R v FBK; Ex parte
[2025] QCA 115
•24 June 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v FBK; Ex parte Director of Public Prosecutions (Cth) [2025] QCA 115
PARTIES:
R
v
FBK
(respondent)
EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS (Cth)
(appellant)FILE NO/S:
CA No 224 of 2024
SC No 775 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by Director of Public Prosecutions (Cth)
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Sentence: 16 December 2019 (Ryan J)
DELIVERED ON:
24 June 2025
DELIVERED AT:
Brisbane
HEARING DATE:
4 April 2025
JUDGES:
Bond and Bradley JJA and Cooper J
ORDER:
Upon the solicitors for the respondent undertaking to provide the explanation set out in paragraph [72] of these reasons for judgment:
1. The appeal is allowed.
2. The sentences imposed on 16 December 2019 are set aside and in lieu thereof the respondent is sentenced to:
a. imprisonment for 15 years on Count 1;
b. imprisonment for 3 years on Count 2.
(the substituted sentences)
3. The single non-parole period fixed on 16 December 2019 is set aside, and in lieu thereof, a single non-parole period of 8 years and 6 months is fixed under s 19AB of the Crimes Act 1914 (Cth).
4. The substituted sentences are both to be served concurrently and are, by order, directed to commence on 16 December 2019.
5. 537 days spent in presentence custody between 27 June 2018 and 15 December 2019 is declared as time already served under the substituted sentences.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the respondent pleaded guilty to one count of conspiracy to import a commercial quantity of a border controlled drug and one count of dealing with proceeds of crime worth $10,000 or more – where the respondent gave an undertaking to cooperate with law enforcement agencies including by providing evidence as a witness for the Crown in proceedings brought against other alleged offenders – where, because of that undertaking, the trial judge substantially reduced the respondent’s sentence under s 16AC of the Crimes Act 1914 (Cth) – where the respondent did not give full and truthful evidence about certain matters in accordance with his undertaking at the trial of the other alleged offenders – where the trial judge at the trial of the other alleged offenders declared the respondent a hostile witness and granted the Crown leave to cross-examine him on parts of a statement he had provided to law enforcement agencies pursuant to the undertaking and about which he had given evidence at the trial which was inconsistent with the statement – where pursuant to s 16AC(3) of the Crimes Act 1914 (Cth) the Crown appealed against the inadequacy of the reduced sentence imposed on the respondent on the basis of his partial failure to cooperate in accordance with his undertaking – where the respondent accepted that he had partially failed to cooperate in accordance with his undertaking but contended that the Court should not exercise its discretion to substitute an increased sentence – whether the Court should exercise the discretion to substitute an increased sentence
Crimes Act 1914 (Cth), s 16AC
Evidence Act 1977 (Qld), s 101Director of Public Prosecutions (Cth) v Haunga (2001) 4 VR 285; [2001] VSCA 73, considered
Director of Public Prosecutions (Cth) v Johnson [2012] VSCA 38, considered
Director of Public Prosecutions (Cth) v Wang (2019) 279 A Crim R 491; [2019] VSCA 250, considered
R v Dehghani; Ex parte Director of Public Prosecutions (Cth) [2012] 1 Qd R 339; [2011] QCA 159, cited
R v Gladkowski (2000) 115 A Crim R 446; [2000] QCA 352, cited
R v MI (2018) 275 A Crim R 316; [2018] NSWCCA 251, cited
R v Vo; R v Tran [2006] NSWCCA 165, citedCOUNSEL:
S J Farnden KC, with D Kerr, for the appellant
M F Bonasia for the respondentSOLICITORS:
Director of Public Prosecutions (Commonwealth) for the appellant
A W Bale & Sons for the respondent
BOND JA: I agree with the reasons for judgment of Cooper J and with the orders proposed by his Honour.
BRADLEY JA: I agree with the reasons of Cooper J and with the orders proposed by his Honour.
COOPER J: On 12 December 2019, the respondent[1] pleaded guilty to the offences of conspiracy to import a commercial quantity of a border controlled drug (Count 1) and dealing with proceeds of crime worth $10,000 or more (Count 2). Prior to sentencing, the respondent had given an undertaking to cooperate with law enforcement agencies, and in particular (among other things) to give full and truthful evidence for the Crown, in accordance with his statement dated 18 September 2018, in any proceedings the Crown may nominate, including proceedings in respect of PKO and XDK. The undertaking was given under s 16AC of the Crimes Act 1914 (Cth) (the Act).
[1]Given the respondent’s cooperation with authorities and involvement in serious drug offending, the names of the respondent and the alleged co-conspirators have been anonymised.
On 16 December 2019, the respondent was sentenced by Ryan J to concurrent terms of imprisonment of 11 years and 6 months for Count 1, and 2 years and 6 months for Count 2, with a single non-parole period of 6 years and 6 months. A period of 537 days spent in pre-sentence custody was declared as time served. Pursuant to s 16AC(2)(b) of the Act, Ryan J stated that, but for the respondent’s undertaking, she would have sentenced the respondent to concurrent terms of imprisonment of 23 years for Count 1, and 4 years for Count 2, with a single non-parole period of 13 years. That is, both the head sentence for Count 1 and the non-parole period were reduced by half because of the respondent’s undertaking to cooperate.
The Commonwealth Director of Public Prosecutions (the Director) appeals against the original sentence, on the ground it is now inadequate in circumstances where the respondent, without reasonable excuse, failed to cooperate in accordance with his undertaking.
The respondent accepts that, when he gave evidence at the trial of PKO and XDK, he partially failed to cooperate in accordance with his undertaking, and that he did not have a reasonable excuse for having done so. However, he submits the Court should not exercise the discretion under s 16AC(4)(b) of the Act to substitute a new sentence, because that would amount to punishing him for an initial unwillingness to comply fully with his undertaking, rather than withdrawing an unearned benefit.
For reasons which follow, the original sentence should be set aside and, in lieu thereof, the respondent should be sentenced to concurrent terms of imprisonment of 15 years on Count 1, and 3 years on Count 2, with a non-parole period of 8 years and 6 months.
Principles which guide the exercise of the resentencing discretion
Reduction of a sentence by reason of an undertaking to cooperate with law enforcement reflects the fact that, by providing information about co-offenders, an offender puts himself or herself, and sometimes his or her family and associates, at risk of retribution.[2]
[2]R v Gladkowski (2000) 115 A Crim R 446, 447–448 [7] (Gladkowski); R v Dehghani; Ex parte Director of Public Prosecutions (Cth) [2012] 1 Qd R 339, 341 [12] (Dehghani).
Sections 16AC(3) and (4) of the Act provide for an appeal by the Director in circumstances where a person convicted of a Commonwealth offence, without reasonable excuse, fails to cooperate (either entirely or partially) in accordance with an undertaking. The provisions give the Court power to remove a provisional benefit granted on the basis of an undertaking to cooperate in circumstances where the undertaking is not fulfilled.[3] The legislative purpose is not to punish the respondent for failing to cooperate but rather to restore (to the appropriate degree) the sentence which would have been imposed if the offer of cooperation had not been made.[4] The scope of the discretion conferred by the provision is defined by that purpose and it is to be exercised in the context of a legislative scheme which envisages that the sentencing judge will have taken all other relevant factors into consideration in arriving at what would otherwise have been a proper sentence and will have then reduced that notional sentence on account of the respondent’s undertaking to cooperate in the future.[5]
[3]Gladkowski, 449 [12].
[4]R v Vo; R v Tran [2006] NSWCCA 165, [38] cited with approval in Dehghani, 349 [46].
[5]Dehghani, 348 [45].
To engage the Court’s discretion, the Director bears the onus of proving, beyond reasonable doubt, that the respondent failed to cooperate in accordance with the undertaking, and that he did so without reasonable excuse.[6] As already observed, the respondent concedes both these matters on this appeal.
[6]Dehghani, 343 [14]; R v MI (2018) A Crim R 316, 324 [38] (MI).
If the failure to cooperate is found to be entire (which is not the submission of the Director on this appeal), in accordance with s 16AC(4)(a), the Court must intervene and must remove the entirety of the reduction granted because of the undertaking to cooperate. If the failure to cooperate is found to be partial (which is the agreed position on this appeal), in accordance with s 16AC(4)(b), the Court may intervene to adjust the sentence as it sees fit (subject to the sentence imposed on appeal not being more severe than that which would otherwise have been imposed at the sentence hearing but for the respondent’s cooperation).[7]
[7]MI, 323 [26].
The Director is not required to establish error in the original sentencing process; that is, there is no requirement for the Director to establish that the original sentence was inadequate at the time it was imposed. To set the original sentence aside and resentence the respondent, by imposing an appropriately increased sentence, the Court need only conclude that the original sentence has become inadequate by reason of the respondent’s failure to cooperate in accordance with the undertaking to cooperate.[8]
[8]Director of Public Prosecutions (Cth) v Haunga (2001) 4 VR 285, 293 [19] (Haunga).
In performing that exercise, the Court has no power to reconsider the appropriateness of the original sentence.[9] A sentence which this Court might substitute for the reduced sentence cannot exceed that which Ryan J specified she would have imposed but for the respondent’s undertaking,[10] although it might also be a lesser sentence. If the discretion to intervene is exercised, the additional sentence imposed should, so far as the Court is able, effect an increase in the sentence which reflects the extent to which the promised cooperation has not been forthcoming.[11]
[9]Haunga, 291 [14]; Dehghani, 349 [46]–[48].
[10]Haunga, 294 [21]; Dehghani, 349 [46]–[48].
[11]R v Vo; R v Tran [2006] NSWCCA 165, [38].
In Director of Public Prosecutions (Cth) v Haunga, Tadgell JA (with whom Callaway and Batt JJA agreed) stated that the proper exercise of the discretion requires the making of a value judgment, and the striking of a balance, to determine what sentence is appropriate in light of the relevant events that have happened since the imposition of the original sentence. If the Court exercises the discretion, it should substitute a sentence that properly reflects all relevant circumstances surrounding the respondent’s failure to cooperate in accordance with the undertaking that led to the reduced sentence.[12] In seeking to persuade the Court to substitute a sentence increased by something less than the whole of the reduction given for the undertaking to cooperate, the respondent is entitled to point to such cooperation as he gave and to any other circumstances tending to minimise the seriousness of the repudiation of his undertaking in terms of both its circumstances (remembering that he concedes there was no reasonable excuse for it) and its consequences. The Court is required to make an evaluation of those things as a matter of overall impression and estimation, taking into account, for example, of the extent to which the Crown and the community have been disadvantaged by the respondent’s repudiation.[13]
[12]Haunga, 291 [14].
[13]Haunga, 294 [21].
The reasoning in Haunga was cited with approval in this Court by Margaret Wilson AJA (with whom Ann Lyons J and Martin J agreed) in Dehghani.[14]
[14]Dehghani, 350–351 [51].
In oral argument on the present appeal Ms Farnden KC, who appeared with Mr Kerr for the Director, submitted that the consequences of a failure to cooperate should no longer be treated as a relevant consideration in the exercise of the resentencing discretion. She relied on two Victorian decisions as authority for that proposition. On a proper understanding of those cases, I am unable to accept the submission.
In Director of Public Prosecutions (Cth) v Johnson,[15] Hollingworth AJA (with whom Maxwell P and Cavanough AJA agreed) stated that the Court was “not concerned with the consequences of the respondent’s failure to comply with her undertaking.” That statement was made in the context that Johnson disputed a submission that the Crown was effectively forced to drop a conspiracy charge against Johnson’s co-offender once it became clear that she was not going to give evidence in accordance with her undertaking.
[15][2012] VSCA 38, [28] (Johnson).
The nature of that dispute can be seen from the following part of the judgment which includes the statement upon which the Director relies:
“27The Crown says that it was effectively forced to drop the conspiracy charge … once it became clear that the respondent was not going to give evidence in accordance with the undertaking. The respondent says that is inconsistent with the Crown’s position at the plea, when the prosecutor said that the prosecution could proceed without the respondent’s evidence. The respondent essentially says it is ‘unfair’ for the Crown to minimise the importance of the respondent’s evidence at the plea (in order to minimise the sentencing discount for co-operation), but then to rely upon the respondent’s failure to give evidence as the reason for dropping the conspiracy charge at trial. Although the respondent’s unfairness argument may seem to have a superficial appeal, it does not stand up to scrutiny, for several reasons.
28First, we are not concerned with the consequences of the respondent’s failure to comply with her undertaking. That is to say, it is not our role to determine whether her failure to give evidence did in fact necessitate the dropping of the conspiracy charge, or was in fact the reason for that occurring.
29Secondly, the different assessments of the importance of the respondent’s evidence were given almost two years apart. It is not uncommon for the evidence of a particular witness to assume greater or lesser importance, as preparation for a criminal prosecution proceeds. There is no suggestion, and no evidence, that the Crown did not genuinely make different assessments of the importance of the respondent’s evidence, at her plea and at [the co-accused’s] trial, so as to make this appeal ‘unfair’ in some way.
30Finally, relying on the Crown’s assessment of the limited value of the respondent’s undertaking, the learned sentencing judge gave her a smaller sentencing discount than she might otherwise have given. So, having now breached the undertaking, the respondent faces a more limited increase in sentence than she would have faced, had the sentencing judge proceeded on the basis that the respondent’s evidence was critical to the prosecution of [the co-accused]. That is to the respondent’s benefit.”
Read in its full context, paragraph 28 of Johnson should be understood to mean nothing more than a rejection of the suggestion that it was part of the Court’s function, on the Director’s appeal against the inadequacy of the sentence, to resolve the dispute about the reason the Crown dropped the conspiracy charge. It was a statement made by the Court in its consideration and rejection of Johnson’s unfairness argument. It was not a statement about the matters that might properly be considered by the Court for the purpose of assessing the seriousness of a failure to cooperate when it exercises the resentencing discretion. I do not read anything said in Johnson as a rejection of the reasoning in Haunga set out at [14] above.
The second decision to which Ms Farnden KC referred was Director of Public Prosecutions (Cth) v Wang,[16] in which the Victorian Court of Appeal (Beach, Niall and Ashley JJA) observed that the question whether a co-offender was convicted or acquitted at trial after Wang’s partial failure to cooperate was “beside the point, just as was the actual reason for [the co-offender’s] acquittal.” Again, the context in which the Court of Appeal made that statement is important.
[16](2019) 279 A Crim R 491, 501 [42] (Wang).
Wang was convicted of a drug importation offence after the ship he captained was seized off the Victorian coastline and found to be carrying cocaine. Wang gave an undertaking to give evidence at the trials of his co-offenders. Most of those co-offenders were members of a shore party who were to travel by small boat to the vicinity of the ship and take possession of the cocaine. Wang did not have any direct contact with those co-offenders. Of greater relevance to the appeal were parts of Wang’s statement which implicated another member of the ship’s crew. Wang’s statement was said to be important in the trial against the crewmember.
At that trial, Wang gave evidence in accordance with his statement in many areas but denied that he had told police officers some matters recorded in the statement. He was declared a hostile witness. The prosecutor then read various paragraphs of the statement to Wang and asked him whether their contents corresponded with what he had told police, and whether they were the truth. In some instances, Wang denied saying things which were set out in the statement. The relevant paragraphs of the statement were then tendered in evidence by the prosecutor, not as going adversely to Wang’s credit, but as proof of the truth of the matters there stated. The matters denied by Wang broadly concerned the implication of the crewmember in the offending. The crewmember was acquitted.
On the hearing of the appeal against the inadequacy of Wang’s sentence, counsel for the Director informed the Court that the acquittal of the crewmember was for a reason other than Wang’s partial failure to cooperate when he gave his evidence. Instead, it was said that, sometime after Wang had given his evidence, the crewmember’s counsel successfully submitted there was a flaw in the prosecution case because there was no evidence that the crewmember knew the cocaine was to be imported into Australia, rather than it being imported into some other country. On that basis, counsel for the Director submitted that a “modest” increase in Wang’s sentence would be appropriate.
Against that background, the Court made the statement now relied upon by the Director in this appeal, which appears in the following passage:[17]
“Accepting as we do that, as this Court has said, the exercise of its jurisdiction in the present connection ‘requires the making of a value judgment, and the striking of a balance, in order to determine what sentence … is appropriate in the light of the relevant events that have happened since the imposition of the original sentence’ [citing Haunga, at 291 [14]], we consider that Wang’s partial failure to abide his undertaking was significant rather than modest. The Court’s function, it was common ground, is not to punish but to assess the extent of non-cooperation in the context provided by s 16AC(4)(b). The extent of Wang’s failure to cooperate, by reference to his written statement concerning [the crewmember’s] involvement, is patent and capable of rational reassessment of sentence. We consider that whether [the crewmember] was convicted or acquitted is beside the point, just as was the actual reason for his acquittal. The public policy reason why a sentencing discount should be allowed to an offender who promises to give evidence implicating a co-offender or offenders does not lose force because, as it turns out, the promise was not adhered to but an alleged co-offender was acquitted for some unrelated reason.”
The Court went on to state that, despite their view that Wang’s partial failure to cooperate was significant rather than modest, they would act on the Director’s submission that a “modest” increase in sentence would suffice.
[17]Wang, 501–502 [42].
In my view, the observation by the Court in Wang about the conviction or acquittal of the crewmember being “beside the point” should be understood as a statement that the outcome of the trial of a co-offender does not, of itself, determine the significance of a partial failure to cooperate at that trial. Just as the public policy reason for the sentencing discount for promised cooperation does not lose force in the circumstances described in the final sentence in the passage extracted in [24] above, the public policy reason for removing the discount when the promised cooperation is not forthcoming (evident in the legislative purpose described at [9] above) does not lose force because (as was the case in Dehghani) a co-offender is convicted despite the partial failure to cooperate, or (as was the case in Wang) a co-offender is acquitted but for a reason that is unconnected to the partial failure to cooperate.
But to recognise that a partial failure to cooperate may be characterised as serious regardless of the outcome of the trial of a co-offender does not amount to a rejection of the proposition that the Court’s assessment of the seriousness of the failure to cooperate, in exercising the resentencing discretion, can involve consideration of the consequences of the failure to cooperate in a broader sense. If that had been the point the Court was making in Wang, it is surprising that, despite citing the decision in Haunga in the same passage in which the statement was made, their Honours did not directly address the reasoning set out at [14] above. I do not read anything said by the Court in Wang as a rejection of that reasoning.
The facts on which the respondent was sentenced
The respondent is a citizen of Papua New Guinea (PNG). At the time of the offending, he was living in PNG and was employed in the freight logistics industry.
Between April 2016 and his arrest in June 2018, the respondent conspired with PKO and XDK to import a commercial quantity of a border controlled drug (cocaine) into Australia from South America via PNG. From PNG, the cocaine was to be transported across the Torres Strait into far north Queensland using a small watercraft. The total quantity of cocaine the conspirators intended to import was approximately 600 kg.
The respondent acted at the direction of PKO, who was responsible for facilitating the transportation of the cocaine from South America to Australia. The respondent’s role included:
(a)providing advice to PKO about transportation and importation processes in PNG, regulatory requirements for importing goods, and the costs associated with the importation of goods into PNG;
(b)registering fictitious business entities that were used in connection with the importation of the cocaine;
(c)using his local knowledge and business contacts to facilitate the clearance of the container that contained the cocaine through PNG Customs;
(d)using money provided to him by PKO to make payments in PNG relating to the importation and clearance of the container that contained the cocaine, including paying bribes to members of PNG Customs and the National Agriculture and Quarantine Inspection Authority in order to avoid standard freight inspection and treatment requirements; and
(e)retrieving the cocaine from the container once it cleared PNG Customs and arranging for its transportation from Port Moresby to Daru Island in the PNG Western Province, and from there by watercraft across the Torres Strait into Australia.
In order to communicate and make plans regarding the intended importation of the cocaine without being detected, the respondent and PKO would correspond using the encrypted communication platform WhatsApp and would access encrypted ProtonMail email accounts and leave draft emails for the other to review and add to. To avoid detection by law enforcement, the respondent and PKO used coded speech in their communications to refer to persons and items involved in, or associated with, the attempted importation. Relevantly for the purposes of this appeal, those coded terms included the expressions “gold” or “AU” to refer to cocaine.
During the period of the conspiracy, the defendant travelled to Brisbane for the purpose of meeting with family members living in Queensland on three occasions. On each occasion he was in Brisbane, the respondent met in person with PKO to discuss and plan the intended importation of cocaine.
In late 2017 and early 2018, the respondent and his co-conspirators made one unsuccessful attempt to import cocaine into Australia that had been concealed within a sea container which contained ten pallets of fruit jams and was intended to also have 300 kg of cocaine concealed within it. Once that container was cleared through PNG Customs in Port Moresby in January 2018, the respondent accessed it and discovered that there was no cocaine concealed within it as expected. The respondent and his co-conspirators ultimately concluded that the cocaine had been stolen from the container, either as part of an “inside job” within the syndicate in Peru that supplied the cocaine, or by another unknown party during the container’s transit from Peru to PNG.
The respondent and his co-conspirators then commenced preparing to import another sea container into Australia containing a further quantity of cocaine. Preparations for that second attempted importation were nearing finalisation when the Peruvian National Police arrested a criminal syndicate in Peru, which included the Peruvian contact with whom the respondent’s co-conspirators had been arranging the supply of cocaine. Australian law enforcement arrested the respondent and his co-conspirators shortly after the law enforcement action in Peru.
On 15 June 2018, members of the Royal Papua New Guinea Constabulary (RPNGC), accompanied by members of the Australian Federal Police (AFP), Australian Border Force and Queensland Police Service executed a search warrant at the respondent’s workplace. The respondent was present during that search. Police located the following:
(a)in a drawer at the respondent’s workstation, the container seals which secured the container used in the first unsuccessful importation attempt;
(b)a Huawei SLA-L22 mobile device; and
(c)digital evidence that, from both his work computer and the Huawei mobile device, the respondent had frequently accessed a ProtonMail account which PKO also accessed.
Later the same day, the respondent participated in an interview with members of the RPNGC and the AFP during which he made the following admissions:
(a)his uncle had introduced him to PKO in Port Moresby;
(b)he had originally agreed to transport “liquids” across the Torres Strait for PKO;
(c)PKO had created the ProtonMail accounts and instructed him on how to “draft drop” emails to avoid interception of their messages;
(d)his understanding was that the “blocks” mentioned in communications between him and PKO were a reference to cocaine;
(e)the handover of the cocaine was originally to take place in PNG waters in the Torres Strait, but that plan changed to leaving the cocaine in a hotel room for an unknown person to collect;
(f)PKO had instructed him on the two alternatives for dealing with a duffel bag containing cocaine if it was located in the container that arrived in PNG in January 2018;
(g)as late as May 2018, his understanding was that a second container of fruit jams was being prepared, that he would be required to assist to land and clear the container, and that it would contain cocaine.
At the conclusion of that interview, the respondent was released without charge.
On 27 June 2018, the respondent voluntarily returned to Australia from PNG. He was arrested by police upon his arrival in Brisbane and charged with the offences to which he pleaded guilty.
The respondent’s undertaking
The undertaking which the respondent signed confirmed that his legal representatives had explained the provisions of s 16AC of the Act to him, and that he had read the undertaking and understood its contents. The relevant part of the undertaking which the respondent did not fully comply with was in the following form:
“1.To give full and truthful evidence in accordance with my statement dated 18 September 2018 (attached) and any supplementary statement I may provide in furtherance of this undertaking for the Crown in any proceedings that the Crown may nominate relating to offences committed by [PKO], [XDK], … or anyone else, including all current proceedings arising out of events disclosed in my statement and any other statement given in furtherance of this undertaking.”
The respondent’s statement dated 18 September 2018
The respondent gave his statement to the AFP on the basis that it would be used to assess his offer of assistance. It included an acknowledgement that the statement accurately set out the evidence the respondent would be prepared to give in court as a witness and that it was true to the best of his knowledge and belief.
In his statement, the respondent implicated PKO in the conspiracy to import cocaine into Australia. That statement was to the following effect:
(a)The respondent’s uncle introduced PKO to him in Port Moresby in late 2010 or early 2011.
(b)PKO initially spoke to the respondent about how he could go about exporting small quantities of alluvial gold from PNG. PKO then asked the respondent whether he could export a container of liquid from PNG to Australia through the Torres Strait to Bamaga and then to Cairns. PKO would not provide documentation for the liquid and said he did not want the liquid to go into Australia through the normal export channels. From this, the respondent formed the view that the liquid would be an illegal substance. The respondent took steps to arrange for the liquid to be transported from Port Moresby to Daru Island in the Torres Strait and, from there, to Bamaga and then Cairns. That attempted importation was unsuccessful because the person transporting the liquid from Daru Island disposed of it when his boat was chased by authorities. After that PKO stopped communicating with the respondent for a period of years.
(c)PKO contacted the respondent again early in 2016 to discuss him moving another quantity of liquid from Port Moresby to Daru Island and across the Torres Strait. PKO met the respondent in Port Moresby in April 2016 and spoke to him about setting up an encrypted ProtonMail account called [email protected]. PKO also explained draft-dropping to the respondent; that one of them would write a message in the ProtonMail account and save it as a draft and then contact the other by phone or SMS and say “talk to mail”. The other person would then log in to the ProtonMail account to read the message and make changes or leave a new message. PKO told the respondent to always use draft messages and not to press send on a message to avoid the message being transmitted via the internet.
(d)PKO was very secretive and liked to use code words. References to “gold” or “AU” in the respondent’s communications with PKO meant drugs.
(e)From about October 2016, PKO and the respondent discussed importing machinery parts into PNG. The respondent understood that there would be packages of drugs concealed in those machinery parts. He and PKO left draft messages for the other discussing the importation of hydraulic post-hole augers. PKO asked the respondent to prepare a transport route from Santiago through Singapore to Port Moresby for both air freight and sea freight.
(f)PKO later advised the respondent that his associates were having doubts about using air freight. PKO and the respondent also began discussing importing fruit juice concentrate instead of machinery parts. The respondent suggested using tinned fruits as there was a market in PNG.
(g)On 23 January 2017, PKO wrote a draft message on the [email protected] account which was about an unlimited supply of drugs that PKO’s associates were able to access from Peru. PKO informed the respondent that, instead of liquid, 300kg of pure blocks would be hidden under the floor of the container. The respondent assumed the 300kg of blocks would be either cocaine or heroin.
(h)On 1 February 2017, the respondent met PKO in Brisbane to discuss details of the planned importation and to collect money from PKO which the respondent would need to facilitate the importation.
(i)With the respondent’s assistance, PKO set up a false identity — David Muta — to communicate with South American fruit exporters using another ProtonMail account: [email protected]. This was done to establish a chain of communication that would give the appearance of legitimate importation of fruit products into PNG as a cover for the drugs that would be concealed inside. PKO and the respondent also used the [email protected] account to leave draft messages for each other to read.
(j)In April 2017, PKO began communicating with a man called Jorge at a Peruvian fruit company called Noroeste using the [email protected] account. These communications resulted in the container of fruit jams being exported from Peru through Singapore arriving in January 2018.
(k)On 25 September 2017, the respondent flew from PNG to Brisbane to meet with PKO to discuss the proposed importation. PKO said the respondent should fly with the blocks he would retrieve from the container to Daru Island and then transport them by boat to rendezvous with a commercial fishing boat near Deliverance Island where the respondent would hand over the blocks. PKO and the respondent also discussed how the respondent would transfer money which PKO would give him for the purposes of the importation back to PNG. PKO asked if the respondent’s sister could assist by putting the money in different accounts. PKO instructed the respondent to spread the transfers of money to PNG out. The respondent understood that this was because PKO did not want the transfer of funds to come to the attention of authorities because the money was being used for the purpose of importing drugs.
(l)On 17 November 2017, the respondent flew from PNG to Brisbane to meet with PKO to discuss the proposed importation. PKO recommended that the respondent purchase a vacuum sealer to repack the blocks he would retrieve from the container to keep them waterproof. The respondent purchased those items before he returned to PNG.
(m)After the respondent returned to PNG, he withdrew money to pay for the clearance of the container when it arrived in PNG. That was money which PKO had given to the respondent in Australia and which the respondent’s sister had then transferred to the respondent’s PNG bank account.
(n)Shortly before the container arrived in PNG, PKO told the respondent that the blocks were not going to be under the container floor but would instead be inside a black duffel bag in between the rows of fruit jams. PKO instructed the respondent that, once the container had been cleared, the respondent should open it and confirm the duffel bag was inside. The respondent was to leave the duffel bag inside the container and confirm to PKO that it was there. PKO would then contact someone to retrieve the duffel bag from the container.
(o)PKO then changed the plan again and instructed the respondent that he should take the duffel bag out of the container. PKO would give the respondent the name of a hotel and a room number where the respondent was to leave the duffel bag and someone would collect it.
(p)On 6 January 2018 and again on 8 January 2018, the respondent telephoned PKO to discuss delays in the clearance of the container.
(q)When the respondent opened the container on the evening of 8 January 2018, he formed the view that the container seals had been tampered with. He took photographs and sent them to PKO (as PKO had instructed him to do). He was not able to locate the duffel bag inside the container. He exchanged numerous WhatsApp messages with PKO that night and the following day about the seals, how the pallets of fruit were packed and where the duffel bag was.
(r)The container was unpacked on 9 January 2018. The respondent took photographs of this process and sent them to PKO (as PKO had instructed him to do).
(s)PKO then began to make arrangements with Jorge from Noroeste for transport of a second container of fruit jams. Those communications continued until May 2018. PKO told the respondent that the second container would definitely have 300kg of drugs in it, but most likely packed into the boxes of fruit jams.
When the respondent signed his statement, he identified:
(a)printouts of SMS and WhatsApp messages he exchanged with PKO;
(b)printouts of draft messages he and PKO left on the [email protected] account and marked each of the draft messages with the initials of the author;
(c)printouts of messages sent by PKO from the [email protected] account to South American fruit exporters;
(d)printouts of draft messages he and PKO left on the [email protected] account and marked each of the draft messages with the initials of the author;
(e)audio recordings of his telephone calls with PKO on 6 January 2018 and 8 January 2018
The Crown’s written submissions to the sentencing judge on the issue of future cooperation stated that the case against PKO and XDK, independent of the evidence of the respondent, was substantial. However, it was said that the respondent’s evidence would corroborate the Crown case against the co-accused, particularly PKO. It significantly strengthened the Crown case and was of high value to the prosecution. The significance of the respondent’s undertaking to give full and truthful evidence in accordance with his statement was reflected in the leniency afforded to him by Ryan J.
The trial of PKO and XDK
PKO and XDK went to trial on a charge of conspiracy to import a commercial quantity of a border controlled drug and (in the case of PKO only) dealing with proceeds of crime worth $10,000 or more.
The Crown called the respondent to give evidence on days 6, 7 and 8 of the trial. Relevantly, for the purposes of this appeal, he gave evidence-in-chief to the following effect:
(a)PKO contacted him in 2016 seeking assistance moving cargo into PNG. In those early communications he and PKO sometimes talked about importing machinery and sometimes talked about importing gold. They talked about importing gold from South America. PKO needed a way of getting the gold from PNG to Australia.
(b)PKO set up accounts with ProtonMail and provided the passwords for those accounts to him. He communicated with PKO by draft dropping – leaving notes in the drafts in those accounts. That was something PKO instructed him to do.
(c)When he sent a message to PKO which said “Good prospect here for gold. Did some checking and it’s doable”, he was talking about actual gold investments in PNG.
(d)He provided PKO with advice about different options for having freight delivered to PNG. There were a few changes in what they were shipping: gold, machinery parts and concentrated fruit juice.
(e)The reference in a draft message on the [email protected] account to “Goods will be concealed inside” referred to gold being concealed and sent to PNG. The gold would either be packed in liquid so it could be transported out, or it could be transported in blocks.
(f)A draft message on the [email protected] account which contained the words “Goods are under the floor in container. Pure blocks, my friend. Not in fruit tins”, was sent at a stage when he and PKO were talking about gold. Those words referred to pure blocks of gold. In the same draft message, the words “What are you happy with transporting at one time? You will have 300kg to deal with”, referred to 300 kg of gold coming in the container. The words “This is a great opportunity, my friend. They are ready to move onto the next 300kg as well”, meant that after he and PKO had imported the first 300 kg of gold into PNG, they would import another 300 kg.
(g)The ultimate destination for the gold shipment was Australia. Once it cleared customs in Port Moresby it would be repackaged and shipped on to Daru Island and then to Australia. PKO was providing funds to the respondent to be used to pay duties and clearance fees on the freight in PNG. PKO gave him cash for that when he visited Australia. He then deposited the cash in his Australian accounts and transferred the money to his PNG account. On one occasion, his younger sister banked the cash for him after he had returned to PNG.
(h)The plan to import fruit concentrate changed to a plan to import jam from Peru because jam could be easily sold in PNG. When the container of jam ultimately arrived in Port Moresby, he unpacked it. PKO had advised him that, in addition to the jam, there would also be a duffel bag in the container. He was told that there would be blocks of gold in that duffel bag and he expected to find gold in it.
(i)When he met PKO in Brisbane on 25 September 2017, they discussed the clearance of a shipment of solar panels into PNG. He could not recall discussing anything else during that meeting.
(j)When he met PKO in Brisbane on 17 November 2017, they discussed the clearance of the jam container into PNG. He could not recall discussing anything else during that meeting.
(k)After his meeting with PKO on 17 November 2017, he purchased a food sealer, camping equipment and binoculars. The food sealer was for him to use back in PNG. The camping equipment and binoculars were for someone who was engaged in the transport of gold from Daru Island into Australia.
(l)When PKO spoke about a “container with the AU” in their telephone conversation on 8 January 2018, he understood that to mean that the container had gold in it because AU was the abbreviation for gold on the periodic table. He and PKO used the terms “gold” and “AU” interchangeably to refer to gold.
(m)When he opened the container with the jam shipment he found that the container seals had been tampered with. He then sent WhatsApp messages to PKO trying to find out if the gold that PKO said was going to be put into the container had been packed inside a pallet of jam.
(n)He was not involved in any arrangements in relation to a further shipment of jam.
Before the recommencement of the respondent’s evidence-in-chief on day 8 of the trial, the Crown indicated that it was considering making an application to have him declared a hostile witness and to ask him questions about parts of his earlier statement. Once the Crown had exhausted the non-leading questions it could ask, the respondent gave evidence about the events which occurred after law enforcement agencies intervened: on 15 June 2018, police executed a search at his workplace; he then agreed that police could search his home; after those searches had occurred he participated in an interview with police; he travelled to Australia voluntarily on 27 June 2018, and, over a number of days, he was interviewed and provided the statement to police that he signed on 18 September 2018.
The Crown then asked for the respondent to be stood down as a witness on the morning of day 8 of the trial (a Wednesday) and proceeded to call other witnesses. By about the middle of that day, the other available witnesses had completed their evidence and there was further discussion between the bar table and bench about the hostile witness application previously foreshadowed by the Crown. During those discussions there was reference to the prospect of the respondent obtaining legal advice on his position. Following that discussion, the jury was sent away until the Friday, leaving the following day to deal with the Crown’s application.
Before the court adjourned for the day on day 8, the respondent was brought back into court and the trial judge (Crowley J) informed him that the Crown would be applying to have him declared a hostile witness. He was informed that arrangements would be made for him to speak to a lawyer from Legal Aid if he wished to get advice about that application. During that exchange, the respondent asked Crowley J whether his presence in court giving evidence was not sufficient compliance with his undertaking to give evidence. His Honour informed the respondent that that was a matter he might wish to get advice about. Arrangements were then made for the respondent to get legal advice later that afternoon.
At the commencement of day 9 of the trial, the prosecutor informed the court that the lawyer who had seen the respondent the previous afternoon had sent an email to the Crown saying that the respondent did not consider that the hostile witness application would be necessary because he understood the basis for the application. There followed some discussion between the bar table and bench concerning the appropriate course to take following that communication. The hearing of the Crown’s application began shortly before lunch on day 9. The respondent gave evidence on voir dire by video link from the correctional centre where he was being held.
The respondent gave evidence to the following effect when he was examined by the Crown on voir dire:
(a)When he accessed the container carrying the jams he was also expecting to find a duffel bag which, based on his educated guess, he expected would contain cocaine or some other drug such as heroin. That expectation was based on several matters, including the use of code words in his communications with PKO. When he and PKO communicated about the shipment of jam which was to arrive in PNG, they used the term “AU” to refer to something other than gold. Based on his educated guess, he understood they were talking about cocaine or some other drug, although he and PKO never discussed the actual contents of the duffel bag.
(b)He left out some details from his statement when he gave his evidence-in-chief before the jury because he had not gone back and reviewed his statements. Since then, his memory had been jogged by the events in court the previous day.
(c)During a conference with the prosecutor before the trial he had said that he did not need to see his statement. He told the prosecutor during that conference that he had expected to find cocaine in the duffel bag in the shipment of jams.
(d)He accepted that what he had said to the prosecutor in conference before the trial was different to what he said in his evidence, namely that he expected to find gold in the shipment of jams.
(e)In response to the prosecutor’s suggestion that his different response when giving his evidence before the jury was not caused by memory loss, he said that he had expected the prosecutor to ask another question to lead him to saying that he understood that there would be cocaine in the duffel bag. He did not accept the prosecutor’s suggestion that he had made a deliberate decision to give evidence that he had been expecting to find gold, instead of saying that he expected to find cocaine.
When cross-examined on voir dire by counsel for PKO, the respondent gave evidence to the following effect:
(a)He was given the opportunity to read through his statement and the annexures before the trial.
(b)He did not wish to have his statement with him at the correctional centre where he was serving his sentence, or where he was being held over the period he was required to give evidence at PKO and XDK’s trial, because it would alert other prisoners to the fact he was giving evidence against a co-accused.
(c)The only opportunity he would have had to safely review his statement in the prison environment was for someone from the prosecution to sit down and read through the statement with him. No one from the prosecution or the police sat down with him to read through the entire statement with him.
(d)His conference with the prosecutor before the trial was the only occasion when anyone discussed with him what he understood the term “gold” to mean in his communications with PKO.
(e)He was not lying when he gave evidence before the jury about the terms “gold” and “AU”. He was trying to be as honest as he could. Any differences between things he said in his statement and the evidence he gave before the jury was the result of a loss of memory because he had not read through his statement recently.
Crowley J ruled on the Crown’s application on the morning of day 10 of the trial. His Honour found that the respondent’s answers in his evidence before the jury about the use of the codewords “gold” and “AU” and what he expected to find in the duffel bag were inconsistent with what he had said in his statement. Those inconsistencies could not be explained by memory loss, stupidity, misunderstanding or confusion on the respondent’s part when he gave his evidence before the jury. Crowley J rejected the respondent’s evidence on voir dire that he was expecting the prosecutor to ask a further question. His Honour described the respondent as an intelligent and shrewd witness who fully understood the circumstances in which he was being called to give evidence in accordance with his undertaking. His apparent willingness to give evidence consistent with his statement once he was made aware of the Crown’s application was not because his memory was jogged, but because he had concluded there was a risk that he might be seen as not fully complying with his undertaking. Crowley J concluded that, in the respects identified by the Crown, the respondent had shown that he was unwilling to tell the whole truth in answer to non-leading questions. The respondent was declared a hostile witness, and the Crown was given leave to cross-examine him limited to those parts of his statement about which he had given inconsistent evidence before the jury.
The trial then proceeded with the respondent continuing to give evidence before the jury. Upon cross-examination by the prosecutor, he confirmed he had previously said in his statement:
(a)He was sure the 300kg of blocks referred to in his communications with PKO would be drugs, and he assumed it would be either cocaine or heroin.
(b)When referring to the cocaine or illegal drugs in his communications with PKO he would use the terms “gold” or “AU”.
Although the prosecutor did not put to the respondent that these were truthful statements, the Crown subsequently relied on the statements for the truth of their contents.[18]
[18]See Evidence Act 1977 (Qld), s 101.
After the Crown closed its case, each of PKO and XDK made a no case submission. In responding to those submissions, the prosecutor relied on the respondent’s evidence to establish the nature and scope of the alleged conspiracy.
The jury subsequently delivered guilty verdicts in respect of both defendants.
In sentencing PKO and XDK, Crowley J set out the facts upon which each defendant was to be sentenced, his Honour being satisfied that the evidence at the trial established those facts and that they were consistent with the jury’s verdicts. Those facts included the following matters, about which the respondent gave evidence:
(a)each of them conspired with the other, and also with the respondent, to import 300kg of cocaine into Australia from Peru via PNG; and
(b)pursuant to the conspiracy, it was intended that the first consignment of cocaine would be concealed within a consignment of jams that would be imported into PNG, after which the respondent would organise customs clearance and storage of the container, and ultimately the removal of the cocaine before facilitating its subsequent transport into Australia.
Both PKO and XDK appealed their conviction. The basis for each of their appeals was that the guilty verdicts were unreasonable and cannot be supported having regard to the evidence. Those appeals have been heard but have not yet been determined. If either PKO or XDK succeed on their appeal they will be entitled to an acquittal. There will not be a retrial of the charges.
Director’s submissions on resentencing
The Director submits that the respondent’s failure to give full and truthful evidence about what he expected to find in the duffel bag and the meaning of the codewords “gold” and “AU” used in his communications with PKO, in combination, amounted to a substantial failure on his part to honour his undertaking to cooperate.
Because of the respondent’s deliberate conduct, the aggregate effect of his evidence was — contrary to what he told police in his statement and the basis upon which he was sentenced — that he had agreed to import gold into Australia, not cocaine. By his failure to give truthful evidence, the respondent undermined the Crown case, against PKO in particular, in circumstances where the Crown was required to prove at the trial that each of PKO and XDK entered into an agreement with at least one other person to commit an offence of importing a commercial quantity of cocaine.
The result, the Director submits, is that the respondent received a significant discount for future assistance, which now, to a substantial extent, is no longer deserved. A substantial increase to the reduced sentences and non-parole period towards the middle to upper limit of this Court’s discretion under s 16AC(4)(b) of the Act is warranted.
Respondent’s submissions on resentencing
As previously noted, the respondent concedes that his initial evidence in relation to his knowledge of what was to be imported, and the codes used in his communications with PKO, was not full and truthful. This amounted to a partial failure to comply with his undertaking to cooperate, for which he did not have a reasonable excuse.
In submitting that, notwithstanding this partial failure to cooperate, the Court should not exercise its discretion to substitute a higher sentence, the respondent submits that his non-compliance was temporary. After he had the benefit of legal advice, he quickly demonstrated his preparedness to provide full and truthful evidence in line with his statement. That remained his position from that point in time.
After he was declared a hostile witness and the Crown was given leave to cross-examine him, the Crown enjoyed and relied on the benefit of his cooperation. That benefit was not limited to the Crown being able to put parts of the respondent’s statement to him (which he accepted). It extended to other aspects of the Crown case as to which there was no suggestion he had failed to cooperate, including his role in the operation, his relationship with the co-conspirators, and the receiving of the cash deposits from PKO.
The respondent submits that in those circumstances, if this Court exercises the discretion to resentence, it will be punishing him for his initial failure to comply with his undertaking. That outcome would not reflect the extent to which the offered cooperation was eventually and voluntarily forthcoming.
Consideration
While it is true that the respondent’s failure to cooperate in accordance with his undertaking was temporary, I cannot accept the respondent’s submission that this Court, if it was to exercise the discretion to remove part of the benefit afforded to him on account of his future cooperation, would be punishing him for his partial failure to cooperate. That submission ignores both the character and the consequences of his partial failure to cooperate.
As to the character of the partial failure to cooperate, I accept the Director’s submission that the respondent’s failure to give full and truthful evidence was deliberate. That seems clear from his ability to give evidence consistent with his statement on voir dire. I respectfully agree with the conclusion Crowley J reached in deciding the hostile witness application, namely that the respondent’s apparent change of heart and his willingness to give evidence consistent with his statement was because he had concluded there was a risk that he might be seen as not fully complying with his undertaking. That suggests a degree of calculation in the respondent’s decision as to the extent he was prepared to cooperate in accordance with his undertaking.
As for the consequences of the partial failure to cooperate, it is relevant here (as it was in Haunga[19] and Dehghani[20]) that the respondent’s conduct made the trial of PKO and XDK longer and more complex than it otherwise would have been, with attendant cost to the community.
[19]Haunga, 294 [21].
[20]Dehghani, 351 [53].
Just as importantly, the result of that conduct was that, after the respondent had been declared a hostile witness and was cross-examined by the prosecutor, the jury had heard two inconsistent accounts from him on issues that were important to the Crown’s case. Further, it would have given the jury reason to question the respondent’s credibility. As Mr Bonasia, who appeared as counsel for the respondent, frankly conceded during argument, this weakened the Crown’s case on the issues that were the subject of his partial failure to cooperate. The respondent’s subsequent change of heart upon being made aware of the hostile witness application could not undo that damage.
Because the respondent’s partial failure to cooperate both increased the cost of PKO and XDK’s trial, and weakened the Crown case at that trial, it reduced the value of the evidence he gave pursuant to his undertaking and for which he had received a benefit upon being sentenced. In those circumstances, I am satisfied that the original sentence has become inadequate by reason of the respondent’s partial failure to cooperate in accordance with the undertaking to cooperate and that this Court should exercise the discretion under s 16AC(4)(b) of the Act to increase the respondent’s sentence.
Consistently with the approach set out in the authorities discussed at [8]–[26] above, this must involve an evaluation of all relevant circumstances surrounding the respondent’s failure to cooperate in accordance with the undertaking that led to the reduced sentence, taking account of the extent to which the Crown and the community have been disadvantaged by the respondent’s repudiation of his undertaking.
Having regard to the extent to which the Crown appears to have benefitted from the respondent’s evidence despite his partial failure to cooperate (as to which, see [53]–[56] above), I do not consider that the respondent’s failure to honour his undertaking was as substantial as the Director submitted. In substituting a sentence that properly reflects the circumstances surrounding the respondent’s partial failure to fulfil his undertaking, I would make the following orders:
1. The appeal is allowed.
2. The sentences imposed on 16 December 2019 are set aside and in lieu thereof the respondent is sentenced to:
(a) imprisonment for 15 years on Count 1;
(b) imprisonment for 3 years on Count 2
(the substituted sentences)
3. The single non-parole period fixed on 16 December 2019 is set aside, and in lieu thereof, a single non-parole period of 8 years and 6 months is fixed under s 19AB of the Crimes Act 1914 (Cth).
4. The substituted sentences are both to be served concurrently and are, by order, directed to commence on 16 December 2019.
5. 537 days spent in presentence custody between 27 June 2018 and 15 December 2019 is declared as time already served under the substituted sentences.
During argument, Ms Farnden KC also raised the requirement under the Act that a sentence be explained, or be caused to be explained, to the respondent. She submitted that this could most effectively be done by the solicitors for the respondent undertaking to cause such an explanation to be provided to the respondent. I agree that is the appropriate way to proceed. Accordingly, I would make the orders set out above on the undertaking of the solicitors for the respondent to cause the following explanation to be provided to the respondent:
“The Court has sentenced you to 15 years imprisonment, but has fixed a non-parole period of 8 years and 6 months. That means that you will be eligible to be released from prison after 8 years and 6 months, and if you are granted parole by the Attorney-General you will serve the balance of the sentence in the community subject to the conditions of a parole order.
Your parole will be subject to the condition that you be of good behaviour and not violate any law. The Attorney-General may impose other conditions if appropriate.
If you commit another offence or fail to comply with the conditions of parole your parole may be revoked and you could be required to return to prison to serve out the balance of your sentence.”
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