R v COX, Ian Ormond - [2004] NSWCCA 204

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v. COX, Ian Ormond [2004] NSWCCA 204 revised - 09/07/2004

FILE NUMBER(S):
60556/00
60169/00

HEARING DATE(S): 13 November 2003

JUDGMENT DATE: 29/06/2004

PARTIES:
Regina - respondent
Ian Ormond Cox - appellant

JUDGMENT OF: Hodgson JA Grove J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0872 (conviction); 99/11/0104 (plea)

LOWER COURT JUDICIAL OFFICER: Gibson DCJ (conviction); Mahoney DCJ (plea)

COUNSEL:
The appellant appeared in person in the conviction appeal.
Ms. Mundey for appellant in sentence appeal
Mr. G. Farmer for respondent/Crown

SOLICITORS:
Chegwidden Solicitors, Helensburgh for appellant (sentence appeal)
Ms. G. Drennan, CDPP, Sydney for respondent/Crown

CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Unreasonable verdict and other grounds - Appeal against sentence - Whether error concerning parity, discount and/or personal deterrence.

LEGISLATION CITED:

DECISION:
1. Appeal against conviction dismissed. 2. Leave to appeal against sentences granted. 3. Appeal against sentence for the cocaine offence dismissed. 4. Appeal against sentence for the cannabis offence allowed, sentence set aside, and in lieu thereof there be a sentence of imprisonment for 12 years commencing 21 November 2012, and that there be a total non-parole period of 18 years commencing 21 November 1997.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA60556/00
CCA60169/00
HODGSON JA
GROVE J
HOWIE J
Tuesday 29 June 2004

REGINA V. Ian Ormond COX

Judgment

HODGSON JA: Between 4 and 25 January 2000, the appellant Ian Ormond Cox was tried before Gibson DCJ and a jury on a charge that he “between about 1 January 1997 and 21 November 1997 at Sydney, New South Wales and elsewhere, did conspire with Michael Reardon, Douglas Crombie, Haydee Martinez Diaz, Lily Villegas and divers other persons to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine”. The jury returned a verdict of guilty, and on 10 March 2000 the appellant was sentenced to 20 years’ imprisonment, with a non-parole period of 15 years, to date from 21 November 1997.
On 12 July 2000, the appellant pleaded guilty before Mahoney DCJ to a charge that he “between about 1 February 1997 and about 8 June 1997 at Sydney, New South Wales and elsewhere did conspire with Craig Kant and others to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of cannabis resin being not less than the commercial quantity applicable to cannabis resin”. On 17 July 2000, the appellant was sentenced on this charge to 14 years’ imprisonment, with a non-parole period of five years, each to date from 21 November 2012. On 12 November 2001, Blanch CJ corrected a technical defect in the sentence, by fixing a single non-parole period of 20 years to run from 21 November 1997.
The appellant appeals against his conviction on the charge relating to cocaine, and seeks leave to appeal against his sentences on both matters.
CROWN CASE ON THE COCAINE CHARGE
At the trial, there was no dispute that there had been a conspiracy to import 50 kilograms of cocaine into Australia, or that Michael Reardon was one of the conspirators: the issue raised by the appellant was whether the appellant was one of the persons involved in this conspiracy.
The Crown case was that the conspiracy commenced in January 1997, and that the appellant was the proprietor of a wine importing business which was to be used for the importation of the cocaine.
A significant part of the Crown case consisted of recordings of conversations between W, a registered informant of the National Crime Authority (NCA), and Reardon between June and October 1997. In one conversation, on 13 June 1997, Reardon is recorded as saying “Knowing the bloke whose bringing it over he’s alright”, and agreeing to the effect that he was connected with wine; not “in the wine” but “he’s got another way of doing it”. In another conversation, on 17 June 1997, Reardon is recorded as responding to a question “The wine guy has got everything organised?” with the words “Yeah, he’s right”. In a further conversation of 1 October 1997, Reardon is recorded as talking about a “Canberra guy” and a “wine guy”, who were both from Canberra and were mates. The Crown case was that the references in these conversations to a person connected with wine, and to a “wine guy”, were references to the appellant.
There was evidence that Reardon flew from Sydney on 21 July 1997 to go to Chile, and returned to Sydney from Chile on 9 August 1997; and that he again flew from Sydney to go to Chile on 1 October 1997, and returned on 21 November 1997. There was evidence that the appellant flew from Sydney to go to Chile on 10 October 1997, and returned to Sydney from Chile on 18 October 1997.
There were in evidence facsimiles sent from Santiago Chile by Reardon to W. One dated 6 October 1997 stated that the “Canberra man will be here on the 10th”. The appellant in fact arrived in Santiago on 10 October 1997. Another, dated 11 October 1997, stated that “Canberra man is here, but can’t see him until 8.30 Monday morning” (that is, 13 October 1997). Another, dated 18 October 1997, stated that “Canberra man has left me with a lot more work to do”.
There were in evidence written communications between the appellant, on the letterhead “Columbus Wines”, and one Guy Hooper of Santa Innis Vineyard in Chile, dated 17 September 1997, 6 October 1997, 20 October 1997 and 31 October 1997, relating to the purchase for importation into Australia of about 850 cases of wine for a price of about $US24,000.00. The wine was to be in a container to be delivered to “Tradewings” no later than 14 November 1997. According to the correspondence, there was “quite a lot of furniture to be packed in on top of the wine”.
There were also in evidence written communications between the appellant and Neil Taylor of Tradewings Limited, a freight forwarding concern in Santiago, Chile. One letter dated 16 October 1997 referred to a container with about 850 cases of wine to be delivered to the depot, the expected delivery being on 24 October 1997. This letter stated that “a representative of mine” will need to check the goods; and that “additional goods, furniture and corking machine will be delivered soon after to be packed in with the wine”. The Crown case was that the representative referred to in this letter was the appellant.
There were also in evidence records of telephone conversations between the appellant and Hooper on 31 October 1997 and 18 November 1997; between the appellant and Reardon on 11 November 1997 and 12 November 1997; and between the appellant and Taylor on 12 November 1997 and 13 November 1997. The Crown case was that the terms of these conversations were such as to indicate that the appellant’s agreement and understanding was that cocaine was to be placed in with the cases of wine in the container to which I have referred.
Evidence was given by a number of witnesses in the Crown case. Of particular significance, in the light of the appellant’s defence, were Mr. Taylor and certain Chilean police officers, and in particular an officer called Oscar Alvarez.
Mr. Taylor gave evidence that in early October 1997, the appellant arrived unexpectedly at his office, together with a man introduced by the appellant as Mr. Harris. It is common ground that this man was in fact Reardon. Mr. Taylor gave the following evidence:
CROWN PROSECUTOR: Q. Now, what happened when the accused and this man introduced by the name of Mark Harris arrived at your office in October 1997; what happened?
A. Well, basically Mr Cox told me that he was back from Chile in order to make some purchase of wine and he would like to ship it to Australia so he had to return back to Australia. Mr Harris would stay behind and coordinate the delivery of the wine to the warehouse.
Q. And was there anything else said in that conversation, mention of anything else, apart from the wine, that was going to Australia?
A. Yes, he wanted to ship some machine or wine corking for corking bottles; an old machine and some furnitures.
Q. And did you ask either Mr Cox or the man introduced to you as mark Harris for a contact number or address?
A. Yes, he was staying - I needed to have a phone number or address or fax where to reach him in order to let him know when there was a vessel sailing and they didn't give me any phone number or address or where to reach them.
Q. Did you ask for a phone number or address?
A. Yes.
Q. Who did you ask?
A. I asked Mr Cox and Mr Harris that I needed some number to reach them, because I cannot just sit back and wait to be approached by them in order to ship the cargo.
Q. What was said to you?
A. That Mr Harris would be moving up and down and that he would have no regular place where he would stay so he would contact me.
Q. Who said that?
A. Mr Cox.
Mr. Taylor also gave evidence that he later received the letter dated 16 October 1997 referred to in par.[13] above, which Mr. Taylor said was handed to him by his secretary on 16 or 17 October 1997, having been left in his office at a time when Mr. Taylor was not there.
Mr. Alvarez gave evidence of contact with Reardon in 1997, in the course of which he gave the following evidence:
Q. Can I take you next to 10 October, the 10th, 1997. I think on that day you met with Reardon and the two of you went for a walk from the Hotel Lota?
A. Yes.
Q. Is that correct?
A. (No verbal response).
Q. And during the course, whilst you were walking, did he say something to you about somebody coming to Santiago?
A. Yes, he told me that he wanted to check in the Centra Apartments if one of his friends was arriving there because that man was in charge of arranging the container to transport the drugs to Australia. That hotel, apartments, Centra Apartments Hotel was very close to the Apartment Lota. When we arrived there we entered the lobby and he asked for a man who worked there like a receptionist. He say, "I want to know if Mr Ian Cox is booked here?" And the receptionist checked the information on the computer and I saw on the screen the man Cox Ian. And he told Mr Reardon that that man was coming from Australia and he was booked there from 13 to 17 October 1997.
Q. And before you heard the name Ian Cox mentioned by Reardon and before you saw the name on the computer, had you heard that name before?
A. Never. That was the first time.
Other Chilean police officers gave evidence that they had observed the appellant with Reardon during the day on 13 October 1997.
The appellant’s case was that he had not known Reardon prior to the evening of 13 October 1997, when he met him by chance at dinner; and that Mr. Reardon introduced himself as Mark Harris, and asked him to call him “Mick”. The appellant’s evidence was to the effect that he took Reardon to meet Mr. Taylor on 16 October 1997, and that it was then that he handed directly to Mr. Taylor his letter dated 16 October 1997. According to the appellant, any subsequent involvement of Reardon with the appellant’s proposed shipment of wine to Australia arose entirely from the chance meeting on the evening of 13 October 1997.
GROUNDS OF APPEAL
The appellant’s Notice of Appeal raised three grounds of appeal against conviction, namely:
1.The verdict of the jury is unreasonable having regard to the evidence.
2.The evidence of telephone conversations intercepted and recorded without warrant should not have been admitted.
3.There is additional material available as fresh evidence which renders the verdict of the jury as unreasonable, and the trial proceedings unfair to the appellant.
However, the appellant, who was unrepresented on his conviction appeal, provided extensive written submissions, indicating the following thirteen grounds of appeal:
1.Unsafe and unsatisfactory verdict.
2.Failure of judge to give proper directions or warnings in relation to a number of matters.
3.Errors in admitting certain evidence.
4.Perceived bias.
5.Failure to discharge jury.
6.The Ridgeway principle.
7.Illegal and improper conduct of police.
8.Fresh evidence.
9.Wilful withholding of material/documents.
10.Considerations relating to another case involving the witness W.
11.Statements and evidence of Chilean police.
12.Issues arising from running sheets.
13.Error concerning evidence about photograph said to be of Canberra man.
The material also contained detailed submissions alleging false evidence by Chilean police and other witnesses.
As regards the sentence appeal, on which the appellant was represented by Ms. Mundey, there was only one ground, namely that the sentences were manifestly excessive in all of the circumstances.
The appeal was argued on 13 November 2003. The appellant sought an adjournment to take further steps to obtain legal representation on his appeal against conviction, and also to take further steps in relation to disclosure of National Crime Authority (NCA) running sheets. Also, at that time there was outstanding an application by Reardon, who had been convicted of involvement in the same conspiracy and whose appeal against that conviction had been dismissed, to re-open the hearing of his appeal on the basis of Crown non-disclosure of NCA running sheets. As noted above, at his trial the appellant had conceded that there was a conspiracy and that Reardon was one of the conspirators. In the event that Reardon’s application was successful, the appellant wished to make further submissions; and the Court indicated that it would give that opportunity in that event. The appellant’s adjournment application was refused.
I drew the appellant’s attention to the circumstance that I was one of the judges dealing with Reardon’s application, and no objection was raised to my participation in this appeal. Reardon’s application was dismissed on 23 June 2004, so that the Court is now in a position to give its decision on the appellant’s appeal without any further hearing.
I will deal with the issues arising on this appeal under the following headings:
1.Alleged defects in directions and warnings (original ground 2).
2.Alleged errors in admitting evidence (original ground 2, submissions grounds 3 and 13).
3.Perceived bias (submissions ground 4).
4.Failure to discharge jury (submissions ground 5).
5.Illegal conduct of police (submissions grounds 6 and 7).
6.Evidence of Chilean police and other witnesses (submissions ground 11, supplementary material).
7.Fresh evidence, non-disclosure (original ground 3, submissions grounds 9 and 12).
8.Unreasonable verdict (original ground 1, submissions ground 1).
9.Sentence appeal.
As regards ground 10 in the submissions, this related to what occurred in another case, and has no relevance to this appeal.
ALLEGED DEFECTS IN DIRECTIONS AND WARNINGS
The appellant submitted that the trial judge failed to give adequate directions on the standard of proof beyond reasonable doubt, to the effect that the hypothesis put forward by the Crown should be not merely rational but the only rational hypothesis; and failed to give adequate directions concerning the evidence of the informer W, concerning his character, motivation, criminal record and the circumstance that he was a paid informer.
In my opinion, no error has been identified, and the directions given were appropriate in the circumstances.
ERRORS IN ADMITTING EVIDENCE
The appellant submitted that the trial judge erred in admitting the following matters into evidence. First, telephone conversations recorded by W on his mobile phone, in the absence of a warrant. Second, concerning items allegedly found in Reardon’s hotel room in Chile, on the basis of lack of continuity, the prejudicial nature of the evidence, and on the basis that the evidence had been tampered with. Third, all listening device and telephone conversation tapes, because only a selected few had been used by the Crown and the Crown had supplied inaccurate transcripts. Fourth, conversations recorded by W prior to the obtaining a warrant under the Customs Act, that is during the nineteen days between 11 June 1997 and 30 June 1997. Finally, in permitting the Crown to lead evidence from W in relation to being shown a photo of the “Canberra man”.
Some of these matters raise questions under s.219B(1) and (2) of the Customs Act 1901, which provide as follows:
219B. Unlawful use of listening devices
(1) It is unlawful for an official of a Commonwealth law enforcement agency to use, for the purposes of narcotics inquiries that are being made by officials of the agency, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless:
(a) he is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard;
(b) not being a person permitted to listen to or record the words under paragraph (a), he does so with the consent, express or implied, of such a person; or
(c) he does so in accordance with a warrant issued to the agency under this Division.
(2) It is unlawful for a person acting by arrangement with an official of a Commonwealth law enforcement agency to use, for the purposes of narcotics inquiries that are being made by officials of the agency, a listening device for the purpose of listening to or recording words while they are being spoken by a person unless he is the speaker of the words or is a person, or is included in a class or group of persons, by whom the speaker of the words intends, or should reasonably expect, the words to be heard.
As regards the first and fourth categories referred to by the appellant, the conversations recorded by W fall within s.219B(2), and accordingly their recording was not unlawful, and the evidence was admissible. The relevant telephone intercepts were authorised by warrant, and so fell within s.219B(1)(c).
As regards the third category, it was open to the Crown to be selective as to which tapes it put into evidence. All tapes were available to the defence. The appellant has not pointed to any significant inaccuracy in any of the transcripts, and in any event, the trial judge told the jury that the evidence was what was recorded on the tape.
As regards the second category, the material found in Reardon’s room was relevant and admissible, and the appellant has not established any basis for thinking otherwise.
As regards the final matter, neither the photograph itself nor any description of the person depicted in the photograph was admitted into evidence, so no possible prejudice to the appellant is shown.
PERCEIVED BIAS
The appellant submitted that the trial judge should have disqualified himself from conducting the trial, because he had sentenced W in 1992.
In my opinion, that could not possibly be a sufficient ground for saying that the trial judge erred in not disqualifying himself on the perception of bias.
FAILURE TO DISCHARGE JURY
On the first day of the trial, it came to the trial judge’s attention that one of the jury complained that she did not want to be part of the jury, because of her work situation and the anticipated length of the trial. The appellant submitted that accordingly, it became apparent to the trial judge that the juror was under duress, and may not have fulfilled her duties as an impartial attentive juror. The trial judge should have discharged the jury. The consequent short delay was not a sufficient reason for not doing so.

I accept the Crown’s submission that the complaint of the juror was not a proper basis for the juror to be excused, and was not an indication of any reasonable possibility that she might not fulfil her duties. In my opinion, the appellant has not shown there was error in the exercise of the trial judge’s discretion in this matter.
ILLEGAL CONDUCT OF POLICE
The appellant submitted that the case was subject to the principles of Ridgeway v. The Queen (1995) 184 CLR 19, because no certificate under s.15M of the Crimes Act 1914 had been tendered. He submitted that the police officers, and W, aided, abetted, and induced the commission of offences for which the appellant and the other alleged conspirators were charged. He submitted that it was misconceived to suggest that these persons had no intention to encourage or to be part of a conspiracy. But for pressure from the police, Reardon would not have continued with the matter. Also, the police financed the ongoing operations, and arranged for the provision of $US375,000.00 which was to be used for the purchase of the drugs.
The appellant submitted that the NCA was in breach of the UN Convention against drug trafficking; and also acted outside its powers, in that there was no “reference” to conduct this investigation until 6 November 1997.
In my opinion, as shown by Yip Chiu-Cheun v The Queen [1995] 1 AC 111, a police agent who agrees with another to traffic in unlawful drugs will be guilty of the offence of conspiracy, even though his motive may be to arrest drug dealers and suppliers. However, the present case is not one where the criminal conduct alleged against the appellant and the other alleged conspirators was “’procured’ by illegal conduct of law enforcement officers”, much less one where “illegal police conduct was itself the principal offence to which the charged offence was ancillary, or creates or itself constitutes an essential ingredient of the charged offence”: see Ridgeway at 39.
The alleged conspiracy arose and existed independently of police involvement, and at most the police involvement contributed to some of the acts undertaken in furtherance of the conspiracy. It is not necessary to determine whether that involvement could itself have amounted to criminal conduct, as discussed in Yip Chiu-Cheun. The conduct fell so far short of conduct treated in Ridgeway as being sufficient to justify exclusion of evidence, and a stay of proceedings, that it would not have been a proper exercise of discretion of the trial judge to exclude it.
The evidence before us does not establish there was no “reference” for the NCA prior to 6 November 1997.
EVIDENCE OF CHILEAN POLICE AND OTHER WITNESSES
The appellant has provided extensive submissions concerning evidence given by Chilean police officers in support of a contention that they gave false, indeed deliberately false, evidence.
Some of these submissions concern their written statements. These statements were not used at the trial, except to the extent that they were used in cross-examination by the appellant’s Counsel in an attempt to discredit the witnesses. There is nothing put to this Court in relation to those statements that suggests that the trial in any way miscarried.
There are detailed criticisms of various aspects of evidence of the Chilean police and other witnesses. Some of these matters were fully ventilated before the jury, and there is nothing to suggest there was anything unsatisfactory in the way they were dealt with before the jury. Other submissions dealt with matters based on material not before the jury, but this material is not evidence that was not reasonably available at the time of the trial. In any event, in my opinion none of this material is of significance.
I think that it is appropriate to address three submissions in particular, because they concern evidence of Mr. Alvarez, who gave the significant evidence referred to in par.[15] above, evidence which the appellant claims to have been concocted. The appellant has submitted a statutory declaration by Reardon to the effect that the visit referred to in that evidence did not occur. For obvious reasons, that evidence of itself would not satisfy the requirement for fresh evidence of pre-trial unavailability, credibility and materiality, but it makes it appropriate to look at the three submissions to which I have referred.
First, Mr. Alvarez gave evidence that Chilean police arranged for $US375,000.00 in cash to be put in a safety deposit box. The appellant referred in his submissions to a bank document showing an application to transfer this amount from Sydney to Chile, and a statement by a Mr. McBurnie acting for the NCA in Administrative Appeal Tribunal’s proceedings on 6 June 2001 to the effect that this payment was made, and also to evidence presented to the Court of Criminal Appeal on the occasion of Reardon’s appeal.
In circumstances where Mr. Alvarez was not cross-examined on this matter, it is not possible to say that it could have any bearing on his credit. In so far as the appellant seeks to suggest deceit by the NCA, he is relying on evidence led in other cases, which is not properly before this Court. However, in so far as the appellant relies on what occurred in the Reardon appeal, I note that the matter was dealt with in pars.[198] to [200] in the judgment in the Reardon appeal ([2002] NSWCCA 203), and nothing presented in this appeal suggests that this conclusion was incorrect. To the extent that Mr. McBurnie may have suggested otherwise, it would appear that he was mistaken.
Second, the appellant pointed to inconsistency between evidence given by Mr. Alvarez and a record made by Mr. Velarde of something said to him by Mr. Alvarez, Mr. Velarde being an interpreter being used by the NCA in their communications with the Chilean police. The appellant complained that Mr. Velarde had not been made available by the Crown as a witness. However, Mr. Velarde’s record of the conversation was in evidence, and was used by the appellant’s Counsel at the trial to attack Mr. Alvarez’s credit. I see no basis therefore for the appellant’s complaint.
Third, the appellant submitted that the important evidence referred to in par.[15] above was inconsistent with evidence given by other Chilean police officers.
The appellant referred to evidence by Mr. Ibinarriaga, the Chilean police officer in charge of surveillance, to the effect that about twenty people were involved underneath him in the surveillance operation in Chile; yet none of these people, given the task of the surveillance of Reardon or the protection of Mr. Alvarez, saw these two walk to Centra Apartments on 10 October 1997.
The appellant also referred to evidence given at Reardon’s trial by Mr. Guitierrez to the effect that between 6 and 10 October he was conducting surveillance on Reardon, for most of the time; but who said nothing about Reardon meeting Mr. Alvarez and going to Centra Apartments. Third, the appellant referred to a written statement by another Chilean officer Mr. Ramos which stated: “On 10 October 1997, Michael Reardon and the undercover police officer “Oscar” met and they walked around the Providencia district. They visited the Brannigans Bar & Grill and other premises in that area”. The appellant submitted that this officer mentions nothing about a visit to Centra Apartments, which was in the opposite direction from Apartment Lota (from which Mr. Alvarez said he left with Reardon to go to Centra Apartments) to Brannigans Bar, and which was some distance from the commercial premises of Providencia.
In so far as this relies on material that was not used at the appellant’s trial, it is material that was available to the appellant, and so could not satisfy the test of fresh evidence. In any event, in my opinion this material is not of such weight as to count against Mr. Alvarez’s evidence to an extent that might reasonably have made some difference in the appellant’s trial.
FRESH EVIDENCE – NON-DISCLOSURE
The appellant has provided submissions concerning NCA running sheets, which were not available at his trial but have subsequently been made available, and also concerning non-disclosure of the full criminal and psychiatric history of W.
As to the latter, we do not have evidence showing matters additional to those disclosed at the hearing that would have impacted significantly on W’s credibility. In any event, his credibility was not important in the case. His only role as a witness in the case was as a participant in recorded conversations.
As regards subsequently disclosed running sheets, there has been no material identified which could have been of significance in the appellant’s case.
In so far as the running sheets could be used to suggest pressure was being applied on Reardon to proceed with the conspiracy, in my opinion they could not make any difference to the position as discussed above in relation to the application of the Ridgeway principle. In so far as they could have tended to support Reardon’s contention that he was not intending to import drugs but only to “rip off” other participants, in my opinion that is not a matter that could materially have affected the appellant’s trial.
UNREASONABLE VERDICT
The appellant submitted that there was no evidence linking or connecting him to Reardon prior to his meeting Reardon in Chile after 10 October 1997; yet it was the Crown case that he conspired with Reardon from early 1997. There was no evidence of any meetings or phone calls, despite the fact that Reardon was heavily monitored and under surveillance from June 1997. The police knew Reardon’s identity, address, phone numbers (home and mobile) and vehicle, and even knew of his meetings with the so-called “Canberra man”, yet there was no evidence, prior to 10 October 1997, as to the identity of this person. The appellant submitted that he was under heavy surveillance from June 1997 in relation to the cannabis offence by the Australian Federal Police, yet there was nothing from that surveillance connecting him to Reardon. The appellant also pointed to long deliberation by the jury, and yet an apparent sudden change of mind by one or more jurors.
In my opinion, the evidence to which I have referred at pars.[6] to [16] above was capable of proving beyond reasonable doubt that the appellant was a person involved in the conspiracy to import 50 kilograms of cocaine into Australia. The appellant’s resistance to that inference depended very much on his assertion that he met Reardon by accident on the evening of 13 October 1997. Reardon’s facsimiles referred to in par.[8], and the evidence of Mr. Alvarez referred to in par.[15], amount to powerful evidence that contact between Reardon and the appellant on 13 October 1997 was no coincidence. The subsequent substantial participation by Reardon in relation to the importation of wine arranged by the appellant was further powerful evidence that they had not just met by chance on 13 October 1997. In my opinion, it was well open to the jury to be satisfied beyond reasonable doubt of the appellant’s participation in the conspiracy.
SENTENCE APPEAL
For the reasons given above, in my opinion the appellant’s appeal against conviction on the cocaine charge should be dismissed, and the appeal against sentence on both charges needs to be considered.
In her submissions for the appellant, Ms. Mundey submitted that the appellant was sentenced on the cocaine offence on a mistaken premise, namely that the sentences for the other major conspirators were, for Reardon, 18 years imprisonment with a 14 year non-parole period, for Michaels 20 years imprisonment with a 16 year non-parole period, and for Taylor 12 years imprisonment with a 10 year non-parole period; whereas these sentences were subsequently reduced on appeal to respectively 18 years with a 12 year non-parole period, 18 years with a 13 year non-parole period and 12 years with an 8 year non-parole period. Another conspirator, Douglas Crombie, had pleaded guilty; and in respect of him, Shillington DCJ had indicated that, but for his plea and assistance, an appropriate sentence would have been 15 years with a 12 year non-parole period. Ms. Mundey submitted that the appellant’s criminality was no greater than any of these, and arguably was less. He was not a principal organiser, as was Reardon. He did not recruit others to the conspiracy, as did Crombie. He did not threaten a woman to continue her involvement in the conspiracy, as did Reardon. He was not responsible for organising finance, as was Reardon; and he was not responsible for organising the supply of the drug, as were Crombie and Michaels.
The appellant had a previous conviction for a similar offence, for which he was sentenced to 14 years imprisonment with a non-parole period of 8 years commencing 30 June 1986; and had a record of summary offences committed in 1983. Michaels also had a previous similar conviction, and was still on parole at the time of this offence. Crombie had less serious drug conviction. Reardon was described as having been a petty criminal, with an old armed robbery conviction, and no drug convictions.
Accordingly, Ms. Mundey submitted, the appellant’s head sentence should be no more than 18 years at the most. He had been given a non-parole period of 75%, which was usually reserved for the worst cases. This could not be regarded as such. In particular, the cocaine the subject of the charge had not been acquired, much less imported.
As regards the cannabis offence, Ms. Mundey submitted that the co-conspirator had pleaded not-guilty, yet received a much lesser sentence of 12½ years with a 7½ year non-parole period. The co-offender had no previous drug convictions, but did have a substantial criminal record. The appellant had pleaded guilty, and his criminality was no greater than that of the co-offender. Ms. Mundey submitted that the sentencing judge in this case had shown error from the point of view of parity, giving insufficient weight to the plea of guilty, insufficient differentiation between cocaine and cannabis, and had not paid sufficient regard to totality. The sentencing judge accepted that the plea indicated a change in the appellant’s attitude and some remorse; and this conflicted with the view expressed earlier by the sentencing judge that he doubted there were any prospects of rehabilitation.
On the question of totality, Ms. Mundey submitted that a 29 year sentence with a 20 year non-parole period for a 48 year old man with a son born in 1997 was “crushing”; and that it did not hold out a proper measure of hope for, or encouragement of, rehabilitation and reform.
For the Crown, it was submitted that a higher sentence for the appellant was justified than for Reardon (the appellant had a previous conviction for a similar offence) and Michaels (the appellant was one of the prime movers of the conspiracy). A 75% non-parole period was appropriate, particularly in circumstances where the offence had been committed within about three years of parole served for the prior similar offence. The appellant showed no contrition, and there were no significant subjective features. As regards the Court of Criminal Appeal decision concerning the other conspirators, the sentencing judge had referred to head sentences only of co-offenders, and only Michaels had his head sentence changed by the Court of Criminal Appeal.
As regards the cannabis offence, the Crown pointed out that this was the appellant’s fourth conviction for importing prohibited imports; and also that the plea was not made at the earliest opportunity.
In my opinion, the appellant has not demonstrated error in the sentence for the cocaine offence on the basis of parity, or on the basis of the alteration of sentences of co-conspirators in the previous Court of Criminal Appeal decision. It is possible to justify a higher head sentence for the appellant than for Reardon and Michaels, on the basis put forward by the Crown; and the adjustment of sentences of the co-conspirators by the Court of Criminal Appeal does not significantly impact on questions of parity. The non-parole period might be considered high, but I am unable to identify any particular error of the kind that was identified by the Court of Criminal Appeal in the case of Reardon and Taylor. I am not satisfied that the overall result is manifestly excessive.
Turning to the cannabis offence, it would have been preferable for the sentencing judge to have given some indication of his quantification of the allowance made for the plea of guilty, and/or some indication of his starting point. It would appear that the starting point must have been around 17 years, which seems high in comparison with the 12½ year sentence imposed on the co-conspirator in that case, although the appropriate comparison may be with 13 years and 4 months which was considered by the sentencing judge in that case to be the appropriate sentence before some minor deductions personal to that offender. It seems clear that the discrepancy arises from the need identified by the sentencing judge for a significant element of personal deterrence, by reason of the appellant’s other drug offences. However, I would note that this consideration had already produced a head sentence for the cocaine offence about two years longer than it otherwise might have been; and it seems to me that the primary judge may in those circumstances have given too much weight to a need for additional personal deterrence in the sentence for this cannabis offence.
In my opinion, the resulting sentence, based on a starting point of 17 years, indicates to me that the primary judge did err, either in giving too much weight to personal deterrence, or in having too little regard to parity, or having too little regard to the mitigating effect of the plea of guilty and expression of contrition. In my opinion, the appropriate starting point would have been around 14 years, and with the discount for the plea of guilty and contrition, an appropriate sentence would be 12 years.
The 12 years should start at the end of the non-parole period of the cocaine offence, giving a total of 27 years. In my opinion, the total non-parole period should then be 18 years.
CONCLUSION
For those reasons, in my opinion the following orders should be made:
1.Appeal against conviction dismissed.
2.Leave to appeal against sentences granted.
3.Appeal against sentence for the cocaine offence dismissed.
4.Appeal against sentence for the cannabis offence allowed, sentence set aside, and in lieu thereof there be a sentence of imprisonment for 12 years commencing 21 November 2012, and that there be a total non-parole period of 18 years commencing 21 November 1997.
The effect of the sentence is that the appellant could expect to be released on parole on 21 November 2015, subject to good behaviour.
GROVE J: I agree with Hodgson JA.
HOWIE J: I agree with Hodgson JA.

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LAST UPDATED: 09/07/2004