Climo v The Queen [No 2]

[2016] WASCA 233

CLIMO -v- THE QUEEN [No 2] [2016] WASCA 233

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 233
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:223/2015	Heard:	2 DECEMBER 2016
Coram:	MAZZA JA MITCHELL JA BEECH J	Delivered:	23/12/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for leave to appeal against sentence dismissed Appeals dismissed
Category:	B
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Parties:	BENJAMIN GORDON CLIMO THE QUEEN
Catchwords:	Criminal law Appeal against conviction Importing marketable quantity of a border controlled drug Whether trial judge erred in directing the jury as to the applicable fault element of recklessness Criminal law Application for leave to appeal against sentence Manifest excess
Legislation:	Criminal Code (Cth), s 307.2
Case References:	Alford v Magee (1952) 85 CLR 437 Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135 Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 Kenworthy v The Queen [2016] WASCA 207 Lau v The Queen [2011] VSCA 324 Nell v The Queen [2014] WASCA 193 Ng v The Queen [2012] WASCA 180 R v UE [2016] QCA 58 So v The Queen [2014] WASCA 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CLIMO -v- THE QUEEN [No 2] [2016] WASCA 233 CORAM : MAZZA JA

MITCHELL JA
BEECH J

HEARD : 2 DECEMBER 2016 DELIVERED : 23 DECEMBER 2016 FILE NO/S : CACR 223 of 2015

CACR 224 of 2015

BETWEEN : BENJAMIN GORDON CLIMO

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : LEVY DCJ

File No : IND 1112 of 2014

Catchwords:

Criminal law - Appeal against conviction - Importing marketable quantity of a border controlled drug - Whether trial judge erred in directing the jury as to the applicable fault element of recklessness

Criminal law - Application for leave to appeal against sentence - Manifest excess

Legislation:

Criminal Code (Cth), s 307.2

Result:

Application for leave to appeal against sentence dismissed

Appeals dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S B Watters
Respondent : Mr H C Quail

Solicitors:

Appellant : Go To Court Lawyers
Respondent : Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Alford v Magee (1952) 85 CLR 437
Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135
Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434
Kenworthy v The Queen [2016] WASCA 207
Lau v The Queen [2011] VSCA 324
Nell v The Queen [2014] WASCA 193
Ng v The Queen [2012] WASCA 180
R v UE [2016] QCA 58
So v The Queen [2014] WASCA 169

REASONS OF THE COURT:

Statutory framework

1 The appellant was convicted of importing a marketable quantity of a substance, methamphetamine, which is a border controlled drug. That is an offence against s 307.2(1) of the Criminal Code (Cth), which relevantly provides:

A person commits an offence if:

(a) the person imports … a substance; and

(b) the substance is a border controlled drug …; and

(c) the quantity imported … is a marketable quantity.

2 By s 307.2(2), the fault element for the circumstance that the substance is a border controlled drug is recklessness. Section 5.4(1) of the Criminal Code provides:

A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

3 Section 5.4(4) of the Criminal Code provides:

If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

4 Section 5.2(2) of the Criminal Code provides that a person has intention with respect to a circumstance if he or she believes that it exists or will exist. Section 5.3 of the Criminal Code relevantly provides that a person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of events.

5 By s 300.5 of the Criminal Code, it was not necessary for the prosecution to prove that the appellant knew, or was reckless as to, the particular identity of the border controlled drug.

Issues at trial

6 The offence which the appellant was alleged to have committed involved the importation of 192.8 g of methamphetamine (of 74% purity equating to a pure net weight of 143.2 g) concealed inside a welding unit. The appellant imported the welding unit into Australia in his checked luggage on a flight from Thailand to Australia. The drugs were detected by customs officers at Perth International Airport. The principal contentious issue at trial concerned whether the Crown had proved the fault element for the physical element (a circumstance) that the substance the appellant imported was a border controlled drug. The appellant's grounds of appeal complain about the adequacy of the trial judge's direction about that fault element.

The trial judge's direction to the jury

7 The direction which is the subject of that complaint was in the following terms:

I've just directed you, ladies and gentlemen, that methamphetamine is a border controlled drug. This element looks at whether each of Mr Climo and Mr Edwards separately on count 1 knew or believed about the substance he's alleged to have imported. The prosecution will prove this element if you're satisfied that the accused knew or believed that the substance imported was methamphetamine.

This element will be established if the prosecution has proved that the accused was aware of a substantial risk that the substance imported was methamphetamine and that in the circumstances as he knew them to be it was unjustifiable to risk importing the substance.

Now, in essence the Crown alleges that both Mr Climo and Mr Edwards on count 1 knew what was contained in the welder. In essence, the Crown's case is that they deliberately put the drugs in the welder and they knew it was. But the Crown doesn't have to prove actual knowledge. It's enough if they prove that they believed it was methamphetamine.

And this element, as I've said to you, will also be established if the prosecution has proved that the accused was aware of the substantial risk that the substance imported was methamphetamine and that, in the circumstances as the accused whose case you're considering knew them to be, it was unjustifiable to risk importing the substance.

Now, I'm going to give you some definitions of some of these words. They bear ordinary English meanings. Aware simply means to be cognisant or conscious of something. Substantial risk, substantial means real or of substance as opposed to nominal. A risk means a possibility, chance or likelihood. So when you put that all together it means a possibility, chance or likelihood that is real or of substance that the substance was methamphetamine.

Whether taking such a risk is unjustifiable is a question of fact for you to determine. Thus the question here is, have the prosecution proved beyond reasonable doubt either that Mr Climo knew or believed that the substance imported was methamphetamine or that he was aware of the substantial risk that the substance imported was methamphetamine and that in the circumstances as he knew them to be it was unjustifiable to risk importing the substance.

…

Now, quite obviously both Mr Climo and Mr Edwards on this count deny any knowledge of the substance inside the welder. Their case is in that regard relatively simple. They deny that they had any knowledge that there was anything in the welder, let alone methamphetamine (ts 1972 - 1973). (emphasis added)

Appeal against conviction: ground 1

8 Ground of appeal 1 alleges that there was a miscarriage of justice when the trial judge directed the jury that the prosecution did not have to prove knowledge and that a mere belief would suffice. However, the fault element can be established by proving intention, which under s 5.2(2) may be a belief that the circumstance exists. The trial judge's direction as to intention was consistent with this provision of the Code.

9 Counsel for the appellant accepted that there was no need for the jury to be unanimous in their path of reasoning in finding this fault element to be established (appeal ts 5). Counsel for the appellant also indicated that no complaint was made about liability being left to the jury on the basis of intention. Rather, counsel for the appellant submitted that the three different pathways to finding the fault element to be established (intention, knowledge and recklessness) needed to be dealt with distinctly. He submitted that the trial judge's direction did not instruct the jury as to the necessary separation between the pathways of knowledge and intention. However, counsel was not able to clearly articulate the difference between the mental state of knowing that the welding unit contained methamphetamine and believing that the welding unit contained methamphetamine in circumstances where the welding unit did actually contain methamphetamine.

10 The appellant's submissions invite the court to take a very legalistic approach to the direction of juries which is inconsistent with long-standing authority. A trial judge is not required to give a law lecture to a jury, and it will frequently be unhelpful to do so. The duty of a trial judge is to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues.1 The example commonly used to illustrate this principle involves a larceny trial at which the sole issue is proof of the taking away of the thing stolen. In such a case:2

probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny.

11 In the present case, the trial judge discharged this duty in terms which the jury would readily understand. He described the three findings which would satisfy the relevant fault element, being knowledge, belief and recklessness. Nothing more was required.

Appeal against conviction: ground 2

12 Ground of appeal 2 alleges that there was a miscarriage of justice when the trial judge failed to direct the jury that the fault element of recklessness, intention or knowledge must be present at the time of the conduct that constituted importation. There is no merit in this ground. While the trial judge did not expressly state that the relevant state of mind must exist at the time of importation, it was plain from his direction, considered as a whole in the context of the prosecution and defence cases presented at trial, that the issue was what the appellant knew or believed at the time of importation. There was no other time at which the appellant's state of mind could sensibly have been relevant. There was no reasonable possibility that the jury would have failed to understand that the fault element of recklessness must be possessed at the time the appellant brought the welding unit into Australia.

Appeal against sentence

13 The appellant also appeals against his sentence of 7 years' imprisonment, with a non-parole period of 4 years 7 months, on the ground that it was manifestly excessive. The principles governing appeals on that ground, and sentencing for Commonwealth offences, are well established.3 Those principles need not be repeated here.

14 The maximum penalty for an offence against s 307.2(1) of the Criminal Code is 25 years' imprisonment and a fine of $850,000. That offence concerns the import of a marketable quantity of a border controlled drug, which for methamphetamine is between 2 g and 750 g.4 The maximum penalty for the import of a commercial quantity (in excess of 750 g) is life imprisonment and a fine of $1,275,000.

15 The appellant's case represents a moderately serious example of an offence against s 307.2(1), given the weight and purity involved and the trial judge's findings that the appellant knew that the methamphetamine was concealed in the welding unit and committed the offence for purely commercial purposes. The sentencing judge properly took account of the impact which the appellant's medical issues would have on the service of his sentence. While the appellant was otherwise of good character, the seriousness of the offence and considerations of deterrence demanded a significant custodial sentence.

16 The sentence imposed in this case is broadly consistent with the range of sentences imposed in the authorities to which the parties referred.5

17 In all the circumstances, we are far from satisfied that the sentence imposed was unreasonable or plainly unjust. Inferred error has not arguably been established.

Orders

18 For these reasons we would refuse to grant leave to appeal on proposed ground 2 of the conviction appeal and dismiss that appeal. We would also refuse leave to appeal on the proposed ground in the sentence appeal and dismiss that appeal.

______________________________________

1 See for example, Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 [31]; Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135 [28].
2Alford v Magee (1952) 85 CLR 437, 466; Huynh [31].
3 See, for example, Kenworthy v The Queen [2016] WASCA 207 [156] - [163].
4 Schedule 4 of the Criminal Code Regulations 2002 (Cth), read with reg 5D of the Regulations and s 301.4 of the Criminal Code.
5The appellant referred to Lau v The Queen [2011] VSCA 324; R v UE [2016] QCA 58 and Nell v The Queen [2014] WASCA 193. The respondent referred to a number of authorities, including Ng v The Queen [2012] WASCA 180 [37] - [38] and So v The Queen [2014] WASCA 169 [31] - [34].