R v Pimentel

[1999] NSWCCA 401

Reported Decision: 110 A Crim R 30

New South Wales

Court of Criminal Appeal

CITATION:	R v Pimentel [1999] NSWCCA 401 revised - 21/12/99
FILE NUMBER(S):	CCA 60077/99; 60135/99
HEARING DATE(S):	26 November 1999
JUDGMENT DATE:	10 December 1999
PARTIES :	Meliton Pimental (Appellant/Respondent) Regina (Commonwealth) (Respondent/Appellant)
JUDGMENT OF:	Spigelman CJ at 1; Dunford J at 2; Hidden J at 44

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0868
LOWER COURT JUDICIAL OFFICER:	Kinchington DCJ

COUNSEL:	J Fliece (Appellant/Respondent) PS Hastings QC/GJ Bellew (Respondent/Crown)(Appellant/Crown)
SOLICITORS:	Neil J O'Connor & Associates (Appellant/Respondent) Commonwealth Director of Public Prosecutions (Respondent/Crown)(Appellant/Crown)
CATCHWORDS:	CRIMINAL LAW - offences - knowingly concerned in importation of narcotic goods - when importation complete; CRIMINAL LAW - duress - what constitutes duress; CRIMINAL LAW - sentencing - Crown appeal - inadequacy - parity; EVIDENCE - illegally obtained - discretion to admit - Evidence Act 1995, s 138.
ACTS CITED:	Customs Act 1901, s 233B; Evidence Act 1995, s 138.
CASES CITED:	The Queen v Bull (1974) 131 CLR 203; Ridgeway v The Queen (1995) 184 CLR 19; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Abusafiah (1991) 24 NSWLR 531; R v Williamson [1972] 2 NSWLR 281.
DECISION:	Appeal against conviction dismissed; Crown appeal against sentence dismissed; Conviction and sentence confirmed.

IN THE COURT OF

CRIMINAL APPEAL

60077/99
60135/99




SPIGELMAN CJ
DUNFORD J
HIDDEN J

FRIDAY, 10 DECEMBER 1999



REGINA v Meliton PIMENTEL

JUDGMENT

1    SPIGELMAN CJ: I agree with Dunford J.

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IN THE COURT OF
CRIMINAL APPEAL

60077/99
60135/99

SPIGELMAN CJ
DUNFORD J
HIDDEN J

FRIDAY, 10 DECEMBER 1999

R v Meliton PIMENTEL
JUDGMENT

2 DUNFORD J: On 12 February 1999, following a trial in the District Court of New South Wales, Meliton Pimentel ("the appellant") was found guilty by a jury of an offence against s 233B(1)(d) of the Customs Act 1901 in the following terms:

"That between 1 September 1996 and 5 January 1997, at Port Stephens in the State of New South Wales and elsewhere, was knowingly concerned in the importation into Australia of prohibited imports to which s 233B of the Customs Act 1901 applied, to wit narcotic goods consisting of a quantity of cannabis resin, being not less than the commercial quantity applicable to cannabis resin."

3 Pursuant to s 235(2)(c) of the Customs Act 1901 the maximum penalty for such an offence is life imprisonment. The prescribed commercial quantity for cannabis resin is 50 kg. 4    On 25 February 1999 the appellant was sentenced by his Honour Judge Kinchington QC to imprisonment for a period of 6 years with a non parole period of 3 years and 9 months, to date from 9 January 1997.

Facts

5    In about June or July 1996, Anton Verheggen ("Verheggen"), a resident of Belgium who conducted business as a shipping broker, was approached by a person named Van Dam with a request that he find a 2,000 tonne cargo ship for a proposed voyage to Manila. Following that contact, Verheggen inspected various vessels, after which he again met with Van Dam and informed him of the results of his inspections. 6    Subsequently, in about July/August of the same year, he was contacted by Thomas Cassidy ("Cassidy") who described himself as a colleague of Van Dam and informed Verheggen that a vessel had been located, and asked him to assist in undertaking an inspection and survey. Following that conversation, Verheggen travelled from Belgium to Scheveningen in the Netherlands where he met with a number of people including Van Dam, and inspected the vessel referred to by Cassidy, which had originally been named the "Annette J" but which was later renamed the "Hiddensee", following which he informed Van Dam that in his opinion it "looked good". 7    Van Dam then requested Verheggen to attend to those matters which were necessary in order to register the vessel and to recruit a crew. In this regard, Verheggen telephoned the appellant (with whom he was previously acquainted from an earlier shipping contract) and thereafter travelled to Spain where the appellant then resided. The appellant and Verheggen met in Barcelona, at which time Verheggen asked the appellant to assist in finding crew members. The appellant indicated on that occasion that he would be able to do so as he had details of crew members with whom he had worked in the past. 8    The appellant proceeded to recruit the initial crew members in Spain. Once he had done so, Verheggen arranged air tickets for the crew to travel to the Netherlands. He also arranged to pay the crew members advances on their salaries, such funds having been made available by Van Dam. 9    Following these arrangements being made, Verheggen returned to Belgium and reported to Van Dam that the crew had been arranged. He subsequently met three of the crew members on their arrival in Belgium, and transported them to Scheveningen where they joined the vessel with others. Verheggen then returned to Belgium. 10    Some weeks after his return, Verheggen was contacted by the appellant who informed him that the vessel had been found to have a number of technical problems, to the extent that the Dutch engineer who had been recruited did not wish to remain. On the same evening Van Dam telephoned Verheggen and confirmed the difficulties which had been encountered. He then asked Verheggen to join the vessel and remain with it until it reached Gibraltar or Oman. Verheggen agreed and on the following day, 1 October 1996, he joined the vessel in Scheveningen. Upon arrival, Van Dam spoke to Verheggen and informed him for the first time that there would be a "special cargo" collected on the voyage, for which all members of the crew would be paid a "bonus" of 100,000 Dutch Florins. 11    Verheggen then took command of the Hiddensee which sailed from Scheveningen with the appellant and six other crew. The vessel initially sailed to Gibraltar, where it underwent repairs. During that initial part of the voyage the appellant remained the captain of the vessel, however in view of the mechanical problems which had already been encountered, Verheggen was largely responsible for its navigation due to his particular experience in sailing in the English Channel. 12    Whilst in Gibraltar, Verheggen met with Cassidy who confirmed the "special cargo" information which had previously been provided by Van Dam, and who also confirmed that a bonus would be paid to the crew. At the same time, Verheggen purchased a number of navigational charts for the balance of the voyage, including charts of Australia and adjacent waters. During this time in Gibraltar, the appellant was absent from the ship on leave. 13    After a period of 12 days in Gibraltar the Hiddensee sailed to Majorca where it underwent further repairs. After four days in Majorca, it sailed to Port Said, Egypt and it was in the course of that part of the voyage that Verheggen told the appellant, and five of the six crew members, that a "special cargo" was to be taken on board, for which a bonus would be paid. On that occasion Verheggen gave no precise indication of what the "special cargo" might be. 14    The Hiddensee reached Port Said before continuing on to Oman where it arrived at the end of October 1996. Further mechanical repairs were carried out whilst the Hiddensee was in port in Oman, prompting Verheggen to contact Van Dam and inform him of the repeated mechanical problems which were being encountered. Upon being made aware of the situation, Van Dam asked Verheggen to remain with the Hiddensee until the completion of its journey. At that time, Van Dam informed Verheggen that the "special cargo" to which he had previously referred was in fact four to five tonnes of cannabis. Having done so, he provided Verheggen with co-ordinates for a position approximately 300 miles off the coast of Pakistan at which the cargo was to be collected. He then directed Verheggen to proceed "south west to Cape Leeuwin and then to the 33rd latitude" where another boat would be waiting onto which the cargo was to be unloaded. 15    The Hiddensee remained in Oman for a total of 12 days, before sailing to the position nominated by Van Dam off the coast of Pakistan, where another vessel was waiting. The two vessels came together and having done so, large bags of cannabis resin were transferred to the Hiddensee with the assistance of the crew, including the appellant. 16    Having taken the cargo on board, the Hiddensee sailed directly to Cape Leeuwin in Western Australia, following which it sailed south of Tasmania before proceeding north along the East Coast to the position representing the "33rd latitude" which had earlier been nominated by Van Dam. The Hiddensee remained at that position for a period of 8 days, during which period Verheggen was in regular contact with Cassidy by telex who kept him informed of the arrangements for the transfer of the cargo. In preparation for the transfer, the bags of cannabis were placed on the deck of the Hiddensee by the crew and the appellant and on 4 January 1997, the Hiddensee made contact with another vessel, the "Southern Cross," before meeting with that vessel at a location east of Port Stephens. The two vessels then tied together and the bags of cannabis were unloaded onto the Southern Cross. During that operation, the appellant assisted by transferring bags of cannabis resin to the Southern Cross with the assistance of a crane which was on the Hiddensee. 17    On 5 January 1997, Australian Federal Police and Customs Officers boarded the Southern Cross when that vessel was 0.093 nautical miles off Nelson Head and within Port Stephens, New South Wales. After the vessel was boarded, it was taken to the Fisherman's Co-operative Wharf at Nelson Bay in Port Stephens where a search of the vessel by federal agents and Customs officers revealed a quantity of bags containing packages of a resinous substance. All the bags and packages were taken ashore from the vessel by Australian Federal Police and Customs officers. Upon analysis the resinous substance was found to be cannabis resin. 18    Following the transfer of the cargo, the Hiddensee travelled to Noumea where the appellant, along with the crew and Verheggen, were arrested and later extradited to Australia.

Ground of Appeal 1

19    It was submitted that the trial judge erred in admitting into evidence the facts relied on by the Crown to prove that there had been an importation into Australia. 20    This submission was based on the fact that the Southern Cross was boarded in Port Stephens by Customs officers and police before the cannabis resin was unloaded and before the vessel had docked, and it was the Customs officers and police who took it to the wharf and themselves unloaded the cannabis resin, thereby completing the importation. 21    In The Queen v Bull (1974) 131 CLR 203 at 220 Barwick CJ said that to constitute importation the goods in question must have been brought within the limits of a port with the intention of landing them or must have been landed in Australia. Similarly, Gibbs J with whom Mason J agreed said (at 254) that goods are imported if they are brought into port with the intention of being discharged there. These goods were clearly brought into Port Stephens with the intention of being unloaded there, but the appellant argued, and the Crown conceded, that the references to "port" in Bull's case were references to a "proclaimed port" within the meaning of s 15 of the Customs Act and that as Port Stephens is not a "proclaimed port" the fact of the goods being brought into that port with the intention of them being unloaded was insufficient to constitute an importation in the absence of them actually being unloaded. 22    I am not sure that this concession was properly made. Bull's case, which involved the cargo being jettisoned after the crew was alerted by a surveillance helicopter and the ship being boarded out at sea, although within 3 nautical miles off the coastline and hence within territorial waters, was a very different factual situation to the present, and although for the purposes of that case, references were made to "proclaimed ports" I am by no means satisfied that the High Court was intending to define the point of importation differently in respect of "proclaimed" and other ports. Bearing in mind that illegal goods are not infrequently landed in remote locations away from proclaimed ports, it would create anomalies if importation were complete when the goods were brought into a proclaimed port with the intention of them being unloaded, but not if brought into another port with the same intention. It is however unnecessary to consider this matter further because of the concession made by the Crown, and I express no concluded view on it. 23    Having made its concession, the Crown relied on the evidence of unloading by Customs officers and police to prove the importation. No authority had been obtained under Part 1AB of the Crimes Act 1912 and accordingly, so the argument ran, the unloading and hence the importation was illegal, being contrary to s 233B(1)(b). The Crown accepted that this was the position but asked the judge to exercise his discretion under s 138 of the Evidence Act1995 to admit such evidence, which application his Honour acceded to. 24    Counsel for the appellant submitted that the discretion was wrongly exercised and referred to Ridgeway v The Queen (1995) 184 CLR 19, but that was a very different case in that the police there instigated, organised and took part in the whole operation leading to the importation which would not otherwise have taken place, whereas here the police merely intervened at or near the very end of the importation process to prevent the narcotic goods being landed and becoming available to the Australian population. Moreover, there was no deliberate flouting of the laws. Detective Superintendent Tinker believed (it is conceded erroneously) that because the Southern Cross was within 12 nautical miles off the coast the importation was complete and he was entitled to board the vessel and arrest those on board. If he waited a little longer the crew of the Southern Cross would undoubtedly have brought it to rest and commenced to unload the cannabis resin. The importation, on any definition of that word, was virtually complete and the most that can be said is that he intervened a little too early. He was also concerned that there may have been violence when the Southern Cross was boarded and its crew arrested and in the interests of safety he wanted the issue resolved before darkness was complete. In these circumstances it was highly proper for the discretion to be exercised as it was, and his Honour was correct to admit the evidence. It could have been argued that to refuse to admit the evidence in the circumstances of this case would have been a perverse and erroneous exercise of the discretion.

Ground of Appeal 2

25    The second ground of appeal was that the trial judge erred in finding that the appellant had a case to answer. In particular it was submitted that there had to be evidence from which it could be inferred that the appellant had actual knowledge that the cargo was destined to be imported into Australia and admissible evidence of an actual importation into Australia. 26    In relation to the latter point, it was submitted that, absent the acts of Customs and police officers, there had been no completed importation by the Hiddensee or the Southern Cross; and that although at the time the Southern Cross was boarded it was well within Port Stephens, there was nothing to prevent its crew turning it around, taking it somewhere else and not landing its cargo in Australia. Put another way, the only importation was that completed by the Customs officers and police unloading the Southern Cross, and the appellant was not concerned in that. As to knowledge, it was submitted that there was no evidence the appellant knew the destination of the cargo and the off-loading from the Hiddensee to the Southern Cross amounted to no more than the cargo being in transit to a destination unknown to the appellant, and we were referred to the dictum of Gibbs CJ in He Kaw Teh v The Queen (1985) 157 CLR 523 at 531. 27 There is an air of unreality about these submissions. Once the evidence of the police and Customs officers was admitted there was evidence of an actual importation (see ground 1). The appellant may not have been aware of the destination of the cannabis resin when it was taken on board in the middle of the Arabian Sea (although such ignorance is probably unlikely), but after that he was party to navigating the ship on a course south to Cape Leeuwin on the south western tip of Western Australia and then easterly south of Australia and Tasmania (where the ship was buffeted by storms and discussions took place with Verheggen on whether to abandon the cargo and put into port), after which the ship sailed north to the 33rd parallel and stood 200 nautical miles off the New South Wales coast waiting for its rendezvous with the Southern Cross. 28 In those circumstances there was in my opinion no other reasonable inference open to the jury but that at least by that time, if not before, the appellant knew the cargo was destined for Australia, and the evidence establishes that at the end of the 8 days and with such knowledge, he took an active part (operating the crane) in the transhipping of the cargo to a smaller vessel so that it could be landed in Australia. This was an active step in furtherance of the importation, and it does not matter that he was not actively involved at the time the importation was completed. To suggest that the Southern Cross might have turned around after entering Port Stephens and headed somewhere else to discharge its cargo begs the obvious question "where else?" 29 I am satisfied that on the Crown case it was open to the jury to be satisfied beyond reasonable doubt that there was an importation and that the appellant took part in that importation.

Ground of Appeal 3

30    The third ground of appeal relates to the failure of the trial judge to leave the issue of duress to the jury. Defence counsel made a specific request, which was refused, although his Honour did leave the issue of voluntariness to the jury. 31    The appellant, as was his right, declined to be interviewed by police and did not give evidence at his trial, so to raise the possibility that the appellant acted under duress, it was necessary to rely on such inferences as might reasonably have been open from the Crown case, particularly the evidence of Mr Verheggen. 32    Counsel for the appellant relied particularly on evidence that, although they had been told before passing through Port Said that there was to be a "special cargo" and the crew would share in a bonus of 100,000 Dutch florins which, having regard to the decrepit nature of the ship, must at least have excited suspicions that the cargo was some form of illegal substance, they were not told in advance of the nature of the cargo, the dhow from which the cannabis resin came was armed, and that an attempt was made by the appellant to stop the loading from the dhow onto the Hiddensee, but after Verheggen spoke to the skipper of the dhow, he told the appellant and the crew that they could not refuse to take the cargo. 33    Moreover, during the voyage it appears that the option of throwing the cargo overboard was discussed, but Verheggen told some crew members, including the appellant, a story about how a Dutch mariner who had thrown a cargo overboard was the subject of a revenge attack at his home, and on another occasion he told the appellant and other crew members: "If they find out we throw it overboard without any reason, they will have revenge and [the family] will be in trouble or in danger". 34    In relation to the suggestion that the appellant attempted to stop the loading from the dhow to the Hiddensee, the evidence is not that clear. The transcript of Verheggen's evidence (pp 49-50) discloses that after the vessels tied up and the lights were turned on the crew of the dhow commenced to throw the bags of cannabis resin onto the bridge and Verheggen who was on the bridge told the appellant to go down and tell them to stop whereupon he went and spoke to the skipper of the dhow and they stopped loading the bags and called Verheggen who went down himself and spoke with the skipper with the appellant at his side. The skipper told Verheggen they had to take the cargo or they would "be in a big problem", so Verheggen agreed, told his crew they could not refuse to take the cargo and the loading resumed, the appellant assisting. As I read the evidence the appellant only attempted to stop the loading on the instructions of Verheggen and there is nothing to suggest that this was because of the nature of the cargo, rather than because of the way it was being thrown on board. 35    The accused does not have to establish that he acted under duress. The Crown must establish that he acted voluntarily and in order to do so must eliminate any reasonable possibility that he acted under duress. 36    The matters which the Crown must negative when an issue of duress is raised are:

1. The making of an actual threat,
2. That the threat must be of death or serious injury to the accused or his family,
3. That the threat was of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way that the accused did, and
4. That the accused acted as he did because of the threat which was still acting on his mind at the time of the criminal act: R v Abusafiah (1991) 24 NSWLR 531 at 544-5.

37    For such a threat to be effective it must be continuing and be seen to be continuing and such threat will not be continuing and effective if the accused has a reasonable opportunity to render the threat ineffective: R v Williamson [1972] 2 NSWLR 281 at 283, 300. 38 In the present case the evidence established that the appellant was prepared to engage in the carrying of some "special cargo" in a vessel which was hardly seaworthy in return for a share of 100,000 Dutch florins. There was no evidence that his motive in trying to stop the loading was that he objected to the nature of the cargo, but the evidence rather suggests that he acted on behalf of Verheggen who objected to the manner in which the cargo was being thrown on board. There was no suggestion that the stories told by Verheggen of what had happened to other persons who had thrown a cargo overboard was at the hands of people connected with the present voyage, no evidence of any actual threat of death or serious injury made to the appellant, no evidence that he could not have stopped the operation by sending a radio message or such like and, most of all, no evidence that any alleged threats induced him to do something which he would not have been happy to do if no such threats had been made. In these circumstances there was no material proper to be considered on the issue of duress and his Honour was correct in not leaving it to the jury. This ground is not made out.

Ground of Appeal 4

39    This ground, which was that the judge failed to adequately put the defence case to the jury, was not pressed.

Crown Appeal Against Sentence

40    There is also an appeal by the Crown against the sentence of 6 years imposed on Mr Pimentel (to whom I shall continue to refer to as "the appellant") on the ground of inadequacy. In sentencing the appellant, his Honour found that although not initially aware of the nature of the "special cargo" for which the crew was to receive a bonus at a later stage of the ship's voyage the appellant became aware that such special cargo was to consist of a large quantity of cannabis resin and that the cargo was destined for Australia and that thereafter he knowingly and willingly participated in the journey and the transportation of the narcotic good and willingly participated in the illegal operation for reward by way of the bonus earlier referred to and in particular that off the Australian coast he helped discharge the cargo onto the Southern Cross in order to facilitate its importation into Australia. His Honour said that he had no doubt that the appellant took his orders from Verheggen but went on,

"I have no doubt that you ascertained the nature of the cargo from Verheggen and the destination of the cargo and that you freely, consciously and knowingly participated in the venture thereafter."

His Honour also noted the size of the cargo, approximately 10 tonnes, the damage it would have done to the community if it had been successfully landed, the needs for specific and general deterrence and the need to reflect the community's abhorrence for this type of criminal activity. His Honour noted a number of subjective features favourable to the appellant but also noted that he had three prior convictions for narcotic type offences in Germany for which he had been sentenced to periods of incarceration for up to 7 years, but that he had apparently served little or none of that time and would be incarcerated if he returned to Germany.

41    The co-offender, Verheggen had previously been sentenced by his Honour Judge Howie QC for his part in the importation. Judge Howie had assessed the criminality of Verheggen as warranting a term of imprisonment of 8 years but he had reduced that by 25% because of the matters which he identified including Verheggen's plea of guilty, that he had no prior convictions, that he had co-operated with the authorities prior to the sentencing process and had undertaken to continue such co-operation which he had subsequently demonstrated by giving evidence for the Crown in the appellant's trial. It was conceded by the Crown that the appellant's criminality was less than that of Verheggen but his Honour correctly observed that the principles of parity required that he look at the sentence of Verheggen to determine an appropriate sentence in respect of the appellant, as his Honour did. He took into account the lesser degree of criminality on the part of the appellant and balanced this factor against Verheggen's plea of guilty and assistance to the authorities, and ultimately determined that those factors cancelled each other out and accordingly he imposed on the appellant the same sentence as Judge Howie had imposed on Verheggen, namely 6 years imprisonment. 42    The Crown's submission was that in approaching the matter in this way, his Honour failed to have regard to the fact that unlike Verheggen, the appellant did not plead guilty, did not assist the authorities and had three prior convictions for narcotic related offences committed overseas. The second of these matters (that the appellant did not assist the authorities) can be simply disposed of because his Honour made considerable reference to this aspect of distinction between the two offenders. In discussing the parity issue his Honour did not specifically refer to the fact that unlike Verheggen the appellant had not pleaded guilty or to his prior convictions, but he did refer in his Remarks on Sentence to the prior convictions and as an experienced trial and sentencing judge I am satisfied that he must have had the appellant's prior convictions and Verheggen's plea of guilty in mind in making his overall comparison of the two offenders. The sentence imposed, for an offence which carries a maximum penalty of life imprisonment, is on the face of it at the lower end of the scale, but having regard in particular to the sentence imposed on Verheggen and the principles of double jeopardy as they relate to Crown appeals I am not satisfied that the sentence is such as to justify the intervention of this Court. 43    I would therefore dismiss both the appeal against conviction and the Crown appeal against sentence and confirm the conviction and the sentence.

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IN THE COURT OF
CRIMINAL APPEAL

60077/99
60135/99

SPIGELMAN CJ
DUNFORD J
HIDDEN J

FRIDAY, 10 DECEMBER 1999

Regina v Meliton Pimentel

Judgment

44    HIDDEN J: I agree with Dunford J.

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