R v Lyberopoulos

[2002] NSWCCA 280

CITATION:	R v LYBEROPOULOS [2002] NSWCCA 280
FILE NUMBER(S):	CCA 60935/01
HEARING DATE(S):	1 July 2002
JUDGMENT DATE:	24 July 2002
PARTIES :	Regina Peter Lyberopoulos
JUDGMENT OF:	Mason P at 1; Hulme J at 2; Simpson J at 71

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/41/0317
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	Crown: GIO Rowling Appellant: G Scragg
SOLICITORS:	Crown: SE O'Connor Appellant: Jeffreys & Associates
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted, but appeal dismissed.

- 22 -

IN THE COURT OF
CRIMINAL APPEAL

File No: 60935/01

MASON P
HULME J
SIMPSON J

Date

PETER LYBEROPOLOUS v REGINA
JUDGMENT

1    MASON P: I agree with Hulme J.

2    HULME J. On 29 October 2001, the abovenamed Appellant was tried before Morgan DCJ and a jury with supplying a prohibited drug, viz. 4.930 kilograms of cannabis leaf. He was convicted and, on 31 October 2001 sentenced to imprisonment for a period of 2 years from 11 August 2002 with a non-parole period of 12 months. The supply was a deemed supply: The Crown case was that the Appellant had been in possession of the cannabis.

3    The cannabis was found in 2 travel bags in the boot of a motor vehicle stopped by a Senior Constable White near Yass. In the vehicle at the time were the Accused, a Mr Konstantinou (known as Bill) and a Mr Geogiadis (known as Nick). The vehicle had been rented by the Accused but Mr Konstantinou was driving at the time the vehicle was stopped. All three occupants were arrested at the scene. In due course charges against Messrs Konstantinou and Georgiadis were dropped pursuant to an arrangement whereby they agreed to give evidence against the Accused. In fact the only witnesses against the Accused were these 2 persons, Constable White and a Ms Mittiga from Avis Rent-A-Car in Adelaide.

4    Ms Mittiga gave evidence to the effect that the rental agreement showed the renting of the car to a Peter Lyberopoulos and that he had produced a driver’s licence and credit card in his name with an address of 350 Montague Road, Para Vista. She also gave evidence to the effect that it was her company’s practice to clean out cars between hirings. In cross-examination she effectively conceded that the credit card may have been in the name of Mr George Lyberopoulos and that sometimes cars were not completely emptied of prior hirer’s belongings.

5    Mr Konstantinou gave evidence to the following effect. The Appellant, whom he had known for some 15 years contacted him and asked if he wished to go to Sydney for 2 or 3 days. In due course, Mr Konstantinou agreed and the Accused said that he would pick Mr Konstantinou up that evening. The Appellant arrived at the time stated, opened the boot and Mr Konstantinou placed a suitcase and suit cover in the boot. Already in the boot was what Mr Konstaninou described as “his suitcase and another 2 bags in deeper”. Mr Konstantinou then entered the driving seat and they drove off. On the road the Accused spoke on a phone to Mr Georgiadis and they then drove to his place. Mr Georgiadis came out with a small bag and put that in the boot and the three then drove off.

6    During cross-examination, Mr Konstantinou denied that he had put the 2 travel bags in the boot. He denied a variety of suggestions to the cumulative effect that he was the person who asked the Accused to go to Sydney with him and was concerned in the obtaining of the car. He adhered to his evidence that Mr Georgiadis’ bag was a small one saying it was a plastic one and contained “one pair of jocks and one pair of socks”.

7    Mr Georgiadis agreed that the other 2 had picked him up but it was after the Accused and then Mr Konstantinou had spoken to him in a phone call. He said that while he had put his clothes in the boot, the clothes were loose and not in a bag. It was dark at the time and he said that he did not see what else was in the boot.

8    Constable White gave evidence of stopping the vehicle, speaking to the occupants and searching the boot. He detected an odour similar to that of cannabis. He said that in the boot were 2 sports bags, 2 suitcases, a blue one of which the Appellant identified as his, a suit protection type bag, some loose clothing, a toiletries bag but no small plastic bag containing clothing.

9    When he asked who owned one of the sports bags, a brown and beige one, the Accused said “that’s Bills”. Constable White opened the bag and saw it contained green vegetable matter. When Mr Konstantinou was then asked a similar question, he said he didn’t know. Mr Georgiadis said that he had never seen the bag before.

10    Constable White again said that he then opened the bag. He then gave evidence that he said to the 3 men “what can you tell me about this. I’m going to ask you some questions in relation to this matter. You are not obliged to say anything unless you wish to do so, but whatever you do say will be recorded and may be later used in evidence. Do you understand that?

11    According to Constable White, the three men replied “yes” and the accused added “Nothing. I don’t know about this”.

12    Constable White asked, “is there anything else like this in the vehicle” indicating parcels of green vegetable matter and the accused replied “Yes”. The accused then grabbed a black sports bag which was directly behind the rear seat and next to the brown and beige sports bag.

13    Noticing a small padlock locking the two zippers of the bag shut, Constable White said to the accused “Can you open this bag? I need it open.” According to Constable White the accused said “Yes” and walked to the front nearside door of the vehicle. He returned a short time later with some keys and an unlocked small padlock. (In cross-examination -T58, Constable White gave an answer that suggested that it was after he returned with keys that the Appellant opened the padlock.)

14    Constable White then opened the top flap of the bag, noticed a odour of cannabis, moved some clothing in the bag aside and noticed parcels of green vegetable matter. Constable White then said to the accused “what can you tell me about this.” The accused replied “I don’t know, I don’t think I should say.”

15    A little later Constable White gave the three men a further caution. Each said they understood and Constable White then said, indicating the two bags containing the green vegetable matter “who owns these two bags?” The accused said “I don’t think I should say until I talk to my solicitor.”

16    Some time after this the 3 men were arrested and conveyed to a police station. The Appellant was interviewed, at which time the Appellant said that he did not want to answer any questions. Her Honour then gave to the jury an explanation as to the Appellant’s rights in that regard and instructed them that no inference adverse to the Appellant could be drawn. Her remarks were in general terms, not restricted to the attitude of the Accused at the formal interview. Constable White went on to say that the other 2 men had taken the same stance as the Appellant.

17    The evidence referred to in the immediately preceding paragraph occurred about 2 pages of transcript after the evidence of the conversations and statements of the Accused which I have recounted.

18    A later more thorough search of the vehicle revealed another small bag of green vegetable matter in the tool compartment. All of the green vegetable matter was found, when analysed, to be cannabis leaf.

19    In cross-examination, Constable White rejected suggestions that there had been no conversation between him and the Appellant concerning a key or black bag, that he had not asked the Appellant to open the black bag and that the Appellant had not obtained a key and brought it back.

20    The Appellant gave evidence. He said that the ideas of going to Sydney and hiring a car were those of Mr Konstantinou who asked the Appellant to go with him. He said that his brother, Mr George Lyberopoulos went with them to hire the car because his brother had a credit card. Mr Konstantinou handed Mr George Lyberopolous $200. The Appellant added that he had never hired a car before .

21    According to the Appellant, his wife packed his bag and put it in the boot and he never saw into the boot prior to it being opened by Constable White. Prior to Mr Konstantinou putting his things in the boot, the Appellant saw him with 2 sports bags, one light and one dark, in his right hand and something else, maybe a suit or some clothes in his left hand. He denied having had any key to a bag as Constable White had suggested.

22    In cross-examination, he said that he was not asked by the Avis people whether there were going to be any other drivers and didn’t know that there had to be any such nomination. He had no problems with his eyesight. He repeated his evidence that he had never hired a car prior to that used at the time of his arrest but after being shown some documents acknowledged that he had signed an additional driver’s form in connection with a car rented on 30 July 1998. He indicated that he must have been mistaken as to dates.

23    Also called on behalf of the Appellant were his de-facto wife and brother. She agreed that she had packed his suitcase and placed it in the boot which previously had nothing in it. She said that the Appellant had driven to Sydney a couple of weeks before he was arrested. And that he did have problems driving at night. Mr George Lyberopoulos said that Mr Konstantinou went with him and the Appellant to hire the vehicle and gave him $200 towards the cost of the car. Mr George Lyberopolous agreed that he had hired a car on 30 July 1998.

24    The Grounds of Appeal were:-

1. (a) Her Honour erred in law in admitting into evidence the conversations at the scene particularly the alleged admission.

(b) Her Honour failed to exercise any discretion in respect of the said conversations and alternatively should have rejected the said conversations in the exercise of her discretion.

2. The said conversations having been admitted, Her Honour erred in law in directing and failing to direct as to the alleged admission.

3. (a) Her Honour erred in law in directing and for failing to direct as to the particular conversation alleged to be an admission by the appellant as to his involvement and knowledge of the contents of the bags.

(b) Her Honour should have directed that the said conversation was equivocal in any case and could not be regarded as an admission.

(c) Her Honour should have directed that the said particular conversation was after a caution and that the appellant was exercising his right to remain silent and no adverse inference should be drawn.

4. There was a miscarriage of justice in that the verdict was against the evidence and the weight of evidence causing the verdicts to be unsafe and unsatisfactory.

5. The sentence was excessive having regard to the principle of totality.

Grounds 1, 2, and 3

25    These grounds were dealt with together. The statements of the Accused, the subject of these grounds were three of those I have recounted above, viz:-

(i) “Nothing. I don’t know about this.”
(ii) “I don’t know. I don’t think I should say.” and
(iii) “I don’t think I should say until I talk to my solicitor.”

26    To some degree the significance of these is affected by other conversations and events to which Constable White said occurred at about the same time. For convenience I shall also number these passages:-

(iv) White : “is there anything else like this in the vehicle?”
Appellant : “yes” and then grabbed a black sports bag …it had a small padlock locking the 2 zippers of the bag shut.”
(v) White : “Can you open this bag? I need it open.”
Appellant : “Yes” the accused then walked … and returned a short time later with some keys and an unlocked small padlock..

27    An appropriate starting point is to determine the true character of the statements to which these grounds relate.

28    The first, “Nothing. I don’t know about this.” is not, on its face, an admission. In terms, it is a statement of ignorance and, implicitly, of denial of involvement.

29    The second, “I don’t know. I don’t think I should say.” contains 2 parts. The first “I don’t know” may be another assertion of ignorance. It may, on the other hand, have been the Accused thinking aloud or a preliminary draft as it were of “I don’t think …”. On its face, no part of this second statement is an admission.

30    Neither is the third statement “I don’t think I should say until I talk to my solicitor.” an admission.

31    This conclusion means that the third statement and at least the second part of the second statement should not have been adduced in evidence. Given as these statements were after cautions by Constable White, the jury could draw no inference adverse to the Accused from them. The statements did not tend to strengthen the case of either the Crown or Accused and accordingly the terms of sections 55(1) and 56(2) of the Evidence Act rendered the statements inadmissible. The same remarks apply to the first part of the second statement if it is regarded as but incidental to the second part of that statement. (Although no point of it has been made in this appeal, for the same reason the evidence that the Accused declined to be interviewed was also inadmissible.)

32    As these statements did come into evidence, and notwithstanding it was not sought, they should have been the subject of an instruction from her Honour to the effect of that given to the jury 2 pages later when reference was made to the Accused declining to be interviewed. In expressing that view, I do not forget that the later instruction was in general terms and the evidence given as to the administration of cautions was a clear statement that no response to questions was required. However this latter evidence said nothing to the jury as to the significance they might give to any response which was made and, particularly when her Honour did not seem or seek to relate the later instruction to the earlier evidence, it does not seem to me that one should assume or infer that the jury would have done so.

33    On the other hand it is clear that the remarks of the Accused referred to in the fourth numbered passage did constitute an admission of knowledge of the contents of the second bag. I incline to the same view so far as the fifth numbered passage is concerned but certainly, once one has regard to the fact that most people keep custody and control of their keys, the conduct of the Accused in obtaining the keys and unlocking the second bag is evidence capable of being regarded as an indication or admission by conduct of his involvement with, and possession of, the contents of that second bag.

34    When her Honour came to sum-up, her Honour summarised the evidence of Constable White of and surrounding the making of the above statements and recounted what the Appellant was alleged to have said. Her Honour continued:-

“That evidence has been strongly attacked by Mr Winch on behalf of the accused, that indeed the accused did not say what the officer alleges he said about the black bag or the contents thereof and indeed that Mr Lyberopoulos the accused at no time went to the front of the car and obtained a key. It’s simply been put to you that the police officer is completely wrong in the evidence he has given relating to that part of his evidence. There seems to be no challenge to any other part of his evidence but only to this particular part of the evidence which affects directly the accused and the accused’s apparent involvement because if you accept that what the officer has said was said and done by the accused that would go, it is a matter entirely for you, to direct knowledge one might think of the contents of the bag and the involvement and the way in which the Crown alleges is his knowledge of the contents .”

“… the officer has given evidence that he made… notes relating to what had occurred while he was waiting for the other police officers to come and assist him… at the scene. “

“As I said to you, you’ve got to be satisfied that the officer was making accurate notes of what he said each of the men said to him and in particular of course the evidence which could be regarded as an admission by the accused as to his knowledge of cannabis in the boot …”.
“So, ladies and gentlemen, it’s a matter entirely for you, an experienced police officer it would seem who made these notes at the scene and later and he attributes those which might be regarded as admissions to the accused . The accused himself has strongly denied that he made any admissions of that nature or that he ever pointed to the bag, ever had anything to do with that bag or ever produced a key.”

35    The passages which I have underlined leave it open to the jury to regard the evidence I have numbered (ii) and (iii) above as evidence of knowledge of, and involvement of the Accused with, the cannabis. In saying that I acknowledge that the references in the second passage to “the evidence which could be regarded as an admission” and in the third passage to “those which might be regarded as admissions” in one sense beg the question of whether the jury would regard those passages of evidence as admissions but, absent clear direction that this was an inadmissible course – and there was no such direction during the summing-up - a jury could well think that statements to the effect “I don’t think I should say.” and “I don’t think I should say until I talk to my solicitor.” were a clear indication or admission that the person speaking had something to hide.

36    In leaving the passages of evidence I have numbered (ii) and (iii) to the jury to be considered as possible admissions, her Honour erred.

37 In support of the contention that all of the evidence in the numbered paragraphs should not have been admitted, reliance is placed on s108(2) of the Evidence Act which, subject to exceptions not relevant here, provides that evidence of an admission to which the section applies is not admissible. Sub-section 1 provides that the section applies to an admission:-

“(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b) that was made in the course of official questioning, and
(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

38    Save and except for the first one which I have dealt with above, it is proper to regard all of the statements and the Appellant’s actions described in the numbered paragraphs as admissions.

39    It was submitted on behalf of the Crown that the above statements did not fall within the terms of sub-section 1 upon the ground that it has not been shown that at the time they were made the Appellant was or could reasonably have been suspected of having committed an offence. I disagree. Prior to the first of the statements Constable White had examined the rental agreement which was in the Appellant’s name, had suspected enough to want to search the boot and at least some of the bags in it, had detected the smell of cannabis, had found green vegetable matter and had given the three men the usual caution.

40 The statements were made in the course of official questioning and the offence was of a type which fell within paragraph (c) of sub-section 1 and thus the statements were, within the terms of s108 not admissible.

41 However, no objection was taken to the evidence. It is trite law that statutory provisions to the effect that evidence is not admissible normally mean “not admissible over objection” and that interpretation has been given to the predecessor of s108, then s424A of the Crimes Act -R v Reid [1999] NSWCCA 258 See also R v Spathis; R v Patsalis [2001] NSWCCA 476 at [416-7]

42    Reliance was also placed on ss90, 135 and 137 of the Evidence Act. The first 2 of these sections confer a discretion on the court and the reasons that inspired the Court in R v Reid to construe the expression “not admissible” as it did, mean that no error occurred when the evidence was given without objection.

43    Section 137 is cast in somewhat different terms, providing as it does that:-

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

44    It is clear that the evidence of Constable White as to both the statements of the Appellant and his actions in grabbing the black sports bag and in unlocking it, had at least if Constable White was believed, substantial probative value. And while there were arguments against the acceptance of his evidence and it was contradicted in part by the evidence of the Appellant, there is no particular reason to think that he would not be believed. There was no significant attack otherwise on his credibility.

45 And I am unable to see any “danger of unfair prejudice”. Whatever the meaning or operation of the phrase, it could not include the jury’s belief in Constable White nor, at least in the absence of some unusual circumstances – and there were none - the possibility that the jury might believe him. Neither can there be unfairness or the danger of unfairness in the admission of evidence obtained when the procedures envisaged by s108 of the Criminal Procedure Act were not being followed, when the opportunity exists, but is not taken, to object to that evidence.

46    Thus there was nothing in the terms ofs137 either to lead to the conclusion that there was error in the admission of the evidence of Constable White which I have recounted above.

Ground 4

47    In support of the contention that the verdict was unsafe and unsatisfactory, reliance was placed on the following:-

1. The wrongful admission as in grounds 1, 2 and 3.
2. No fingerprints of the appellant.
3. The appellant was supported by Anna Gounas (his wife).
4 . No identification of clothing in the sports bags.
5. There was no corroboration by Messrs Konstaninou and Georgiadis of the conversations given by Constable White (of the evidence numbered (i) to (v) above) although they were said to be present, nor was any corroboration sought by the Crown.
6. There was no corroboration of the police officer re the appellant obtaining keys to the padlock of the sports bag.
7. The denials by the appellant of the alleged admissions and of obtaining the key to the padlock and of possession of the sports bags.

48 Some of the evidence referred to somewhat cryptically in this list is referred to above. It is not necessary that I detail the balance. While no doubt all of these matters may well have founded arguments proper to be considered by the jury, neither singly or in combination do they render the verdict unsafe and unsatisfactory or lead to the conclusion that, to use the language of s6 of the Criminal Appeal Act, there has been a miscarriage of justice.

49    The Appellant hired the car. His story that his wife had packed his bag and placed it in the boot was not inherently credible. There was the evidence of Mr Konstantinou that the bags were in the boot when the Appellant arrived to pick Mr Konstantinou up. There was the evidence of Constable White that the Appellant had obtained the key to open the padlock on one of the sports bags containing cannabis. The Appellant’s credibility was likely to have been damaged by his original evidence that prior to the journey on which he was arrested he had not hired a car and by the inconsistency between the evidence of himself and his wife as to difficulties with his eyesight. There was a wealth of evidence upon which the jury, the tribunal having primary responsibility for determining the question of guilt, could have convicted the Appellant.

The Criminal Appeal Act, Section 6
The Criminal Appeal Rules, rule 4

50 The errors which occurred in the trial are the introduction into the case of potentially prejudicial evidence which was inadmissible but not objected to, the absence of instruction which was not sought concerning the significance of that evidence, and error in her Honour’s treatment of that evidence in her summing up, notwithstanding that she was never asked to correct that error. Rule 4 and s6 respectively provide:-

“4. No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
6. The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that… the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

51    The case is clearly one where rule 4 should be applied if, consistently with principle, it can be.

52 Her Honour was never asked to make any decision in respect of the matters referred to in the first paragraph in this section of these Reasons. Hence within s6 there was no wrong decision on any question of law at least so far as the first 2 errors are concerned – Papakosmas v R (1999) 196 CLR 297 at 319 (c.f. 311). I would take the same view in relation to the third notwithstanding an argument which could be mounted to the effect that anything said in a summing-up which reflects a matter of law and which is wrong implicitly involves a “wrong decision of any question of law”.

53 However under s6 there remain the questions whether there has been a “miscarriage of justice”, whether there has been “no substantial miscarriage of justice” and whether if the answer to the latter question is “no”, the Court should exercise its discretion to dismiss the appeal. In this situation, rule 4 is something of a toothless tiger for it is difficult to conceive of circumstances where, if there has been a miscarriage of justice, leave should not be given. See Chamberlain v R (1983) 46 ALR 493 at 501-2; Bahri Kural v R (1987) 162 CLR 502 at 512; Tripodina & Morabito v R (1988) 35 A Crim R 183 at 195

54    The evidence which was inadmissible was given at virtually the same time as the evidence I have numbered (iv) and (v). The evidence in those 2 paragraphs was far more substantial and telling in indicating knowledge and involvement on the part of the Accused than the inadmissible evidence. It is of course true that tribunals of fact can select which evidence they do and do not accept but, subject to one matter, there was no rational basis for the jury to have accepted the inadmissible and rejected that in paragraphs (iv) and (v). Nor, subject to the same reservation, do the terms of the inadmissible material render the admissible any more persuasive.

55    The reservation referred to in the preceding paragraph arises from the following. There was challenge in cross-examination to that part of Constable White’s evidence as asserted conversation about a key or black bag and that the Accused had walked away from the rear of the car and returned with a key but no challenge to any other part of the evidence that I have numbered (i) to (v). Indeed, confirmation of that part of the conversation as I have numbered (ii) was conceded or directly sought and obtained from Constable White – T60 lines 46-55.

56    When the Accused gave evidence he asserted that Constable White had opened the bags while the Accused was at the rear of the vehicle, asked the Accused what they (presumable the parcels inside) were; the Accused said, “I don’t know”; Constable White asked the other men to get out of the car which they did; the Accused then went off to relieve himself; when he returned, things had progressed to a different stage and there was no relevant conversation. He said that he never saw a key. In cross-examination, there was some variation in the order of events prior to the Accused relieving himself and he denied adding to the statement “I don’t know”, the words “I shouldn’t say”. Neither in chief or cross-examination was reference made to the evidence in the paragraph I have numbered (iii).

57    The relative lack of challenge to the passages numbered (ii) and more particularly (iii) means that the jury may more readily have accepted them than the disputed evidence involving the key and then used that accepted evidence and an inference of something to hide flowing therefrom to inspire acceptance of the disputed evidence. All this may have led to the acceptance of Mr Konstantinou.

58    As is apparent from the above, when her Honour came to sum up, she referred to, and treated as a totality, all of the evidence which I have set out in numbered paragraphs above. If the jury viewed the matter similarly, it is in the highest degree probable that they were more influenced by the evidence I have repeated in paragraphs (iv) and (v) than that in paragraphs (ii) and (iii) above. However, her Honour said nothing to discourage the jury from adopting the course referred to in the preceding paragraph and in that situation the question is whether one can be sufficiently confident that the jury did not resort to an impermissible course of reasoning.

59    In my view one can be. In light of the terms of the evidence of Constable White and the Accused the issue really was whose account the jury believed as to what had occurred at the car, or more accurately, whether in light of the Accused’s evidence, thejury had sufficient confidence in Constable White’s evidence to act on it. The way in which the Judge addressed this evidence in summing up was to draw attention to the contrasting versions of what occurred. Her Honour did not refer to the impermissible chain of reasoning and while I accept that there was a theoretical danger of the jury adopting it, I would not put the risk any higher. I do not think the Appellant lost a real chance of being acquitted – Bahri Kural v R (1987) 162 CLR 502 at 508. The absence of any request for re-direction argues in favour of counsel at the trial having taken the same view. In these circumstances I am satisfied that there has not been any substantial miscarriage of justice arising from the giving and subsequent treatment of the second and third of the passages I have set out.

Ground 5

60    As has been said, the sentence imposed was of imprisonment for 2 years with a non-parole period of 12 months, both periods to date from 11 August 2002. The commencing date was selected because at the time he was sentenced by her Honour, the Appellant was serving a sentence of imprisonment of 2 years and 6 months with a non-parole period of 15 months commencing on 12 May 2001 on 2 charges of supplying a prohibited drug, viz. cannabis leaf. Those offences had occurred on 11 March 2000 and the Appellant had been sentenced by Acting Judge Stewart on 14 September 2001.

61    It was submitted that as the sentence presently under appeal was the Appellant’s first, a sentence of 2 years was not justified and was outside the range. Support was sought to be obtained from the fact that if the full terms of the sentences imposed by Acting Judge Stewart and Judge Morgan were added, they totalled 4½ years. It was submitted that the Judicial Commission statistics showed that a sentence of this length was imposed on only 1% of offenders.

62    Given that the sentence of Judge Morgan operated from 11 August 2001 and effectively supplanted the last 15 months of the earlier sentence, the fallacy in the submission referred to in the last paragraph is obvious.

63    And while the offence the subject of this appeal may have been the Appellant’s first drug offence, he did not come to the Court as a first offender. He had previously been convicted in 1972 and 1980 of what were some licensing or gaming law contraventions. I am prepared to assume that these were sufficiently old to be ignored although it may be that they have in common with the subject offence a contempt for those provisions of the law as do not suit the Appellant. In February 1998 he had been convicted of offences involving an unregistered and uninsured motor vehicle and in January 2001 of some 68 charges of Social Security fraud. In respect of these last mentioned offences a sentence of 2 months imprisonment had been imposed and the Appellant required to enter into a bond. The dates of the commission of those offences are not completely clear but they seem, from a psychiatrist’s report tendered before Judge Morgan on the Appellant’s behalf, to have been prior to 1998.

64    The quantity of cannabis leaf the subject of the charge against the Appellant, 4.93 kiolograms, meant he was liable to imprisonment for 10 years and a fine of 2000 penalty units. A penalty unit is $110. The quantity would need to have been 25 kilograms before his offence moved into the next range, involving a commercial quantity.

65    While there were some subjective features present before her Honour, none could be regarded as strong. There was no evidence of remorse. The offence was premeditated and the quantity involved a clear indication that it was a pure commercial venture. There was no evidence to the contrary.

66    In - R v Clark (unreported, CCA, 15 March 1990) it was said:-

“This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate… The position is worse where there has been a profitable commercial exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence.”:

67    In Schaal (unreported, NSWSC, 8 September 1989), Wood CJ at CL said “just as those stakes (in the drug trade) are high, so, however, must be the risks if caught”. To similar import were the remarks of Gleeson CJ in R v Swann (unreported, CCA, 17 July 1992), “The reason why drug dealing is as profitable as it is, is that it is illegal, and therefore, risky. It is consequently appropriate that, when a person who is engaged in such activity for profit is apprehended, the risk comes home”.

68    In light of these authorities, the Appellant’s sentence has not been shown to be manifestly excessive.

69 In fact on 26 June last, this Court differently constituted quashed the Appellant’s conviction before Stewart ADCJ and pursuant to s59 of the Crimes (Sentencing Procedure) Act varied the sentence of Judge Morgan so that it commenced on 31 October 2001. It was submitted that the Court should take into account in this aspect of the appeal that the Appellant served some 5 months imprisonment of the sentence that has now been quashed. I agree that the Court would have been entitled to do so were it re-sentencing the Appellant. However, no error favourable to the Appellant having been shown in the sentence her Honour imposed, there is no basis for this Court to interfere.

70    I would propose that the Appeal against conviction be dismissed. I would grant leave to appeal against sentence but dismiss that appeal also.

71    SIMPSON J: I agree with Hulme J.

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