R v Richards

COUNSEL : L. Fullerton SC (Crown/Respondent) P. Byrne SC with G. Bashir (Appellant) SOLICITORS : D.P.P. (Commonwealth) Grahame W. Howe & Co (Appellant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - CONSPIRACY TO IMPORT NARCOTIC - ALLEGED ENTRAPMENT - COUNSELLING BY POLICE AGENT TO COMMIT OFFENCE IN A CHAIN LEADING TO THE APPELLANT - EVIDENCE - CROSS EXAMINATION CONCERNING TREATMENT OF CO-OFFENDER - SPECIAL ARRANGEMENTS FOR JURY SECURITY - PLEA OF GUILTY BY CO-OFFENDER IN PRESENCE OF JURY - SENTENCE - DISCOUNT FOR POSSIBLE ENTRAPMENT RECEIVED BY CO-OFFENDER - DISPARITY BETWEEN SENTENCES REQUIRING ADJUSTMENT LEGISLATION CITED : Crimes Act (Commonwealth) 1914 Evidence Act 1995 Bunning v Cross 1978 141 CLR 54 Lowe v The Queen 1984 154 CLR 606 Mooney v James 1949 VLR 22 Postiglione v The Queen 1997 189 CLR 295 R v Bijkerk 2000 111 A Crim R 443 R v Birtles 1969 Cr App R 469 R v Mandica 1980 24 SASR 394 CASES CITED: R v Richards & Bijkerk 1999 107 A Crim R 318 R v Sloane (No 2) unrep CCA (NSW) 15 July 1992 R v Sloane 1990 49 A Crim R 270 R v Stokes unrep CCA (NSW) 16 June 1988 R v Taouk 1992 65 A Crim R 387 R v Wong 1999 48 NSWLR 40 Ridgeway v The Queen 1995 184 CLR 19 Sherman v United States 356 US 369 (1958) The Queen v Olbrich 1999 199 CLR 270 DECISION : Appeal against conviction dismissed; Appeal against sentence allowed

POWELL JA GROVE J SIMPSON J

1 GROVE J : The appellant challenges conviction following a trial before Flannery DCJ and a jury upon an indictment charging that between 1 January and 28 September 1993 he conspired with one Bijkerk and others to import a commercial quantity of cocaine into Australia. In the alternative, he seeks leave to appeal against the sentence imposed upon him of twelve years imprisonment with a non parole period of eight years. 2 Bijkerk and the appellant were scheduled to be indicted on 19 April 1999. A voir dire hearing proceeded in connection with objection to proposed evidence. The objection was significantly based upon principles articulated in Ridgeway v The Queen 1995 184 CLR 19. The hearing was extensive but not continuous, however on 11 May the learned trial judge ruled against the objections by the then accused, although he did not publish his reasons until 27 July. Upon the ruling being made, Bijkerk sought to be re-indicted. This occurred and he pleaded guilty and the trial of the appellant proceeded culminating in the verdict of guilty found by the jury on 7 June. Further proceedings by Bijkerk are reported in 2000 111 A Crim R 443 and a description of some common background can be extracted from that report: "In the course of employment for a corporation which involved some customs agency, one Modica discovered that the Australian Customs utilised a stamp which, if impressed on an invoice prior to goods being shipped, at least from the United States, signalled that the goods had been inspected at the point of export and no further inspection was required in Australia. Modica forged such a stamp. Importing contraband by means of its use was referred to as Modica's 'scheme'. In February 1992 Modica was arrested in connection with a planned importation of a large quantity of heroin coming from Asia. At interview he mentioned to police that a person named Cluff and an associate of his, whom Modica knew as Warren, were interested in utilising his scheme. The police suspected, correctly as it turned out, that Warren was in fact, Warren Richards. " @ p 444. 3 The correctness of this identification of the appellant is not the subject of challenge. 4 Four grounds of appeal against conviction were advanced. It was stated by senior counsel for the appellant that the principal thrust of challenge was comprehended in ground 1.

The learned trial judge erred in admitting evidence that had been obtained in contravention of an Australian law. 5 Argument in support of this ground relied upon Ridgeway (supra) in the context of the express provisions of s138 of the Evidence Act 1995. 6 It was contended that the whole of the evidence in the Crown case (described as effectively the evidence of the witness Cluff) or at least certain evidence to which I will later refer concerning the importation of a firearm, should have been excluded on the basis that the case fell into either or both of the categories mentioned in the joint judgment in Ridgeway , namely as to the first that illegal or improper conduct of police had induced the appellant to commit the offence and as to the second, that illegal conduct of police was an element of the charged offence. 7 No oral evidence was adduced on the voir dire hearing but a very substantial quantity of documentation was tendered. Included were three sets of particulars, transcripts of interviews by police with intended witnesses (Modica and Cluff), witness statements by Cluff, an affidavit by the then detective in charge of the operation leading to the arrests of the appellant and others, transcripts of recorded conversations, committal depositions and the transcripts of three earlier uncompleted trials. 8 In relation to the lastmentioned, it can be noted that a trial presided over by Viney DCJ resulted in the jury being unable to agree. Two further trials commenced, presided over by Christie DCJ, but both were aborted. The circumstances in which one of these terminated will be touched upon in relation to ground 3. Both Viney DCJ and Christie DCJ had conducted similar voir dire hearings to that conducted by Flannery DCJ and each had ruled, on the evidence respectively before them, that the evidence which was the subject of the objection should be admitted. 9 Flannery DCJ (dealing both with the appellant and Bijkerk) found that "neither accused was induced to commit a crime which either would have been unlikely to commit". The appellant gave no evidence that he was induced to commit the offence and relied, both at first instance and in this court, upon a contention that it should be inferred from the documentation that he was so induced. 10 It is apt to sketch a chronology of some significant events and circumstances. 11 Being in possession of the forged customs stamp, Modica sought to use it in ventures by others who wished to bring into Australia contraband of various sorts including drugs. In about 1990 Modica became acquainted with Cluff, the point of contact being a hairdressing salon being operated by Modica's brother- in-law of which they were customers. Modica sought Cluff's help in acquiring venturers. Cluff introduced a man named Harvey and two importations of illicit drugs were undertaken. One succeeded and the second was foiled by authorities. Thereafter Harvey declined to make another attempt and Modica, with some persistence, sought Cluff's help in finding another venturer. 12 On 11 February 1992 Modica was arrested. He agreed to assist police. On 25 February 1992 there was a meeting at the West Ryde Hotel between Modica and Cluff and this meeting was recorded by a listening device. The purpose of the meeting was for Modica to see if Cluff had found someone "to organize another cocaine importation". By this time of course Modica, but not Cluff, was acting at the behest of police. Cluff nominated the appellant as a person desirous of importing narcotics from America. They (Cluff and the appellant) had first discussed the possibility of importing narcotics with the help of Modica's forged stamp "a month or two" before the West Ryde Hotel meeting, therefore the discussion was either in late 1991 or early 1992. 13 There was a considerable delay before any actual activity and the evidence suggested several reasons contributing to this. The appellant was seeking funds for his venture and it was in connection with this that Bijkerk ultimately joined. In addition, the appellant required a share of the potential profit more favourable to himself than had originally been proposed. He also wished to be satisfied that, if Modica's scheme was implemented, the degree of risk of detection by authorities would be low. There was further delay when the appellant reported an unwillingness to engage in activity for a time owing to the terminal illness of a family member. 14 However, in the first half of 1993 a meeting was held between the appellant, Bijkerk and Cluff at a location described as outside the Lion Battery factory at Burwood, and the desire to make an illicit import was affirmed. In June 1993 the appellant informed Cluff that he and Bijkerk "had the money arranged". There were subsequent meetings by various conspirators including a gathering of Modica, Cluff, Bijkerk and the appellant at a chinese restaurant in Croydon when Modica reassured the others that the reason for the failure of the second importation involving Harvey had been learned (the invoice had been placed within the package instead of being attached to the outside) and he further assured them that the mistake would not be repeated. 15 The evidence did not enable a finding that agreement was reached at any exact time but it obviously had been reached prior to July 1993 when Bijkerk travelled to the United States. Whilst there the conduct of a "trial run" importing a pistol into Australia was conceived. Neither Modica nor Cluff was involved in the conception of this part of the plan. Modica reported to police when he found out about it and, after intercepting and disabling the weapon, police and customs permitted a routine delivery to be completed. Bijkerk made a second excursion to the United States in September 1993 when cocaine was despatched to Australia by a similar means. The authorities intercepted the narcotic and replaced it with a licit substance. Arrests followed shortly after delivery. 16 The offence of conspiracy charged against the appellant was complete upon his agreement to participate in the narcotics importation and the occurrence of events in furtherance of the agreement after it had been struck were evidential of, but not elemental to his crime. 17 The principal submission of the appellant was that he had been induced to commit the crime by conduct by or on behalf of authorities which was both illegal and improper in the sense that it involved harassment and manipulation inconsistent with "minimal standards of acceptable police conduct": Ridgeway @ p37 per Mason CJ, Deane and Dawson JJ. It was also submitted that the facts went "beyond a situation in which police have merely provided the opportunity for an offence to be committed": @ p57 per Toohey J. Reference was made to the observation of Gaudron J: "The question whether an accused would not have committed the offence charged if law enforcement agents had not in some way incited or participated in its commission is a question of causation. It may be that, in some cases, it is more accurately described as a question of the causative influence of an inducement. But however it is described, it is a question to be decided as a matter of common sense and experience, not by some hard and fast test which focuses on the disposition of the accused. Of course, disposition will be relevant in some cases, but even then, it may not be decisive. And in some cases - the present case is one - disposition may be of no relevance at all." : @ p78. 18 Finally senior counsel for the appellant adverted to the remarks of McHugh J (dissenting in the result) : I do not think that it is possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the processes of the court are being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters: (1) Whether conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. (4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence." : @ p92. 19 His Honour's preceding remarks should also be noted: "The State can justify the use of entrapment techiques to induce the commission of an offence only when the inducement is consistent with the ordinary temptations and stratagems that are likely to be encountered in the course of criminal activity. That may mean that some degree of deception, importunity and even threats on the part of the authorities may be acceptable." 20 As a primary matter, consideration must be given to identifying those persons or categories of persons who can relevantly be regarded as representative of authority. Police and customs officers are obviously included. In the present case Modica must be so regarded only after his arrest in February 1992 when he agreed to assist police. Contrary to the submission of the appellant, Cluff was not relevantly an agent of authority. I say not relevantly because until he was arrested for his own involvement in the conspiracy on 1 November 1993 he was unaware of the police investigation. By that date the appellant's offence had been committed and anything that Cluff did or agreed to do thereafter could not affect the appellant's culpability. Insofar as prior to his arrest, Cluff dealt with the appellant at the behest of Modica he did not thereby become the agent of those on whose behalf Modica was acting and indeed, Cluff was a target of, rather than a tool of, the investigation. 21 In a written submission senior counsel for the Crown conceded that "while their (police) conduct was unlawful in that they 'counselled or procured' the importation of narcotics through the agency of Modica contrary to s 233B(1)(d) (of the Customs Act), they did not induce the appellant's involvement. Rather they merely allowed Modica to continue to promote his scheme through Cluff mindful that the appellant had already expressed interest in it". 22 In support of the principal submission it was contended that on all the material here … "(the appellant) would not have made the agreement to import prohibited drugs unless the proposition had been put to him in this form by the Federal Police…". The reference to form included the terms of the profit share to be allocated to the appellant. It was submitted that the appellant might be inferred to have agreed only to participate in the crime on terms and not generally, and that he had agreed only after a significant and unacceptable degree of pressure had been placed upon him. 23 This pressure was said to have been applied by Cluff who, it should be repeated, was not even aware of any police investigation or activity at the relevant time. Evidence showed that Cluff undoubtedly made frequent enquiry of the appellant as to whether he remained interested in the scheme and the appellant's response was to use expressions such as "just leave it with me". The proposition that inducement of the appellant should be implied - as it must be in the absence of any direct testimony from the appellant - has to be examined in the whole context. As already stated, the appellant needed assistance by way of finance and was not content with the original profit sharing arrangement. The agreement was able to crystallise when Bijkerk was introduced. The appellant was the medium through which he was found and introduced and nothing in the evidence suggests that this was inspired by suggestion from either Cluff or Modica. 24 It was pointed out that some of the evidence of Cluff's repeated approaches to the appellant emerged in the trial and was not before Flannery DCJ at the voir dire hearing. This is an appeal against conviction and I see no reason for limiting material available for examination in order to consider the appellant's contentions. However I am unpersuaded that his Honour's conclusion that the appellant had not been induced to enter the criminal agreement has been shown to be wrong and no material at trial additional to that was available on the voir dire hearing causes me to reach a different conclusion. 25 Obviously extracted from the observations of the joint judgment in Ridgeway @ p37 much stress was placed in submission upon an assertion that the appellant was the subject to "manipulation and harassment". There was nothing which occurred which could merit description as "manipulation" of the appellant, and if (ignoring the absence of Cluff's agency for the police) analysis is undertaken of the descriptions of the encounters between Cluff and the appellant, there is shown a persistence rather than a "harassment". The appellant was acting in accordance with his own wishes and any unwillingness can be seen to relate, not against involving himself in the criminal enterprise but towards his desire of achieving favourable terms for himself and fulfilling a need for assurance concerning the degree of risk of detection. 26 The finding that the appellant was not induced to commit the offence by police conduct excludes the case from the first category mentioned in Ridgeway @ p39. Nor, so far as the second category mentioned is concerned, was any police conduct an essential ingredient of the charged offence. The submission that such conduct was an element of offence overlooked the fact that the crime of conspiracy had been committed prior to any actual importation either of the illicit drug or of the pistol on the "dummy run". It was argued that the charged offence was ancillary to illegal police conduct but it is plain that, on the Crown's concession that police counselled or procured Modica to import narcotics, such conduct has to be classified as ancillary to the crime of conspiracy charged rather than the other way around. 27 The evidence does not show that the appellant was directly involved in the decision to test the efficacy of the scheme by despatch of the pistol. This would appear to have been conceived by Bijkerk and, presumably, American connections. It was undertaken nevertheless after the agreement to import narcotics in which the appellant was a participant was struck and was in a real sense in furtherance of that agreement in that assessment of the risk of detection was always a major consideration. There was no error in admitting that evidence. 28 Insofar as his Honour declined to exercise the discretion to exclude the evidence, no basis has been shown for this Court to intervene and there is manifest no failure to adhere the principles established in such cases as Bunning v Cross 1978 141 CLR 54 and Ridgeway or by s138 of the Evidence Act. 29 Ground 1 is not made out.

The learned trial judge erred in not allowing counsel for the appellant at his trial to cross examine the witness Cluff about the sentence that Cluff received in relation to his involvement in this matter. 30 On 7 April 1994 Cluff appeared before Johnston DCJ and pleaded guilty to an indictment charging that he was knowingly concerned in the importation of a commercial quantity of cocaine between 1 January and 28 September 1993. This related to the actual importation consequent upon the conspiracy in which the appellant was a participant. Cluff also pleaded guilty to a charge that between 1 January and 1 April 1990 he was knowingly concerned in the importation of a traffickable quantity of the same drug. This related to a quantity of about seven hundred and fifty grams in which Harvey abovementioned and others were involved. The appellant was not in any way involved in the latter offence. 31 Taking into account two months of pre-sentence custody Johnston DCJ ordered that Cluff be released on conditioned recognizance. His Honour, complying with s21E of the Crimes Act (Commonwealth) 1914, specified that he would but for "the assistance" have imposed a head sentence of five years imprisonment with a non parole period of three years. In evaluating "the assistance" he noted that Cluff was to give evidence at the trial of Modica, committal proceedings against the appellant and Bijkerk and potentially at their following trials. He observed:- "It is conceded by the Crown that the prisoner's life is in extreme danger. As to date, there have been two death threats communicated to the prisoner in a face to face situation. On these charges the prisoner has spent two months in custody. On his release to bail he was placed in protection, a form of quasi custody, and he will remain in protection until both trials are completed. This could continue for at least another year. After the trials the prisoner, if at liberty, will be relocated under an assumed name by the Federal Police. It is conceded that the prisoner will be in constant danger. To use an expression, he will forever be looking over his shoulder." 32 The remarks on sentence of Cluff by Johnston DCJ were before Flannery DCJ when he dealt with the issue raised under this ground. 33 At trial counsel sought a ruling as to whether he might cross examine Cluff seeking to establish these facts:- (a) That he had received a non custodial sentence (apart from pre-sentence custody); (b) That he had received a substantial discount as a result of agreement to assist authorities, in particular by giving evidence against appellant and Bijkerk; and (c) That he understood that if he failed to give evidence in accordance with certain statements previously made he would face the prospect of at least three years in custody. 34 Flannery DCJ ruled, and the Crown had not opposed, that cross examination could seek to elicit that Cluff had received a substantial discount by reason of his undertaking to give evidence and that, failure to do so would expose him to a minimum of three years imprisonment. However he upheld the Crown objection to any question "to bring to the jury's attention that no gaol sentence, apart from a pre-sentence custody was served". 35 The Crown objection was based upon a linking of the non custodial sentence with the agreement to testify in isolation from the other reasons expressed by Johnston DCJ for not committing Cluff to prison, in particular the perceived dangers to Cluff's person. Thus it was argued that, if the defence put the unelaborated proposition, the Crown would be entitled to correct the impression that a non custodial sentence depended solely upon the agreement to give evidence and show that it depended also significantly on the danger to Cluff. It might be taken to be implied in Johnston DCJ's remarks that Cluff would be vulnerable even if in prison. 36 Flannery DCJ referred to s135 of the Evidence Act which provides:- "The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time." 37 His Honour stated: "…I am of the view, pursuant to s135 of the Evidence Act of 1995, which enables the Court to refuse to admit evidence if probative value is substantially outweighed by the danger, that the evidence might be unfairly prejudicial to a party. Such evidence without explanation per media (sic) of the judgment of his Honour Judge Johnston QC, results in it being outweighed by the danger that it might be prejudicial to the prosecution. An unusual position to take dealing with prejudice, but an available one, and I think appropriate to this case." 38 The evidence which the appellant sought to have admitted was the fact that Cluff (save two months pre-sentence custody) was not sentenced to imprisonment for his part in the crime. It would have been legitimate to cross examine Cluff to this effect as it would clearly have been capable of touching upon his credibility. As there was no objection to evidence that he received some favourable treatment by way of discount for his offer of assistance, it was the Crown's limited desire to avoid the drawing of inference that the offer was the sole cause of the express non-custodial sentence. That led to the Crown Prosecutor foreshadowing proof of the other reasons expressed by Johnston DCJ for not imposing custody. This would involve the finding or at least the expressed belief that Cluff was likely to be in danger. That evidence would be unfairly prejudicial to the appellant in that the jury might imply the responsibility for the danger lay with him, either in whole or in part. On that hypothesis Flannery DCJ stated: "…they (the remarks of Johnston DCJ when sentencing Cluff) would so allude to the (appellant) that I would find it difficult to resist, and I don't foreclose on this, but difficult to resist a discharge application …" 39 The prejudice to the Crown, as I understand his Honour's reasoning, lay at the end of this chain reaction when the trial may have to have been aborted. The power vested by s135 is to refuse to admit evidence when there is danger that the evidence (my emphasis) might be unfairly prejudicial to a party. The proposed evidence in this case was that Cluff received a non custodial sentence and it was not of itself unfairly prejudicial to the Crown. It was the possible consequence of the response which the Crown wished to make to the evidence which may have been prejudicial and, in a general sense, could be perceived in the circumstances to be unfair. The reason given for rejecting the evidence was wrong. 40 That is not necessarily the end of the matter. The power of a trial judge to regulate and control the manner in which evidence is presented or elicited is recognized at common law: see the extensive analysis by Barry J in Mooney v James 1949 VLR 22 and the power is preserved following the enactment of the Evidence Act: see ss9 and 11(1). It is to the discretions inherent in this power that I understand the reference in written submissions by the Crown that "in all the circumstances no error has been demonstrated in the exercise of his Honour's discretion in disallowing the cross examination of Cluff as to the specific sentence imposed upon him by Johnston DCJ". In my opinion, discretion does not extend to the rejection of admissible evidence adduced in response to a question or questions which were not improper. It is important to note that, as canvassed in the court below, it was intended to ask Cluff (on this topic) merely whether he received a non custodial sentence, whether he received a substantial discount as a result of agreeing to give evidence against the appellant and others and whether he faced three years in custody if he failed to fulfil his agreement. Those questions were not objectionable. If questions were asked which suggested that the non custodial sentence was solely the result of the agreement (as distinguished from a substantial discount resulting from it), such questions would have been misleading in the context of the combination of reasons expressed by Johnston DCJ and there is express power in s41(1)(a) of the Evidence Act to reject such misleading questions. This situation did not arise in the light of the ruling. 41 Nevertheless it is appropriate to examine what in fact occurred. Cross examination of Cluff by counsel for the appellant included the following: "Q. You are subject to a contract now, aren't you? A. What do you mean? Q. I mean this, that if this undertaking signed by you is not kept, then what you expect will happen to you is that a sentence which has as its component a three year minimum term and two year additional term will be a sentence you have to serve? A. I found that out later on. Q. You know it today? A. When I signed that, there was never any deal that you are saying I was going to be given this or that. As I said, I was informed by the police and the DPP that, even with the help that I was giving, I would go to gaol. But they didn't have any say on what the judge was going to say, but in their eyes I was going to gaol. When I went into that court to get my sentence, I was always under the impression I was going to go to gaol. I didn't do any deal with the police. ……………… Q. Were you interested in the outcome of the sentencing proceedings of yourself for a very serious offence? A. Was I interested? Q. Yes? A. What do you mean? If you were so worried about what would happen? Q. Were you concerned? A. Of course I was concerned. I just told you that I thought I was going to gaol. ……………… Q. It comes down to this, don't you agree, if you fail to give evidence against Mr Richards in conformity with your witness statement, what you understand yourself to be facing is at least three years, possibly more, up to five, in gaol. As you sit here today, that's how you understand the position? A. I realise that now after the sentencing, but prior to the sentencing -- Q. Never mind -- A. Prior to the sentence I didn't know anything along those lines. I thought I was going to gaol. I now know after, but not prior." The emphases are added. 42 The implication in this evidence that Cluff did not in fact go to gaol verges upon the irresistible and would have been conveyed to any reasonable listener and hence to the jury. Thus despite his Honour's ruling, there were adduced all the matters desired to be elicited on behalf of the appellant, although one emerged in thinly veiled expressions. The point of evidence in terms of his Honour's published reasons may be decided in favour of the appellant but no substantial miscarriage of justice has occurred and insofar as it might be required, the proviso to s6(1) of the Criminal Appeal Act should be invoked.

The learned trial judge erred in closing the court and making provisions for special arrangements for the jurors during the course of the trial after Mr Bijkerk had entered a plea of guilty to the charges against him. 43 Prior to the trial of the appellant and Bijkerk the issue addressed in this ground was dealt with in this court on appeal from interlocutory orders by Flannery DCJ: R v Richards and Bijkerk 1999 107 A Crim R 318. It is not necessary to recapitulate the content of the judgments therein nor to detail the arrangements beyond what can be read there. 44 The present ground is advanced on one express basis that the circumstances altered after Bijkerk had pleaded guilty and "there was no continuing reason to have these extraordinarily prejudicial arrangements in place". The reasons for the special arrangements emerged from apparent attempts to tamper with the jury at the earlier trials mentioned above. In his judgment (107 A Crim R @ p20) Spigelman CJ said: "… The nature of the conduct (the apparent attempts to tamper with the jury) is such as to indicate that some person, it doesn't matter whom, has a level of determination to abort the trial of these particular accused for this particular offence". 45 The arrangements did not stem from any finding of culpability of either or both of the then accused and the absence of one of them did not alter the situation remarked upon concerning the particular accused and the particular offence. 46 This ground is not made out.

The learned trial judge erred in failing to discharge the jury, and then empanel a fresh jury to hear the appellant's case, following the plea of guilty by Mr Bijkerk. 47 This ground is advanced by senior counsel for the appellant who did not appear at trial. Counsel at trial appearing for both the appellant and Bijkerk informed his Honour in the absence of the jury (after the ruling on the voir dire hearing) that Bijkerk would plead guilty. This indication was given to his Honour by counsel in the presence of both accused. The transcript then shows: COUNSEL: "I invite your Honour to allow me the opportunity to confer with Mr Richards. It seems to me there is a formal need for the indictment to be put again to Mr Bijkerk in the presence of the jury so the formalities can be completed. SHORT ADJOURNMENT COUNSEL: On instructions I am more than happy to press on with the trial with the jury empanelled." 48 In due course Bijerk was re-arraigned in the presence of the jury and pleaded guilty whereupon his Honour gave the jury directions including charging them that "the fact that Mr Bijkerk has pleaded guilty is no way admissible against Mr Richards. In other words you do not treat the plea of guilty by Mr Bijkerk as evidence against Mr Richards". What is now being advanced was not unanticipated. Shortly after the plea of guilty by Bijkerk and his Honour's adjuration to the jury the transcript shows that there was, again in the absence of the jury, further discussion. The Crown Prosecutor asked that his concern to be recorded about the fact that Bijkerk pleaded guilty in the presence of the jury which was about to try Richards and he referred to the matter being raised "in another court", presumably here. This provoked counsel at trial to confirm that he was satisfied with the direction which his Honour gave. 49 Reference was made to R v Stokes CCA, unreported 16 June 1988, where a new trial was ordered following the remarks to a jury by a trial judge concerning previous trials and other accused. This was said to be "a similar situation" but the situations are markedly different. In Stokes a complainant was allegedly taken to a shed by five men and there raped. Stokes was standing trial alone and during cross examination of the complainant questions were asked about her testimony on other occasions and the presiding judge gave the jury information about other proceedings against three men (not including Stokes) and he told them, inter alia, that another jury had convicted two and acquitted one. The jury were told not to speculate about the identity of these three who were obviously three of the five men who took the complainant to the shed. 50 The appellant's situation was nothing like this. Modica and Cluff were going to be revealed as undoubted participants in the conspiracy and Bijkerk had also admitted his participation. The appellant's case was that any involvement of his was unwitting and there was potential forensic advantage (availed of by his counsel in his address) in asserting that these three were conspirators to the exclusion of the appellant. 51 This ground should also be rejected.

Sentence 52 I turn to the application for leave to appeal against sentence. The sentence imposed is at the upper end of the range of guideline specification for importation of a low range commercial quantity of cocaine (2 to 3.5 kilograms) in R v Wong 1999 48 NSWLR 40. There is ample authority refuting any suggestion that conspiracy is inevitably less serious than commission of crime. No submission in those terms was made unless an observation in written submissions concerning actual importation is read with stress upon the word "actual". The seriousness of any crime, including conspiracy, must be gauged in the context of its facts and of the particular offender. 53 The appellant argues that the learned trial judge fell into error in determining the sentence in two specific respects, first in finding that the appellant was not entitled to any discount for "entrapment", and second, in failing to assess the sentence in parity with those imposed upon the co-offenders. 54 The basis upon which entrapment may be taken into account as a matter going to mitigation of penalty was analysed extensively in R v Taouk 1992 65 A Crim R 387. It was pointed out that there was authority for the proposition that if entrapment did in fact occur it should be taken into account as a mitigating factor: R v Birtles 1969 Cr App R 469; R v Sloane (No 2) unreported CCA 15 July 1992. Short of actual entrapment, the principle to be extracted was that "… even where the conduct of the police was regarded by the court as within the bounds of acceptable police procedures, nevertheless if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as a matter which diminished the culpability of the offender": Taouk @ p403. 55 The question was determined by Flannery DCJ contrary to the interest of the appellant when he found that the evidence did not manifest "a real possibility that but for the assistance, encouragement or incitement by the police (the appellant) would not have committed the offence". His Honour declined to reduce sentence for the claimed factor. This was entirely consistent with the principle expounded by King CJ in R v Mandica 1980 24 SASR 394: "This ground for leniency does not exist, however, where the effect of the police trap is not to encourage a person to commit an offence which he otherwise would not have committed, but merely to detect and obtain evidence against an offender who is only too ready to commit the offence." 56 The finding was further consistent with his Honour's conclusion after the voir dire hearing, to which he referred, that the appellant had not been induced to commit the crime by police conduct. His Honour did not err in rejecting the claim for discount to the appellant's sentence for "entrapment". 57 Nor was he in error in not reducing the sentence on the appellant to reflect parity with the co-offender Cluff. No sense of grievance arising from the milder treatment (noted above) received by Cluff could be justifiable: Lowe v The Queen 1984 154 CLR 606. 58 The circumstances were that the appellant was in a principal role as a financial partner and organizer of the proposed importation of drugs and, on subjective matters, he had significant prior convictions and earned no leniency for any acknowledgment of guilt or remorse. Cluff played a relatively minor role as an intermediary and was intended by the appellant and others to be excluded from the ultimate execution of the enterprise and, presumably, its anticipated profit. When arrested, Cluff made full and frank admissions which were essential to any proceeding against him in respect of the earlier crime involving Harvey. He was found to have manifested remorse and contrition and, of paramount importance, he placed himself in real danger by agreeing to give evidence against the other conspirators. That Johnston DCJ had apparently incomplete information about his antecedents at the time of sentence does not affect current issues. 59 There was no requirement to adjust the appellant's sentence downwards to accommodate any parity with that received by Cluff. 60 Bijkerk stood for sentence at the same time as the appellant. His situation was distinguished from that of the appellant obviously by his plea of guilty but it should be noted that this was given late in that it followed the earlier trial and two aborted trials and the objection leading to the voir dire hearing, in respect of the determination of which, he sought to preserve his right of appeal. Flannery DCJ found that both he and the appellant were "principals". It is, of course, requisite to go beyond mere categorization and examine what the offender has done: The Queen v Olbrich 1999 199 CLR 270. Bijkerk entered the conspiracy as a co-financier with the appellant; in furtherance of it he travelled twice to the United States, on the first occasion organizing the "dummy run" importing the pistol into Australia and on the second, the cocaine which he had acquired. Bijkerk was sentenced to six and a half years imprisonment with a non parole period of four years. Subject to the increase of six months on the head sentence, this was half of the sentence imposed on the appellant. 61 Flannery DCJ noted the lesser criminal history of Bijkerk compared with the appellant and accepted a volume of impressive character evidence concerning him. The appellant called no evidence of this type. However, the significant reason for the difference in sentence was the application of a discount to Bijkerk's sentence of approximately 40 percent for "entrapment". His Honour made no finding as to what circumstances constituted either actual or possible entrapment. He stated: "The Crown very fairly conceded that Mr Bijkerk is entitled to a benefit by way of mitigation for entrapment but made no submission as to the amount of discount for entrapment and the reason for that position, I won't call it a concession it is not really a concession I think, was that at the time Modica was arrested Mr Bijkerk was not aware of the Modica scheme as distinct from Mr Richards. It might be more accurate to say there is no evidence that he aware of the scheme and that was the point made by the learned Crown Prosecutor. So, it follows that the sentence to be imposed on Mr Bijkerk for that reason must be less than the sentence imposed on Mr Richards." 62 Senior counsel for the Crown appearing in the appeal (who had not appeared below) was unable to cast light upon the reasons for the stated Crown concession save to observe that, as his Honour had, Bijkerk only became involved after Modica's arrest and, accordingly, after Modica had agreed to assist police. In the absence of any finding, it is difficult to perceive how this or anything else could have given rise to the substantial discount to Bijkerk's sentence or, indeed, any discount at all. The evidence shows that when Bijkerk "appeared on the scene" his first enquiry was whether the Modica scheme could be used to import cocaine from South America where it could be obtained more cheaply than in the United States. Bijkerk's foreknowledge of this asserted fact offers a considerable clue that he was not "an unwary innocent": Sherman v United States 356 US 369 (1958); R v Sloane 1990 49 A Crim R 270. He was told by Cluff that Cluff thought this (import from South America using the scheme) was not possible and the conspiracy to import narcotics from the United States proceeded. 63 I am unable to identify what circumstances in the relevant sense gave rise to the concession by the Crown that Bijkerk was entitled to a discount of sentence for "entrapment" nor what it was (other than the bare fact that police activity through Modica was underway before Bijkerk joined in) that could have led to a conclusion that Bijkerk may possibly not have offended but for some assistance, encouragement or incitement by police or Modica acting on their behalf. 64 Nevertheless, assuming the soundness of the sentence imposed on the appellant, as in my view is the case, senior counsel for the Crown conceded that there was a "real problem about parity" (between the appellant and Bijkerk) and commented that "whether or not there is to be some adjustment to account for that (the extensive difference between the respective sentences) it is not a position that I could strongly argue against". 65 Application of the principle of parity requires consideration in appropriate cases of the total effect of differing sentences imposed upon co-offenders: Postiglione v The Queen 1997 189 CLR 295. A prominent circumstance which has arisen is that the appellant will serve twice the custody of his co-offender before each reaches their respective dates of parole eligibility. The disparity between the sentences is so gross that intervention by this court is called for even though, viewed in isolation, the sentence imposed on the appellant was entirely appropriate. It is recognized that such intervention may occur when there is a manifest discrepancy such as to engender a justifiable sense of grievance by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, even to the point where it might be regarded as inadequate: Lowe (supra) per Mason J @pp 613-614. 66 I do not regard it as requisite to reduce the appellant's level to that of the sentence received by Bijkerk but the disparity should be reduced so that the "gap" is not such as to engender any grievance in the appellant which could be assessed as justifiable. 67 Basic matters have already been touched upon. The learned trial judge referred to personal circumstances and what he observed about such matters can be adopted without repetition. A report by a probation and parole officer manifested the difficulty of analysing the appellant's attitude. In part he reported: "The offender presents as a man whose formative years appear to have been stable and who subsequently excelled in his chosen sporting field and represented his country in the 1976 Olympic Games. Since then, while appearing to have had a satisfactory relationship with family members, he has come under adverse notice in relation to serious offences which he has repeatedly denied, and convictions against which he invariably appeals. He remains a convivial person, seemingly unperturbed in the face of the possibility of a further period in custody. He remains desirous of re-uniting with his family, maintaining that he is only motivated to live a trouble free existence and continue to be involved in the sport of judo." 68 On resentence the strictures of s16A and s16G of the Crimes Act (Commonwealth) 1914 must be applied and the guidance available from Wong (supra) must not be overlooked. 69 Flannery DCJ specified a non parole period equivalent to two thirds of head sentence. I consider that proportion is appropriate. I would resentence the appellant to nine years imprisonment with a non parole period of six years.

I propose the following orders and direction: 70 (1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted and appeal allowed. (3) Sentence imposed below quashed. (4) In lieu thereof the appellant be sentenced to nine years imprisonment with a non parole period of six years; the sentence and non parole period both to commence from 2 July 1998. (5) That the solicitor for the appellant be directed to explain to his client the purpose and consequences of fixing a non parole period in fulfilment of the obligation in s16F of the Crimes Act (Commonwealth) 1914 that the court cause such an explanation to be given. 71 POWELL JA: I agree with Grove J. 72 SIMPSON J: I agree with the judgment of Grove J and with his reasons therefor. **********

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