Puan v R

[2009] NSWCCA 194

New South Wales
Court of Criminal Appeal

CITATION:	Yi Hong PUAN v R [2009] NSWCCA 194
HEARING DATE(S):	16/07/2009
JUDGMENT DATE:	5 August 2009
JUDGMENT OF:	Hodgson JA at 1; Howie J at 2; Fullerton J at 67
DECISION:	Appeal against conviction is dismissed. Leave to appeal against sentence is granted but the appeal is dismissed.
CATCHWORDS:	Criminal Law - Appeal against conviction and sentence - Grounds that defence counsel incompetent, witnesses fabricated evidence, verdict unreasonable - Sentence - whether judge erred in determining role in importation - whether sentence excessive.
LEGISLATION CITED:	Customs Act 1901 (Cth) - s 233B Crimes Act 1914 (Cth) - s 16G
CATEGORY:	Principal judgment
CASES CITED:	Clee v R [2009] NSWCCA 18 R v Abbott (1985) 17 A Crim R 355 R v McKenna (NSWCCA, unreported, 16 October 1992) R v Raz (NSWCCA, unreported, 17 December 1990)
PARTIES:	Yi Hong Puan v Regina
FILE NUMBER(S):	CCA 2006/13305
COUNSEL:	I Bourke - Crown Appellant appeared in person
SOLICITORS:	Commonwealth Director of Public Prosecutions - Crown Appellant appeared in person
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0228
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ
LOWER COURT DATE OF DECISION:	22/06/2007

2006/13305

HODGSON JA
HOWIE J
FULLERTON J

WEDNESDAY 5 AUGUST 2009

Yi Hong PUAN V R

Judgment

1 HODGSON JA: I agree with Howie J.

2 HOWIE J: The appellant, who appears unrepresented before this Court, was convicted by a jury of an offence of importing a commercial quantity of methylamphetamine contrary to s 233B of the Customs Act (Cth). As a consequence Judge Morgan (the Judge) sentenced the appellant to imprisonment for 12 years with a non-parole period of 8 years. The sentence dated from 27 September 2005 and the appellant is eligible to be released to parole on 26 September 2013.

3 The appellant raises the following grounds of appeal against his conviction:

1. Incompetency of defence counsel.

2. Witnesses admitted to having their statements concocted and yet, they were allowed to continue to give further evidence, seeking to pervert the course of justice in the hope of convicting the accused.

3. Verdict of the jury cannot be supported by the evidence. 2 questions asked by them were not been given any answers (sic).

4 The appellant raises the following grounds of appeal in respect of the severity of the sentence imposed upon him:

1. An error made by the sentencing judge about determining the position of the accused.

2. The sentencing judge being the trial judge, should have knowledge of the trial and sentence the accused according to how strongly the evidence put him in involvement.

3. Comparatively, the accused was charged with a quantity that is near the starting point of the commercial range of the said substance, however, he was given a sentence that is equivalent to someone who was charged with a large commercial quantity of the same substance.


The Crown case

5 The appellant was a citizen of Singapore, and held a Singaporean passport. A ticket had been booked with Qantas Airways in the name of the appellant for a flight departing from Hong Kong on 26 September 2005 and arriving in Sydney on the following morning, 27 September. The appellant was booked to leave Australia on 7 October 2005, flying to Hong Kong from Sydney.

6 In accordance with his ticketing arrangements, the appellant arrived in Sydney on the morning of 27 September with three items of luggage. He had a black trolley suitcase, a shoulder bag and a plastic duty free bag. The duty free bag was from Hong Kong and contained two bottles that were labelled “Remy Martin Champagne Cognac” and a carton of cigarettes. Rather than cognac the two bottles contained methylamphetamine in liquid form. The total weight of the liquid was 2056.2 g containing 839.2 g of pure methylamphetamine.

7 On his incoming passenger card the appellant recorded that he had boarded the flight in Hong Kong and his purpose for visiting Australia was for a holiday. He stated that he intended to stay at the Hilton Hotel, was to remain in Australia for seven days and declared that he was not bringing into Australia any prohibited imports, such as illicit drugs.

8 Having passed the immigration check, the appellant collected his luggage and made his way to the Green Gate that applied to passengers who had no items to declare to Customs. The appellant was stopped by Customs Officer Wheeler, who inspected his documents and asked the appellant to accompany her to a baggage examination area. The appellant told the officer that the baggage with him was his, that he had packed the bags himself and that he was fully aware of the contents.

9 The officer examined the contents of the appellant’s luggage including the plastic duty free bag. She asked the appellant, “Where did you purchase this?” The appellant told her that it was in Hong Kong and that he had a receipt in the duty-free bag for the items he had purchased. The officer removed, what purported to be, a receipt from the plastic bag. The receipt appeared to have been issued by a company called Sky Connection Ltd at the Hong Kong International Airport on 26 September 2005 shortly before the appellant’s flight was scheduled to depart.

10 While this examination was taking place, Customs Officer Hannaford approached. He had a conversation with the appellant concerning the purpose of his trip to Australia. According to this officer, the appellant said that he had come to Australia to gamble at the Casino in order to win back money that he had lost on his previous visit. He also indicated that he might visit his cousin. Officer Hannaford asked him the name of his cousin and, according to the officer, the appellant said he didn’t know his cousin’s name but that he studied in Wollongong. He also told the officer that he did not know what course his cousin was studying, that he had no telephone number for his cousin, but that he planned to contact him by phoning his aunt in Singapore.

11 It was the Crown case that a third customs officer, Officer Sintonen, overheard this conversation. It was his evidence that he had spoken to the appellant on a previous visit on 2 September 2005. He had asked the appellant questions similar to those that had been asked by Officer Hannaford and had received answers that were almost identical. Officer Sintonen alerted Officer Hannaford to this fact and the latter continued to question the appellant about answers that he had given on his last visit to Australia. The appellant confirmed that he had come to Australia to gamble and said that he had with him $US1,000.

12 From copies of tickets that were attached to the appellant’s luggage it was ascertained that the appellant had flown from Singapore to Bangkok on 21 September 2005 and returned to Hong Kong on 23 September 2005 before departing for Sydney on 26 September. It was the Crown case that the appellant had flown from Hong Kong to China on 23 September and returned to Hong Kong on 26 September.

13 During the examination of the appellant’s luggage Officer Wheeler located a second receipt in the shoulder bag that the accused had in his possession which also had purportedly been issued by Sky Connection Ltd at the Hong Kong International Airport. This receipt was dated 23 September 2005 and related to one carton of cigarettes. It was the Crown case that the receipt found in the duty-free bag was false as it had not been issued by the company at the Hong Kong International airport on 26 September 2005.

14 Officer Hannaford opened one of the two bottles in the duty free bag and tested a sample taken from it. The tests showed the presence of a narcotic drug. As a result the appellant was further interviewed and later arrested by Australian Federal Police.

The defence case

15 The appellant gave evidence. He stated that he obtained the bottles in Hong Kong from a person named Andy, who was a taxi driver and had driven the appellant on his previous visit to Hong Kong. These were bottles of alcohol that he intended to use at a party but that party was called off due to an impending typhoon. Andy also purchased the airline ticket for the appellant to come to Australia. The appellant gave him $US1000. Andy later gave him some change and the receipt that was in the duty free bag but the appellant did not realise that it was false.

16 As the appellant had to wait for a flight to Sydney he travelled with Andy to mainland China to purchase clothes and inspect bars as the appellant operated a bar in Singapore. The appellant returned to Hong Kong with Andy. He had with him throughout the trip to China the two unopened bottles of what he believed to be cognac.

17 The appellant stated that the conversations as given in evidence by the customs officers were incorrect. He denied that he did not know his cousin’s name or that he had said that his cousin was studying in Wollongong. He stated that the trip in September 2005 was his third trip to Australia and he told the officers that he had previously been to Wollongong. He stated that he wrote down his aunt’s number in Singapore and gave it to the officers. He denied that he said that he was in Australia to gamble as he told them he was here for sightseeing and to visit a fishing tackle shop in Manly.

The appellant’s affidavit

18 The appellant filed an affidavit in this Court dated 27 March 2009 in which he expressed his views as to the inadequacy of his representation by trial counsel. The first paragraph of that affidavit is as follows:

He did not fulfil his responsibilities as a lawyer. He took everything for granted; not willing to do a little bit more work or put in a little more effort in his work.

19 The second paragraph complains that counsel was too reliant upon the onus of proof, that he was lazy, that he asked only a few questions “out of a long list that was given to him” and that he “chose the easiest possible way to do his job; the least troublesome and fastest way to finish off his job”. The appellant complains about counsel’s performance and attitude in court citing, by way of example, that he was “sitting down with his arms folded, not taking down notes”.

20 In the third paragraph of the affidavit the appellant complains that counsel “kept going around the bush and at some point even got the judge agitated”. He asserts that counsel was unable to contest certain issues because of poor preparation. The appellant states, “I had, for many times, before the trial, told him to obtain some prove (sic) to support my defence, he kept using the same excuse saying I did not have to prove my innocence”. He complains that the witnesses were “making up stories to pervert the course [of justice] with intention to convict me” and that due to counsel’s laziness and incompetence “it led to a miscarriage of justice”.

21 In the fourth paragraph the appellant complains that trial counsel had not been able to provide a list of grounds of appeal when the appellant asked for one and had never replied to his requests.

22 The fifth paragraph contains criticism of counsel in respect of the preparation of sentencing submissions and shall be referred to later.

23 The sixth paragraph in the affidavit is as follows:

Basically, I feel that due to his incompetency and laziness he could not help me prove my innocence when he easily could have done so. Hence, allowing witnesses to concoct their stories and perverting the course of justice and eventually led to a miscarriage of justice.

24 The appellant supplemented his written material with oral submissions during the hearing of the appeal. These raised nothing new but emphasised certain of the points he had made in writing.

Appeal against conviction
Ground 1 Counsel’s incompetence

25 In respect of this ground of appeal the appellant filed written submissions. To a very great extent they are an elaboration of the complaints found in the second, third and fourth paragraphs of the affidavit. However, there is an additional complaint in relation to two of the Crown witnesses. The relevant portion of the submissions is:

…………[Defence counsel] basically failed to prove the incredibility of the witnesses, namely Hannaford and Sintonen, when he could have easily done so. He failed to stop them from giving evidence that were being perverted in a course (sic), seeking to convict the accused. Hence resulting in a miscarriage of justice……….

Later, in the same vein, the appellant wrote:

……… He had caused me not being able to prove my innocence. On the other hand, he had allowed the witnesses who were actually law enforcement officers, under oath in court to speak the truth to have their concocted and made up stories to be admitted as evidences (sic). Perverting the course of justice, seeking conviction. Therefore, had caused a miscarriage of justice. This is a trial about the accused, whether or not, had any knowledge of the narcotics. It was proven that the witnesses had committed part of the conversation between the accused and them and also the concoction [of] their statements…………….

26 The appellant went on in his written submissions:

………………However, the most important bit of the evidence, which was the saying of the accused, who was sweating at that time, was only challenged. He could have gone a step further to prove that this piece of evidence was made up. He was asked to obtain the CCTV footage to show that the accused was not sweating. He never did. This eventually gives the jury the impression that the accused was nervous and had guilt in mind.

27 The fourth paragraph of the written submissions contains the following:

In conclusion, the lawyer, being incompetent, had deprived the accused of a fair trial. He failed to stop the witnesses from giving evidence, knowing that they were not telling the truth. He could easily have gone a step further to prove it. He was told to do so, yet, he chose not to. Hence, allowing the witnesses, who were actually law enforcement officers, under oath to speak the truth in court to pervert the course of justice in seeking conviction of the accused. Had he been competent, succeeded in proving that the witnesses had perverted the course of justice, it would be the duty of the judge to stop the witnesses from giving evidences (sic)………….

28 A ground that asserts that defence counsel is incompetent must be considered, not upon a subjective review of the conduct of counsel, but on an objective determination of whether this Court is satisfied that there was a miscarriage of justice arising from the manner in which the defence was conducted. In Clee v R [2009] NSWCCA 18, a case where the allegation was that defence counsel was incompetent in a specific aspect of the trial, the following was stated in the judgment of Hislop J:

[27] The following principles are applicable:


(a) A trial may have been unfair, leading to a miscarriage of justice, by reason of the manner in which counsel appearing for the accused conducted the defence (Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576);

(b) The “flagrant incompetence” of trial counsel may give rise to a miscarriage of justice (R v Birks (1990) 19 NSWLR 677);

(c) The inquiry about miscarriage must be an objective inquiry — Nudd v R [2006] HCA 9; (2006) 225 ALR 161, per Gummow and Hayne JJ at [27].

(d) The question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred — Ali v R [2005] HCA 8; (2005) 214 ALR 1 per Hayne J (with whom Gummow J agreed) at [25].

(e) The appellant must show that the failing or error of counsel was a material irregularity and there is a significant possibility that it affected the outcome of the trial — TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 per McHugh J at [79].

(f) In the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise (TKWJ per Gleeson CJ at [16]).

(g) Regard may be had, inter alia, to the opening address of counsel for the appellant and statements of intention during the course of the trial to determine the tactical result sought to be achieved — Seymour at [37], [39].

29 The significant allegations here are not that counsel was incompetent by failing to object to evidence, by leading evidence to the detriment of the appellant, by failing to follow instructions generally, or in some other specific way acting contrary to the appellant’s best interests. Rather the allegation is that counsel was generally incompetent in that he was lazy, unprepared, irritated the trial judge and failed to prove that Crown witnesses were lying.

30 There is one particular allegation of incompetence asserted, being that counsel failed to obtain CCTV evidence that might show that the appellant was not sweating as the Crown witnesses alleged at the time he was being questioned at the baggage examination area. There is nothing before the Court to show that such CCTV evidence existed. In any event there is no realistic possibility that any such evidence would disclose whether the appellant was sweating or not. In any event, this evidence was of minor significance to the Crown case as a whole. It did not figure in the address of either counsel or the summing up. The failure of counsel to obtain such evidence, even assuming that he did fail to do as the appellant requested of him, could not possibly have resulted in a miscarriage of justice.

31 Defence counsel was an experienced criminal lawyer who has appeared frequently over many years in the District Court. This of course does not mean that he was immune from the criticisms made of him by the appellant, but any failings were not due to inexperience or unfamiliarity with the conduct of a defence in a criminal trial before a jury. He was entitled to make strategic decisions as to how best to deal with the evidence in the Crown case and the manner in which to defend the appellant. Therefore, if he did explain to the appellant throughout the trial that he could rely upon the onus of proof in answer to some of the matters that arose on the Crown case, that advice was not necessarily wrong or inappropriate. In any event, apart from the complaint about the lack of obtaining CCTV evidence, there is no suggestion that counsel otherwise omitted to do anything that was necessary to test the Crown case or to place the appellant’s case before the jury.

32 True it is that this Court does not know how counsel physically conducted himself during the course of the trial, but a perusal of the transcript does not suggest that his defence of the appellant was inadequate to the extent of being incompetent. The fact that counsel may have sat with his arms crossed and not taking notes, if it is the fact, would not result in a miscarriage of justice. Nor would the fact that he might have at times irritated the trial judge for some reason or other. There is no suggestion that, if the Judge was irritated at times with defence counsel, that it in any way resulted in unfairness to the appellant.

33 The transcript discloses that defence counsel took an active part in the trial in the protection of the appellant’s interests. There were some preliminary objections taken by him before the jury were empanelled. He took objection to evidence that the Crown intended to lead of a previous trip made by the appellant to Australia in which he was in possession of two similar bottles. He also objected to the evidence of Officer Sintonen on the basis of relevance. He raised an objection to evidence being led by the Crown that the appellant appeared nervous. Counsel was successful in some of his challenges so that the Judge did not allow evidence of the appellant being in possession of two similar bottles on a prior occasion.

34 Defence counsel opened shortly to the jury after the Crown’s address to indicate that the defence was a lack of knowledge of the drug in the bottles. He cross-examined Officer Hannaford and Officer Sintonen appropriately in respect of when and how their respective statements came to be made. He put allegations to them in accordance with the appellant’s account of those conversations later given in the appellant’s evidence. He adduced evidence to raise a question about the reliability of the witnesses based upon when and how Officer Hannaford came to make notes of the conversations he had with the appellant. He adduced evidence that the witness’s statement about those conversations was made on 2 November, some six weeks after the incident. Similarly he adduced from Officer Sintonen that he had made notes of the conversation he had with the appellant on 2 September 2005 in May 2006. He also obtained evidence from that officer that he had used Officer Hannaford’s statement to make his notes.

35 This was the type of cross-examination that would be expected of these witnesses and counsel was able to use the evidence he obtained to question during the course of his address the reliability of their accounts of both the conversation said to have occurred on 2 September 2005 and that which was said to have taken place on 26 September. There was nothing incompetent about the cross-examination of these two witnesses nor does the transcript reveal that in any way defence counsel failed to do what was required of him to challenge this evidence.

36 Defence counsel called the appellant to give evidence and tendered documents in his support. He addressed the jury appropriately. At the conclusion of the summing up he raised a number of matters with the judge and her Honour redirected the jury in accordance with some of the requests he made.

37 The transcript does not support the appellant’s contention that there was a miscarriage of justice as a result of the manner in which he was represented by defence counsel. To the contrary defence counsel appears to have acted appropriately and to have endeavoured to ensure that the appellant received a fair trial. I would dismiss this ground of appeal.

Ground 2 The Customs Officers

38 The appellant complains that the two Crown witnesses, Officers Hannaford and Sintonen had concocted evidence against him. In his written submissions the appellant stated:

Witness Hannaford was proven during cross-examination by the defence lawyer that he, under oath in court, did not provide an accurate account of the event and he later admitted to it. (21/02/07 pg 68, L30) Witness Sintonen had also admitted during the cross-examination to have taken Hannaford’s statement as a reference. Both of them concocted their statement. (22/02/07 Pg 16, L56) Not providing an actual account of the event, they have perverted the course of justice seeking to convict the accused. They have had their statement and stories made up in a way to support the allegation.

39 As has been noted, the appellant blames defence counsel for in some way allowing this evidence to be called. However, defence counsel had objected to the evidence of Officer Sintonen but the trial judge had overruled the objection. The evidence was clearly admissible and I cannot see any basis upon which the trial judge could have rejected the evidence of either of the two customs officers.

40 It is of course not open to a trial judge to reject evidence simply because the judge had formed the view that the evidence was concocted as the appellant alleges. The evidence was admissible and it was for the jury to determine the weight, if any, to be attributed to it. The reliability of the evidence was called into question by counsel’s cross-examination. It was the subject of comment by defence counsel in his address to the jury and his arguments were put to the jury by the trial judge in reviewing this part of the evidence. There was nothing more that defence counsel or the judge should have, or could have, done in relation to the evidence.

41 The admission of the evidence did not give rise to a miscarriage of justice and this ground of appeal should be rejected.

Ground 3 Unreasonable verdict

42 The appellant contends that the verdict of the jury cannot be supported by the evidence. He made no submissions to support that assertion.

43 The ground refers to two questions asked by the jury. The first was asked on the sixth day of the trial immediately after the close of the defence case and before the Crown commenced to address the jury. The question was, “Has Mr Xerri had (sic) been located and interviewed?”

44 The background to the question was that a business card for Christopher Xerri was found in the possession of the appellant. It was Exhibit X. The card indicated that he was an “Independent Representative” for a company, ACN, and gave an address in Mount Kuring-Gai NSW. On the back of the card in handwriting was written, “Phoenician, Level 6 1603 East tower 6:30 sharp”.

45 The appellant was cross-examined by the Crown about this card. The appellant denied that the writing on the back of the card was his. The appellant stated that the person was a salesman at the tackle shop in Chinatown that was a short walk from the hotel in which he stayed on his trip on 2 September 2005. He denied that the writing concerned an arrangement for him to meet someone at the Phoenician Resort in Queensland. The appellant denied that it had anything to do with the bottles he had imported.

46 There was no further evidence on the issue of the business card or Mr Xerri. The Judge, after conferring with counsel, advised the jury that there was no evidence relating to Mr Xerri and that they should not speculate “about matters that are not before you”. That was clearly the appropriate answer to give the jury. The question and the answer have no relevance to any matter before this Court.

47 The second question came during the course of the summing up. The jury wished clarification of when it was that the appellant received the airline ticket that he said he had purchased from Andy the taxi driver. The Judge conferred with counsel about what answer to give and considered the transcript. Her Honour answered the jury as follows:

….It would seem that the only evidence relating to that is the accused agreed in cross-examination that the Qantas ticket was issued on 24 September 2005 and he was referring then to exhibit K, which shows the date of issue being 24 September 2005. The only other reference was that he asked Andy to get him a ticket on the earliest available flight to come to Australia and when he was speaking about getting the drinks, the bottles, he said that he received the two bottles and the receipt from Andy, in the duty free plastic bags and also cigarettes. The Crown Prosecutor said, “You received all those things from Andy?” and he said, “That’s right except for my ticket. My ticket was not handed to me yet”. That’s the only information. [The] only evidence relating to that ticket. He doesn’t actually say the date – he physically, he never was asked and he didn’t give evidence either in-chief or cross-examination when he physically received the ticket that he just agreed that on 23 September obviously when he was given the bottles the ticket hadn’t issued because the issue date on exhibit K is 24 September, there’s nothing further that I can take you to ladies and gentlemen relating to that.

48 The appellant complains that as no answer could be given to those questions, therefore, it follows that the jury ought to have entertained a reasonable doubt about his guilt. That submission cannot be sustained. The first question was simply irrelevant and the jury were told not to speculate about the matter. The second question was simply the clarification of a point about which there was no evidence. The fact that the jury asked them simply indicates that it was taking a keen interest in the evidence.

49 There is no basis for concluding that the jury ought to have had a reasonable doubt about the appellant’s guilt. This was a quintessential jury question, but having reviewed the evidence in the case I am not persuaded that there is the possibility that an innocent person was convicted. The evidence of the Custom’s officers was open to some criticism as to its reliability because of the manner in which their statements were made. But this does not necessarily suggest that their evidence was concocted or should be rejected. In any event it was not necessary that their evidence be accepted for the Crown to succeed in proving the offence.

50 As in most of the cases of this type, there is considerable scepticism about the realistic possibility that the appellant was given possession of a significant amount of a prohibited drug, here with a value of about $200,000, without any steps taken by the owner of the drug to ensure that it was not accidentally consumed by the appellant or in some other way disposed of before the object of the importation, unbeknown to the appellant, was achieved.

51 I would dismiss the appeal against conviction.

Appeal against sentence

52 The appellant did not give evidence on sentence. He was born on 22 July 1970. He had a prior offence of dishonesty for which he was sentenced to a short prison sentence in Singapore in 2003. He was born in Singapore and is fluent in English. He has generally been in employment initially with the Singapore Navy and then with a fishing charter business. At the time of his arrest he was the operator of a pool hall. He is in a current relationship from which there are two young children.

1. Competence of counsel

53 In the fifth paragraph of his affidavit the appellant states:

During my remand that MRRC, it had come to my knowledge that at least 10 people have been charged with the same substance as me. I don't see why [defence counsel] couldn't get any reference from these cases. His submission for my sentence was a piece of work done with no effort put in. He had 2 months to prepare and yet came up with something that could easily be done in 2 hours. It was filled with mistakes. When I pointed out to him, he tried to talk his way out. Well, he is legally trained and I’m not, so I had to take his words (sic) for it. There was also the issue of the quantity of the substance that I was charged with. Despite me telling him the mistake, he never bothered to make the necessary amendments. None of the cases he had cited in the submission involves the same substance as I was charged with.

54 It is possible to have a miscarriage of justice occur by reason of incompetent representation in sentence proceedings. Where material relevant to sentence was not produced at the hearing, this Court allowed further material to be admitted as it was satisfied that the defence case was incompetently presented at the sentencing hearing: R v Abbott (1985) 17 A Crim R 355, or where relevant material had been overlooked by the carelessness of the legal representative: R v McKenna (NSWCCA, unreported, 16 October 1992).

55 But in my opinion it will be a very rare case indeed that it would be held that a miscarriage of justice has occurred simply because of a defect in submissions made to a sentencing judge by defence counsel. But even if there might be such a case, it is not the present. In fact I have difficulty in seeing any defect in the written or oral submissions made by defence counsel except, as the appellant points out, the cases referred to in the submissions concern the drug ecstasy rather than methylamphetamine. However, the Commonwealth supplied the Judge with a schedule of cases referring to the importation of methylamphetamine. In any event the appellant has not pointed to any error in the sentencing judge’s remarks that might be attributed to the submissions made, or not made, by defence counsel.

2. The appellant’s role in the importation

56 The appellant's written submissions in relation to sentence contained the following paragraphs:

1. The judge said that the evidence only allows her to determine that the offender was the importer of a commercial quantity of methylamphetamine and then later contradict herself by saying it appears to be more than a mere courier. There was no basis to that position.

3. The sentence should be based solely upon how strongly the evidence puts the accused in the involvement of the crime.

5. In conclusion, there isn't enough evidence to suggest the offender was neither a courier nor principal of the said crime. He was found to be in possession of the 2 bottles of brandy that contained narcotics. I suggest he should only be classified merely as a courier.

57 It should be noted that defence counsel’s submission was that the Judge could not sentence the appellant as having any greater involvement in the importation than a courier.

58 In the sentencing remarks the Judge quoted a passage from R v Raz (NSWCCA, unreported, 17 December 1990) where Hunt CJ at CL stressed the significance of the sentencing court determining the role of the offender in the organisation involved in the importation. Her Honour then went on

In Regina v Olbrich 1966 ALR 330, the High Court recognized that it was generally appropriate to categorise offenders in that matter (manner?) for sentencing purposes where possible. From the evidence before the jury, it appears to me that the offender's role was more than just a mere courier but the evidence does not enable me to say where the offender fitted into the hierarchy of any organisation involved in this matter. Accordingly in this respect, I have regard to what the High Court said in Olbrich;

“A distinction between couriers and principals may prove a useful shorthand description of different kinds of participation in a single enterprise. It may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms but this is not such a case. Further it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced, characterising the offender as a courier or a principal must not obscure the assessment of what the offender did.”

Accordingly, I consider that the evidence only allows me to determine that the offender was the importer of a commercial quantity of methylamphetamine.

59 There is in my opinion no error or inconsistency in what her Honour was stating in this passage. The appellant had the onus of proving, on the balance of probabilities, that he was a “mere courier” so that such a finding mitigated his culpability in the importation of the drug. Her Honour held that on the evidence she was not satisfied that the offender’s participation should be so characterised. Therefore, she could not find what role he had in any organisation involved in the importation, if there was one, and so, consistently with the decision of the High Court, she was to sentence him as the importer of the drug without further characterisation. It is clear that her Honour did not sentence him as a principal even though it might have been open to her to make such a finding beyond reasonable doubt.

3. Prospects of rehabilitation

60 The appellant’s written submissions stated:

There are incidents where an accused being wrongly convicted of a crime. If he doesn't acknowledge his involvement to the crime, that doesn't mean that he has no prospects of rehabilitation. On the other hand, a person who admits to a crime, doesn't mean he is sorry for what he has done, he would change to be a better man. This shouldn’t be taken into consideration.

61 The Judge said in her sentencing remarks:

Counsel also submitted that the offender has good or excellent prospects of rehabilitation upon release. However, with respect to this submission, I note the offender continues to maintain his innocence as recorded in the presentence report. It is my view until he acknowledges his involvement in the matter as evidenced by the jury verdict, the court cannot be satisfied as to his prospects of rehabilitation.

62 There was no error in what her Honour stated. A finding as to prospects of rehabilitation is a finding of fact and it is a matter upon which the appellant had the onus of proof. It was open to her Honour to conclude as she did that she was not satisfied that he had good prospects of rehabilitation in light of his refusal to acknowledge his guilt or show signs of remorse for his offending.

4.Sentence excessive

63 The appellant stated in his written submissions:

In this case, the witnesses had lied in court and later the accused was found guilty of importing a commercial quantity of methylamphetamine, weighed 839.29 g. The commercial range of the narcotic in this case starts from 750 g. The sentence should fall within the low range of the commercial quantity on the comparison chart. However, the sentence imposed on him was as much as a person who is said to be charged with large commercial quantity of the same substance.

64 From the cases that were placed before the Judge the sentence in this particular case appears to be toward the top of the available range. No additional sentencing decisions were placed before this Court. However, the maximum penalty was life imprisonment, the appellant was not entitled to any discount, and her Honour was not prepared to find that he was a “mere courier”. The wholesale value of the drug was about $230,000. It should also be noted that some of the sentences in the schedule handed to the Judge were imposed while s 16G of the Crimes Act (Cth) was in operation. There is of course no “large commercial quantity” for importation offences.

65 I have given anxious consideration to this ground of appeal especially as the appellant was unrepresented. However, notwithstanding that the sentence was a heavy one having regard to the amount of drug imported, I am not satisfied that it fell outside her Honour’s discretion.

66 I would propose that the court orders that the appeal against conviction be dismissed and that leave to appeal against sentence be granted but the appeal be dismissed.

I agree with Howie J.

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