Choi v R - [2007] NSWCCA 150

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: CHOI v R [2007] NSWCCA 150
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 August 2006

JUDGMENT DATE:
1 June 2007

JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Hislop J at 186

DECISION: Dismiss the appeal against conviction; Grant leave to appeal against sentence; Dismiss the appeal against sentence

PARTIES: Hyeon Joon CHOI
Regina

FILE NUMBER(S): CCA 2006/718

COUNSEL: Crown: Mr R Sutherland SC
Appellant: Mr P Byrne SC

SOLICITORS: Crown: Michal Poberezny Comm DPP
Appellant: Giddy & Crittenden

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0353

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

- 60 -

2006/718

BEAZLEY JA

HULME J

HISLOP J

Friday, 1 June 2007

R v Hyeon Joon CHOI

Judgment

1 BEAZLEY JA: I agree with Hulme J.

2 HULME J: On 13 September 2004 the abovenamed Hyeon Joon Choi (sometimes referred to as “John”) was convicted of an offence under Section 233B(1)(d) of the Customs Act 1901 (C’th) that:-

“Between about 23 March 2001 and 5 December 2001 (he) … was knowingly concerned in the importation into Australia of prohibited imports… namely narcotic goods consisting of a quantity of 3, 4 methylenedioxymethamphetamine being not less than the commercial quantity applicable to methylenedioxymeth-amphetamine”.

3 On 3 August 2005 he was sentenced by Judge Solomon to imprisonment for 20 years including a non-parole period of 13 years, both periods commencing on 8 May 2003.

4 He has appealed against his conviction and seeks leave to appeal against sentence. The grounds in these respects are:-

Appeal against conviction

1. The learned trial judge erred in admitting into evidence recordings of certain telephone conversations conducted in the absence of the appellant between persons who were alleged to be acting in concert with him: see the separate judgment of his Honour on the admissibility of the recorded conversations given on 18 August 2004.

2. The trial proceedings miscarried by reason of the manner in which the appellant was cross-examined by the learned Crown Prosecutor about the terms of the conversations referred to in ground one above, that is to say conversations to which the appellant was not a party, and in particular cross examination directed towards inferences that might be drawn from the things said in those conversations, and also inferences that might be drawn from things that were not said.

3. The trial proceedings miscarried by reason of the manner in which the learned Crown Prosecutor invited the jury, both in his cross examination of the appellant and in his closing address, to use in an impermissible way the evidence of the intercepted telephone conversations not involving the appellant.

4. The learned trial judge misdirected the jury as to the use which it could legitimately make of the content of the telephone conversations admitted into evidence, that is conversations to which the appellant was not a party, and in the warnings given to the jury about the manner in which that evidence should be scrutinised.

5. The trial proceedings miscarried by reason of the learned Crown Prosecutor misinforming the jury in the course of his closing address that they could rely on the fact of the plea of guilty by the witness Shepherd as corroboration of the truth of the evidence that he had given in the appellant’s trial: see T30.35, 7 September 2004 and T33.7, 7 September 2004 and by reason of the fact that the learned trial judge apparently endorsed the submission made by the prosecutor that the evidence of the plea of guilty by Shepherd was available for this purpose.

6. The learned trial judge misdirected the jury as to the matters of which they had to be satisfied beyond reasonable doubt in order to convict the appellant of the offence charged against him, in particular the basis on which the jury might reach a conclusion of guilty by reference to the appellant’s knowledge, acquired on 24 November 2001, of the presence of the prohibited drugs in the goods imported, and the appellant’s actions on and subsequent to the events of 24 November 2001: see the directions given at SU22.4, 8 September 2004 and SU12.2, 13 September 2004.

7. The directions given by the learned trial judge on the meaning of the element of “importation” were, in the circumstances of the appellant’s case, erroneous and inadequate: see summing up SU9.4, 8 September 2004 and SU 4.7, 13 September 2004.

Application for leave to appeal against sentence

1. The sentence imposed on the Applicant is manifestly excessive having regard to the objective facts and circumstances of the case, and the personal factors affecting the applicant that are relevant for the purpose of determining an appropriate sentence.

2. The learned judge erred in applying the principles of parity of sentencing by considering that the relative and relevant circumstances of the applicant and Loui Sukkar were approximately equivalent, thereby apparently failing to have regard to a serious additional charge relating to the distribution of drugs for which the offender Loui Sukkar was sentenced.

3. The learned judge erred in the assessment of an appropriate sentence by apparently failing to have regard to the fact that the applicant had saved a considerable amount of court time by making admissions in relation to various matters, which effectively relieved the prosecution of the burden of having to prove those matters, and demonstrated a willingness on the applicant’s part to facilitate the course of justice: Cameron v The Queen [2002] HCA 6; (2002) CLR 339.

Mill v The Queen

AB v The Queen

.

5 During the Appellant’s trial, no point was taken in respect of the issues raised by part of the 2nd, the 4th, 5th, 6th and 7th grounds of appeal against conviction and accordingly the Appellant needs leave under rule 4 of the Criminal Appeal Rules to rely on them. No leave was sought except to the extent to which the Court raised the issue and even then counsel contented himself with a bald submission, in the case of grounds 5, 6 and 7 that they were matters of fundamental importance and, in the case of the other grounds that, if they had merit, leave should be granted.

Crown Case

6 On 17 November 2001 a 40ft container arrived at Brisbane on the ship “Tauranga”. It had been shipped from Antwerp on 15 October 2001 on the “Rotterdam Express”. It was transferred to the Tauranga in Singapore.

7 On 20 November 2001 the container was searched by customs officers and found to contain the component parts of a deep freezer unit. Included within those parts were some 48 plastic columns containing some 408,000 tablets containing methylenedioxymethamphetamine, commonly and hereinafter referred to as “MDMA” or “ecstasy”. The gross weight of the tablets was 123 kilograms and they contained 34.4 kilograms (pure) of MDMA. The commercial quantity prescribed under the Customs Act for that drug is 0.5 kilograms.

8 Customs officers removed most of the ecstasy tablets and replaced them with other tablets. However some 70 grams of the original tablets were left in each column. Delivery under surveillance was then permitted. From 21 November the authorities began to monitor telephone calls of those who were believed to be involved. Recordings and transcripts of something over 80 calls, in many but not all of which the Appellant was a participant, were admitted into evidence.

9 Still in Brisbane, the container was first moved to an organisation known as “Intergroup Shipping” who had been engaged by a Mr Shepherd. In turn the container was delivered to Mr Shepherd’s warehouse on 23 November 2001. There it was opened by Mr Shepherd and a Mr Bourke.

10 The columns containing the tablets were removed and placed on the back of a truck that had been rented and which was then driven by Mr Bourke towards Sydney. Undisputed evidence showed that the truck effectively travelled in convoy with a rented Ford Sedan occupied by the Appellant and Loui Sukkar. At Kempsey Mr Sukkar assumed the role of driving the truck and the Appellant and Mr Bourke continued south in the Ford Sedan. The truck went to premises at 84 Consett Street, Concord West, arriving there in the early morning of 24 November and the Appellant drove to his home in Monterey, a suburb of Botany Bay.

11 During the course of Saturday 24 November Loui Sukkar and his brothers Joseph and Steven unloaded the columns from the truck and placed them into a shed or garage at the rear of 84 Consett St. The Appellant visited those premises that day although there was no evidence he went into the shed.

12 Mr Shepherd gave evidence. He said that he had been running an import/export business; he had been approached by a Simon Prasad who informed him that he was involved with the Appellant in the import of drugs and asked for Mr Shepherd’s assistance in the importation. Mr Shepherd said he agreed. On one occasion he flew to Sydney with Mr Prasad with a view to meeting with the Appellant. Mr Shepherd saw Mr Prasad meet the Appellant at the airport but Mr Prasad then told Mr Shepherd that the Appellant did not wish to meet him. Mr Shepherd detailed a number of discussions with Mr Prasad wherein mechanics of the importation were implemented and in the course of which Mr Prasad referred to the Appellant in terms indicating the latter’s participation. A number of the documents incidental to the shipping and delivery of the freezer unit were directed to the Appellant or CJ Trade Consultants, a business operated by the Appellant, or indicated an interest of the Appellant or that organisation in the goods.

13 Mr Shepherd stated that he had pleaded guilty to being knowingly concerned in the relevant drug importation and been sentenced for that offence, receiving a discount for agreeing to assist the Crown.

14 The Appellant also gave evidence. It included the following. He said that in the second half of 2001 he was approached by Mr Loui Sukkar who sought and then received the Appellant’s help in importing some industrial cool-rooms. In the course of discussions dealing with this proposal Mr Sukkar told the Appellant that there was another agenda and that it was to import diamonds that would be concealed in parts of the cool-rooms. He offered the Appellant $100,000 for bringing the shipment in successfully, payment to be made after a nominated jeweller had sold the diamonds. According to the Appellant he then spoke to Mr Steven Sukkar, asked if there was any possibility that drugs were involved and was assured that if that was the case Loui would say so. The Appellant said that his suspicions ceased at that time.

15 The Appellant decided that the importation should occur in Brisbane, contacted a Mr Simon Prasad, told him that someone he knew wanted to import something “a bit dodgy” and asked if he would be willing to accept it. The Appellant told Mr Prasad that he could not tell him the nature of the goods but that they were definitely not drugs and offered to pay Mr Prasad $50,000 for the latter’s help. In due course Mr Prasad said he would do as requested if it was not drugs. Some time later Mr Prasad told the Appellant he was to be working in Sydney, the Appellant asked what was to happen with the import and was informed that Mr Prasad had a partner who would be handling it. Subsequently quotes were obtained and there were discussions in that regard. At a time the Appellant placed as towards the end of September the Appellant advised Mr Loui Sukkar that he would require funds to send to Belgium for the purchase of the cool-rooms. The money was provided and in due course the Appellant transmitted funds overseas.

16 The Appellant was advised when the cool-rooms would be arriving and passed this information on to Mr Simon Prasad. He also asked Mr Loui Sukkar for funds for Customs payments and received these together with a mobile phone. In response to a query from the Appellant Mr Sukkar told him the phone was because Mr Sukkar was being cautious and it was to be used for the specific job.

17 When Mr Loiu Sukkar asked the Appellant for the names of the people in Brisbane or where to collect the goods, the Appellant gave him Mr Shepherd’s phone number although the Appellant’s evidence was that he had never had phone contact with Mr Shepherd or contacted him directly.

18 At Mr Sukkar’s insistence the Appellant went to Brisbane to assist in the collection of the goods and at Mr Sukkar’s request also engaged Mr Bourke to go to Brisbane to help in that regard. The Appellant informed the latter that Mr Loui Sukkar was doing something a bit dodgy. Mr Sukkar also provided Mr Bourke with a mobile phone.

19 As has been said, in Brisbane Mr Bourke was involved in unloading and then loading into the truck in which it was transported to Sydney the contents of the relevant crate. Recorded telephone conversations, contemporaneous with the unloading and in some of which the Appellant participated, indicate that some importance was placed on Mr Bourke ensuring that he obtained the “right one”.

20 According to the Appellant, on 24 November he received a phone call from Mr Loui Sukkar who said he had something important to tell the Appellant. The Appellant attended at 84 Consett St, where Mr Sukkar informed the Appellant that there was a big problem and that someone in Europe had ripped him off; Mr Sukkar said that he had opened the columns – later evidence made clear that it was only some of the columns that were opened at that time - in which the drugs were expected to be and that there was nothing but duds inside; Mr Sukkar also informed the Appellant that he had found out that morning that because diamonds had been unavailable ecstasy tablets had been put inside the columns. According to the Appellant that was the first time he had heard about drugs.

21 A little later in the day Mr Joe Sukkar informed the Appellant that he was in a big mess with his partners in Europe and he needed the Appellant’s help to prove that the Australian side was not responsible for events. Joe wanted the Appellant to obtain all of the documents and details of the movement of the container in Brisbane, a request to which the Appellant said he agreed conditional on the people in Brisbane being paid.

22 There was then conversation between the Appellant, Loui, Joe and Steven Sukkar. In the course of this the Appellant asked Joe if he knew it was drugs all along. Joe said he didn’t but the Appellant did not believe him at that time. Asked by Joe if there was any chance that the people in Brisbane were responsible for taking the goods, the Appellant replied that that was impossible because Loui and the Appellant were there all the time.

23 In the period that followed, there were numerous conversations between one or other of the Sukkar brothers and the Appellant relating to the obtaining of paperwork showing in as much detail as possible the movement of the container in which the cool-room had been shipped. The Appellant was asked and agreed to obtain or assist in obtaining the documentation. There were a number of conversations in which the Appellant sought from Mr Prasad these documents.

24 The Appellant said in evidence that he had provided at least some of the documentation referred to but asserted that his only motivation was to get himself out of the situation he was in. He was concerned that he would be blamed by the people in Europe as he was the only person outside of the group that was involved that knew something dodgy was coming. He maintained that he had no intention of getting the drugs back.

25 By 24 November, the authorities had installed a number of listening devices and much of the evidence as to events of that day and later is contained in the recordings and transcripts of recordings made with the use of these devices and in the Appellant’s evidence in respect of these conversations. That evidence has particular relevance to the 7th ground of appeal and its detail and other evidence of events after 24 November can be left for the moment.

26 The principal way in which the Crown advanced its case was that the Appellant was, if not the principal, at least a major player in the importation from the outset. Particularly after the Appellant asserted that he had believed that what was being imported was diamonds, the Crown contended that it could succeed upon an alternate basis, viz. that the Appellant was made aware on 24 November that drugs had been imported and his actions thereafter amounted to concern in the importation.

Conviction Ground 1

The learned trial judge erred in admitting into evidence recordings of certain telephone conversations conducted in the absence of the appellant between persons who were alleged to be acting in concert with him: see the separate judgment of his Honour on the admissibility of the recorded conversations given on 18 August 2004.

27 In support of this ground, counsel for the Appellant referred the Court to Ahern v R (1988) 165 CLR 87 at 100 and contended that his Honour had failed to apply part of the test there laid down, viz. to initially determine the existence or otherwise of reasonable independent evidence of the participation of the accused in the alleged conspiracy and had also failed to take into account what was described as the fact of unfair prejudice in that the parties to the conversations could not be cross-examined and the conversations were conducted in Arabic of which the Appellant had no knowledge.

28 It is the fact that his Honour’s reasons do not deal with the first of these matters. It was not raised by counsel then appearing for the Appellant, no doubt because there was a wealth of evidence of his involvement with the other participants in the conversations in the importation of the refrigeration components containing the drugs and which the Appellant, when he gave evidence, said he understood to contain diamonds.

29 The principal objection taken at trial to the admission of the evidence the subject of this ground was that the conversations occurred at a time after it became apparent that the drugs, or at least most of them, were missing, that any importation and any conspiracy or common enterprise in that regard had then ceased, and that what the parties were concerned with in the latter part of 24 November and subsequently was not importation but simply ascertainment of where things had gone awry or possibly merely the obtaining of the relevant documents in order to show the European suppliers that this had not occurred in Australia. Referring to remarks of Gleeson CJ in Ruth Joy Leff (1996) 86 A Crim R 212 and Phil Kim Phieu Lam (1990) 46 A Crim R 402 as to the breadth of the concept of importation, the trial judge took the view that requests for documentation were part of a process undertaken to locate the missing drugs and the Appellant’s actions in obtaining the shipping documents were directly related to the importation into Australia of the drugs and thus relevant. See also R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 65, R v Su (1997) 1 VR 1 at 43.

30 It will be necessary later in these reasons to consider the correctness of these views. However, whether a common purpose of importation was then on foot or not, there can be no doubt that at the time of the conversations there was a common purpose in those participating in the relevant conversations to obtain at least the paperwork and information relating to the importation. Section 87(1) of the Evidence Act provides:-

For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:-

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority; or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

31 Given the evidence of pre-concert and common purpose, the recordings were admissible under this statutory provision.

32 Furthermore, there could be no reasonable basis for excluding the evidence under ss135 or 137 of the Evidence Act. The evidence was material towards proving the Appellant’s active involvement – a fortiori if account is taken of his own evidence that it was only on or about 24 November that he discovered the subject of the importation was drugs; there was nothing of a nature unfairly prejudicial about the evidence and the principal objection applies in most if not all cases where evidence of the nature here is sought to be tendered. Nor is there any substance in a further objection, viz. that the conversations were in a foreign language.

Conviction Ground 2

The trial proceedings miscarried by reason of the manner in which the appellant was cross-examined by the learned Crown Prosecutor about the terms of the conversations referred to in ground one above, that is to say conversations to which the appellant was not a party, and in particular cross examination directed towards inferences that might be drawn from the things said in those conversations, and also inferences that might be drawn from things that were not said.

33 When objection was first taken his Honour ruled that the cross-examiner could not put what was in the speaker’s mind but could ask the Appellant to draw a conclusion from what he heard and later that the prosecutor could ask the Appellant whether he had any idea why Joseph (whose recorded remarks were at that time the subject of questioning) said something. Nevertheless, there were a number of further questions (generally not individually objected to) as to the speaker’s meaning. Some invited a concession that when the speaker referred to “the Chinese” he was referring to the Appellant (who is Korean), but others were wider. In all there were something of the order of 12 telephone calls to which the Appellant was not a party about which he was cross-examined.

34 Examples of the questions to which exception is taken under this ground include the following:-

Q. Mr El-Hani says “Calm him down this week… I mean he has a payment that he needs to make to the company”. I suggest to you that (sic) Mr Choi that what’s being referred to there is part of your role in the importation of drugs?

A. No sir, that’s incorrect.

Transcript 591

Q. (After referring to an extract from a recording wherein Joseph is heard to say “But now I’m in a bad situation. Now I don’t know what I even got to do with this, ah, the person who got the things inside.) Why would Joseph say that you were the person who got the things inside?

A. I don’t know why Joseph said that sir.

Transcript 593-4

Q. And you know from reading over the calls, don’t you, that Joseph had made it clear that (sic) the people in Europe, that he didn’t believe you had done it, because his brother Loui had been there with you?

A. Yes sir, …

Q. And I suppose you would say that Joseph is just lying or forgetting to say: “Well look, he didn’t even know about the drugs. I didn’t tell him until last Saturday”?

A. I don’t know why he didn’t say that.

Q. There’s no reference to that, is there?

A. As I said, I wasn’t a participant in this conversation.

Q. Can you offer any explanation as to why the Europeans think you might have taken the drugs if you didn’t know anything about the drugs?

A. I don’t know sir.

Q. They seem, don’t they, to regard you as being part of the deal, don’t they?

A. If that’s what Joseph told him, I’m not sure, sir.

Transcript 709

Q. Do you have any explanation as to why on page 5 Loui said, “he knew what was coming” if it’s the fact that you didn’t know what was going?

A. I don’t know he said that. I don’t know why he said no information and then he changed it, I don’t know.

Q. Do you have any explanation as to why Loui didn’t say I just told John a whole lot of stuff about diamonds, he didn’t know what was coming?

35 In support of this ground, counsel for the Appellant submitted that the form of questioning was akin to putting to one witness that his evidence was contrary to that of another, so as to in effect invite the former to express an opinion as to the truthfulness of the second – a course prohibited by, for example, R v Enrico Praturion (unreported, NSWCCA, 29 November 1985), and North Australian Territory Company v Goldsborough Mort & Company (1893) 2 Ch 381 at 385 - and likewise to asking an accused charged with some sexual assault ,“Why would the complainant in the case lie?”. The latter form of questioning has been criticised in a number of cases of which a recent one is Palmer v R (1998) 193 CLR 1.

36 The first of the Appellant’s submissions fails to recognise the differences in the situations. Thus while it was said in R v Enrico Praturion:-

“(There is) a comparatively elementary rule of cross-examination, namely that it is not permissible to put to one witness that proposition that the evidence of that witness is to the contrary of the evidence of other witnesses, so as in effect to invite a witness to express an opinion as to whether other witnesses are telling the truth.”

37 Furthermore, s44 of the Evidence Act expressly contemplates that there may be cross-examination on previous representations - defined in the dictionary to the Act to mean “a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced” - made by persons other than the witness being cross-examined, so long as evidence of the representation has been admitted or the court is satisfied that it will be.

38 It must also be borne in mind that a party to proceedings is entitled to make admissions about matters of which he has no, or little, personal knowledge. Furthermore, although s184 of the Evidence Act provides that:-

“In or before criminal proceeding, a defendant may, if advised to do so by his or her lawyer:

(a) admit matters of fact …”

39 An element in the case which the Crown had to prove was knowledge in the Accused that the goods being imported were drugs. Ignorance on the part of the Appellant of the nature of the goods or, as he maintained when giving evidence, that he had been informed by Loui Sukkar they were diamonds, would clearly have been a relevant matter to raise in the course of the discussions between the Sukkars on the one hand and the Europeans on the other as to who may have been responsible for the disappearance of the drugs and, one may add, their replacement by thousands of innocuous substitute tablets that someone expecting diamonds would be unlikely to have to hand – particularly when the Appellant was being considered to be a suspect.

40 The absence of any reference by the Sukkars in these discussions to the Appellant having been told that the contents of the imported containers were diamonds and to him never having been told that drugs were being imported was also clearly a matter that could be raised in argument to the jury as a reason why they should not accept his evidence as to his ignorance of drugs.

41 I turn to the comparison with the asking of an accused in a sexual assault case as to “Why would the complainant lie?”. The principal reason for excluding such questions appears in the following passage from the reasons of Brennan CJ, Gaudron and Gummow JJ in Palmer v R at 7:-

“But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.

If it were permissible generally to cross examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross examination would focus the jury’s attention on irrelevancies, especially when the case is “oath against oath”. In such a case, to ask an accused the question: “Why would the complainant lie?” is to invite the jury to accept the complainant’s evidence unless some positive answer to that question is given by the accused.”

42 The substance of those remarks applies to the circumstances here. The Appellant had denied having, prior to 24 November, any knowledge of the drugs. It was certain that he would not give, to take the questions at transcript 593-4 as an example, as an explanation for the absence of any statement by Joseph that the Appellant did not know about drugs or as an explanation for the Europeans thinking he might have taken the drugs, that he had in fact known about them and in the circumstances it is difficult to see how any inability or failure to explain why those persons did or omitted to do what the questions referred to could have assisted in the determination of the case.

43 The Crown submitted that “A failure to invite the accused to advance any explanation for the absence of any reference to the “innocent” explanation in those conversations – namely that he did not have any knowledge of the presence of the drugs and had believed that diamonds were being smuggled – may have left the Crown open to criticism pursuant to Browne v Dunn (1893) 6 Rep 67.” The submission must be rejected. Before the Accused’s evidence in chief the recordings of the telephone conversations were in evidence. His own counsel thus had the opportunity to obtain from the Accused any explanation he was able to advance and his failure to do so enabled the Crown to submit that the absence of any explanation led to the inference the Appellant had none.

44 I can accept that it was legitimate for the Crown prosecutor to seek to have available to the jury not only the argument that the Appellant did not provide any innocent explanation for the conversations and thus it should be inferred he could not, but also admissions by the Appellant to the latter effect and accordingly I do not regard all of the questioning as illegitimate. Nor, given the extent of the other issues in the case and the ambit of the Appellant’s evidence, do I take the view that there was any risk that this questioning became or was close to becoming the “central theme” in the case or would focus the jury’s attention on irrelevancies. Nevertheless, when regard is had to the limited probative value repetition of the theme had, the questioning the subject of this ground should have been much less extensive than it was and, had objection been taken to its continuation, the questioning should have been excluded under s135 of the Evidence Act.

45 However, no such objection was taken. The objection taken earlier had properly been overruled and did not extend to the topic of repetition. The error was a minor matter in the context of the trial and I would refuse leave for it to be raised.

Conviction Ground 3

The trial proceedings miscarried by reason of the manner in which the learned Crown Prosecutor invited the jury, both in his cross examination of the appellant and in his closing address, to use in an impermissible way the evidence of the intercepted telephone conversations not involving the appellant.

46 The substance of the complaint the subject of this ground was that on numerous occasions, and in terms that provided a deal of emphasis of the point, the Crown Prosecutor had, in his closing address, submitted to the jury that the actions and words of the participants in the recorded telephone calls were consistent with the Appellant being knowingly involved and inconsistent with him being an innocent dupe. Repeatedly it was pointed out that there was not mention in those conversations of the Appellant not knowing about the drugs or thinking that the objects involved were diamonds. It was submitted that “the strength of the Crown case is thus said to be in what was not said by other parties regarding the knowledge of the Appellant”.

47 However, the documents relied on in the Crown’s submissions were in evidence and thus could be used as a basis for any argument they reasonably supported. I have already indicated that the absence of any reference in the recorded conversations to ignorance on the part of the Appellant that what was being imported was drugs and to the Appellant having been informed or believing that the items were diamonds is a legitimate argument against the Appellant and accordingly this ground of appeal fails.

Conviction Ground 4

The learned trial judge misdirected the jury as to the use which it could legitimately make of the content of the telephone conversations admitted into evidence, that is conversations to which the appellant was not a party, and in the warnings given to the jury about the manner in which that evidence should be scrutinised.

48 The remarks of his Honour to which exception is taken were:-

“The Crown submitted that the actions and words of others are consistent with the accused being knowingly involved in the importation of narcotic drugs.”

“The Crown submitted that the telephone calls not involving the accused also indicate the accused’s involvement in the drug importation and his knowledge that it was drugs.”

“The Crown suggested to you that you consider his (the accused’s) evidence in the light of the following:

(1) Why was there no mention of diamonds by anyone else in this case?

(2) Why has there been no mention by anyone, apart from the accused, of the accused being duped?”

“Finally the Crown submitted that the diamond story is not mentioned by anyone at any time in the evidence in this case and that you should dismiss it … .”

49 It was submitted that in directing the jury as to how they may use evidence of what other people had said in the absence of the accused, the learned judge failed to give the jury appropriate caution about the difficulties associated with evidence of that kind; none of the parties to the conversations in question were called as witnesses in the case; and some of them were people whose identity was vague and uncertain, people who had never come to Australia and with whom there was not direct association established with the appellant. It was further submitted that the difficulty faced by the appellant in dealing with the cross-examination was not made sufficiently clear to the jury.

50 In fact, after directing the jury as to the need for caution before accepting the evidence of Shepherd, in terms about which no complaint is or could be made, the trial judge made the following remarks:- (Here, and elsewhere in these reasons, I quote in the terms appearing in the appeal books.)

“I now wish to give you a direction regarding how you deal with the conversations contained in the telephone intercepts which were made in the absence of the accused. In this regard the Crown relies on conversations recorded in the intercepts in which the accused was not a party. I direct you that as with the evidence of Shepherd, this evidence is admissible in the proceedings and you should carefully scrutinise this evidence before you accept it in supporting the guilt of the accused.

That evidence may be unreliable and there are a number of reasons for this. First, there has been no opportunity for the accused to cross-examine participants to the conversations including Louis Sukkar, Joseph Sukkar, Steven Sukkar, Simon Prasad, and Antoun El-Hani. Second, even if you accept that the statements the parties recorded on the telephone intercepts implicate the accused, this still does not necessarily follow that these persons are telling the truth.

Thirdly, those persons are persons who are criminally involved in the matter and may have a motive to lie. Their motives could not be tested in cross-examination. Fourthly, conversations recorded in telephone intercepts take place in an environment in which there had been a controlled operation in substituting ecstasy pills and there are clear attempts by various parties to avoid blame and to shift blame onto other parties. These people may have motives to lie. One motive may be that perhaps the fear of recrimination. Fifthly, there was no opportunity for you to see those persons to have their evidence tested in cross-examination. Sixthly, some of the intercepts were spoken in Arabic and what you have is a transcript of the conversations. That being the case, you are denied the opportunity to assess the intonation, phrasing and tone of the words used.

I warn you of the need for caution in determining whether to accept the evidence of the telephone intercepts in which the accused did not participate and the weight to be given to that evidence.”

51 There was a delay in the completion of the summing-up due to the illness and ultimate discharge of a juror and when the summing up continued some 5 days later, his Honour added the following:-

“I gave you the weaknesses of hearsay evidence which may also be considered in relation to the telephone calls which the Crown relies upon between the Sukkar brothers and the Europeans. I say to you, again, as I said before, that the need for caution to determine whether you accept that evidence. Again, those persons were not called as witnesses and their evidence could not be tested. In addition to that, they were obviously criminally involved in the importation and for the reasons I gave you on Thursday, their evidence may not be reliable evidence.

So, again I warn you of the need for caution in determining whether to accept the evidence of Shepherd. I warn you of the need for caution in determining whether to accept the evidence of the telephone conversations, and I say to you before you do accept it, if you decide to accept it, you should scrutinise the evidence of Shepherd with great care and you should also scrutinise the evidence of the telephone intercepts with great care.”

52 There was no complaint about these directions and no request for anything further. There is no substance in the ground and leave to raise it should be refused.

Conviction Ground 5

The trial proceedings miscarried by reason of the learned Crown Prosecutor misinforming the jury in the course of his closing address that they could rely on the fact of the plea of guilty by the witness Shepherd as corroboration of the truth of the evidence that he had given in the appellant’s trial: see T30.35, 7 September 2004 and T33.7, 7 September 2004 and by reason of the fact that the learned trial judge apparently endorsed the submission made by the prosecutor that the evidence of the plea of guilty by Shepherd was available for this purpose.

53 The passages in the Crown Prosecutor’s address that inspire this ground are in the following terms:-

“It follows, I suppose that according to him (the Appellant), Mr Prasad and Mr Shepherd are innocent people and obviously Mr Shepherd’s credibility is something that you have to assess as well, but one would have thought that there’s one thing you can be pretty sure about and that’s that Mr Shepherd believes he’s guilty, because he pleaded guilty to the offence.”

“Mr Shepherd’s credit was challenged to some degree and obviously you will be told by his Honour that when a witness like Mr Shepherd gives evidence… you need to take some caution… but when you look at Mr Shepherd’s evidence, apart from the fact that he was such a, almost painfully precise witness, he is really corroborated right up to the hilt, by the documents, by the calls and importantly by his plea of guilty on 7 August 2002.”

54 When, towards the end of his summing up, the trial judge came to summarise the Crown submissions he said:-

“The Crown submitted that whilst Shepherd is a person who has been convicted for his involvement in the events for which the accused is charged, you should still accept his evidence because his evidence is corroborated by documents, telephone calls and his pleas of guilty.”

55 It was submitted that Shepherd’s plea of guilty could not be used as evidence against the Appellant and it could not be used as corroboration of the truth of the version of events given by Shepherd.

56 As has been indicated, evidence that Shepherd had pleaded guilty to a charge of being knowingly concerned in the importation had been admitted. Such evidence was clearly relevant as bearing on his credibility as a witness who had received a benefit in the form of a lower sentence for his own criminality for giving evidence against the Appellant. Although I am prepared to assume that but for this, evidence Shepherd had pleaded guilty would not have been admissible, once the evidence was admitted, the evidence could be used for all purposes to which it was relevant – see Horton (1998) 104 A Crim R 306 at 312; Walker v Walker (1937) 57 CLR 630 at 634-5, 636, 638; B v The Queen (1992) 175 CLR 599 at 607, 610. That statement is subject of course to any prohibitions on the use of the evidence imposed by the Evidence Act or directions under s136 of that Act but none were drawn to the Court’s attention and I am aware of none.

57 In argument counsel for the Appellant was forced to concede the self-evident proposition that the fact that Shepherd pleaded guilty was a very good reason for believing him when he said that he himself was dealing in drugs. The plea has a similar impact on the issue inherent in Mr Shepherd’s offence, of contemporaneous knowledge that it was drugs in which he was dealing. Given that the plea emanated from Mr Shepherd himself it may well be that it was not “corroboration” in the sense normally used by lawyers but it clearly strengthened or supported – expressions used in the OED definition of the term – his evidence of his own involvement in the importation. Not many persons plead guilty to offences of the seriousness of that with which Mr Shepherd was charged unless they are guilty.

58 By itself, Mr Shepherd’s plea provided no support for his evidence that it was Mr Prasad who had invited him to participate; that he was doing so at the request of the Appellant; and that the importation involved drugs and to this extent the observation of the Crown Prosecutor that “he’s (Mr Shepherd’s) really corroborated, right up to the hilt, by the documents, by the calls and importantly by his plea of guilty on 7 August 2002” may overstate the position. However even that proposition depends on the way the Crown Prosecutor’s remarks are interpreted and to the extent to which they may overstate the position – and the statement was not that every aspect of Shepherd’s evidence was corroborated by his plea - they fall well within an advocate’s, even a Crown Prosecutor’s, licence for imprecision. The trial judge’s somewhat more restrained repetition of the argument, quoted above, does not suffer from any defect in this regard.

59 Although, as I have said, by itself Mr Shepherd’s plea provided no support for his evidence that it was Mr Prasad who had invited Mr Shepherd to participate, and had said that he was doing so at the request of the Appellant, and that the importation involved drugs, it must also be borne in mind that the Appellant’s own evidence effectively conceded the first 2 of these matters. The only material point of difference was that the Appellant maintained he had told Prasad that the importation was “dodgy” but did not involve drugs while Shepherd maintained that he had been told by Prasad that it did involve drugs.

60 It was not suggested, whether to Shepherd in cross-examination or elsewhere that Shepherd might have acquired his knowledge of the presence of drugs from anyone but Prasad and, although it must be acknowledged that he was not called, nothing to suggest that Prasad had any relevant dealings with anyone but Shepherd and the Appellant. In these circumstances it is entirely reasonable to infer that Shepherd’s knowledge of the presence of drugs came from Prasad and indirectly from the Appellant.

61 But whether that inference be justified or not, Shepherd’s plea does provide a great deal of support for such parts of his significant evidence as were not common ground.

62 In the circumstances leave to rely on this ground also should be refused.

Conviction Ground 6

The learned trial judge misdirected the jury as to the matters of which they had to be satisfied beyond reasonable doubt in order to convict the appellant of the offence charged against him, in particular the basis on which the jury might reach a conclusion of guilty by reference to the appellant’s knowledge, acquired on 24 November 2001, of the presence of the prohibited drugs in the goods imported, and the appellant’s actions on and subsequent to the events of 24 November 2001: see the directions given at SU22.4, 8 September 2004 and SU12.2, 13 September 2004.

63 The first of the directions the subject of this ground, and which direction his Honour repeated, was in the following terms:-

I direct you that even if you are not satisfied of the accused’s knowledge that the container contained narcotic goods prior to 24 November 2001, you still may find the accused guilty if you are satisfied beyond a reasonable doubt of his concern in the importation from 24 November 2001 provided you are satisfied beyond a reasonable doubt that on or subsequent to 24 November 2001 he had knowledge that some drugs had been imported into Australia.

64 The second direction, which it is unnecessary for me to repeat, was in substantially similar terms.

65 The transcript makes it clear that counsel for the Appellant was concerned about the direction and what he saw as emphasis on knowledge after 24 November with little attention to the issue of concern. He raised the matter 3 times. On the first his Honour re-read, in the absence of the jury, what he had said. When counsel raised the matter again after the judge had for all practical purposes completed his summing up, the following discussion, in the presence of the jury occurred:-

JOHNSTON: Your Honour, I think I raised a matter on Thursday, it’s the same point in relation to after the 24th, the link between knowledge and concern that it was essential---

HIS HONOUR: I gave that direction on Thursday and I gave the same direction again today. I gave it again today. I read from exactly the same. I’ll read the direction again if you’d like to hear it. I’ll read it again.

JOHNSON: Your Honour, it’s not necessary. I think, the main evidence was simply that the link between knowledge to the acts at the later point in time after the 24th. That knowledge alone is not enough after the 24th, that--

HIS HONOUR: No, connection, yes. Concern is, I’ve given that direction. I gave it on Friday or Thursday and I gave it again today. But I’ll hear what you say in the absence of the jury.

66 In the absence of the jury his Honour asked what counsel wanted him to do and whether counsel wanted the jury brought in and his Honour to go through all the actions after 24 November that the Crown relied on. Counsel ultimately declined to ask for further directions. Thus the Appellant needs leave to raise this ground also.

67 The first submission in support of this ground was that “the entire focus of the attention of the jury is directed towards the question of knowledge alone”. His Honour’s direction has only to be read for that submission to be rejected. While it may be that in the way the passage is couched “knowledge” receives more attention than does “concern”, the direction “you still may find the accused guilty if you are satisfied beyond a reasonable doubt of his concern in the importation from 24 November 2001 provided …” makes perfectly clear that satisfaction about “concern” was essential to a conviction.

68 The second criticism was that the passage spoke of knowledge that some drugs “had been imported” (my emphasis), it being submitted that if the importation was complete, the Appellant was, after 24 November, concerned about something else. However, it is clear that in his use of that phrase in the passage the subject of this complaint his Honour was directing attention to the mere physical movement of the drugs. It was elsewhere that that his Honour dealt with the overall concept of importation.

69 The third criticism was that his Honour had not specifically identified the need for:-

“(i) Knowledge in the accused that there was a process of importation of prohibited drugs on foot.

(ii) Some action by the accused which indicated his knowing concern in that process of importation, and not some other process or some future importation.

(iii) The fact that the importation was ongoing at the time the appellant did the acts disclosing his knowing concern in that importation.”

70 I have said enough to demonstrate that, subject to the question of when the particular importation came to an end, it was common ground that at all material times prior to 24 November the Appellant had known there was a process of importation on foot and that from at least 24 November the Appellant knew that it concerned drugs. Subject to that same question and the issue of whether prior to 24 November the Appellant knew that drugs were involved, it was also common ground that the Appellant was knowingly concerned in that process of importation. The particular matters relied on by the Crown and to which I refer in considering ground 7 make it clear that no “other process or some future importation” were in contemplation in the trial such that a distinction between them and the importation relied on by the Crown had to be expressly adverted to.

71 The issue of whether “the importation was ongoing at the time the Appellant did the acts disclosing his knowing concern in that importation” or, as may more precisely define the issue, whether the importation was ongoing at the time the Appellant did the acts relied on as amounting to or demonstrating concern was also the subject of remark in the summing-up. At the cost of repetition of passages I also quote in dealing with ground 7, his Honour’s remarks include the following:-

“Now it is for you the jury to decide the scope of the importation. The Crown submits that the act of importation giving it its broad definition continued up until 5 December 2001 and included …”

“It is a question for you to decide where the importation stopped and finished. The Crown suggests and submits to you that the importation went on until 5 December 2001.

The question to be answered by you is did the importation carry on until that date. I gave you a direction about the extended definition of importation in the law. I said to be concerned in an offence means to do something which involves a practical connection with the offence and all that is involved in the offence, so a practical connection. The part played by a person accused of being knowingly concerned in the importation must be played before or during the importation.”

72 Although inadequacy or error in important legal directions provides a strong basis for contending that leave should be given under rule 4, when regard is had to what were the issues in the trial and the directions to which I have referred, I would not grant the Appellant leave to rely on this ground. Were leave given, the ground would fail in any event.

Conviction Ground 7

The directions given by the learned trial judge on the meaning of the element of “importation”, were, in the circumstances of the appellant’s case, erroneous and inadequate: see summing up SU9.4, 8 September 2004 and SU 4.7, 13 September 2004.

73 What the judge said that is the subject of this complaint was:-

On 8 September 2004

Now it is for you the jury to decide the scope of the importation. The Crown submits that the act of importation giving it its broad definition continued up until 5 December 2001 and included the following.

1. The obtaining of documentation concerning the importation.

2. Discussions and explanations of the documentation connected with the importation.

3. The transportation and storage and opening of the imported columns.

4. The discussion of the transportation, the storage and opening of the columns.

5. The discussions concerning the condition and appearance of the columns.

6. The discussions concerning the whereabouts of the missing drugs and those responsible for their disappearance.

7. The discussion regarding the payment of money to persons engaged of (sic) acts involved with the importation.

8. Payment of moneys to a person engaged in acts associated with the importation including the payment of moneys to the man Bourke.

The question to be answered by you as to the acts relied upon by the Crown is, do the (sic) go to the ultimate purpose of bringing the narcotic drugs into Australia.”

On 13 September 2004

The question to be answered by you is did the importation carry on until that date. I gave you a direction about the extended definition of importation in the law. I said to be concerned in an offence means to do something which involves a practical connection with the offence and all that is involved in the offence, so a practical connection. The part played by a person accused of being knowingly concerned in the importation must be played before or during the importation. Here the Crown says the importation continued until 5 December and it is the actions of the accused up until that date which the Crown relies upon.

The person must be implicated or involved in the sense of having something to do with the importation and the importation includes all that is incidental or proximate to the act of importation. I went through the acts which the Crown relied upon.”

74 The acts to which his Honour had referred were:-

1. Using his name, company name, CJ Trade Consultants Pty Limited as the consignee.

2. Corresponding with persons in Europe in connection with the proposed importation of cool rooms.

3. Recruiting Simon Prasad and through him Shepherd to help facilitate the importation.

4. Providing funds to Simon Prasad to pay for the shipping and Customs charges.

6. Providing documents to Simon Prasad so as to facilitate the creation by Shepherd of a set of bogus shipping documents.

7. Recruiting Bourke to assist in the unpacking of the imported goods and driving them to Sydney.

8. Attending at Pendry Court, Woodridge to oversee the unloading of the container.

9. Giving directions to Bourke during the unloading of the container and during the trip back to Sydney.

10. Escorting the Balmain Rentals truck back to Kempsey.

11. Attending 84 Consett Street, Concord on 24 November 2001 in order to discuss the importation.

12. Providing advice to Louis Sukkar and Steven Sukkar concerning how to handle problems over the lost and missing drugs.

13. Obtaining documentation for the Sukkar brothers connected with the importation.

14. Arranging for payment of the man Bourke.

75 (There was no mention by his Honour of a fifth act.)

76 It was submitted that the concepts of “directly related”, “approximate to” and “incidental to” were too broad as an exposition of “importation” and would include distribution of the goods after importation had been concluded. Secondly, it was submitted that the direction on 13 September 2004 was also too wide and left it open to the jury to conclude that the process of importation was continuing when it had been completed and the directions extended so as to include conduct which could not amount to involvement in the process of importation. Thirdly, it was submitted that acts relied on by the Crown, for example in obtaining payment for Bourke and in seeking payment for Simon Prasad, occurred after any importation had for practical purposes been effected and thus did not constitute acts amounting to concern in the importation.

77 Counsel for the Appellant conceded that the authorities – Tannous (1986) 32 A Crim R 301 at 304 et seq.; Lam (1990) 46 A Crim R 402 at 403 et seq.; Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 63 et seq.; and Leff (1996) 86 A Crim R 212 at 222 et seq. - establish that there must be a degree of flexibility in the meaning and application of the word “importation”. However, the submission proceeded, that flexibility did not extend to the circumstances relied on here.

78 In Lam, where the offender, equipped with an enema, had arrived at a hotel to meet international couriers who had swallowed capsules of heroin, approval had been given to a direction that “the venture (of importation) does not finish the moment that goods are landed but extends to all matters and events which are directly related or proximate or incidental to the importation” – words which the first direction quoted under this ground clearly echoed. (I would infer that instead of the word “approximate” in that paragraph, the word his Honour used was “proximate”.) In Leff (at p223) this approval was implicitly endorsed. Accordingly, the first of the criticisms of the direction the subject of this ground should be rejected.

79 In considering the second criticism of the directions the subject of this ground it is useful to bear in mind that in Leff itself it was held that importation had not ceased when telephone calls were made between a courier and Leff or her son directed to obtaining delivery of drugs some hours after the courier had been intercepted at the airport and the drugs seized. At p214 Gleeson CJ, with whom Allen J agreed, observed that “importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import”. At p223 James J, with the concurrence of the other members of the Court remarked:-

“I do not consider that the intervention of the authorities prevented the process or venture of importation from continuing so that a person might subsequently become concerned in the importation.”

80 In Courtney-Smith (No 2) it was held that a venture of importation had not ceased at a point of time when goods, having been brought into Australia by sea, were still in a shipping container in a factory 2 weeks after having been landed and the offenders were endeavouring, by cutting open the container, to obtain access to those goods.

81 These cases make it clear that efforts directed to obtaining possession of, or to making available, goods imported, from a body or container in which the goods at that time of actual entry into Australia were contained, forms part of the importation process. In R v Sukkar [2005] NSWCCA 54, a case involving one of the Appellant’s suggested co-offenders Steven Sukkar, Wood CJ at CL, with the concurrence of at least Hidden J, observed, at [121], that the process of importation included:-

“Anything which is done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is the suppliers, shippers, custom agents, freight forwarders, and so on.”

82 Whether or not the latter part of that passage is correct in the generality in which it is expressed, I have said enough to demonstrate that the mere passage of time is not enough to demonstrate error in the trial judge leaving to the jury the question of how long the importation continued and the Crown contention that it went on until 5 December. The decisions referred to also make it clear that the importation extended up to and including the opening of columns on 24 November shortly after which the Appellant, on his version, first knew that the subject of the shipment was drugs and not diamonds and that “duds” had been substituted for what had been expected.

83 As indicated early in these reasons, in large part the evidence relied on by the Crown as to events on and subsequent to 24 November is contained in records of telephone intercepts. The transcripts of those tendered extend for some hundreds of pages but it is desirable to attempt to summarise briefly their more salient features.

84 I have referred to the fact that in the period there were numerous conversations between one or other of the Sukkar brothers or Mr Prasad and the Appellant relating to the obtaining of paperwork showing in as much detail as possible the movement of the container in which the cool-room had been shipped and that the Appellant agreed to assist in that regard. Other matters apparent in conversations in which the Appellant participated included the following.

85 On 24 November the Appellant was heard advising Loui Sukkar to “get rid of that shit anyway in your house”. It is reasonable to infer that the “shit” extended to embrace all of the non-drug elements and residue of the shipment. There is no evidence that the Appellant knew at that time that there were any useful drugs there. On 25 November the Appellant asked Mr Bourke to return a car for him. One might infer the car was that that had travelled in convoy from Queensland. Mr Bourke asked for some money and the Appellant indicated that he anticipated receiving some off “Louis” who, it might be inferred, was Loui Sukkar. On 26 November there was another conversation between the Appellant and Mr Bourke in which the former said that he needed to return the car.

86 During the period between 26 November and 30 November a number of discussions between one or more of the Sukkar brothers and members of the European group that had sent the shipment were intercepted. Each group was contending that the problem had arisen in the other’s country. It was contemplated that one or more of the Europeans would come to Australia to look at the shipment with a view to seeing if it had been tampered with since leaving Europe and the Sukkars were advised on a number of occasions to leave the balance of the shipment alone. The calls suggest and other evidence makes clear that a number of the columns had not been opened. An intercepted call between Loui Sukkar and the Appellant on 4 December indicates that there had been communication between the Europeans and the Sukkar brothers later than 30 November.

87 Other matters apparent from the calls include the following. In a call of 26 November between Joseph Sukkar and a European, El Hani, Joseph Sukkar indicates that there were some “satisfactory” tablets. The movement of the container was the subject of enquiries made to P & O by Loui Sukkar on 29 November and to a Max Messina of Intergroup Shipping by Steven Sukkar on 1 December.

88 In a conversation of 27 November Loui Sukkar told the Appellant that people thought it was the Appellant who was responsible for what had occurred. Later in the conversation Loui also said, “We are trying to pay you guys.” On the other hand, in a call with Loui Sukkar on 30 November arrangements were made for Steven Prasad, Simon Prasad’s brother, to pay to Mr Sukkar on behalf of the Appellant $6000 of $9,500 owed.

89 In a conversation of 1 December in which the Appellant talked to Loui and Steven Sukkar there is discussion about documentation and the Appellant expressed views about its adequacy and what would be likely to have occurred in that respect. He advised that he had told someone that that person could not get paid until the group had all the documentation and gave advice as to steps the Sukkars should take to obtain documentation or confirmation of events.

90 The recording shows that when asked if “these people (in Brisbane) didn’t know the nature of the goods or anything like that?”, the Appellant said “No no I never told them the nature of the goods is – (Overtalk) – they don’t know”. The Appellant went on to say that he had got his friend to import the goods. Pressed to ask the friend for more information, the Appellant said that he had already done so and if he did so again “we no longer can deal with my friend ever again” as he would think that something funny was going on. The Appellant said also that his friend was waiting for his money.

91 In another conversation on the same day between the Appellant and Steven Sukkar, about the contents and significance of a number of the documents, the Appellant made suggestions clearly intended to assist Steven Sukkar’s understanding of the documents and of the course of events. In a third conversation Steven Sukkar informs the Appellant of a call just made to Max Messina and again the Appellant provides information and advice on a variety of matters and as to the course events probably took.

92 In a fourth conversation of 1 December, Steven Sukkar again raised with the Appellant the topics of his conversation with Max Messina and the contents of the documents, suggesting that the container’s movements for 40 hours were unaccounted for and Mr Messina may have obtained access during this period. Again the Appellant makes suggestions as to the course of events that had, or could or must have, occurred.

93 In that same conversation Steven Sukkar suggested to the Appellant that the Appellant did not know what Mr Messina knew because the Appellant did not know what his friend may have told Mr Messina. In a conversation later that day with Loui Sukkar, Steven Sukkar said that “John’s friends knew he told me” - an interesting contrast with the statement of the Appellant in an earlier conversation that day to the effect that he had not told those in Brisbane the nature of the goods.

94 On 2 December there was a lengthy conversation between the Appellant and Simon Prasad discussing the content of the documents and in which the Appellant sought information as to their implications and otherwise. Prasad says he would contact Steve (who the Appellant’s evidence seemed to suggest was Mr Shepherd) but the latter was not going to do anything until he got paid. There was discussion about difficulties ringing or dealing with Intergroup Shipping who, Prasad said, could not have had access in the P & O yard. During the conversation Prasad asked that five grand out of twenty-five be kept aside for him and that some of the other money be given to a “Robbie”, a payment which, according to the Appellant’s evidence, would have been on behalf of Mr Prasad.

95 Later that day there was conversation between the Appellant and Loui Sukkar. The Appellant suggests that Loui ring P & O but not the Customs Broker who was already suspicious. The Appellant said he had confirmed that no one could have access to the ship yard beside P & O employees. The Appellant said he would be back from overseas by the 8th but indicated some reluctance at returning to speak to the Europeans.

96 In a conversation between Loui Sukar and the Appellant on 4 December, the Appellant promised to pay money that afternoon to his girlfriend apparently to be passed on to Loui. Loui also said that Joseph (Sukkar) had no money at that time and needed to sell some goods to obtain any. Loui asserted that they, who one might infer were the Europeans, believed that the Appellant had ripped off the drugs. Loui complained also that the paperwork was still not in order.

97 In response to a question by the Appellant as to what he was to say to “these people”, Loui replied that he should tell them that they would have to wait. He went on to indicate that “We’ll” pay the Appellant and the Appellant could pay those people. Both said that they were probably not going to “do it again”. Loui tells the Appellant that “they” were thinking that the Appellant ripped it off and complains about still trying to get paperwork.

98 The money to be paid to Loui via the girlfriend merits further mention. Loui Sukkar mentioned an amount of 3½ thousand. The transcript then records the following:-

“Choi. Yeah what the three and a half for I don’t have to pay Burkie a thousand. (sic)

Loui Well then it’s two and a half.”

99 In a later call on 4 December Loui Sukkar told the Appellant that the Europeans were delaying their trip and advised that he still needs “that last bit of documents”. The Appellant advised that although they have all the paperwork there would still be gaps because there is not paperwork for every hour. Loui said that he could not pay people at the moment and was trying to get some money and “we are going to sell all this shit out now and try to sell some of that stuff and will have the money” by Monday. Arrangements are made for each to see the other on Sunday morning.

100 Later again on 4 December the Appellant indicated to Loui Sukkar that some people were upset and asked what he should tell them. Loui said that realistically it would not be until next week that he would have any money. Loui said things looked as if “it” or “they” had been re-packed. The Appellant is recorded as saying it would be better if Loui or Joseph rang some unspecified people up and:-

“Just tell them … we only started selling them when we received the other documents…because we didn’t want to open anything up until we got all the documents right” and “… we got it open early last er late last week, we gave it to somebody and er he’s going to pay us ninety a hundred but we have to give the majority of that to to EUROPE right and we’re going to give you guys twenty five straight away.” (sic)

101 In evidence the Appellant said that he had been suggesting this was what Prasad should be told.

102 On 5 December in the last of the recorded calls the Appellant spoke to Simon Prasad, gave him a telephone number for Loui Sukkar and said that the latter was expecting a call.

103 The topic of payment to various people was raised in a number of conversations to which the Appellant was not a party. In the conversation of 26 November between El Hani and Joseph Sukkar, Joseph asked what he was going to do with the “Chinese man”, a name given to the Appellant, who apparently wanted “300”. In a conversation between these same 2 people on 28 November Joseph said that the Chinese man wanted some payment by the end of the week to “make a payment to them”.

104 Some other matters should also be referred to. The officer in charge of the investigation gave unchallenged evidence that the listening devices indicated that on 2 December 2001 some more of the columns then at the premises at 84 Consett Street were broken open, tablets found, poured into plastic bags and then stored inside the house, these activities being carried out by Joseph, Loui, Steven and Paul Sukkar. On 5 December many of those involved in the importation were arrested and those premises searched. Found there were plastic bags of tablets and fragments of the columns. Another police officer gave evidence that almost all of the tablets in these bags were the tablets that had been substituted by the authorities prior to 23 November. However, some actual ecstasy tablets similar in marking to those left in the columns were also found at 24 Consett St, (as were some from a different source).

105 Police surveillance also observed that on 2 December parts of the cool-rooms were transported from Consett Street to Granville where they were also found on 5 December.

106 What conclusions should be drawn from this account of events? In their terms none of the conversations were directed to finding or obtaining the drugs that had gone missing and none were directed to dealing with the drugs that remained beyond the indications that the unopened columns should remain that way and Loui Sukkar’s telling the Appellant that he was going to sell some of, what one may infer were the non-“dud” drugs by that time held, to get money to pay people who had assisted in the importation.

107 It is of course not unlikely that had the location of the drugs been found in consequence of any of the events to which reference has been made the offenders would have taken additional steps, but as things stood during the period 24 November to 5 December, it seems that the concern of the Appellant and, to the extent that the evidence demonstrates, that of the other offenders, was to be able to persuade the suppliers of the drugs that the drugs had not been lost in Australia. There is indeed no evidence that the provision of advice or the obtaining of documentation was directed to recovery of the drugs.

108 I have already indicated that there was concern on the part of the Sukkars and the Appellant that persons in Europe from where the drugs had originated would blame one or more of the Australian participants for the loss and that documents should be obtained with a view to rebutting any such suggestion. I do not regard activities directed solely to those ends as part of importation. Such activities would certainly not be directed to the actual landing of the goods nor, without more, to making the goods available. Thus I do not regard the first 2 of the 8 matters relied on by the Crown as constituting or demonstrating the continuation of the importation to 5 December or as capable of doing so.

109 I take a similar view in respect of many of the discussions falling within the fourth, fifth and sixth of the eight matters relied on which, in their breadth of expression, would be apt to describe discussions occurring today between participants in the enterprise - discussions that would hardly demonstrate that the importation is still continuing.

110 Of course, following his reference to the 8 groups of acts relied on by the Crown, his Honour’s instructions went on to direct the jury to the question of whether the acts relied upon “go to the ultimate purpose of bringing the narcotic goods into Australia”. Thus it can be said that to the extent to which the acts relied on were not directed to the importation, the jury would not have been led into error. However, once one concludes, as I do, that 5 of the 8 categories of matters relied on by the Crown were not capable of constituting or demonstrating the continuation of the importation, it is impossible to conclude other than that the directions were calculated to mislead.

111 On the other hand, in light of the authorities to which reference has been made, it is clear that the importation extended up to the time on 2 December when, according to the unchallenged evidence of the officer in charge, columns were broken open to make their contents available.

112 Furthermore, I take the view that the presence of some of the imported tablets in the premises on 5 December is, within the words in Lam, “directly related or proximate or incidental to the importation” and, within the words of Wood CJ at CL in R v Sukkar, something “having a direct proximity to the bringing of the goods into the country, and making them available”. After all, some presence of goods at the place of receipt or unpacking is a necessary incident of physical importation and the fact that 3 days had elapsed since unpacking of part of the consignment had occurred is not enough to justify the conclusion that the venture of importation had come to an end.

113 Thus whatever errors there may have been in his Honour’s directions to the jury as to the duration of the importation, the conclusion that it continued until 5 December was inevitable.

114 Turning then to the topic of the Appellant’s involvement after the time when he acknowledged he had become aware of the subject of the importation, it is only the last 4 of the 14 acts relied on by the Crown that are relevant. So far as the first of these, his “attending at 84 Consett St, Concord on 24 November 2001 in order to discuss the importation” is concerned, on this second way in which the Crown put its case, it was only after the Appellant arrived there that he found out about the drugs so that his mere attendance could not have been, or demonstrated, knowing involvement.

115 The only arguably significant activity the Appellant is shown to have indulged in on that occasion was to advise Loui Sukkar to “get rid of that shit anyway in your house”. However, such advice was not directed to bringing the drugs into the country or making them available here but rather to eliminating evidence that such activities had occurred and does not amount to involvement in the importation. This conclusion derives support from remarks of Wood CJ at CL in R v Sukkar where his Honour said, at [105] and [130]:-

“105 It may be accepted that evidence, arising from these various events and exchanges, of mere knowledge by the Appellant of the importation and of his brothers’ involvement in it, or of any concern or anxiety that he had in relation to their financial loss, or in relation to any risk of them being harmed by anyone else involved in it, or even in relation to their arrest, in connection with it, would not suffice to make good the offence charged.”

“130 I would accept that if the evidence as to his (Steven Sukkar’s) involvement, after being informed of the importation, revealed nothing more than a commitment to secure the removal from his premises of any evidence concerning it, then the offence charged, as distinct from one of being an accessory after the fact, would not have been made good.”

116 Accordingly, the eleventh of the Crown’s 14 acts or groups of acts could not have helped establish that part of the Crown’s case for which it was advanced.

117 It follows from what I have said above that the same conclusion follows in respect of the 12th and 13th acts or groups of acts. There is nothing to indicate that those actions of the Appellant were directed to bringing the drugs into the country or making them available here or finding or recovering those that had apparently disappeared as distinct from being able to persuade the suppliers of the drugs that the drugs had not been lost in Australia.

118 There remains the topic of “arranging for payment of the man Bourke”. I have referred to the fact that in one of the telephone calls Mr Bourke asked the Appellant for money and in another conversation between Loui Sukkar and the Appellant it appears to have been agreed that an amount the Appellant paid Mr Sukkar would be reduced by $1,000 associated in some way with Mr Bourke. In evidence the Appellant denied there was an arrangement for paying Mr Bourke. The evidence continued:-

“A I think Mr Bourke asked me when he’d get paid and I deducted some money that Loui Sukkar was supposed to pick up or something and gave it to Mr Bourke instead – or not me specifically, someone in my office.

Q You were going to pay some of Mr Bourke’s fees and Loui was going to pay the other part?

A That’s incorrect, sir, because Loui Sukkar was paying the full amount. On the telephone transcripts there I tell Loui that I’m paying $1,000 of his money to Mr Bourke.

Q Well, there is one of the calls, and I will take you there in a minute, where you say “I don’t have to pay Bourkie a thousand”?

A “I have to pay Bourkie a thousand”, I think that’s what it says.

Q No, you say “I don’t have to pay Bourkie a thousand”, meaning he’s already been paid correct?

A I’ll have to look at the transcript, sir.

Q Well, you will agree wouldn’t you at least that you were going to pass on some money from Loui to Mr Bourke?

A Yes I agreed with Mr Sukkar I just took $1,000 of his money that was in my office and paid Mr Bourke.”

119 The Appellant also agreed that he knew in giving Mr Bourke the money that it was payment for his part in driving down from Queensland and the work he did at the warehouse.

120 Later, the Appellant adhered to the account that he was – in one answer he said “had to pay” - taking $1000 of Mr Sukkar’s money to pay Mr Bourke.

121 In my view the actions of the Appellant in paying Mr Bourke did amount to concern and, given that they were after 24 November, knowing concern in the importation. Of course the actions were not in themselves directed to effecting the importation or making the drugs imported available but they did amount to carrying out part of the arrangements for, or incidents of, the importation venture. The payment to Mr Bourke was for his assistance in effecting that part of the importation as was directed to making the goods available. But for the possible effect of the illegality in the venture, Mr Bourke was entitled to reasonable remuneration for his time and effort, it would appear from Mr Sukkar. In making payment on behalf of Mr Sukkar the Appellant was aiding the performance of the importation venture and was doing so at a time when he knew that the subject of the importation was drugs.

122 Furthermore, although it is not critical to my conclusion, this occurred while the venture was continuing.

123 It may perhaps be noted that his Honour’s directions as to the 14 (or 13) acts or groups of acts relied on by the Crown as amounting to or demonstrating the Appellant’s concern in the importation do refer to the Appellant’s efforts to effect remuneration to Mr Prasad and through him Mr Shepherd. Given arrangements had been made for this remuneration at a time when, according to the Appellant, he had no knowledge of drugs, it may be possible to argue that these efforts were affected by somewhat different considerations. However, in the circumstances it is unnecessary to decide.

124 In summary, a consideration of this ground has revealed a number of errors in the summing-up, both on the topic of importation and the topic of involvement. No complaint was made at the trial about these errors but they are of such a fundamental nature that leave under rule 4 should be given to raise them. However, in respect of both topics, there was evidence either unchallenged or from the Appellant which demonstrates that the relevant elements of the offence charged were made out.

125 Accordingly the appeal is one to which the proviso to s6(1) of the Criminal Appeal Act should be applied and the appeal against conviction dismissed.

Sentence Ground 1

The sentence imposed on the Applicant is manifestly excessive having regard to the objective facts and circumstances of the case, and the personal factors affecting the applicant that are relevant for the purpose of determining an appropriate sentence.

126 Having regard to the submissions advanced in respect of this ground, consideration of it may be deferred until the other grounds are dealt with.

Sentence Ground 2

The learned judge erred in applying the principles of parity of sentencing by considering that the relative and relevant circumstances of the applicant and Loui Sukkar were approximately equivalent, thereby apparently failing to have regard to a serious additional charge relating to the distribution of drugs for which the offender Loui Sukkar was sentenced.

127 On 11 March 2004 Loui Sukkar was sentenced by Acting Judge Andrew in respect of two offences, the first identical to that of which the Appellant was convicted and the second a charge that between 23 November and 6 December 2001 he offered to supply a large commercial quantity of ecstasy. The offence common to the offenders rendered each liable to a maximum penalty of imprisonment for life and a fine not exceeding $750,000. The second carried a maximum penalty of 20 years imprisonment.

128 The sentence imposed on Loui Sukkar in respect of the first offence was imprisonment for 18 years including a non-parole period of 12 years, both such periods to date from 5 December 2001. For the second offence the sentence imposed was imprisonment for a period of 6 years including a non-parole period of 3 years. Again these periods were directed to commence on 5 December 2001.

129 In arriving at the sentences he imposed, Acting Judge Andrew took into account a further offence of possession of not less than the trafficable quantity of MDMA that may reasonably be suspected of being imported. This offence related to a quantity of tablets containing 52.1 grams of MDMA found in the garage at 84 Consett Street on 5 December 2001 and which were of a different composition than those the subject of the principal offence.

130 His Honour adopted as a starting point a period of 36 years from which he deducted 12 years following a concession by the Crown that Mr Sukkar should have the benefit of the discount contemplated by s16G of the Crimes Act. His Honour reduced the resulting 24 years to 18 years by allowing a further discount of 25% on account of Loui Sukkar’s plea and willingness to assist the authorities.

131 Acting Judge Andrew found that Loui Sukkar was a co-principal in partnership with his brother Joseph in the importation and a joint owner with Joseph of the imported drugs. His Honour found the only distinguishing factor between himself and Joseph was that Joseph had the overseas connections. His Honour found that Loui was genuinely contrite and may well be rehabilitated. He had no prior convictions.

132 The second offence under the Drug (Misuse and Trafficking) Act arose from an offer to supply some 14,000 remaining genuine tablets from the control delivery. The offer was presumably accepted and implemented because the tablets were never recovered. The apparent purchaser of the tablets, who had prior convictions for drug related offences and was in breach of a bond, received a sentence of 6 years with a non-parole period of 3 years. Taking the view that Loui Sukkar’s role was greater than the purchaser’s but having regard to his remorse and that he pleaded guilty to this offence at the earliest opportunity, his Honour imposed the same sentence as had been imposed on the purchaser. Observing that “there is some overlapping of the two offences because, in considering his role in the importation, it has been taken into account that he was a principal offender who was to supply the narcotics and to share in the profits” his Honour decided to make the two sentences concurrent.

133 An appeal by Loui Sukkar to this Court against the length of the principal sentence was dismissed – [2005] NSWCCA 55.

134 As has been said, the sentence imposed on the Appellant here was of imprisonment for 20 years including a non-parole period of 13 years both such periods to date from 8 May 2003. Judge Solomon indicated that in arriving at the sentence he had afforded the Appellant a reduction by one third as each of the Appellant’s co-offenders had received the traditional discount flowing from s16G of the Crimes Act.

135 In the course of his remarks on sentence, his Honour addressed the topic of parity and the relative position and activities of those involved in the importation. Having regard to the limited issues canvassed in the appeal, it is unnecessary that I detail all of what was said in that regard. His Honour found that the Appellant was subordinate to Loui and Joseph Sukkar and was not satisfied that the Appellant was a financial partner or was to share in the profits. However, he found the Prisoner’s initial role was to import the tablets for a reward and he played a vital and senior role.

136 His Honour found that the Appellant’s role was senior to that of each of Steven Sukkar, Prasad, Shepherd and El-Hani whose circumstances were as follows:-

El Hani had pleaded guilty and been sentenced to imprisonment for 15 years including a non-parole period of 10 years;

Steven Sukkar had been found guilty and sentenced to imprisonment for 14 years including a non-parole period of 9 years;

Prasad had been found guilty and sentenced to imprisonment of 14 years including a non-parole period of 8 years and 8 months. A Crown appeal against that sentence had been dismissed although this Court had held that a proper sentence would have been of the order of 17 years including a non-parole period of 11 years and 2 months.

Shepherd had pleaded guilty and on an appeal by him sentenced to imprisonment for 11 years 6 months including a non-parole period of 7 years 4 months, after an allowance of 45% had been made for his plea and assistance.

137 Each of these offenders had faced the same charge as that for which the Appellant was convicted. Each had received the benefit of a s16G discount.

138 Judge Solomon took into account that the tablets the subject of the controlled delivery had in large part not been recovered and had presumably been disseminated into the community with the potential to cause harm. His Honour recognised that Loui Sukkar’s sentence had been reduced on account of his plea and assistance and that whereas Loui Sukkar had no criminal antecedents, the Appellant had in November 1994 pleaded guilty to two counts of attempted robbery in company. His Honour found that the Appellant showed no remorse.

139 It was submitted that Judge Solomon erred in not having regard to the fact that in sentencing Loui Sukkar, Acting Judge Andrew had had regard to the fact that Loui Sukkar was not only the principal offender but one who was to supply the narcotics and share in their profits; that this was taken into account in determining the sentence imposed for the importation offence; and because of that the sentence for the supply offence was made wholly concurrent. It was submitted that when regard was had to these matters, there was insufficient difference between the 24 years (before the plea and assistance discount) used in sentencing Loui Sukkar and the 20 years of the Appellant’s head sentence.

140 I do not regard the concurrency of the second sentence imposed on Loui Sukkar for an offence which has no parallel in the sentencing of the Appellant as relevant. Considered in isolation, the difference in roles between that of the Appellant and Loui Sukkar did require a significantly higher sentence on the latter. The fact that in the sentencing of the latter an additional offence was taken into account argues in the same direction although it must be recognised that, while serious, that offence paled greatly by comparison with the offence of which both offenders are guilty.

141 Operating in the opposite direction is the fact that the Appellant had, by his re-offending, shown a continuing attitude of disobedience to the law and had shown no remorse. Both of these circumstances meant that the demands of personal deterrence, the protection of the community and rehabilitation argued for a significantly higher sentence than would otherwise have been appropriate. To what extent these matters tend to offset those referred to in the immediately preceding paragraph is very much a matter of judgment on which minds may differ but I am not satisfied that when allowance is made for them, the Appellant has a justifiable sense of grievance that his head sentence was only 4 years lower than the sentence imposed on Loui Sukkar. I take a similar view of any comparison between the Appellant’s 13 years non-parole period and the 16 years one may deduce would have been imposed on Loui Sukkar but for his plea.

Sentence Ground 3

Cameron v The Queen

142 It is the fact that Judge Solomon did not advert to the subject of this ground in his remarks on sentence. It was not mentioned in submissions to him.

143 At the conclusion of the Crown case the Appellant made a series of admissions pursuant to Section 184 of the Evidence Act, these becoming Exhibit AE. In the course of his summing up Judge Solomon remarked to the jury that the admissions “were made in relation to matters which were not in dispute, and they saved us a considerable amount of time, and you should look at them in that light”. Relying on this Court’s decision in R v Doff [2005] NSWCCA 119 at 58 it was submitted that the Appellant should have been given credit for these admissions in reduction of the sentence that would otherwise have been imposed upon him.

144 Exhibit AE was in the following terms:-

“Hyeon Joon CHOI

Matters of fact admitted by the Accused

I, Hyeon Joon Choi, with advice from my counsel, and pursuant to section 184 of the Evidence Act 1995, admit for the purposes of my trial the following matters of fact:-

Importation of narcotic goods

1. That on 17 November 2001, there was imported into Australia, at Brisbane, Queensland, a shipment of prohibited imports, being narcotic goods;

2. That the narcotic goods which were imported consisted of a quantity of tablets containing the drug 3.4 methylenedioxymethamphetamine (ecstacy);

3. That chemical analysis conducted by the Australian Forensic Drug Laboratory showed the tablets to contain an average pure content of 27.8% ecstasy;

4. That the gross weight of tablets amounted to approximately 123.675kgs;

5. That the total net weight of ecstasy within the tablets (calculated at an average purity of 27.8%) amounted to approximately 34.38kgs.

CJ Trade Consultants Pty Ltd

6. That on 28 April, 1999, CJ Trade Consultants Pty Ltd was registered in New South Wales as a company. The company Directors at that time were:-

7. That on 26 January 2000 Steven SUKKAR, Loui SUKKAR and Wonjai KIM ceased to be Directors. On that date, Stephen PRASAD was appointed as a Director, and Hyeon Joon CHOI continued as a Director.

8. That from 1 February 2000 until 30 June 2000 the principal place of business of the Company was 22 Colson Crescent, Monterey NSW 2217.

9. That on about 1 June 2000 CJ Trade Consultants Pty Ltd entered into a lease of premises at Suite 1, Level 1, 552 Princes Highway, Rockdale, NSW. That from 1 July, 2000 the principal place of business of the Company was Level 1, 552 Princes Highway, Rockdale NSW 2217.

10. That from 25 June 2001 CJ Trade Consultant Pty Ltd changed its name to CJ Trade Group Pty Ltd retaining its principal place of business as Level 1, 552 Princes Highway, Rockdale, NSW 2217.

CJ Capital Pty Ltd

11. That on 19 March 2001, I arranged for the registration of a company in the name of CJ Capital Pty Ltd.

12. That at all relevant times, I was the sole Director and Secretary of CJ Capital Pty Ltd.

13. That on 24 August 2001 I entered into a contract on behalf of CJ Capital Pty Ltd to purchase an office unit at Unit 34, 17 Henderson Street, Turella.

Departure from and return to Australia

14. That on the morning of 28 November 2001, I departed Australia on Cathay Pacific flight CX 110, for the purposes of a business trip to South Korea via Hong Kong.

15. That on 13 May 2003 I was arrested in South Korea in relation to a warrant issued in Australia in respect of the charge for which I am currently standing trial.

16. That on 1 September 2003 I was extradited in respect of that charge from South Korea and returned to Australia on 2 September 2003, in the custody of officers attached to the National Crime Authority (Australian Crime Commission).

…………………………..

145 I am not persuaded that his Honour did not overstate the saving of time in his remarks to the jury. Witnesses who were called gave evidence as to the finding of the drugs and both common experience and the particularity apparent in the admission as to weight and quantity provide convincing evidence that that information was readily available and at least in part probably the subject of a certificate the tendering of which would have involved but moments of time.

146 The matters referred to in paragraphs 6-12 are the sort of matters which would in the ordinary course be provable by documents emanating from ASIC and admissible on their production and there is nothing to persuade me that that was not so in this case.

147 Business records likely to be readily available to the Crown could have been expected to prove the matters the subject of paragraphs 14 to 16.

148 That leaves only paragraph 13. This Court has not been directed to any evidence which bears on the topic of the ease or difficulty proving the matters the subject of that paragraph but again, in the normal course, one would not have expected any particular difficulty.

149 In R v Doff the Court remarked that it could see no reason why there should not be taken into account for the purposes of sentencing “the efficient way in which the Appellant’s trial was conducted, including the making of extensive admissions, which, while not demonstrating contrition or remorse, did show a willingness to facilitate the course of justice by refraining from resort to dilatory and technical objections of no merit.” In this case the Crown did not seek to argue against the approach apparent in that extract but submitted that some qualitative assessment needed to be made of any such admissions before some quantifiable discount is applicable. I agree.

150 Had the Appellant pleaded guilty at about the time of the commencement of his trial he could have expected a discount of the order of 10%. The trial took something of the order of 5 weeks plus a number of further days in sentencing proceedings. It is not apparent to me that the Appellant’s admissions saved more than an hour or so at the most.

151 I do not for one moment suggest that any credit that the Appellant is given for his admissions should be worked out on any proportionate basis from the figures referred to in the immediately preceding paragraph and this at least for the reason that the 10% figure is not fixed and so many matters affect the duration of a trial that its length could not be used as any appropriate component of a mathematical calculation. However, the data does tend to demonstrate that any benefits to the administration of justice from the admissions or co-operation in this case are marginal at most. Indeed, compared with the other factors bearing on sentence, I regard the benefits here as insignificant.

152 Before I leave this ground I would add that data of the nature of that to which I have referred provides a compelling reason why the Court should not seek to quantify, except in the most unusual case, any discount or allowance for admissions of the nature of those here. In many cases, the weight to be given to admissions such as those made here will, as in this case, be none or insignificant.

Sentence – Ground 4

Mill v The Queen

AB v The Queen

.

153 According to a statement of the Appellant that was placed before his Honour on sentence, the Appellant was arrested in Korea on 7 May 2002 and sentenced to imprisonment for 3 months for smoking cannabis and an additional 9 months for possession of cannabis. He said that after he should have been released in respect of these matters he was held in custody in Korea pending his extradition. He said that he made no effort to object or fight his extradition and on 1 September 2003 returned to Australia.

154 His Honour recognised that the Appellant was detained in South Korea on 8 May 2003 by virtue of a provisional arrest warrant and then extradited to Australia on 2 September 2003 and ordered that the Appellant’s sentence date from 8 May 2003. His Honour did not otherwise refer to the matters mentioned in the immediately preceding paragraph. The relevant parts of his Honour’s remarks on sentence are in the following terms:-

Mill v R

I am not conversant with any of the facts around the prisoner’s conviction in South Korea nor am I conversant with the South Korean sentencing principles. I cannot therefore estimate what effective head sentence would have been imposed had the prisoner committed the South Korean offence and the Commonwealth offence in the same jurisdiction and I reject the submission.”

155 In Mill v R the High Court makes clear that in circumstances where an offender is sentenced and serves a term of imprisonment in one jurisdiction before being sentenced in a second, a number of factors arise for consideration. One is the delay with the uncertainty and other disadvantages that are liable to flow from that – see the reference at p 64 to R v Todd (1982) 2 NSWLR 517 and the High Court’s endorsement, at p65-6, of that decision. I would not give that factor any significant weight here. The delay was not particularly long and I would not be persuaded that the Appellant’s absence from Australia was not with a view to avoiding arrest for the importation. The evidence makes it clear that he was reluctant to return to face questioning from the Europeans and I have no doubt that he came to know of the arrest of his co-offenders with whom, as a group, he had been in regular contact. He was not arrested in Korea until a number of months after that occurred.

156 A second factor to which Mill v R in its approval of R v Todd invites attention is any close relationship in time or character of the offences. I regard this factor as also of no weight here.

157 A third factor is the cumulative effect of the sentences in Korea and that here. Commonly, when a series of offences merits a series of penalties by way of incarceration, sentences are either made wholly or partly concurrent or some reduction is made to one or more of the sentences so that the totality of the punishment does no more than reflect the totality of criminality. In failing to consider this aspect of the Appellant’s total incarceration Judge Solomon erred.

158 It is not indeed clear whether his Honour in fact accepted any appreciable portion of the Appellant’s statement as to his convictions in Korea beyond the fact of a “conviction”. However in light of the terms of the reference to that last matter, it seems to me that on balance one should proceed on the basis that his Honour accepted those parts of the statement to which I have referred.

159 It was not necessary for his Honour to know what effective head sentence would have been imposed had the Appellant committed all of his offences in one jurisdiction. He could readily, and in my view should, have proceeded upon the basis that the sentence in Korea properly reflected Korean law and standards and gone on to consider whether, by simply accumulating the sentence he imposed, the principle of totality was being breached. This Court accordingly should do so.

160 Although minds might reasonably differ on the topic, my view is that there was no such breach. The sentence(s) in Korea were, by comparison with that imposed by Judge Solomon, of short duration. Any amelioration of the local sentence would have been, at most, minor. It is reasonably to be inferred that the sentences in Korea did not reflect the fact that the Appellant had committed the offence with which this Court is concerned and that the conduct for which he was sentenced in Korea demonstrated yet another disregard of the law additional to the Australian offence. Accordingly while I regard his Honour as having erred in one of the respects covered by this ground, I regard that error as of no consequence.

161 The next question that arises is whether recognition should have been afforded to the assertion of cooperation with authorities by not raising any challenge to his extradition. Apart from the bald statement of the Appellant to which I have referred the matter does not seem to have been the subject of any consideration during the sentencing proceedings, but more importantly, there is no evidence upon which any judgment could be made as to the Appellant’s motivation for that course or as to whether he had any possibility of successfully making any such challenge. Accordingly there was no material before his Honour upon which he could make any assessment as to whether weight should have been given to the topic or not.

162 Accordingly, this ground of challenge to the sentence imposed also fails.

Sentence – Ground 1

The sentence imposed on the Applicant is manifestly excessive having regard to the objective facts and circumstances of the case, and the personal factors affecting the applicant that are relevant for the purpose of determining an appropriate sentence.

163 The submission in support of this ground was a statement that the Applicant relied on the matters specifically raised in the other grounds. They have been dealt with and do not support the claim that the sentence was manifestly excessive. By comparison with the statutory provision it demonstrably was not. The maximum penalty provided for is life imprisonment and the quantity of MDMA which renders an offender liable to that penalty is 0.5 of a kilogram. The quantity the subject of the Appellant’s offence was 34.4 kilograms, consisting of some 480,000 tablets with a wholesale value of between $7.2M and $12M and a retail value of between $9.6 and $33.6M. The Appellant’s sole motivation would seem to have been for the reward he would receive for his efforts.

164 By comparison with the sentence imposed on offenders other than Loui Sukkar the sentence was also well within, if not below, the appropriate range. If one added back the 45% discount reflected in Shepherd’s sentence the result would be a sentence of 20 years and almost 11 months, and this for an offender whose criminality was found to be below that of the Appellant, and in my view, very much below.

165 Furthermore, in the determination of the Appellant’s sentence, he was allowed a discount of one-third, that being the discount commonly applied pursuant to the provisions of s16G of the Crimes Act (C’th). The Crown conceded that, as a matter of discretion, this should occur because Mr Shepherd had received the discount and notwithstanding that the section had since been repealed.

166 That concession should not have been made. Judge Solomon should not have acted upon it and had I not come to the conclusion that the appeal against sentence should be dismissed on other grounds I would have relied on this error in the Appellant’s favour as quite enough to demonstrate that the sentence imposed was not manifestly, or indeed at all, excessive. I drew counsel’s attention to this possibility during the hearing of the appeal.

167 Because in light of my other conclusions it is unnecessary to decide this issue I shall indicate my reasoning but briefly.

168 The repeal of s16G occurred on 16 January 2003 by virtue of the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and other Measures) Act 2002 which, by s4, provided that the repeal applied to any sentence imposed on or after the Act’s commencement, whether or not the offence was committed before its commencement.

169 Mr Shepherd had been sentenced on 8 November 2002. It is not clear when he first pleaded guilty although it was said by the judge who sentenced him that it was before a magistrate and at the first opportunity. Despite the repeal, when his sentence was decreased by this Court on 16 October 2003 upon the ground that insufficient allowance had been made for his assistance to authorities, he was again given the benefit of the section although without the Court expressly adverting to its repeal or the consequences thereof. It may be that this was but a reflection of the Court’s view of the principle referred to in Radenkovic v R (1990) 170 CLR 623 at 632 but it matters not.

170 Mr El-Hani was also given the benefit of the section when he was sentenced on 6 March 2003, Judge Shadbolt taking the view that as El-Hani had entered his plea prior to the section’s repeal he had an accrued right to the discount which the amending act did not abolish. El Hani’s appeal to this Court, [2004] NSWCCA 162, was dismissed without any reference being made to s16G.

171 In the case of Simon Prasad, Steven Sukkar, Loui Sukkar and Joseph Sukkar, the Crown also conceded that because Shepherd had received the s16G discount these offenders should, as an incident of the sentencing discretion, also receive that discount. Simon Prasad and Steven Sukkar were sentenced respectively on 18 and 19 December 2003 after a trial. Loui Sukkar was sentenced on 11 March 2004 after pleading guilty. It would seem that his plea occurred no earlier than 28 March 2003. Joseph Sukkar was sentenced on 2 September 2005 after pleading guilty on 2 August 2002.

172 The propriety of that course has not been the subject of examination in the various Courts of Criminal Appeal that have had to consider appeals in relation to any of these offenders except in the case of a Crown Appeal against the sentence imposed on Joseph Sukkar. In that case, after referring to decisions of this Court in R v Speer [2004] NSWCCA 118 and R v Schofield [2003] NSWCCA 3, Latham J, with whose reasons McClellan CJ at CL and Howie J agreed observed, at [65]:-

“In light of (the Crown) concession, I have not found it necessary to reach any concluded view on this issue. I am by no means persuaded that parity arguments alone justify the application of section 16G to a co-offender who pleads guilty before its repeal, but is sentenced after repeal, much less where both the plea and sentence occur after repeal. The particular circumstances may enliven general discretionary considerations in one case but not in another.”

173 I share their Honours’ reservations. Indeed I would go further. Sentencing is not the exercise of an unbridled discretion in accordance with what the Crown or a judge thinks is “fair”, irrespective of the law or the will of Parliament. To give, in determining a sentence, the discount which s16G required when it was in force, after that section is repealed and Parliament has expressly said that the repeal applies to any sentence imposed after the repeal, is to deny that will and not act in accordance with law – See R v Studenikin (2004) 60 NSWLR 1 at [62].

174 Neither does a concession by the Crown alter the position. Although the circumstances were different, the point was made in Gas v R [2004] 217 CLR 198 at [31 – 32]:-

“It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge’s responsibility to find and apply the law is not circumscribed by the conduct of counsel.

Fifthly, an erroneous submission of law may lead a judge into error and, if that occurs, the usual means of correcting the error is through the appeal process. It is the responsibility of the appeal court to apply the law. If a sentencing judge has been led into error by an erroneous legal submission by counsel, that may be a matter to be taken into account in the application of the statutory provisions and principles which govern the exercise of the appeal court’s jurisdiction.”

175 See also Malvaso v R (1989) 168 CLR 227 at 233 and R v Ahmad [2006] NSWCCA 177.

176 Nor do considerations of parity justify the stance which the Crown has conceded should be taken in this case and in the case of the other offenders to whom reference has been made. That principle reflects the desirability “that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, such matters as the age, background, criminal history and general character of the offender and the part which he or she played in the commission of the offence have to be taken into account” – see Lowe v R (1984) 154 CLR 606 at 609.

177 To similar effect were the observations of Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 301:-

“The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.”

178 The change in the law effected by the repeal of s16G and the accompanying statement by Parliament that the repeal should apply to all sentences imposed thereafter meant that the situation of Shepherd on the one hand and the other offenders (with the possible exception of El Hani) on the other were not alike. They were indeed very different.

179 Furthermore, the decision of the other offenders not to plead guilty when Shepherd did, meant that they took the risk of changes to the law, whether to make the penalty higher or lower, that might occur thereafter.

180 I do not ignore the fact that in R v Schofield, to which I was a party, what was effectively a s16G discount was allowed in the determination of a sentence imposed after the section was repealed. However that occurred in the course of an appeal, and in circumstances that do not apply at first instance. That is clear from the terms of the Court’s reasons. At [69] I said:-

“Because of the element of double jeopardy in Crown appeals, this court has a discretion even where a sentence under appeal is manifestly inadequate, to dismiss the appeal or to impose a sentence which is lower than otherwise appropriate. In the particular circumstances of this case, I would exercise that discretion so as to, in effect, give the Respondent the benefit of Section 16G.”

181 Carruthers AJ with whom Heydon JA agreed, at [164] said:-

Radenkovic v R

182 In the passage from Radenkovic v R referred to, Mason CJ and McHugh J said:-

“In the context of an appeal against sentence, when a court of criminal appeal is called upon to re-sentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be re-sentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement.”

183 In R v Speer [2004] NSWCCA 118 this Court took a wider approach. The correctness of that decision was not the subject of argument before us and accordingly, it is preferable that I express no concluded view about it. However it is appropriate to point out that the Court relied, inter alia, on extracts from what had been said in R v Schofield, extracts which were incomplete and in their incompleteness, inaccurate, and on a passage from the remarks of the Court in R v Maclay (1990) 19 NSWLR 113 at 127 which does no more than raise the possibility that “fairness”, particularly in the circumstances of co-offenders, might be invoked to overcome the apparent effect of a statutory change.

184 While in light of the length of the Appellant’s sentence I would grant leave to appeal, the appeal against sentence should be dismissed.

185 Accordingly, I propose the following orders:-

(i) Dismiss the appeal against conviction;

(ii) Grant leave to appeal against sentence;

(iii) Dismiss the appeal against sentence.

186 HISLOP J: I agree with Hulme J.

**********

04/07/2007 - incorrect year - Paragraph(s) 35

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Choi v R [2007] NSWCCA 150

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CITATION:	CHOI v R [2007] NSWCCA 150 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 August 2006
JUDGMENT DATE:	1 June 2007
JUDGMENT OF:	Beazley JA at 1; Hulme J at 2; Hislop J at 186
DECISION:	Dismiss the appeal against conviction; Grant leave to appeal against sentence; Dismiss the appeal against sentence
PARTIES:	Hyeon Joon CHOI Regina
FILE NUMBER(S):	CCA 2006/718
COUNSEL:	Crown: Mr R Sutherland SC Appellant: Mr P Byrne SC
SOLICITORS:	Crown: Michal Poberezny Comm DPP Appellant: Giddy & Crittenden
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0353
LOWER COURT JUDICIAL OFFICER:	Solomon DCJ