Oliveri v The Queen

[2011] NSWCCA 38

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Oliveri v R [2011] NSWCCA 38

Hearing dates:

7 February 2011

Decision date:

10 March 2011

Before:

McClellan CJ at CL at [1]
Buddin J at [71]
Schmidt J at [72]

Decision:

1. Appeal against conviction dismissed.

2. Grant leave to appeal against sentence but dismiss that appeal.

Catchwords:

CRIMINAL - appeal against conviction- Shepherd direction not required on facts - failure to issue s 165 Evidence Act warning did not render the verdict of the jury unreasonable - Edwards direction not required - appeal against conviction dismissed

CRIMINAL - appeal against sentence - sentence was not disproportionate to appellant's criminality - sentence of co-offender did not indicate a lesser sentence for appellant - leave to appeal granted but appeal against sentence dismissed

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act

Cases Cited:

Dhanhoa v The Queen (2003) 217 CLR 1
Edwards v R (1993) 178 CLR 193
Pham v R (2009) NSWCCA 25; 193 A Crim R 190
R v Bartle (2003) NSWCCA 329; 181 FLR 1
R v Birks (1990) 19 NSWLR 677
R v Johnstone (2004) NSWCCA 58
R v Olbrich (1999) 199 CLR 270
Shepherd v The Queen (1990) 170 CLR 573
Webb v The Queen (1994) 1 CLR 41
Wood v The Queen (2001) NSWCCA 228
Zoneff v The Queen (2000) 220 CLR 234

Category:

Principal judgment

Parties:

Antonio Oliveri (appellant)
The Crown

Representation:

Counsel:
G Nicholson QC (appellant)
I Bourke (Crown)
Solicitors:
William Whitby Solicitors (appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2008/5502

 Decision under appeal 

Date of Decision:

2009-07-03 00:00:00

Before:

Williams DCJ

Judgment

1. McCLELLAN CJ at CL: The appellant was convicted of knowingly taking part in the supply of a commercial quantity of pseudoephedrine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is life imprisonment. There is a standard non-parole period of 15 years. The appellant was sentenced to a minimum term of 6 years with an additional term of 2 years imprisonment.

1. The appellant stood trial with three co-accused. The appellant and two of the three co-accused were found guilty. One of the co-accused (Phuong Nguyen) was found not guilty. Another co-accused (Thanh Dinh Phan) had earlier pleaded guilty to importing the prohibited substance.

1. The Crown case was that three cardboard boxes were imported through Sydney International airport, arriving on 14 March 2007. The boxes had come from Vietnam and were addressed to Phuong Nguyen at an address in Tempe.

1. The boxes were x-rayed by customs and when further examined two of them were found to contain pseudoephedrine with a total gross weight of 43.9 kilograms. The police removed the drugs from the boxes and substituted an inert powder to facilitate a controlled delivery. A listening device was also placed in one of the boxes.

1. A police officer, posing as a delivery driver, delivered 3 boxes to the Tempe address. Phuong Nguyen took delivery of the boxes and paid for the freight.

1. Later that day another of the co-accused Kevin Nguyen arrived at the Tempe address. He and Phuong Nguyen placed the 3 boxes into Kevin Nguyen's car and drove off. The police had them under surveillance.

1. Kevin Nguyen drove to the Bankstown Sports Club and after a time left and drove to his home in Bankstown. Later that night he drove back to the Bankstown sports club and met Thanh Dinh Phan. Thanh Dinh Phan was the principal behind the importation. He pleaded guilty.

1. Kevin Nguyen and Thanh Dinh Phan then drove in separate cars to an address in Condell Park where Thanh Dinh Phan lived. They arrived shortly before midnight and the boxes were taken inside Thanh Dinh Phan's home.

1. About 9.00 the next morning a listening device inside one of the boxes picked up sounds which indicated that they were being opened. Just after 10.00 that morning a co-accused, Duc Phan arrived at the Condell Park address. Thanh Dinh Phan was observed carrying one of the cardboard boxes towards the car driven by Duc Phan, after which Duc Phan drove off with another car in convoy. Duc Phan and the other car drove to Duc Phan's house at Greenacre. They arrived at about 10.30 am. Duc Phan then took the box from his car and carried it into his house.

1. At 10.49 the appellant arrived driving a black Holden utility. He reversed into the driveway and at 10.50 am walked towards the front door of the house. About 1 minute later the appellant was observed talking to a female on the footpath outside the house. About 2 minutes later the police saw Duc Phan come out of the house carrying a cardboard box and accompanied by the appellant went to the rear of the appellant's utility. The police gave evidence that they saw the appellant lift the cover on the back of the utility whereupon Duc Phan placed the box inside it and the appellant then closed the cover. About 1 minute later the appellant drove off in his black utility. The police stopped the vehicle and the appellant was arrested. They found a cardboard box containing 32 plastic bags of inert powder which was the powder placed in the consignment by the police as part of the controlled delivery operation.

The case against the appellant

1. The appellant denied knowing that the box had been placed in his utility. He denied lifting the cover on the utility so that Duc Phan could place the box inside the utility. He denied seeing Duc Phan place the box into the utility and denied closing the cover. He claimed that he had come to Duc Phan's house to talk to him about work and that he did not see the box when it was placed in his vehicle.

1. The evidence upon which the Crown relied upon the following circumstances to prove its case against the appellant and in particular "knowledge" that he was in possession of the box which he knew or believed to contain a prohibited drug was:

a. the appellant's arrival at Duc Phan's house shortly after Duc Phan had arrived and placed the box of drugs "into his house";

b. the appellant's action in reversing his utility into the driveway so that the tray section of the utility was closest to the house;

c. the appellant's admitted presence in the driveway next to his utility when Duc Phan placed the box into it;

d. the evidence of two police officers who said that they observed the appellant lift the tonneau cover on the utility, saw Duc Phan place the box into the utility with the appellant next to him and saw the appellant close the cover;

e. the fact that the appellant left Duc Phan's address almost immediately after the box was placed into the utility;

f. the improbability that Duc Phan would have "dumped" a box believed to contain drugs worth about $500,000 into the appellant's vehicle without his knowledge especially in his front yard and in "broad daylight;"

g. the improbability that Duc Phan could have placed the box into the utility without the appellant noticing it;

h. the appellant's possession of a mobile telephone which had been given to him by Duc Phan containing a SIM card registered with fictitious details;

i. the Crown also relied significantly on a portion of an ERISP which the police conducted with the appellant on the day of his arrest. It reads as follows:

"Q168: All right. So you're telling me you didn't put it in there?

A: I didn't put it there, no.

Q169: Okay. Did you know it was in the back of your ute?

A: (There was no answer to this question - after a delay of 8 seconds)

Q170: I'll ask you a different question. Did you see someone else put it in the back of your ute?

A: (After a delay of more than 10 seconds ) I did not put that in the back of my ute. Um, no, I didn't actually honestly speaking.

Q233: Now in terms of picking up the package what were you under the impression that was actually inside that package?

A: Well I didn't know the package was gunna be there today. I didn't - sorry, see I'm getting all confused here.

Q234: No, that's okay..(indistinct)...we're not trying to confuse you.

A: I don't know what I'm fucking talking about.

Q235: Yeah. So you didn't think it was going to be there today?

A: No.

Q236: Okay. Well then - when were you expecting it then?

A: The package?

Q237: Yeah.

A: I wasn't expecting a package.

Q245: Okay. Now you've - were you under the impression that you had tablets? Did he say...tablet?

A: No, they still- I heard...(indistinct)...these other blokes that some - it's a - it's a crushed tablet.

Q246: It's a crushed tablet.

A: That's all I knew it was crushed tablets.

Q247: And you heard this from - from...

A: Oh, the guys. Like guys. Sometimes guys. I don't know, probably these blokes. I don't know. They used to always say something about a crushed tablet.

Q248: Crushed tablet.

A: I don't know what it was.

Q249: Did they say anything more about that?

A: No. No, just there was crushed tablets.

Q250: Did they say what the crushed tablet was for?

A: No.

Q251: Okay.

A: They just said crushed tablet - a crushed tablet, but I don't know what it was.

Q252: Was that of interest to you though crushed tablet if you didn't...

A: I didn't really give a fuck.

Q253: Yeah.

A: You know. I was like more crushed tablet, what the fuck can you do with a crushed tablet. I don't know. And that's honest Chris, you know.

Q295: Okay. Well why - why do you think Hien put the box in there then without telling you?

A: I don't know. You'll have to ask him. I don't know if it's him. You're saying it's him. I don't know if it's him. You know what I mean?

Q296: So you're telling me that you don't even know who put it in there?

A: I didn't see who put it in there.

Q297: Okay. All right. Did you...

A: You know. I saw him open the back but I didn't see him. You know what I mean?

Q298: Okay. When you...

A: Jesus Christ I'm under pressure here.

Q347: All right. This black and silver LG phone how long have you had that one for?

A: A couple of days I think.

Q348: And where did you get it from?

A: Huh?

Q349: Where did you get it from?

A: Hien.

Q350: He - did - he gave it to you ?

A: He said "If I need to call ya this phone will ring and I'll call you on that phone"

Q351: Okay.

A: And I know it's him.

Q352: Did you think it was unusual that he was just giving you a phone?

A: No. not really.

Q353: Well why - why would he give you a phone, like why wouldn't you just - well couldn't he just call you on your personal - on your - on the black phone?

A: Why?

Q354: On the Samsung yeah.

A: (Indistict) ...No, I didn't think it was unusual.

Q355: So Hien just gave you a phone...

A: He didn't give it to me. He didn't say it's mine, it's yours.

Q356: Yeah.

A: Just hang onto this for a couple of days and if I have to call ya I'll call ya. He didn't say it's yours. Here, take it."

j. the inconsistency involved in the appellant's evidence before the jury when he said that he had asked Duc Phan to lend him the mobile phone so that he could use it to contact some clients who owed him money as compared with his answer in question 350 of the ERISP that the phone was given to him by Hien (Duc Phan) so that Duc Phan could contact him.

The appeal

1. The grounds of appeal are as follows:

Ground 1: The verdict of the jury is unreasonable

Ground 2: The trial miscarried by virtue of the conduct of the prosecutor.

Ground 3: The trial miscarried by virtue of the conduct of the counsel appearing for the defence

Ground 4: The trial judge erred in failing to identify facts which constituted an indispensable link in the chain of reasoning towards an inference of guilt of the appellant and the need to be satisfied of those facts beyond reasonable doubt before convicting

Ground 5: The trial miscarried by virtue of the trial judge instructing the jury that a reference in evidence to a person "Harry" or "Hari" could not be a reference to anyone involved in the matter before the court and in failing to adequately answer a jury question raised concerning the matter.

Ground 6: The trial miscarried by the inadvertent provision to the jury with appropriate (sic) extraneous material being transcript of proceedings in their absence on 27 November 2007 (sic) and with transcripts of closing addresses of counsel.

Ground 7: The trial miscarried by the omission of the trial judge to direct the jury that they should scrutinize the evidence of Duc Hien Phan concerning the appellant with great care before convicting the appellant, and to bring to the attention of the jury that in giving that evidence Duc Hien Phan had a particular interest of his own to serve in seeking to avoid responsibility for his criminal actions and seeking to pass blame to the appellant.

Ground 8: The trial miscarried by the omission of the trial judge to direct the jury, concerning the subject matter of lies.

Ground 9: The sentence imposed offends the principal of proportionality as stated in Hore (1989) 167 CLR 348 at 354.

Ground 10: The sentence erroneously treated the appellant as equal in terms of objective criminality with the offender Duc Hien Phan.

Ground 11: The sentence by its severity is manifestly outside the proper exercise of sentencing discretion in the circumstances of the offence and of the offender.

Ground 12: An error in elevating the objective criminality of the appellant.

1. The first ground of appeal pleaded was that the verdict of the jury was unreasonable. Although if made good this submission would result in an acquittal the appellant submitted that there being a miscarriage of justice a new trial should be ordered. Various submissions are made to support this ground some of which are repeated as separate grounds of appeal. I shall deal with each in turn endeavouring not to be repetitive.

1. In my judgment this was a strong Crown case. Although the appellant submitted that the Crown case required a Shepherd direction ( Shepherd v The Queen (1990) 170 CLR 573) to my mind this submission was misconceived. The Crown case depended upon consideration of a number of circumstances to which I have already referred.

1. There was an issue at the trial as to whether the appellant assisted Duc Phan to place the box into his utility. Two police officers gave evidence that they observed this to happen. Similar evidence was given by Duc Phan. The evidence of the police officers was the subject of extensive cross-examination and was discussed by defence counsel in his closing address. In effect the reliability of their observations was challenged. The evidence was discussed by the Crown, by counsel for Duc Phan and by the trial judge in his summing up. There was no doubt that the jury was aware that it must carefully examine the surveillance evidence and determine whether to accept it.

1. At the trial Duc Phan and the appellant took conflicting positions each attempting to exculpate himself. It was a classic "cut throat" case. In these circumstances it may be necessary for the trial judge to warn the jury about accepting the evidence of one co-accused given against another. It was accepted that in the present case that there being no request a warning pursuant to s 165(2) may not have been required. However, it was submitted that s 165 of the Evidence Act preserved the power to give a warning in the present circumstances and that the trial judge erred by not giving it.

1. I do not accept the submission. It would have been patently obvious to the jury that the appellant and Duc Phan were each seeking to escape criminal liability and blame the other. Trial counsel did not ask for a warning and it is reasonable to assume that this position was adopted out of a concern that if a warning was given in respect of one of them it would have to be given in respect of the other. Moreover the matter was clearly not overlooked by counsel as the matter was specifically raised by the Crown Prosecutor. Although in some circumstances a warning may be appropriate care must be exercised to ensure that the warning given does not impair a co-defendant's right to a fair trial ( R v Johnstone (2004) NSWCCA 58; Webb v The Queen (1994) 1 CLR 41). As was made plain in Wood v The Queen (2001) NSWCCA 228 at 22 where the situation is obvious a warning may be unnecessary.

1. The appellant emphasised the fact that at the time he was observed to assist Duc Phan to place the box into the utility he was using a mobile phone, the suggestion being that as a consequence he could not have assisted Duc Phan. The fact that he was using a mobile phone at the relevant time was confirmed by the call records. This fact was highlighted in counsel's address and referred to by the trial judge. However, even if at the relevant time the appellant was using the telephone this would not preclude him from assisting as he was alleged to have done in opening the tonneau and, after the box was inserted, closing it again.

1. The appellant emphasised the fact that in her opening address the Crown Prosecutor said that the appellant went inside Duc Phan's house after he had arrived and then emerged not long after. As it happened this did not accord with the evidence which was given which indicated that the appellant approached the front door but did not go inside. Although an error by the prosecutor I do not consider it to be of any significance. It was a slip which did not affect the legitimacy of the trial.

1. The appellant also complains about a reference in the transcript of the prosecutor's opening address to a "handle type cover" on the back of the utility. Before this Court the Crown suggested that this was wrong and that the reference to "handle" is a simple transcription error and it should have read "vinyl". Whether or not this explanation is correct later evidence made plain that the cover was a soft vinyl type cover. No complaint was made about this slip, if it was a slip, at the trial. Whatever be the true position I am not persuaded that in any way, if a slip was made, it prejudiced the appellant's trial.

1. An assertion was also made that the appellant was disadvantaged by the absence of Thanh Dinh Phan from the trial. It was suggested that there may have been an advantage if he had been cross-examined. However, no application was made for the Crown to call Thanh Dinh Phan and it would seem likely that a tactical decision was made that it would be preferable if he did not give evidence. It was possible that Thanh Dinh Phan would have further implicated the appellant. At the very least it is reasonable to believe that counsel thought this may be the case and for that reason did not seek to have him called.

1. The appellant submitted that the evidence of Duc Phan to the effect that the appellant telephoned him and asked him to collect a package from Thanh Dinh Phan "was essential to the conviction of the appellant." It was submitted that this evidence was an "indispensable link" in the Crown case.

1. I do not accept this submission. The appellant's "knowledge" of the box and its content was to be determined having regard to all of the circumstances. The evidence of Duc Phan was capable of adding to and confirming those circumstances but it was not essential. There was evidence of the two police who said they saw the appellant at the back of the utility when Duc Phan placed the box in it. There was the undisputed fact that the appellant arrived at the house shortly after the box arrived, was standing in the front yard when the box was placed in the utility and departed immediately thereafter, taking the box with him. There were also the inferences as to the appellant's knowledge of the package and its contents which were available from the appellant's ERISP.

1. The indictment alleged an offence to contrary to s 25(2) of the Act involving a commercial quantity, being 1.25 kilograms of pseudoephedrine. Accordingly the Crown was required to prove that the appellant had "supplied" the drugs. The indictment referred to both "commercial quantity" 1.25 kilograms and "large commercial quantity" 5 kilograms, the allegation of "large commercial quantity" being the circumstance of aggravation. The jury's verdict indicated that it found the appellant guilty in the circumstances of aggravation. The evidence that the appellant knew that the package was to contain drugs and was of a significant size made it inevitable that he would be aware that the weight if not 23 kilograms was considerably in excess of 5 kilograms. All of the circumstances lead inevitably to the conclusion that the appellant knew all of the relevant circumstances including the significant quantity of the drug involved.

1. There was evidence that the appellant used a mobile phone which had been registered "in false details." The evidence was that the phone had been given to him by Duc Phan. The Crown submitted that the phone was given to the appellant to facilitate the movement of the drugs and was a circumstance relevant to his guilt.

1. Before this Court the appellant complained that the Crown "sought to inflame the jury to suspicion" by making the submission that the phone was given to the appellant to facilitate the drug transaction. To my mind this submission has no merit. An inference that the phone had been given to the appellant to facilitate his illegal dealings was obvious. The matter was disputed at the trial and arguments were put to the jury to suggest that nothing sinister was attached to the phone. It was simply a matter for the jury to consider.

1. The appellant complained that the prosecutor in his address referred to the fact that the boxes were being carried. There was no evidence that the appellant carried the box. However, the statement was made in relation to the activity in which both Duc Phan and the appellant were engaged in the sense that they were both engaged in the movement of the box and its placement in the appellant's vehicle. I can discern no unfairness in the Crown's address.

1. The appellant submitted that before the Crown could make good its case against him it would have to prove some direct communication between the appellant and Thanh Dinh Phan. To my mind the submission is misconceived. I have related in summary the evidence in the Crown case which implicated the appellant. As with any circumstantial case there may have been many events which were not observed or communications which were not intercepted. The absence of direct evidence of communication between the two was a matter which may have been relevant to the jury's decision but was not a fatal flaw in the Crown case.

1. In any event there was evidence from which the jury was entitled to conclude that the appellant was acquainted with Than Dinh Phan and had been introduced to him at the Bankstown Sports Club. There was also evidence that the two had been seen in conversation.

1. A further submission was made that the evidence of Duc Phan in relation to the relevant events was not reliable. It was asserted that he changed his account on occasions and that some of his evidence may have been concocted. The evaluation of the evidence of the witnesses including Duc Phan and the appellant and others was a matter for the jury. I can discern no flaw in the trial on this account.

1. A somewhat faint submission was made that error occurred when the appellant's ERISP was admitted into evidence. This occurred after objection to its tender had been abandoned by defence counsel and it is not apparent what the appellant's present complaint is or how it is said that the admission of the ERISP caused the trial to miscarry.

1. Ground 2 of the appeal asserts that the trial miscarried by virtue of the conduct of the prosecutor. This raises the slips made by the prosecutor in her opening and final address to the jury. As I have already indicated I am not persuaded that these matters were of any significance.

1. The third ground of appeal directed criticism at defence counsel. However, although criticisms were made it was not argued that the appellant's trial counsel was incompetent (see R v Birks (1990) 19 NSWLR 677). The appellant conceded that this ground alone would not warrant the quashing of the conviction.

1. Having examined the transcript I can discern no decision taken by trial counsel which it could be said resulted in an unfair trial. No doubt throughout the trial forensic choices were available and counsel was required to elect which course to take. However, I am not persuaded that any decision that was taken was such that the appellant should not continue to be bound by the manner in which his defence was conducted.

1. Ground 4 argued that a Shepherd direction was required. I have already indicated my view that this misunderstands the Crown case.

1. The appellant's arguments in relation to ground 5 are at times difficult to follow. It was submitted that the same argument informs ground 1 and ground 5 of the grounds of appeal.

1. When Duc Phan was giving evidence, the record of intercepted telephone calls was referred to. Two calls are relevant to this argument. The first call was made from 0406730146 to Thanh Phan. At a later time another call was made from Thanh Phan to 0406730146. In his second call made at 2:25:05 Thanh Phan is recorded as saying, "Hey Harry, before yeah that's correct, they're all here 32 bags".

1. During the course of Duc Phan's cross-examination, the jury asked for assistance in respect of the reference to Harry in the telephone call. The matter was discussed with counsel in the absence of the jury after which the judge responded.

1. Although the transcript does not fully explain the situation, as I understand the position it was agreed that the "Harry" or "Hari" reference in the telephone call at 2:25:05 had no connection with the trial. However, counsel elicited evidence when Duc Phan was cross-examined that Thanh Phan did refer to Duc Phan as "Harry" on occasion.

1. It was submitted before this Court that the phone call between "Harry" or "Hari" and Thanh Phan indicated a connection between the men relating to drugs. It was submitted that the prosecution deliberately refrained from cross-examining Duc Phan to the effect that he was intimately involved in the drug importation with Thanh Phan because this would have weakened the case in respect of the appellant. It was submitted that if phone number 0406730146 was used by Duc Phan "the phone call would establish his intimate involvement in the importation with Thanh Phan in circumstances which put lie to the suggestion that he was requested by the Appellant to insist upon Thanh Phan to uplift the box".

1. The fundamental difficulty with the submission of the appellant is that his counsel did not demur in relation to the directions given by the trial judge. It was accepted at the trial that there was no evidence to connect phone number 0406730146 with the persons of interest in the trial. If there was any doubt about the matter and counsel had instructions to emphasise a relationship between Thanh Phan and Duc Phan and confine any involvement of the appellant he was not precluded from taking this course by the trial judge's response to the jury's questions.

1. There is nothing to indicate that the prosecutor acted otherwise than in accordance with her instructions. It is plain that the course that was taken was in order to avoid what was believed to be a false issue troubling the jury. Defence counsel raised no objection to the manner in which the issue was resolved.

1. In any event I am not persuaded that identifying Duc Phan as party to these phone calls would have weakened the case against the appellant. Even if Thanh Phan had told Duc Phan of the arrival of 32 bags, this would not make it less likely that the appellant requested Duc Phan to collect the drugs.

1. I reject this ground of appeal.

1. Ground 6 relates to the inadvertent provision to the jury of the transcript of the proceedings made on 27 November, when the jury was absent from the court, together with transcripts of the closing addresses of counsel.

1. The suggestion was that the jury may have inadvertently received the transcript of 27 October when matters were discussed by the judge with trial counsel but in the absence of the jury. The evidence in the trial had been completed the previous Friday, 24 October 2008.

1. The issue seems to stem from the fact that the jury sent a note to the judge in which it asked "could we please request the remaining transcript of the trial we have up until 27 October." The note is equivocal and it may mean that the jury did not have the transcript of 27 October but their transcript finished on the previous Friday 24 October.

1. The transcript of 27 October 2008 commenced with the noting of various errors in the previous transcript and contains a discussion about the absence of one of the accused Phuong Nguyen and what the jury should be told about this. The remainder of the transcript is a discussion of various issues of law. In my judgment none of that discussion, even if the jury did receive it was capable of causing any prejudice to the appellant. However, I am not persuaded that the jury in fact received the transcript of 27 October. The trial transcript contains various references to the provision of transcript to the jury. Attention seems to have been paid to the need for care in checking the transcript before it was made available to the jury. The final transcript was apparently sent to the jury shortly before lunch on 4 November 2008. It was the next morning that the jury question that is the subject of this ground of appeal was received. The transcript confirms that care was being taken to identify parts of the transcript that should not go to the jury. That being the case it would seem that the jury note should be construed so that the jury did not receive the transcript of 27 October 2008.

1. This position is consistent with the answer given by the jury foreperson when the judge tried to clarify the meaning of the jury note. When asked if the jury had the transcript of 27 October or 24 October the foreperson answered "I am not sure of the date. But we don't seem to have all the transcript. What was happening in this Court in the last few days ... your summary." The judge responded by explaining to the jury that they were only to receive transcript of the evidence. The foreperson did not respond and indicate that the jury had any other portion of the transcript.

1. The matter was discussed again on the 6 November when it would seem that the conclusion was reached that the jury were in fact seeking transcript of closing addresses and the summing up. Neither trial counsel nor the judge expressed any particular concern that the jury had received transcript which it should not have. No application was made to the trial judge in relation to the matter.

1. In relation to the transcript of the closing addresses there is no doubt this was provided to the jury. However, this was done with the apparent consent of trial counsel after it had been reviewed by the parties for errors. The trial judge had discretion to provide this transcript to the jury ( R v Bartle (2003) NSWCCA 329; 181 FLR 1).

1. Ground 7 raised the question of a warning in relation to the evidence of Duc Phan. I have already addressed this issue.

1. Under ground 8 the appellant submitted that a miscarriage of justice occurred because the trial judge did not give an Edwards direction ( Edwards v R (1993) 178 CLR 193) in respect of lies referred to by the Crown Prosecutor in her closing address in the following terms:

"Then again you have the issue of the credibility of Mr Oliveri. Because if you accept that is what happened, why did he lie about it? The Crown says he lied about placing the box in the back of the ute because he wanted to distance himself from it. He wanted to say 'I know nothing about it.' It goes to his credibility, and it goes to whether you accept his version of all the other events that he says led up to that moment when Duc Phan placed the box into the back of his car."

1. To my mind the submission is misconceived. The prosecutor did not suggest that the appellant told lies out of a "consciousness of guilt" but rather raised the matter as going to the credibility of the appellant. An Edwards direction is required where the prosecution contends that the appellant has lied because the truth may implicate him in the commission of the offence (see also Zoneff v The Queen (2000) 220 CLR 234 at [16]).

1. When dealing with this issue in the summing up the trial judge said:

"The Crown also says that you would accept Federal Agents Acton and Dixon's evidence as to their observations of the box going into the utility and Mr Oliveri opening and closing the tonneau cover as, apart from anything else, making sense and being supported by the evidence of Duc Phan. She says how else would Duc Phan have been able to hold the box and open the tonneau cover. She says that what the officers saw is supported by the notes taken by others on surveillance at the time. Why would such a simple act be denied by Mr Oliveri? The Crown says it is denied because he wants to distance himself from what he knew was in the box."

1. It is unnecessary and may be misleading to give an Edwards direction or a Zoneff direction when it is not necessary. No application was made by trial counsel for any direction about lies. I can discern no miscarriage of justice from the lack of a direction and cannot discern how its absence could have affected the jury's verdict ( Dhanhoa v The Queen (2003) 217 CLR 1).

1. The appeal against conviction should be dismissed.

The appeal against sentence

1. The appellant submitted that the trial judge's sentencing discretion miscarried. It was submitted that the sentence was disproportionate to the appellant's criminality, treated the appellant as equal in terms of objective criminality with Duc Phan, wrongly assessed the objective criminality of the appellant and was manifestly excessive.

1. The offence of which the appellant was convicted carries a maximum penalty of life imprisonment and has a standard non-parole period of 15 years. The trial judge found that the appellant's offending fell below the mid range of objective seriousness. This may have been based upon a concession made by the Crown. His Honour also found that the appellant was "a good candidate for rehabilitation." This finding was generous having regard to the appellant's complete denial of any involvement in the offence. The appellant was not entitled to any concession by reason of a plea of guilty.

1. The non-parole period imposed by the trial judge was less than half the standard period.

1. The sentencing judge identified the circumstances of the offence emphasising that the appellant was found to have known that he was dealing in a weight of substance greater than 5 kilograms. The enterprise was sophisticated involving the use of many mobile telephones which were arranged so that the owner could not be traced. His Honour said:

"... the provision of a phone by Duc Phan to Antonio Oliveri, his boss at the relevant time, bespeaks knowledge on the part of both as to the contents of the package and I see no reason to believe that Mr Oliveri did not have knowledge that the package contained about 23 kilograms of pseudoephedrine or illegal substance."

1. The appellant submitted that this statement contained an error of law as his Honour had reversed the onus of proof. Taken in isolation this submission is correct. However, the other circumstances to which I have previously referred make a finding that the appellant knew that the weight was greater than 5 kilograms inevitable.

1. The appellant complains that he received a sentence which was identical to that imposed on Duc Phan. It was submitted that the role of Duc Phan was demonstrably greater than that of the appellant. The Crown submissions characterised Duc Phan and the appellant both as important intermediaries in the chain of supply between the importer and the appellant. The latter submission was apparently accepted by the trial judge and I see no reason why that finding was not open.

1. It has been said on previous occasions that a sentencing judge faces practical difficulties when attempting to determine the precise "role" of an offender in a drug transaction. Very often a sentencing judge will have only limited and imperfect information about how it was that an offender came to commit an offence. At times it is useful to characterise a person as a "courier" or as a "principal" but this must not obscure a proper assessment of what each offender actually did. ( R v Olbrich (1999) 199 CLR 270 at [16]-[19]).

1. I am satisfied that in the present case the sentencing judge sentenced both the appellant and Duc Phan in a manner consistent with his Honour's finding as to their role in the illegal enterprise. The evidence before his Honour did not suggest any significant difference in their objective criminality. They were each an intermediary in the receiving and transportation of the drugs. Although there were some differences in their personal circumstances they were not such in my view as to suggest that his Honour erred when imposing similar sentences on each of them.

1. Reference was made by the appellant to the available sentencing statistics and to the decision of this Court in the matter of Pham v R (2009) NSWCCA 25; 193 A Crim R 190. Pham did involve a very large amount of pseudoephedrine and a sentence which was described by the appeal court as lenient. It could not support a conclusion that the sentence imposed on the appellant was excessive.

1. With respect to the sentencing statistics they provide a useful indication of the range of sentences which have been previously imposed for this offence. However, care must be exercised in their use and regard must always be had to the particular circumstances of an individual offender. The statistical information does not indicate that the sentence imposed on the appellant was excessive.

1. To my mind this was a serious offence although it fell significantly below the mid range of objective seriousness. However, without a plea of guilty a sentence which provided a greater non-parole period than was imposed by his Honour would have been appropriate. Even if I was persuaded that his Honour had erred in some respect I am completely satisfied that no lesser sentence was warranted in law.

Orders

1. I propose the following orders

1. Appeal against conviction dismissed.

2. Grant leave to appeal against sentence but dismiss that appeal.

1. BUDDIN J: I agree with McClellan CJ at CL.

1. SCHMIDT J: I agree with McClellan CJ at CL.

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Decision last updated: 21 March 2011