R v Mbonu; DPP v Mbonu [2003] VSCA 52

71. He now seeks leave to appeal against both his conviction and the sentence imposed upon him.

74. The Director of Public Prosecutions has also appealed against the sentence handed down, arguing (inter alia) that it was manifestly inadequate in the circumstances.

The application for leave to appeal against conviction

78. In support of his application for leave to appeal against conviction, reliance has been placed by the applicant upon the following grounds, that:

"1. The learned trial judge erred by admitting the evidence of the witness Mnguni which related to words uttered and acts done by 'Big Uche' in Jakarta in the absence of the applicant. 2. The learned trial judge erred by leaving it to the jury to decide the issue of the admissibility of evidence which implicated the applicant in a conspiracy to import cocaine. 3. The learned trial judge erred by inviting the jury to convict the applicant on the basis that he was a party to a conspiracy to import cocaine when he was not charged with having so conspired and there was no admissible evidence led that could sustain a conviction for such an offence in any event. 4. The learned trial judge erred by failing to direct the jury adequately, or at all, as to how they might properly use evidence of pre-concert to support a finding of guilt on Count 1."

83. As the grounds are all related they can be conveniently addressed together.

86. The argument in support of contention contained in ground 1 was outlined in the applicant's written submissions as follows:

"1. The prosecution led evidence from the witness Mnguni of Mnguni's conversations with and observations of Big Uche in Jakarta in the days just prior to the importation. ... 2. Mnguni's evidence on this issue was really the equivalent of Big Uche having said to Mnguni the following: 'Here is the mobile telephone and fax number of the person who will collect the cocaine once you arrive in Melbourne.' The judge told the jury that Mnguni's evidence of what he was told by, and what he observed of, Big Uche was the only evidence showing that the applicant had knowingly agreed with others to import cocaine into Australia. 3. Toward the end of the prosecution case the judge indicated that his preliminary view was to admit Mnguni's evidence of what he said had occurred in Indonesia. The evidence was admitted. 4. It is submitted that the judge erred in admitting this evidence of Mnguni because there was, consistent with what the judge told the jury referred to in paragraph 2 above, no 'reasonable evidence' or 'prima facie case' apart from the acts or words of Big Uche (as related by Mnguni) that the applicant was a participant in an agreement to import cocaine into Australia: Ahern v. the Queen [1988] HCA 39; (1988) 165 C.L.R. 87 at 100, Tripodi v. The Queen [1961] HCA 22; (1961) 104 C.L.R. 1. 5. In view of the way in which the jury were instructed they could find the guilt of the applicant on Count 1, it is probable that such a finding was based on inadmissible evidence and the conviction on this count must be quashed."

90. It is, I consider, clear enough that the evidence of Mnguni concerning his interactions with Uche was admissible to establish that arrangements were made for the importation of a quantity of cocaine and that, pursuant to those arrangements, Mnguni brought the material into Australia. Indeed, I do not understand counsel for the applicant in this Court or his counsel in the Court below to have suggested otherwise.

93. The question which then arises is whether that evidence was admissible as part of the proof that the applicant was knowingly concerned in that importation. Shortly put, the answer, I consider, is - yes. Mnguni was able to call the applicant because he had written down the telephone and facsimile numbers that Uche contacted. Mnguni was endeavouring to make contact with the proposed recipient when he later called the applicant's telephone number. He had secured that number, albeit without the individual's knowledge or consent, from the person who had engaged him to deliver the drugs to this country. It was open to the jury to conclude on the basis of the applicant's own conduct that a link existed between Uche and himself. Whether or not Uche made any remark to that effect, they would also have been entitled to infer that Uche was likely to have been in communication with the person in Australia who was to take delivery of the drugs from Mnguni. Consequent upon the call made by Mnguni on 23 September 2000, the applicant met him, took possession of the bag in which the pellets of the drug were contained, briefly looked inside it, enquired as to how many "pieces" there were and put the bag down the front of his trousers. The mere fact that the applicant initially endeavoured to hide in his trousers a bag of pellets handed to him by a person who had arrived from Indonesia only a couple of days earlier suggests powerfully that he was aware of the incriminatory nature of its contents and, against this background, a party to their importation. In the monitored conversation conducted between the two men, the applicant enquired as to the number of "pieces". Mnguni responded "31 or 41". It was open to a jury to infer that this enquiry related to the number of pellets which the applicant must be taken to have seen when he looked in the bag, rather than an improbable reference to pieces of luggage as suggested in the proceeding. I note, with no surprise, that this part of Mnguni's evidence was not the subject of cross-examination in the trial. Of course, it was open to the jury to reject the applicant's explanation of the circumstances under which he came to meet Mnguni. He had been expecting the visitor to arrive and conveyed the concern of Mnguni's group who were "very worried" and had called "several times." As earlier footnoted, why this concern might have been experienced was also left unexplained.

96. The jury would have been entitled on the totality of the evidence to find that Mnguni, Uche and the applicant were all linked in the importation. The inference would arise from the combined effect of a number of pieces of direct relevant and admissible evidence. True it is that some of that evidence involves the activities of other individuals in the absence of the applicant. However, it is common enough for the physical and verbal interactions between third parties to be admitted as constituting facts relevant to the determination of facts in issue in the case of a particular accused. They may, in conjunction with other evidence, provide a strong foundation for the inference of concerted activity to be drawn and may, in some situations and, without more, identify the participants, including the accused concerned. As Young, C.J. stated in R. v. Minuzzo and Williams[12]:

" If one finds two persons doing a number of acts independently and it is regarded as too coincidental that the two persons should have acted in such a way unless there were an agreement between them to do so, it would be an affront to common sense to say that the agreement could not be inferred even though there was no evidence that either was present when the acts of the other were done. ... The same idea is expressed by Isaacs J in R v Associated Northern Collieries (the Coal Vend Case) [1911] HCA 73; (1911) 14 CLR 387, at p. 400: 'Two things must be carefully kept distinct, viz., the fact of combination, and acts done in pursuance of the combination. There is a tendency to confuse the two, because in many instances acts of individual defendants may be regarded as evidence of the first as well as of the second.

...

'Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge."

100. The High Court considered the two issues of the establishment of community of purpose and the identification of the participants in a joint enterprise in Ahern where, in a conspiracy case, it was said[13]:

"In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other. Thus it was said in Tripodi[14] that proof of the crime of conspiracy 'may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment'. For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank. For the purpose of reaching that conclusion it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred. Utterances for this purpose may be regarded as facts no less than acts and, indeed, in the United States are sometimes called verbal acts. In the example given it would be possible to reach the conclusion, admitting the evidence for the purpose described and considering it against each accused separately, not only that there was a conspiracy but also that each of the two accused was a participant.

...

However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation."

104. In the present case, the admissible evidence adduced to establish the existence of an agreement to import the cocaine into Australia which included, it must be remembered, evidence of the applicant's own conduct, provided sufficient foundation for the identification by the jury of the applicant as one of the persons involved in the importation. The particular question upon which the High Court focused in Ahern; that is, what happens when the evidence of the separate acts of the alleged co-offenders fails to establish the participation of the individual charged, simply did not arise.

107. Approached in this fashion, the conclusion that the applicant was knowingly involved in the importation could be properly reached without any need to address the particular issues relating to the identification of an individual as one of two or more alleged co-conspirators considered by the High Court in Ahern, as asserted by counsel appearing for the applicant before us. No question of the admissibility of what would be effectively hearsay evidence with respect to the applicant in the form of acts or declarations, to which ground 1 was directed, would arise at this level. As I have indicated, the case against the applicant was extremely strong and quite straightforward. Unfortunately his Honour did not recognize that that was the position and proceeded on the basis that he had to address the Ahern question.

110. Against that background and concerned that the jury should focus on the central issue of the applicant's knowing involvement in the importation, the trial judge stated:

".. it seems to me very difficult to see how he could be guilty unless it is proved beyond reasonable doubt that the accused has an association with someone, and they do not have to be identified people, but one or more persons in Jakarta."[15]

114. I agree that in the particular circumstances of the present matter, it would be "very difficult" indeed to reach the conclusion that the applicant was involved in the importation as opposed to attempting to obtain possession of previously imported narcotics, unless there was a proper evidentiary basis for the finding that he was involved prior to the entry of the drugs into the country. That basis could be provided by direct evidence of concerted activity or evidence sufficient to justify the drawing of the inference that he had acted in concert with others to effect the importation. As I have mentioned, I consider that the evidence of the various interactions between Mnguni, Uche and the applicant, considered in conjunction with the actions of the applicant himself, constituted a powerful foundation for the drawing of the necessary inference.

117. However, his Honour formed the view that, as the evidence involved acts performed and statements made in the absence of the applicant, it was necessary to instruct the jury as if they had to consider a charge of conspiracy. It is that unnecessary and inappropriate instruction, almost certainly occasioned by some misunderstanding of the basis upon which the evidence could be properly put before the jury, that has provided the platform for all of the grounds of the present application.

120. In every case in which there has been prior agreement between participants to a completed crime to engage in that particular criminal enterprise, each of those participants will almost certainly have, at some stage, committed the inchoate crime of conspiracy. That offence will ordinarily be subsumed by the substantive offence which, generally, is the one that will be prosecuted. In such situations, the evidence is treated as a whole, incorporating proof of the agreement and its implementation. No reference is made in the judge's charge to the notion of conspiracy and different terms, such as joint enterprise or concerted activity, are employed to describe the asserted relationships between the various individuals involved and the substantive offence. There are a number of reasons why this is so. Not the least of these is the obvious requirement that attention must be directed to the establishment of the elements of the offence with which the individual has been charged and not the consideration of the elements of an offence not before the Court.

123. The issue of conspiracy was first raised in the present matter by the trial judge in discussion with counsel towards the end of the Crown case. He said:

"HIS HONOUR: The other matter that I just raise at this point, it seems to me that all the Mnguni evidence that's given as to the situation in Indonesia will depend - its admissibility so far as the jury is concerned is going to depend on whether or not there's enough evidence to establish a conspiracy, otherwise it ought to be excluded. COUNSEL: That's correct, Your Honour, in relation to his conversations with the contacts in Indonesia that would be correct, yes. HIS HONOUR: It seems to me I'm going to have to charge the jury on conspiracy so far as that is concerned and direct them my present view is that there's enough evidence to go to the jury, that's a prima facie case, but the jury then have to determine whether or not they are satisfied that there is beyond reasonable doubt a conspiracy on foot which involves the Indonesian end and the accused."[16]

It is, I think, reasonable to infer from this passage that his Honour was mindful of what was said in the joint judgment of the High Court in Ahern[17] although the Court expressed a preference for the term "reasonable evidence" to that employed here "a prima facie case". I have made comments of my own on this possible distinction in Pektas.[18] On the assumption that it can be meaningfully or usefully made, I do not see how it could have any impact in the present case. I should also add at this point that it is apparent from this passage that his Honour did not leave the question of the admissibility of the evidence implicating the applicant to the jury, as asserted in ground 2. I do not understand that it was ever suggested in the trial that he had.

128. As earlier indicated, there had been no objection raised by counsel for the applicant to the reception of the evidence of the interactions between Uche and Mnguni in Indonesia. Nor did either counsel query his Honour's approach in raising the notion of conspiracy.

131. The present case stands as a good example of the undesirability of the intrusion of the concept of conspiracy into a charge directed to a substantive offence. At one point in his Honour's charge, he instructed the jury that:

"... I go now to the elements of [that] particular crime. Firstly, the prosecution must prove that an importation occurred. Secondly, it must prove that what was imported was cocaine. Third, it must prove that the cocaine is a prohibited import. Fourth, it must prove that the quantity of cocaine was not less than a trafficable quantity and fifthly and finally it must prove that the accused was knowingly concerned in the importation. Now there is abundant unchallenged evidence in respect to elements 1, 2, 3 and 4 and, indeed, as the defence are entitled to under the provisions of the Evidence Act, admissions have been made in respect to these matters, so they should not concern you. That is, clearly and unarguably there was an importation, it was cocaine; it is conceded cocaine is a prohibited import. It is also conceded that it was not less than a trafficable quantity of cocaine and I will read out to you those admissions in due course. In any event, what you need to focus on is the final and last element: it must prove that the accused was knowingly concerned in the importation."[19]

135. He then provided instruction of an orthodox kind with respect to the element of being "knowingly concerned" in the importation in relation to which no complaint has been made, after which he summarized the position as follows:

"So, accordingly, the Prosecution has to prove that the importation occurred, that the goods imported were a prohibited substance, cocaine, that the accused was knowingly concerned in the importation in the sense that I have described The Prosecution, of course, has to prove each of the elements beyond reasonable doubt and, if it fails to prove any of them, and in this case we are really concerned with the last one, then your only proper verdict would be not guilty. But, if it has satisfied you beyond reasonable doubt as to that last element, and you accept what I say to you about the other elements, then you should find him guilty."[20]

...

"Now when Mnguni gave evidence a significant part of his evidence was concerned with his time in Jakarta when he met Big Uche at the African Restaurant and agreed to become a drug courier for the payment of $5000 in United States currency and to bring the cocaine into Melbourne. Now the prosecution seeks to use that evidence of what occurred, according to Mr Mnguni, in Jakarta as part of the evidence in support of in particular count 1 on the presentment. Now there is a general rule in criminal trials that evidence of conduct of what is said by persons not within the hearing or view of the accused cannot be used against him as evidence of his complicity in a crime. However, there is an exception made where the accused is part of a conspiracy[21]. In that case things said or done by a co-conspirator can be used as evidence even though the accused was not present when those things were said or done. However, before you can use such evidence in this case you would have to be satisfied beyond reasonable doubt that the accused man, Mr Mbonu conspired with Big Uche and others in Jakarta to bring cocaine into Australia. If you are not so satisfied beyond reasonable doubt you would not be entitled to use that evidence against the accused, and in the absence of that evidence it seems to me there would be no evidence of a critical element necessary before you could find him guilty on the first count of being knowingly concerned in the importation of a prohibited import, namely the cocaine and I will deal with that in more detail when I go to the elements of the offence, but it seems to me very difficult to see how he could be guilty unless it is proved beyond reasonable doubt that the accused has an association with someone, and they do not have to be identified people, but one or more persons in Jakarta."[22]

His Honour appears to have been of the view that, in a case of alleged joint enterprise, it is only where it is established that an accused is "part of a conspiracy" that the evidence of acts performed or statements uttered in his absence can be admissible against him. Bearing in mind that his Honour's remarks have to be understood within the context of the particular matter before the Court, it seems that he may have failed to recognize that the principles laid down in such cases as Tripodi and Ahern are of general application. In Tripodi v. The Queen[23] the Court said:

"It is urged that the rule under which upon charges of conspiracy evidence is admitted of what is done and said by the parties to the combination in furtherance of the conspiracy is a rule of a special nature and is incapable of application to charges of a substantive offence. In the Supreme Court the contrary view was adopted and moreover a very wide rule was laid down. It is a mistake to think that the rule the chief application of which is in charges of conspiracy is a special rule of evidence confined to that offence. But at the same time it may well lead to error if the question of the admissibility of such evidence in any given case is treated exactly in the same manner as it might be on a charge of conspiracy. For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose. But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose."

Within the ambit of the present discussion, conspiracy cases differ from other matters involving assertions of joint enterprise essentially in the sense that the entry of the individual before the Court into the agreement constitutes an element of the crime of conspiracy itself, whereas in other situations it provides the nexus between the individual and the substantive offence charged.

142. In the same vein, a little later his Honour said when addressing the concept of conspiracy:

"Now since it is the agreement which constitutes the crime[24] it is necessary in the case of the accused to ask two questions, first, whether there was an agreement between that accused and others that this particular crime should be committed, and, second, - firstly, was there such an agreement and, secondly, was the accused a party to that agreement? In order to determine whether there was a conspiracy and if so to determine its scope and purpose, you look at the proven acts, conduct and words of all the alleged conspirators. Here before you you have got Mnguni of course who has given evidence and the accused and you have also got some evidence of what occurred in Jakarta. At least someone on any view provided Mnguni with the drugs that he swallowed and brought out here and evidence, if you accept it, of some contact between a source in Indonesia and the accused, but you must be satisfied beyond reasonable doubt that there was a conspiracy of a particular scope and purpose and then look at the proven acts of the accused in this case to determine whether you are satisfied beyond reasonable doubt that he was a party to the conspiracy, one of those who agreed to a course of conduct involving a criminal offence to be pursued by one or more parties to the agreement. In order to determine these questions in this case it is necessary to consider the particular criminal course of conduct alleged to have been involved concerning the importation of the cocaine, so accordingly, the prosecution must first prove to your satisfaction beyond reasonable doubt on the whole of the evidence that there was an agreement between two or more persons involving the importation of cocaine from Indonesia into Australia and in this case I would suggest you could have no doubt that there was an illegal importation of cocaine. That has been admitted, but you still must be satisfied beyond reasonable doubt that in the case of the accused and on the evidence of his acts, conduct and words that he was one of the conspirators, one of the persons agreed to the pursuit of a course of conduct which would involve the commission of the crime, that of being knowingly involved in the importation of cocaine and of course that is the central $64.00 question in this trial."[25]

146. Against this background, the argument advanced in support of ground 3 has been set out in the applicant's outline of argument as follows:

"8. The judge introduced into his charge to the jury a direction on the law of conspiracy. He suggested to the jury that if they were satisfied that the applicant was a party to a conspiracy or agreement to import cocaine, rather than the pursuit of its aims, then the applicant was guilty. In fact, the applicant had been charged with the substantive offence of being knowingly concerned with the importation of cocaine. It is apparent, however, that the prosecution alleged a preconcert agreement in proof of this offence. 9. Given the manner in which the jury were directed (see paragraph 8 above) it is likely that the jury found the applicant guilty of Count 1 on the basis that he was party to an agreement without also considering whether, in conformity with that agreement, the applicant had actually committed the offence with which he was charged."

150. The judge regarded the establishment that the applicant was a party to a conspiracy to bring cocaine into this country as crucial to a finding that he was knowingly concerned in the importation when it occurred. Certainly the italicized expression, set out above, taken out of context could be interpreted as suggesting that proof of conspiracy was of itself sufficient to support a finding of guilt of the substantive offence. However, these instructions must be viewed against the background of the evidence of the applicant's own conduct both before and after the importation and the fact that, as a practical proposition, the only matter which was the subject of dispute in the trial was whether the prosecution had established beyond reasonable doubt that the applicant had acted in concert with others to effect an importation which had clearly taken place.

153. His Honour should not have approached the issue of the possible participation of the applicant in the claimed joint enterprise of importing the cocaine into Australia by reference to the concept of conspiracy. Even if I am wrong in my view that the particular question raised in Ahern did not arise in the present matter, that would still be the situation. The proper approach, as I see it, would have been for the judge simply to have instructed the jury as to what evidence was admissible and how it could be used.

156. It follows from what I have said that I consider that there is a force in the contention advanced in ground 4. However, I fail to see in the particular circumstances of the present case how this could have been a source of disadvantage to the applicant. The jury were in effect instructed that they could not find him guilty of the substantive offence unless they were also satisfied beyond reasonable doubt that he had also entered into a prior conspiracy to commit it. The instructions given to the jury with respect to the notion of conspiracy accorded with the law and were not the subject of any objection in the trial. All of the evidence admissible had the applicant been before the Court upon a charge of conspiracy was admissible in the trial in any event, and, realistically viewed, once the jury reached the finding beyond reasonable doubt that the applicant was a party to a conspiracy to import cocaine into Australia, on the basis of the other largely unchallenged evidence the finding that he was knowingly involved in the importation actually effected would appear to have been inevitable. The situation was not one in which, in my opinion, by reason of any defect in the judge's charge, the potential for a miscarriage of justice can be perceived as having possibly arisen.

159. With respect to the specific claim in ground 2, that, within that context, his Honour left it to the jury to determine the admissibility of the impugned evidence, I am of the view it lacks any foundation.

162. In conclusion, I consider that, whilst the trial judge's charge to the jury was deficient in more than one respect, the application for leave to appeal against conviction must be refused.

The application by Samuel Nonso Afam Mboni for leave to appeal against sentence

166. This application rested upon three grounds. One of them need not be addressed as no argument has been advanced with respect to it.

"1. that the sentence is manifestly excessive; 2. that the learned sentencing judge erred in arriving at the role he ascribed to the applicant."

173. In support of the second of these contentions, reliance was placed upon the following propositions which have been set out in the applicant's written submissions as follows:

"1. It was suggested during the plea by the learned sentencing judge, that the applicant's role in the offending may have been 'relatively minimal' such that he was a 'pawn ... in the system', a 'small fish' and 'naive'. His Honour seemed prepared to conclude that a reasonable view to hold was as follows: that the applicant was one of a serious of 'cut outs, so it's very hard for the police to get up the tree to get to the real - the major offenders.' 2. Furthermore, his Honour seemed prepared to accept, as against Mnguni, that 'one could have a degree of suspicion about his activities.' 3. It was submitted that the judge ought to find that the applicant's role was less than that of Mnguni. This submission was rejected. The prosecutor did not submit that the applicant's role 'went beyond' what the judge had already indicated. 4. The judge, in sentencing the applicant, found that the applicant's involvement in the importation of the drugs was a 'significant one' and 'certainly on a level that was at least as important to that of the courier, Mnguni, whose involvement was plainly limited to that task'. Yet, his Honour felt that it was reasonable to regard the applicant's involvement 'as being of similar importance to that of the drug courier.' The judge could not discern any 'significant difference in the criminality of the offending when compared with that of Mnguni's offending.' 5. It is submitted that the judge erred by not acceding to counsel's submission that the applicant's role in the overall offending was less than that of the applicant. In the circumstances of the present case it was clear, as counsel described, that the applicant was a 'complete patsy' who was sent to see if it was at all possible to recover the cocaine by those who must have already known that the shipment had already been intercepted by the police. 6. That this was the likely turn of events is the fact that, on Mnguni's evidence, the applicant received a telephone call from Big Uche on the Friday 22 September 2000, the day prior to the applicant's arrest. According to Mnguni's evidence, it was not part of the plan that Big Uche would ever ring the applicant. On this evidence the call to the applicant was to come from Mnguni after Mnguni had contacted Big Uche."

177. It is hardly surprising that his Honour appears to have possessed some reservations concerning the part played by Mnguni in the importation and he would certainly have been justified, in my opinion, in holding similar reservations about the part played by the applicant himself. However, he was conscious of the necessity of approaching the process of fact finding with great care and was astute to ensure that the role ascribed to the applicant was properly based upon and reflected the evidence before him. His view that the applicant's level of involvement was "a significant one' could hardly be gainsaid. Similarly, it was open to him to find as he did that the part played by the applicant could be regarded as 'being of similar importance to [that of] Mnguni'.[26]

180. Whilst it is distinctly possible, as submitted by counsel for the applicant, that Uche broke off contact by reasons of suspicions that the enterprise may have been discovered, the argument advanced in paragraph 5 of the written submissions is a curious one indeed and was understandably rejected by the sentencing judge. Only a moment's thought is necessary to reveal the improbability of the scenario presented, under which it is suggested that an attempt was made to recover already seized narcotics from the police by inducing the applicant to act as an unwitting agent in the hope that somehow or other he would gain possession of the material which presumably would then be obtained from him by some means or another.

183. I do not need to set out the various matters to which his Honour adverted in his sentencing remarks or which emerged from the plea. It is, I consider, sufficient to state that he obviously directed attention to all of the appropriate sentencing principles and was clearly mindful of the factual considerations bearing upon both the offence and offender before him.

186. I am able to detect no error in his Honour's sentencing remarks, nor can any be inferred from the sentence itself which, although lenient, was clearly within the range available in the circumstances.

The appeal of the Director of Public Prosecutions against sentence

190. The grounds of the Director's appeal advanced in essence three propositions:

(1) That the sentence imposed upon the respondent was manifestly inadequate in terms of the maximum period of imprisonment imposed and the period of immediate incarceration ordered. [There have been particulars provided to support this contention.]

(2) That his Honour fell into error in not distinguishing appropriately the respective roles of the respondent and Mnguni.

(3) That his Honour failed to ensure sufficient parity between the sentences imposed upon Mnguni and the respondent.

196. Little need be said concerning the first two of these propositions. I have already indicated that, in my opinion, the sentence imposed upon the respondent was within the range of those available to the sentencing judge and his Honour's

findings with respect to the roles of Mnguni and the respondent have also been addressed.

200. As far as the issue of parity is concerned, again I have detected no error in his Honour's sentencing remarks nor is any suggested by the sentences themselves. He specifically adverted to the necessity to "consider the question of parity with the sentence imposed upon your co-offender Mnguni"[27] and it is apparent, without setting them out, that he had regard to the clear differences in their respective situations.

203. It follows that, in my opinion, both the application for leave to appeal against sentence of Mbonu and the Director's appeal against sentence should be refused.

208. I agree, for the reasons stated by Buchanan J.A., and Vincent J.A., that the application for leave to appeal against conviction by the applicant should be refused; and I also agree, for the reasons stated by Vincent J.A., that the application for leave to appeal against sentence should be refused and that the appeal by the Director against sentence should be dismissed.

211. I agree with Vincent J.A., as to the undesirability, indeed inappropriateness, of reference to the concept of conspiracy in a charge of a substantive offence - here, knowingly concerned in the importation into Australia of a prohibited import. For the reasons stated by Vincent J.A., no prejudice occurred to the applicant, and no miscarriage of justice occurred, by reason of the otiose reference to conspiracy. But it is well not to import such reference in instructing juries as to substantive offences. The evidence the subject of the four grounds here - Mnguni's extraterritorial dealings with Uche - was not led as evidence of conspiracy but was led as evidence from which, if combined with the evidence of Uche then calling the applicant`s telephone number and faxing the applicant's facsimile number, the applicant's guilt of the substantive offence might be inferred. It was admissible to that end.

[7] T654. As far as I am aware, no explanation was proffered in the trial concerning the identity of this "group", why they might have been "very worried" or in relation to somewhat curious telephone contacts that involved the phone ringing "all that night".

[9] Why Mnguni may have required such assistance does not emerge from the material before us. I do not understand that it was ever suggested that either the applicant or Mnguni was carrying anything substantial when he left the room.

[10] He was also charged with the alternative offence of attempting to obtain possession of a prohibited import. As he was convicted on the principal count, it is not necessary to address this aspect.

[11] Two earlier juries had been empanelled.

[12] [1984] VicRp 34; [1984] V.R. 417 at 430.

[13] Ahern v. The Queen [1988] HCA 39; (1988) 165 C.L.R. 87 at 93.

[14] [1961] HCA 22; (1961) 104 C.L.R. 1 at 6.

[18] R. v. Pektas [1989] VicRp 21; [1989] V.R. 239.

[23] [1961] HCA 22; (1961) 104 C.L.R. 1 per Dixon, C.J., Fullagar and Windeyer, JJ. at 6.