R v Onuorah

[2009] NSWCCA 238

Reported Decision: 234 FLR 377260 ALR 126[2010] ALMD 118197 A Crim R 43076 NSWLR 1

New South Wales

Court of Criminal Appeal

CITATION:	Onuorah v R [2009] NSWCCA 238 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 July 2009
JUDGMENT DATE:	18 September 2009
JUDGMENT OF:	Hodgson JA at 1; McClellan CJatCL at 53; Howie J at 54; Hoeben J at 55; Fullerton J at 56
DECISION:	(1) Appeal against conviction dismissed. (2) Leave to appeal against sentence granted and appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – Charge of attempt – Whether sufficient that accused intended that every element of offence occur, and does acts sufficiently proximate to intended commission of crime – Charge of attempting to possess a border-controlled drug which had been unlawfully imported – Whether conviction available where drug intended to be imported seized and retained in Venezuela.
LEGISLATION CITED:	Criminal Code Act 1995 (Cth) ss11, 307 Customs Act, s 233B
CATEGORY:	Principal judgment
CASES CITED:	Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 Britten v Alpogut [1987] VR 929 Haughton v Smith [1975] AC 476 R v Adams [1935] HCA 62; (1935) 53 CLR 563 R v Barbouttis (1995) 37 NSWLR 256 The Queen v Barbouttis S51/1996 [1996] HCATrans 397 (2 October 1996) R v Boulghourgian [2001] NSWCCA 460; (2001) 125 A Crim R 540 R v Chapple [2001] NSWCCA 183 R v El Azzi (2001) 125 A Crim R 113 R v El Azzi [2004] NSWCCA 455 El Ghourani v R [2009] NSWCCA 140 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Hendricks [2001] NSWCCA 396; (2001) 125 A Crim R 303 Korgbara v R [2007] NSWCCA 84; (2007) 71 NSWLR 187 R v Mai (1992) 26 NSWLR 371 Okafor v R [2007] NSWCCA 147 R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
PARTIES:	Ikenna Calistus ONUORAH (appellant) Crown (respondent)
FILE NUMBER(S):	CCA 2007/13631
COUNSEL:	J S STRATTON SC/ J FLIECE (appellant) Ms W ABRAHAM QC (respondent)
SOLICITORS:	Legal Aid Commission (appellant) Commonwealth Director of Public Prosecutions (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2007/11/0803
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ
LOWER COURT DATE OF DECISION:	20 June 2008

CCA 2007/13631
DC 2007/11/0803

HODGSON JA
McCLELLAN CJ at CL
HOWIE J
HOEBEN J
FULLERTON J

18 SEPTEMBER 2009

ONUORAH, Ikenna Calistus v R

HEADNOTE

FACTS
In April 2006 the appellant leased a mail delivery box at a newsagency, taken in a false name with other false particulars. There was communication between the appellant and a person in Venezuela. In late August of 2006 a woman in Venezuela lodged with DHL a parcel for delivery to Mrs D Jackson at the mail delivery box. This parcel contained a jewellery box which had secreted in its sides and bottom several packages of powder.

Employees of DHL in Venezuela became suspicious of the box, opened it and found some of the powder. The Venezuelan National Guard was notified and the powder was analysed as being a marketable quantity of cocaine. The drugs were destroyed, substituted under the House Airways Bill, and forwarded to Australia with the Australian Federal Police being informed. The AFP made a further substitution of the substance and a federal agent representing himself as a DHL officer took the parcel to the mail-box address.

The federal agent made several telephone contacts with the appellant. In these, the appellant used methods of communication designed to avoid identification. The appellant made attempts to distance himself from personal collection of the parcel. When these attempts failed, the appellant agreed to collect the parcel from an address belonging to Mr Anderson, a previous work colleague. When the federal agent attended the address to deliver the parcel, the appellant was not present. Anderson contacted the appellant and arranged to pick him up from a train station. When collecting the parcel, the appellant identified himself with a false name. The prisoner, as well as Anderson and his partner, were arrested.

The appellant was arraigned before Freeman DCJ on a single count that he “did attempt to possess a substance, being a border-controlled drug, namely cocaine, which had been unlawfully imported, and the quantity being a marketable quantity”.

The appellant pleaded not guilty. On 5 May 2008, the jury returned a verdict of guilty.

The trial judge sentenced the appellant to imprisonment for seven years and ten months, with a non-parole period of four years and ten months to commence on 5 May 2008. The trial judge had determined the appropriate penalty to be nine years with a six-year non-parole period, and adjusted this to take into account periods of pre-trial custody.

The appellant appealed against his conviction and sought leave to appeal against his sentence.

ISSUES
1. Did the trial judge err in not directing a verdict of not guilty?

(a) Can an offence of attempting to possess a border-controlled drug which had been unlawfully imported, be committed when there has not been actual importation of a border-controlled drug?

(b) Does the absence of an element of the offence give rise to a defence, limitation or qualifying provision under s 11.1(6) of the Criminal Code 1995 (Cth)?

(c) Does the defence within s 307.6(5) of the Criminal Code apply when an accused believed and intended to receive a border-controlled drug, but could not know this, as it was not the fact?


2. Was the sentence imposed manifestly excessive?
(a) Does the reasoning in R v Ferrer-Esis (1991) 55 A Crim R 231 apply?

(b) Was the sentence outside the range open to the trial judge?

HELD (Appeal against conviction dismissed; leave to appeal against sentence granted and appeal against sentence dismissed)

( Per Hodgson JA, McClellan CJ at CL, Howie, Hoeben and Fullerton JJ agreeing )

1. No.

(a) Yes. An accused must intend each element of the relevant crime, and in pursuance of that intention do acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime. Where an element of the relevant offence is that there be a border-controlled drug that has been imported into Australia, then for there to be an attempt there must be an intention that there be such a drug that has been imported; but it is not necessary that this actually be the case. The effect of s 11.1(2), (3) and (4)(a) of the Criminal Code is no different from that of the general law.
Britten v Alpogut [1987] VR 929; R v Mai (1992) 26 NSWLR 371 approved.

R v Barbouttis (1995) 37 NSWLR 256 considered.

(b) No. The expressions in s 11.1(6) are apt to refer to matters extrinsic to the elements of the offence, rather than to the requirement on the prosecution to prove all the elements of the offence.

(c) No. Whilst s 307.6(5) is a defence within s 11.6 of the Criminal Code, it is directed to, and limited to, the situation where there is in fact a border-controlled drug that has been unlawfully imported, but the accused proves that he or she did not know this fact.


2. No.
(a) There was no error by the trial judge in giving less weight to the appellant’s youth and lack of prior convictions, having regard to the nature of the offence.

(b) The sentence was within the range open to the trial judge, having regard to the circumstances of the case.

CCA 2007/13631
DC 2007/11/0803

HODGSON JA
McCLELLAN CJ at CL
HOWIE J
HOEBEN J
FULLERTON J

18 SEPTEMBER 2009

ONUORAH, Ikenna Calistus v R

Judgment

: On 21 April 2008, the appellant was arraigned before Freeman DCJ on a single count, namely that he

between about 4 September 2006 and about 7 September 2006 at Sydney, New South Wales, did attempt to possess a substance, being a border-controlled drug, namely cocaine, which had been unlawfully imported, and the quantity being a marketable quantity.

2 This charge was brought pursuant to s 11.1 and s 307.6 of the Criminal Code Act 1995 (Cth) (the Code), which are as follows:

11.1 Attempt

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

(3A) Subsection (3) has effect subject to subsection (6A).

(4) A person may be found guilty even if:


(a) committing the offence attempted is impossible; or

(b) the person actually committed the offence attempted.


(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).

307.6 Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants

(1) person commits an offence if:


(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

(c) the substance is a border controlled drug or border controlled plant; and

(d) the quantity possessed is a marketable quantity.


Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.

(5) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.

Note: A defendant bears a legal burden in relation to the matters in subsections (4) and (5) (see section 13.4).

3 The maximum penalty is imprisonment for twenty-five years and/or a fine not exceeding $550,000.

4 The appellant pleaded not guilty, and was tried before the trial judge and a jury. On 5 May 2008, the jury returned a verdict of guilty.

5 On 20 June 2008, the trial judge sentenced the appellant to imprisonment for seven years and ten months, with a non-parole period of four years and ten months to commence on 5 May 2008. The trial judge had determined the appropriate penalty to be nine years with a six year non-parole period, and adjusted this to take into account periods of pre-trial custody.

6 The appellant appeals against his conviction and seeks leave to appeal against his sentence. For reasons I will give, in my opinion the appeal against conviction should be dismissed, and the sentence should not be disturbed.

Factual circumstances

7 The facts on the basis of which the appellant was convicted and sentenced were summarised as follows by the trial judge, in a way that has not been challenged on appeal:

The facts, which the jury must have found, include the following:- In April 2006 the prisoner leased a mail delivery box at the newsagency situated at 37 Rocky Point Road, Kogarah. This was a conveniently short distance from where he was then living, namely at 11 Rocky Point Road. The box was taken in a false name, with other false particulars, including an address reminiscent of but slightly different from the one at which the prisoner had previously resided.

There was communication, both by voice and SMS with a person in Venezuela on the part of the prisoner. There may have been email communication. In late August of 2006 a woman in Caracas Venezuela lodged with DHL a parcel for delivery to Mrs D Jackson at the mailbox namely, 16/37 Rocky Point Road, Kogarah, Australia. This parcel contained a jewellery box which had secreted in its sides and bottom several packages of powder.

An employee of DHL in Caracas being suspicious, for various reasons, of this parcel opened it and found some at least of those packages. The National Guard was called in, the parcel was taken for deconstruction and for its contents to be analysed. The packages contained in total an amount of 229.6 grams of powder, which was 47% pure cocaine. The weight of cocaine therefore was 107.2 grams. The marketable quantity of cocaine is 2 grams. The commercial quantity is 2 kilograms.

The Venezuelan authorities seized and ultimately destroyed the drug. Under the same distinctive House Airways Bill a substitute parcel was forwarded to Australia with the Australian Federal Police being informed. When that parcel was received at the DHL office in Sydney the Australian Federal Police made a further substitution and a federal agent representing himself as a DHL delivery driver took that parcel to the mail box address. There he left a notification of attempted delivery. In this notification he included a mobile phone number on which he could be contacted to arrange personal delivery. There followed a series of telephone calls from the prisoner to the agent.

The prisoner did not use for that purpose either of the mobile phones in his possession. Each of those phones was subscribed in a false name with false addresses. Indeed whenever he contacted the man he thought was the DHL courier the prisoner used public phones, sometimes changing from one phone to another within a relatively short period of time. The DHL courier was able to record part of the first of these calls on equipment contained within his phone. Detailed notes were made of the other calls.

The first few of these calls at least consisted of attempts by the prisoner to persuade the courier to leave the parcel without him, the prisoner, being present. He gave a variety of reasons as to why he desired this course of action. Ultimately, being unable to arrange for the parcel to be simply left, the prisoner gave the agent an address in Eschol Park, a suburb near Campbelltown, and a long way removed from Kogarah. That address belonged to Mr Brian Anderson.

Mr Anderson gave evidence that the prisoner, with whom he had worked sometime before, and with whom he retained some social contact, had asked him to allow his address to be used for the delivery of a parcel. The arrangement was that the prisoner would be on hand at those premises to sign for the parcel itself. When the courier/agent arrived with the parcel on 7 September the prisoner was not in fact present. Mr Anderson could not sign for the parcel. He contacted the prisoner by phone and arranged to pick him up at Leumeah railway station to bring him back to his, Mr Anderson's home, to meet with the courier. The prisoner claimed that he had been delayed in his train travel and this was the reason for him not being there at the appointed time.

When Mr Anderson had brought the prisoner back to his Eschol Park home the prisoner identified himself as David Jackson, signed for the parcel and was then driven by Mr Anderson back to Leumeah railway station. It is clear, and he conceded himself, that he was not travelling by train. He had in fact been brought to Leumeah station by the somewhat shadowy and elusive Mr Williams, with whom he made telephone contact, speaking in the Igbolanguage whilst in Mr Anderson's car.

The conclusion, based on his own evidence, is that he was to be driven back from the station by Mr Williams who, incidentally it appears, was driving a car registered to the prisoner's wife. Instead the prisoner, together with Mr Anderson and Mr Anderson's partner, were arrested. On arrest the prisoner had in his possession the documentation, including the House airways bill which had previously been firmly affixed to the side of the parcel.

He was taken to the Australian Federal Police headquarters and interviewed. In the course of that interview he denied any knowledge of the parcel or, at least, of its contents. He claimed that he had been persuaded by Mr Anderson to sign for the parcel. In the end, at the trial, he gave evidence to a similar effect. That evidence was rejected by the jury.

The following facts, it appears to me, emerge from that brief summary:

1. The prisoner had contacts in Venezuela, the state of origin of the drugs and he had been in contact with that person or persons between the time of taking the lease of the mailbox and the delivery of the parcel.

2. He knew the House airways bill number, but as Mr Fliece points out that may have been obtained by him from the notification left by the Federal Agent masquerading as a courier.

3. He had some considerable time before these events to set up the mail box to which the parcel was addressed.

4. He attempted several times, by different methods, to distance himself from any personal role in accepting the parcel.

5. He set up Mr Anderson to be the recipient and when that did not work he finally emerged to take the parcel himself.

6. His methods of communication were designed to avoid discovery and identification. His use of mobile phones in false names, his singular use of public telephones when communicating with the agent/courier, establish that intention.


Issues on appeal

8 The grounds of appeal relied on by the appellant are as follows:

Appeal against conviction:

1. His Honour erred in not directing a verdict of not guilty.

Appeal against sentence:

2. His Honour erred in giving very limited weight to the Appellant’s youth and lack of prior convictions.

3. The sentence imposed was manifestly excessive.

9 I will deal in turn with the appeal against conviction and the application for leave to appeal against sentence.

Appeal against conviction

10 Mr Stratton SC for the appellant submitted that the elements of the substantive offence under s 307.6 of the Code were that:

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

(c) the substance is a border-controlled drug or border-controlled plant; and

(d) the quantity possessed is a marketable quantity.

11 The only element requiring conduct by the alleged offender is the possession; and accordingly, Mr Stratton submitted, for an attempt to commit an offence under s 307.6, the attempt must relate to possession. Such an attempt, he submitted, would only be a criminal act if the other elements of the offence were made out; but in this case, neither element (b) nor element (c) were made out, because the only relevant border-controlled substance, the cocaine, remained in Venezuela.

12 Accordingly, he submitted, the trial judge should have directed a verdict of acquittal.

13 Mr Stratton submitted that this argument was supported by R v Barbouttis (1995) 37 NSWLR 256, and that R v Mai (1992) 26 NSWLR 371 was distinguishable.

14 It was submitted for the Crown that there could be an attempt to commit an offence under s 307.6 even where there had not been an actual importation of a border-controlled drug; and the Crown relied on Britten v Alpogut [1987] VR 929 and Mai. The Crown submitted that Barbouttis did not support the appellant’s contention. The Crown also submitted that this was confirmed by s 11.1 of the Code.

15 Because the appeal could involve reconsideration of Barbouttis, a previous decision of the Court of Criminal Appeal, a bench of five was constituted for the hearing of the appeal.

16 Barbouttis concerned a charge arising out of a police operation in which, for the purpose of exposing persons suspected of dealing in stolen cigarettes, an undercover police officer sought out persons interested in acquiring, at a very cheap price, cigarettes were represented to have been stolen. The undercover officer made contact with the three persons charged and others; and they expressed an interest in buying stolen cigarettes from him. After a number of meetings, an agreement was entered into: the undercover officer had a truck in which there were loaded eighty boxes of cigarettes, and according to the Crown, the persons charged (and others) agreed to purchase fifty of those boxes.

17 The charge was that the persons in question “did conspire … to commit a criminal offence, namely the offence of receiving stolen property”. The particulars, included in the indictment, were expressed as follows:

The object of the conspiracy was the purchase of cigarettes which the accused believed were stolen. At no stage were these cigarettes stolen. The cigarettes were obtained and placed in a truck by police officers for the purpose of satisfying the accused that there were in fact cigarettes available to be supplied to them upon the payment of money.

18 In the District Court, Graham DCJ quashed the indictment. An appeal to the Court of Criminal Appeal was dismissed by majority (Smart and Dunford JJ, Gleeson CJ dissenting). Special leave to appeal to the High Court of Australia was granted, but when the appeal was argued the High Court revoked special leave, giving the following reasons:

In this case, an indictment was presented charging a conspiracy to receive stolen property, namely specific cartons of cigarettes in the back of a particular truck. The cigarettes were not in fact stolen. The indictment was quashed by the trial judge and, by majority (Smart and Dunford JJ; Gleeson CJ dissenting), the Court of Criminal Appeal affirmed that decision. The Crown obtained special leave to appeal in order to address the question whether impossibility of commission of an offence precluded conviction for a conspiracy to commit that offence. However, on analysis a problem arises from the pleading of the particulars in the indictment. The particulars allege:

The object of the conspiracy was the purchase of cigarettes which the Accused believed were stolen.

The phrase "which the Accused believed were stolen" was accepted to be merely descriptive of the cigarettes and not an object of the conspiracy. Although the Solicitor-General accepts that the beliefs of the alleged conspirators would have to be communicated one to the other - either expressly or impliedly - before the element of "stolen-ness" would be encompassed by the conspiracy, the indictment made no such allegation. The belief of the respective Accused is alleged merely as a state of mind, not as an element of the agreement that was allegedly made.

Because the indictment is framed in this way, no question of impossibility arises. The real problem in the case is simply one of identifying the confines of the agreement charged in the indictment. As the question of impossibility does not arise, the appropriate order is that the grant of special leave be revoked. The Court orders accordingly.

The Queen v Barbouttis S51/1996 [1996] HCATrans 397 (2 October 1996)

19 It appears that the High Court decided that case on an interpretation of the indictment, as not alleging an agreement to receive stolen property, but merely as alleging an agreement to receive particular property which the accused persons (individually, and possibly without communication of this belief among themselves) believed was stolen. It would thus not have been inconsistent with the High Court decision for a fresh indictment to have been presented, with particulars making it clear that the allegation was that the agreement among the accused was to receive stolen property, namely the particular property having the character of stolen property, as they all (to the knowledge of all of them) believed the particular property to be.

20 So far as concerns the Court of Criminal Appeal decision, it seems that the judgment of Dunford J may have proceeded on the same basis as the High Court decision: he agreed with Gleeson CJ as to the status of relevant authorities (to some of which I will return); but having identified the alleged agreement as being to receive the particular cigarettes, he said that the carrying out of that agreement would not have been criminal, irrespective of the beliefs of the accused (37 NSWLR at 278-279). Although it is not entirely clear, it could be that if the alleged agreement had been to receive stolen property, namely the particular cigarettes having the character of stolen property, Dunford J may have agreed with Gleeson CJ.

21 Smart J took a different view as to the status of the authorities; and it does not appear that his decision depended crucially on the particular way the indictment was framed.

22 Gleeson CJ, in dissent, addressed the question of the proper characterisation of the agreement alleged in that case ((1995) 37 NSWLR 256 at 265-6) as follows:

In the context of conspiracy, the matter must depend upon the proper characterisation of the object of the agreement made by the conspirators, or what the Court of Appeal of New Zealand called “the common design”. In the present case, as particularised by the Crown, was the obtaining of stolen goods part of the common design, or can the agreement, for the purposes of the criminal law, be characterised accurately and adequately as an agreement to acquire fifty particular boxes of cigarettes for a certain price, such agreement being accompanied by a merely incidental belief that the reason the cigarettes were so cheap was that they were stolen?

If the cigarettes had in truth been stolen, then such a characterisation would certainly not have been regarded as either accurate or adequate for the purposes of the criminal law. Far from being incidental, the belief that the cigarettes were stolen would have been of the essence of the agreement. How can that belief cease to be of the essence of the agreement because of an objective fact unknown to the parties to the agreement?

On the facts alleged by the Crown, the common design of the respondents and the other parties to the agreement was to obtain stolen property. The law relating to conspiracy punishes people because of the nature of the agreement they have made. I find it impossible to regard the (alleged) belief on the part of the parties to the agreement that the cigarettes were stolen as a merely incidental matter. For the reasons advanced by Professor Glanville Williams, the motivation theory, which underlies the argument that the belief was incidental, cannot be sustained. If a person intends to receive goods which he knows or believes are stolen, than he intends to receive stolen goods.

23 Plainly, the High Court did not agree with that analysis as the correct construction of the indictment in that case: the High Court held to the effect that, although the charge alleged a conspiracy (and thus an agreement) to receive stolen property, the particulars showed that the agreement alleged did not have that character. On the other hand, it is clear from that passage from the judgment of Gleeson CJ that he did not consider that the particulars detracted in that way from what was alleged in the charge itself; and in effect construed the charge and particulars together as alleging an agreement to receive stolen property, that is, the particular cigarettes having the character of stolen property.

24 Accepting that the construction of the charge and particulars adopted by the High Court was correct, I would make the comment that it would perhaps be expected that a first instance judge or an intermediate court of appeal, having full power to deal with the merits of the case, would identify such a technical problem; so that, if the real issue was seen as one of substance, the judge or court could allow or foreshadow allowance of any necessary amendment of the indictment and deal with the question of substance.

25 Returning to the judgments in Barbouttis in the Court of Criminal Appeal, in my opinion the analysis of the cases by Gleeson CJ is correct, and of relevance both to charges of conspiracy and to charges of attempt (although I accept that these different offences can raise different issues). I would respectfully adopt that analysis in its entirety, in preference to that of Smart J. Thus I would endorse the following paragraph from the judgment of Dunford J in Barbouttis (at 277):

For the reasons given by the Chief Justice, I agree that R v Smith ( Roger ) [1975] AC 476 and Anderton v Ryan [1985] AC 560 no longer reflect the law in Australia relating to criminal attempts to commit offences which are impossible and that such law is as laid down by this Court in R v Mai (1992) 26 NSWLR 371 following Britten v Alpogut [1987] VR 929 and R v Lee (1990) 47 A Crim R 187. I likewise agree with him that the status of Director of Public Prosecutions v Nock [1978] AC 979 as a persuasive authority in this State of the law relating to conspiracies to achieve the impossible has been undermined by the decision of the House of Lords in R v Shivpuri [1987] AC 1 not to follow R v Smith and Anderton v Ryan , and by the subsequent refusal by the Australian courts, including this Court, to follow R v Smith .

See also R v El Azzi (2001) 125 A Crim R 113 and R v El Azzi [2004] NSWCCA 455.

26 Thus, in my opinion, both Britten and Mai were correctly decided.

27 In Britten, the charge was one of attempting to import prohibited imports into Australia contrary to the Customs Act 1901 (Cth). The defendant believed he was importing, and intended to import, cannabis; but the substance which he believed to be cannabis was found to be another substance which was not a prohibited import. It was held that, in order to prove the statutory crime of attempting to import prohibited imports into Australia, what the Crown had to prove was that the accused intended to import something which was, as a matter of law, a prohibited import, as he knew, and that in pursuance of that intention he did acts sufficiently proximate to the intended commission of the crime; so that the magistrate had been in error to dismiss the information in reliance on Haughton v Smith [1975] AC 476.

28 In Mai the defendant was charged with attempting to obtain possession of heroin illegally imported into Australia. Heroin illegally imported into Australia had been removed from a suitcase by Federal Police and they had substituted plaster of Paris; and the defendant came to be in possession of plaster of Paris, believing it to be heroin. The Court of Criminal Appeal held he was properly convicted.

29 Mr Stratton submitted that Mai was distinguishable from the present case, because in Mai the substitution did not take place until after the heroin arrived in Australia; so that there was in truth a substance illegally imported into Australia, possession of which the accused attempted to obtain.

30 If one restricts attention to the elements of the attempted offence, then, in my opinion, in accordance with Britten, the question in truth turns on whether an accused person intends each element of the relevant crime to occur, and in pursuance of that intention does acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime. Where an element of the relevant offence is that there be a border-controlled drug that has been imported into Australia, then for there to be an attempt there must be an intention that there be such a drug that has been imported; but it is not necessary that this actually be the case. (However, as appears below, the distinction between the facts of this case and those of Mai could possibly have significance in relation to the defence provided by s 307.6(5) of the Code.)

31 Mr Stratton also submitted that the approach supported by Mai would produce unsatisfactory results:

16. Consider the case of a man who marries a woman believing that her husband is still alive. In fact the husband has recently died (see Haughton v Smith [1975] AC 476 at 500). On the reasoning of Regina v Mai , the man could be convicted of attempted bigamy.

17. Consider the case of a man who has sexual intercourse with a girl who he believes is under the age of 16, whereas in truth she is over the age of 16. On the reasoning of Regina v Mai, he could not be convicted of sexual intercourse with a child under the age of 16 (s.66C), but he could be convicted of attempting to have sexual intercourse with the girl (see Regina v Barbouttis at 261, per Gleeson CJ).

18. Consider the case of a man who takes an umbrella from an umbrella stand, intending to steal it, and believing it not to be his own. However, it turns out that in truth the umbrella belonged to him (see Regina v Collins (1864) 9 Cox CC 497). On the reasoning of Regina v Mai, he would be guilty of attempted larceny even though objectively no larceny had taken place.

32 I accept that, on the approach supported by Mai, there could be conviction for attempt in these three cases; although it does seem unlikely that in cases such as these there would be evidence capable of proving intent beyond reasonable doubt.

33 So far, I have dealt with the question of attempt on the basis of case law; but in the present case it must be determined on the basis of s 11.1. In my opinion, the effect of s 11.1(2), (3) and (4)(a) is no different from that of the general law, as expounded in the cases and judgments referred to above which I consider to be correct. Thus, subject to what I say about s 11.1(6), a conviction for attempt was available in this case.

34 However, a question arises whether s 11.1(6) has some different effect. Mr Stratton referred the Court to a publication of the Commonwealth Attorney-General’s Department entitled “The Commonwealth Criminal Code – a Guide for Practitioners”, which at pages 241 and 243 contains the following commentary on s 11.1(6):

Most applications of the principle are obvious: self defence, duress and sudden or extraordinary emergency will excuse both assault and attempted assault. If Parliament chooses to impose a limitation period for prosecution of an offence, the limitation applies equally to the pendant offence of attempt. Applications of the principle cause no problem in these cases because the distinction between defences or procedural rules and the elements of an offence are obvious. Applications of the principle in cases involving "limitations" or "qualifying provisions" require more care. Take a simple example first of all. In state and territorial jurisdictions the traditional form of the prohibition against unlawful abortion takes the following form: "Whosoever, being a woman with child, unlawfully administers to herself...&c." A woman who took an abortifacient drug in the mistaken belief that she was pregnant cannot be held guilty of the offence of course: pregnancy is an essential circumstantial element of the offence. Suppose she is charged instead with an attempt to commit the offence. It seems highly unlikely that the common law would permit conviction of an attempt in these circumstances. Since the attempt and completed offence are equally punishable at common law, the legislative rationale for restricting the offence to pregnant women applies with equal force to the attempt. If a provision such as s 11.1(6) were to govern the interpretation of the offence it would reinforce that inference of legislative intention. The pregnancy limitation is a "limitation or qualifying provision" which governs the offence and the attempt alike. The Commonwealth Customs Act provisions on narcotic drugs contain a similar, though more contentious example. There is no doubt that a person who packs a parcel of oregano in a hollow walking stick and brings it into Australia, in the mistaken belief that it is cannabis, is guilty of an attempt to import cannabis, a prohibited import; impossibility of success is no answer to a charge of attempted importation. Suppose, however, that this incompetent is charged with one of the offences of attempted possession of a prohibited drug contrary to s233B(1). In each of these possession offences, conviction of the principal offence requires proof that the drug was "imported into Australia in contravention of this Act". That limitation or qualification on liability for the principal offence should equally apply to the attempt so as to bar the possibility of conviction. The legislative rationale for the exception is the same, whether the attempt, or completed offence is in issue.

35 This discussion raises the question of whether the absence of an element of an offence could give rise to a defence, limitation or qualifying provision that applies to the offence, within s 11.1(6). In my opinion, generally it could not: those expressions in s 11.1(6) are apt to refer to matters extrinsic to the elements of the offence, rather than to the requirement on the prosecution to prove all the elements of the offence.

36 Where it is only a limited class of persons who can commit the offence, such as a woman with child, then it is arguable that this is not so much an element of the offence as a limitation or qualifying provision; in which case, arguably, a person who is not a woman with child could not be guilty of an attempt in the circumstances described in the quoted passage. Another example might be an offence that can only be committed by breaching something of the nature of an apprehended violence order: if a person mistakenly believes that he or she is affected by such an order, intends to breach that (supposed) order, and does an act that would be in breach of the order if it existed, it is arguable that this would not amount to a criminal offence of attempting to breach an apprehended violence order, because the limitation of the offence to the particular class of persons is a limitation or qualifying provision within s 11.1(6). (Indeed, I am inclined to think the same would apply at general law: where what is made criminal is not conduct by persons at large but only conduct by a limited class of persons, it is arguable that it is not intended that attempts other than by persons who are in fact within the limited class should also be criminal.)

37 As regards s 233B of the Customs Act, that section, as it was in 1975, was considered in Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569; and it was held that s 233B disclosed an intention that an attempt to commit an offence against s 233B(1)(ca) should not be an offence. At that time, s 233B(1)(ca) provided that any person who without reasonable excuse (proof of which shall lie upon him) has in his possession any prohibited imports to which this section applies which are reasonably suspected of being imported into Australia in contravention of this Act, shall be guilty of an offence. A defence to such a charge was provided by s 233B(1B) if “the person proves that the goods were not imported into Australia or were not imported into Australia in contravention of this Act”.

38 If (contrary to the decision in Beckwith) there could have been a charge of attempting to commit an offence against s 233B(1)(ca) as it then was, then the defence under s 233B(1B) would in my opinion have been a defence as the word is used in s 11.1(6), and thus according to s 11.1(6) a defence to a charge of attempt. However, if “importation into Australia in contravention of this Act” is truly an element of an offence (rather than a defence of the kind provided by s 233(1B) as it then was), then in my opinion the absence of that element would not be a defence, limitation or qualification that applies to the offence, within s 11.1(6). To that extent, I would disagree with the comment towards the end of the quotation set out above.

39 However, the above discussion points to a possible significance of s 307.6(5), which in my opinion is plainly a defence within s 11.1(6) and thus would apply to attempts to commit a s 307.6 offence.

40 It could be argued that it was in this case established that there was no border-controlled drug that the appellant knew was unlawfully imported. Thus, it could be argued, the appellant fell within the words of s 307.6(5) in that he “did not know that the border-controlled drug was unlawfully imported”; so that by reason of s 11.1(6), the appellant had a defence to the charge of attempt. It could be contended that while the appellant believed and intended that the package received in Australia contained a border-controlled drug that was unlawfully imported, he did not and could not know this, because it was not the fact. It could be contended that the appellant also believed and intended that the border-controlled drug that had been seized in Venezuela was unlawfully imported into Australia, but for the same reason he did not and could not know this.

41 The contrary position is that s 307.6(5) is directed to, and limited to, the situation where there is in fact a border-controlled drug that has been unlawfully imported, but the accused proves he or she did not know this fact.

42 In support of the availability of s 307.6(5) as a defence in the present case, it can be said that the literal requirements of s 307.6(5) are met in the way set out above, with the accused’s onus of proof being satisfied by evidence led in the prosecution case; that while in its application to a substantive offence under s 307.6, s 307.6(5) operates in a situation where there is in fact a border-controlled drug that has been unlawfully imported, that does not mean it can only operate in that way in its application to an attempt; and that any doubt about the application of s 307.6(5) should be resolved in favour of the accused (cf Beckwith at 576-577, R v Adams [1935] HCA 62; (1935) 53 CLR 563 at 567-568).

43 However, in my opinion the better view (which I adopt) is that s 307.6(5) is not available as a defence in a case like the present, for the following reasons:

(1) The language of s 307.6(5), in the context of s 307.6 as a whole, strongly implies that it operates only where there is in fact a border-controlled drug that has been unlawfully imported, but the accused did not know this: that is, that it should be read as if it applied if the accused “did not know that the border-controlled drug (that is, the border-controlled drug which was in fact unlawfully imported) was unlawfully imported”.

(2) This implication has strong confirmation from the consideration that, under s 307.6(5), it is the accused who must prove lack of knowledge, whereas exclusion of “knowledge” because of the non-existence of the fact can arise (as it did in this case) from the prosecution evidence.

(3) The whole rationale of the s 307.6(5) defence has to do with lack of mens rea, which would not apply in relation to a case such as the present.

44 For those reasons, in my opinion, the appeal against conviction should be dismissed.

Application for leave to appeal against sentence

45 In support of ground 2, Mr Stratton referred to R v Ferrer-Esis (1991) 55 A Crim R 231, where Hunt J (with whom Gleeson CJ and Lee CJ at CL agreed) said (at 238):

The judge did take into account the circumstance that the respondent had no previous convictions. That was an error. Couriers are usually selected because they have no criminal records, and this Court has said on many occasions that the leniency extended to first offenders does not ordinarily benefit couriers: see, eg, Leroy [1984] 2 NSWLR 441 at 446-7; (1984) 13 A Crim R 469 at 447; Poyner (1986) 17 A Crim R 162 at 164; Thiagarajah (1989) 41 A Crim R 45 at 49; Cartwright at 248.

46 Mr Stratton referred to the following passage from the sentencing remarks of the trial judge:

It is accepted that he has no prior criminal record but, as is pointed out in a number of authorities, including Ferrer-Esis , a case which has been followed many times since, the possession of good character and youth are of much less weight in offences of this description because frequently those who possess those qualities are deliberately drawn to commit the crimes in the hope that they will not be detected because of their known propensities or record.

47 Mr Stratton submitted that the reasoning in Ferrer-Esis did not apply, because there was no suggestion that the appellant had been recruited or selected by anyone; so that the appellant was entitled to have his youth and prior good character taken into account on sentence.

48 On ground 3, Mr Stratton submitted that the trial judge’s starting point for the head sentence (nine years) and the non-parole period (six years) were according to Judicial Commission statistics for the offence of importing a marketable quantity of cocaine, equal to the highest such sentence, despite the fact that the quantity involved in this case was towards the bottom of the marketable quantity. Mr Stratton referred also to R v Wongand Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340, R v Chapple [2001] NSWCCA 183, R v Hendricks [2001] NSWCCA 396; (2001) 125 A Crim R 303, and R v Boulghourgian [2001] NSWCCA 460; (2001) 125 A Crim R 540.

49 In my opinion, as submitted by the Crown, there was no error by the trial judge in giving less weight to the appellant’s youth and lack of prior convictions, having regard to the nature of the offence: cf Okafor v R [2007] NSWCCA 147 at [47].

50 Also, as submitted by the Crown, cases such as Korgbara v R [2007] NSWCCA 84; (2007) 71 NSWLR 187 and El Ghourani v R [2009] NSWCCA 140 indicate that the sentence in this case is within the range open to the trial judge, having regard to the circumstances of this case.

51 For those reasons, in my opinion, the challenge to sentence is not made out.

ORDER

52 For the reasons I have given, I propose the following orders:

(1) Appeal against conviction dismissed.

(2) Leave to appeal against sentence granted and appeal against sentence dismissed.

53 McCLELLAN CJ at CL: I agree with Hodgson JA.

54 HOWIE J: I agree with Hodgson JA.

55 HOEBEN J: I agree with Hodgson JA.

I also agree with Hodgson JA.

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22/09/2009 - At Issue 1(b) of the headnote, "11.6(1)" has been changed to "11.1(6)" - Paragraph(s) headnote