Lachlan Wilson v R
[2014] NSWCCA 266
•28 November 2014
Court of Criminal Appeal
New South Wales
Case Title: Lachlan Wilson v R Medium Neutral Citation: [2014] NSWCCA 266 Hearing Date(s): 10 and 11 April 2014 Decision Date: 28 November 2014 Before: Bathurst CJ; Fullerton J; Davies J Decision: 1.Appeal against conviction dismissed.
2.Grant leave to appeal against sentence.
3.Appeal against sentence dismissed.Catchwords: CRIMINAL - appeal - conviction - whether verdict unreasonable - appellant acquitted of importation of border controlled precursor - appellant convicted of supply of prohibited drug - drug in both offences the same - mental element of both offences formed in same period - acquittal of importation offence on reasonable doubt as to mental element - whether failure to convict on importation offence rendered conviction on supply offence unreasonable - consideration of jury questions
CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of importing border controlled precursor where precursor and prohibited drug the same
CRIMINAL - appeal - sentence - De Simoni principle - whether judge impermissibly considered conduct relating to drug importation offence when sentencing for supply offence - practical necessity requires references to context in which offending occurred and surrounding circumstances
CRIMINAL - appeal - sentence - whether manifestly excessive - whether any error in assessment of criminal culpability and appointment of appellant's role in drug syndicate
CRIMINAL - appeal - sentence - parity - whether discrepancy between sentences of co-offenders is disproportionate to relevant distinctions in roles played and subjective circumstances of co-offenders - whether disparity is gross, marked or glaring - position of trial judgeLegislation Cited: Criminal Code Act 1995 (Cth), ss 3.1, 3.2, 307.11 and 307.14
Drug Misuse and Trafficking Act 1985 (NSW), s 3, 24A, 25, 33 and Sch 1
Criminal Appeal Act 1912 (NSW), s 6Cases Cited: BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Crystal Lee England v R [2009] NSWCCA 274
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dungay v R; R v Dungay [2010] NSWCCA 82
ES v R [2014] NSWCCA 268
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Ibrahim Jidah v R [2014] NSWCCA 269
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272
R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Standen v Director of Public Prosecutions (Cth)[2011] NSWCCA 187; (2011) 218 A Crim R 28
Still v R [2010] NSWCCA 131
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Yousef Jidah v R [2014] NSWCCA 270Category: Principal judgment Parties: Lachlan Wilson (Appellant)
Crown (Respondent)Representation - Counsel: Counsel:
M Thangaraj SC (Appellant)
I D Bourke / M England (Crown)- Solicitors: Solicitors:
Macedone Legal (Appellant)
Commonwealth Director of Public Prosecutions (Crown)File Number(s): 2009/198056 Decision Under Appeal - Before: Frearson SC DCJ - Court File Number(s): 2009/198056
JUDGMENT
THE COURT: Lachlan Wilson (the appellant) was charged with the following offences on a joint indictment presented on 23 February 2011:
"Count 1
Between about 15 July 2008 and 13 August 2008 at Sydney in the State of New South Wales and elsewhere, did import into Australia a substance, namely a commercial quantity of pseudoephedrine, a border controlled precursor, intending to use, or believing that another person intended to use any of that substance to manufacture a controlled drug.
Contrary to s. 307.11(1) of the Criminal Code Act 1995 (Cth)
Count 2
Between about 15 July 2008 and 14 August 2008 at Sydney in the State of New South Wales and elsewhere, did knowingly take part in the supply of a prohibited drug, namely pseudoephedrine, being not less than the commercial quantity and not less than the large commercial quantity applicable to pseudoephedrine.
Contrary to s.25(2) Drugs Misuse and Trafficking Act 1985 (NSW)".
The appellant, together with his co-accused (Yousef Jidah, Ibrahim Jidah, DS and Ryan Kapral), was tried before Judge Frearson SC and a jury. He was convicted on Count 2 (the supply count) but the jury were unable to reach a verdict on Count 1 (the importation count). The appellant was sentenced to a non-parole period of 10 years and 6 months commencing on 3 September 2010 with an additional term of 5 years and 8 months (a head sentence of 16 years and 2 months).
The appellant has sought leave to appeal against his conviction and against the sentence imposed on him. As his first ground of appeal against his conviction involves questions of mixed fact and law, leave was required. We are of the opinion that leave should be given.
The appellant raises two grounds of appeal against his conviction:
"Ground 1 - The verdict on Count 2 was unreasonable and cannot be supported having regard to the whole of the evidence and all of the relevant facts and circumstances of the case including the appellant's discharge (the jury being unable to reach a unanimous verdict) on Count 1.
Ground 2 - The trial miscarried because the appellant was charged with inconsistent charges."
The appeal was heard at the same time as the appeals of his convicted co-accused, Yousef Jidah, Ibrahim Jidah and DS (Ryan Kapral having been acquitted). They appealed against their conviction and sentence for offences relating to the same quantity of drugs. Another person involved in the alleged offences, ES, pleaded guilty.
The relevant legislation
Section 307.11(1) of the Criminal Code Act 1995 (Cth) (the Code) provides as follows:
"307.11 Importing and exporting commercial quantities of border controlled precursors
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b) either or both of the following apply:
(i) the person intends to use any of the substance to manufacture a controlled drug;
(ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and
(c) the substance is a border controlled precursor; and
(d) the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2) The fault element for paragraph (1)(c) is recklessness.
(3) Absolute liability applies to paragraph (1)(d)."
Section 3.1 of the Code provides that an offence consists of physical elements and fault elements. Section 3.2 is in the following terms:
"3.2 Establishing guilt in respect of offences
In order for a person to be found guilty of committing an offence the following must be proved:
(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element."
At the time of the offence the word "import" was not defined in the Code. In R v Campbell [2008] NSWCCA 214; (2008) 73 NSWLR 272 at [128], the physical element of "imports" was held to be completed at the time the goods in question were delivered to a place where they would remain in Australia. In that case it was when the goods were picked up by the importer's agent or at the latest when they arrived at his premises and before they were unpacked. The Court also held at [43]-[44] and [137] that the physical element and the fault element must co-exist.
Section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act) provides as follows:
"25(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence."
"Supply" is defined in s 3 of the DMT Act in the following terms:
"supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things."
"Prohibited drug" is defined in s 3 of the DMT Act as any substance other than a prohibited plant specified in Sch 1. Pseudoephedrine is specified in Sch 1. A large commercial quantity of that drug is 5 kg.
Section 33(3) of the DMT Act provides that the maximum penalty for s 25(2), where the offence involved not less than the large commercial quantity, is life imprisonment, a fine of 5,000 penalty units or both. The standard non-parole period is 15 years imprisonment.
Factual background
On 15 July 2008, a shipping container (identified in the evidence as container TTNU) left Bangkok, Thailand, on board the ship "Northern Victory". It arrived in Sydney at Port Botany on 4 August. The consignor was nominated as Royale Colourstones and the consignee, LJ Wilson Imports Pty Ltd, a company controlled by the appellant.
On 8 August 2008, the container was opened and inspected by Customs officers. They identified 45 boxes labelled as containing "Tipco Juices". The boxes contained plastic bags full of white tablets. The tablets tested positive to pseudoephedrine. In total, the boxes contained just over 2.6 million tablets, with a gross weight of just over 603 kg, consisting of just over 125 kg of pure pseudoephedrine. The street value of the shipment, if converted into 69-111 kg high-grade methamphetamine or "ice", was estimated to be between $34.5 million and $55.5 million.
Between 9 and 11 August 2008, the Australian Federal Police removed the pseudoephedrine tablets; replaced them with inert tablets; resealed the boxes to resemble their original condition and repacked the container into which were installed listening devices. From this time the police had the container under constant surveillance.
On 12 August 2008, container TTNU (and another container, referred to in the evidence as FSCU) were both released by Customs as part of a controlled delivery.
At 1.54 pm that day, Michael Terrance, a Customs broker who had previously been retained and utilised by the appellant or his company, sent an email to the appellant advising that "both containers are now clear for delivery". At 2.02 pm, the appellant (who at that time was in Thailand) sent a SMS message to DS advising him that "both containers are now done with customs". DS was ES's cousin and worked for the appellant. It was the Crown case that the unpacking of the drugs from the container by DS and people co-opted by ES, and the on-supply of those drugs was to occur while the appellant was in Thailand, in that way distancing him from both the importation of the drugs and their on-supply.
On 13 August 2008, container TTNU was loaded onto a truck, and delivered to the appellant's warehouse at Arndell Park (the warehouse) under police surveillance. It arrived shortly before 1 pm. It was signed for by DS and taken into the warehouse. Later that afternoon, it was unpacked by DS with the assistance of others (including Ryan Karpal, who was acquitted) and the boxes loaded onto another truck. That evening the truck, driven by DS, transported the 45 boxes containing the controlled delivery tablets from the warehouse to Penrith Auction House (the auction house).
At about 6.30 pm that evening, Yousef Jidah and his brother Ibrahim Jidah arrived at the auction house. Yousef was driving a white Mitsubishi Express van and Ibrahim was driving a blue BMW M3 sedan. Yousef's van entered the car park and was loaded with the 45 boxes while Ibrahim remained in his vehicle close by.
Yousef Jidah then drove towards Blacktown, with Ibrahim Jidah following closely behind. Police followed both cars. The Crown case was that Ibrahim conducted "counter surveillance" and that, when they arrived in Blacktown, at least Ibrahim had detected that they were being followed. He telephoned ES to inform him. ES instructed Ibrahim to get Yousef to drive the vehicle to another location and "leave it".
Ibrahim Jidah gave the instructions to his brother who drove the van to a shopping centre at Blacktown. The van was left in a car park. Intercepted telephone calls at this time indicate that Ibrahim was in contact with his brother and providing him with details about what to do with the van. At around that time ES called DS (who was at the warehouse) and informed him that the Jidahs believed that they had been followed.
Later that evening, the van was retrieved from the shopping centre carpark and driven back to the warehouse in Arndell Park. The Crown case was that some or all of the boxes were unloaded from the warehouse that night.
On Thursday 14 August 2008, ES sent SMS messages to DS asking whether there were "any probs" and "is there a car antenna@". The Crown case was that these messages referred to ES's concern that the shipment might have contained listening devices. DS gave evidence that he didn't know what ES was talking about when he asked if there were "any probs". He thought ES's reference to a "car antenna" was referring to an aerial for DHL tracking. He said in cross examination that he wasn't actually working at that stage and was lying to ES.
Around this time Yousef Jidah and DS were inside the warehouse with the boxes. ES was in telephone contact with Ibrahim Jidah and DS. They discussed the unpacking.
At 8.22 am that day, Federal Police entered the warehouse and arrested DS, Yousef Jidah and another man who was not charged. Ibrahim Jidah, who was sitting in his car opposite the warehouse, was also arrested. Police located all 45 boxes either in the white Mitsubishi van, on a hand trolley, in the TTNU container or on the floor of the warehouse. All of the 45 boxes, save for five, had been opened and resealed.
The appellant was arrested at Sydney Airport on 19 August 2008, on his return from Thailand.
The appellant's knowledge of the importation of the drugs he was convicted of supplying
In proof of the first of two counts on the indictment laid against the appellant, the Crown alleged that he agreed with ES to import a commercial quantity of pseudoephedrine, being a border controlled precursor, intending, or believing, that another person intended to use any of that substance to manufacture a controlled drug, contrary to s 307.11(1) of the Code. In proof of the second count, the Crown alleged that he knowingly took part in the supply of a large commercial quantity of pseudoephedrine contrary to s 25(2) of the DMT Act. It was not in dispute that the drugs imported were the drugs that the Crown alleged he supplied.
On the Crown case, ES travelled to Thailand around the time container TTNU was packed to source and oversee the export of the drugs, and the appellant was to facilitate their importation through his company, LJ Wilson Imports Pty Ltd. The company was an importer of foodstuffs and had its warehouse at Arndell Park. Between September 2007 and July 2008 the company imported approximately 12 containers of foodstuffs for wholesale. It was the Crown case that the company was utilised to provide a cloak of legitimacy for the importation.
Although ES was indicted on a charge of aid, abet, counsel or procure the importation of the drug, to which he entered a plea of guilty, the Crown case was that ES, with the assistance of the appellant, played a significant if not a central role in the enterprise incorporating both the importation of the drugs and their on-supply. DS worked for the appellant and was involved in what the Crown described as the "importation" phase of the enterprise. Ibrahim Jidah and Yousef Jidah, both friends of ES, were co-opted into the scheme by ES but did not become involved until the consignment had reached what the Crown described as the "supply" phase.
ES and the appellant were friends who co-owned two racehorses. On the Crown case, all communications between the appellant and ES about the importation were coded, and at times they utilised horse racing terms. The appellant gave evidence at trial that the conversations relied upon by the Crown as coded communications were actually about betting, barrier trials, and the sale and gelding of the racehorses the appellant managed and co-owned with ES, being "Danehill Smile", "Rich Hussy" and "War Stories", or in which the appellant's company had an interest, namely "Red Lord" and "Dealer Principal".
On 17 June 2008, ES departed for Thailand.
On 26 June 2008, the appellant (who was in Australia) received a SMS message from an unknown source asking that he contact "[email protected]" and request a "product list" (as noted above at par [13], the consignor of container TTNU, containing the drugs, was Royale Colourstones).
The appellant replied via email on 27 June 2008 requesting a "list of available products". Later that day ES and the appellant communicated via SMS message in the following terms:
"ES: Did you get that message?LW: YepES: My girlfriend's waiting.
...
ES: Remember how I told you she has that new friend that you would like well send her your details she wants to hook up with you, r u drinking LW: I sent the details straight away ... but she hasn't got back to me."
The Crown case was that in these SMS messages ES was confirming that the appellant was in contact with the consignor, Royale Colourstones.
On 28 June 2008, the appellant received an email from "Jhon Levlee" of Royale Colourstones attaching a list of products including "Tipco Juices".
Between 30 June and 21 July 2008, the appellant and Jhon Levlee communicated from time to time regarding the arrival of shipping containers. In particular, the Crown asserted email communications between Jhon Levlee and the appellant from 11 to 13 July (in which the appellant inquired as to when "the container" was due to arrive in Sydney, and Jhon Levlee responded around "22nd to the 25th of this month") related to the anticipated arrival of both container CRXU (which did not contain drugs) and container TTNU (which contained the pseudoephedrine).
On 14 July 2008, the appellant (who had not yet left for Thailand) sent an email to his Customs broker in the following terms:
"I have another container due to arrive between the 22nd and the 25th of this month ... I have had to change suppliers ... probably causes me more headaches with customs in terms of release time ... going on holidays from Monday the 4th of August through to 13th of August, so it would be ideal if could be released before I head off ..."
The day the container TTNU left Bangkok, consigned for Sydney (Tuesday 15 July 2008), the appellant and ES had a conversation, which the Crown asserted concerned the anticipated delivery of both containers. It was the Crown case that the references to the horses "Rich Hussy" and "War Stories" were coded references to the containers CRXU and TTNU and their anticipated date of delivery:
"ES: Hey mate you sure that horse is racin' on the 25th? LW: Not sure. Ideally......
ES: You just had a wild guess?
LW: No, there's a race on the 26th... or the 20...well the Saturday at Rand... Canterbury
ES: No not that one, not Rich Hussy, the other horse
LW: What other horse?
ES: War Stories
LW: No, I never said anything about War Stories... I dunno when War Stories is running... I haven't ever said a thing about War Stories
ES: What about your girlfriend's horse?
LW: Oh um...22nd, to that date 25th
ES: Are you sure about that?
LW: I got... that's what I got told
ES: I'm fuckin sick of thisLW: That's the... that's the number oneES: Yeah I fuckin know that's for the first
LW: Yeah I haven't heard anything about number two
ES: So you're (ind) the 26th for Rich Hussy not 25th
LW: Twenty yeah, 22nd to the 25th...Rich Hussy 26th yeah, somethin like that
ES: Oh
LW: But I'm still tryin to find out about number two."(Emphasis added).
The Crown case was that in this conversation, ES and the appellant were at cross-purposes until ES mentioned "your girlfriend's horse", referring to the SMS messages on 27 June 2008, after which the appellant realised the conversation was about the expected arrival date of the shipping containers.
Later that day, the appellant called his Customs broker, and had the following exchange:
"LW: ...have you had any news on roughly when the firstcontainer turns up?
MT: Yeah that's due in on um Thursday, the ship W: Oh this Thursday is it? Okay."Approximately five minutes after that conversation, the appellant contacted ES via text and informed him that he was "wrong earlier" and that "Rich Hussey will be having a gallop b4 Friday, [war] stories more then likely early August". Container CRXU (which did not contain any drugs) arrived in Sydney on Friday 18 July 2008. On the Crown case, "War Stories" was a coded reference to container TTNU. As mentioned above, container TTNU arrived in Sydney in early August.
The following Monday, 21 July 2008, the appellant sent an email to the Customs broker in the following terms:
"Here is the bill of lading for the second container from Royale. I should have the documents on Monday/Tuesday of next week. It left Thailand on the 15th so I would imagine it would be arriving while I am on holidays I guess as I leave on the 4th so [DS] will have to accept the container... I should have another container from Dan D arriving a few days after this also..."
The Crown case was that this email concerned the drug consignment in container TTNU.
On 28 July 2008, the appellant sent an email to the Customs broker regarding "the second royale colour container" in the following terms:
" ... A quick release would be great, just purely because I am heading on holidays next week so it will make it easier on me but I wont hold my breath."
On 4 August 2008 (the day that container TTNU arrived in Sydney) the appellant flew from Sydney to Phuket, Thailand, where he remained until 19 August. The Crown case was that during this time the appellant continued to be involved in coordinating the clearance of container TTNU, including communicating with ES and giving instructions to DS.
On 4 August 2008, whilst waiting to board the aircraft, the appellant had a telephone conversation with DS. He informed him that he had given his contact details to the Customs broker. He said, "[he will] hopefully have it out for us by Wednesday". DS confirmed that he had been in contact with the broker.
On 5 August 2008, ES telephoned the appellant and the following conversation took place:
"ES: No news?LW: ...I'm workin', I'm workin', I'm workin' it... It's lucky I got someone there to help me out while I'm away so...I'll speak to him this arvo and hopefully...see if he's heard anything either."
Later that day the appellant sent two SMS messages to DS referring to attempts to make contact with his broker "to find out ... when the container will be arriving".
Between 5 and 7 August 2008, the appellant sent a number of SMS messages to DS seeking updated information from the Customs broker regarding clearance of the containers and their delivery. During this time, DS maintained contact with ES. The appellant maintained contact with his Customs broker.
On 7 August 2008 at 4:47 pm ES sent a SMS message to the appellant asking "Today?". The appellant responded "Don't know yet. Soon".
Later that day, the broker was told that a "hold" had been placed on container TTNU. The appellant spoke with him the next day and was told that he did not know when the container would be cleared. The drugs were located by Customs in container TTNU that day.
The Crown case was that the delay in clearance created high levels of anxiety for the appellant and ES, which was obvious in the content and regularity of communication over the subsequent days.
On 8 August 2008, ES and the appellant had two phone conversations (at 8.27 pm and 8.46 pm) where they discussed the location of container TTNU, the ability to track its whereabouts online, and inquiries that might be made with the shipping company. The conversation at 8.27 pm was in the following terms:
"ES: Listen then um...you know when you said DHL how you can track it?
LW: Yeah
ES: Why can' t you do that with that one ?
LW: Because ...I only put certain things on there
ES: What do you mean?
LW: ...they only put release certain things
ES: But it should tell you where it is
LW: No bro, some bits they do
ES: Where does it say it is?
LW: It's there
ES: Well what did it say last week?
LW: It's there but they only release certain information
ES: Who's that through, the actual - the actual DHL?
LW: Yeah, yeah
ES: Or through, or through the inspection?
LW: Yeah no... they only release certain bits of information
ES: Is that through the shipping line?
LW: No
ES: Well that's what you gotta look up. The actual shipping line
LW: I mean... its done all that mate
ES: And you can't tell where it is?
LW: I know where it is mate but I only know certain bits of information
ES: Well that's...it should tell you exactly where it is. And if it was delayed or if it wasn't
LW: It was, that's what they 're telling us
ES: No, I don't care what he's telling me. I'm fuckin over this cunt. He's sacked as soon as you get back
LW: Yeah
ES: The fuckin um...the shipping company should tell you where it is
LW: Yeah it's there. They only tell you where it's at. They don't...they don't from then on they don't tell you...
ES: Well a week ago they told you it was there as well? LW: Yeah
ES: So it wasn't delayed?
LW: No it...it... getting off it has been
ES: According to him or according to you look it up?
LW: No according to what it actually is. According to what he's...yeah he's told me but it is...mate I know what it is. I've been through this a thousand times
ES: So what do you reckon it is?
LW: Oh I dunno. I really don't
ES: You're not makin any sense man
LW: Oh well...yeah well you know
ES: When you track it, you can tell where it is yeah?
LW: Yes you can tell where it is
ES: Okay, but a week ago where was it?
LW: Here!
ES: It was here? So it's been here the whole week?
LW: Yes but they...they had delays because they couldn't get it off. That's where the delays were incurred. Its just been sitting on it
ES: Cause when we spoke to him today he said fuckin it was delayed in China. That thing doesn't go to China
LW: It goes through to...no...yeah
ES: So fuckin how did it get delayed in China?
LW: Yeah I think there was a lot of delays in China, not mine, a lot of delays in China which back held these ones. Because the delays of where they were, then they eventually turned up....
ES: Well what did he say to you today ?
LW: Oh mate I've only just got here now...he sent off a pretty serious email
ES: He did?
LW: Yeah
ES: To who?
LW: I'll call him
ES: Ring me back."(Emphasis added).
The Crown case was that "he's sacked as soon as you get back" was a reference to the Customs broker and ES's frustration and concerns about the reliability of the information they were receiving from him.
At 8.46 pm, the appellant called DS. DS handed the phone to ES and he and the appellant had the following conversation, in which the appellant informed ES that the container had been "held up" by Customs.
"LW: ...it turned up then but it got held up then
ES: by who, the whole thing or just ours?
LW: Yeah no, it was stuck on the thing
ES: ...Alright is it safe now?
LW: It's hopefully, they're hoping, hopefully 95 tomorrow okay...see they only tell certain bits of things...
ES: I know, fuck I'm gonna bang youse both when you get back here. So yeah
LW: Uh?
ES: I'm gonna bang youse both when you get back here
LW: They only tell you, know what I mean?
ES: 95 tomorrow
LW: yeah well if it's tomorrow it means we can't get it till theycan't book it for Monday. So it may not be till Monday afternoon or Tuesday morning
ES: what's 95 tomorrow then?
LW: that it's cleared tomorrow and then it just says wait, wait to be moved
ES: will he ring you tomorrow and tell you it's been cleared?
LW: he's gonna email me if it gets done, yeah
ES: alright, you ring him regardless
LW: I don't know mate, I'm not, I'm not-I dunno. I dunno if that...
ES: well you ring him regardless
LW: Uh? Yeah no I will, but I dunno, I dunno if people are on the know
ES: How's Phi Phi?
LW: yeah not bad, did you hear me?
ES: yeah
LW: good, good. I don't know how many people are on the know
ES: what?
LW: yeah, I don't know about some people on the know. Yeah
ES: you're around for people on the mum?
LW: on the know
ES: who?
LW: I dunno
ES: you're around for people that are on the know
LW: no, I don't know if there is people that know, that are on the know
ES: oh, ok. What makes you say that?
LW: I've been done for these at least 10 in a row
ES: oh yeah. So this is normal you reckon?
LW: well he sent off um a thing today
ES: yeah
LW: But um he's been pretty harsh to say what's goin on basically
ES: oh about you?
LW: about the cost of money yeah, for them
ES: alright so you reckon so tomorrow night you'll know if it's been...
LW: yeah
ES: yeah and then fuck (overtalk)
W: (ind)
ES: and then what? And then what, should have it Monday?
LW: then Monday-yeah then we book it Monday coming out
ES: alright man
LW: alright but man I dunno. I dunno, I dunno who's on the know
ES: listen
LW: yeah
ES: regardless if it doesn't come tomorrow and tells us Monday
LW: yeah
ES: you don't catch a flight until fuckin - do you understand what I'm saying?
LW: yeah
ES: well...
LW: I know yeah, I know, I know
ES: you know what I mean, regardless
LW: yeah, yeah
ES: yeah
LW: alright
ES: take the bloke out for dinner, buy him a few drinks, do this, do that, eh
LW: uh I think, I think honestly he's being very blunt to the point that this is just ridiculous, it's stupid and you know these guys are just costing us a fortune if it's not on, what the fuck, what do we have to do, you know what I mean
ES: mm
LW: so you know if you know, but
ES: yeah well what time tomorrow
LW: alright so - uh?
ES: what time tomorrow about six, the same time?
LW: oh maybe, maybe early in the morning. Who know, who knows
ES: alright well let me know
LW: the longer this, the longer this goes on you know ......
ES: you alright for money?LW: yeah hopefully I'll be alright. ES: alrightLW: no dramas."
(Emphasis added).
DS gave evidence that, although he was on the phone to the appellant at the start of this conversation, he was not around ES for the rest of the conversation that is extracted above.
The Crown asserted that the appellant's references to "people that are on the know" was to suggest to ES that the authorities may have discovered the drugs, and that "95" was a reference to being 95% sure that the container would be cleared the next day. Further, the Crown asserted that ES's entreaties to the appellant not to catch a flight, and his inquiry as to whether the appellant had enough money was to ensure that the appellant stayed out of the country until the shipment had cleared Customs. The Crown asserted that the reference to someone having sent off "a thing" that was "pretty harsh" was a reference to an email the broker sent to Customs the previous day complaining about the delay in the release of the two containers. The Crown case was that this email, together with the references to "tracking" something, "DHL", a "shipping company" and something being "delayed in China" demonstrated that the appellant and ES were concerned about the shipping container and its possible interception by law enforcement bodies.
The two telephone calls on 8 August 2008 were followed by a series of SMS messages between ES and the appellant, in the following terms:
"LW: I feel sick brother ... just my sea legs I hopeLW: So you know mate I get back next week. We should catch
up for a bite to eat or just a few drinks ES: MaybeLW: You still owe me a birthday drinkES: Maybe a bulletLW: I don't like that shot of alcoholLW: Are your mates giving u grief - is there something I need to
be worried about?ES: Yeah, a lot of fuckn griefLW: U better make sure they buy shares in horses off meES: They want shares of you dont worry about horses."The following day, 9 August 2008, the appellant communicated with DS, the Customs broker and ES regarding the clearance of the containers.
At 2.07 pm, the appellant emailed the broker asking "any news on possible clearance of both containers?". Four minutes later, the appellant sent a SMS message to ES saying, "My dad hasn't told me how the horse went yet. May not know till Monday morning". At 3.04 pm, the appellant sent a SMS message to DS intimating that he would not know until Monday when the containers were arriving.
On Monday 11 August 2008, as police initiated a controlled delivery of the TTNU container, the appellant continued to communicate with the broker. At 3.55 pm, the appellant emailed him saying:
"Hi Mike, are customs giving any indication on this Royale container? This all seems a bit weird to me at the moment."
That evening, the appellant also communicated via SMS message with ES:
"LW: I may be coming home on Thurs now, can't change my flights
ES: Not a good idea, until you sell that horse, please mate trust me on this, sell the horse then come home it's the safest bet, please mate
LW: Fair enough. Can you spot me 500 or so
ES: [I'll] deposit in chloe's account tomrw, or do u want western union?
LW: Chloe's is cool mate. Thanks for that, it will be good to relax in some sun for a bit longer. U ok mate?
ES: Alive, waiting for our horse to race, be okLW: Have a small bet on danehill smile and dealer principal to
win on Saturday ES: Will do."The Crown case was that these SMS messages related to ES's advice to the appellant to stay in Thailand until the problem with the container was sorted out, and that the "horse" was container TTNU.
On Tuesday 12 August 2008, the appellant sent a SMS message to ES saying "Maybe consider return post", to which ES replied "Not yet". The Crown case was that this was a suggestion that they abandon taking delivery of container TTNU.
The appellant was also in contact with the broker and DS that day with regards to container TTNU (and another container FSCU). At 11.50 am, the appellant sent a SMS message to DS advising him that container FSCU would be delivered the next day, but that container TTNU had still not been cleared. At approximately 12.45 pm, DS passed that information onto ES. However at 1.45 pm, the broker sent an email to the appellant advising that both containers had been cleared. At 2.02 pm, the appellant sent an email to DS advising that both containers were "done with customs".
At 3.04 pm, ES called the appellant and had the following conversation, in which, the Crown asserted the appellant informed ES, in a coded manner, that both containers had been cleared:
"LW: Um...oh now also my dad got his test results back too and they were all clear so...
ES: your, your dad got his test results back?
W: yep
ES: yeah, what 'd they say
LW: clear, so...
ES: what? On both or on... on both his nuts?
LW: so he's back at work tomorrow
ES: on both his nuts?
LW: he's back at work tomorrow. His prostate.
ES: on both his nuts or just one?
LW: yeah, yeah
ES: Fuck! So he can start rootin again?
LW: huh?
ES: he can start rooting again
LW: pretty much yeah, so he's back at work tomorrow."The Crown case was that the appellant's reference to his "dad" in this conversation, and the conversation on 9 August 2008 ("My dad hasn't told me how the horse went yet", at par [54]) were coded references to the containers.
That night, at 9.13 pm, ES sent a SMS message to Ibrahim Jidah saying "Day off 2mrw". Ibrahim responded approximately an hour later saying "What u mean". Shortly after that ES called Ibrahim and they arranged to meet. It was the Crown case that ES, having received confirmation that container TTNU had cleared Customs, was mobilising a team to assist in moving the drugs once they were unpacked from the container.
The following morning, Wednesday 13 August 2008, at 8.43 am, Ibrahim Jidah sent a SMS message to his brother Yousef Jidah saying "Take day off".
The Crown case was that by the afternoon of Wednesday 13 August 2008, ES believed that things were going well with the container. Just after 4 pm, he sent a SMS message to the appellant saying "... the other horse seems fine you must be a very lucky man". The Crown asserted that the "other horse" was a reference to container TTNU. ES and the appellant then exchanged a series of SMS messages in which, the Crown asserted, they joked about having successfully effected the importation of the drugs undetected:
"LW: Yeah yeah early days yet...Behind the scenes though I've
been working my ring off n pulling tricks
ES: Yeah right
LW: You'll see my friend
ES: What do you mean
ES: What?
LW: All good. I'll show you my tricks when I'm back
ES: Kinky
LW: I am my friend, these shows over here have taught me a lot."At 6:44 pm, after Yousef Jidah's courier van had left the auction house with the boxes, ES telephoned the appellant. The Crown case was, that in this conversation, ES and the appellant continued to joke and express relief:
"ES: kinky your tricks eh, you've learnt to kinky your tricks have you?
LW: Uh l do my best
ES: how about I fuckin teach you a few when you get back, don't worry about that
LW: yeah (laughs) as long as you're happy
ES: we've gotta move you out of the beginners circle
LW: uh? (laughs)
ES: we've gotta move you out of the beginners circleLW: Yes I knowES: Hey listen I've gotta bit of money left over on my credit
card, do you want me to book you a flight back?LW: You wanna have a bet on Danehill's smile, don't ya?ES: Oh fuck, I'd rather fuckin' see you than see a horse race,
dickhead. LW: I'll leave it up to you my friend. ES: Honestly its up to youLW: I'm goin; its up to you ES: Fuck man, I'm being seriousLW: So am I....ES: Do you want to come back now or do you wanna wait 'til
Monday?
LW: I don't reckon I can 'til Monday man, I'm dyin' here. I've been here ten days
ES: And you can't change it again with Jetstar?
LW: No, no, uh just leave it, I'll wait. See how things go anyway
ES: Alright
LW: Probably better to guts it out
ES: Yeah
LW: See how we go ...
ES: everything's all right here with the horses
LW: yeah?
ES: yeah definitely
LW: yeah?
ES: yeah fuckin surprised
LW: so am I."It was the Crown case that the appellant's comment "I'm dyin' here. I've been here ten days" demonstrated that the appellant did not want to be in Thailand, but only remained out of the country to distance himself from the importation and to enable him to be able to deny any knowledge that his warehouse was being used to unpack the drugs in the event that the consignment was under surveillance.
At 6.54 pm, ES called the appellant again, and, on the Crown case, continued to express relief that everything was going according to plan:
"LW: You seem a lot happier ES: Fuck wouldn't you be? LW: (laughs) I dunno ES: no? LW: I dunno ES: Why not?
LW: I dunno because... Haven't they always heard of the... ah what's the saying um, not over til the fat lady sings
ES: It's already sung LW: has it? ES: Yeah
LW: (laughs) fair enough ES: Got nothing to be upset about
LW: huh?
ES: There's nothing to be upset about LW: I'm not upset
ES: If she's still gonna sing, she's gonna sing a fuckin - singin a long tune
LW: (laughs) ES: (laughs)
LW: You 're a lucky man my friend
ES: No. I dunno what the fuck happened there but you, you know even the fuckin studs on that horse...
LW: Yeah?
ES: ... like not even one of the fuckin nails was out of it, like it was still all locked in
LW: Yeah?
ES: Yes. So fuckin I dunno LW: (laughs)
ES: Oh you got too many copper mates mate LW: Nah, nah, I...ES: (laughs)."The Crown asserted that "studs" and "nails" on "that horse" referred to ES's surprise that the drugs were apparently still intact when located in the container.
Shortly after that conversation, Ibrahim Jidah detected that the van his brother was driving was being followed. As noted in par [20] above, ES instructed Yousef Jidah and Ibrahim to abandon the van and its contents, after which a decision was made to retrieve the van and unpack the drugs. Whilst these events were occurring, the appellant was still in Thailand and unaware of the situation that was unfolding in Sydney. The appellant sent a number of SMS messages to ES on the evening of 13 August 2008 regarding flights back to Sydney, which remained unanswered, DS having been arrested at 8.22 am on 14 August, and ES at 12.15 pm.
The appellant sent the following SMS messages on to ES and DS on 14 August 2008:
"10:39 am - to ES: Did you get me out of this place yet!
10:59 am - to DS: I'm dying here! My travel agent in Sydney can arrange everything... 12 days in phuket is a long time.11:10 am - to DS: Roughly when do you think both containers will be empty? Cause customs held us up the daily fee's r pretty big. No rush, just
got to let Mike know.11:20 am - to ES: This virus is killing me man, I'm dying from the humidity. I can't hold any food or drink down.
11:40 am - to ES: Don't worry bud, I'll just try n change my flights with jetstar. I'm just exhausted from the heat n can't get over this virus, it's fucked
12:03 pm - to DS: Can you please move the old stock of rice toonies ...
9:51 pm - to DS: Hey mate, u ok?"It was the Crown case that those SMS messages put beyond question that the appellant stayed in Thailand at ES's insistence, and that he made no plans to return to Australia until ES advised that he should.
The appellant's evidence at trial
The appellant gave evidence at trial. It was his case that he had no knowledge of the pseudoephedrine imported or unpacked in his warehouse. He denied that he agreed with ES that his container could be used for that purpose, or that he knew or believed that ES was going to arrange for drugs to be secreted in the container while ES was in Thailand. The appellant gave evidence that, although he had no knowledge of the pseudoephedrine that was imported (or the plans to import it), he was aware that ES was intending to bring "something" into Australia without his knowledge. The appellant gave evidence that it was just "very unfortunate" that drugs were in his container.
It was part of the appellant's case at trial that he would not have knowingly imported drugs because he knew that most, if not all, of his previous containers had been examined by Customs.
The appellant gave evidence that, without his knowledge, Royale Colourstones had taken over from his usual supplier in Thailand, SS Intertrade, and sent him the goods he had previously ordered from SS Intertrade. The appellant denied that he provided his details to Royale Colourstones or that he paid them any money, or communicated with them as part of an arrangement pursuant to which drugs would be put inside his container.
The appellant gave evidence that as a result of his conversation with ES at 8:27 pm on 8 August 2008 (at par [49] above), he had suspicions that ES was bringing something into Australia in his container, such as building supplies, to evade tax liabilities:
" ... If [ES] was to bring stuff into Australia, he was doing it to save on tax purposes. If he was to bring in tiles or what not (for his house job site in Glenorie), if he used my container as a carrier service he wouldn't have to pay taxes on the goods he was bringing in, but I didn't know."
The appellant gave evidence that he rang back to warn ES that "whatever was coming in this container ... was going to be found". The appellant gave evidence that he subsequently allowed the container to be delivered to his warehouse because his concerns were "just a theory in [his] head", and by the time it was unpacked, he "just assumed that everything was going okay now ... [ES] hadn't talked to [him] about those sorts of things...".
With regards to what the Crown asserted were coded references to container TTNU, the appellant asserted that they were legitimate conversations relating to the horses he and ES managed and co-owned. For example, the calls and SMS messages between the appellant and ES on 5, 7 and 11 August 2008, the appellant asserted, concerned the sale of their horses "Rich Hussey" and "War Stories", and not container TTNU. Similarly, the appellant gave evidence that the SMS messages on 8 and 12 August regarding ES's stress and the people "giving [ES] grief" were references to debts ES owed. The appellant gave evidence that ES had told his creditors that the appellant was the reason he (ES) had not settled his debts, and so ES's entreaties to him not to come home to Australia were in the interests of protecting him. With regards to the SMS message sent on 12 August "maybe consider return post", the appellant gave evidence it was meant for his father, not ES.
With regards to the conversation on 12 August 2008 in relation to his father's prostate and the "all clear", the appellant gave evidence that it was another unfortunate coincidence that he used the expression "all clear" approximately two hours after he was told by the Customs broker that both containers had been cleared by Customs.
With regards to the SMS message from ES on 13 August 2008 saying "you must be a very lucky man", the appellant gave evidence that these related to a decision to bet on a horse, and did not relate to the safe arrival of the drugs.
The appellant gave evidence that, in the telephone conversation with ES on the evening of 13 August 2008, he was "basically telling [ES] 'mate, if you've done something wrong, if you've got something to do with my container', I knew my containers had been searched, there was no question about it, there was no way this was the end of it if he had something to do with my container" and "I was just saying that you've got away with it mate. Good luck to you. I don't know what you've got away [with] but so be it".
Ibrahim Jidah and Yousef Jidah's role in the importation
Ibrahim Jidah was charged with two counts under the DMT Act. The first alleged, contrary to s 25(2), that between 12 and 14 August 2008, he supplied a large commercial quantity of pseudoephedrine (Count 6). In proof of the second count (Count 7), the Crown alleged that between 12 and 14 August he attempted to possess a precursor, being pseudoephedrine, intended for use in the manufacture of a prohibited drug, contrary to s 24A(1). Yousef Jidah was charged with identical offences (Counts 8 and 9), with the exception that the dates in relation to the offence contrary to s 25(2) (Count 8) were particularised as being between 13 and 14 August.
Ibrahim Jidah and ES had been friends for a number of years, sharing a mutual interest in racehorses and racing. In written submissions on appeal the Crown described Ibrahim as ES's "trusted lieutenant". It was the Crown case that Ibrahim played an organisational and overseeing role and liaised closely with ES during the supply phase. It was the Crown case that Ibrahim recruited his brother, Yousef Jidah, at least five days prior to the initiation of the supply phase.
The Crown alleged that Yousef Jidah's role was the lowest in the (known) hierarchy of offenders, but he was nonetheless indispensable. His role was to transport the boxes of drugs in his courier van. He met with Ibrahim Jidah and ES to receive instructions, followed Ibrahim's instructions, and was responsible for moving the boxes thought to contain the drugs, while Ibrahim acted as a lookout.
At 12:14 pm on 13 August 2008, about 30 minutes before container TTNU was delivered to the warehouse, ES called Ibrahim Jidah and they had the following conversation (emphasised words were spoken in Arabic):
"ES: Do you remember when we went and did that concrete job at, um, for (ind) brother?
IJ: YeahES: How many cement bags did we pick up, one or two?IJ: Wasn't it, wasn't it three?ES: Three?IJ: YeahES: Are ya sure, man?IJ: It was - yeah, it was three. ES: Three million?IJ: I'm pretty sure. I can confirm it with my mate, 'case he was
there with us.
...IJ: Is everything under control?ES: Yeah it is ... I thought it was two. ...IJ: Yeah. No bro, I'm pretty sure it was three, man!ES: Alright, no worries. IJ: Alright?ES: Alright then."The Crown alleged that the reference to "three million" referred to the number of tablets in the shipment (being 2.6 million).
At 3:14 pm on 13 August 2008 (about two hours after the container was delivered to the warehouse), ES had a conversation with DS in which ES asked "did you find them" and "how many?". ES told DS "if there is not 45 call me straight away". Immediately after that call, ES called Ibrahim Jidah and they had the following conversation:
"ES: Oh get ready.IJ: Yeah I'm waiting. ES: What?IJ: I'm waiting. ES: You a bit far from there, bro. IJ: Oh do ya want it, do ya want it pronto?ES: Yeah. Fuckin' oath, 'cause its gotta be pronto. IJ: Yeah alright, bro. Hows it lookin'? Hows, hows the
(indecipherable). ES: Everything's alright."At 3:18 pm, ES again called Ibrahim Jidah and said "You and ya mate come to my old man's". At 3:23 pm, Ibrahim called Yousef Jidah and gave him instructions on how to get to "my mate's old man's". It was the Crown case that ES met with Ibrahim and Yousef at ES's "old man's" house at Rooty Hill to give them final instructions regarding the collection and movement of the boxes.
As above, at par [18]-[19], it was the Crown case that the arrangements were then for DS to deliver the 45 boxes from the warehouse to the auction house where they would be collected by Ibrahim and Yousef Jidah. The boxes were then to be transferred into Yousef's van, with Ibrahim travelling close by in another vehicle providing counter surveillance.
At 6:15 pm, DS telephoned ES and informed him that "they" were not there. At 6:15 pm, ES telephoned Ibrahim Jidah and said "My mate's waiting for ya". Ibrahim responded "yeah, we're there". As described at par [19] at 6:15 pm, police observed Yousef Jidah's van enter the car park at the auction house, and that Ibrahim's vehicle was parked a short distance away.
A large number of boxes including, on the Crown case, the 45 boxes containing the drugs the subject of the importation, were then loaded into Yousef Jidah's courier van. At approximately 6:30 pm, police observed Yousef's van leave the auction house with Ibrahim Jidah's vehicle following. At 6:31 pm, ES telephoned Ibrahim. They had a conversation about a vehicle that had been overloaded so much that it was "scrubbing". The Crown case was that this conversation was a joke referring to the large quantity of boxes loaded into Yousef's van.
As above at par [20], just after 7.00 pm, Ibrahim Jidah detected that he and Yousef Jidah were being followed. At 7.10 pm, Ibrahim called ES and they had the following conversation:
"IJ: I believe they are following us, man!ES: Why?IJ: Because there is a car that was parked in front of
Yousef's house that has been following us since we have left.
ES: Um, are you fucking with me or what?IJ: No, it's the truth bro. ES: Is there something inside them?IJ: What do you mean is there something inside them, we
haven't left yet!
ES: What sort of car?
IJ: The car is a white van. ... It kept following him then
and then he just done a u-turn around and around and he
parked out the, er, in front of him. ES: In front of his house?IJ: Yeah. ...IJ: Yeah, what are we going to do?ES: Get him to drive his car ... IJ: YeahES: Get him to drive his car and drive on then see if it's going to
follow him. IJ: Yeah, alright. ES: You stay where you are but. IJ: Yeah, alright. Alright, bye."Police then observed Ibrahim Jidah's vehicle driving erratically and at high speeds in the suburban streets of Blacktown, apparently chasing various vehicles that he believed were conducting surveillance. Around that time, Yousef Jidah asked Ibrahim if he should approach a vehicle that they suspected of following them and ask "what he is doing".
As described at par [20] above, Ibrahim Jidah and ES then had a series of conversations in which ES instructed Ibrahim to tell Yousef Jidah to abandon "the car and everything":
"ES: Well, get him to leave it. IJ: The car and everything?ES: Pardon?IJ: The car and everything?ES: What can we do, bro! Its better than him getting caught
with it now. IJ: I tell you what, if he goes home and parks it at the back
they would say that the job is over and he was going to do it tomorrow, that's it.
ES: And why would they think so? No man, they would not
think so. IJ: What then, should he leave the car and go?ES: He should leave it and call Farid. IJ: Yeah alright."As described at par [21] above, around that time, Ibrahim and Yousef Jidah had a series of conversations where Ibrahim gave Yousef the following instructions:
"You are going to take the car now to a place where there is an underground carpark ... in Westmead somewhere ... take it from, where you are at the back and see what they would do, and don't go, don't go, just come straight out."
And shortly after that:
"Once you arrive there park the car and get out of it then call me, I will pick you up. Leave it there somewhere .... Park it in a good spot where no one can see inside it."
As above at par [21], at around 7.30 pm police observed Yousef Jidah's vehicle drive into the Westfield shopping centre at Blacktown. At around that time Ibrahim Jidah called Yousef and instructed him "Don't let them see how you look like ... Leave it, leave it and go. Pretend that you're going towards the shops or something."
Shortly after that Ibrahim Jidah collected Yousef Jidah and they met with ES.
It was the Crown case that, later that night, Yousef Jidah retrieved the van and drove it and the boxes back to the appellant's warehouse. Listening devices installed inside the container (which remained in the warehouse) recorded Yousef and DS's voices sometime after 10 pm. They did not discuss anything of consequence but were relied upon by the Crown to prove Yousef's presence at the warehouse. Yousef then continued to conduct counter surveillance around the warehouse and, just after 11 pm, told Ibrahim Jidah over the telephone that he was "still doin' laps around the area".
Yousef Jidah collected Ibrahim Jidah around 6 am the next morning, 14 August 2008, and travelled to the warehouse. It was the Crown case that Ibrahim acted as a lookout while Yousef and others unpacked the boxes. Ibrahim maintained telephone contact with ES during this time. Ibrahim and Yousef were arrested around 8.22 am.
Ibrahim Jidah and Yousef Jidah's evidence at trial
The issue of dispute at trial was Ibrahim and Yousef Jidah's knowledge of the contents of the boxes.
Ibrahim Jidah gave evidence. It was his case that he was unaware that there was pseudoephedrine in the boxes in the container, or in the boxes in the van. His case was that he was set up by ES.
He gave evidence that he was friends with both ES and the appellant, and that from time to time he did jobs for ES for which he was paid cash. On three or four occasions he helped the appellant with unloading containers, stacking boxes on pallets and delivering them.
In relation to the telephone calls and SMS messages exchanged between Ibrahim Jidah and ES and Ibrahim and Yousef Jidah, it was Ibrahim's case that they did not demonstrate any knowledge of pseudoephedrine. In evidence in chief, Ibrahim gave evidence that he initially thought that ES was stealing the contents of the container from the appellant. Once Ibrahim suspected they were being followed and ES encouraged them to abandon the van, saying "Its better than him getting caught with it now", Ibrahim "realised it was more than juices and noodles" and began to suspect that there may have been guns in the container. Ibrahim gave evidence that when he met with ES that night, ES seemed unconcerned with what had transpired that evening, and that this allayed his fears as to the type of contraband which may have been in the boxes.
Ibrahim Jidah's case was that he drove in a vehicle separate to his brother Yousef Jidah, not for counter surveillance purposes, but because he had an "unbridled passion" for his car and loved to drive it. Further, his erratic driving at high speeds was to work out what was happening, and why he and Yousef were being followed.
Yousef Jidah did not give evidence at trial. Through his counsel the jury were invited to consider a number of aspects of the evidence as being inconsistent with any knowledge of the drugs in the boxes, including that there was no allegation that he ever handled anything other than taped boxes, which appeared to contain foodstuffs, and for that reason there was nothing that would have excited his suspicions. Counsel submitted that handling boxes for a short period of time without enquiring as to their contents was consistent with Yousef's work as a courier.
Further, it was submitted on Yousef Jidah's behalf that he did not have a relationship with ES, let alone a relationship of trust. In those circumstances, it was submitted, it was unlikely that ES would have disclosed to Yousef the contents of the boxes.
In relation to the intercepted calls on the evening of 13 August 2008 between Yousef Jidah and his brother Ibrahim Jidah, Yousef's counsel submitted that they did not prove Yousef's knowledge of the contents of the containers, but were consistent with confusion, suspicion and uncertainty. Further, it was put that Yousef enquiring of his brother, Ibrahim, whether he should approach the car following them and ask "what he is doing" was indicative of his lack of any concern that they were being followed by police.
DS's evidence at trial
DS met the appellant at a family function ES's parents held around 2007. ES asked DS to work at the appellant's warehouse as, at the time, DS did not have much work from his waterproofing business. He started working there around May 2008.
DS gave evidence that, when he started working at the appellant's warehouse, he was unpacking containers, sorting, moving and wrapping pallets. He gradually began to have more involvement in customers, receiving instructions from the appellant as to who had to pay upfront or who could pay with credit. He negotiated prices with clients.
DS said ES was at the warehouse a fair bit and would order products off him. He said the appellant didn't pay him a wage, more of a commission, which the appellant would work out based on how much product DS had sold.
DS said he at times slept at the warehouse on a blow up mattress because he was having problems with his girlfriend at the time. He gave evidence that the appellant did not like him staying there as it did not look good in front of the customers.
DS said that, once unpacked, the appellant would want the containers to be picked up as soon as possible to avoid paying fees on the containers.
DS remembered the appellant telling him in July 2008 that he was going on a holiday and asking if DS could look after things "like...[he]...had been doing". DS agreed in cross examination that he was left in charge of the warehouse in the appellant's absence.
DS explained SMS messages and phone calls received from the appellant on 1 and 4 August 2008 related to arranging for an empty container to be picked up. DS gave evidence that he asked the appellant for access to his computer on 4 August 2008. However, the appellant said he could use "Cloey's icon" which would give him basic office and internet systems. DS said he did not hear the appellant giving him the password to his computer in the conversation and he never logged into the appellant's computer in his name.
DS said conversations he had with the appellant while he was away related to when incoming stock was to arrive. He said the appellant asked him to chase up his Customs broker about the stock and remind the latter that there was an auction coming up on a Thursday where the stock (if it had come in) could be sold. He said the appellant told him he really didn't want to miss the auctions. DS said he had already arranged for a truck and driver to take the goods to the auction.
DS received multiple SMS messages from the appellant while he was on holiday informing him about the progress of the stock being ready for collection, telling him whether the appellant's Customs broker had any updates, asking him whether DS had any updates from the appellant's Customs broker or could request an update from the appellant's Customs broker and issuing instructions as to what to do with the pallets and who could potentially be a client to sell the products to. In some of the SMS messages, the appellant apologised to DS for the "non stop delays" and "stuffing around". DS recalled contacting Mr Terrance and asking about the containers after receiving a SMS message from the appellant on 11 August 2008 at 3.29 pm asking him to contact Mr Terrance. DS gave evidence in cross examination that he didn't think there was pressure to get the appellant's container released, it was normal for the appellant to be pushing for his goods to be sold. However he did concede that there was some pressure to get the containers released.
On 12 August 2008 at 12.45 pm, ES and DS had a telephone conversation in which the following was said (emphasised words were spoken in Arabic):
"ES: Hello.
DS: How are ya man?
ES: How ya goin' cuz?
DS: Alright man. What's happening?
ES: Not much. What's goin' on?
DS: Nothin' man. I...I just got back home.
ES: Oh did ya finish up there already?
DS: No I I sealed all upstairs where the pool area is.
ES: Yeah.
DS: I'm pretty confident that'll probably stop ninety percent of it.
ES: Yeah.
DS: It was very absorb...very very porous the tiles and the grout.
ES: Yeah.
DS: Um so it- I I gave it a good soaking of this sealer. That should do the trick.
ES: Yeah.
DS: But I'm still gonna go inject it for him on Thursday.
ES: What about the wall?
DS: The wall I couldn't do it because he fuckin' took off on me.
ES: Yeah.
DS: And then I didn't want to go ask the neighbours like fuck I'll just go back on Thursday anyway so...
ES: Yeah.
DS: But the where- I'm confident that ninety percent of the problem was obviously from above it and I sealed all the- I sealed it as best I can. Like 'cause I don't know what's goin' on underneath his barbecue area and where all that stack stain is.
ES: Yeah.
DS: So if water's getting in front there I- it's - I've only got to try and stop it with injection.
ES: Yeah.
DS: But if it's coming in and which it is, a lot of it's coming in from the slab above the car...um that's that's ninety percent I'm confident that that's gonna all be fixed.
ES: Alright.
DS: But about the wall that's probably comin' from the other side or from from upstairs somewhere and it's just tracking down the wall or some'in so...
ES: Alright.
DS: I told I told the - there was some girl there. I said look I'll be back on Thursday just let him know. 'Cause he goes I'll be back in fifteen and then he wasn't so...
ES: Yeah right.
DS: I was there for, I was there for about fuck an hour and a half.
ES: Yeah.
DS: So I did what I had to do anyway and then fuck.
ES: What are you goin' now? Are you gonna do the Ashfield job or not?
DS: Fuck bro. I dunno what I'm gonna do.
ES: What?
DS: I really don't know. I might go to Abs's or might I go to fuckin' Ashfield. I just don't wanna go to Ashfield. I'm gonna cop traffic all the fuckin' way back.
ES: Cuz!
DS: What? No seriously mate this bitch has done me head in today but I swear to God I'm just fuckin' pissed off bro.
ES: Which bitch?
DS: Ah this fuckin' bitch. I'm fuckin' spewing mate. Fuckin'...that one up the fuckin' road. She's done my fuckin' head in bro.
ES: What's wrong?
DS: Nothin'. She's just a fuckin' whingin' fuckin' slut.
ES: What's she want now?
DS: Uh?
ES: What's she want?
DS: Nothing she's just fucked. They're just fucked bro. I just want nothing to do with 'em.
ES: Fuck 'er off!
DS: They just whinge. I do bro. We are. I did but fuck! They still do your head in. Fuckin'...and then I came home.
ES: Oh (ind) you know what, you know how the saying goes.
DS: What?
ES: Don't shit in your own backyard.
DS: Fuck I didn't shit in my own backyard. Look at it this way.
ES: You did a long time ago and you're coppin' the shit now.
DS: Oh-hh. [LAUGHS] Come on bro. Don't don't fuckin' stress me out.
ES: I'm tellin' ya. That's the way to say go (ind) it's true. Don't shit in your own backyard.
DS: Mmmm.
ES: You (ind) after a while.
DS: Fuck off bro. I don't do that shit.
ES: Ah-hh.
DS: But anyway...what are you doin'?
ES: Nothing. You spoken to our mate today?
DS: What?
ES: Have you spoken to our mate today?
DS: [COUGHS] Yeah.
ES: And no good?
DS: Ah same same fuckin' shit. Same as yesterday.
ES: They did not say today, hey?
DS: What?
ES: They didn't say today eh?
DS: I can't hear you?
ES: They didn't say today eh?
DS: Yeah.
ES: They did?
DS: But fuckin' ...first one is coming - the last one's coming first.
ES: Yeah.
DS: And maybe the second one maybe not so...
ES: When today?
DS: Ah tomorrow. Late tonight or tomorrow.
ES: They're not sure about the second one yet?
DS: The first one?
ES: Yeah they're not sure about it?
DS: Nuh. They're still trying to get it cleared or some'in.
ES: That's funny as.
DS: Yeah so...may as well just scrap that one.
ES: Hh-hm.
DS: [LAUGHS] D'you know what I mean? Just forget about it. Fuck! I reckon but anyway we'll just keep goin'.
ES: Righto.
DS: See what happens. Have a laugh. I don't know.
ES: Ah what time's Mike gonna let you know?
DS: Umm he's not. I didn't speak to him.
ES: You didn't?
DS: Umm actually I did this morning but he just gave me the same answer as what's his name did.
ES: Yeah?
DS: So...yeah. [COUGHS] Anyway it's all good.
ES: (ind overtalk)
DS: [COUGHS] What?
ES: Bit of a fuck around.
DS: Yeah. But anyway all good. I told him I'll be back there on Thursday and I'll finish it and blah blah blah.
ES: Yeah.
DS: So...anyway.
ES: Alright no worries.
DS: Alright. I'm, I'm just at home now. I might go for a drive to Ashfield fuck.
ES: No worries.
DS: Alright cuzzie.
ES: I'll talk to ya later.
DS: If you come this way give us a call.
ES: I will.
DS: Alright. See ya."DS gave evidence that the above extracted conversation concerned a waterproofing job he did and his girlfriend. Whilst that may explain the first part of the conversation, it does not explain the latter part of it, particularly where DS says, "...may as well just scrap that one".
On 13 August 2008 at 11 am, DS received a SMS message from the appellant saying "If any stock is missing from either container let me know so I can contact the supplier. Thanks mate.". DS said this was not an unusual request.
On 13 August 2008 at 1.50 pm, DS received a telephone call from the appellant in which DS told the appellant both of the containers were at the warehouse, one inside and one outside.
Later that day at 3:14 pm, DS and ES had a further telephone conversation in which the following remarks were made (emphasised words were spoken in Arabic):
"DS: Uncle Samiry?
ES: Yeah mate.
DS: Fuck me dead, mate.
ES: What's up?
DS: Nothin', man. Fuckin' my back's hurting.
ES: Good. Did you find them?
DS: Yeah.
ES: Yeah, all of them? How many?
DS: [COUGH]
ES: Forty-five?
DS: Thirty-two? Thirty-two?
ES: Uh?
DS: Thirty-two?
ES: That's not right, is it?
DS: Thirty-two and four in each one [PAUSE] so far.
ES: So is there still?
DS: What?
ES: Is there still?
DS: I dunno, I can't see anything.
ES: What do you mean you can't see anything?
DS: Because it's all...
ES: Uh...
DS: ...At the bottom.
ES: Alright.
DS: Like all, we took all the noodles out. That was the...
ES: Yeah, so there is still?
DS: Yeah.
ES: If it's four then there must be forty-five.
[PAUSE]
ES: Oi!
DS: There is thirty-two.
ES: Forty-five square metres.
DS: Alright.
ES: Alright?
DS: Alright.
ES: How long do you need?
DS: Uh not long.
ES: Alight then.
DS: Eh...
ES: If there is no forty-five call me straight away.
DS: Twenty-four?
ES: Forty-five.
DS: Okay.
ES: They have to be...
DS: Okay.
ES: Make sure.
DS: Alright.
ES: Bye.
DS: Bye."DS explained that this conversation was talking about the boxes ES had earlier told DS he had already presold. However, he said in cross examination that he was not paying attention in that phone call as he "was all over the shop", tired, puffing and working. DS said when he said, "Thirty-two and four in each one [PAUSE] so far" he was just making that up, lying to ES to try and get rid of him. He denied it was referring to the fact that four packets of tablets were found in each box.
DS had another telephone conversation with ES on 14 August 2008 at 6: 55 am. The following exchange took place (emphasised words were spoken in Arabic):
"DS: Good morning mate.
ES: Good morning cousin.
DS: How are you going?
ES: What's going on, mate?
DS: Not much, mate...
ES: Alright?
DS: [COUGHS] Yeah so far.
ES: Not one?
DS: What?
ES: Not one?
DS: Nothin' yet.
ES: How many more, how many more have you got to go?
DS: Forty-three, forty-two.
ES: What? You have forty-three metres to go?
DS: Yeah.
ES: What you just started?
DS: What?
ES: You just started?
DS: Oh about an hour ago, had dramas, one fuckin' one square metre fuckin', one square metre fuckin' gave me dramas 'cause it fuckin' broke apart, the fuckin' anyway.
ES: 'Cause they're probably gonna be there soon.
DS: Mate, I'm not even at the fuckin' job yet. This happened yesterday.
ES: Yeah?
DS: Yeah, I'm not even at the job yet. I don't even know if I'm gonna fuckin' go there.
ES: Why?
DS: What?
ES: Why?
DS: 'Cause I dunno man, I don't feel good today yeah. I might just have the day off.
ES: [LAUGHS]
DS: Alright, I'll call you back soon, I'm just havin' a coffee.
ES: Alright mate.
DS: Alright?
ES: Alright then.
DS: Bye."DS gave evidence that, in this conversation, he was lying to ES to "get rid of him" because he didn't like working early in the mornings. He said he thought the references to "Forty-three" and "Forty-two" were something to do with a courier coming to pick up ES's presold boxes. He denied in cross examination that he was deliberately using "code" by using the term "square metre". He denied the reference to "one square metre fuckin' gave me dramas 'cause it fuckin' broke apart" was a reference to a broken box or packet.
DS gave evidence that at 8 am that day, 14 August 2008, Yousef Jidah, the courier, arrived and went to the toilet in the warehouse. DS started to load "the boxes that were" ES's when one of the fruit juice boxes broke open and white pills spilled on the floor. He said he swept them or scrapped them up and put them back in the box they had come from. He looked at the pills for identification such as having "Panadol" written on them but could not see anything on the tablet. He kept one aside next to his mobile phone to ask the appellant about it. He was intending to call the appellant in a couple of hours to ask him about it. However, he then had a cigarette and was arrested whilst smoking. In cross examination, DS said he never opened the 45 boxes that he understood were ES's. He also could not explain how one of the tablets was found downstairs in the toilet area.
The directions to the jury
Because of the way the case on Ground 1 of the appeal was put, it is important to have regard to the directions made to the jury on each count.
The written directions
The jury was provided with a document in respect of each count which set out the elements of the offence that the Crown was required to prove beyond reasonable doubt.
In relation to the importation count, the document identified five elements. Element one stated that the Crown was required to prove that the appellant "did intentionally import the substance (tablets) which was in the 45 boxes (whether or not he knew of the precise nature of the tablets)". The written direction stated that the appellant "will have 'meant' to import the substance (tablets) if he knew or believed the substance (tablets) was inside the container when he imported it".
The second element of the offence the Crown was required to prove was said to be that the boxes contained pseudoephedrine, a border controlled precursor. The document explained that as a matter of law pseudoephedrine was such a precursor.
The third element which the document stated the Crown was required to prove was that the quantity of pseudoephedrine in the boxes was not less than a commercial quantity.
The fourth element was described in the following terms:
"That at the time of importing the boxes, the accused either:
(a) knew or believed that the boxes contained a substance of the type that was a border controlled precursor, or:
(b) was aware of a substantial risk that the boxes contained a substance of a type that was a border controlled precursor and in the circumstances known to him it was unjustifiable for him to take the risk that the boxes contained a substance of that type."The final element which the written directions stated the Crown was required to prove was that the appellant imported the substance in boxes either:
"(a) intending to use any of the substance to manufacture a controlled drug, or;
(b) believing that another person intended to use any of the substance to manufacture a controlled drug."The written direction pointed out that if the Crown established the other elements then the appellant is taken to have imported the substance with that belief unless he proves to the contrary (this was a reference to the provisions of s 307.14 of the Code).
The written directions identified three elements that the Crown was required to prove to establish the supply count. The first element identified was that the appellant knowingly took part. In that context, the direction stated that the Crown was required to prove, in respect of the appellant, that he knowingly provided the premises (the warehouse) in which those involved in the enterprise attempted to possess a prohibited drug for supply. The direction pointed out that "knowingly" meant with knowledge of what it was that the appellant was taking part in but that it was sufficient for the Crown to establish a belief by the appellant that he was taking part in the supply of a substance of the type that was a prohibited drug.
The second element was described as taking part in the supply of a prohibited drug. The written document explained the meaning of supply and possession and stated that pseudoephedrine was a prohibited drug.
The third element referred to was that the Crown was required to prove that the quantity involved was not less than the commercial quantity.
The summing-up and the jury deliberations
Early in his summing-up the trial judge stated that to establish the importation count the Crown had to prove that the appellant intentionally imported "the substance, the tablets" whether or not he knew of the precise nature of the tablets. He pointed out that the importation cannot have gone on beyond 8 August 2008 when the authorities seized what was in the boxes. Subsequently, he pointed out that the Crown did not establish the case against the appellant on the importation count if the appellant only possessed the relevant state of mind after the importation ceased.
When first describing the elements for the importation count the trial judge gave this direction:
"Element four - and this you might think - the way the case is being conducted, this is the critical element of this charge you may think. That at the time of importing the boxes the accused either (a) knew or believed that the boxes contained a substance of the type that was a border controlled precursor or (b) was aware of a substantial risk that the boxes contained a substance of a type that was a border controlled precursor and in the circumstances known to him it was unjustifiable for him to take the risk that the boxes contained a substance of that type, a border controlled precursor. You might think that is an element that deals with the requisite state of mind of the accused that the Crown have to prove beyond reasonable doubt."
The trial judge directed that it was necessary for the Crown to establish beyond reasonable doubt that the appellant imported the substance in the boxes either intending to use any of the substance to manufacture a controlled drug or believing another person intended to use any of the substance for that purpose.
The trial judge then summarised the importation count against the appellant in the following terms:
"I know I am repeating myself a bit here but Lachlan Wilson has committed that offence if the Crown establishes beyond reasonable doubt that he (a) intentionally imported the substance, the tablets, in the forty-five boxes, (b) the boxes contained pseudoephedrine, (c) the quantity of pseudoephedrine in the boxes was not less than the commercial quantity and (d) at the time of importing the boxes Lachlan Wilson either knew or believed that the boxes contained a substance of the type that was a border controlled precursor or was aware of a substantial risk that the boxes contained such a substance, a substance of that type and in the circumstances known to him it was unjustifiable to take such a risk, and (e) Lachlan Wilson imported the substance in the boxes either intending to use any of the substance to manufacture a controlled drug or believing that another person intended to use any of the substance to manufacture a controlled drug."
In respect of the supply count, the trial judge pointed out that the Crown first had to prove the appellant knowingly took part in the supply of a prohibited drug. He explained it was sufficient for the Crown to establish belief by the appellant that he was taking part in the supply of such a drug. He explained, in the case of the appellant, the Crown was required to prove that he knowingly provided the premises, namely, the warehouse. He also explained to the jury the extent and meaning of supply.
The trial judge summed-up for approximately two and a half days. At the commencement of the second day of their deliberations, the jury asked for a transcript of the evidence of the appellant.
On the sixth day of their deliberations, the jury indicated they had reached a unanimous verdict on most of the counts but stated that they were undecided on Counts 1 and 3, Count 1 being the importation count against the appellant and Count 3 being a count that DS aided and abetted the importation offence charged against the appellant. The trial judge took the verdicts of guilty on the other counts including the supply count against the appellant and gave the jury a Black direction (Black v The Queen [1993] HCA 71; (1993) 179 CLR 44).
On the seventh day of their deliberations, the jury asked the following questions:
"(1) Is it possible that we come to a guilty verdict on a count 3 and not guilty on a count 1?
(2) Does the accused need to have believed the boxes had pseudoephedrine in them specifically or simply a prohibited substance?
(3) What considerations do we look at to decide if a risk was substantial and if it was unjustifiable to take the risk?"
The trial judge answered the first question "No". In relation to the second question his direction was as follows:
"The answer to that is that the accused had to have the state of mind in relation to a type of precursor and the only precursor that has been - border control precursor - the only one that has been mentioned here is really pseudoephedrine so realistically that is the one you are talking about. But when I say 'state of mind' I am talking about a belief as to whether it was a type of precursor pseudoephedrine or whether the accused was aware of a substantial risk that it was.
You will need to go back to the elements document for that. When you see element 4, the element about the state of mind is that the accused knew or believed the boxes contained a substance of the type that was a border control precursor pseudoephedrine or was aware of a substantial risk that the boxes contained a substance of the type that was a border control precursor and in circumstances known to him it was unjustifiable for him to take the risk that the boxes contained a substance of that type."
The jury subsequently asked the following questions:
"(1) Can we reach a not guilty verdict if we believe one or two of the elements but not all of them?
(2) Regarding Count 1 if element 4(b) is proved, does this satisfy element 1?
(3) On element 4, does it really mean if Lachlan knew or believed his container was being used in some way and there was a risk that it could be the precursor in his trial, and therefore it was irresponsible for him to allow the use of his container?"
His Honour answered the first question "No". In relation to the second question his Honour gave the following direction:
"He has to know generally that he is importing some type of tablet. He does not have to know anything about it really, just that it is some type of tablet, otherwise he cannot be intentionally importing the substance in the boxes. That is as far as that element goes. So when I look at your question, 'If element 4(b) is proved, does this satisfy element 1?' Well you need to consider both elements. The first element is, he has to intend to import some type of tablet. So the second deals with his state of mind at the time he imports some type of tablet and that is the element that relates to him knowing or believing the boxes contain some type of border controlled precursor or, that he was aware of the substantial risk that the boxes contained a substance that was a type of border controlled precursor and in the circumstances, known to him, it was unjustifiable for him to take the risk, et cetera. So that deals with that note."
It is difficult in these circumstances to give any credence to the appellant's explanations of the communications which took place between him and ES and it was certainly open to the jury acting reasonably to reject them. We are satisfied the jury was correct in rejecting these explanations and concluding beyond reasonable doubt that the appellant knew or believed that prohibited drugs were being transported in the container. It does not necessarily follow from that that the jury must have also had no reasonable doubt that the appellant knew or believed he was importing a border controlled substance in his container. To the extent that any residual doubt may be said to exist as to the jury's verdict on the supply count, it is satisfied by virtue of the advantage which the jury had in seeing and hearing the witnesses.
It follows that this ground of appeal is not made out.
(b) Ground 2
The appellant adopted the submissions made on behalf of Yousef Jidah (see Yousef Jidah v R [2014] NSWCCA 270 at [17]-[27]). The only additional submission was that as the same substance was imported it was factually inconsistent to bring the charges. However, there was nothing inconsistent in charging importation of a border controlled precursor and in addition the supply of a prohibited drug as the substance was a border controlled precursor for the importation count and a prohibited drug for the purpose of the supply count. Indeed, it is inherent in the appellant's submissions on Ground 1 (that a conviction on one count and a failure to convict on the other resulted in an inconsistent verdict) that the counts themselves were not inconsistent.
Otherwise for the reasons given in our judgment in relation to Yousef Jidah (Yousef Jidah v R [2014] NSWCCA 270 at [34]-[58]), this ground is not made out.
It follows that the appeal against conviction should be dismissed.
The sentence appeal
The application for leave to appeal is against a sentence of imprisonment for 16 years and 2 months, comprised of a non-parole period of 10 years and 6 months and an additional term of 5 years and 8 months, imposed in relation to the supply count. That sentence was imposed against a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
The appellant was sentenced in accordance with the principles in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.
He relied upon four grounds of appeal:
(1)His Honour sentenced the appellant on an erroneous factual basis, being on a basis inconsistent with the verdict of the jury;
(2)His Honour took into account matters that would have constituted a separate offence for which the appellant was not convicted;
(3)The sentence imposed is manifestly excessive; and
(4)The appellant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender ES.
The first two grounds concern the fact that the jury was unable to agree on the importation count.
The complaint about disparity, as the fourth ground of appeal, is limited to a comparison with the sentence imposed on ES following his plea of guilty on 8 February 2012 to aiding and abetting, counselling or procuring this appellant to import a commercial quantity of pseudoephedrine, a border controlled precursor, contrary to ss 307.11(1) and (2) of the Code. ES was sentenced to imprisonment for 9 years and 11 months, comprised of a non-parole period of 6 years and an additional term of 3 years and 11 months. His sentence was discounted by 40 per cent for his plea of guilty and assistance to the authorities. His appeal against that sentence was dismissed (ES v R [2014] NSWCCA 268).
The facts for sentencing purposes
The Crown case against the appellant on the supply count was that he had made his warehouse available to those who he knew were to exercise control over the boxes containing the pseudoephedrine after the container had cleared Customs, knowing that it was intended the boxes containing the drugs would be isolated and unpacked and the drugs extracted for on-supply.
As concerns the extent of the appellant's knowledge, his Honour was satisfied that he "well knew before" the container arrived in Australia, that is to say well before the container was delivered to his warehouse, that there were prohibited drugs secreted within it. Further, his Honour was satisfied that although the appellant acted at the behest of ES, the principal (with whom he had a shared understanding that the prohibited drugs would be supplied using his warehouse as the receiving and clearing depot), he knew prior to travelling to Thailand on 4 August 2008 of the nature of the overall drug enterprise in the critical supply phase and was aware that in making his warehouse available he would be taking part in the supply of hundreds of kilograms of a prohibited drug.
His Honour made the following additional findings of fact for sentencing purposes:
(a)The appellant's role in providing the warehouse was a critical aspect of the enterprise. It provided a cloak of legitimacy to the importation of the drugs and provided a cover to avert suspicion and detection;
(b)The appellant took active steps to facilitate the enterprise whilst he was in Thailand by deputising DS and maintaining constant communication with DS, ES and the Customs broker;
(c)The appellant was absent from Australia by design, so as to distance himself from the importation but, more particularly, to distance himself from any involvement with the reception of the imported container at his warehouse;
(d)The appellant played a very senior role in the enterprise which involved a substantial level of planning; and
(e)There was evidence of a considerable degree of cooperation between various people, including the appellant, there was "much determination" and he was a senior member of the "team".
The appellant's subjective circumstances
His Honour accepted that the appellant was a person of otherwise excellent character who had contributed a great deal to the community. He also accepted that the appellant was unlikely to reoffend and that he had excellent prospects of rehabilitation, all of which afforded him some basis for leniency.
The sentences imposed on other offenders
In referring to the sentences already imposed upon Ibrahim Jidah and Yousef Jidah (co-offenders described by his Honour respectively as "the escort" and the "van driver") his Honour noted that they each had criminal records which denied them some level of leniency. His Honour also noted that although both co-offenders were sentenced prior to the decision of the High Court in Muldrock v The Queen supra, in his view the non-parole periods (of respectively 10 years and 3 months imposed on Ibrahim Jidah and 8 years and 9 months on Yousef Jidah) were the minimum that could properly have been imposed having regard to the objective gravity of their offending with respect to the supply count, being the same supply in which the appellant was knowingly involved. This appellant does not complain about any disparity with the sentences imposed on either Ibrahim Jidah or Yousef Jidah, although they complain that their sentences give rise to a justifiable sense of grievance when compared to the sentence imposed on this appellant and DS (see Ibrahim Jidah v R [2014] NSWCCA 269 and Yousef Jidah v R [2014] NSWCCA 270).
Ground 1: His Honour sentenced the appellant on an erroneous factual basis, being on a basis inconsistent with the verdict of the jury
Ground 2: His Honour took into account matters that would have constituted a separate offence for which the appellant was not convicted
In large part, the submissions in support of the first two grounds of appeal depend upon the submission that the verdict on the supply count, and the jury's lack of unanimity on the importation count, must be taken to mean that they were satisfied that the appellant only formed the requisite state of mind with respect to the pseudoephedrine he was knowingly concerned in supplying after 8 August 2008 (that is to say after the container arrived in Australia), and that his Honour was in error in finding that his knowledge preceded that date.
That submission was also advanced in support of the appeal against conviction. For the reasons we gave in dismissing the appeal against conviction at par [167]-[172] above, we are satisfied that the evidence at trial amply supported a finding that the appellant's state of mind as to the contents of the container preceded the date of its arrival in Australia. Accordingly, we are satisfied that the appellant's knowing involvement in the supply of pseudoephedrine he believed to be in the container, also preceded that date.
Because there was no necessary finding embedded in the jury verdict as to when the appellant knew (or believed) that the container was to be delivered to his warehouse, it was a matter for the trial judge when sentencing to consider that question for sentencing purposes referable to the evidence led at trial (see Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1), as it was for his Honour to make other findings concerning the appellant's conduct as a person who had knowingly participated in the supply of a large commercial quantity of prohibited drugs referable to that evidence. In so doing he was constrained only by the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 such that he could not take into account any part of the appellant's conduct that would have warranted him being convicted on the importation count. His Honour said:
"I am required to find facts which are consistent with the verdict of the jury and also in this case facts which do not offend the principle of De Simoni. As I said, I am mindful that the alleged importation offence upon which the jury could not agree had a specific mental element, particularly as to the nature of the drug."
His Honour made no finding that the appellant knew or believed that what was in the container was a border controlled precursor or that he intended to use, or believed that another person intended to use it to manufacture a border controlled drug.
In oral argument on the appeal, the De Simoni principle was said by the appellant's counsel to have been breached by his Honour's consistent reference to "the enterprise" when describing what he referred to as the appellant's "active steps" in "the enterprise" and what he described as the critical and senior role he performed in the notional hierarchy of offenders in "the enterprise", since in so doing he could only have been referring to "the enterprise" as the importation. That being so, it was submitted that the appellant was sentenced for conduct integral to the importation of the drugs when he was not criminally liable for that conduct.
Were the various interrelated findings of fact, summarised in par [184](a) - (e) above, referable only to what the Crown alleged to have been the appellant's involvement in the importation count (or relied upon at trial only as proof of that fact) then, consistent with the principle in De Simoni, those findings would not have been available to inform the appellant's criminality for sentencing purposes on the supply count. The evidence was not, however, limited in that way. It also informed the extent of the appellant's knowledge of the use to which his premises were to be put in supplying those drugs, in the sense that it established that he knew a shipping container of drugs from Thailand was to be delivered to his premises upon its clearance through Customs and when that would occur. The fact that he maintained contact with DS to facilitate clearance through Customs was not limited to the successful importation of the container (for which he was not to be sentenced), it also impacted directly on the success of the enterprise in its supply phase for which he was to be sentenced. That evidence also provided a basis upon which his Honour reasoned to the conclusion that the appellant knew that the drugs he was knowingly concerned in supplying would be well in excess of 5 kg, the large commercial quantity of the drug under the DMT Act.
The extent of the appellant's knowledge or awareness of what was to occur in the supply phase is to be distinguished from the case where a person knowingly takes part in a supply of drugs by the provision of premises unaware of the provenance of the drugs; the form in which they are to be delivered; how they might be accessed; or the way in which they are to be handled in preparation for their on-supply. His Honour found that this appellant played a senior role in the supply of the drugs by making his premises available, well knowing the scale of the enterprise that had the on-supply of the drugs as its ultimate objective. For his Honour to have ignored the overall context in which the drugs were to be made available to be on-supplied would have deprived the Court of evidence directly relevant to a consideration of the extent of the appellant's knowledge of the supply in which he was a knowing participant, the circumstances in which he became involved and the role he performed. The extent of the appellant's knowledge of the drug that he was knowingly concerned in supplying, including its provenance, quality and weight, was critical to his Honour making an informed assessment of the appellant's criminal culpability.
It is fundamental to the duty of the trial judge when sentencing to focus on what an offender did in committing an offence, in particular, where the offence involves a large number of offenders, a feature inherent in large scale drug importing and trafficking (see The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270). The task of identifying what an offender did is also an exercise which, as a matter of practical necessity, involves referring to the context in which the particular offending occurred and an offender's knowledge of the surrounding circumstances. To have done otherwise in this case would have given the sentencing exercise an air of artificiality. We do not consider that his Honour's analysis of the appellant's role in the supply has either explicitly or implicitly included what may also have been the role he performed as an importer of the tablets. To the extent that his knowledge of the enterprise and its ultimate objective spanned both the import phase and the supply phase, on a fair reading of the sentencing remarks, it cannot be fairly said that his Honour sentenced the appellant for any offending in the import phase that was not also comprehended by his knowing involvement in the supply of what was imported.
Ground 3: The sentence imposed is manifestly excessive
For the appellant to successfully challenge the sentence for the supply count on the ground that it is manifestly excessive, it is necessary for this Court to be satisfied that the sentence imposed was unreasonable or plainly unjust, having regard to the principle that there is no single "correct" sentence and that judges at first instance should be allowed as much flexibility in sentencing as is consonant with the application of settled sentencing principles and consistency in sentencing approach (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325-326, Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58]-[59]).
Whether the appellant's sentence is manifestly excessive is a conclusion. It is not necessary for any patent error in the sentencing process of the judge's sentencing reasons to be identified; it is the examination of the sentencing outcome that dictates whether it can be shown that the sentencing discretion has miscarried.
For the reasons already discussed in considering grounds 1 and 2, we are unable to discern any error in his Honour's assessment of the appellant's criminal culpability on the supply count, nor anything to suggest that the appointment of his role in the drug syndicate was in error. Neither is it suggested (and nor could it be) that his Honour imposed a sentence contrary to the approach mandated by the High Court in Muldrock v The Queen supra by utilising the standard non-parole period of 15 years for any purpose other than as a legislative guidepost in imposing a non-parole period of 10 years and 6 months.
His Honour also said he would afford the appellant some leniency having regard to his subjective circumstances. It was not submitted on the appeal that the sentence imposed suggested that insufficient weight was given to those circumstances as part of the synthesising of all matters relevant to the sentencing exercise.
We are not persuaded that the sentence imposed on this appellant, against a maximum of life imprisonment and a standard non-parole period of 15 years is manifestly excessive. To the contrary, for the gravity of the appellant's offending as a supplier of prohibited drugs in an enterprise of this scale and design, the sentence was well within the exercise of his Honour's sentencing discretion.
Ground 4: The appellant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender [ES]
In respect of the fourth ground of appeal, it was essentially submitted that despite the different maximum penalties that attach to the importation of the pseudoephedrine as a border controlled drug under the Code and the supply of it as a prohibited drug under the DMT Act (respectively 25 years imprisonment, and life imprisonment, to which a standard non-parole period of 15 years applies), and despite the fact that ES's sentence was heavily discounted for his plea of guilty and assistance, there remains a marked disparity between ES's discounted head sentence of 16 years and 6 months and the sentence imposed on the appellant (ES's sentence being only 4 months longer), such as to give rise to a justifiable sense of grievance.
It was submitted that ES's criminality as the "mastermind" of the importation (the role attributed to him by the trial judge when sentencing), in contrast to the appellant's knowing concern in the supply of the drugs that had been imported (by providing his premises for the purposes of unpacking and distributing the drugs), substantiates his complaint and that this Court should intervene and re-sentence the appellant to correct the disparity.
The principle of parity derives from the fundamental norm of equal justice. In Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, at [28] per French CJ, Crennan and Kiefel JJ, their Honours said of equal justice:
"It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65]:
'Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.'"
(References omitted).
The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders are disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in their subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases, this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be "gross", "marked" or "glaring" (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]).
In Gill v R [2010] NSWCCA 236 at [58], McColl JA (with whom RS Hulme and Latham JJ agreed) observed that an applicant faces considerable obstacles in invoking the parity principle in circumstances where a sentence, said to give rise to a justifiable sense of grievance, was imposed by a sentencing judge who was aware of the sentences imposed on co-offenders and it is clear that the sentence is structured in that knowledge.
In our view, the trial judge, in sentencing, was in an optimum position to assess the differences and similarities in the role both this appellant and ES played in an enterprise in which they occupied positions of seniority in a notional hierarchy of offenders, an enterprise which had as its ultimate objective the supply of hundreds of kilograms of pseudoephedrine. His Honour was also in the best position to take account of such differences in their subjective circumstances as was material to the sentencing exercise in recognition of parity principles.
Relativity in the sentences of this appellant and ES can be explained not only by the senior roles they performed in an enterprise that had supply as its ultimate objective, but by what they did in ensuring its success, despite the differences in the counts upon which they were ultimately convicted. We do not regard such differences in their subjective circumstances, as identified, as having any bearing. Ultimately, we are not persuaded that the appellant's sense of grievance is objectively justified.
Orders
The Court makes the following orders:
(1)Appeal against conviction dismissed.
(2)Grant leave to appeal against sentence.
(3)Appeal against sentence dismissed.
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