R v Thomas Dale Marchando [2003] NSWCCA 71 | Case summary

TUESDAY 25 MARCH 2003 REGINA v THOMAS DALE MARCHANDO Judgment 1 BUDDIN J: On 10 February 1999 the applicant pleaded guilty to being knowingly concerned, between 1 February and 14 February 1998, in the importation of not less than the trafficable quantity of methorphan and methylamphetamine. He was sentenced on 10 July 2000 by Judge Coleman to imprisonment for a period of 10 years with an associated non-parole period of 7 years. Each term was ordered to commence on 14 February 1998 which was the date of his arrest. The maximum penalty for the offence is imprisonment for 25 years and/or a fine of $100,000. The trafficable quantity is 2 grams. The Customs Act does not however prescribe a commercial quantity for either of these prohibited substances. The applicant seeks leave to appeal against the severity of the sentence thus imposed. 2 This matter has had a most unusual history. It has previously been before this Court when a challenge was brought, pursuant to s 5F of the Criminal Appeal Act 1912, in respect of two separate decisions of Judge Coleman refusing leave to the applicant to withdraw the plea of guilty which he had, as I have observed, entered on 10 February 1999. Simpson J, with whom Wood CJ at CL and Sully J agreed, delivered a judgment granting leave to appeal but dismissing the appeals. See R v Marchando (2000) 110 A Crim R 337. In the course of doing so, her Honour provided an extensive summary of the material that was relevant to those proceedings. As that material still has some relevance to the present application, her Honour's summary bears repetition. It is set out below: On 14 February 1998 the applicant, a United States citizen, was arrested at Sydney Airport having just arrived on a flight from Los Angeles. Two alleged co-offenders, Ms Diana Popescu and Ms Jennifer Howard were arrested shortly before the applicant. Strapped to the legs of the women was a quantity of methorphan and methylamphetamine, both drugs the importation of which is prohibited by s 233 B of the Customs Act 1901 (Cth). The Crown case is that the two women identified the applicant as a person who had, in Los Angeles, coached them in the techniques of secreting the drugs around their bodies, and advised them (wrongly) on the nature of the drugs and the possible consequences to them if they were apprehended, of the financial rewards they would receive for their participation, and what to say to Australian Customs officers should they be questioned. The three had travelled to Australia on the same flight, and although the applicant sat separately from the women, he made contact with them from time to time to check the security of the packages. A fourth person, Bogdan Bigic, travelled to Melbourne on an earlier flight. On their apprehension both women quickly admitted their guilt; they identified the two men and co-operated in the investigation that followed. They gave a number of statements to police in which they detailed their own involvement in the offence and that of Bigic and the applicant. They undertook to give evidence in the proceedings against the two men. Both women entered pleas of guilty to charges of importing not less than the trafficable quantity of the drugs. They were sentenced on 12 June 1998 by Judge Morgan, to identical terms of imprisonment for three and a half years with non-parole periods of 18 months. Her Honour expressly stated that the sentences were reduced by reason of past and promised co-operation with and assistance to the authorities and would otherwise have been (after the reduction made necessary by s 16G of the Crimes Act 1914 (Cth)) terms of six years with non-parole periods of four years. Bigic pleaded guilty on 8 February 1999. On 8 April he was sentenced by Judge Coleman to imprisonment for nine years with a non-parole period of six years. An application for leave to appeal the sentence was heard by this Court on the same day as the present application. Bigic's plea was entered on the day fixed for a joint trial of the two men. At that time the applicant maintained his plea of not guilty. Before a jury was empanelled Judge Coleman heard argument concerning the admission of certain prosecution evidence. Relevantly for present purposes this evidence included evidence taken by video-link from a United States witness, George Shandi. It will be necessary to consider the nature and admissibility of this evidence in more detail below. On 10 February 1999 Judge Coleman ruled that the evidence (subject to certain minor excisions) would be admitted. Following that decision the applicant also pleaded guilty. Counsel for the applicant then asked that the proceedings be transferred to Judge Morgan for sentence but the transcript shows that this request was not pursued. Before the sentencing hearing (for which, because substantial dispute over the facts alleged by the Crown was anticipated, several days were set aside) the applicant sought leave to withdraw his plea of guilty. At the same time he asked that Judge Coleman disqualify himself from hearing the application. Having refused that request Judge Coleman proceeded to hear and determine the application to reverse the plea. After a hearing that occupied several days he refused the application on 3 May and proceeded to hear the evidence relevant to sentence. Before that matter had progressed very far, however, it became apparent that the applicant, through cross-examination of the Crown witnesses, was seeking to traverse essential elements of the offence to which he had pleaded guilty. Judge Coleman resolved to continue with the sentence hearing but to entertain a further application, if made, at the conclusion of the evidence on sentence. On 9 June he again refused the leave sought. The applications in the District Court The first application to Judge Coleman was made on the basis of affidavit and oral evidence of the applicant, together with affidavit evidence of three solicitors and one barrister who had at different times represented him. Essentially, the case he sought to advance was that, except for the occasion on which he had pleaded guilty, he had at all times maintained his innocence and had maintained an intention to defend the charge. The plea of guilty, on his case, was a temporary aberration brought about by a combination of factors, including: · the judge's decision of 10 February to admit the video-link evidence of Mr Shandi; · advice given to him in strong terms by his legal representatives that he was likely to be convicted and that his best prospects of minimising the sentence to be imposed lay in taking advantage of the discount on sentence to which he would be entitled on a plea of guilty; · his desperation to return home to the United States of America, and his belief, based on legal advice, that if he pleaded guilty he would be sentenced by Judge Morgan and the sentence would be of similar duration to those imposed on the two women - hence, having been in custody since February 1998, he would be released in about September 1999; · a decision of the Legal Aid Commission, which was providing his legal representation, not to fund the travel to Australia of three United States witnesses who might be able to assist in his defence, a decision that led him to conclude that he had no prospects of successfully defending the charge. The applicant, more than once in his affidavit, asserted his innocence. He claimed, in short, that the plea of guilty should not be seen as an acknowledgment of guilt, but rather was brought about by the pressure of a variety of circumstances that, in combination, led him to plead guilty to a charge of which he was innocent. Some aspects of the applicant's evidence were confirmed by the evidence of his various legal advisers. For example, one of the solicitors deposed that he had advised the applicant to "take the benefit of a guilty plea". The barrister's evidence in this respect was to similar effect. However, there is no suggestion that any improper pressure was brought to bear, or that the advice was other than the result of an objective, dispassionate and realistic assessment on the strength of the Crown case. The same solicitor confirmed that the Legal Aid Commission had refused to fund the three potential witnesses to travel to Australia from the United States. In one important respect the evidence of the barrister is at odds with that of the applicant. The barrister deposed that, far from advising the applicant that on a plea of guilty he could expect a sentence similar to the sentences imposed upon the female co-offenders (those sentences having been reduced to a significant and identified extent by reason of their co-operation with authorities) the applicant's sentence was likely to fall within the range specified by Judge Morgan as the appropriate sentence before the discount for co-operation and assistance was given. The barrister also said that he advised the applicant that another determinative factor would be the assessment of the role played by the applicant in the importation relative to that of the two women. It may here be interpolated that the advice given by the barrister was correct. The applicant gave oral evidence and was extensively cross-examined. He presented himself as a person ignorant of Australian legal procedures. At one point he said that he did not appreciate that the charge to which he had pleaded guilty was a charge that he had been knowingly concerned in the importation of narcotics. The judgment of 3 May 1999 Judge Coleman took a highly unfavourable view of the applicant's credibility. He expressly rejected the applicant's claim that he believed that, if he pleaded guilty, he would be sentenced similarly to the two women. Judge Coleman referred to the contradictory evidence of the applicant's then barrister, and also to evidence, elicited from the applicant in cross-examination, that he had read Judge Morgan's remarks when sentencing the women. As Judge Coleman observed, in those remarks her Honour made it quite plain that the reason for the reduction in sentence was co-operation and assistance provided by those prisoners, a reduction the applicant obviously could not expect in his own sentence. In the subsequent judgment the judge remarked on the applicant's obvious intelligence. Judge Coleman disbelieved evidence given by the applicant orally that he had not understood what was alleged against him and declared himself satisfied that there was no misunderstanding. He concluded that the applicant had entered the plea in recognition and acceptance of the advice he had received that his prospects of acquittal were minimal and the best he could hope for was the discount attendant upon a plea of guilty. Judge Coleman also noted the evidence and argument that the applicant had decided to plead guilty as a matter of expediency when advised that the United States witnesses would not be available. Notwithstanding that consideration his Honour was satisfied that when the applicant entered the plea he intended to admit his guilt, that no circumstances had been demonstrated that indicated that the plea was other than attributable to a genuine consciousness of guilt and it was not induced by any impropriety or other factor calling its integrity into question. The judge then proceeded to hear evidence relevant to sentence including oral evidence of Popescu and Howard each of whom described an occasion when they, with the help of Bigic and the applicant, had practised strapping packages to their legs. During cross-examination of these witnesses on the applicant's behalf a new scenario emerged. It was suggested to them that they had travelled to Australia for purposes of prostitution and that the applicant and Bigic travelled with them as bodyguards. The applicant himself gave evidence denying any knowledge of the drugs strapped to the women's legs. In the course of his evidence he asserted, inconsistently with what had been put to the two women, that he had no arrangement or agreement to protect them or to act as bodyguard, and he was travelling to Australian only for a vacation. At the conclusion of the evidence on sentence his Honour permitted the applicant to make a further application for leave to withdraw the plea, based upon asserted changes in circumstances since the earlier refusal. The changed circumstances relied upon were the nature of the defence now foreshadowed by the cross-examination of the women, a denial of knowledge of the drug importation. Such knowledge is, of course, an essential element of the offence with which the applicant was charged. The judgment of 9 June Judge Coleman again disbelieved the applicant. He described him as "an unreliable witness who was prepared to factor and change his case as the evidence in the Crown case progressed". However, he reconsidered the application and found nothing in the evidence that caused him to change the views earlier formed. He found the applicant to be "an intelligent and articulate witness who plainly understood what was happening". He adhered to the conclusion previously reached that when the applicant entered his plea of guilty he did so with a genuine consciousness of guilt and with an understanding of the circumstances in which it was alleged that the importation took place. He acknowledged that, unless he was satisfied beyond reasonable doubt that the applicant knew of the presence of the drugs, he would have been obliged to permit the change of plea, and declared himself satisfied to the requisite standard that the applicant did have the necessary knowledge. (at 338-342) 3 Simpson J rejected an argument that the trial judge had erred in admitting the evidence of Mr Shandi, who was a Los Angeles travel agent from whom the airline tickets for both the applicant and Bigic and the two women were purchased. Mr Shandi identified the applicant as the person who had collected the tickets. As Mr Shandi was unwilling to travel to Australia, his evidence had been taken by video-link. 4 Her Honour then proceeded to deal with the remaining grounds. In respect of them, her Honour said: As argued, they amounted to an assertion that Judge Coleman failed to take into account relevant facts and circumstances and that the conclusion that the plea of guilty was attributable to a genuine consciousness of guilt was not sustainable. The facts and circumstances were identified as: (i) the applicant's evidence in his affidavit that he was innocent of the charge; (ii) confusion about the nature of the charge to which the plea was entered; (iii) pressure imposed on the applicant by his legal advisers and fear concerning his position; (iv) the refusal of the Legal Aid Commission to fund the travel of witnesses from the United States to Australia to give evidence in the defence case; (v) the applicant's "pressing desire" to return home as soon as possible; (vi) the time at which the plea was entered, coinciding closely with the ruling on the admission of the videotaped evidence. His Honour expressly rejected the applicant's claim to have been confused about, or ignorant of, the charge; and that his plea was entered for any reason other than as an acknowledgment of guilt. In the second judgment, having heard evidence from the applicant as well as the Crown witnesses, he expressly found, on the criminal standard, that the applicant was aware of the importation. Having regard to the timing of the plea of guilty in relation to the ruling on the admission of the Shandi evidence, I regard it as a reasonable inference that that determination was, at least, a factor in the applicant's decision to plead guilty. However, in the light of my conclusions above, concerning the correctness of that determination, the coincidence of the timing does not advance the applicant's case. His Honour made express mention of the refusal of the Legal Aid Commission to fund witness travel to Australia but did not find this a compelling basis for casting doubt on the integrity of the plea. In this he was clearly correct. There has never been any elaboration of the identity of the proposed witnesses, the evidence the applicant expected them to give, or even the issues to which their evidence was supposedly relevant. His Honour could not properly have given any weight to that fact in the circumstances. The judge's findings of fact, especially those relating to the applicant's credit, conclude the case against the applicant. There is no reason to doubt the correctness of either of the decisions to refuse leave to reverse the plea. (at 346-7) 5 On the same day this Court also dismissed Bigic's appeal against the severity of the sentence imposed upon him. See R v Bigic [2000] NSWCCA 9. 6 Judge Coleman found the following facts for the purpose of sentencing the applicant:

The prisoner had possession and control of the drug in Los Angeles and supervised the trial strapping and the final strapping onto the couriers. He coached the couriers as to their presentation and dress and advised them on precautions to avoid coming under notice. He accompanied them on the flight to Australia to provide security and provided the cash for their tickets and coordinated the movements of them and Bigic. He provided security on the flight to Australia and was ready to assume control at Sydney Airport once the couriers had passed through customs and was in telephone contact with Mr Bigic who was in the Sydney metropolitan area ready to pick up the prisoner and the couriers. The prisoner was keeping a table of expenses and he was responsible for the distribution of the payments to the couriers and Mr Bigic for their parts in the operation. There was no evidence which establishes the source of the drugs which the prisoner obtained in the Unites States, but he organised the couriers and Mr Bigic and the actual importation, and was the principal in that exercise. 10 In the context of considering a submission directed to the issue of parity, his Honour said: The prisoner was substantially more involved than either of the women and was also more involved than Mr Bigic, in the sense that the prisoner had the control of the supply of the drugs and the movement and coordination of those involved in the importation and was to benefit from the sale. In view of the more substantial role played by the prisoner, especially when taken together with the greater benefit which the couriers were entitled to in relation to the timing of their pleas, it means that there cannot be parity between the prisoner, Ms Popescu and Ms Howard, and the same argument applies as between the prisoner and Mr Bigic 11 In sentencing Bigic on 8 April 1999 his Honour had said: The evidence available satisfies me that the prisoner was acting in the mid-level role above that of courier and below that of Marchando. He accompanied Marchando at the trial fitting of the drugs and assisted in that process and arranged for the airline tickets for himself, Marchando and the couriers as well as visas and he travelled to Melbourne and drove up to Sydney and was available to give assistance to Marchando at the time that the flight from Los Angeles arrived. 12 His Honour stressed that in arriving at an assessment of the applicant's role in the importation he had confined his attention to the material which was before him on the sentencing hearing, which was concerned to determine the facts that were said to be in dispute, and that he had put to one side the findings of fact which he had made when sentencing Bigic. His Honour noted however that the evidence which he had heard in relation to the disputed facts had confirmed his view as to Bigic's role. 13 It is clear that although his Honour described the applicant as being the "principal" in the "actual importation", his Honour did not, in so characterising his role, fall into the error of thereby obscuring the assessment of what he actually had done. See R v Olbrich [1999] 199 CLR 270 at 279. 14 Judge Coleman had regard, when sentencing the applicant, to those subjective matters upon which he was entitled to rely. His Honour referred to his background in the United States and to the fact that he appeared to have the continuing support of his family and girlfriend although he remained concerned about their safety by reason of their having received threats from some of his former associates. He had been, and expects upon his release from custody to resume, working in the telecommunications sales field. His Honour noted that the applicant suffers from alopecia and that he was under stress because he has been unable, whilst in custody, to obtain medication with which to control that condition. 15 The applicant has no prior convictions in the United States. He was however fined $1500 in June 1995 after being detained at Melbourne Airport where he was found to have 1400 grams of tablets attached to his abdomen in a body pack. The applicant alleged that the tablets were steroids but it appears, for reasons that are not entirely clear, that they were never subjected to analysis. He was apparently to meet Bigic on that occasion as well. 16 His Honour observed that the applicant was to be "given credit for the plea of guilty on the utilitarian basis" although his actions in seeking to withdraw his plea "limits the benefit he might have otherwise obtained from the guilty plea and throws into perspective the extent to which he is fully contrite about his conduct." 17 His Honour also had regard to the question of the applicant's offer of assistance to the authorities. That is a matter to which specific reference is made in s 16A(2)(h) and s 21E of the Crimes Act 1914 (C'th). 18 Material relevant to this issue was furnished to Judge Coleman in the form of statements made by the applicant on 10 April and 28 April 2000. That material was amplified to include an assessment by Federal Agent Noble, in a statement dated 10 June 2000, of the value of the information which had been advanced by the applicant. The first matter upon which the applicant provided information concerned a counterfeiting business which involved the use of travellers' cheques. The information related to events which had occurred in 1996 and 1997, some of which the applicant had actually observed. Persons involved in the investigation had already been convicted and sentenced before the applicant provided any information about it. In those circumstances, the information which he furnished was said to be of no assistance to the authorities. 19 The second matter concerned the importation of liquid GBH in a toner cartridge. Investigations carried out by Federal Agent Noble established that the information was unlikely to lead to any prosecutions. Inquiries failed to provide any support for any of the assertions made by the applicant. Moreover the information was said to be of no value in part because the events had taken place at a time that was well in the past and in part because not much credence was, or could be, placed on what the applicant had said. 20 The third matter concerned allegations of witness tampering in respect of Mr Shandi. Those allegations, upon investigation, were found to be without substance. Mr Shandi had informed police about the matter but had said that no threat had been made to him. The final matter involved allegations of witness tampering in relation to Ms Popescu and Ms Howard, a matter to which I shall return in due course. Although charges had already been laid in respect of those matters, the information that the applicant provided was assessed as not being of any great value. As I understand the situation, this together with some of the other matters were said to involve, amongst others, Mr Bigic. In making the assessment of the overall value of this information, the police had regard to the fact that the applicant's credibility had been significantly damaged by the stance which he had taken in respect of these proceedings. 21 His Honour nevertheless came to the view, in light of this court's decisions in R v Cartwright (1989) 17 NSWLR 243 and R v Yenice (1994) 72 A Crim R 234, that the applicant was entitled to a discount for his assistance to the authorities. Notwithstanding the fact that the information provided was unlikely to be effective, his Honour nonetheless allowed the applicant a discount because he found that his offer of assistance was genuine. 22 Having made the adjustment which was then required by s 16G of the Crimes Act, his Honour concluded that a sentence of 12 years' imprisonment with an associated non-parole period of 8 years was called for. That sentence was then further adjusted to take account of the applicant's offer of assistance to the authorities. His Honour accordingly reduced the head sentence to one of 10 years' imprisonment and the non-parole period to one of 7 years' imprisonment. 23 This court's decision on the s 5F applications was delivered on 11 February 2000. The sentence proceedings recommenced on 14 April 2000. On that occasion the applicant was represented by a solicitor, Mr Paul Kenny who had not previously appeared in the matter. Mr Kenny sought leave to re-open the applicant's case on sentence to tender telephone records which, it seems to have been accepted, were capable of having only "peripheral relevance" to the case. The application was refused. The applicant's statement of 10 April 2000 was tendered. Mr Kenny then made submissions on sentence on behalf of the applicant. The matter was adjourned until 20 April 2000 for sentence. 24 On 20 April 2000 Judge Coleman decided that he wished to give further consideration to the question of the applicant's offer of assistance to authorities. His Honour heard evidence from Federal Agent Noble, the effect of which I referred to earlier. His Honour then acceded to an application by the applicant that the proceedings should be again adjourned so that the question of the assistance offered by the applicant could be further investigated. The matter was then adjourned until 16 June 2000 for sentence. 25 On 16 June 2000 Mr Higgins of counsel appeared on behalf of the applicant for the first time. On that occasion Federal Agent Noble's statement of 10 June 2000 concerning his further investigations concerning the question of assistance was tendered. Its contents merely confirmed what he had earlier told the court on 20 April. There was also cross-examination on that day of another Federal agent who had said, in an entirely separate statement of facts, that "the principal behind the importation was a male known to them as "Bob". (That may be taken to be a reference to Mr Bigic.) Having heard her evidence, Judge Coleman accepted her explanation that she had simply made an error in the document. His Honour said that nothing had emerged from her evidence which would cause him to change his findings of fact on that issue. 26 Further submissions on sentence were then made and the matter was adjourned for sentence until 10 July 2000 but not before another unsuccessful attempt was made on behalf of the applicant to re-open his case so that the telephone records which he had endeavoured to tender on 14 April 2000 could be admitted into evidence. 27 On 10 July 2000 the applicant sought yet again to re-open the proceedings. Application was made that the proceedings should be further adjourned in order that additional material, which was described in the transcript, as "fresh evidence re prisoner's role in the importation", could be obtained. 28 The material upon which reliance was placed was contained in an affidavit of 10 July 2000 of the applicant's solicitor, Mr Kenny. In it Mr Kenny said that he had been contacted by another solicitor, Ross Hill. (Mr Hill had coincidentally appeared for the applicant when he entered the plea of guilty before Judge Coleman.) On 4 July Mr Hill informed Mr Kenny that a client of his, Mr Anthony Craig Boston, wished to speak to Mr Kenny. A conversation then took place between Mr Kenny and Mr Boston. Mr Boston told Mr Kenny that he had earlier that morning pleaded guilty to two offences of attempting to induce witnesses in judicial proceedings to give false testimony. The proceedings were those involving Bigic and the witnesses were Ms Popescu and Ms Howard. As I previously observed, this was one of the matters in relation to which the applicant had apparently offered to provide assistance to the authorities. The nub of the conversation which Mr Kenny had with Mr Boston is encapsulated in the following passage which appears in Mr Kenny's affidavit: On numerous occasions Bigic confided in Boston that he had been the principal in the importation involving Bigic, Marchando and the two females, Popescu and Howard. Bigic had told Boston that he obtain (sic) the drugs involved in the United States from his contacts and he had distributors in Australia. 29 Mr Boston told Mr Kenny that he wanted to discuss the matter with Mr Hill before committing himself to writing. Mr Kenny then deposed to a conversation he had had several days later with Mr Hill in which the latter had informed him that Mr Boston did wish to commit himself to writing but that it had not been possible to obtain a statement from him in the time available given that Mr Boston had been transferred, in the interim, to a country gaol. 30 In rejecting the application for an adjournment, his Honour is recorded as saying: I have read the material which is set forth in the draft affidavit proposed to be sworn by Mr Paul Kenny, dealing with evidence which can be made available by Craig Anthony Boston. I have read the affidavit and I have taken the contents of the affidavit into account. I have already last year, spent a number of days determining the factual situation in this case. I have taken into account the material contained in the affidavit, the nature of the allegations; there is nothing in the affidavit which, in my view, bears on the findings of fact that I have already made, nor do I see any reason to adjourn these proceedings for the purpose of enabling evidence to be led from that source. I decline to do so and the sentencing proceedings will go on now. 31 It is submitted that Judge Coleman erred in refusing the application for an adjournment. It is further submitted that his Honour erred in concluding that there was nothing in the affidavit which "bears on the findings of fact that I have already made". His Honour also observed that "this again is an application made by the prisoner on the day of the sentencing proceedings. I have not allowed that to influence my judgment in this matter." 32 That latter observation may be taken to be a reference to the extraordinary course which the matter had taken until that point. It is unnecessary, in the light of what Simpson J said on the previous occasion on which the matter was before this Court, to retrace the history of the matter up until that time. 33 I have already related the course which the matter took thereafter. It was against that highly unusual background that the application for adjournment stood to be considered. Every conceivable point which had been available to the applicant had been taken on his behalf since he had first entered the plea of guilty on 10 February 1999. More importantly he had had every opportunity to place material before the court as to his role in this offence. Nearly 18 months had passed since the plea was entered and the applicant had yet to be sentenced. A very large number of adjournments had already been granted during that period to the applicant. Several of them had been necessitated because of decisions by the applicant to change lawyers. 34 It is also to be observed that the material in Mr Kenny's affidavit merely foreshadowed what Mr Boston was apparently prepared to say. Critically, there was no indication as to when Mr Boston would be in a position to put in writing what he had foreshadowed saying. In those circumstances it was clearly open to his Honour to take the view that the interests of justice required that the matter proceed to finality. I am not persuaded, in the circumstances, that the applicant has demonstrated that his Honour's discretion miscarried. I would reject this ground of appeal. 35 An affidavit of Anthony Craig Boston, sworn 1 February 2001, has been filed in these proceedings. The applicant contends that in the event that he is unable to persuade the court that Judge Coleman erred in refusing the adjournment, the court ought to nevertheless receive the evidence of Mr Boston as "new evidence that might impact on sentence". It is not sought to rely upon any other evidence. 36 The Court does not ordinarily receive fresh or additional or new evidence on sentence appeals and proper grounds must be established before its discretion to do so will be exercised. See R v Lanham [1970] 2 NSWR 217. That said, there are some limited circumstances in which such material may be received. One example is where incompetent representation has led to a miscarriage of justice. See R v Abbott (1984) 17 A Crim R 355. Nothing of that sort is alleged here. 37 In R v Goodwin (1990) 51 A Crim R 328, Hunt J, with whom Grove J agreed, said that what must be established by the applicant before such material can be received is: (1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings. (at 330) 38 In R v Fordham (1997) 98 A Crim R 359 this Court said that "generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice." (At 377) 39 In his affidavit Mr Boston said that he was on remand at Silverwater MRCC at the end of 1998 or early 1999. He there met the applicant and Mr Bigic. He spoke to Bigic about his case. The relevant parts of that affidavit are set out below: After a while it became clear to me from what Bob was telling me that he had been the principal in the drug importation and thatTom had been assisting him. I do not recall all the conversations I had with Bob word for word but over an extended period of time I became closer to Bob than I did to Tom. I had discussions with Bob away from Tom and almost right from the time that Bob started to confide in me he told me that his plan was to go along with Tom and always make Tom think that the matter was going to be defended at a trial. But Bob's real plan was to lead Tom along and to have Tom take the 'rap' for the whole importation. Bob was pretty adamant that he could win the case and make it appear that Tom had done everything. I can't remember at exactly what time it was, but Bob told me that he had purchased the drugs in question in the United States from his contacts over there and when the drugs arrived they were to be distributed through his contacts in Melbourne. He told me that he wanted the drugs to arrive in Sydney rather than in Melbourne because he is from Melbourne. He told me also told me (sic) that he had paid for the airfares for the two female couriers and that he had planned to pay the couriers when they arrived in Sydney. He was to provide accommodation and living expenses for them to have a holiday for two weeks. … I knew, from talking to Bob and Tom, that the two female couriers, Jennifer HOWARD and Dianne POPESCU, were inmates at Mulawa Womens Correction Centre. I knew three females in Mulawa and at some stage that came up in conversation. When Bob learned that I knew the three females he became very interested and he asked me if I could assist him in getting a message through the females I knew to the couriers, HOWARD and POPESCU, that they should not give any evidence against Bob but they should say that everything should be dumped on Tom. Bob was very secretive about this and Tom was not to find out. He wrote down what he wanted HOWARD and POPESCU to say, and particularly not to identify Bob from any photos. Foolishly I became involved with Bob and I wrote letters he asked me to write as a favour. In hindsight it was a very stupid thing to do. The letters were detected by Corrective Services and I was later charged with 'induce witness to give false testimony' and I received a six month sentence for my involvement. The letters never got to the females I knew. …getting closer toward the time when Bob and Tom were going to their trial I was present near the kitchen area at Silverwater MRCC one afternoon after the other inmates had been locked in when I overheard a conversation between Bob and Tom. I cannot recount the conversation word for word but Bob, Tom and I were working in that area as sweepers and I heard Bob ask Tom to 'put his hand up and 'take the rap'. The words were very similar to that but it was clear to me that Bob was asking Tom to take the blame for the whole importation and say that Bob was not involved. The conversation became very heated between Bob and Tom and Tom was saying to Bob that Bob had arranged the whole thing and why should he, being Tom, 'take the rap' when he had been assisting Bob and the drugs were Bob's and, from what I had heard, most of the profits were going to Bob. Bob had told me many times previously that he would have 'made a killing' if everything had gone to plan and he was going to make 'thousands and thousands and thousands' out of the importation. When Tom said he would not 'take the rap' Bob went off his head. By that I mean Bob went absolutely berserk and he picked up a chair and threw it at Tom and Tom took off. Then Bob picked up a table and held it above his head and said to Tom 'I should belt you with this. Hopefully it will kill you and this will be all over'. Tom took off and Bob threw the table to the ground. Then Bob and Tom's trial commenced and Bob had made it appear that he was going totrialk (sic) and pleading 'not guilty' but on the first day of the trial when Bob returned to Silverwater he told me that his legal representatives had advised him to change his plea to 'guilty' and he had done that. Bob told me that Tom was continuing with his 'not guilty' plea. A couple of days later Tom was still going to Court and I was talking to Bob and Bob told me that he pleaded guilty and 'pulled the rug out from under Tom' when he pleaded guilty to make it look like Tom was the head man. 40 Some time later he was asked by representatives from the Australian Federal Police if he wished to give evidence against Bigic in relation to the "witness tampering" matter. He declined to do so. 41 The applicant submits that the affidavit of Mr Boston has two significant aspects to it. First, it is asserted that he can provide direct evidence of conversations that confirm Bigic's role as "the principal". Secondly, it is submitted that he can give evidence that Bigic was endeavouring to improperly influence the evidence to be given by Ms Popescu and Ms Howard. It is accepted that the only evidence about the latter issue that was before Judge Coleman came, not from what it was anticipated that Mr Boston might say but, from what the applicant had said in his letter of assistance. 42 The Australian Federal Police commenced an investigation into this matter during the course of which it intercepted a number of letters written by inmates at the Silverwater complex which were intended for inmates at the Mulawa Women's Prison. Ms Popescu and Ms Howard were then at Emu Plains gaol but it was apparently intended to have them contacted through intermediaries. The letter written by Mr Boston was undated but was received at Mulawa on 4 February 1999. Its contents were substantially similar to Mr Boston's description of them in his affidavit although it did not in terms say that "everything should be dumped on Tom". A further letter in similar terms was written by another male prisoner, David Ross, which was intercepted on or about 8 February. Both he and Mr Boston are said to have extensive criminal records. 43 It is submitted that the evidence of Mr Boston and the letters which were intercepted "indicate that Mr Bigic would be the beneficiary of any improper influence at the expense of the applicant." It is further submitted that although the letters were intercepted, "it is clear that there was an attempt by more than one person to influence the witnesses. It is therefore open that there may have been others that were successful in contacting and influencing the witnesses." 44 It is important to observe that Mr Bigic was intending to plead not guilty to the charge which he was facing right up until the day of his trial. It was only on that day (8 February 1999) that he decided to enter a plea of guilty. So much is apparent from the affidavit of Mr Boston. 45 The only reasonable inference open from the circumstances which I have outlined is that Mr Bigic's alleged endeavours to influence the evidence which Ms Popescu and Ms Howard were expected to give were made at a time when he was still going to contest the charge against him. 46 It would appear that his motivation was solely to try and improperly secure an acquittal for himself. However there is no evidence to suggest that he made any further attempts of any kind to influence them after he had pleaded guilty. Ms Popescu and Ms Howard did not give evidence until May 1999 by which time Mr Bigic had already been sentenced. By then he had no continuing interest in what evidence they could give because it could not impact upon his proceedings. In short, Mr Bigic's concern about Ms Popescu and Ms Howard disappeared after he entered his plea of guilty. It is difficult to see what connection there could then be between what Mr Bigic had been doing prior to his plea of guilty and the evidence given by the witnesses some time after he was sentenced. 47 Furthermore, there is no evidence whatsoever that Mr Bigic's endeavours to influence the two witnesses met with any success. There is no evidence to suggest that contact of any kind was actually made with either of them, much less any evidence that either of them was in fact influenced in any way. The applicant's submissions to the contrary cannot be accepted. 48 In any event, the sentence proceedings in respect of the applicant did not turn upon a consideration of the relative positions which he and Mr Bigic occupied in the hierarchy of offenders. There was certainly no cross-examination of the witnesses as to that issue. The applicant's stance throughout those proceedings was that he had been wrongly accused of an offence with which he had no involvement. 49 In those circumstances what Mr Boston may be able to say about the question of attempts to tamper with the witnesses cannot, in any meaningful sense, have any bearing upon Judge Coleman's conclusion as to the respective positions of Mr Bigic and the applicant in the hierarchy of offenders. 50 That leaves the issue of what Mr Boston may be able to say concerning what he maintains Mr Bigic said to him about his role in the offence. Again it is apparent that the relevant conversations took place at a time when Mr Bigic was intending to contest the charge. At that stage his strategy, if Mr Boston is to be accepted, was not only to seek to influence the evidence of Ms Popescu and Ms Howard, but also to exculpate himself by placing the blame entirely at the feet of the applicant. However as I have already said things changed when Mr Bigic pleaded guilty. Mr Boston's affidavit, even taken at face value, must be read in that context. 51 Moreover, in at least one important respect, Mr Boston's affidavit does not assist the applicant. In it, Mr Boston clearly suggests that the applicant admitted, in his presence, to an involvement in the offence, albeit that his role was subservient to that performed by Mr Bigic. However there is no evidence before this Court to suggest other than that the applicant still maintains that he had no involvement whatsoever in the offence. 52 The next difficulty which is apparent on the face of the affidavit is that Mr Boston is unable to relate the actual conversations which he had with Mr Bigic. Much of what is set out in the affidavit depends upon Mr Boston's interpretation of conversations which had occurred two years previously and the conclusions which he had drawn from them. His recollection of the conversations could hardly, in those circumstances, be seen as particularly reliable. The evidence of prison informers is, in any event, rightly treated with very considerable scepticism. But, even if Mr Bigic had made the remarks attributed to him, that would not establish that what he had said was indeed the truth. 53 Furthermore, no reason has been advanced to explain why this material was not made available at, or close to the time at which, the conversations were said to have occurred, or at least at an earlier stage of the sentencing proceedings. This is not an unimportant consideration because Mr Boston makes it clear that the applicant was a party to at least one conversation with Mr Bigic shortly before they were due to go to trial, in which he is said to have described his role in a way that he would now wish the court to accept is the truth. The material in question only emerged well after proceedings against Mr Bigic had come to an end, and at a time when he was no longer in jeopardy. Although Mr Boston's affidavit was sworn after the applicant was sentenced, there had of course been an indication beforehand as to what it may contain. Judge Coleman had foreshadowed in his judgment of 9 June 1999 what his findings were likely to be. They were clearly going to be adverse to the applicant. 54 Against those considerations, is to be placed the fact that Judge Coleman had heard evidence and considered other material over a number of days concerning the applicant's role in this offence. The evidence was primarily that given by Ms Popescu and Ms Howard each of whom had provided a version of events within hours of their arrest. In it they had each implicated the applicant. They had each described what he had done towards the commission of the offence. The versions which they gave were consistent with one another. The sentencing judge concluded that there had been no opportunity for them to discuss in advance what they would tell the police. 55 Each of the witnesses gave evidence during the sentencing proceedings which was consistent with what they had said in their respective records of interview. Moreover there was material available which was capable of corroborating some parts of that evidence. For example, the telephone numbers of each of them appeared in the applicant's diary notwithstanding the fact that he had told a Customs officer that he had only met them on the plane. There was also a page in the applicant's diary headed "My Exp" under which appeared the following entry: "Tickets Aust $5,450" "Marky Chix $3000" "Marky Chix $6,000" 56 Marky was the person who had first put Ms Popescu in contact with the applicant. In light of other evidence in the case, that was material which was capable of supporting the Crown contention that the applicant had indeed offered to pay each of the couriers $3000 upon their arrival in Australia. 57 Judge Coleman of course made his findings of fact upon the basis of the evidence as it emerged before him. He had powerful evidence from two witnesses whose versions of events was substantially to the same effect. There was no evidence to the contrary. As I have said the applicant had, and has had, every opportunity to put forward a different version of events. He has chosen not to do so. No doubt it was these considerations that prompted his Honour to pass the remarks which he did in refusing the adjournment. 58 In my view the applicant has not demonstrated that the absence of Mr Boston's evidence has "resulted in a miscarriage of justice". Nor has he demonstrated, to employ the test postulated in Goodwin, that the material is "of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision". Nor has the applicant established that he did not realise the significance of the evidence at the time. In my view the Court should not receive the evidence of Mr Boston. 59 Finally the applicant submitted that the sentence imposed upon him was manifestly excessive. In support of that contention it was submitted that the starting point, before the s16G adjustment and before the reduction for assistance to authorities, must have been in the order of 20 years because a discount of 10% must have been allowed for the plea of guilty. Accordingly it was submitted that, given the maximum penalty available for the offence, a starting point of that magnitude must inevitably have been outside the available range. 60 In my view the assumption, that an additional discount of 10% over and above the reduction for assistance to authorities, was either allowed by Judge Coleman or was appropriate in the circumstances of this case for the applicant's plea of guilty, is unwarranted. In the first place, it was a belated plea of guilty. That would not of course disentitle the applicant to any credit at all. However, it is difficult to see that it had other than a limited "utilitarian benefit" in view of the fact that the Crown was required to call a considerable part of its case against the applicant in any event. It is true, in the final analysis, that the plea of guilty ensured the applicant's conviction. That said, the applicant took every measure available to him to avoid that occurring. The fact remains that he was simply unsuccessful in that endeavour. It is difficult to reconcile what occurred in this case with what the High Court had in mind in R v Cameron (2002) 187 ALR 65, when it referred to a discount being extended to an offender who had, by reason of a plea of guilty, "facilitated the course of justice". All in all, the applicant was entitled to only minimal consideration for his plea of guilty in the present case. His situation was certainly very different to that of his co-offenders all of whom had also pleaded guilty. 61 Nor in my view was the applicant entitled to any significant discount for his offer of assistance to the authorities. In all the circumstances it was of very limited utility. Furthermore, the applicant could never have been relied upon as a credible witness. Judge Coleman appears to have made findings upon this issue which were very generous to the applicant. See R v Gallagher (1991) 23 NSWLR 220. Were I to come to the view that error had been established that would then be a matter of relevance because in those circumstances I would not form the opinion that some other sentence was warranted in law and should have been passed. Criminal Appeal Act 1912 s 6(3). 62 The applicant also contends that Judge Coleman was led into error by placing reliance upon what Simpson J said in this court in Bigic. It was submitted that Her Honour erred in having regard to this Court's guideline judgment in R v Wong and Leung (1999) 48 NSWLR 340 because of what the High Court said about it in Wong and Leung v The Queen (2001) 207 CLR 584. I am not persuaded that the manner in which Simpson J expressed herself in Bigic demonstrated that she had placed reliance upon the Wong & Leung guideline in a way in which the High Court said was inappropriate. Her Honour said that "caution should be exercised in the present case in attempting to transpose the sentences there promulgated to the present case. … Even treating the guideline judgement with the necessary caution, in so far as it is of assistance in the present case, in my opinion it demonstrates that the sentence imposed on the applicant does indeed fall within the appropriate range." 63 Nonetheless even if Simpson J was in error I am not persuaded that Judge Coleman could be said to have perpetuated it. His Honour's main emphasis was quite correctly upon an assessment of the applicant's role. His Honour also specifically took into account those matters referred to in s 16A of the Crimes Act (C'th) that were relevant to the sentencing exercise. 64 It is clear that the weight of the prohibited substance is still a relevant consideration in fixing the appropriate sentence. In Wong and Leung v The Queen, Gaudron, Gummow and Hayne JJ observed that: The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities. No doubt, within both of these categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. (at para 67) 65 Finally it may be noted that in R v Taru [2002] NSWCCA 391 Hidden J, with whom Levine J and Howie J agreed, said that the guidelines established in Wong and Leung "remain useful notwithstanding the subsequent High Court decision arising from that case, because they were expressed to be based on the existing pattern of sentence at the time the judgment was delivered. Indeed, much of the judgment of the Chief Justice was devoted to consideration of other cases and the patterns of sentence which emerged from them." 66 In view of the applicant's major role in an enterprise of the scope and seriousness of the present offence, I am of the view, that the applicant's submission that the sentence was manifestly excessive, has not been made out notwithstanding that the sentence may well have been at or towards the top of the available range. 67 I propose that leave to appeal be granted but that the appeal against sentence be dismissed. 68 SPIGELMAN CJ: I agree. 69 HULME J: I also agree. 70 SPIGELMAN CJ: The orders of the Court will be as proposed by Buddin J. *********

R v Thomas Dale Marchando

At a glance

Court

Decision date

Before

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Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (7)

Cited By (5)