R v Mandagi

[2002] NSWCCA 57

CITATION:	Regina v Mandagi [2002] NSWCCA 57
FILE NUMBER(S):	CCA 60136/00
HEARING DATE(S):	28 May 2001
JUDGMENT DATE:	11 March 2002
PARTIES :	Regina v Krist Tito Mandagi
JUDGMENT OF:	Dowd J at 1; Greg James J at 2; Smart AJ at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0369
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

COUNSEL :	(A) W Terracini SC (R) E Fullerton SC
SOLICITORS:	(A) Ross Hill & Associates (R) Cwealth DPP
CATCHWORDS:	Knowingly concerned in importation of heroin (252 kg) - directions as to lies adequate - directions as to knowledge adequate - no circumstantial evidence direction necessary . Sentencing - high criminality - parity.
LEGISLATION CITED:	Customs Act 1901 (Cth) Drug Misuse & Trafficking Act 1985 (NSW) Crimes Act 1914 (Cth)
CASES CITED:	Edwards v The Queen (1993) 178 CLR 103 Shepherd v The Queen (1990) 170 CLR 573 Grant v The Queen (1975) 11 ALR 503 CWW (1993) 70 A Crim R 517 R v Olbrich (1998) 199 CLR 270
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal against sentence allowed; sentence quashed. In lieu of the sentence imposed the appellant is sentenced to imprisonment for 27 years commencing on 14 October 1998 with a non-parole period of 19 years commencing that day and ending on 13 October 2017.

IN THE COURT OF
CRIMINAL APPEAL

60136/00

DOWD J

GREG JAMES J

SMART AJ

Monday, 11 March 2002

REGINA v KRIST TITO MANDAGI
JUDGMENT

1    DOWD J: I have read the judgment of Smart AJ in draft form. I agree with the proposed orders and with his Honour’s reasons.

2    GREG JAMES J: I have had the advantage of reading the draft judgment of Smart, AJ. I agree with the orders proposed and his Honour's reasons for those orders.

3    SMART AJ: Mr K T Mandagi appeals against his conviction on 8 March 2000 after a trial extending over 28 days, of between about 1 August 1998 and 14 October 1998 at Grants Beach, North Haven and elsewhere being knowingly concerned in the importation into Australia of narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin (s.233B(1)(d) Customs Act 1901). He also seeks leave to appeal against his sentence of life imprisonment with a non-parole period of 25 years commencing on 14 October 1998, the date of his arrest.

4    The appellant complains of the judge's directions as to knowledge and lies and the lack of a comprehensive direction as to circumstantial evidence. The heroin the subject of the offence weighed 252.3 kilograms with the gross weight of the 1132 compressed blocks of white powder being 3.99 kilograms. This was the largest importation of heroin as at 14 October 1998,

5    The appellant, who was the captain of the Uniana which brought the heroin from the Andaman Sea near the Thai-Burma border to the Port Macquarie district of Australia, was tried jointly with Janis Thoefilus Paluh, the second officer and Henki Lucky Rumuat, the second engineer. The jury were unable to agree on a verdict in respect of Paluh and Rumuat. The three men were represented by the same counsel at their trial.

6    The Facts

About 3.30am on 14 October 1998 a speedboat carrying 31 black sports bags in which the heroin was packed landed at Grants Beach, near Port Macquarie. The three men aboard the speedboat (2 Chinese and an Indonesian) were immediately arrested by agents of the Australian Federal Police (AFP). The driver of the speedboat, a Chinese national named Chi Keung Chan (Chan) pleaded guilty to being knowingly concerned in the importation, rendered assistance to the Authorities and undertook to give evidence for the Crown, thus receiving a reduced sentence. He later gave evidence in the trials of others involved in the importation.

7    At the time the heroin was landed on Grants Beach a vessel known as MV Uniana was holding a position about twelve nautical miles off the Australian coast. This vessel was under the captaincy of the appellant. About 4.30 am a Customs vessel asked the Uniana to acknowledge the authority of the Australian Customs Service by stopping its forward movements. Over the next thirty minutes after initially not responding to the Customs’ instructions the Uniana responded by asserting that it was in close (to the Australian coastline) by reason of bad weather and was on its way to New Zealand. The Crown alleged that the appellant radioed that response.

8    With the approach of an Australian warship and a Customs vessel the Uniana changed its direction and made its way to Port Macquarie. At 7.30am it was boarded by AFP and Customs officers and detained. The appellant, an Indonesian, and ten Indonesian crew members under his command were arrested along with a Chinese man who had remained on the Uniana.

9    So far as is known the Uniana, at some unspecified time prior to its arrival outside port limits of Hong Kong Harbour about 10 August 1998, had been modified to equip it as a smuggling vessel capable of travelling long distances. There were three large fuel tanks under deck and a fresh water tank. A chamber between the water tank and one of the fuel tanks was constructed as a void space with a valve capable of flooding the chamber with sea water. The valve had recently been installed. The speedboat used to ferry the heroin was also housed in a specially adapted cradle underdeck in what would otherwise have served as the cargo hold. Whilst outside port limits of Hong Kong Harbour modifications had been made to the derrick located on deck to facilitate lowering and raising the speedboat into the sea under load.

10    For six weeks prior to 10 August 1998 the appellant and his crew had been aboard the vessel On Shun, which was also anchored outside port limits of Hong Kong. The Crown alleged that the appellant and his crew were awaiting the arrival of the Uniana. The appellant claimed that he had been told in mid-July 1998 that the On Shun was to be sold and that he was awaiting further advice from the owners. In the meantime he directed the crew to clean and paint the ship. He said that he did not receive his monthly pay of $HK11,000 during the period but his diary showed that he had been in receipt of bonus payments from at least May 1998. On 17 August 1998 the equivalent of $HK50,000 was paid into the appellant's bank account.

11    On 14 August 1998 the appellant boarded the Uniana with his crew from the On Shun except the Chief Engineer whom the appellant claimed was ill. There was evidence that the Uniana already had an engineer who had been attending to modifying the derrick. In cross-examination the appellant said that he did not ask the people who had arranged the transfer of the crew who would be paying for the journey, what cargo would be carried or as to the vessel's destination. He did nothing to satisfy himself of the seaworthiness of the Uniana or its fuel and water capacity for the journey ahead before leaving Hong Kong. He said that he learnt the intended destination of the Uniana and the purpose of the voyage moments before the vessel's departure on the afternoon of 15 august 1998. That was when Chan and Khong Hoi Lau (also known as Ah Lung) boarded the Uniana. The appellant claimed that it was Chan who told him that the vessel was to sail to about the Thailand-Burma border where at sea (the Andaman Sea) they were to collect a wealthy man and take him to Australia where he would be smuggled ashore. He knew that this was illegal, but he did not inform his crew of the fact.

12    The appellant said that the first time he knew of the secret compartment beneath where the speedboat was stowed was when he saw the video (after his arrest) with Mr McKenzie walking over the ship and telling of its capacities. (T446)

13    The appellant said that he had no knowledge at any time of the void space under deck and no knowledge that by opening the sea valve the chamber would flood to a level equal with the draught of the vessel. The Crown contended that this was fanciful given the appellant's captaincy of the small vessel. The Crown relied upon the practical necessity of the appellant as captain satisfying himself as to the suitability and capacity of the vessel for the journey and entries in his diary which showed some degree of forward planning for a journey to Australia.

14    The Crown alleged that the appellant was in possession of a false entry certificate in his name into Manila Harbour at the time he left Hong Kong Harbour and that this was part of a plan to falsify the ship's log as to the route taken and ports of entry en route. The appellant maintained that he and his officers falsified the log to conceal that an illegal immigrant had been collected at sea. He said that he only commenced to falsify the log after being informed the purpose of the journey was to smuggle a person into Australia. The Crown alleged that the appellant first participated in the plan to falsify the log by creating false entries as to the anchorage of the Uniana in Hong Kong on 14 August 1998 before departing from there. This evidence made it hard to accept that the appellant had only been informed of the journey's purpose and destination moments before leaving Hong Kong. The log did not show the Uniana leaving Hong Kong until 11 September 1998. The Crown asserted that the appellant knowingly created and maintained a false log and directed others to do likewise in order that the true passage of the Uniana to the region of Thailand and Burma to collect the heroin and to take on fuel and water at Singapore be concealed.

15    In his remarks upon sentence the judge said:

"Throughout the voyage [the appellant] had falsified the log so that nowhere does the voyage to the Andaman Sea appear. Documents found on board, several of them forged, show him as the captain on a voyage from Manila Harbour to New Zealand post dated approximately a month after he sailed from Hong Kong. The log had in fact, quite contrary to what he told the jury, been falsified from the first day. The Uniana had never been nearer Hong Kong Harbour than the outer port limits and no record of it being there exists, yet in the log it is recorded as sailing from within the port of Hong Kong."

16    About 5 September 1998 the Uniana was in international waters off the coast of Burma and Thailand and remained there awaiting contact from another vessel. Instructions were received from time to time via the satellite telephone by Chan or Lau and ultimately communicated to the appellant. After eventually receiving instructions by telephone about the arrival in the area of a particular vessel, the speedboat was, on 15 September 1998, lowered into the sea at the appellant's direction and driven by Chan to another vessel nearby. Lau accompanied him. The blocks of heroin then in rice sacks were transferred from this other vessel to the speedboat and thence to the Uniana. Chen Wei Ming (Chen) (also referred to as Man Chai) boarded the speedboat and accompanied Chan and Lau back to the Uniana. The appellant supervised the reloading of the speedboat with an additional gross weight of almost 400 kilograms. The entire procedure took place at night under torchlight. All this took place many miles from the coast in the Andaman Sea

17    The appellant gave evidence that he saw sacks in the speedboat but did not know how many there were and did not make any inquiries as to the contents of the sacks or where they were stowed on the Uniana at the time they were taken aboard. He said that he believed they were the personal possessions of the man who was being smuggled. He also gave evidence that he later believed the bags or some of them contained gold jewellery having been told that by Chan en route to Singapore. He claimed no knowledge of the fact that the contents of the sacks were repacked into sports bags and thereafter housed in the void chamber under deck where they remained until they were loaded back into the speedboat off the coast of Australia.

18    After loading the heroin the voyage continued down the Kra Isthmus, through the straits of Malacca to Singapore where the Uniana was refuelled at sea, when by pre-arrangement, a bunkering lighter came out from Singapore to meet it. The Uniana then proceeded without again stopping, except to lower the speedboat to test the engine, towards its final destination at Port Macquarie.

19    On the evening of 12 October 1998 the loaded speedboat was lowered into the water under torchlight. There were no lights on the ship. The venture had to be cancelled due to bad weather. The speedboat was raised and repositioned on the Uniana. According to Mr Chan, the appellant was in the wheelhouse.

20    Fei Lo Nam (Nam), who was directing the operation from overseas gave Chan a position from which they should launch the loaded speedboat on 13 October 1998. This was conveyed to the appellant.

21    Mr Chan said that during that day the appellant gave him a position to which he should go to meet the Uniana after unloading the heroin on shore from the speedboat. Around 9pm the lights on the ship were turned off and under torchlight the loaded speedboat was lowered into the sea. The weather was still severe but not as bad as the previous night. However, on the journey to the shore the weather conditions worsened and the speedboat lost radio contact with the Uniana. The journey to Grants Beach took about six hours.

22    The Crown relied on the lies which the appellant had allegedly told in his police interviews. The Crown alleged that the accounts which the appellant gave about his involvement in the voyage to Australia were false and given with a consciousness of his knowing involvement in the heroin importation. In his record of interview of 15 October 1998 the appellant told the police that he was at all times after leaving Hong Kong subject to the direction of the Chinese men who organised the cargo and to whom he referred as "super cargo". He said the cargo was picked up at sea together with another Chinese man and it was at that time in sacks shaped like bales of rice sacks. The cargo was taken down into the cargo hatch by the three Chinese men. He asked them what the goods were as there were no documents but they did not want to say. When he tried to follow them down into the cargo hold, he was told that it was none of his business. The absence of documents made him suspicious and this was compounded by his being told that it was none of his business. His suspicions were further compounded by his being told sometimes that it was fish food, sometimes that it was gold dust and their sometimes laughing at him saying it was a joke He claimed that when the cargo was loaded into the speedboat he still did not know what was in the bags into which the cargo had been placed.

23    In the record of interview of 19 October 1998 the appellant said that upon leaving Hong Kong Harbour he was directed by the Chinese men to sail to the Thai-Burma border and, after arriving there and waiting for some days, he was told by the Chinese man that goods would be taken on board. When the cargo was taken on he thought it was food. He did not know what was in the rice sacks but he was told it was fish food and that he did not need to know as it was none of his business. When the speedboat was off-loaded off the coast of Australia he was suspicious because he was asked to stop where there was no proper port. He was conscious he was travelling at all times without direction other than where the Chinese men told him to travel and that this was unusual.

24    When the speedboat was launched on the evenings of 12 and 13 October 1998 the appellant claimed that he only saw that it contained a plastic container and a blue plastic bag. He denied seeing any black travelling bags.

25    In both interviews he told the police that the ship did not stop or draw to port after taking the cargo on board because the ship was fully fuelled and had adequate fuel and water on leaving Hong Kong. He did not mention the refuelling and taking on water off Singapore.

26    In his evidence the appellant departed from both these accounts. He said that he was aware before leaving Hong Kong that he was to travel to an area near the Thai-Burma border to collect an escapee and his belongings, and to thereafter transport him to Australia where the escapee would be smuggled ashore. The Crown alleged that the appellant did not tell the police that he believed he was involved in smuggling a person and his valuable personal possessions to Australia because this was also false. The person smuggling account was adopted by the appellant after service of the prosecution brief containing a statement from Chan in which Chan claimed he was recruited as a speedboat driver to smuggle a person into Australia. The judge effectively invited the jury to disregard this aspect of Chan's evidence (SU 15 of 29/2/00) as the Crown did not rely on it.

27    In his remarks upon sentence of 14 March 2000 the judge at pp3-4 commented as to the lies:

"He told a number of lies on arrest which were conceded as lies when he changed his story for the purpose of this trial. He told police that he did not know what had been brought on board in the Andaman Sea, but to thejury he said that he did know and that it was an illegal immigrant and his baggage. To the police he had said that his destination was New Zealand but that had been changed whilst he was at sea. To the jury he said that he had always known that the ship was bound for Australia. How he came to be on the Uniana was also an admitted lie. He told police the ship did not stop between the coast of Burma and Australia when it stopped for bunkering in Singapore. By way of excuse for these lies he said that he feared the death penalty was in force in Australia and because he had always known the journey was to pick up a Chinese national with his luggage, now that the luggage was, to his horror, exposed as heroin he would be held to account.
The second story was no more believable than his first. What came on board was seen by him to be fifteen rice sacks, hardly to be described as the luggage of a rich man. His account of his last month on the On Shun, painting and repairing a ship he had been told was to be scrapped was simply not to be believed. When transferred to the Uniana he asserted that he knew neither his pay nor his destination, nor his cargo, nor the ship's condition nor its safety, nor its provisions, nor its owners. Never had a captain set to sea so ill informed."

28   The judge noted that the appellant had a strong economic motive. He was in dire financial circumstances at the time he came on board. The additional pay he received and sent home would have helped.

29   The appellant relied on the evidence which disclosed planning and organisation of the importation from at least April 1998 and Chan's active involvement in various phases of that planning. Chan claimed that he believed that he would be involved in the smuggling of a person into Australia. Chan flew to Sydney in June 1998 and was driven to the mid North Coast where he assessed what would be a suitable boat and chose a suitable location for landing it by sea.

30   The appellant pointed out that the Crown initially described Chan as a very important witness. By the end of the trial the Crown did not regard Chan or his evidence as significant. Some of his evidence was untruthful. The judge remarked at SU 15 of 29/2/00:

"As to knowledge the Crown says that Chan's evidence is patently open to criticism, and he obviously lied to minimise his involvement. But the Crown only rely on him in part, namely the delivery of the heroin to the ship, its stowage on the Uniana and its delivery to Grants Beach. As to the rest of it, the Crown says it may be an interesting and discursive account of events, but they do not rely on that."

31   Counsel for the appellant noted that Chan's evidence of these incidents was largely not in dispute and thus added little to the Crown case.

32   The appellant also pointed to his reply when asked by the AFP who was the boss. The appellant answered that he was the captain. He was asked again, "No, who is the boss, the Chinese man?" The appellant indicated the man known as Ah Lung. (aka Khong Hoi Lau). He boarded the Uniana just before it left the outer port limits of Hong Kong.

33  The Defence Case

In his evidence the appellant said that at the time of the trial he was a 42 year old married man with a seven year old son. He had no prior convictions. He had held the rank of captain since 1982 and mastered 16 vessels. He had been on the On Shun since May 1998. Towards the end of July or early August 1998 the agent told him the ship may be sold. As at 14 August 1998 the sale of the vessel was confirmed and the appellant demanded back pay for 2½ months at $HK12,000 per month. The rest of the crew did likewise. Indonesia was in political chaos and there was no prospect of a job from home. He accepted an offer to transfer to another ship. He and the crew were paid their back pay. The entire crew previously on board the Uniana were leaving because of a dispute about pay. (This was also the fact on the Crown case). The area of transfer (Hong Kong Outer Port Limits) was a legitimate anchoring point for commercial vessels, with a multitude of other vessels and patrolling by the Hong Kong Authorities The appellant and the crew (except the Chief Engineer) transferred to the Uniana that day. Chan was present on the On Shun during the discussions. The appellant had not seen him previously.

34   On board the Uniana, Frankie, the agent, introduced the appellant to Mr Poon (who existed and was intimately involved on the Crown case). The appellant said that Poon told him that maybe they would sail to New Zealand in international waters and that during the course of the journey there would be two or three persons coming along, one of whom was experienced as the captain of a fishing boat. The appellant heard Poon and Frankie whispering about the nature of the enterprise. The appellant was told that someone would come on board and explain. Chan directed him to set sail on 15 August 1998 for the Thailand-Burma border and advised that they were to collect, at sea, a wealthy Chinese escapee and his belongings (which he was told were expensive goods) and take them to Australia where the escapee would be smuggled ashore. The appellant denied that he knew of the secret compartment underneath where the narcotics were stored below deck. He did not inspect or handle the goods brought on board by the Chinese man and was not allowed to by the Chinese super cargo (and the Crown did not suggest otherwise). Normally the engineer inspects the engine and the fuel tanks. (The engineer had been appointed earlier by the agent). It was the appellant's experience that normally on boarding there would be a "general arrangement" diagram derived from the chart of the vessel. Such a document was not available on the Uniana.

35   The appellant stated that he, the first officer and the second officer had made entries in the ship's log and those between 15 August and 24 September 1998 were false because of his awareness of the illegality of the trip, the certificate in the vessel (as to entry into Manila Harbour) and a note with it saying if possible to fill the log in according to that certificate. The appellant's co-accused gave evidence that he had seen this note.

36   The appellant explained that the amount of money transferred into his account comprised 2½ months back pay at $HK12,000 per month and itemised loans from crew members, details of which were provided to Frankie on 14 August 1998. The co-accused, Paluh supported the appellant's account of the loan to him. The receipt was provided by Frankie who came on board when the vessel stopped to refuel off Singapore. Chan gave evidence of such an occurrence and that $HK12,000 per month was lower than a captain of the appellant's standing could expect to receive legitimately. Chan also said that Nam had directed him during the course of the trip to tell the crew that they would get a month's bonus because of the length of the voyage. The appellant confirmed that he and the others had been told of this and that he had received a bonus of couple of weeks pay on other trips he had undertaken.

37   On the evidence adduced it appeared that while the crew of the Uniana assisted the lowering and raising of the speedboat anything to do with the rice sacks was left to and carried out by the three Chinese men.

38   It was the appellant's case that at no time did he know or believe that the cargo in the rice sacks received on board in the Andaman Sea was heroin. He stated that he believed that the goods received in the rice sacks were expensive goods belonging to the escapee. The appellant's counsel stated the issue in the trial was whether the appellant had the requisite knowledge. This was the only element of the offence not conceded. Before turning to the submissions as to this, the question of lies will be considered.

39   Appeal Ground 2 reads:

"The Crown's reliance on lies as evincing a consciousness of guilt, and the trial judge's directions regarding the same, gave rise to a miscarriage of justice."

40    At SU13-14 of 29/2/00 the judge gave these directions as to lies:

"Now there have been, the Crown maintains, a number of lies told to investigating officers which the Crown puts forward to indicate in an accused a consciousness of guilt. However, people lie for many reasons. Innocent people can lie. A person may be embarrassed. He may be fearful, and he may lie because he can see no other way out of the situation at that stage, yet need not have done what is alleged of him. There are many many reasons why people tell lies and we have all had experience of this. It is, therefore, necessary that lies told to an investigating officer, or in court, must be demonstrated by the Crown as being told for the sole purpose of deflecting the police investigation, if they are used to show a consciousness of guilt, or to, as it were, deflect your considerations.
There are four matters which the Crown must demonstrate to your satisfaction beyond reasonable doubt, before you can regard a lie as being told in the consciousness of guilt. First of all, there has got to be an assertion of fact, contrary to the truth. That must be deliberate. It must relate to a material issue, that is an important issue in the case. And it must be told solely from the motive of the realisation of guilt, and the fear of truth emerging in relation to the offence. Only where there can be no other reason to tell lies, but to stop the truth emerging, because of the realisation of guilt, can you use lies as demonstrating consciousness of guilt.

41   In response to a question from the jury, the judge gave these directions the following morning at SU 32-33 of 1/3/00:

"Lies told to an investigating officer may be seen by you to indicate in an accused consciousness of guilt. However, people lie for a number of reasons, they might lie out of panic, they might lie to escape an unjust accusation, they might lie just to deflect the accusation coming their way in the hopes that it will go somewhere else, even though they be innocent. So you must understand to start with that people tell lies for a variety of reasons, all of which we, as rational human beings understand.
It is therefore necessary that lies told to an investigating officer must be demonstrated by the Crown as being told for the sole and only purpose of deflecting the police investigation if they are to be used as a demonstration of guilt.
There are four matters which the Crown has to demonstrate to your satisfaction beyond a reasonable doubt before you can regard a lie as being told in the consciousness of guilt. First of all, there has got to be an assertion of fact, contrary to the truth. It must be deliberate and it must relate to a material issue, one that is an important issue in the case and it must be told solely from the realisation of guilt in the teller and the fear of truth emerging in relation to the offence.
Only when there can be no other reason to tell lies but to stop the truth emerging because of the realisation of guilt can you use that lie as demonstrating consciousness of guilt. That is why 'no' is only the short answer to your question.
If Mr Mandagi is lying for the sole purpose of distancing himself from his involvement with the voyage to decrease his chances of being found guilty but not necessarily because he knew narcotics were on board, the answer is the jury obliged to use this as proof of guilt?' (sic – ‘question’?)
The answer to that is no. The only time that you can use it as assistance in the Crown case is if you are satisfied that it was told with the sole purpose of stopping the truth emerging because he realised he was guilty and then you can use it to assist the Crown case."

42   The judge next identified the lies upon which the Crown relied. The appellant contends that most if not all the lies should not have been left to the jury as capable of adding to the Crown case by evincing a consciousness of guilt and that with all of the lies there was no adequate direction in terms of the appropriate factors to take into account in determining the four matters.

43   The appellant made these further submissions:

(a) In any case where a lie is relied upon to prove guilt the lies should be precisely identified as should the circumstances and events that are said to indicate that it constitutes an admission against interest: Edwards (1993) 178 CLR 193 at 210-211. Such circumstances and events were not identified by the judge.
(b) The essential directions that the jury must be satisfied that the relevant statement was untrue and deliberately so were rendered nugatory by the judge's failure to refer to the evidence which was said to show such deliberate untrue statements. The appellant submitted that there was no clear evidence of the statements being untrue and deliberately so. Objection was taken to the judge's comment -
"His defence to all of this is that he would be held responsible merely because he had captained the ship holding the Chinese person and he was fearful of the death penalty."

This was an over-simplified account of why he had told the various lies.

(c) A number of the lies did not relate to material issues and no explanation was provided as to how any of the lies could relate to material issues.

(d) The jury was not told that lies standing alone cannot, of themselves establish that the accused is guilty of the offence charged.

44   At T89 of 2/3/00 there was a discussion between the judge and counsel for the appellant. Counsel said "Well, they'll have no trouble, they're admitted lies." In his remarks on sentence (P3 of 14/3/00) the judge referred to the appellant conceding that he had told a number of lies on his arrest. In his evidence in chief when asked if he had told the police the truth during his two police interviews, the appellant replied, "No, I made a bit of lie" (T410). He also said that he did not tell the police about stopping at Singapore or the person smuggling venture. In cross-examination (T414) the appellant agreed that he did not tell the police the truth when they spoke to him on 15 October 1998. He agreed (T415) that he told them lies about his involvement in the Uniana's journey to Australia. He said "I lied to the police after the police told me about that red speedboat carrying heroin." At T417 he agreed that he lied to the police on 15 and 19 October 1998 because he feared he might be liable for the death penalty for smuggling. He instanced other countries in the region where he believed it was imposed and thought Australia would also do so. At T457 he agreed that he believed if he told the police the truth he would be in trouble. In view of the concessions and admissions made the judge was able to proceed on the undisputed basis that the appellant had told lies to the police on 15 and 19 October 1998. However, the admissions by the appellant that he had told lies were general in their terms. The prosecutor took the appellant in cross-examination to particular alleged lies. The appellant contended that as to many of the alleged lies relied upon by the Crown there was no express admission that they were untrue.

The judge identified for the jury the alleged lies on which the Crown relied (SU 33-38) thus:

(1) On pp 16 & 17 of his record of interview of 15 October 1998 the appellant said that he did not know what the cargo was and that someone told him it was fish food. His evidence was that he knew it was an illegal trip to take a rich Chinese man to Australia. The Crown while not accepting the second statement which it alleged was also a lie, relied on the second statement pointing up that the first statement was a lie and evidenced a consciousness of guilt.

(2) On pp25 & 26 (Q95) the appellant stated that the Chinese men told him firstly to sail to New Zealand but in the end they told him to come close to Australia. In his evidence the appellant said that he had always been told that the journey was to go to Australia. (See T380 - course plotted on charts led to Australia, T383-4, T385, T429).
(3) On p.53 (Q185) the appellant stated that he was suspicious because they (the Chinese men) would not tell him what the goods were. [The appellant had also said that he was suspicious because there were no documents - the judge did not mention this. The appellant asked what he could do in the circumstances]
He told you (the jury) now that he knew what the goods were and he says that they were the belongings of the rich Chinese man. The judge added that it was no part of the Crown case that this was correct but that was a lie he told the police to deflect them. [In his evidence the appellant said that he was told that the Chinese man would "take along" his personal belongings, which were expensive goods. The appellant said that he believed these were expensive goods; gold jewellery was indicated. The appellant was not sure that the Chinese men were telling him the truth].
(4) Question 190 (p54) - the appellant answered that "a friend had offered me (or told me) about this job." That was a lie because he was transferred with the rest of his crew from the On Shun.
(5) Question 16 of interview of 19 October 1998 - the appellant answered that the Chinese man on board the Uniana told him to wait and take on food in the Andaman Sea. According to his evidence he always knew what the voyage was for and that they were waiting to take on, as he says now, a rich Chinese man with his belongings.
(6) Question 211 [did you consider you were carrying drugs] - the appellant answered "we did not think what the things were". [This is a paraphrase]. He also said to the police that he had been told that it was fish food [but he added that this was said jokingly]. The judge continued, "now he maintains to you that he does know, or did know, what the goods were. They were the possessions of the rich Chinese man."
(7) Question 219 - [where did you stop between Burma and Australia] - the appellant answered that they did stop. The judge continued, "You have not only his evidence but you also have the evidence of the agreed facts in which it has been agreed and has been put before you that the Pegasus Venture went out and met the Uniana and commenced to supply diesel oil."

45   While the judge was identifying the alleged lies on which the Crown relied the jury had copies of the transcripts of the two records of interview. Thus the judge did not have to summarise the questions. I have added a little detail, known to everyone at the trial, to facilitate understanding of the judge's summary.

46   After so identifying the alleged lies the judge said (SU.36):

"They are the lies which the Crown would rely on ... Mandagi's] defence to all of this is that he would be held responsible merely because he had captained the ship holding the Chinese person and he was fearful of the death penalty."

47   At SU.38 the judge explained:

"If you are of a view that those explanations are reasonable, then you cannot of course use those lies as evidence of consciousness of guilt, and in this case that really amounts to guilty knowledge. That of course is a matter entirely for you to determine."

48   The judge immediately asked counsel for the appellant and his co-accused whether there was anything counsel would wish him to add or subtract. Counsel did not ask the judge to add or subtract from his directions as to the appellant.

49   In the course of summarising the evidence and putting the appellant's case in reasonable detail to the jury. The judge reminded the jury:

(a) The appellant said that he did not tell the police about the rich Chinese man he had brought to Australia because he was confused. His mind was "miserable" [after what he had been told by the police]. If he had told the police and been honest with them he would have further involved himself.
(b) He was arrested in the early hours of 14 October 1998, had brought the ship down to Sydney and had not had very much sleep when the police interviewed him and the record of interview was made.
(c) He did not see clearly that there were black bags in the boat that went to the Australian shore because it was very dark.
(d) The appellant and his co-accused had been misled by a cunning, well organised and ruthless cartel. The cartel operated on a need to know basis and the accused would not have been told truthfully what cargo the ship was carrying. If the ship or the captain and crew were apprehended the less they knew, the less they could tell.
(e) The accused "lied to the police for a number of reasons. They were foreigners in a strange country. They realised that something had seriously gone wrong, when the ship was arrested, and they were told to lie down on the deck. They were told that heroin in large quantities had been imported from that ship and they were frightened that they were going to be sentenced to death. For this reason they wished to distance themselves from any involvement in that enterprise, and that is why they told the police the lies they did. Overall it was obviously a very wealthy syndicate." The crew however could be sacrificed and what they were told was that they were people smuggling. "Their motives were merely to, as it were, save their own lives, and they told these lies not in the consciousness of guilt, but out of terror."
(f) In the appellant's case the fear had been compounded. He asserted that he had been told by a police officer that two persons had died in this kind of operation.

50   The judge also outlined the Crown's submissions as to lies. The Crown contended that the account of the accused that they were only told that they were going to pick up this rich man and his luggage only occurred after they had spoken to the police and that the jury were hearing this version for the first time.

51   The judge referred to a series of factors (SU.79-80 and referred to earlier) which the Crown claimed demonstrated that the explanation given in Court was utterly untrue, and that the real reason for the lack of concern as to the cargo being carried was that the appellant sought to distance himself at every turn from the quality of the real enterprise. The judge noted the further Crown claim that there was no real explanation as to why the accused did not tell the police the story which they now told the jury. The judge also noted the Crown assertions that the appellant received a significantly higher salary for the journey in question than would be usual and that he had told specific lies to the police.

52   There was evidence of each of the lies relied upon by the Crown when a comparison is made with what the appellant said to the police in the two interviews and the evidence which he gave. It was not disputed that lies had been told to the police. The thrust of the defence case was that there was a credible explanation why they had been told. The appellant was terrified and wanted to avoid being put to death. The appellant, by his counsel elected to rely on that rather than contend that he had not lied. In some instances it was beyond argument that deliberate lies had been told. In others, the jury were entitled to take the view that deliberate lies had been told. The jury were correctly told what the Crown had to prove beyond reasonable doubt before the Crown could rely on the lies as evidencing consciousness of guilt. The judge also directed the jury that only where there can be no other reason to tell lies but to stop the truth emerging because of the realisation of guilt, could the jury use lies as demonstrating consciousness of guilt.

53   In the circumstances of the present case including that there was no dispute that the appellant had told lies, the identification of the lies, the nature of the response of the appellant, and the judge's outline of the competing arguments, the directions given were adequate. More was not required. This ground of appeal must fail.

54   No relevant objection was taken to this portion of the summing-up at the trial despite adequate opportunity to do so including the specific invitation of the judge earlier mentioned. There were sound reasons for the appellant to urge the jury to accept his response of terror and lack of sleep, both of which were readily understandable and and not to embark upon a detailed analysis of what was said. Leave to argue this ground of appeal should be refused.

55   Appeal Ground 1 reads:

" the trial judge's directions regarding knowledge, for the purpose of knowing concern in the importation, were erroneous."

The appellant submitted that the Crown case as to his knowledge that heroin was being imported as distinct from a person being smuggled into Australia was entirely circumstantial and that it was not clear and never explained how the factors relied upon by the Crown supported the conclusion that he knew (or believed) that heroin was being imported and that smuggling a wealthy Chinese man into Australia was not a reasonably possible explanation.

56   The judge explained what knowledge meant and how it could be proved at SU10-13:

"Knowledge however to make the involvement criminal need not alone be knowledge gained from direct observation. Direct knowledge gained from observation, knowledge gained by being told or by reading or an awareness of the likelihood in the sense that there is a significant or real chance that the enterprise involved the importation into Australia of drugs are all to be regarded as knowledge for the purpose of this section.

You know you have locked your keys inside your car when your slam the door and see them in the dashboard. You know you have locked your keys in your car when someone comes and tells you that you have done that because they have looked and seen the keys in the dashboard. And you know that there is a reasonable likelihood of your having locked your car keys in your car when you come back from the supermarket to the parking place and you have not got the keys with you and you know you have not put them down anywhere. Now that is a reasonable likelihood or a significant chance. All of that wide spectrum is knowledge for the purpose of this Act. But you must bear in mind that it is the knowledge in an accused person which must be proved beyond reasonable doubt by the Crown. Not what you would have known, or the reasonable person would have known, or the reasonable sailor on board the Uniana would have known, but the knowledge that can be attributed to these three individuals, separately.

Proof of knowledge, unless a person says that he knows something, is to be inferred from the circumstances surrounding the action in question. These may be physical circumstances, being at a particular place at a particular time, being in possession of certain objects, being in possession of certain skills and experience, and they may be actions proximate in time to the event itself. They may be actions contrary to good practice of a person with particular skills.

You must be satisfied of each of the facts upon which you rely, and which the Crown relies to substantiate knowledge.

If I can give you a little example of the kind of process through which you go. If you are sitting in your lounge room at home and the light goes out there may be four reasons for that to have occurred. It may cross your mind that the bulb has blown. It may cross your mind that there has been a power cut. It may cross your mind that the fuse has blown, or it may cross your mind that something has gone wrong with the wiring in your house. If you go outside to the next room and turn the light on and that functions, then obviously there is not a power cut. You can be satisfied beyond reasonable doubt of that. Let us suggest that you go to the kitchen to get a new bulb and you put that in to the socket in the lounge room and it still does not work, you satisfied yourself beyond reasonable doubt that it is not the bulb that has blown. You go out to the fuse box but all the fuses are intact, so you satisfied yourself beyond any reasonable doubt that it is not a fuse problem. So the only thing that remains is that something has gone wrong with the wiring. Let us suppose you call an electrician in, in the morning, and he comes down with a burnt out piece of wire and shows it to you. You are not surprised by that because, having cut off every other alternative, that is the only one that is left. And it is in this way that you approach the evidence when it comes to knowledge. You should look to the evidence of facts proved to your satisfaction beyond a reasonable doubt, and the inferences that can be drawn from those facts. You need not put aside a fact because it does not, of itself, disclose knowledge. You may keep it in the total number of facts that you are examining. And if looked at in total they point to an accused having knowledge to a requisite degree, and can bear no other rational inference, then you would be satisfied beyond reasonable doubt that the person was knowingly concerned in the importation.

It is the duty of the Crown to satisfy you beyond reasonable doubt that knowledge is the only rational inference, that there is no other rational explanation, but that each of the accused had knowledge."

57   The appellant submitted that as the Crown had not relied upon "wilful blindness" the direction as to "significant or real chance" as an alternative to either direct observation or being told of the likelihood of heroin being on board was erroneous. It was further submitted that the car key analogy was confusing, tended to reverse the onus of proof and was inappropriate to the circumstances of the case. Counsel for the accused asked that it be withdrawn.

58   It is necessary to recall how the Crown case was put. The Crown contended that it had established that the appellant knew when he left Hong Kong that narcotics were to be imported into Australia because he was privy to the pre-planning necessary for such a venture. The Crown, both further and in the alternative contended that it was sufficient that the appellant knew at the time he left Hong Kong that he was embarking on an illegal venture of some considerable dimension and that later, either when the heroin was taken on board and/or off-loaded, he knew that it was a narcotics importation in the sense that by that time he had a positive belief in the likelihood, that is, that there was a real or significant chance, that narcotics were involved. The Crown submitted that as its case on knowledge was capable of being put in this way the judge's directions were flawless. The Crown also submitted that the use of the car by analogy to exemplify deductive reasoning was apt where what was being considered was proof of actual knowledge sourced otherwise than from what a person saw or was told.

59   The judge at SU.30-31 in answer to the jury's question explained that the "knowing concern" could arise at any time throughout the voyage to Australia, providing there had been assistance in some part of the enterprise with the requisite knowledge. It could arise at the beginning, middle or end of the voyage.

60   In the circumstances of the present case the car key analogy or illustration was appropriate and exposed the various ways in which knowledge could be obtained. It did not tend to reverse the onus of proof which the judge explained to the jury. The alternative and further way of putting the Crown case was permissible and combined comfortably with the third section of the illustration. The judge emphasised that the Crown had to prove beyond reasonable doubt the knowledge that could be attributed to the appellant.

61   The appellant complained that the jury was not given a circumstantial evidence direction and that the judge's light bulb analogy was the closest the summing-up came to such a direction. The appellant had submitted to the judge that if that analogy was to stand the judge should answer the question which the jury asked:

"Does significant chance or reasonable likelihood mean the most reasonable alternative in the accused's mind or a reasonable alternative. For example using your light bulb analogy at what point does the person establish there is a reasonable likelihood that the problem is the wiring, is it when the light goes out and that is established as a reasonable possibility after the other options have been investigated and discluded." [sic - discarded?]

The judge replied (SU.31-32):

"I told you yesterday that knowledge may come to a person in a variety of ways. It may come to a person through direct observation or being told or having a belief that there is a significant chance or reasonable likelihood. They are gradations as it were of knowledge.
It has to be the knowledge in each or any of these accused persons and it has to be a positive belief in a reasonable likelihood. It has to crystallise into that stage. It would have to be a positive belief in an accused that there was a significant chance that what was in the hull or what was being unloaded was narcotic goods. Nothing short of that can found a conviction."

The judge asked each counsel whether they wished him to add or subtract anything. It was not suggested that he should.

62   The judge did not answer the jury's questions directly. He did not further discuss the light bulb illustration. Instead he directed the attention of the jury to the principles which should guide them. That was prudent. The penultimate and last sentences from the passage last quoted were directly in point and of much assistance to the jury. I reject the complaint that the judge should have dealt with the jury's questions in a different fashion.

63   I return to the complaint that the judge did not give a circumstantial evidence direction. In Shepherd v The Queen (1990) 170 CLR 573 at 578 Dawson J, with whom Toohey and Gaudron JJ agreed, pointed out that sometimes a circumstantial evidence direction may be necessary to enable the jury to go about their task properly but he added, "... there is no invariable rule of practice, let alone of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given." Dawson J referred with approval to these remarks of Barwick CJ speaking for the Court in Grant v The Queen (1975) 11 ALR 503 at 504:

"...Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed. "

64 The Crown relied on the following circumstances in support of its case on knowledge:

(a) The appellant was on board the On Shun outside port limits in Hong Kong Harbour for six weeks prior to the arrival of the Uniana in receipt of monthly pay plus bonuses.

(b) The appellant's evidence that he transferred from the On Shun to the Uniana without making any enquiries about the journey to be undertaken is implausible

(c) The appellant's evidence that he made no inspection of the Uniana upon boarding her, or for the 24 hours prior to departure, and therefore had no knowledge of the existence of the speedboat in its specially designed cradle under deck, or the void chamber is implausible. The competing inference is that he was aware of the existence of the speedboat and the lack of any cargo but was unable to innocently account for it.

(d) Admiralty charts were taken from the On Shun to the Uniana, at least one of which displayed part of the east coast of Australia.

(e) On 17 August from Hong Kong the Appellant transferred HK50,000 to Indonesia. His explanation that he borrowed this money from other crew members is unacceptable, given the shared plight of their economic circumstances as Indonesian nationals.

(f) The existence amongst the ship's documents of a 'Clearance of Vessel to Foreign Port' Certificate to Manila Harbour on 10 September 1998 in the name of 'Captain Krist T J Mandagi', together with the ship's log reporting an entry that the Uniana set sail on 11 September from Hong Kong to Manila.

(g) The appellant's participation in the preparation and maintenance of a false log of the ship's journey inclusive of false entries on 14 August, the day before the ship departed Hong Kong and the day before he claims to have been told of the person smuggling venture.

(h) The fact that two Hong Kong nationals joined the Uniana outside port limits to accompany the Uniana on its journey

(i) The fact that these same men boarded a speedboat in international waters off the coast of Burma and Thailand (in bad weather and under cover of darkness) and returned with another Chinese man and 15 rice sacks with a weight just under half a ton.

(j) The appellant's evidence that he did not see that there were a large number of sacks in the speedboat, or make any enquiries at the time as to what was contained within the sacks in the circumstances was implausible. The competing inference being either that he knew that narcotics had been collected because he had been told or because he knew in the sense of it being reasonably likely that it was so.

(k) The fact of oil and water being taken on board outside port limits at Singapore.

(l) The offloading of the speedboat off the east coast of Australia, together with two of the Chinese men and cargo now consisting of 31 black sports bags. The appellant's evidence that he did not see the large number of black bags covering the floor of the speedboat is implausible given his supervision of the offloading of the speedboat on two successive nights. The competing inference is that such a large number could not readily be explained as containing gold jewellery and reflected the fact that he knew that narcotics were being offloaded because he had been told of that fact or because he knew in the sense of it being reasonably likely that it was so.

65   These matters appear in the course of the summing-up. The judge emphasised that the Crown had to prove its case beyond reasonable doubt and as earlier mentioned that for the appellant's involvement in the importation to be criminal the concern had to be knowing, that is, he had to know the nature of the undertaking. The judge explained what "knowledge" meant in the context in question. As appears from the lengthy directions quoted the judge further explained that proof of knowledge was to be inferred from the circumstances surrounding the action in question. Indeed as appears from the latter part of the quoted directions the judge said that when they considered the question of knowledge the jury should look to the evidence of facts proved beyond reasonable doubt and the inferences that could be drawn from those facts. At SU3 he had explained what an inference was.

66   The judge continued that if the facts in total pointed to an accused having knowledge to a requisite degree and could bear no other rational inference then the jury would be satisfied beyond reasonable doubt that person was knowingly concerned in the importation. The judge added that it was the duty of the Crown to satisfy them that there was no rational explanation other than knowledge. This made the position clear. A circumstantial evidence direction would have been redundant.

67   The judge subsequently summed up the facts which led to an inference of knowing concern and the accused's case in reply.

68   On examining the summing-up and the circumstances it is to be concluded that the absence of a circumstantial evidence direction does not result in the summing-up as a whole being inadequate. The jury were adequately instructed. As Dawson J remarked in Shepherd at 579, "It will generally be sufficient to tell a jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." In the present case the jury were instructed to this effect. The complaint based on the absence of a circumstantial evidence direction fails.

69   The appellant submitted that in drug charges the Crown is required to prove knowledge of the relevant quantity beyond reasonable doubt and relied upon CWW (1993) 70 A Crim R 517. The appellant accepted that a belief falling short of actual knowledge, if proved beyond reasonable doubt, sufficed. CWW related to the Drug Misuse and Trafficking Act 1985. This is not the occasion to reconsider CWW as the High Court of Australia has authoritatively determined in Cheng v The Queen [2000] 203 CLR 287 that knowledge of the quantity of narcotic goods involved in the importation was not a necessary ingredient of the offence of being knowingly concerned in the importation into Australia of narcotic goods. This leads to the rejection of the appellant's submission.

70   The Crown case was a very strong one, the defence was unbelievable and conviction was inevitable. The appeal against conviction fails.

71   Sentence

The appellant submitted that the sentence imposed was manifestly excessive and that it was outside the permissible range. Further,

he contended that there were these discrete errors in the sentencing process:

(a) failing to consider the role in the enterprise played by the appellant.

(b) failing to find that (or even consider whether) the appellant's role was less culpable in the enterprise than Chan's.

(c) imposing a life sentence where he had (by not considering the role played) postulated the absence of facts mitigating the seriousness of the crime.

(d) the sentence contravened the principles of parity when compared with that imposed on Chan. This was exacerbated by the judge failing to consider (or adequately consider) the appellant's role.

72   In his remarks on sentence the judge stated the circumstances which must have been accepted by the jury beyond reasonable doubt as to the offence. The amount of heroin powder weighed 389 kilos and contained 252 kilos of pure heroin. Its wholesale value was estimated to be seventy seven million dollars and its retail value six hundred and five point five two million dollars.

73  The judge noted that the jury had rejected the appellant's claim that he did not know the nature of the cargo being carried. He was present on the bridge of the Uniana when it came aboard in rice sacks at night by torchlight in the Andaman Sea off the Thailand-Burmese border after a wait of many days and when it left the Uniana at sea at night by torchlight off the coast near Port Macquarie. Throughout the journey the appellant falsified the log so that there is no entry of the voyage to the Andaman Sea. Documents found on board, several of them forged, show him as the captain on a voyage from Manila Harbour to New Zealand. The documents were post-dated about a month after he sailed from Hong Kong. The judge noted the conceded lies told by the appellant. The judge found that the appellant's second story as to the rich Chinese escapee coming aboard with his luggage was no more believable than the first. The judge also found that there was a strong economic motive for the venture.

74   The judge recorded that the appellant was 42 years old and married with one son. He was a Christian by faith but married to a Muslim. The events have shattered his family and his wife and child have now been ostracised by both communities. The Indonesian economy was in a state of collapse and this led him to become involved. The judge recorded the submission that the appellant had gained little from this enterprise and far less than Chan.

75   The judge rejected the appellant's submission that he was only a worker. The judge held that to attempt to build a hierarchy or company structure of a criminal enterprise such as the present one, without the slightest evidence, was to visit a world of conjecture. The judge made this finding:

"It is more to the point to say that this was a well planned, efficiently executed, criminal enterprise and of those involved who are amenable to the Australian justice system Mandagi was a pivotal figure and as such must bear much of the responsibility. Whether or not he received an amount commensurate with the risk he took is also not to the pint. It was a crime of massive proportion and he was deeply concerned in its commission."

The judge held:

"I have no doubt that only a harsh penalty will deter him. I have considered adequate punishment. The previous antecedents have already been set out and taken into consideration. It is quite possible he may be rehabilitated, although he appears as yet incapable of grasping the principle that there is, in a crew ( sic) of this nature, no division of moral responsibility. He still appears to see the importation as no concern of his. There is no doubt that a sentence imposed here will have a severe effect on the prisoner's family, he being the only source of income."

76   The judge accepted the Crown's submission that only a life sentence was appropriate but that a non-parole period should be set. The Crown has also submitted that if the Court considers that there are others "more deeply involved” than the appellant, then while his role and that of Chan differed, they were indistinguishable in real terms and the appellant should be sentenced on the same basis (26 years with a non-parole period of 20 years) without the discount for assistance.

77   Counsel for the appellant addressed the judge extensively on parity and the Crown had it in mind in its submissions. The judge did not deal with the submissions as to parity.

78   Counsel submitted that the judge should have addressed "more finely" the role of the appellant and evaluated where he stood in relation to the organisation for which he committed the offence. It was submitted that there was evidence available as to the appellant's level of relative involvement in the enterprise and that it should have been taken into account especially as a life sentence was being contemplated. The appellant also submitted that the reasoning of the sentence imposed on the appellant demonstrated an erroneous methodology in that it almost presumed that where a large (or, perhaps very large) quantity of prohibited narcotic was involved a sentence of life imprisonment follows. That was to attach undue importance to quantity which is only one of a number of factors.

79   It was submitted that the maximum penalty should be reserved for the worst type of case and that this was not such a case.

80   The appellant submitted that, even on the Crown case the organisers of the enterprise were based in Hong Kong (or perhaps China). They provided directions to and kept in communication with Chan throughout the voyage. They organised for the transfer of the Indonesian crew from the Ah Shun to the Uniana on 14 August 1998. On the Crown case, Chan's associate, Ah Lung who was on board the Uniana, and sharing the captain's quarters with him, had $HK18 million pass through his accounts within less than a year prior to the importation. Counsel submitted that the appellant was part of a cheap compliant Indonesian crew whose maritime skills were used by those who organised, and stood to gain by the importation. This submission is probably correct. Counsel contended that the appellant was low in the hierarchy of the organisation. That is not the touchstone given the important role played by the appellant.

81   It was submitted that the appellant’s role was in sharp contradistinction to a person closely concerned with an organisation which provided the chain through which the goods would pass from their initial cultivation and preparation to their destination on the Australian market. It was also a role objectively less serious than that exercised by someone in a position such as Chan, who exercised quasi initiative and control although on the case most favourable to Chan, still subject to the direction of those above him.

82   While the role of Chan was an important one and he exercised executive and directing functions, the role of the appellant was also important. As the judge remarked the appellant had a pivotal role and the venture depended on his skills and seamanship in being able to manage his crew, sail safely for long distances through troublesome areas and arrive in international waters off Port Macquarie. Effectively, he had to do all this while taking orders from Chan and Ah Lung. While the criminality of the appellant was high, it falls short of the worst case.

83  While the appellant should have stoutly resisted the temptation to become involved, he faced the problems of lack of other employment and financial difficulties. The Crown accepted that the appellant had no relevant criminal antecedents.

84   The Crown correctly submitted that it was not essential for the trial judge to identify the precise nature of the appellant's involvement for sentencing purposes: R v Olbrich (1999) 199 CLR 270 at 277, para 13. The judge rejected the appellant's account of how and when he became involved and that he was merely a worker. There was little by way of objective and reliable information as to those matters but it does seem reasonably clear that the appellant effectively had to do and did what he was told by his Chinese masters. This does not preclude protests by the appellant. It was not suggested that they interfered in matters of seamanship and the general management of the crew. They did however dictate the course taken by the ship and to the extent of supplying the co-ordinates of the positions to be taken up and arranging for the Uniana to be re-fuelled at sea.

85   The Crown submitted that it was sufficient for the judge to consider the level of responsibility the appellant assumed for the collection and safe transport of the heroin to Australia as expressive of his role. These were important matters to be considered but they have to be set against the background facts which emerge with reasonable clarity from the evidence. The Crown submitted that the judge was justified in describing the appellant as a pivotal figure in a well-planned and efficiently executed criminal enterprise. The judge put the matter slightly differently. He said that of those involved who are amenable to the Australian justice system the appellant was a pivotal figure and as such must bear much of the responsibility. Many drug ventures extend across a number of countries and involve people from different countries. In assessing criminal responsibility attention has to be focussed on what each person did and his responsibilities or lack of them. Some of those involved may not be amenable to the Australian justice system theoretically or practically. Neither a person's criminality nor his punishment should be elevated merely because the principals are not so amenable and that person is. Similarly, the person who is amenable should not bear more than his true share of responsibility. I am not sure exactly what the judge was meaning to convey by the remarks under consideration.

86   The appellant had an important role and it was pivotal to the extent that his task was to ensure the safe transport of the heroin. There was no evidence suggesting that the appellant had anything to do with the purchase of the heroin, its delivery to the speedboat in the Andaman Sea or its distribution in Australia or with any executive functions.

87   The Crown submitted that there was nothing in the judge's remarks to suggest that he gave undue weight to the quantity of heroin involved. The judge rightly referred to the quantity and its value in his remarks but those facts were not given undue weight in the judge's stated reasons.

88   The Crown submitted that it was incorrect to regard the imposition of a sentence of life imprisonment with a non-parole period of twenty five years as the maximum penalty and reserved for the worst case. The effective maximum penalty under the statute is life imprisonment with no non-parole period. The Crown pointed out that such a sentence was imposed in another trial on two co-offenders, namely the other two Chinese men aboard the Uniana whose criminality was regarded as more culpable than that of the appellant and about whom it could be said that there was an absence of matters mitigating the seriousness of the crime.

89   Parity

On 14 October 1999, consequent upon a plea of guilty, Chi Keung Chan was sentenced to thirteen years imprisonment with a non-parole period of ten years. The judge took as a starting point, having regard to the objective seriousness of the offence, a sentence of thirty-six years imprisonment. He continued:

"No remissions are in force in New South Wales and in accordance with the provisions of section 16G the sentence is reduced by ten years to one of twenty six years. I would set a non-parole period of twenty years. Applying the discount of ten per cent for past assistance and plea and forty per cent for future assistance particularly in regard to the undertaking, which he has given the Crown, the sentence imposed is one of thirteen years imprisonment and a non-parole period of ten years."

The judge intimated that he would have imposed a sentence of twenty-three years and six months with a non-parole period of eighteen years but for the future assistance.

90   In sentencing Chan, the judge after reviewing Chan's change of stories from that given on 14 October 1998 to that given in March 1999, said:

"A combination of these two accounts supports the following findings of fact. (1) The prisoner was employed for one journey. (2) He was to be paid in a sum certain for his part in the enterprise. (3) He brought to the enterprise special skills as a speed boat driver and navigator. (4) He purchased items such as wet suits and goggles. (5) He brought on board the co-ordinates for the rendezvous at the Thai/Burma border. A piece of paper with these co-ordinates on them he had received from Fei Lo Nam. (6) He was never without money because he appeared to have outlaid cash for fares, goods and equipment purchased and was reimbursed 10,000 Hong Kong dollars. (7) He was required to negotiate with the captain who was becoming impatient at the delay at the rendezvous at the Thai/Burma border. (8) He reported the safe arrival of the cargo but apparently was to take orders from Man Chai, who had come on board with the packages, as to their proper stowing. It was clear in the conversations that Fei Lo Nam knew the layout of the ship precisely. (9) He took instructions from Fei Lo Nam and kept him informed. "

And:

"It is difficult to determine with precision his position in the hierarchy of this enterprise, firstly, because he has to be believed and this is difficult and secondly, because the relationship between the captain and those who either owned, purchased or transported the heroin is not clear."

91   After weighing a number of factors the judge rejected the Crown contention that Chan was a delegate of the owners while the heroin was on board and determined to regard Chan:

"As a specialist employed for one trip only with reporting duties but with no greater decision making role than the performance of his duties to load and unload the heroin ..."

92   Chan was an experienced Chinese fisherman who had worked as a trawler captain. He said that he was a very experienced sailor and navigator. He was engaged as an accomplished speedboat driver and to perform other tasks in what he knew was an illegal enterprise. The judge rejected the submission that any calculation of sentence should have as its starting point life imprisonment and that any discount could be used in the calculation of a non-parole period. The judge held that the importation of such a large quantity of heroin by the sophisticated and well organised techniques employed warranted life imprisonment. He also accepted Chan's submission that "his position was not, of those amenable to the criminal law of the Commonwealth the most serious." The Judge added:

"It is necessary to look to those others amenable to the criminal law in this country to determine those most deeply involved and giving the prisoner the benefit of the doubt, he is not that person or one of those persons."

93   The materials before the judge included a statement by Chan on 19 March 1999. Allowing for some or much of it not being true it reveals that in April 1998 Chan sought work from Fei Lo Nam (Nam) knowing that it may involve smuggling people. Chan said that Nam, whose headquarters were in mainland China, told him that he had a vacancy for a speedboat driver and that he needed someone to take a very important person and his possessions to Australia. Chan was told:

"...you will be taking one person and some precious luggage from a small boat to a big boat and then later take them to Australia. You will be paid $300,000 and I can give you $50,000 now."

Nam did so and said that he could give Chan another fifty thousand Hong Kong dollars if Chan needed it. Nam inquired if Chan spoke Mandarin. Chan recommended Ah Lung.

94   Nam stated that he would contact Chan when there were further developments. Nam instructed Chan to buy a mobile telephone for himself and one for Nam and some phone cards including sim cards in another name. Chan was told never to purchase anything in his own name. Chan caused the cards and the mobile phones to be purchased, advised Nam, who arranged for them to be collected and Chan to be reimbursed.

95   Chan stated that in early June 1998 Nam instructed him to go to Australia to look at some beaches to see if they were suitable to get a speedboat ashore. He would be met at Sydney Airport. Chan arranged for a visa and Nam caused arrangements to be made for airline tickets. Chan collected and paid for them. They included one night's accommodation in Sydney. Chan flew from Hong Kong to Sydney. Fei Chai met him, took him to his hotel and the following morning drove him to the Port Macquarie area. Fei Chai took Chan to three separate beaches. Chan considered the first beach he saw to be the most suitable and another one to be suitable. Fei Chai took a recording from a hand held Global Positioning System (GPS) and made notes. They stayed at a local motel. Fei Chai received calls on his mobile telephone (up to 3 or 4 each hour). They returned to the beach which Chan had nominated as most suitable on two more occasions, one at night and one during the day and assessed if the conditions were any different and to observe high and low tides. Fei Chai paid for everything in cash.

96   On his return to Hong Kong Chan reported to Nam, who told him that the job would be done next month, that Chan's job was to drive the speedboat and that Ah Lung was to take care of the satellite telephone on the boat. Nam undertook to organise some special travel permits for Chan and Ah Lung and Chan gave Nam a passport photograph. Nam advised that they would be on the boat for two months and requested Chan to obtain medicines for the trip to take on the boat. Nam gave Chan a further fifty thousand Hong Kong dollars.

97   About 12 August 1998 Nam instructed Chan to buy three wetsuits, three life jackets, three pairs of goggles and some torches for the trip. He did so, except that he could only purchase two pairs of goggles. Nam, Ah Lung and Chan had dinner together that night. Nam gave a new contact pager and mobile telephone number for himself to Chan and instructed him:

"Give these co-ordinates and frequencies to the interpreter when you get on the boat, he will need to give them to the ship’s captain. … when you get to these co-ordinates call ‘Man Chai’ on the radio and someone will respond.”

98  Nam handed Chan a piece of paper containing all the details including the number of the satellite telephone on board the ship. Pursuant to instructions from Nam, Chan and Ah Lung put the 3 diving suites, 2 pairs of goggles, diving knife, 2 non-slip shoes, a mobile GPS, medical supplies, food, magazines and Chan’s personal mobile telephone on board the Uniana on the morning of 15 August 1998. Chan handed the pieces of paper given to him by Nam containing the radio frequencies and shipping co-ordinates to Ah Mong the Indonesian/Mandarin interpreter on board who handed such papers to the appellant (Mandagi). He later returned the pieces of paper. Chan and Ah Lung returned to Aberdeen, Hong Kong and had lunch. Nam instructed them to rejoin the Uniana and they did so. It sailed about 5.00 pm.

99   During the first 14 days of the trip Nam telephoned the Uniana everyday and enquired about its position. Either Ah Lung or Chan took these telephone calls. In the instances that Chan spoke to Nam, Chan was able to tell him of the boat’s current position after studying the GPS and sometimes after consulting the appellant. Chan said that he received a telephone call from Nam that they would soon be meeting the other boat and to get ready to set down the speedboat. Chan said that he relayed this information to Ah Lung and told him to tell the appellant to make ready with the speedboat. The appellant became angry and threatened to leave if nothing happened that night. Chan said that he would let the boss (Nam) know. A short time later contact was made between the appellant, Ah Lung and a further vessel by way of a two-way radio. Thereafter the transfer of the heroin and Man Chai from that further vessel to the Uniana using the speedboat occurred. Not long after that was completed Nam checked with Chan via the satellite telephone that the “parcels” were on board. Chan was told:

"...Take the black bags and the plastic bags out of your cabin and take them to Man Chai. Go and help Man Chai he knows what to do with them.”

Chan did as Nam instructed. The heroin was removed from the speedboat, the blocks of heroin being put in sealed plastic bags and

packed in black carry bags.

100  At the trial of the appellant the evidence in chief of Chan broadly followed the terms of his statement of 19 March 1999 but much more detail was led. In the cross-examination Chan stated that when he saw the rice bags being thrown into the speedboat he knew for the first time that he was involved in prohibited drugs. He said that at his point he knew that he had been tricked. He was unable to discuss the position with Man Chai, the appellant or the crew because had did not know where they stood. Chan was cross-examined about his statement of 10 December 1999 in which he stated that during the first conversation with Nam he had said “One person for so many belongings.” Chan said that the original version should be “one person with belongings.” Chan said that when he enquired as to what the personal belonging of the escapee were, Nam replied “Of course valuable things. This person is escaping. Do you think he would bring rubbish along.” (T113). Chan said that once the rice sacks were brought on board he looked for any chance to escape but there was no chance. He continued on with the enterprise because of fear of reprisals to himself and his family if he tried to withdraw.

101 After some cross-examination of Chan to the effect that he went on board the Uniana on 14 August 1998 and that his statement that he was in China on that day was incorrect, Chan appealed to the judge and sought an assurance that whatever he said in court would not subject him to being charged. This led to considerable discussion between the judge and counsel and the adjournment of the hearing for over a day and thereafter the interposition of other evidence. Three days after Chan had appealed to the judge he returned to the witness box. In the meantime he had given another statement to the police. The Crown led further evidence in chief.

102 Chan gave evidence of events he had previously withheld. Chan stated that he first met the captain and crew, except for the Chief Engineer, on 15 July 1998 on the On Shun. He went on board on that occasion with Nam and another worker. Nam spoke with the appellant. Chan said that he went out to the On Shun on two further occasions but did not board it, namely, once to deliver some cigarettes to the crew and secondly to take some food to the crew.

103 Chan said that on 10 and 11 August 1998 he boarded the Uniana with a technician who repaired the derrick with his assistance. Nam told him (Chan) on the morning of 14 August 1998 that the Uniana was gong to be used for the enterprise and house the speedboat.

104 Chan said that on 14 August 1998 Nam, a man called Dai Gie and he went out to the On Shun. Nam spoke with the appellant and explained that the crew members of the other ship (Uniana) had a dispute over wages and expressed the hope that the crew on the On Shun would transfer to the other ship. The appellant consulted with the crew. According to Chan, the appellant replied that there would be no problem in transferring to the other ship except for the Chief Engineer and a couple of other persons. However, all wages to date had to be paid. Nam paid them their wages. Chan said that while the appellant promised to be the captain of the proposed trip, he (Chan) did not know how much the appellant knew.

105  After Nam and the appellant spoke further it was said that they had to change ship in the afternoon and that all crew members should pack their things. The appellant gave some instructions to the second officer who selected some maps and rolled them up. The crew from the Uniana transferred to the On Shun. The appellant and the crew from the On Shun then transferred to the Uniana. Chan said that he, Nam and Dai Gie transferred to the Uniana.

106 In further cross-examination Chan agreed that in his evidence on his sentencing hearing he had said that he had told the police one hundred per cent truth. He also agreed that he had said he had told the police everything he knew. Chan said that he was hesitant about disclosing what was in his last statement because he was worried about the crew facing a very harsh future.

107 Chan claimed not to be sure that the area in which he slept was the captain’s quarters in the Uniana. He agreed that there was a satellite telephone adjacent to his bunk.

108 A review of the material demonstrates that Chan was one of Nam’s lieutenants and that he was responsible for many of the preparatory steps of the intended voyage. He was also responsible for ensuring that the “belongings” of the escapee were safely transferred at sea at night by torchlight from the vessel that met them in the Andaman Sea to the speedboat and thence to the Uniana. Chan’s reconnaissance decisions in Australia coupled with his other roles prior to and after 15 August 1998 lead to the conclusion that his measure of responsibility and culpability was at least equal to that of the appellant. When the judge sentenced Chan, the judge was not aware of all the facts and sentenced him on the basis of him having less responsibility than he actually had. This was in part due to the appellant not disclosing some facts to the judge. It happens not infrequently that, because there is no one to test adequately the story of a co-accused on a plea of guilty, all the relevant facts do not emerge and the person being sentenced receives a lighter sentence than he should. This creates problems when other offenders are being sentenced and a fuller factual picture emerges.

109 The appellant submitted that he was less culpable objectively than Chan for these reasons. Unlike the appellant, Chan was in direct and regular contact with those higher in the organisation both prior to and for the duration of the voyage. He was, even on his own account, benefiting financially far more than the appellant. Chan had received $HK100,000 and was to receive another SHK200,000 making a total of $HK300,000. There was evidence that the appellant had received $HK50,000. There was also his monthly salary of about $HK12,000 per month for some six months plus one month’s extra salary. Chan was going to make about three times the remuneration of the appellant. The difference in financial reward is eloquent of Chan’s standing and importance to Nam’s drug trafficking activities. Chan was involved in handling the heroin on board Uniana whereas the appellant was not involved and was excluded. The appellant also relied on the other aspects of Chan’s role including the recruitment of Ah Lung.

110 The appellant pointed out that the judge did not find that the appellant was more deeply involved in the enterprise than Chan. Such a finding would have been untenable. The appellant submitted that if the offence of which he was convicted was fairly able to be described as “worst category case” then Chan’s offence was even more firmly entrenched within that category and he should not have received a s.16G adjustment. The appellant stressed the difference between factors mitigating the seriousness of the crime and those mitigating the seriousness of the penalty.

111 The crime committed by the appellant was a very grave one as was that committed by Chan. Both were involved over a lengthy period in the intended importation. Both the appellant and Chan had a propensity to lie and this makes sentencing more difficult. Both tried to play down their roles. Their roles were different but Chan’s criminality and the appellant’s criminality were about equal. Both were in difficult financial circumstances and both needed work. The financial rewards for Chan were to be much greater than those of the appellant. Even allowing for Chan’s plea of guilty and his assistance to the authorities the disparity between the sentences imposed upon Chan and the appellant is marked and gives rise to a justifiable sense of grievance on the appellant’s part. I have had regard to all the matters required under the Crimes Act 1914 (Cth). I have regard to the judge’s starting point and mitigation calculations when sentencing Chan. After the s.16G adjustment and absent the mitigation of sentence for plea and assistance the judge would have imposed a sentence of 26 years with a non-parole period of 20 years on Chan. To achieve a reasonable parity with Chan’s sentence and taking into account the high objective gravity of the appellant’s offence the starting point for the appellant would be a sentence of 40 years. I regard this as the lowest permissible starting point. An adjustment under s.16G of just under one-third should be made, namely, 13 years. This reduces the sentence to 27 years. A lesser sentence would be incorrect. There should be a non-parole period of 19 years. This is not within the usual range of 60 to 66.66 per cent suggested in Bernier (1998) 102 A Crim R 44, but a little above it. However, in view of the circumstances of this case a lesser non-parole period would not sufficiently reflect the appellant’s criminality and the consequent minimum period which he must serve before being eligible for parole.

112 I propose the following orders:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted.

3. Appeal against sentence allowed. Sentence quashed.

4. In lieu of the sentence imposed, the appellant is sentenced to imprisonment for 27 years commencing on 14 October 1998 with a non-parole period of 19 years commencing that day and ending on 13 October 2017.

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