Goder v The Queen - [2000] WASCA 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: GODER -v- THE QUEEN [2000] WASCA 315

CORAM: KENNEDY J
PIDGEON J
WALLWORK J

HEARD: 2 MAY 2000

DELIVERED : 30 OCTOBER 2000

FILE NO/S: CCA 253 of 1999

BETWEEN: MARIE FRANCE GODER
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Knowingly concerned in importation of a trafficable quantity of heroin - Adequacy of trial Judge's direction - Direction sufficiently addressed to facts of the case

Criminal law and procedure - Sentencing - Two counts of conspiracy to import heroin and one count of being knowingly concerned in the importation of a trafficable quantity of heroin - Total value $100,000 to $200,000 - Sentences of 6, 7 and 9 years' imprisonment respectively - Sentences of 9 years and 7 years to be served cumulatively and sentence of 6 years to be served concurrently - Sentences not set aside as excessive

Legislation:

Nil

Result:

Appeal against conviction dismissed
Application for leave to appeal against sentences dismissed

Representation:

Counsel:

Appellant: Mr S W O'Sullivan
Respondent: Mr P C Govier

Solicitors:

Appellant: David Manera
Respondent: Commonwealth Director of Public Prosecutions

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

Cheung v The Queen (1997) 97 A Crim R 283

Case(s) also cited:

Mraz v The Queen (1955) 93 CLR 493
R v Kelly (1975) 12 SASR 389
R v Nifadopoulos (1998) 36 A Crim R 137
R v Tannous (1987) 32 A Crim R 301
Veen v The Queen (No 2) (1988) 164 CLR 465

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Pidgeon J. I am in agreement with those reasons and with the orders which his Honour proposes.
PIDGEON J: On 18 October 1999 the appellant appeared in the District Court before his Honour Judge Blaxell on an indictment alleging three counts. The first count was that on a date between 1 and 27 August 1997 at Perth he conspired with Justine Michaela Hall to import into Australia a trafficable quantity of heroin. To this count he pleaded guilty. The second count alleged that between 1 August and 8 October 1997 at Perth, he conspired with Lisa Jane Miles and Justine Michaela Hall to import into Australia a trafficable quantity of heroin. To this count he also pleaded guilty.
There was a third count on the indictment alleging that on 10 November 1997 he was knowingly concerned in an importation into Australia of a trafficable quantity of heroin, which heroin had been imported by Barbara Frances Annetts. He had pleaded not guilty to this count and it was decided to postpone the question of sentencing on the first two counts to which he had pleaded guilty until after the trial of the third count. It was intended for the trial to proceed immediately but there was a short delay as Ms Annetts who was to be tried jointly with him could not then be found. The trial commenced a short time later, in fact almost immediately, but with a different indictment. This new indictment alleged the same offence against the appellant with the exception of a different date. It alleged that the offence occurred between 1 October 1997 and 11 November 1997 instead of 10 November 1997. This was the second count in the indictment and it related solely to the appellant and was in substitution of the third count in the earlier indictment. The first count in the new indictment alleged that Ms Annetts imported the heroin. They each pleaded not guilty but were each convicted by the jury. The appellant is appealing in respect of his conviction and in respect of the sentence imposed upon him for each of the offences.

Facts relating to the offences

At the trial the Crown led evidence relating to the two counts to which the appellant had pleaded guilty as this was seen as probative of the third count and this course is not in question. The facts before the jury were that some three years prior to the alleged offences, Ms Hall, the person referred to in the first count, was living in Jakarta in Kebon Kacand and was an English language teacher. She would often visit the Café Borneo in an area in Jakarta known as Jalan Juxa. She there met

Ms Annetts, who was also an English language teacher. She too had an apartment in Kebon Kacand. For a month or two they shared an apartment and there was also living in that apartment Marcel Octavida. This arrangement was temporary and Ms Hall later rented her own apartment. Ms Annetts returned to Australia in 1995, but kept in touch with Ms Hall. In 1996 Ms Hall decided to come to live in Western Australia and it was arranged that she would stay with Ms Annetts and her daughter in Perth. Ms Hall, while she was in Jakarta, became a user of heroin and Mr Octavida supplied her with heroin which he obtained from a person described as Frankie. In Western Australia she worked in a massage parlour and there met the appellant, who supplied her in this State. Ms Hall told the jury that the heroin was far more expensive in Australia than in Jakarta. It was the Crown case that the appellant saw this as an opportunity to increase his profit by buying the heroin from Indonesia and selling it in Australia. Ms Hall told the jury that the appellant put a proposal to her that she go to Jakarta, purchase heroin for him through the agency of Mr Octavida and bring it back into Australia. She said she was to be paid $3,000 to $4,000. She travelled to Jakarta for this purpose in August 1997. The appellant purchased her ticket and drove her to the airport. He gave her at that stage $2,500 to purchase 25 grams. Ms Hall, on arrival, contacted Mr Octavida and told him the amount of heroin required. He contacted Frankie, obtained it and gave it to Ms Hall She wrapped it with clingwrap, sealed it with sellotape and, prior to passing through customs, inserted the package into her vagina. She returned to Australia on 26 August with the consignment concealed in this manner and passed through the customs control undetected. The appellant met her at the airport and took her to a motel where she removed the heroin and gave it to the appellant. The appellant returned to the motel the following day and gave her a further $3,000 and 5 grams of heroin as a payment for her services. The Crown claimed that this amount of heroin had a value of between $17,000 to $20,000. The conspiracy relating to this importation was the subject of the first count.

Ms Hall said that the appellant asked her to undertake a further importation but she refused. She said the reason was that she did not feel safe as she was not satisfied with the way he acted at the airport on the previous occasion. She said that when she told the appellant that she would not do it the appellant told her that he would find somebody else to actually make the journey but it was agreed that she would help with the arrangements. The appellant, a little later, in September 1997, approached Ms Lisa Jane Miles. He asked her to travel to Jakarta to bring back heroin for him. She agreed and the appellant introduced her to Ms Hall, who explained to Ms Miles where she was to go on her arrival in Jakarta and how she was to obtain the heroin. Ms Hall also suggested that Ms Miles hide the heroin in her vagina when she went through customs. Ms Hall then contacted Mr Octavida in Jakarta and told him that Ms Miles was coming over to purchase the heroin. She told him the amount that was ordered and the way payment was to be made.
Ms Miles, in the meantime, obtained, on an urgent basis, a passport to travel to Jakarta. There was then a meeting between Ms Miles, the appellant and some others. They all went to an airline booking office. The appellant gave Ms Miles money to purchase the airline ticket and a ticket was purchased for an outbound flight on 3 October 1997. The appellant gave Ms Hall $6,000 which Ms Hall sent by International Money Order to Mr Octavida in Jakarta as payment for the heroin. Ms Miles, on the evening prior to departure, stayed at the appellant's address. Next morning the appellant drove Ms Miles to the airport. Ms Miles alighted at Bali where she remained for two days and then flew to Jakarta and was met by Mr Octavida. They then returned to a hostel in Jakarta where Ms Miles was to stay. The following day Mr Octavida handed Ms Miles two condoms full of heroin. Ms Miles telephoned the appellant and advised him that she had the heroin. On 7 October 1997 she flew to Perth with the heroin hidden in her vagina. She was met by the appellant who drove her to a flat in Herdsman Parade, Wembley. At the flat Ms Miles entered the WC and removed the two condoms. She placed them in a bag and handed them to the appellant. The appellant weighed the heroin and gave Ms Miles $3,000 and a gram of the heroin in payment. The amount of heroin involved was 55 grams, the purity of which was not known. The Crown claimed the street value of this importation was between $37,000 and $44,000. The conspiracy relating to this importation was the subject of the second count.
The facts to support the counts the subject of the trial, were that later in October 1997 the appellant had a discussion with Ms Annetts at her flat. The Crown case was that he suggested to Ms Annetts that if she took a trip to Indonesia and brought back heroin for him he would pay her. Ms Annetts was a heroin user and short of money. She was also keen to buy another car as her vehicle had broken down. Ms Hall was present at this discussion and said in her evidence-in-chief that the appellant proposed to Ms Annetts that Ms Annetts travel to Jakarta to collect the heroin for him and bring it back "much the same way as it had been done before". She said that Ms Annetts was initially unsure, but two or three days later Ms Hall said that Ms Annetts told her that she had made the decision to go through with the trip. Ms Hall said in her evidence-in-chief the travel arrangements were made between Ms Annetts and the appellant. Ms Hall said that she went with the appellant and Ms Annetts to the travel agency to buy the tickets. She said that Ms Annetts bought the airline ticket with money she assumed came from the appellant. Ms Hall's evidence indicated that the plan was that Ms Annetts was to fly to Bali and take an internal flight to Jakarta as that was less suspicious. The night before Ms Annetts was due to leave Perth she stayed with Ms Hall at Ms Hall's flat. On the morning of 4 November Ms Hall drove Ms Annetts to the airport where Ms Annetts caught the plane. Ms Hall drove back to her apartment. The appellant then rang Ms Hall to ascertain that Ms Annetts had caught the plane. Ms Hall phoned Mr Octavida in Jakarta to tell him that Ms Annetts was arriving. Ms Hall's evidence indicated that she made the arrangement to pay Mr Octavida the purchase price for 50gm but she "overcharged" the appellant by asking him for a sum of money that was sufficient to purchase 70gm. She intended to keep the extra 20gm. The appellant was not aware of this.
When Ms Annetts returned to Perth, Ms Hall met her at the airport. They drove back to Ms Hall's flat and in the course of the journey they discussed the success of the trip. On arrival at the flat Ms Annetts went into the bathroom and came out again with two packets of heroin wrapped in glad wrap. They opened one of the packets and used, by injection, some of the heroin. Ms Annetts stayed that night and left the following morning.
Ms Hall said that each of the packages handed to her by Ms Annetts contained 35 grams of heroin making a total of 70gm. She said that 50 grams of this belonged to the appellant and, in Ms Annetts absence, she weighed with her electric scales 20 grams for herself. She said the remaining 50 grams belonged to the appellant, this being the amount he had paid for. It would appear the heroin they consumed was accounted for in the 20gm. She said that Ms Annetts was to be paid $4,000 and was to receive a further 5 grams of heroin. She placed the 20 grams she separated for herself under the carpet. She said that she was in constant touch with the appellant. She felt uncomfortable in having in her apartment the amount of heroin there was and she asked the appellant when he was to pick it up. She said the appellant replied, "This evening." Her evidence indicated he then kept putting her off and before he came, the police executed a search warrant where they found the package containing 50 grams which she had separated for the appellant, but they did not find the 20 grams which she had hidden under the carpet. The reason why the police came was because the appellant had, in the meantime, reported to the Western Australian Police that Ms Hall had 50gm of heroin in her possession. He did not tell them that he had been the instigator of the importation or of his own involvement. The crown prosecutor said that he did this "for reasons best known to himself". He was not then aware that she had obtained a further 20gm.
Ms Hall was arrested and charged with possessing the 50gm. When she was interviewed by the police, she was not aware that the appellant had reported the matter and she told them that she had obtained the heroin through the post. The Crown case was that the 70 grams of heroin imported had a street value of between $47,000 and $56,000.
Ms Annetts became aware of the arrest and the seizure of the 50gm. She told the appellant that there was the other 20gm in the flat and together they endeavoured to obtain it. They visited Ms Hall in prison and Ms Annetts, in the appellant's presence, asked for the keys. Ms Hall refused to give them to her. Ms Annetts contacted a firm of locksmiths and pretended that Ms Hall's flat was her own. She told them that she had locked herself out of it and arranged for them to open it. The Crown case was that she obtained the remaining 20 grams and it became known on 19 November that Ms Annetts had obtained $1,400 as she used this towards the purchase of a car.
Some time later Ms Hall was approached in prison by the Australian Federal Police. She originally maintained her false story, but later, on the Crown case, told the truth. She did this without knowing that the appellant had reported her.
On 10 June 1998 the police executed a search warrant at the appellant's house and they found a number of documents, two of which the Crown submitted were of significance to the trial. The first was an envelope addressed to Ms Annetts which, in her writing, was noted the names "Marcel" and "Borneo Café". The second piece of writing was found in the appellant's car. It was in Ms Annetts' writing and was instructions on how to get to Jalan Juxa and to book into the Hotel Borneo. The instructions said to ask for Marcel and "when you see him get to the nearest phone and ring Bernardo". Bernardo was the name by which the appellant was known. This writing had Ms Annetts' fingerprints on it.
The appellant elected not to give evidence but the co‑defendant, Ms Annetts, gave evidence in her defence. She said around October, after the second importation had taken place, she was approached by the appellant and Ms Hall. They came to her flat and asked her if she would go to Indonesia to obtain heroin. She said that she refused to have anything to do with such an expedition if the appellant was in any way involved, as she found him intimidating and did not feel comfortable with him. She said they continually asked her to the point of "pestering". They indicated she would receive sufficient money to obtain a new car. She said they kept talking about it. They said that they had done it before and it was all right.
Ms Annetts said, in addition to this, she was having discussions with Ms Hall in respect of obtaining wooden artefacts from Bali for the purpose of operating a legitimate business in Perth selling them. She said it was agreed that she would fly to Bali for the purpose of obtaining artefacts, but it had also been agreed with Ms Hall that from Bali Ms Annetts would fly to Jakarta to collect drugs from Octavida. She said the appellant had nothing to do with this arrangement. She said she told Ms Hall that she would do it, but she would not do it if the appellant was to be involved. She said that Ms Hall replied that Ms Hall could arrange the money through her flat mate, Mark Hafer. Ms Annetts said she was told that Ms Hall would arrange for Octavida to be paid and that Ms Annetts' task was to pick up the drugs. She said she went to the travel agent with Ms Hall. Ms Hall booked and paid for the ticket in cash. She said in addition Ms Hall gave her $1,500. She said she flew to Bali on 4 November, but when in Bali she said she changed her mind, for reasons she gave, and decided she would not go on to Jakarta to purchase the drugs.
She said that she rang Octavida and told him that she could not do it. She said that Octavida told her not to worry, he would look after it. She then rang Ms Hall and told her she could not do it and that she had advised Octavida and Octavida had said that he would take care of it and would be in touch with Ms Hall. Ms Annetts flew back to Perth. She brought in artefacts, but on her evidence did not bring back any heroin. She said that she arrived back on 10 November and was met by Ms Hall. They went back to Ms Hall's flat and she was aware that a quantity of heroin was in the flat and they used some. Her evidence suggested that she considered that this was the product of the alternative arrangements that had been made. She also believed that the appellant was to buy the heroin in the flat. She said that when Ms Hall was arrested, she rang the appellant as she knew that he was the prospective purchaser and she wanted to ascertain if he knew what happened. She went with the appellant to visit Ms Hall at the prison and ascertained that 50 grams had been seized and she was aware from this that there would be a further 20 grams in the flat. She said that Ms Hall agreed she could have the keys and could enter the flat to obtain her clothes and the balance of the heroin. She described in detail how she could not obtain the keys, although she followed the instructions given and when she was unable to obtain the keys, she arranged for the locksmith to open the flat. She said she used some of the heroin retrieved and sold the balance to the appellant. She told him that she always wanted a car and that was why she would sell it to him.
Mr Hafer had been called by the Crown for the purpose of proving the fact that Ms Annetts had arranged for his flat to be broken into. His evidence was that he was a geologist who spent long periods out of Perth and interstate, but he allowed Ms Hall the use of the flat and she was in the nature of a minder of the flat. He would, from time to time, lend her large sums of money and at the time she was speaking to Ms Annetts, he had lent $6,000 to Ms Hall.
The jury found that Ms Annetts was guilty of importation as alleged in the first count of the new indictment and found that the appellant was guilty of being knowingly concerned in that importation as alleged in the second count.

Grounds of appeal

The ground of appeal, as first formulated, claimed that the trial Judge erred in law in his directions to the jury on being knowingly concerned in the importation of a drug. At the hearing this ground was supplemented by particulars which I shall now set out as they contain in substance the argument on behalf of the appellant. The particulars are:
"1.The learned trial judge erred in law in that in directing the jury in the context of the evidence against the Appellant he failed to direct that mere knowledge of the existence of the appellant as a potential purchaser of any available drugs was not sufficient, without more, to constitute knowing concern in the importation charged against Annetts by the applicant.
2.The learned judge compounded the error in answering the question asked by the jury at AB 1077 firstly by not directly answering the question asked, and secondly by speaking in terms of 'encouragement' (AB 1077 E).
3.The learned trial judge in the context of the evidence, and the defence available on the evidence, that the Appellant was no more than a potential purchaser of any imported drugs (having tried but failed to recruit Annetts to perform the particular importation for him) should have directed the jury that unless they were satisfied beyond reasonable doubt that the evidence excluded such a possibility they could not convict.
4.In so far as the learned judge failed to direct the jury that the onus was on the Crown to exclude the possibility referred to above beyond reasonable doubt he deprived the Appellant of an opportunity of an acquittal reasonably open to him thereby rendering the verdict unsafe and unsatisfactory."

Judge's directions

His Honour dealt with the question of what amounted to an importation. He made it clear that the appellant could not be convicted unless Ms Annetts was found guilty of the importation. He told the jury that the jury could only find the appellant guilty of the count against him if they were satisfied beyond reasonable doubt that he was knowingly concerned in the particular importation, the subject of the count against Ms Annetts. He then explained what was required to be established for him to be knowingly concerned. His Honour made it clear that it was not sufficient that the heroin landed was subsequently to be sold to the appellant. He said that you have to find "as a fundamental element" of the count that he was knowingly concerned in the importation that it was alleged to have taken place when Ms Annetts passed through the airport on 10 November. His Honour then gave the following direction: (AB1021)
"What's meant by knowingly concerned? For a person to be knowingly concerned in the importation, it is not enough that he simply knows about it but has no involvement in it or connection with it and an example would be, say, a father who has a son overseas and he discovers by some means that the son plans to bring back some heroin into Australia. He might try and stop the son from doing that by telephone or whatever and he might be concerned about that importation but he's not concerned in it and that's because he's not doing anything to encourage it to happen or to bring it about or to help plan it or anything like that. So the fact that a person is concerned about an importation, doesn't mean obviously they're knowingly concerned in it.
Nevertheless it is the first fundamental requirement in this case that the crown must prove that Goder actually knew about this particular importation by Barbara Annetts which the crown says took place on 10 November and that's obviously the first thing the crown must prove, that he knew about it. In addition to that, the prosecution must prove that Goder engaged in an act or omission which implicated or involved him in that importation. So mere knowledge or inaction is not enough. There must be some act or conduct by Goder which shows that he didn't just know about the importation but that he was actively involved or concerned in it in the sense that he was implicated in it.
In this case the prosecution alleges that Goder recruited Annetts as a courier for the importation that's alleged in count 1 and that he was active in persuading her to carry out that importation. The crown also alleges that he paid for her airfares and accommodation in Indonesia so she could go there to obtain the heroin. It's also alleged that at all times up until the heroin was actually imported into Australia, it was agreed and intended between Goder, Annetts and Justine Hall that he would be the one who would ultimately receive the heroin once it had arrived in Australia. If you are to be satisfied beyond reasonable doubt as to all of those facts, then clearly he is implicated in the importation. He didn't just know about it. He was knowingly concerned in it and if those are the facts, then clearly your verdict would have to be that he's guilty of being knowingly concerned in that importation."
The words "knowingly concerned" were words that appeared in the early smuggling statutes and the meaning was discussed by this court in Cheung v The Queen (1997) 97 A Crim R 283 at 288. The meaning extended beyond what was required to make a person guilty as a principal by aiding and there are cases to indicate that an offender can still be concerned, even after the landing or unshipping of the goods. It would in a particular case be a matter for the jury to determine whether an offender, by doing certain acts at that late stage, was concerned in the importation. This aspect does not arise in the present case as it was the Crown case that the appellant asked Ms Annetts to go to Jakarta to purchase the heroin and that the appellant made the necessary arrangements. The essence of the Crown case is what the appellant did prior to the importation taking place.

Whether further direction necessary

It is accepted that his Honour's directions to date were correct. The submission of the appellant is that his Honour, on the facts of this case, should have gone further as the evidence of Ms Annetts in her defence put an alternative view. It is submitted that this alternative view was that Ms Annetts did leave Perth with an intention to fly to Jakarta to obtain heroin to bring back to Australia, but she did this exclusively at Ms Hall's request with Ms Hall using money she had borrowed from Mr Hafer.
I would interpose at this stage of the submission to say that if the jury considered that this was a possibility within reason, then his Honour's direction had made it clear that the appellant could not be convicted. His Honour had made it clear to the jury, with some emphasis and repetition, that the appellant could not be convicted unless he engaged in some act or omission which implicated or involved him in the importation. He said that there must be some act or conduct by the appellant to show he was actively involved or concerned in the importation.
The submission, however, goes further as it is submitted that if the jury saw a possibility that Ms Annetts had carried out the importation exclusively on Ms Hall's account, then the jury may still have considered the appellant was playing a part by reason of being a known dealer in heroin who would buy any heroin that was going, and would be seen by Ms Annetts as a person standing in the market ready to buy the heroin on its arrival. It was submitted that this would not be sufficient to implicate him in the offence, but may have been a reason for the jury convicting him by reason of his Honour's direction not excluding this possibility.
The evidence of all parties was consistent that the appellant was in fact to obtain the heroin. There was no suggestion of his being no more than a potential purchaser or of doing no more than "standing in the market". The ultimate arrangement of which Ms Annetts testified was that Mr Octavida would arrange for someone else to deliver the heroin to Ms Hall and it was to be purchased by the appellant. She sold to the appellant what was left. His Honour 's direction was in accordance with Ms Annetts evidence namely that the heroin was to be "on sold" to the appellant. His Honour made it clear at the start the appellant could not be convicted on this account. His Honour said (AB1019)
"You can only find him guilty of count 2 if you are satisfied beyond reasonable doubt that he was knowingly concerned in the particular importation the subject of count 1.
That is so even if you were to accept Barbara Annetts evidence. She said at one stage during evidence‑in‑chief that the heroin that Justine Hall had got in before 10 November was to be sold‑on to Goder. So even if you were to accept that evidence you could not find Goder guilty of count 2 on that basis; you have to find as a fundamental element of count 2 that he was knowingly concerned in the importation that is alleged to have taken place when Barbara Annetts passed through Perth Airport on 10 November."
It was a direction consistent with the actual evidence that Ms Annetts gave. Ms Annetts said that when she got back from Bali with the artefacts and was met by Ms Hall and taken to the flat, she saw there a quantity of heroin which she considered was the heroin that Ms Hall and Mr Octavida had arranged to be imported independently of Ms Annetts after Ms Annetts said she would not have anything to do with it. The jury, by convicting Ms Annetts, must have been of the view that she herself brought that heroin in and there was no abandonment of the project on her part. His Honour's prohibition against convicting the appellant merely on the fact that the heroin was to be on‑sold to him would have equal force whether the heroin was actually landed by Ms Annetts or whether it had been landed independently of her. Ms Annetts' evidence did not suggest that she undertook the journey for the reason that she saw the appellant as a potential purchaser. Her evidence was that she undertook the journey as she was requested to do so by Ms Hall who provided the finance.
The second particular refers to his Honour, in his re‑direction, "compounding the error" referred to in the first particular. The first aspect which weakens this ground is that I consider that there was no error to compound. I shall, nevertheless, set out the question asked and the answer his Honour gave: (AB1077 and AB1078).
BLAXELL DCJ: Yes, thank you. Take a seat. Madam Foreman, members of the jury, I have received your note and I'm going to read it out so that you can all understand exactly what I'm asked to answer. The note reads:
'Could you please explain again to the jury with reference to the point of law regarding being knowingly concerned? Could you please explain the following points: using your own example of the father and son, if the son told the father he was bringing the heroin in, the father didn't tell the police, finance the importation, arrange any of the details but sold the heroin when the son brought it back into the country, would this make the father knowingly concerned in the importation?'
The first thing I would say is that I have some difficulty answering that question because I can't see how that hypothetical question relates to the facts of this case but nevertheless I am going to answer the question for you. You will remember that when I was directing you I used the example of father and son to show or to demonstrate that for a person to be knowingly concerned in an importation, it doesn't just mean being concerned about the importation. I gave the example of a father who had a son overseas and discovers the son is going to be bringing back with him some drugs and the father, if he's an ordinary father, would be naturally concerned about that, concerned at the consequences of his son bringing drugs into the country, but hasn't had anything to do with arranging for that to happen or encouraging the son to import the drugs but nevertheless knows about it and is concerned about it.
I explained that that doesn't amount to being knowingly concerned in the importation. There has to be some additional factor. The prosecution must prove that the father did something or omitted to do something which implicated or involved him in the offence as an additional factor. It's not just mere knowledge that it's happening. There must be something else proven which is done or not done by the father which would make him implicated or involved in the importation.
To return to the example you put in your question, you say, 'What if all the father did was to buy the heroin after it has come into the country?' The answer to that is this: you look at the time of the importation - at the time the drug came into the country. At that time, was the father implicated in the importation in the sense that he has indicated to the son he's willing to buy it, if that had happened - if the father had encouraged the son with the importation by suggesting that he be willing to buy the drug once it came into the country, he would be implicated. So you're looking at the time of the importation. At that stage, is the father involved or implicated in the importation?
If at that stage, the father has had no communication with the son, had nothing to do with the importation, but after the drug arrives in the country approaches his son and says, 'Well, I'm willing to buy it,' he would not have been implicated or knowingly concerned in the importation because at the time of the importation he had had nothing to do with it. So to answer that question, if you focus on the time of the importation, what was the position then? If the father has come along after the importation and become involved ‑ well, the importation is over. He might well be committing an offence under state law and conspiring to buy drugs which are in the country, but he's not knowingly concerned in the importation.
Also bear in mind of course that evidence of what has happened after the importation can give rise to an inference as to what the position was beforehand. You will remember what I explained to you about inferences; in other words, evidence of what has happened after the importation, if you accept it, can justify an inference as to what had been the position previously because very often people behave in accordance with what has been agreed previously or understandings previously and so on but that's the only relevance of that area of evidence in a hypothetical case such as you have put to me. So does that help you, Madam Foreman?"
Mr O'Sullivan, in his submission, refers particularly to the use of the word "encouraged". It is submitted that mere knowledge of the appellant as a person who is standing in the market is not sufficient to make him guilty and the jury should have been told that. The nature of the submission is that the direction left open to the jury the possibility that they might convict the appellant on the basis that there was some encouragement to Ms Annetts by reason of her knowing that the appellant was a person standing in the market.
I consider that there are two answers to this. Firstly, the direction in its terms did exclude that possibility and secondly, the evidence did not directly or by implication suggest that Ms Annetts was encouraged to carry out the importation by reason of the appellant being a possible purchaser. I have referred to the fact that the reason she gave in evidence was the request made by Ms Hall, and the money Ms Hall was paying her.
His Honour in his re‑direction also made it clear that the "father" in his example would not be guilty if after the landing of the import he says to the son who has imported it, "I am willing to buy it." One of a number of meanings of the word "concern" is "to make uneasy". His Honour, when first discussing the father and son and subsequently in his re‑direction, made it clear that the word did not carry this meaning. His Honour said that if a father encouraged a son to carry out an importation by saying he would buy the import if and when imported, then the father would be guilty of being concerned in the importation and this clearly would be the law. The whole context of his Honour's remarks indicate that this must occur before the importation has taken place and his Honour made clear by his later example that this father would not be guilty if the father indicates that he is willing to buy the goods once they have arrived into the country.
I consider what I have said answers the third particular, which claims that, in the context of the evidence, and the defence available on the evidence, namely that the appellant was no more than a potential purchaser of any imported drugs, his Honour should have directed the jury that unless they were satisfied beyond reasonable doubt that the evidence excluded such a possibility, they could not convict.
As I mentioned, the appellant did not give evidence and the only evidence that would have raised a defence for him was the evidence of Ms Annetts in her defence. The crown evidence was direct evidence that the appellant asked Ms Annetts to undertake the importation. Ms Annetts' evidence raised the defence that there was no importation as alleged. This was subject to clear directions by his Honour and was rejected by the jury.
The next defence available to the appellant raised by Ms Annetts was that the request to import heroin to which she acceded, was a request made exclusively by Ms Hall and that the appellant was not involved in it. His Honour again gave clear and unchallenged directions in regard to this. The jury were directed that they must be satisfied that the appellant was involved at that stage. Her evidence did not raise any question of the appellant being a potential purchaser or of such a concept playing any part. Her evidence was, as I mentioned, that the appellant was to be and was in fact the actual purchaser and his Honour's directions dealt specifically with this situation. The fourth particular is no more than a continuation of the third.
There are further reasons which I consider would exclude any possibility of the jury convicting the appellant on the basis suggested in argument. His Honour in the direction which I have already set out explained generally what is involved in being knowingly concerned, and having done that then referred in particular to the acts which the prosecution claimed made the appellant knowingly concerned and that was persuading Ms Annetts to carry out the importation, paying her airfares and accommodation and prior to landing, agreeing to be the one to receive the heroin when it arrived. His Honour then said, "If you are to be satisfied beyond reasonable doubt as to all of those facts, then clearly he is implicated in the importation. He didn't just know about it. He was knowingly concerned in it and if those are the facts, then clearly your verdict would have to be that of guilty."
His Honour later said (AB1065):
"Really the critical issue in terms of guilt or innocence in this case in respect of both accused is whether you're satisfied beyond reasonable doubt that Justine Hall has been truthful and accurate when she says that the heroin seized from her apartment on 13 November came in through Perth Airport with Barbara Annetts on 10 November.
It's only if you are so satisfied beyond reasonable doubt as to that that you can be justified in convicting either of the accused in this case and finding them guilty. You should only come to that conclusion after paying due regard to the warning I gave you about the need to be very cautious in accepting Justine Hall's evidence and the need to determine whether there is corroborating evidence which tends to confirm her version of events.
Now, it also may be that although you do not positively believe Barbara Annetts' evidence, it still leaves you with a reasonable doubt as to what in fact happened. Really in a case such as this, in addition to being satisfied beyond reasonable doubt that Justine Hall has told you the truth, necessarily you would have to be satisfied beyond reasonable doubt that Barbara Annetts' version of the importation is false."

Appeal against sentence

The appellant is seeking leave to appeal against the sentence imposed. His Honour imposed a total effective sentence of 16 years imprisonment being a sentence of 9 years in respect of the third count together with a cumulative term of 7 years in respect of the second count, and a term of 6 years in respect of the first count, but that term was made concurrent. They were made concurrent with existing terms of imprisonment he was then serving. His Honour considered that it was inappropriate to fix a non‑parole term.
The grounds of appeal are that the sentence was manifestly excessive in that his Honour gave insufficient weight to early pleas of guilty on counts 1 and 2, and of the co-operation he gave to the State authorities.
The appellant was born in 1952. He has an extensive record, including many appearances on indictment, for offences of stealing, receiving, breaking and entering, burglary and rape. His Honour said that he had been sentenced to terms of imprisonment on at least nine separate occasions. His Honour said, and in my view, correctly, that it was a proper inference that he did not commit the offences in order to feed a heroin habit. He had substantial sums of money at his disposal and his Honour said, "The evidence overall satisfies me that your predominant motive in committing the offences was that of greed and the desire to make greater profits out of the opportunities that Justine Hall's contacts in Indonesia offered you." He considered that in two instances he recruited vulnerable women as couriers. He reduced each of the sentences on the first two counts by one year by reason of the plea of guilty on the first two counts.

The first particular refers to his pleas of guilty on the first two counts of the initial indictment. He pleaded not guilty in the Court of Petty Sessions. He was committed for trial on 13 August 1998. On 25 January 1999 his then counsel advised the Status Hearing Judge that the appellant would plead guilty to the two counts but would defend the third.
One reason for a discount for a plea of guilty is that it may show an indication of remorse. If the plea of guilty is at the very first opportunity, that often shows a high degree of remorse. It could not be suggested in the circumstances of this case that there is any significant remorse. Another reason for a discount is the saving to the administration of justice and the facilitating of the listing system to ensure trial time is not wasted. As the plea in this case was indicated prior to a status hearing it would have been of significant assistance in arranging the lists and credit must be given on this account. It would not have had any significant effect on ultimate trial time as the persons carrying out the first two importations were required to give evidence in the trial relating to the third offence. Some discount was called for and his Honour gave it. I am not persuaded in the circumstances of this case that his Honour was wrong in the

assessment he made. The ultimate sentence was discounted further by reason of the totality principle.

His Honour, in his sentencing remarks, referred in detail to the circumstances in which the appellant told the authorities that Ms Hall was in possession of 50 gm of heroin. His Honour did not see this as a mitigating factor. The appellant was a registered informer but, despite that, carried out the first two offences. He informed the authorities that 50 gm were at Ms Hall's residence but, by concealing his own involvement he was not telling the whole truth and in addition was not aiding a proper investigation. When he ascertained, through Ms Annetts, that there was a further 20 gm on the premises he gave encouragement to the obtaining of it by being present at the prison when the keys were requested and he ultimately purchased the remaining 14 or 15 grams. I would see no mitigation in his act of giving the information he did to the police in these particular circumstances. No inferences in his favour could be made from this conduct and there is every indication that he was doing it for reasons of his own. His Honour also referred to the fact that the evidence showed further that at the time of his arrest he had taken steps through Ms Miles to bring about a fourth importation. His Honour said that this was not aggravation but showed that the acts with which he was dealing were not isolated.
The grounds of appeal do not challenge generally the length of a sentence. They indicate that adjustments should be made for the two reasons to which I have referred. There could in my view be no argument that the aggregate sentence, in the absence of any mitigating feature, is a proper sentence for the seriousness of the conduct involved. The appellant was at a high level of distribution within Australia. He was the cause, on a systematic basis, of the heroin coming to Australia. This calls for a high deterrent sentence. The method showed significant criminality when it was a method secreted through the customs in the way it was. In these circumstances I see the sentence as appropriate.
I would dismiss the appeal against conviction and I would refuse leave to appeal against the sentence.
WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the orders proposed by his Honour.