Dagher v The Queen
[2011] VSCA 119
•10 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0607
MAYER DAGHER
Applicant
v
THE QUEEN
Respondent
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JUDGES:
WEINBERG, MANDIE and BONGIORNO JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
18 March 2011
DATE OF JUDGMENT:
10 May 2011
MEDIUM NEUTRAL CITATION:
[2011] VSCA 119
JUDGMENT APPEALED FROM:
R v Dagher and Haddad (Unreported, County Court of Victoria, Judge McInerney, 20 April 2009)
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of trafficking in large commercial quantity of drug of dependence – Trial judge directed jury, at request of applicant, as to joint criminal enterprise – No apparent reason as to why concept of joint criminal enterprise introduced into trial – Whether jury misdirected as to requirement of ‘reasonable evidence’, apart from acts or words, of common purpose - Tripodi v The Queen (1961) 104 CLR 1 and Ahern v The Queen (1988) 165 CLR 87 – Trial judge’s comment to jury regarding defence failure to comply with rule in Browne v Dunn – Whether failure to give appropriate ‘balancing direction’ – Accomplice evidence – Whether warning given as to dangers of acting upon such evidence impermissibly diluted – Leave to appeal against conviction refused.
CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to term of nine years’ imprisonment on count of trafficking in large commercial quantity – Total effective sentence nine years and nine months – Minimum term of six years – Sentences not manifestly excessive – No error in characterising level of applicant’s culpability – Leave to appeal against sentence refused.
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APPEARANCES: Counsel Solicitors For the Applicant Mr C B Boyce Valos Black & Associates For the Respondent Mr B Sonnett Mr C Hyland, Solicitor for Public Prosecutions WEINBERG JA:
1 I agree with Mandie JA.
MANDIE JA:
2 This is an application for leave to appeal against conviction, or if the convictions are sustained, against sentence. There were two presentments and the applicant pleaded guilty to the two counts in the first presentment and he pleaded guilty to counts 3 to 7 on the second presentment but not guilty to count 1 which was a charge of trafficking in a large commercial quantity of ecstasy. On 8 April 2009 a County Court jury returned a verdict of guilty on count 1 and, after a plea hearing, the applicant was sentenced on 20 April 2009. The convictions and the sentences thereon were as follows:
Presentment U02047681
| Count | Description | Sentence | Cumulation |
| 1 | Being a prohibited person in possession of ammunition | 3 months | Concurrent |
| 2 | Handling stolen goods | 6 months | To be served concurrently with the sentence imposed on presentment C0605332.2 |
Presentment C0605332.2
| Count | Description | Sentence | Cumulation |
| 1 | Traffick in a large commercial quantity of a drug of dependence | 9 years | Base sentence |
| 3 | Possession of a drug of dependence | 3 months | Concurrent |
| 4 | Possession of a drug of dependence | 3 months | Concurrent |
| 5 | Possession of a drug of dependence | $340.26 fine | |
| 6 | Assault police | 6 months | Concurrent |
| 7 | Reckless conduct endangering serious injury | 18 months | 9 months cumulative |
3 The total effective sentence imposed was thus 9 years and 9 months’ imprisonment and a non-parole period of 6 years was fixed.
4 The proposed grounds of appeal against conviction on count 1 above (the other grounds having been abandoned) were as follows:
1.The verdict of guilty is unreasonable or cannot be supported having regard to the evidence.
3.The learned trial judge erred by directing upon joint criminal enterprise and common design as between the applicant and the witness Haddad.
5.The learned trial judge erred by commenting to the jury that it had not been put to Haddad that he took plastic bags from the applicant’s apartment and placed them in the safe in the car and [commenting] that there was no evidence that any of those items were in the said apartment.
6.The learned trial judge erred by failing properly to warn the jury as to the evidence of Haddad, and, in particular erred by making the warning that it was ‘dangerous’ to convict on his evidence contingent upon the existence of supporting evidence.
7.The verdict is unsafe and unsatisfactory by virtue of an aggregate of errors.
Circumstances of offending and evidence at trial
5 On 25 August 2006 police attended a unit in Brunswick in possession of a search warrant. The occupiers of the unit were the applicant and a co-accused, one Ms Z Haddad. When police attended the unit, Ms Haddad was present at the unit.
6 During the search, police found the following:
·177 ecstasy tablets;
·2 plastic bags containing white powder (amphetamine);
·1 plastic bag containing white powder (amphetamine);
·1 plastic bag containing brown powder (amphetamine);
·1 plastic bag containing white crystals (methyl amphetamine);
·2 plastic bags containing green vegetable matter (cannabis L);
·In the master bedroom, an ‘AJAX’ bottle containing a large number of plastic ‘deal bags’ and drugs; and
·A modified Pepsi can with a jar concealed inside it.
7 The police also found, during their search, a set of keys which were concealed in a stool in the study of the unit, and, in a bedroom door stopper, they found a further two keys.
8 After the search of the unit, police arrested one Mr M Haddad after he was seen trying to enter a red Holden VP parked in the vicinity of the unit. The police then searched this car. In the boot of the vehicle, they found a cream coloured steel safe. The police ascertained that the keys found in the stool were keys to the vehicle and that the keys found in the door stopper were keys to the safe.
9 In the safe, the police found nine plastic bags of tablets and three plastic bags of powder, all subsequently found to amount to 4.7741 kg of MDMA (ecstasy). The ecstasy tablets found inside the unit were similar in appearance and purity to the ecstasy tablets found in the safe.
10 A DNA analysis of the items seized during the search was carried out. DNA ‘matching’ the applicant’s DNA was found on one of the plastic bags from inside the safe and also on the inside and outside of the AJAX bottle.
11 During the evening of the search, police observed the applicant driving a Holden Commodore sedan nearby to the unit. They attempted to follow this car but lost sight of it. Some time later, they observed the applicant entering the same car. The applicant then drove towards the police who fired two shots at the rear tyre of the vehicle but were unable to stop it. A long chase followed through Melbourne’s inner northern suburbs and the applicant was eventually apprehended in Carlton.
12 Mr M Haddad gave evidence for the prosecution. He said that he was aged 22 years and was the brother of Ms Z Haddad who was in a relationship with and living together with the applicant. Mr Haddad said that he owned the red Holden and regularly drove it.
13 Mr Haddad testified that two or three days prior to the police search, the applicant had telephoned him and asked him to go to an address in Richmond to pick up a safe[1] containing drugs and then to drive back to the applicant’s unit. Mr Haddad said that the applicant told him that there were 9,000 tablets and some powder in the safe. Mr Haddad said that he received various telephoned directions from the applicant on his way to collect the safe. Mr Haddad said that he collected the safe from a person, known to him, at the address in Richmond. It was in a laundry container and he put it in the boot of his car.
[1]Mr Haddad testified that, about five months earlier, he and the applicant had gone to a shop together and purchased that safe.
14 Mr Haddad went on to testify that, once he had collected the safe, he had met the applicant, in accordance with further telephoned directions from the applicant, at a car wash. The applicant then told him to park the car outside his (the applicant’s) unit and leave the safe in it. He then drove back to the applicant’s address in Brunswick and parked his car two doors down from the applicant’s unit. He locked the car and left it there. He then stayed at the applicant’s unit for a couple of days but had returned to his own place the night before the search of the applicant’s unit. Mr Haddad said that the applicant had a set of keys to his (Mr Haddad’s) car.
15 Mr Haddad further testified that, at about 8:30 am on the morning of the search, the applicant had contacted him by telephone and asked him to come and pick up his car and drive it away because the police were ‘around’ the applicant’s unit. Mr Haddad got a lift to the unit and met the applicant for about five minutes. He then attempted to collect his car but the police saw him and told him to stop at which point he ran off. He was arrested shortly after that. Mr Haddad said that the police then used his keys to open the boot and found the safe.
16 Under cross-examination, Mr Haddad testified that he would often stay at the applicant’s unit for days at a time and was able to help himself to drugs from the Ajax bottle without needing to seek permission from the applicant or Ms Haddad. He said that he had open access to all rooms in the unit although he was not allowed to go into the bedroom (but it was not locked). He said that he did not know that keys to the safe were hidden inside the apartment. Mr Haddad was taken to his statement to police in which he had said that keys to the safe were hidden inside the door stopper. He explained that he only knew this because the police, his sister and his mother had later told him about it. He said that he had told lies in his first statement to police and had not mentioned the applicant because he was frightened of the applicant. He admitted that he had prior convictions for violence and dishonesty and that in 2006 he was a user of cannabis, ice and amphetamines.
17 In addition to Mr Haddad, the prosecution called a number of police witnesses who gave evidence as to the circumstances of the search and related matters and the subsequent DNA analysis. The defence called no evidence.
Ground 3
18 By way of introduction, counsel for the applicant said that the evidence of Mr Haddad was necessary to the applicant’s conviction and was the only direct evidence against him. However counsel accepted, when it was put to him from the bench, that there was other direct evidence of some strength, namely, the keys that were found in the unit, the DNA evidence and the applicant’s flight from the scene. Counsel said that Mr Haddad was shown to be a liar (emphasising the inconsistency between his police statement and his evidence at trial in relation to the safe keys), and, that he had a motive to give false evidence implicating the applicant.
19 Counsel for the applicant said that he relied on grounds 3, 5 and 6 both singly, alternatively taken together.[2]
[2]See R v Kotzmann [1999] 2 VR 123.
20 Dealing specifically with ground 3, the applicant submitted that the judge had directed the jury, that one potential basis of culpability was that the applicant had trafficked drugs with Mr Haddad as part of a ‘joint enterprise’ in the sense that allowed for the application of the co-conspirator rule.[3] The applicant submitted that the concept of ‘joint enterprise’ was not an appropriate basis of complicity that could apply in the present case because there was no joint enterprise such as amounted to a preconcert agreement. It was submitted that before the co-conspirator rule could apply, there had to be reasonable independent evidence of agreement apart from the words and acts of the co-conspirator. The applicant submitted that the judge did not appear to have considered whether there was reasonable independent evidence of agreement absent the words and acts of the co-conspirator (i.e. Mr Haddad). The applicant submitted there was no evidence of a combination or agreement apart from the evidence of Mr Haddad and, in any event, it did not appear that there was any joint enterprise in existence between Mr Haddad and the applicant that could give rise to the concept of agency sufficient for the co-conspirator rule to apply. It was submitted that the judge had presented the jury with an evidential pathway to conviction that was not properly open on the evidence.
[3]See Ahern v The Queen (1988) 165 CLR 87 and Tripodi v The Queen (1961) 104 CLR 1.
21 The respondent said that the applicant’s trial counsel was the one who had put to the judge that there ought to be a direction in relation to joint enterprise. This led to the following discussion:
Judge: Why would I do a direction as to joint enterprise?
Counsel:Well, that the jury would need to be satisfied that there was an arrangement or an agreement made between the two people.
Judge:Which two people?
Counsel:Between Haddad and Dagher.
Judge:Why would you have to be satisfied of that? … Haddad says he did what he was told to do. He goes and picks up the items which he allegedly knew to be drugs and has pleaded guilty.
Counsel:As part of a joint enterprise which is distinct, in my submission, from putting the case on the basis of possession for sale which specifically relates to the items found in the stationary car.
Judge:That’s how it’s been put.
(Then followed a discussion between the judge and defence counsel about possession for sale and the discussion then moved back to the question of the movement of the drugs)
Counsel:… [Dagher is] not a direct participant at that point … the jury has to be satisfied that there was an arrangement between Mr Haddad and Mr Dagher. And they’d be relying on the evidence that [Haddad] gave with respect to the phone contact that he had prior to attending at Richmond.
(The discussion continued and the prosecutor in substance indicated that the alternative joint enterprise approach was there but the primary way in which the Crown put its case was that of possession for sale)
22 In written submissions, the respondent submitted that, even if the applicant’s argument that there was no relevant ‘illegal combination’ was correct, there was no evidence wrongly admitted. Mr Haddad’s direct evidence of the applicant’s conduct was admissible and his evidence of his own conduct at the applicant’s behest was necessary to explain events and was not objected to by the applicant.
23 In oral submissions, the respondent went further. The respondent submitted that there was no reason for any direction to be given on joint enterprise and that had nothing to do with the case. It did not assist the Crown case and had only happened at the insistence of defence counsel. In any event there was reasonable evidence of an agreement at the outset between Mr Haddad and the applicant which permitted of evidence as to the subsequent conduct of Mr Haddad and his subsequent conversations with the applicant.
24 I would accept the respondent’s submissions. There was no reason for the prosecution to rely on the so-called co-conspirator rule. The evidence from Mr Haddad that he was instructed by the applicant to collect the safe containing drugs, put it in his car and park it outside the applicant’s unit and that he followed those instructions was all direct evidence admissible against the applicant and relevant to the charge of trafficking a large commercial quantity of a drug of dependence. It was relevant to the question of trafficking and it was relevant to the issue of the applicant’s knowledge that the safe was in the car and of what was in the safe. There appears to have been no good reason for defence counsel to have requested the direction but, in any event, he did and he took no exception to it.
25 The judge directed the jury that the count of trafficking was put in alternate ways. The first way was that the act of trafficking was constituted by the applicant possessing the ecstasy for sale, being the ecstasy that was found in the car and in the unit. The judge directed that the alternative way relied on was that the applicant trafficked by way of a joint enterprise with Mr Haddad by participation in the movement of the drug in the circumstances that had been described by Mr Haddad. In relation to this alternative way the judge told the jury that the Crown was relying on the joint activities of Mr Haddad and Mr Dagher and on the basis that there was an underlying agreement or conspiracy to which they were a party. The judge told the jury that they had to be satisfied beyond reasonable doubt that there was an agreement between Mr Haddad and the applicant to commit the crime and that if they were so satisfied they were entitled to consider that each of them was acting both on their own account and as an agent of the other.
26 In Tripodi v The Queen, the High Court said[4] that when the case for the prosecution was that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert had to be adduced before evidence of acts or words of one of the parties in furtherance of the common purposes which constituted or formed an element of the crime became admissible against the other or others (unless there was some other ground for admitting the evidence). In Ahern v The Queen,[5] the principle in Tripodi was applied and explained in some detail. The High Court said[6] that the trial judge should determine the sufficiency of the independent evidence of the combination and whether the proof of the combination sufficiently implicated an individual accused to allow the acts and declarations of others in his absence to be used against him. By ‘independent evidence’ in this context, the High Court meant admissible evidence of the combination or preconcert standing apart from any hearsay evidence of acts and words done or uttered in the absence of the accused and sought to be used against him if the combination or preconcert be established. It can at once be seen that these principles have little if any relevance to the present case. In any event, Mr Haddad’s evidence of the initial telephone conversation in which he received and agreed to perform the relevant instructions from the applicant was admissible and sufficient evidence of an agreement or preconcert. It was implicit, if not explicit, that the judge so found.
[4](1961) 104 CLR 1, 7 (Dixon CJ, Fullagar and Windeyer JJ).
[5](1988) 165 CLR 87.
[6]Ibid 92-104 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ).
27 For those reasons, I do not think that the judge erred in the light of those authorities but, even if he did, the direction was given at the request of the applicant’s counsel and there was no exception to that direction. I further consider that there was no likely prejudicial impact on the jury and that there was no resulting miscarriage of justice.
Ground 5
28 The applicant said that defence counsel had put an argument to the jury that it was reasonably possible that Mr Haddad had taken the plastic bags from the apartment, used them for drugs, and then put them in the safe and that that might explain why the applicant’s DNA was found on the plastic bags.
29 I interpolate here that the judge made two comments to the jury about this argument. He said that this was never put to Mr Haddad and he said that there was no evidence that the plastic bags were ever in the house – the only evidence was that they were found in the safe. His Honour went on to say that defence counsel was entitled to put that scenario and to ask the jury to look at the circumstances that there could have been transference of the DNA and, in that regard, also to consider the various other matters put against Mr Haddad’s evidence.
30 The applicant submitted that it was an error for the judge, in effect, to apply the rule in Browne v Dunn[7] against counsel in the manner that he did without balancing it with the sort of direction contemplated in cases such as R v Thompson.[8] The applicant further submitted that it was an error to tell the jury that there was no evidence that any of the plastic bags were in the house because there was at least a circumstantial basis for the argument. The applicant submitted that these two comments wrongfully deprived counsel’s argument of such legitimacy as it warranted.
[7](1893) 6 R 67.
[8](2008) 21 VR 135, [109]-[129].
31 The respondent submitted that the judge had expressly stated that he was making a comment and had in the usual way explained to the jury the status of comments as opposed to directions by a judge. The respondent submitted that the comments were mild, it was not suggested that any inference should be drawn against the applicant, there was no suggestion of recent invention and the judge had reminded the jury of the evidence relevant to the argument put by defence counsel and affirmed the appropriateness of defence counsel putting the scenario to the jury.
32 I would accept the respondent’s submissions and reject ground 5. The judge did not suggest that there was any unfairness or breach of the rule in Browne v Dunn involved. Both comments by the judge were open to be made by his Honour and were, indeed, correct.
Ground 6
33 It is convenient at the outset to set out what the judge said to the jury in relation to Mr Haddad’s evidence:
Where you have got and are considering an accomplice's evidence, Mr Foreman and members of the jury, I want to direct you that it is the experience of the law that the evidence of accomplices is frequently unreliable. Accomplices seek to justify their own conduct. In doing so, they often seek to shift the blame wholly or partly onto others. In the process, they construct untruthful stories which tend to exculpate the guilty and implicate the innocent.
Accordingly, there is a rule of law which applies to this case when you are talking about Mr Haddad's evidence. You should consider that it is dangerous to convict [the accused] in this instance upon the evidence of Mr Haddad if it is unsupported. It follows, therefore, that you should look for support of the evidence of Mr Haddad. Supporting evidence is evidence from a source independent of Mr Haddad which implicates [the accused] in the crime charged by tending to show both that the crime happened and that it was [the accused] who committed it.
Now the prosecution allege that there is indeed in this case, supporting evidence which you can take into account and that supporting evidence, it says, is the DNA, it is the keys to the car and the safe which are found in the house and the actions of [the accused] when he was approached by the police.
It is for you to consider that evidence and each item of that evidence and to determine whether you accept that evidence firstly. In other words, you have to accept all of that evidence. In this instance, you would have to accept the match and be satisfied beyond reasonable doubt. You would have to accept that insofar as the keys are concerned that it was [the accused] who hid the keys to the car and the safe in the manner where the police found it and you have to accept the evidence of the flight although you will not have much problem about that because the admission of [the accused] is before you as an exhibit as to what happened when the police approached him.
If you do not find any supporting evidence, you must regard the warning that I have given you, that is that it is dangerous to convict a person on the unsupported evidence of an accomplice. You may only do so if after subjecting the accomplice's evidence to close and careful scrutiny you are satisfied by it and satisfied to act upon it, notwithstanding its source and notwithstanding that it is unsupported. However, the prosecution say in this case that you should accept that it is, in fact, supported by that evidence.
Equally, when you are talking about Mr Haddad, it is necessary for you to take into account Mr Haddad's character.
(The judge went on to detail the evidence relating to Mr Haddad’s prior convictions in relation to drugs, violence and dishonesty)
Insofar as a person's bad character, I give you these directions. You are entitled to use the evidence when you are considering the reliability and the credit of Mr Haddad, that is to say, you may use it against Mr Haddad when considering what weight you should attach to his evidence. You may, if you choose, consider that what Mr Haddad said is less to be trusted because of his bad character and his bad character would be such as that you must, when you are considering the credit worthiness and the reliability of Mr Haddad, take those matters into account and my direction into account.
In addition, in regard to Mr Haddad, as particularly [defence counsel’s] address to you, it was put to you that he is a person who lies and it was put to you that he has a motive for lies …
(The judge went on in considerable detail to explain Mr Haddad’s motive to lie referring to his ‘deal with the authorities’ in order to get a lighter sentence and the reduced sentence that he had received and the consequences if he went back on his statement. The judge also referred to a number of aspects of prior inconsistent statements that he had made and concluded:)
Now in those instances all of those matters and, indeed, in regard to motive are matters that you must take into account when you are considering the reliability of Mr Haddad and you are considering his credibility as a witness.[9]
[9]Emphasis added.
34 The applicant submitted that it was axiomatic, when giving a jury a ‘dangerous witness’ warning, that the jury should not be told or given the impression that the warning was of no significance if the relevant witness’ evidence was corroborated or supported by other evidence or that, if that was the case, the accomplice’s evidence might then be treated like the evidence of any other witness. The applicant submitted that the judge’s directions had fallen foul of this principle when his Honour said to the jury that it was dangerous to convict the applicant on the evidence of Mr Haddad ‘if it is unsupported’ and when his Honour said to the jury that they must have regard to the warning that he had given them ‘if you do not find any supporting evidence’. The applicant submitted that the jury would have understood this to mean that if the evidence of Mr Haddad was supported by other evidence then the direction as to dangerousness would not apply.
35 The respondent submitted that the direction was sufficient because the judge had clearly explained the rationale for the rule and for the warning given. Therefore it would have been obvious to the jury that the danger would persist regardless of supporting evidence. The respondent submitted that, having regard to the terms of the warning, there was no real risk that the jury would have disregarded the warning. The respondent said that there was an all out attack by the defence on Mr Haddad and his evidence and that the judge had pointed out all of Mr Haddad’s flaws and all of the reasons for scrutinising his evidence with care. The respondent pointed out that no exception had been taken to the judge’s charge in this respect.
36 Both sides relied upon the authority of R v Parsons & Stocker[10] in which Buchanan JA said (Eames JA and Smith AJA agreeing):[11]
[10](2004) 145 A Crim R 519.
[11]Ibid [33]-[36].
The next submission of the applicants concerning the evidence of Turner and Strunk was that the trial judge’s charge may have led the jury to think that if they did find corroboration of their evidence, the warning to treat that evidence with special care ceased to have effect and their evidence was to be assessed like that of any other witness.
If a trial judge were to suggest to a jury that, once corroboration is found, the jury might treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness, the jury would be misdirected. An accomplice remains a person with a potential motive to lie. He is not an independent witness free of interest in the outcome of the case.[12]
In the present case, the trial judge directed the jury that, if they did not find the evidence of Turner and Strunk was corroborated, they were to have regard to the warning that it was dangerous to convict the accused upon the uncorroborated evidence of the witnesses. His Honour did not tell the jury that if they found corroboration, there remained dangers in acting upon the evidence of the accomplices.
In my opinion, the last step was not one which was necessary to prevent the jury thinking that, if they found corroboration, the accomplices were to be treated like any other witness. The trial judge told the jury that the rationale for the warning was that the experience of the law was that the evidence of accomplices was frequently unreliable in that they may well be motivated to justify their own conduct and implicate others by untruthful evidence. I do not consider that the jury would have thought corroboration removed the accomplice’s motive to lie. The rationale for doubting the evidence of accomplices advanced by the trial judge remained, even if the evidence of the accomplices was found to have been corroborated. In the cases relied upon by counsel, juries were told that corroboration removed the dangers in the evidence of accomplices. For example, in R v Radford[13] the jury was told:
‘Were you to find that the evidence of the accomplice is properly corroborated by other independent evidence, no particular problem arises. You would consider the accomplice's evidence in the same way and subject it to the same tests as I mentioned to you yesterday that you should subject all the evidence to.’
That is not this case.
[12]See R v Radford (Unreported, Court of Appeal, Vic, 28 February 1992); R v Radford (1993) 66 A Crim R 210; R v Power (1996) 87 A Crim R 407, 411-2 (Doyle, CJ); R v Baker (2000) 78 SASR 103; (2000) 118 A Crim R 150.
[13]R v Radford (1993) 66 A Crim R 210, 237-8 (Phillips CJ and Eames J).
37 In the present case, if a few passages are extracted from the judge’s charge and read literally and in isolation, they would be capable of conveying to a jury that the dangers of accepting the evidence of an accomplice were removed if there was other supporting evidence. In that sense, the directions are like the ones given in R v Parsons & Stocker,[14] but, as in that case, the judge fully explained the rationale for the warning. Indeed, the judge went to considerable lengths to explain all of the reasons why Mr Haddad might have a motive to lie and why his evidence might be unreliable. In my opinion, the length and the explicitness of his Honour’s explanation for the direction and warning were such that the jury would have been left in no doubt that the warning about Mr Haddad’s evidence remained applicable whether or not there was supporting evidence.[15]
[14](2004) 145 A Crim R 519.
[15]A similar analysis, by Eames JA, is to be found in R v DCC (2004) 11 VR 129, [65]-[67] in the case of a Longman direction.
38 In those circumstances, I am satisfied that there was no miscarriage of justice and I note again that no exception was taken. For those reasons, I would reject ground 6.
Ground 1
39 The applicant relied on his written outline of argument without expanding upon it. The written outline on this ground read as follows:
In order to convict the applicant of the instant offence it was necessary to accept the evidence of the witness Haddad beyond reasonable doubt. In all the circumstances of this case, including the matters put to Haddad in cross-examination by defence counsel it was not open to be satisfied of the testimony of Haddad beyond reasonable doubt: Haddad, in chief, T at 147 & ff, cross-examination, T at 162 & ff. See M v R (1994) 181 CLR 487.
40 I am satisfied that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. It was open to the jury to accept Mr Haddad’s evidence particularly in the light of the substantial supporting evidence the prime aspects of which were the keys that were found in the unit, the DNA evidence and the applicant’s flight from the scene. I note also that the jury had the advantage of having seen and heard Mr Haddad give evidence. The evidence as a whole does not contain such discrepancies or inadequacies or lack probative force in such a way as to lead me to conclude that there is any real possibility that an innocent person has been convicted. I would reject ground 1, and ground 7 also fails.
Sentence
41 The applicant advanced two grounds (a third being abandoned). The first ground was that the individual sentences, the total effective sentence and non-parole period were manifestly excessive and the second ground was that the learned sentencing judge erred in his assessment of the role played by the applicant in the offending. The applicant’s counsel adopted the written outline of argument without orally expanding thereon.
42 The applicant submitted that the sentence of 9 years on count 1 and the total effective sentence of 9 years and 9 months’ imprisonment was manifestly excessive in light of the following matters:
·the applicant’s age – 31;
·the plea of guilty to all counts bar count 1;
·delay caused by the change of plea of Haddad and the delay caused to the committal;
·the limited time span of the criminality;
·the lack of evidence of sales and ‘high life’;
·the applicant’s work history;
·the effect upon the applicant of a prison assault when the applicant was young;
·the applicant’s status as a drug abuser;
·the evidence of Mr Lamberti;
·the admissions made by the applicant that assisted in the running of the trial;
·the applicant’s prospects of rehabilitation.
43 It was not contended that the learned sentencing judge had overlooked or misunderstood any of these matters.
44 In answer, the respondent submitted that the ground of manifest excessiveness involved the contention that the sentences were of such magnitude that no reasonable judge could have imposed such sentences in all the circumstances.[16] The respondent submitted that such contention belied the significance of the criminality involved. The offences, most pertinently the offence of trafficking a large commercial quantity of ecstasy, were committed in breach of a suspended sentence imposed just over two months earlier for, inter alia, offences of trafficking ecstasy and amphetamine and two offences of possession of drugs, and there were other relevant prior convictions. The respondent argued that whilst the applicant had facilitated the trial by making formal admissions, there was no evidence of remorse and no discount for a plea on count 1. The reckless conduct (count 7) was preceded by an abysmal driving record and was motivated by a desire to escape justice for the applicant’s trafficking. The respondent submitted that nothing in the circumstances, especially of counts 1 and 7, called for any particular leniency – on the contrary, the nature and gravity of the offending, in light of the applicant’s history and motivation, required a particular emphasis on deterrence, both general and specific. The respondent added that there was some evidence of sales derived from Mr Haddad’s statement that had been relied upon by the applicant’s counsel on the plea.
[16]See R v Abbott (2007) 170 A Crim R 306, [14] (Maxwell P).
45 The respondent emphasised that the applicant was sentenced for trafficking nearly five times the large commercial quantity of MDMA (ecstasy) and that quantity informed the applicable sentencing range.[17] The respondent referred to a number of sentences for trafficking various multiples of a large commercial quantity in each of which the accused had had the benefit of a discount for a plea of guilty. I interpolate here that the examples of sentences referred to by the respondent showed, to my mind, that the sentence in the present case was clearly within the allowable range.
[17]See R v Pidoto and O’Dea (2006) 14 VR 269; Chandler v R; Paksoy v R [2010] VSCA 338, [23] (Maxwell P and Weinberg JA).
46 I would accept the respondent’s submissions and reject the applicant’s first ground. In my opinion, far from being manifestly excessive, the sentence on count 1, the total effective sentence and the non-parole period were all quite appropriate.
47 In relation to the applicant’s second ground, it was submitted that in all the circumstances it was not open to the learned judge to reject defence counsel’s submission as to the level of the culpability demonstrated by the applicant and then discriminate between the applicant and Mr Haddad to the extent to which such discrimination took place. This ground was a reference to what the judge said in his sentencing reasons at [15]:
I reject [counsel’s] submission that the level of culpability at which I should assess you should be at the lower end. I classify your culpability in the middle of the scale of heinousness, albeit that I accept [counsel’s] submissions that yours is obviously different to those that are higher up in the chain, those unfortunately that this Court rarely sees and, of course, yours is different to that of Mr Haddad who was lower down in the chain as I have already sentenced Mr Haddad on the basis that he was essentially a ‘gofer’ for you.
48 The respondent submitted that, in sentencing the applicant, it was open to the judge to act upon Mr Haddad’s evidence and that the applicant’s own counsel had relied upon such evidence on the plea, wherein Mr Haddad described himself as having, at the applicant’s behest, looked after the applicant’s house whilst the applicant sold drugs. The respondent pointed to numerous other features that distinguished the position of Mr Haddad from that of the applicant and which explained why Mr Haddad had received a sentence of 5 years’ imprisonment on equivalent counts.
49 I would again accept the respondent’s submissions. I see no error or errors of the kind contended for in the approach taken by the sentencing judge.
Conclusion
50 For the foregoing reasons I would refuse leave to appeal against conviction and sentence.
BONGIORNO JA:
51 I agree with Mandie JA.
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