undertaking to give evidence against the appellant, as well as alleged co-offenders Nerbas, Paddison and Shen. But for that co-operation the sentencing judge stated that Reed would have been sentenced to 24 years imprisonment with a non-parole period of 16 years.

Reed’s evidence included the following. He worked for a computer recycling company in Vancouver, Canada. A fellow employee, T J Johal, introduced him to the appellant. They discussed the possibility of sending a shipping container to Australia containing drugs concealed in used computer monitors. At the appellant’s request Reed prepared a budget for the venture and presented it to the appellant at a meeting where Tom Varga was also present. TJ, Varga, Reed and the appellant were to share equally in the proceeds. The appellant gave him a few thousand dollars in cash to purchase a large number of used computer monitors. In late December 2005 Reed, TJ and the appellant leased a warehouse in the name of a legitimate business operated by TJ, Cyberdesk. In early 2006 the three met at the warehouse to pack the most suitable used computer monitors with drugs. They were assisted by Paddison and his father-in-law. They cut into cathode ray tubes in the monitors and placed packages of drugs inside the tubes before resealing them. Sometimes this was done at the warehouse; at other times the computers were taken away, packed with drugs and later returned. In all, 480 computer monitors were placed on plastic-wrapped pallets.

Reed and the appellant travelled to Australia in early April to rent a warehouse to store the computers on arrival. Reed’s friend in Brisbane, Nerbas, rented a unit for them at Spring Hill. The appellant gave Reed money to buy their air tickets. At the appellant’s direction, Nerbas registered a company, Reliable Computer Conversions Pty Ltd, of which he and Reed were directors. Reed and Nerbas established a bank account for their company to which they were both signatories. Nerbas was not initially aware of the drug importation but later the appellant told him of their plan.

A real estate agent showed Reed and the appellant a number of possible warehouses. Ultimately they selected one at Newman Road, Geebung. Nerbas and Reed signed the lease for the warehouse and Nerbas paid the security deposit with money the appellant had arranged for Paddison to transfer from Canada to Nerbas’s account in Brisbane. The prosecution tendered bank records showing four transfers of funds totalling $20,450.00 into Nerbas’s account in May 2006.

Reed arranged the freight of the first monitors from Vancouver to Australia. In Brisbane he engaged the assistance of customs brokers, Nick Wallace and Trent Barratt. Reed provided them with a bill of lading and an invoice for the sale of 480 monitors from Cyberdesk to Reliable Computer Conversions. As there was a delay in the container arriving in Brisbane, the appellant contacted a union official, David Perry, to assist in clearing the container more quickly through customs in Brisbane. After first telephoning Perry to clarify that he was willing to assist, he told Reed to phone Perry. Reed phoned him, explained the problem, and asked him to assist in securing the arrival and clearance of the container in Brisbane by dealing directly with the customs brokers.

Reed gave evidence that the container was later delivered to the Geebung warehouse. The appellant, Nerbas and Reed used a forklift to transfer the pallets in the warehouse. The appellant told Reed to leave the monitors packed on the pallets until those who were to receive the drugs were ready for them. About a week later all three returned to the warehouse with tools to remove the drugs. Reed recognised some of the packages as similar to those he had seen packed in Canada but others were unfamiliar. The appellant put some packages into a shopping bag, saying that they were samples for clients. The remaining drugs were hidden behind the pallets. Later Reed saw the appellant open a package on the dining room table in the unit Reed and the appellant shared and pills spilt out. The appellant told Reed that someone would come to collect the samples. A couple of days later an older Asian man, “Frank”, came with the appellant to the unit and left with the shopping bag. Other identification evidence established that “Frank” was Shen.

A few days later, Nerbas and Reed returned to the warehouse with two duffle bags in which they put the remaining drugs. They took the drugs to a North Quay apartment where Reed was now living on his own. The appellant met them there and made some phone calls. Two young Asian men arrived and took four silver packages of drugs. The appellant told Reed to wait at the apartment for Shen’s employees who would take the remainder of the drugs. The appellant told Reed to count the packages of pills at the handover. Reed counted 285 packages. Eventually Shen’s employees arrived and took the packages contained in the duffle bags. These events constituted counts 1 and 2.

Reed also gave evidence that in mid-June he and the appellant returned separately to Canada. The appellant told Reed and Nerbas that there would be further similar shipments. Later the appellant told Reed that, on the advice of either Perry or Shen, they would send a second shipment of computer monitors without drugs to deflect any suspicion from the authorities and then follow this with a subsequent shipment with drugs. The appellant and TJ purchased more monitors for the shipments while Reed again contacted the customs brokers. Reed, the appellant and Paddison were involved in the packing and loading of the second shipment which did not contain drugs. Reed again made the shipping arrangements. The drug-free importation took place at the end of July 2006.

Reed assisted the appellant to move some monitors for the subsequent shipment to Paddison’s garage in Canada. He saw the appellant open a package which contained white powder. It looked similar to the packages in the first shipment. Reed later assisted in moving the monitors from Paddison’s house to the warehouse where he, Paddison and another man unloaded them onto pallets with other monitors which did not contain drugs. The monitors with drugs were identified with stickers.

At about the time the subsequent container was consigned to Australia, Reed flew to Brisbane on an air ticket purchased with cash provided by the appellant. Reed and the appellant were concerned about what to do with the computer monitors involved in the first shipment. At the appellant’s suggestion, Reed rented storage space to which he and Nerbas moved the monitors until they could be destroyed. On the appellant’s instructions, Nerbas and Reed travelled to Sydney to collect $50,000 from Shen. At Reed’s request Shen later transferred another $10,000 to a bank account. The second shipment of monitors arrived and was unloaded into the Geebung warehouse. Paddison, who had by now travelled to Australia, helped unload that shipment. The appellant travelled to Australia on 6 September and telephoned Reed to tell him he was in Sydney.

Unknown to the offenders, customs officers had discovered drugs inside a monitor in the subsequent shipment. They alerted federal police who found 135.7 kilograms of powder in packages in the monitors. The powder was analysed and found to be cocaine of 69 to 79 per cent purity totalling 103 kilograms of pure cocaine. They also found 121,291 tablets containing a mix of 3,4- methylenedioxymethamphetamine and methamphetamine. They removed all the drugs and replaced them with packages of a harmless substance, recreating the original appearance.

Police then began surveillance of the group and placed intercepts on their mobile phones. The prosecution case was that this surveillance and telephone intercept evidence implicated them in the importation.

On 12 September Reed rang Paddison and said that the container had “got the green” and was going into fumigation for 24 hours; they would “work on Thursday morning”. The following day Paddison rang Reed who told him that there had been a hold up until Friday. On 14 September Paddison rang the appellant who told him “I sent ding dong¹ an email this morning I want him to check it before you guys work tomorrow … so tell him to check his email today … It’s basically just hush hush get the work done and no no talking at work you know what I mean … around work and then just we’ll have fun after that well you know … I’m making a couple of inquiries over why it took so long so we’re not gunna work until I get an answer back”.

In a series of recorded phone conversations later that day, Reed and the appellant discussed the delay with the fumigation. Reed said to the appellant, “Well yeah but if our guys don’t know anything about it like how’s it well if I don’t know anything about that”. The appellant told Reed, “Well just leave it alone just whatever it is leave it … and when it arrives don’t talk around it don’t do anything just put it away I just finished having this conversation”. The appellant chided Reed for calling him from his mobile phone. Later he told Reed that he should have set up a customer number to call his work number and that he should now “call yourself have the customer call a couple of times”. He told Reed to turn off his phone and pull out the battery.

In a recorded conversation on Friday 15 September, Reed told the appellant that he had looked up the “government procedures” for clearing containers. They would have to open the doors of the container, which, he said, caused him difficulty in not being paranoid. The appellant told him not to worry saying, “the guy that closed the doors originally is gunna be with ya”. Later that day Reed rang the appellant and told him that the container delivery had now been delayed until Monday.

On Saturday 16 September, the appellant phoned Paddison who complained about having to wait. The appellant said, “But I had a meeting about that it’s all kosher … so I was really concerned about it … I’m not anymore”. Later that day the appellant phoned Shen and told him that the “meeting” was on Monday morning; he had a report that there were well-publicised problems which were “across the board”. His contact did not think it was an issue.

On 17 September Nerbas and Reed drove to the Gold Coast and met the appellant and his wife. Reed told the appellant that he needed to pay the customs brokers their fees and outlays. The appellant gave him $5,000 cash.

The container was delivered to the warehouse on Monday 18 September. At about midday, Reed and Paddison caught a train to Geebung and walked to the warehouse. They used the forklift and opened the container. They noticed that the contents were disordered. They unloaded the pallets before phoning the appellant to tell him of their concern. Reed said they were “just in [the] middle of work here…I don’t like it”.

That afternoon police followed the appellant and his driver from the Gold Coast to the Colmslie Hotel where the appellant met Perry. The appellant phoned his driver and told him to phone the appellant’s wife and say three times, “everything’s awesome”. That evening Shen rang the appellant who told Shen that they had gone “through it with a … fine tooth comb” but it was a “clean bill of health”.

That same evening, Reed, Paddison and the appellant met at Gambaro’s restaurant, Petrie Terrace. They hugged and appeared jubilant. The appellant asked Reed to come to a nearby small side street. He took Reed’s mobile phone which Reed had used to call the appellant from the warehouse and destroyed both it and its SIM card. The appellant told Paddison and Reed to go to the warehouse again and look inside the monitors to make sure the drugs were there.

On the afternoon of 19 September, the appellant rang Shen and told him he was waiting for his friend to do some research and he should know by the end of the day. Shen rang him back later that night and said that he needed to know whether to “buy the ticket or not”. The appellant replied that everything had been taken apart and put together in disarray. This was a good sign because if “they” were intending anything “they” would have put it back exactly as it was. The appellant said that, “the guy that … put them together” had been there and had advised that they had not been touched but were “in different places that’s all”. The appellant told everybody to relax until his friend gave him the word on what happened; he would probably get that information the next morning.

Early the next afternoon the appellant met with Perry and Reed at the Jubilee Hotel. After that meeting the appellant phoned Reed and confirmed that Reed and Paddison should “go take a peek.”

Paddison and Reed then went to the warehouse. They left two suitcases at their hotel. They were large enough to carry the drugs which Paddison told them would weigh around 130 kilograms. They caught the train to Geebung and walked to the warehouse with cleaning products. They were keen to avoid leaving fingerprints. The police had installed a camera inside the warehouse which captured them putting on gloves, moving objects, lifting a computer monitor and making screwing or unscrewing motions. Reed gave evidence that they used a screwdriver to undo the casing of a monitor. The video surveillance showed Paddison looking inside, shaking his head, and replacing the casing; they all then immediately left. The entire episode took about eight minutes. Police arrested Paddison and Reed at the Geebung train station and the appellant later that evening. Police found a printed email in the appellant’s shoulder bag from “Emilio Ojibwa” to [email protected] dated 15 September 2006 advising the details of the ship, the container of used computer monitors and its then location at a container depot in Brisbane. Reed gave evidence that the appellant sent him this email and that the names were fictitious. The printed email had hand-written notes on it including “x-ray” “in” “in/out” and the numbers “7-9-12.” Perry’s fingerprint was found on it.

Police seized the computer monitors from both the first and subsequent shipments. One monitor from the first shipment had Paddison’s fingerprint on the inside of its outer casing. Police found 698 tablets in another monitor from the first shipment, apparently overlooked by the offenders. These tablets were similar but not identical to those seized from the subsequent shipment.

The appellant did not give or call evidence. The defence case was that Reed was not a reliable or truthful witness. He gave the police the story that they wanted, so as to gain an advantage for himself by falsely implicating the appellant. The prosecution could not establish beyond reasonable doubt that the evidence upon which they relied as supporting Reed’s evidence did not have a completely innocent explanation, namely that the appellant believed he was involved in a legitimate business enterprise of importing used computers for recycling.

Appeal against conviction

Inconsistent verdicts

The appellant contends that the not guilty verdicts on counts 1 and 2 are inconsistent with the guilty verdicts on counts 6 and 7, particularly count 6, in that they are an affront to logic and reasonableness, strongly suggesting a compromise in the performance of the jury’s duty. They cannot be interpreted as a merciful verdict. Reed’s evidence was at the centre of all four charges and was supported by other evidence on all four charges. The jury’s rejection of his evidence on counts 1 and 2 meant that they should also have rejected it on counts 6 and 7. The respondent contends that there was enough evidence to convict the appellant on counts 6 and 7 without Reed’s evidence. The appellant, however, contends that he could not be convicted on any count unless the jury were persuaded that Reed’s evidence was reliable on that count beyond reasonable doubt. He further contends that there was independent evidence supporting Reed’s evidence in relation to both the first importation which occurred between 6 April and 29 May 2006 (counts 1 and 2)² and the subsequent importation which occurred between 7 July and 8 September 2006 (counts 6 and 7), and that some evidence concerning counts 6 and 7 including evidence of the intercepted telephone calls³ could be used as evidence on counts 1 and 2.⁴ Even accepting all those aspects of the appellant’s contentions, the nature and quality of the evidence supporting Reed’s evidence on counts 1 and 2 were not as persuasive as that on counts 6 and 7. And the aspects of the evidence concerning counts 6 and 7 which could be used to support counts 1 and 2 was much less persuasive and not as compelling when compared to the overwhelming case against the appellant on counts 6 and 7.

The appellant’s contentions are well made but the judge correctly directed the jury in strong terms about the dangers of convicting on Reed’s evidence unless it was supported in a material way by independent evidence implicating the appellant on each count. The judge also told the jury to consider each count separately and to evaluate the evidence in relation to each count in deciding whether they were satisfied the prosecution had proved the appellant’s guilt in relation to that particular count beyond reasonable doubt. Her Honour properly advised them that the evidence in relation to each count was different and their verdicts need not be the same on each count. There is no complaint about the quality of the primary judge’s directions.

It follows from those strong directions and the review I have undertaken of the evidence that the not guilty verdicts in respect of the charges relating to counts 1 and 2 were not necessarily a rejection of Reed as a credible witness. They can be seen as the result of the jury’s unpreparedness to act on Reed’s evidence on counts 1 and 2 beyond reasonable doubt because the independent evidence supporting that evidence was not as strong as it was on counts 6 and 7.

The differences in the quality of the evidence relating to counts 1 and 2 on the one hand, and counts 6 and 7 on the other, are as follows. First, the bulk of the drugs allegedly imported in counts 1 and 2 was never found by police. By contrast, the evidence relating to counts 6 and 7 was that Reed and others imported and attempted to possess the drugs actually found by police inside the monitors, namely 121,000 ecstasy tablets with a pure weight of 7.6 kilograms; 1.085 kilograms of methamphetamine; and 135.7 kilograms of cocaine with a pure weight of just over 103 kilograms. Second, once the authorities had detected those drugs, they carried out electronic and visual surveillance of the appellant and his co-offenders which provided direct evidence as to the appellant’s conversations and interactions with others, implicating him in counts 6 and 7. This gave strong support to Reed’s evidence on counts 6 and 7. Whilst some of this evidence was also capable of supporting Reed’s evidence on counts 1 and 2, it primarily confirmed his evidence on counts 6 and 7. For example, telephone intercept recordings clearly demonstrated that the appellant liaised with Shen, the ultimate purchaser of the drugs in counts 6 and 7, in a way that demonstrated they had a shared interest in the imported drugs which were to be delivered to Shen. They showed that the appellant was anxious about the cause of the delay in the release of the computer monitors. They established that he gave instructions to Reed and others as to how to proceed, what to do once the monitors arrived, and how to unpack the drugs. The telephone intercept recordings suggested that the appellant was responsible for the expenses of the subsequent importation (counts 6 and 7). His speaking in code, his instructions to his co-offenders, his surreptitious use of telephones and his attempt to manufacture an innocent explanation, in combination all suggested that he knew of the need to conceal what they were doing and that he was doing all he could to conceal it.

The evidence of the covert police surveillance was consistent with the appellant taking a leadership role in the commission of counts 6 and 7 when there was no such evidence on counts 1 and 2. Reed and Paddison went to the warehouse to which the subsequent container of computers was delivered (counts 6 and 7) after the appellant telephoned Reed who said, “Yeah we’ve got everything we need we’re just gunna head out”. Earlier that afternoon Reed purchased cleaning materials, cloths and gloves. The appellant told him to “go take a peek.” Surveillance footage at the warehouse showed Reed, and Paddison carrying a shopping bag, unloading and inspecting a computer monitor. The telephone calls and surveillance of meetings between the appellant and his alleged co-offenders two days earlier suggested that they had received promising news about the container. There was evidence that the appellant met with the would-be purchaser of the drugs, Shen, and that the appellant then met with Perry to ascertain if there were any problems with the delivery of the container. The appellant’s conversations and conduct recorded in telephone calls and surveillance were inconsistent with his involvement in an innocent importation of the computer monitors with which counts 6 and 7 are concerned. When he was arrested, he was in possession of a printed email setting out the transportation details for the subsequent importation with handwriting detailing concerns about the goods being x-rayed. This was powerful incriminating evidence supporting Reed’s testimony on counts 6 and 7. There was no comparable evidence on counts 1 and 2.

The quality and quantity of independent evidence on counts 6 and 7 supporting Reed’s evidence on those counts was much more compelling than that on counts 1 and 2. An exceptionally careful jury, following the judge’s directions and keen to ensure the appellant was given the benefit of any doubt at all, may not have been prepared after a review of the evidence to convict him on counts 1 and 2, yet felt completely persuaded beyond reasonable doubt of his guilt on counts 6 and 7. In finding the appellant not guilty on counts 1 and 2 the jury were unable to accept Reed’s evidence beyond reasonable doubt but that did not mean they found his evidence on counts 1 and 2 positively untruthful. There was nothing in their not guilty verdicts on counts 1 and 2 which compelled them to bring in not guilty verdicts on counts 6 and 7; the prosecution case was much stronger on counts 6 and 7. The verdicts are logically reconcilable and are not an affront to logic and common sense suggesting a compromise of the performance of the jury’s duty: see MacKenzie v The Queen.⁵ Once the evidence is fully reviewed, the verdicts can be seen as consistent. This ground of appeal is not made out.

Hearsay evidence in telephone intercept recordings where parties to the phone call did not give evidence

The appellant contends that the primary judge erred in not exercising the discretion under s 130 Evidence Act 1977 (Qld) or at common law to exclude the evidence of telephone intercept recordings of conversations between the appellant and others who were not called at the trial. He contends this evidence was inherently unreliable; the calls were not in context. The evidence unfairly deprived him of the opportunity to test the inferences relied on by the prosecution by way of cross-examination of the other party to the phone call; the jury may have given the evidence inappropriate weight; the evidence was of low probative value and, as hearsay evidence, was inherently unreliable. The appellant contends that to allow such hearsay evidence to be given was plainly contrary to legal principle.

The primary judge rejected the appellant’s application to exclude the evidence of his conversations with Taylor, Paddison and Shen.⁶ There was no application at first instance to exclude any conversations between the appellant and Nerbas, perhaps because these conversations were not of significance⁷ but in any case the legal principles to which I shall shortly refer are equally applicable to any conversations involving Nerbas.

At the hearing of the appeal, senior counsel for the appellant was asked to identify any error on the part of the primary judge in her ruling that evidence of this kind was admissible. He referred only to the judge’s reference to R v Perry,⁸ contending that these paragraphs were not authority for the proposition stated. He conceded, however, that the legal proposition cited was supported by Subramaniam v Public Prosecutor.⁹ The criticised passage of her Honour’s ruling was contained under the heading “The prosecution’s submissions” and stated:

“[16]As to the conversations to the category of conversations to which the defendant was not a party, the Crown argued that the hearsay rule is not engaged as they were relied on circumstantially, not testimonially: R v Perry [2011] QCA 236 at [30] – [35].”

The appellant’s contention is easily met. First, the criticised passage is in the judge’s summation of the prosecution’s submissions and was not expressly adopted by the judge. Second, the paragraphs in Perry to which her Honour referred may have been a typographical error. If the reference was to [30] to [39], it supports the proposition for which it was cited. In any case, the appellant does not contend that the statement of principle itself is incorrect, so that this submission goes nowhere.

As the prosecution submitted at the pre-trial hearing and in this appeal, and as the primary judge found, the evidence was admissible either as direct evidence of the appellant’s involvement in the offences, or as circumstantial evidence from which an inference could be drawn as to the existence, nature and scope of the alleged joint enterprise to import and possess border control drugs: Ahern v The Queen.¹⁰ The appellant has not demonstrated any error in the judge’s exercise of discretion to refuse to exclude this category of evidence.

Evidence of discreditable conduct involving Shen

The appellant contended that the primary judge erred in allowing the jury to hear evidence that Shen had agreed to co-operate; that police had visited him at the Parklea correctional facility;¹¹ and that he had pleaded guilty so that Reed had not given evidence at Shen’s trial in accordance with Reed’s undertaking.¹² There was a significant risk, the appellant contended, that the jury would be influenced by knowing that Shen was involved in the importation of border-controlled drugs and through the appellant’s association with him the jury may have unfairly used this evidence to conclude that the appellant was guilty of the offences with which he was charged. This error, the appellant contended, was compounded by the judge’s failure to direct the jury that Shen had not been charged with or pleaded guilty to the same offences as the appellant. Whilst the appellant’s counsel at trial did not object to the evidence or ask the judge to direct the jury in those terms, this was not fatal to the success of this ground of appeal. Nor should the appellant be disadvantaged by the fact that some of this information was revealed to the jury by defence counsel in cross-examination. The defence counsel’s failure to object to this evidence and his cross-examination was not a deliberate attempt to obtain a forensic advantage. It did not relieve the trial judge from her duties. Defence counsel seemed unaware that evidence was led that Shen had pleaded guilty.¹³ There was, the appellant contends, a real danger that the jury convicted, not on the admissible evidence, but because of improper considerations arising from this inadmissible evidence so that a miscarriage of justice has resulted.

Defence counsel at trial elicited in cross-examination that Shen had agreed to co-operate and had pleaded guilty to serious drug offences, with the result that Reed did not have to give evidence at Shen’s trial. In light of those answers, the fact that Shen was seen by police in a correctional centre was neither surprising nor especially damaging to the defence case. Defence counsel clearly made a rational forensic decision to ask those questions. The answers supported the defence argument that Reed spoke to police only when he realised that Shen had already spoken to them and was available to give evidence against him; Reed was giving a self-serving account which falsely implicated the appellant. The impugned defence questioning also left open the possibility that, as defence counsel submitted to the jury, Shen was not called in the prosecution case because his evidence did not incriminate the appellant.¹⁴

The primary judge raised the matter with counsel prior to closing addresses and with counsel’s concurrence directed the jury in these terms:

“…members of the jury, you heard some reference to Shen being arrested and pleading. You must not consider that as any evidence against this defendant’s guilt. It is entirely irrelevant for your deliberations in relation to the charges against this defendant.”¹⁵

In light of the conduct of the trial by defence counsel and the judge’s directions on the matter, the appellant has not demonstrated any miscarriage of justice. This ground of appeal is not made out.

The evidence of the alleged accomplice, Reed

The appellant contends that Reed’s evidence should have been excluded; it was obtained in circumstances where he was placed under pressure by police officers to co-operate. They informed him of the maximum penalty for the offences and the strength of telephone intercept evidence inculpating him. They told him that any delay in co-operating would lessen the benefit of his assistance. Police held out improper inducements by insinuating there were comparable cases suggesting the likely sentence he would receive if he assisted them. They suggested that if he assisted they would tell the sentencing judge of this. They repeatedly suggested to him that the appellant played a more dominant role and that Reed’s role was minimal. They told Reed the appellant was an offensive rude pig; that he would not stand by Reed and had been “bagging the crap” out of him and calling him a “cover boy”; that he had groomed Reed and played on the fact that he knew Reed’s father; that Reed was only 25, unworldly and influenced by the older appellant; that Reed could write himself a nice story as to how Reed came under the appellant’s influence; and that the appellant was “the fucking boss cocky … the syndicate head”, senior to everyone else.¹⁶ The appellant contended that the effect of the police statements to Reed was that his sentence would be reduced depending on the extent of his assistance to police in establishing that the appellant had the dominant role in the offending. As Reed’s account was improperly induced, it was potentially unreliable. For those reasons, the appellant contends, Reed’s evidence should have been excluded, notwithstanding the seriousness of the charges against the appellant. Questions of public policy were important as such police behaviour offends the dignity of the administration of justice and warrants the rejection of evidence obtained in this way.

The appellant, together with Nerbas and Paddison, unsuccessfully applied to have Reed’s evidence excluded on this basis at a pre-trial hearing before Byrne SJA in 2008.¹⁷ By way of explanation for the delay since that application, I note that the appellant was convicted of all four counts at his first trial in 2009. This Court dismissed his appeal against conviction and his application for leave to appeal against sentence.¹⁸ The High Court, however, upheld his appeal against conviction and ordered a retrial.¹⁹ The present appeal concerns his conviction and sentence on that retrial.

Byrne SJA noted that no arguably unreliable aspect of Reed’s evidence had been identified.²⁰ The police always made clear to Reed that they were only interested in the truth and told him that he might suffer adverse consequences if he did not tell the truth. There was no evidence that they sought to influence Reed to give false testimony. He was encouraged by police to implicate others and testify against them in respect of very serious criminal charges. By the time Reed spoke to police he had legal representation and he chose to participate in the police interview to take advantage of the “window of opportunity”. He expressly chose not to have lawyers present for some interviews but later he spoke to police in the presence of his lawyers including when he gave his witness statement.²¹ The police conduct did not contravene any statutory provisions, police guidelines or ordinary practices and the information he supplied was to be used only against others, not him, so that the police concessions of impropriety in offering Reed inducements to co-operate may not have been warranted. But even if there were improprieties, Reed gave evidence at his committal proceedings that the police statements did not influence his decision to give police a statement. Byrne SJA concluded that there was no reason to suppose the police conduct significantly contributed to Reed’s co-operation with them. His evidence was plausible, cogent and in many material respects corroborated. The police acted responsibly and in the interests of punishing serious criminal activity.²² In all these circumstances, Byrne SJA concluded that the Bunning v Cross²³ discretion was not engaged and refused to exclude Reed’s evidence.²⁴

Nerbas pleaded guilty on day nine of his trial but his plea was subsequently set aside by the Court of Appeal in 2011.²⁵ Nerbas, Paddison and the appellant again applied to exclude Reed’s evidence in September 2012. Dalton J dismissed the appellant’s application²⁶ finding it was an abuse of process as he sought the determination of points which had previously been determined between the same parties.²⁷ In any case, Dalton J considered that Byrne SJA’s reasons for refusing the application to exclude Reed’s evidence were correct.²⁸ There was no reason to reconsider that ruling.²⁹ There was no unfairness such as to warrant the exclusion of Reed’s evidence under s 130 Evidence Act.³⁰

The appellant has not demonstrated any legal or discretionary error in the approach taken by Byrne SJA or Dalton J in refusing the application to exclude Reed’s evidence.

The primary judge gave full and appropriate directions to the jury as to the danger of acting on Reed’s evidence without independent supporting evidence on each count.³¹ The significant body of independent evidence which supported Reed’s evidence on counts 6 and 7 makes unsupportable any contention that Reed’s evidence was unreliable. The appellant has not demonstrated that the admissibility of Reed’s evidence has resulted in any miscarriage of justice. This ground of appeal is not made out.

Conclusion on the appeal against conviction

As the appellant has not made out any of his grounds of appeal, the appeal against conviction must be dismissed.

The application for leave to appeal against sentence

The appellant contends that the judge erred in finding that he occupied a position of authority over Reed and Paddison, acted in a management role over Reed, Paddison and Nerbas, and that Reed was below the appellant in the hierarchy. He also contends that the sentence was manifestly excessive.

The prosecution submissions at sentence

The prosecution submissions at sentence emphasised the following. The potential street value of the MDMA and methamphetamine involved in counts 6 and 7 was $4.8 million; the cocaine was valued at around $120 million. The street value of the tablets was calculated at $40 per tablet which may be on “the high side” so that this valuation was indicative only. The street value of the cocaine was based on $350 per street gram at a purity of 30 per cent, consistent with the Australian Crime Commission’s Illicit Drug Data Report for 2005/2006. Increasing the street purity of the cocaine to about 38 percent would reduce the value of the cocaine to about $100 million. The subsequent importation involved about twice as many drugs as the first importation and whilst the first importation concerned drugs concealed in 15 monitors, the subsequent importation concerned drugs concealed in 33 monitors.

The appellant, who was 39 at the time of the offending and 47 at sentence and had no relevant criminal history, was instrumental in organising the subsequent importation from Canada. He arrived in Australia just before the drugs were due to arrive. He paid for Reed’s travel to Australia. He intended to bring further drug shipments to Australia. The evidence showed that Reed and Paddison were his subordinates and deferred to him. He had control over the finances. He was the only participant who dealt with Shen concerning the distribution of the drugs.

In support of these contentions the prosecution emphasised not only the text of the telephone intercept conversations involving the appellant and his co-offenders but also the appellant’s voice, tone and style of interaction which showed plainly that he was the dominant personality exercising authority over the others. In telephone call number 15 the appellant said that he wished Perry had been involved in the enterprise from the beginning. In telephone call number 18 the appellant made clear that he, not Reed, had control over the finances. These conversations demonstrated that the appellant was the supervisor and Reed the subordinate and that no expenses could be incurred without justifying them to the appellant. He was the only co-offender who, in co-ordination with Shen, had power over the disposal of the drugs in Australia.

The appellant’s acquittal on counts 1 and 2, the prosecution submitted, did not mean the jury considered Reed was lying; the verdicts were consistent with the jury not being satisfied beyond reasonable doubt as to his evidence on counts 1 and 2 because the corroboration on those counts was not as persuasive as on counts 6 and 7. Not guilty verdicts were not verdicts of innocence.

The prosecution referred to the sentences imposed on the appellant’s co-offenders. Reed pleaded guilty to both importations and played a substantial role, although subordinate to that of the appellant. Reed was sentenced to 12 years imprisonment with a non-parole period of eight years. But for his s 21E(1) Crimes Act 1914 (Cth) discount for his co-operation with law enforcement agencies and his giving evidence against his co-offenders, Reed’s sentence would have been 24 years imprisonment with a non-parole period of 16 years. That notional 24 year sentence took into account his subordinate role; early guilty plea; remorse; vulnerable personality and propensity to please those in adult authority, namely the appellant; and that the details of the charges arising from the first importation to which he pleaded guilty came largely from his own admissions. Such mitigation was not present in the appellant’s case.

Paddison was convicted at trial of charges arising from the first importation and pleaded guilty to the subsequent importation and attempted possession charges. He was sentenced to 19 years imprisonment with a non-parole period of 12 and a half years. His role in both importations was to conceal packages of drugs inside the computer monitors. He came to Australia in September 2006 to assist in recovering the drugs in the subsequent importation. His role, although critical, was “essentially functionary.” He had promising prospects of rehabilitation and made a belated statement of remorse.

Nerbas pleaded guilty to charges of possession and attempted possession of a commercial quantity of border controlled drugs relating to the two importations. In the subsequent importation he provided manual assistance in extracting and transporting what he believed to be drugs. He had good prospects of rehabilitation. He was sentenced to 15 years imprisonment with a non-parole period of 10 years.

The prosecution contended that the charges to which Shen pleaded guilty in New South Wales were so different to the appellant’s charges as to make Shen’s sentence of no real assistance.

The appellant had to be sentenced on the basis of his acquittals on counts 1 and 2 and that Reed, Nerbas and Paddison were sentenced for offences relating to both importations. But the appellant played a more significant managerial role in counts 6 and 7 than any co-offender and did not have their mitigating features. His sentence must be heavier than that of Paddison and Nerbas. He did not have Reed’s mitigating features which reduced Reed’s notional sentence to 24 years imprisonment. Unlike Reed, the appellant did not enter a guilty plea, timely or otherwise; he showed no remorse and did not co-operate with the authorities. He made no admissions of non-contentious matters at the commencement of his trial and many prosecution witnesses were called of whom the defence asked no questions. There was no reason to discount the lengthy sentence of imprisonment he must serve.

The prosecution handed up a Schedule of Sentences, contending that these demonstrated a sentencing starting point in cases comparable to the appellant’s of between 26 and 30 years imprisonment, with non-parole periods after more than 20 years, for a large scale single importation of drugs where an offender played a substantial role but acted under instructions or was subordinate to others. In support of that proposition the prosecution cited R v Meggett;³² C v The Queen;³³ and R v Cheung.³⁴ In R v Jackson³⁵ a sentence of 25 years imprisonment was imposed on an offender who pleaded guilty to playing a substantial role in the planning and carrying out of a large drug importation. Those who played an “executive” or “mid-level executive” role received terms of life imprisonment: R v Flavel;³⁶ R v Gonzalez-Betes;³⁷ R v Campillo Vaquere³⁸ and R v Wangsaimas.³⁹ A non-parole period of 25 years was imposed in Flavel;⁴⁰ who played a mid-level executive role in assisting Meggett to import a large quantity of narcotics. In Gonzalez-Betes,⁴¹ the offender was given a 22 year non-parole period and in Campillo Vaquere⁴² the offender received a non-parole period of 24 years. Wangsaimas⁴³ concerned another large scale drug importation. He pleaded guilty and co-operated with the authorities. He was the captain of the vessel involved and played a substantial role. He was sentenced to life imprisonment without parole. On appeal, his life sentence was maintained but a non-parole period was fixed at 22 years. His co-offender, Lee Vanit, also played a substantial “executive” role and pleaded guilty. He too was sentenced to life imprisonment. On appeal his life sentence was also maintained but a non-parole period was fixed at 25 years. The appellant, the prosecution conceded, should be sentenced to a lesser term of imprisonment than after his first trial (life imprisonment with a non-parole period of 22 years) when he was convicted of counts 1 and 2 as well as counts 6 and 7. Parity issues suggested that, like his co-offenders, he should have a non-parole period fixed after two thirds of his head sentence.

The defence submissions at sentence

Defence counsel at sentence contended that the prosecution’s suggested range of head sentences from 26 to 30 years imprisonment offended the principles expressed by the High Court in Barbaro v The Queen.⁴⁵ Such a sentence was higher than the notional sentence Reed received for charges relating to two importations. The parity principles required a much lower starting point.

The judge should not infer from the telephone intercept recordings, counsel submitted, that the appellant had any authority over Reed. The appellant’s dominant tone was consistent simply with their age disparity, his bombastic, imperious style, and with his investment in the legitimate business of Reliable Computer Conversions. Counsel emphasised that Paddison left Canada and came to Australia with a substantial amount of cash which he handed to the appellant; this did not suggest that the appellant was in a controlling or managerial role.

Whilst the defence accepted the prosecution submissions as to the quantity of drugs involved in counts 6 and 7, it did not accept their claimed street value. The jury verdicts were a rejection of all Reed’s evidence on counts 1 and 2 and meant that the appellant could not be sentenced on the basis that he was higher in the hierarchy than Reed. The jury verdicts were explicable on the basis that the appellant aided Reed in the subsequent importation and the appellant should be sentenced on that basis. The judge should accept Reed’s evidence only where it was independently supported by other evidence such as telephone intercepts. There was no evidence that the appellant supervised the attempt to retrieve the drugs; he was nowhere near the warehouse. He could not be punished for offences with which he was not charged. His offending spanned a substantially shorter period than that of his co-offenders who were sentenced for offences relating to the two importations. The intercepted telephone calls did not establish that the appellant was in a superior position or that he was in control of either the importation or his co-offenders.

The judge should find, counsel submitted, that the appellant provided funds for the legitimate computer business. In any case, Nerbas and Paddison also provided funding. He conceded that the intercepted telephone conversations were evidence that the appellant had contact with Shen but the appellant’s reference in telephone intercept call number 15 to two managers was in context a reference to Perry, or perhaps Taylor, and Shen, rather than himself.

Reed’s evidence, the defence emphasised, was that four participants (TJ, Reed, Varga and the appellant) were to share equally in 10 per cent of the wholesale value of the importation, whatever that might turn out to be.⁴⁶ This was no basis to infer that the appellant’s anticipated reward was commensurate with him having a leading role. The jury verdicts, combined with the plan for the appellant to share equally with others in the profits, meant that the judge could not conclude that Reed was subordinate to the appellant. The suggestion that Reed had a vulnerable personality and a propensity to please people in authority like the appellant could not be used to increase the appellant’s sentence as this would be to go behind the jury verdicts.

Paddison, like Reed, was convicted of offences relating to two importations; his plea of guilty to offences concerning the subsequent importation did not mean that the appellant should be treated less favourably. Paddison was convicted after a trial on the charges arising from the first importation to which he made a financial contribution.

As for Nerbas, his involvement was integral to the enterprise and he participated over the entire period of both importations. He aided Reed at least as much as the appellant and for the larger period covering both importations. His offending was at a similar scale to that of the appellant who should be sentenced accordingly.

Defence counsel referred to Shen’s sentence⁴⁷ of 11 and a half years imprisonment with a non-parole period of seven and a half years for a Commonwealth offence of trafficking in MDMA relating to the first importation and a New South Wales offence relating to the subsequent importation. He pleaded guilty, co-operated with the authorities and made a full confession. But for those matters he would have been sentenced to between 15 and 17 years imprisonment. The maximum penalty for both offences was life imprisonment. Shen’s convictions did not relate to cocaine.

The appellant, counsel submitted, should be sentenced to reflect parity with the sentences of his co-offenders but on the basis that he was involved in one importation only and that he did not have a supervisory or managerial role. Appropriate weight should be accorded to the jury verdict acquitting him on the charges relating to the first importation. He was involved in the funding and setting up of a legitimate computer business. The judge could not find that he managed the operation relating to the importation of illegal drugs from before the first importation. The most likely inference was that sometime after the first importation, he sought to be included and to share equally in the rewards. The judge should not act on Reed’s evidence which was extracted by police with inducements and contained substantial omissions, for example, he claimed he did not name his Canadian drug contacts because police did not ask him. The sentencing submissions in respect of the appellant’s co-offenders were not evidence against him. The appellant’s expertise in computers and his hands-on involvement was no greater than that of his co-offenders, particularly Reed who was essential to the enterprise and was involved for a much longer period. The appellant did not have an “executive” or “mid-level executive” role. The appellant’s involvement was comparable to that of Nerbas.

Defence counsel referred to s 132C(4) Evidence Act which requires a sentencing judge to be satisfied of any disputed allegation of fact on the balance of probabilities, taking in account any adverse consequences of finding the allegation to be true. Counsel pointed out that telephone call number 19 showed that Reed did not always follow the appellant’s directions; in defiance of the appellant he made his own enquiries about the shipment from the customs brokers.

As to the appellant’s antecedents, counsel stated that the appellant and his wife had been in a 24 year relationship. Since his arrest she had re-partnered and his wife’s daughter, now aged 27, who was raised by him since she was four years old, has married, had a child and was pregnant again. His incarceration has meant that he has missed out on this family life in Canada. He maintains contact with his family by telephone. He had a solid work history in the building industry. After his initial sentence, he ran the correctional centre wood shop for about three years. He taught prisoners skills in the building trade and manufactured doors and windows. As a sentenced prisoner he completed certificates in computers, woodworking and art but, once he reverted to a remand prisoner following his successful High Court appeal, he was unable to participate in these courses and was re-classified as high security simply because he was on remand. In serving his sentence as a foreign citizen without community ties, he will be unable to participate in work release or day release programs and, at best, will always be classified as a high security prisoner. Throughout his long sentence he will be separated by distance from his family whom he has not seen for seven and a half years so that any sentence will be harsher for him than for an Australian prisoner. For these reasons, a crushing sentence should not be imposed. The appellant, counsel contended, should not be punished for exercising his right to go to trial, especially as he was acquitted on the charges relating to the first importation.

The judge’s sentencing reasons

After referring to the charges on which the appellant was convicted and acquitted, the judge noted that the maximum penalty for both counts 6 and 7 was life imprisonment and/or a fine of $825,000. Relevant sentencing principles included the difficulty of detecting offences of this kind and the grave social consequences flowing from them. Deterrence must be given chief weight and stern punishment was warranted. Of significance was the large quantity of drugs involved and that the appellant knew what was being imported. The fact that count 7 was a charge of attempted possession was of no significance; he would have actually possessed the drugs but for the actions of the authorities in removing them from the monitors. Her Honour noted that, in making findings of fact, she was conscious of the high standard of proof required, bearing in mind the consequences. The prosecution submissions were not contrary to Barbaro.

When the total drugs involved in Reed’s two importations were considered, one third came from the first importation and two thirds from the subsequent importation in which the appellant was involved. Defence counsel conceded that the quantity of drugs involved in the appellant’s offending was substantial; it was one of the larger imports into Australia.

A critical dispute between the parties was the nature of the appellant’s role in the offending of which he was convicted. After setting out the competing contentions, her Honour noted that it was common ground the appellant initiated and pursued inquiries with Taylor and Perry as to whether there was anything untoward about the delay in the clearance of the container. Her Honour concluded that the intercepted telephone calls in evidence at trial revealed that the appellant repeatedly gave instructions as to the activities to be carried out by Reed and Paddison and that they sought instructions from him. They revealed that Paddison and Reed deferred to and took their cue from him. They were consistent with him being in a position of authority over them. The appellant’s tone and his words were not simply a bombastic and imperious personal style. The calculated context of the phone calls revealed that the appellant’s role went beyond mere advice; it illustrated the position of authority that he occupied.⁴⁸ The “two managers” reference in telephone intercept call number 15 was the appellant calling himself a manager. This was yet another occasion where he gave directions to Reed as to what he was or was not to do, with the appellant exercising a managerial role over him. Although Reed did not always follow precisely the appellant’s directions, as in telephone intercept call numbers 19 and 20, this did not detract from the appellant’s position of authority and control.⁴⁹

Her Honour found that the appellant communicated with Shen concerning the transfer of the shipment of drugs, adopting codes for that purpose. Telephone intercept call numbers 18, 29, 30 and 37 supported the finding that the appellant demonstrated control over the finances of the importation charged as count 6.⁵⁰ Her Honour was not satisfied as to the quantum of profit expected by the appellant but it was significant.⁵¹ Her Honour was satisfied that the appellant played an important role in the importation and attempted possession offences, both in the financing and in exercising a managerial role above Reed.

As to the attempted possession, the appellant clearly exercised authority over and gave directions and instructions to Reed and Paddison. A substantial deterrent sentence was required. The appellant did not have the benefit of a guilty plea, any co-operation with the authorities, or contrition. He would serve his lengthy period of imprisonment away from his homeland and family which would make it more onerous. These circumstances, however, were not exceptional and little weight should be placed on them.⁵² The appeal process has meant that the appellant has been ineligible for some rehabilitation and educational programs whilst in custody and, as he will be deported after serving his sentence, he is ineligible for a reduction in security risk assessment. That is something he shares with many of his co-offenders including Reed who faces the additional unpleasant aspect of protective custody. None of this had a crushing effect on the appellant who had conducted himself in prison in a way that positively addressed his future rehabilitation.⁵³

The principles requiring consistency with sentences imposed throughout the Commonwealth to reflect notions of equal justice was important, as was the need for reasonable consistency with the sentences imposed on the appellant’s co-offenders. After reviewing the sentences relied on as comparable by the prosecution, the sentences imposed on the appellant’s co-offenders and the submissions of counsel, her Honour concluded that the appellant’s culpability was greater than that of both Paddison and Nerbas.⁵⁴ Paddison was engaged in offending over a longer period but he pleaded guilty to two offences and although he provided some finance, his role was essentially functionary, taking instructions from others. Nerbas also engaged in repeat offending over a protracted period but he entered guilty pleas to all his offending and unlike the appellant played no role in directing or supervising others. Neither Paddison nor Nerbas, unlike the appellant, had any role in liaising with Shen, Perry or Taylor.

Her Honour noted that, unlike Reed, the appellant did not have the mitigating benefit of a guilty plea, youth, nor a vulnerable personality. Whilst the appellant was not involved in repeat importations, his managerial role in the larger importation and his position of authority over Reed and Paddison indicated a greater culpability. Reed had particular skills in used computers but his position in the hierarchy of offending was below that of the appellant.⁵⁵

As to the appropriate non-parole period, her Honour considered this must be determined having regard to the requirements of the justice of the case in all the circumstances. Her Honour sentenced the appellant to 27 years imprisonment with a non-parole period of 18 years.

The appellant’s contentions in the application for leave to appeal against sentence

The appellant contends that the judge erred in finding that he occupied a position of authority or a managerial role over his co-offenders and that he was above Reed in the hierarchy. The verdicts of acquittal on counts 1 and 2 meant that the jury were not satisfied the appellant was guilty of the charges arising from the first importation. The judge could not find facts at sentence inconsistent with those acquittals. As he was to be sentenced on the basis that he was not involved in the first importation, the judge could not have found he was in a position of authority and in a managerial role or that he occupied a position in the hierarchy above those who were involved in both importations. The judge was not permitted to take facts into account that were adverse to the appellant unless those facts were established beyond reasonable doubt: R v Olbrich,⁵⁶ Leach v The Queen,⁵⁷ and Cheung v The Queen.⁵⁸ As Reed was involved in both importations; initiated the idea of importing the drugs in the manner adopted; recruited others including Nerbas into the enterprise; and established the legitimate business used as a cover for the importations, the judge should have concluded that Reed was the principal offender. There was no evidence at trial that Reed was vulnerable in any particular way or that he or the other co-offenders were dependant on the appellant, other than perhaps financially. The evidence at trial supported a finding that Reed was equally involved with the appellant in the planning of the subsequent importation leading to counts 6 and 7. This error was of the kind identified in House v The King⁵⁹ and warranted appellate intervention.

Further, the appellant contends that the sentence was manifestly excessive having regard to the sentences imposed on his co-offenders. The appellant was found not guilty on counts 1 and 2, whereas his co-offenders were each sentenced for offending over a greater period of time and for more offences. With the exception of the assistance offered by Reed, their personal circumstances were not significantly different to those of the appellant. When the sentence imposed on the appellant is compared to the notional sentence that would have been imposed on Reed but for his co-operation, the appellant’s sentence is demonstrably excessive. He was convicted only of aiding, abetting, counselling and procuring the offences arising from the subsequent importation, but he was sentenced to a heavier sentence than Reed’s notional sentence for the two episodes of importation. The manifest excess of the appellant’s sentence is demonstrated by R v Yuan⁶⁰ and R v Nguyen; R v Pham.⁶¹ His sentence was unreasonable and plainly unjust and a lesser sentence is warranted in law.

The appellant contends the application for leave to appeal should be granted, the appeal against sentence allowed, and a lesser sentence more comparable to Nerbas’s sentence imposed.

Conclusion on the application for leave to appeal against sentence

The appellant’s submissions as to judicial fact finding on sentencing are misconceived in that they fail to reflect that the principles stated by the High Court in Olbrich and applied in Leach and Cheung have been modified in Queensland by s 132C Evidence Act. That section provides that if an allegation of fact is not admitted or is challenged in a sentencing procedure, the sentencing judge may act on the allegation if satisfied on the balance of probabilities that the allegation is true.⁶² The degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.⁶³ The term “allegation of fact” is widely defined and includes any information or evidence.⁶⁴

The primary judge had the benefit of hearing the evidence at the appellant’s 10 day trial. Her Honour was conscious of the applicable standard of proof required when fact finding on sentence and carefully considered the competing contentions. Her Honour was also astute to exclude from her consideration any evidence relating to the first importation in light of the appellant’s acquittals on counts 1 and 2. Her findings of fact were not inconsistent with the verdicts of acquittal. The judge was well entitled to conclude on the evidence at trial in respect of counts 6 and 7, for the reasons given by her Honour, that the appellant occupied a position of authority over Reed and Paddison; that he acted in a managerial role over Reed, Paddison and Nerbas; and that Reed’s position in the hierarchy was below that of the appellant. The most rational inference from the evidence at trial relating to counts 6 and 7 was that the appellant was higher in the hierarchy than Reed, Paddison or Nerbas and had managerial authority over them. The appellant has demonstrated no error in fact finding on the part of the judge. These aspects of the appellant’s contentions are not made out.

I turn now to the appellant’s contention that the sentence was manifestly excessive. As her Honour appreciated, sentences imposed on federal offenders should be broadly consistent throughout the Commonwealth. The subsequent importation in which the appellant participated was one of the largest importations detected in Australia. He was a mature man playing a managerial role, greater than the roles of his convicted co-offenders. His sentence of 27 years imprisonment with a non-parole period of 18 years was in line with those imposed for similar level offending in a single importation: see Flavel; Gonzalez Betes; Campillo Vaquere; Wangsaimas and the notional sentences but for co-operation (which was, of course, absent in the appellant’s case) referred to in R v Wang⁶⁵ and C v The Queen.

In submitting the sentence was manifestly excessive, the appellant relied on Yuan and Nguyen and Pham. Yuan was convicted after trial of importing 55 kilograms of methamphetamine. He pleaded guilty at an early stage. He played a significant role in the importation for financial gain. The potential wholesale value of the methamphetamine was between $13,768,920 and $17,211,150 and its retail value between $48,191,220 and $55,075,680. The New South Wales Court of Criminal Appeal found the original sentence of 10 years imprisonment with a non-parole period of six years was manifestly inadequate and increased it to 15 years imprisonment with a non-parole period of 10 years. Yuan is not a useful comparable sentence as the appellant’s case involved, in addition to large quantities of MDMA and methamphetamine, the importation and attempted possession of 103 kilograms of pure cocaine.

Nguyen and Pham was also a Crown appeal against sentence. Nguyen was originally sentenced to 14 and a half years imprisonment with a non-parole period of nine and a half years for importing 27.153 kilograms of pure cocaine and 13.04 kilograms of pure methamphetamine from Canada and other related offences. Pham was originally sentenced for attempted possession of the drugs to 11 years imprisonment with a non-parole period of seven years. Nguyen pleaded guilty a few months before trial. Both Nguyen and Pham were born in Vietnam. Nguyen was 42 and Pham 32 at the time of the offending. The drugs were concealed in foot spas which Nguyen imported through his beauty supplies business, specifically created for the drug trafficking. The estimated street value of the cocaine was between $15,516,285 and $24,438,150. Nguyen had obtained an ABN and registered two business names; taken a lease of commercial premises in Australia for two years at $22,000 per year; and set up a Yahoo email account. He paid to obtain clearance of the consignment; he booked accommodation; arranged for the consignment’s delivery; and used tools to cut the foot spa bases and remove the drugs. He played a significant role in the Australian end of the operation but was not the financier, principal organiser or entrepreneur. The role of the Canadian offenders was far more significant. He was not involved in acquiring, financing or shipping the goods to Australia. His role was the preparation for the reception of the drugs in Australia, their storage and, to a limited extent, their dispersal; it was not entrepreneurial. The use of his own name and telephone number showed a lack of sophistication. He was motivated to make money to pay off a gambling debt of at least $50,000.

Pham also played an overseer/ supervisor role, knowingly travelling from Canada to Australia to commit a serious drug offence. She pleaded guilty on the day of her trial. She attempted to possess more than 13 times the commercial quantity of cocaine and more than 17 times the commercial quantity of methamphetamine.

The New South Wales Court of Criminal Appeal found that both sentences were manifestly inadequate and substituted in Nguyen’s case an effective sentence of 18 years imprisonment with a non-parole period of 12 years and in Pham’s case a sentence of 15 years imprisonment with a non-parole period of 10 years. These sentences included a 15 per cent discount for Nguyen’s plea of guilty and a 10 per cent discount for Pham’s plea of guilty.

Like Yuan, Nguyen and Pham is of limited assistance as the quantity of drugs involved was much less than in the present case and they both pleaded guilty. Neither Yuan nor Nguyen and Pham, when considered with the comparable sentences relied on by the prosecution, demonstrate that the appellant’s sentence was manifestly excessive.

In sentencing co-offenders it is desirable that parity be maintained. It is true that the sentence imposed on the appellant is much harsher than the sentences imposed on any of his co-offenders even though, as he has understandably emphasised, he was convicted only of charges arising from the subsequent importation. But on closer analysis there are sound reasons for his heavier sentence.

Reed was a comparatively young man who pleaded guilty to offending arising from the two importations. Consistent with the jury verdicts, the appellant was not involved in the first, which concerned only one half of the quantity of drugs involved in the subsequent importation. The appellant had a managerial role in that importation. Reed pleaded guilty and had mitigating features which did not apply to the appellant. Reed’s notional sentence, taking into account his mitigating features other than his willingness to give evidence against the appellant and others, was 24 years imprisonment with a non-parole period of 16 years. Once it is appreciated that the appellant had none of these mitigating features and played a higher level role, Reed’s notional sentence supports that imposed on the appellant, even though the appellant, unlike Reed, was not involved in counts 1 and 2.

While Paddison was convicted after a trial of offences relating to the first importation, he pleaded guilty to the counts arising from the second importation in which he played a lesser role than the appellant. In those circumstances, his sentence of 19 years imprisonment with a non-parole period of 12 and a half years when compared to the appellant’s sentence does not create a justifiable sense of grievance on the appellant’s part.

Nerbas pleaded guilty to offences arising from both importations but his role was considerably less than that of the appellant. For those reasons his sentence of 15 years imprisonment with a non-parole period of 10 years does not give rise to a justifiable sense of grievance on the part of the appellant.

As for Shen, the primary judge rightly noted that the charges to which Shen pleaded guilty were very different to those of which the appellant was convicted. And unlike the appellant, he also co-operated with the authorities. Shen’s sentence does not assist the appellant.

The appellant’s sentence is supported by the comparable cases relied on by the prosecution and is not inconsistent with the sentences imposed in Yuan and Nguyen and Pham. It also sits comfortably with the sentence imposed on the appellant at his first trial after he was convicted of offences relating to both importations (life imprisonment with a non-parole period of 22 years). Although those convictions were ultimately set aside by the High Court,⁶⁶ that sentence was not found to be manifestly excessive in his earlier application for leave to appeal against sentence to this Court.⁶⁷ It supports his present sentence on counts 6 and 7 alone.

The appellant had nothing in mitigation other than that, as a Canadian national, his prison time would be more difficult than for an Australian national and he has made promising steps towards his rehabilitation whilst in custody. Those are not matters which can be given great weight when sentencing for an importation of this scale, and they also applied to Reed and Paddison. The appellant’s sentence is harsh. It is intended to be a stern warning to others. He will be in jail in a foreign country at least from the age of 39 until 57. The cases relied on by the prosecution demonstrate that heavy sentences are the norm for offending of this kind. Such sentences are imposed in the hope they will deter those who participate at this high level and on this large scale in the evil international drug trade for the chance of quickly reaping big profits, without regard to the damage it causes in the Australian community. The sentence imposed appropriately reflects the jury’s verdicts of acquittal on counts 1 and 2 arising from the first importation but also that offending of this kind is difficult to detect and is gravely anti-social. The appellant’s managerial role in this offending warrants the sternest deterrent punishment. The appellant has not demonstrated that his sentence was manifestly excessive.

Summary

The appellant has not made out any of his grounds of appeal against conviction or his proposed grounds of appeal if leave to appeal against sentence were granted. I propose the following orders:

The appeal against conviction is dismissed.

The application for leave to appeal against sentence is refused.

GOTTERSON JA: I agree with the orders proposed by McMurdo P and with the reasons given by her Honour.

Footnotes

¹ It is uncontested that “ding dong” was Matthew Reed.

² See MF1 “K”; AB, 1107 – 1121 and the primary judge’s apposite jury directions at AB, 634 and 635.

³ See AB, 98 and 1108.

⁴ See the judge’s directions to the jury at AB, 636, line 30 and AB, 637, line 47 – AB, 638, line 5.

⁵ (1996) 190 CLR 348, 367 – 368.

⁶ R v Handlen [2014] QSC 40 [46].

⁷ See AB, 962 and 963, Telephone Intercepts numbers 20 and 39 and compare the transcripts of those intercepts which do not record the presence of Nerbas.

⁸ [2011] QCA 236 at [30] – [35].

⁹ [1956] 1 WLR 965, 970.

¹⁰ (1988) 165 CLR 87.

¹¹ AB, 266.

¹² AB, 393 – 394.

¹³ AB, 611 and 618.

¹⁴ AB, 110.

¹⁵ Summing-up, 6; AB, 632.

¹⁶ AB, 83 – 88.

¹⁷ R v Handlen, Nerbas and Paddison, unreported, Supreme Court of Queensland, Byrne SJA, SC No 73 of 2008, 9 May 2008.

¹⁸ R v Handlen & Paddison [2010] QCA 371.

¹⁹ Handlen v The Queen; Paddison v The Queen [2011] HCA 51.

²⁰ Above, 14.

²¹ Above, 15.

²² Above, 18.

²³ (1978) 141 CLR 54.

²⁴ R v Handlen, Nerbas and Paddison, unreported, Supreme Court of Queensland, Byrne SJA, SC No 73 of 2008, 9 May 2008, 19.

²⁵ R v Nerbas [2011] QCA 199.

²⁶ R v Handlen & Ors [2012] QSC 317.

²⁷ Above, [22].

²⁸ Above, [24].

²⁹ Above, [25] – [58].

³⁰ Above, [59] – [60].

³¹ AB, 632 – 634.

³² (1999) 107 A Crim R 257.

³³ [2013] NSWCCA 81.

³⁴ (1997) 97 A Crim R 283.

³⁵ (2003) 138 A Crim R 148.

³⁶ [2001] NSWCCA 227.

³⁷ [2001] NSWCCA 226.

³⁸ [2004] NSWCCA 271.

³⁹ (1996) 133 FLR 272.

⁴⁰ [2001] NSWCCA 227.

⁴¹ [2001] NSWCCA 226.

⁴² [2004] NSWCCA 271.

⁴³ (1996) 133 FLR 272.

⁴⁴ Vanit v The Queen (1997) 190 CLR 378.

⁴⁵ (2014) 305 ALR 323; [2014] HCA 2.

⁴⁶ T4-38, lines 1 – 11 – T4-39, lines l3 – 21.

⁴⁷ Shen v The Queen [2009] NSWCCA 251.

⁴⁸ Sentence remarks, 6, lines 30 – 40.

⁴⁹ Above, 7, lines 5 – 11.

⁵⁰ Above, 7, lines 14 – 41.

⁵¹ Above, 8, lines 1 – 3.

⁵² Above, 8, lines 37 – 43.

⁵³ Above, 9, lines 4 – 6.

⁵⁴ Above, 11, line 40.

⁵⁵ Above, 12, lines 1 – 10.

⁵⁶ (1999) 199 CLR 270, [27] – [28].

⁵⁷ (2007) 230 CLR 1, [41].

⁵⁸ (2001) 209 CLR 1; [2001] HCA 67, [14].

⁵⁹ (1936) 55 CLR 499.

⁶⁰ [2015] NSWCCA 198.

⁶¹ [2010] NSWCCA 238; 205 A Crim R 106.

⁶² Evidence Act s 132C(3).

⁶³ Above, s 132C(4).

⁶⁴ Above, s 132C(5)(d).

⁶⁵ [2010] NSWCCA 319.

⁶⁶ Handlen v The Queen; Paddison v The Queen [2011] HCA 51.

⁶⁷ R v Handlen & Paddison [2010] QCA 371.

Footnotes

1. It is uncontested that “ding dong” was Matthew Reed. ↩ ↩²

2. See MF1 “K”; AB, 1107 – 1121 and the primary judge’s apposite jury directions at AB, 634 and 635. ↩ ↩²

3. See AB, 98 and 1108. ↩ ↩²

4. See the judge’s directions to the jury at AB, 636, line 30 and AB, 637, line 47 – AB, 638, line 5. ↩ ↩²

5. (1996) 190 CLR 348, 367 – 368. ↩ ↩²

6. R v Handlen [2014] QSC 40 [46]. ↩ ↩²

7. See AB, 962 and 963, Telephone Intercepts numbers 20 and 39 and compare the transcripts of those intercepts which do not record the presence of Nerbas. ↩ ↩²

8. [2011] QCA 236 at [30] – [35]. ↩ ↩