Oui v The Queen
[2006] WASCA 76
•19 MAY 2006
OUI -v- THE QUEEN [2006] WASCA 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 76 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:93/2005 | 9 MARCH 2006 | |
| Coram: | STEYTLER P MCLURE JA BUSS JA | 19/05/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Appeal against sentence dismissed | ||
| D | |||
| PDF Version |
| Parties: | KUI LING OUI THE QUEEN |
Catchwords: | Criminal law Content of good character direction Whether means "otherwise" good character Whether sentence manifestly excessive |
Legislation: | Crimes Act 1914 (Cth), Pt IB, s 21E Criminal Code (Cth), s 11.1(1) Customs Act 1901 (Cth), s 233B(1)(c), s 235 |
Case References: | F v The Queen [2005] WASCA 135 Johnson v The Queen [2004] WASCA 207 Melbourne v The Queen (1999) 198 CLR 1 R v Bellissimo (1996) 84 A Crim R 465 R v Chan (1989) 38 A Crim R 337 R v Falealili [1996] 3 NZLR 664 R v Harris (2004) 150 A Crim R 509 R v Marchesano (2000) 116 A Crim R 237 R v Tulloh (2004) 147 A Crim R 107 R v Zoppola-Barraza [1994] Crim LR 833 Dinsdale v The Queen (2000) 202 CLR 321 Grimwood v The Queen [2002] WASCA 135 Higgins v Robinson [2000] WASCA 311 Isaacs v The Queen (1997) 41 NSWLR 374 Kaye v The Queen [2004] WASCA 227 Postiglione v The Queen (1997) 189 CLR 295 R v Clarke [1996] 2 VR 520 R v Darwell (1997) 94 A Crim R 35 R v El-Karhani (1990) 51 A Crim R 123 R v Furness (1995) 79 A Crim R 59 R v M (1998) 104 A Crim R 154 R v Mills [1998] 4 VR 235 R v Nai Poon (2003) 56 NSWLR 284 R v Olbrich (1999) 199 CLR 270 R v Suarez-Mejia (2002) 131 A Crim R 577 R v Tait and Bartley (1979) 46 FLR 386 R v Wedd (2000) 115 A Crim R 205 Ryan v The Queen (2001) 206 CLR 267 Trimboli v The Queen (1979) 21 SASR 577 Wong v The Queen (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : OUI -v- THE QUEEN [2006] WASCA 76 CORAM : STEYTLER P
- MCLURE JA
BUSS JA
- CACR 103 of 2005
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
File No : IND 32 of 2004
Catchwords:
Criminal law - Content of good character direction - Whether means "otherwise" good character - Whether sentence manifestly excessive
(Page 2)
Legislation:
Crimes Act 1914 (Cth), Pt IB, s 21E
Criminal Code (Cth), s 11.1(1)
Customs Act 1901 (Cth), s 233B(1)(c), s 235
Result:
Appeal against conviction dismissed
Appeal against sentence dismissed
Category: D
Representation:
Counsel:
Appellant : Mr D Grace QC
Respondent : Mr H G Dembo
Solicitors:
Appellant : Michael Tudori
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
F v The Queen [2005] WASCA 135
Johnson v The Queen [2004] WASCA 207
Melbourne v The Queen (1999) 198 CLR 1
R v Bellissimo (1996) 84 A Crim R 465
R v Chan (1989) 38 A Crim R 337
R v Falealili [1996] 3 NZLR 664
R v Harris (2004) 150 A Crim R 509
R v Marchesano (2000) 116 A Crim R 237
R v Tulloh (2004) 147 A Crim R 107
R v Zoppola-Barraza [1994] Crim LR 833
(Page 3)
Case(s) also cited:
Dinsdale v The Queen (2000) 202 CLR 321
Grimwood v The Queen [2002] WASCA 135
Higgins v Robinson [2000] WASCA 311
Isaacs v The Queen (1997) 41 NSWLR 374
Kaye v The Queen [2004] WASCA 227
Postiglione v The Queen (1997) 189 CLR 295
R v Clarke [1996] 2 VR 520
R v Darwell (1997) 94 A Crim R 35
R v El-Karhani (1990) 51 A Crim R 123
R v Furness (1995) 79 A Crim R 59
R v M (1998) 104 A Crim R 154
R v Mills [1998] 4 VR 235
R v Nai Poon (2003) 56 NSWLR 284
R v Olbrich (1999) 199 CLR 270
R v Suarez-Mejia (2002) 131 A Crim R 577
R v Tait and Bartley (1979) 46 FLR 386
R v Wedd (2000) 115 A Crim R 205
Ryan v The Queen (2001) 206 CLR 267
Trimboli v The Queen (1979) 21 SASR 577
Wong v The Queen (2001) 207 CLR 584
(Page 4)
1 STEYTLER P: I agree with McLure JA, for the reasons that she has given, that the appeal against conviction should be dismissed and that leave to appeal against sentence should be refused.
2 MCLURE JA: The appellant was found guilty after trial of one count of attempting to possess a prohibited import, namely cocaine, in excess of the trafficable quantity contrary to s 233B(1)(c) of the Customs Act 1901 (Cth) and s 11.1(1) of the Criminal Code (Cth). The quantity of cocaine was 385.5 grams (192.5 grams pure). The appellant was sentenced to 9 years' imprisonment with a non-parole period of 4 years 6 months. The appellant appeals against his conviction and sentence.
3 The prosecution adduced evidence that on 22 July 2003 Customs intercepted a package sent by international courier from Edmonton, Canada, addressed to John Clifton, 23 Foyle Road, Bayswater. The package contained a door handle assembly which, when drilled open, was found to contain the cocaine. As part of a controlled delivery, Customs substituted an inert substance for the cocaine and returned the package to local couriers to deliver to the addressee.
4 The day after the package was returned to the couriers, it was collected by a Mr Ong, who signed for it in the false name Andrew Chin. Mr Ong put the package in the boot of a hired car and followed the appellant, who was driving another vehicle, to a basement car park in Victoria Park. There, the two cars stopped and Mr Ong and the appellant opened the package. They then left in the appellant's car, taking with them the brown, cardboard packaging and one of the door knobs, leaving the rest of the door handle assembly in the hire car. The appellant was observed by police stopping the car and throwing the packaging and door knob into a commercial garbage bin. The car was then driven to the appellant's house, which was later searched by Federal Police. Other evidence relied on by the prosecution as implicating the appellant included the appellant's passport which indicated that he had travelled to Canada two months before the arrival of the package; a piece of paper bearing his fingerprints containing the name of the addressee of the package and its consignment number; and mobile phone records showing that 24 telephone calls had been made and two SMS messages sent to Edmonton, Canada, in the 36 hours prior to delivery of the package. The telephone rang whilst he was being interviewed by police but the caller abruptly terminated the call.
5 The appellant gave evidence at trial. He testified that he had met a man called Jimmy in a nightclub approximately six months prior to the
(Page 5)
- incident and they had continued their contact. Jimmy had asked him to collect the package and that it was to contain fraudulent credit cards. The appellant was "a bit worried" about doing this "because it is fake credit card [sic]" but had agreed to do so as he was short of money. He was given the identifying details of the package, and the mobile phone, with an order to telephone Jimmy's number and the Canadian telephone number of a person called Ben when he picked up the package. He admitted making numerous calls to Canada from that mobile phone. The appellant testified that he did not know or suspect that the package contained drugs. The appellant also testified that he had no previous criminal history.
6 Mr Ong pleaded guilty on the fast track system to attempting to possess a prohibited import (cocaine) and was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years. He gave evidence for the prosecution at the appellant's trial.
Appeal against conviction
7 The appellant relies on one ground of appeal which is in terms that "the Learned Trial Judge erred in law by failing to direct the jury adequately in relation to how it could use evidence of the Appellant's good character, thereby giving rise to a substantial miscarriage of justice". The ground is defective. It gives no hint of the basis for the assertion that the direction was inadequate.
8 The appellant's counsel at trial, Judith Fordham, in her closing address to the jury did not claim that the appellant was of good character. To the contrary, she said to the jury that "I'm not going say he's of unblemished character because whatever, on his own admission, he was up to was something which at least was morally wrong". The trial Judge gave a good character direction in the following terms:
"Now, there was in this trial evidence that the accused has no prior criminal convictions and often in a case of this nature that fact is taken into account by a jury and treated as evidence of previous good character.
That evidence of previous good character can be used by a jury in two ways: first, that the jury might think that it's less likely that the accused committed this offence; or secondly, you might consider his prior good character when you are considering whether you believe, whether you believe his evidence but of
(Page 6)
- course this accused has, as Ms Fordham conceded, a blemished character.
On his own admission, if you accept it as true, he was willing to involve himself for money in the [importing] into Australia of fake credit cards and you might think that that shows that he is not of very good character. Even if you were to think he was of previous good character you would have to realise that people do commit crimes for the first time. Evidence of previous good character cannot prevail against convincing evidence of guilt if you find that established."
9 After the jury retired, counsel for the appellant raised for consideration what she described as logical anomalies in the good character direction. As she put it to the trial Judge, on the prosecution case, the appellant was of good character but on the defence case he was not of unblemished character and yet, if the jury concluded that the appellant was not of unblemished character because he thought the package contained fake credit cards, the jury must acquit. However, counsel did not seek a redirection because of her assessment that it occasioned no prejudice to the appellant.
10 Senior counsel for the appellant submitted to this Court that the trial Judge and counsel for the parties operated under a misconception as to what is meant by good character in this context. In his submission, good character means "otherwise" or "previous" good character. As I understand the submission, it is that matters relating to the alleged offence being tried (including the nature of the defence) are irrelevant to the issue of good character. According to the appellant, the trial Judge, having decided to give a good character direction, erred by inviting the jury to consider his defence as undermining his character thereby transforming the direction from a good character direction to a bad character direction. That is an inaccurate statement of the substance of the direction. The trial Judge referred to the defence to the charge as potentially relevant to the jury's assessment of whether the appellant was a person of good character. Senior counsel for the appellant accepted that if good character does not mean previous good character, the appeal must fail.
11 The leading case on good character is Melbourne v The Queen (1999) 198 CLR 1. In that case an accused was convicted on a charge of having murdered his next door neighbour. He did not deny that he stabbed the victim but sought a conviction for manslaughter on the ground of diminished responsibility. He did not give evidence at trial but had
(Page 7)
- made statements to two psychiatrists and a psychologist who gave evidence as expert witnesses that in their opinion he was in a state of diminished responsibility at the time of the killing. The Judge directed that the accused's character be taken into account on the issue of guilt. On appeal, the accused contended that the trial miscarried because the Judge failed to direct the jury that they could use evidence of his good character to conclude that his out of court statements were credible. The High Court held that a judge is not obliged to direct a jury about an accused's good character but has a discretion whether or not to do so after evaluating the probative significance of the evidence in relation to the accused's propensity to commit the crime charged and the accused's credibility. The majority (McHugh, Gummow and Hayne JJ, Kirby and Callinan JJ dissenting) concluded that there had not been a misdirection. The character evidence was not of such probative value in relation to the accused's credibility as to require the trial Judge to give a direction that the evidence bore favourably upon his credibility (McHugh J at [53]). Hayne J concluded (at [141]) that there was no misdirection because there was no issue at trial that use of the appellant's previous good character was an aid to the jury deciding whether to accept the accuracy of the accused's out of court statements.
12 Both Gummow and Hayne JJ refer in their judgments in Melbourne to an accused's "previous" good character (Gummow J at [60] - [61] and Hayne J at [141] and [152]). As a matter of fact, an accused's character will in most cases depend on matters other than and unrelated to the offences for which he or she is being tried. That is because the relevant question in most cases is whether the accused committed all elements of the offence charged. However, it does not follow that admissions or other conduct connected with the offence charged are necessarily irrelevant to an assessment of an accused's character. Whether or not that is so will depend on the issues in and the circumstances of each case.
13 In Melbourne the only live issue was whether, at the time the accused caused the death, he was in such a state of abnormality of mind as substantially to impair his capacity to understand what he was doing, or his capacity to control his actions, or his capacity to know that he ought not do what he did. The accused's case at trial was that his previous good character was of probative value on the question whether he acted in a state of diminished responsibility. In that scenario, the admission of the unlawful act did not undermine the probative value of the character evidence on the sole issue in dispute. On the other hand, the Court of Appeal in R v Zoppola-Barraza [1994] Crim LR 833 held that the accused's defence that he thought he was smuggling gold and jewels
(Page 8)
- rather than importing drugs (the offence with which he was charged) was relevant to an assessment of his character. The Court said it was an affront to common sense to hold that such a person was entitled to the same direction as a person considered to be of good character.
14 In this case the only evidence of good character was the appellant's lack of prior convictions. There is some support for the view that the absence of prior (pre-trial) convictions cannot itself support a positive finding that a person is of good character: Melbourne at [108] per Kirby J; R v Falealili [1996] 3 NZLR 664. However, in this case both parties accepted that the evidence was sufficient to enliven the discretion to give a good character direction.
15 The appellant's evidence at trial was that he thought the package sent from Canada contained fake credit cards rather than drugs. However, the evidence has a broader significance that does not depend on whether or not it is accepted as the explanation for the appellant's highly suspicious conduct in this case. First, it is an admission that the appellant is a person who would, for reward, be willing to take possession of imported fake credit cards, the only potential use of which would be for credit card fraud. Second, the only alternatives for the jury's consideration were whether the appellant was knowingly in possession of either imported drugs or imported fake credit cards. The appellant's submission that the defence is irrelevant to an assessment of whether a good character direction should be given or its terms offend common sense. It is doubtful that the appellant's lack of prior convictions, when viewed in the context of the defence, had any probative value in relation to the appellant's propensity to commit the crime charged or to his credibility. However, it was not suggested by the respondent that the trial Judge erred in the exercise of her discretion in giving a good character direction. Alternatively, the trial Judge could, in my view, have properly declined to give a good character direction. In any event, the appellant's defence was relevant to the jury's assessment of whether he was a person of good character and that is so regardless of whether the jury accepted it. The substance of the trial Judge's direction to the jury was that the appellant's defence, if believed, was relevant to their assessment of good character. The trial Judge's direction was not to the appellant's disadvantage, as was the judgment of experienced counsel who represented him at trial. I would dismiss the appeal against conviction.
(Page 9)
Appeal against sentence
16 The only ground of appeal against sentence is that it is manifestly excessive. In his particulars, the appellant contends that the learned sentencing Judge failed to give sufficient weight to his previous good character and antecedents, his assistance to the prosecution and youth.
17 The appellant was sentenced in accordance with the sentencing regime in Part IB of the Crimes Act 1914 (Cth). The appellant does not contend that there was any error of fact or law in the sentencing Judge's reasoning. Rather, he contends that error can be inferred from the fact that the sentence is unreasonable or unjust (that is, manifestly excessive). To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: R vChan (1989) 38 A Crim R 337 at 342.
18 The maximum penalty for the offence of which the appellant was convicted is 25 years' imprisonment or $550,000 or both (s 235 of the Customs Act). Pursuant to s 11.1(1) of the Criminal Code, a person who attempts to commit an offence is punishable as if the offence attempted had been committed. In this case there is no material difference in culpability between the two because it was the intervention of Customs to replace the cocaine with an inert substance that prevented the commission of the offence.
19 The appellant was aged 22 at the time he committed the offence. As previously noted, he had no prior convictions. At the time of sentence, he had completed a business course in Perth which he had commenced prior to the offending. He had gained entry to Murdoch University to continue his studies. However, general deterrence is a weighty factor in the exercise of the sentencing discretion for drug-related crimes: R v Bellissimo (1996) 84 A Crim R 465. An offender's character and antecedents remain relevant but are accorded correspondingly lesser weight: R v Marchesano (2000) 116 A Crim R 237 at [41]. It is also relevant that the trial was shortened by admissions relating to the importation and analysis of the drug and concessions from defence counsel on matters relating to continuity of the drug and of exhibits.
20 As to the seriousness of the conduct, it is appropriate to have regard to the quantity of the drug, which was 192.5 grams pure: R v Tulloh (2004) 147 A Crim R 107 at [50]. A trafficable quantity is anything more
(Page 10)
- than 2 grams. The learned sentencing Judge found that as between the appellant and Mr Ong, the appellant played the leading role in the offence and recruited Mr Ong to assist. Mr Ong pleaded guilty on the fast track system, had cooperated with authorities and also received a discount for future cooperation under s 21E of the Crimes Act. Mr Ong was sentenced to 6 years' imprisonment with a 3 year non-parole period which was reduced to 4 years with a 2 year non-parole period for post conviction cooperation. The appellant does not suggest that his sentence offends the parity principle.
21 The learned sentencing Judge stated that the starting point for the appellant was a sentence in the vicinity of 10 years' imprisonment which, because of the appellant's previous good character and antecedents, his limited but useful assistance for the prosecution at trial and his young age, she reduced by 1 year to 9 years' imprisonment. This Court is not concerned with the starting point. The question in issue is whether the term of imprisonment of 9 years is manifestly excessive. Neither party provided the Court with any material to assist in the identification of the standards of sentencing customarily observed with respect to the crime in question. That is assessed by reference to the range of sentences that have been imposed for similar crimes. The purpose is to identify whether the sentence imposed on the appellant is consistent with the range of sentences customarily imposed. That does not involve or require a statistical analysis. In the absence of assistance from counsel, I have focused on cases decided in this jurisdiction, including Johnson v The Queen [2004] WASCA 207, R v Harris (2004) 150 A Crim R 509 and F v The Queen [2005] WASCA 135 and the authorities referred to therein. Having regard to all the matters to which Chan refers, I am not persuaded that a sentence of 9 years' imprisonment with a non-parole period of 4 years 6 months is inconsistent with the range of sentences customarily imposed or outside the range of a sound sentencing discretion.
22 For these reasons, I would dismiss the appeals against conviction and sentence.
23 BUSS JA: I agree with McLure JA.
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