R v Toro-Martinez

[2000] NSWCCA 216

Reported Decision: 114 A Crim R 533

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v TORO-MARTINEZ [2000] NSWCCA 216 revised - 28/06/2000
FILE NUMBER(S):	CCA 60807/99; 60746/99
HEARING DATE(S):	7/06/00
JUDGMENT DATE:	7 June 2000
PARTIES :	Regina Alejandro Arturo Toro-Martinez
JUDGMENT OF:	Spigelman CJ at 1; Newman J at 66; Adams J at 67

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0177
LOWER COURT JUDICIAL OFFICER :	Ainslie-Wallace DCJ

COUNSEL :	G Nicholson QC (Appellant) F A Veltro (Crown)
SOLICITORS:	John D Weller & Associates (Appellant) Commonwealth Director of Public Prosecutions (Crown)
CATCHWORDS:	CRIMINAL LAW - grounds for appealing against conviction after a guilty plea - CRIMINAL LAW - Crown appeal - sentencing for drug importation - manifestly inadequate sentence for a person "low in the hierarchy" - Crimes Act 1914 (Cth), s233B(1)(d)
LEGISLATION CITED:	Crimes Act 1914 (Cth) Crimes Amendment (Controlled Operations) Act 1996 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Assets Recovery Act 1990 (NSW) Customs Act 1901 (Cth) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995
CASES CITED:	Carter v Northmore Hale Davey and Leake (1994-1995) 183 CLR 121 Maxwell v The Queen (1996) 184 CLR 501 Meissner v The Queen (1995) 184 CLR 132 Minet v Morgan (1873) LR 8 Ch App 361 Pearse v Pearse (1846) 63 ER 950 The Queen v Ireland (1970) 126 CLR 321 R v Bernier (1998) 102 A Crim R 44 R v Cincotta (Supreme Court of NSW, Court of Criminal Appeal, 1 November 1995, unreported) R v Chiron [1980] 1 NSWLR 218 R v Davies (Supreme Court of NSW, Court of Criminal Appeal, 16 December 1993, unreported) R v Ferrer-Esis (1991) 55 A Crim R 231 R v Favero [1999] NSWCCA 320 R v Ganderton (Supreme Court of NSW, Court of Criminal Appeal, 17 September 1998, unreported) R v Murphy [1965] VR 187 R v Sagiv (1986) 22 A Crim R 73 R v Wong (1999) 108 A Crim R 531 Ridgeway v The Queen (1995) 184 CLR 19
DECISION:	1 Appeal against conviction dismissed; 2 The sentence imposed by the trial judge quashed; 3 The Respondent to the Crown appeal sentenced to six years imprisonment with a non-parole period of three years

IN THE COURT OF
CRIMINAL APPEAL

60907/99
60746/99




SPIGELMAN CJ
NEWMAN J
ADAMS J

Wednesday 7 June 2000


REGINA v Alejandro Arturo TORO-MARTINEZ


The Appellant was charged with being knowingly concerned in the importation of a trafficable quantity of cocaine. As a preliminary issue, he applied for a permanent stay of proceedings on the basis of the involvement of the authorities in the importation. This application was rejected by Ainslie-Wallace DCJ. The Appellant then changed his plea to guilty and was sentenced by her Honour to three and a half years imprisonment, with a two year non-parole period. The Appellant appealed against his conviction and the Crown appealed against the sentence imposed.

Held

( per Spigelman CJ, Newman and Adams JJ agreeing)

Conviction Appeal

1 An appeal against conviction notwithstanding a guilty plea is permissible in limited circumstances. The test is whether a miscarriage of justice has occurred. The Court will only permit an appeal against conviction after a plea of guilty save in extreme circumstances, where the material shows that there is a real question about the guilt of the accused. R v Davies (Supreme Court of NSW, Court of Criminal Appeal, 16 December 1993, unreported) approved. R v Murphy [1965] VR 187; R v Ferrer-Esis (1991) 55 A Crim R 231, R v Sagiv (1986) 22 A Crim R 73, R v Cincotta (Supreme Court of NSW, Court of Criminal Appeal, 1 November 1995, unreported) Maxwell v The Queen (1996) 184 CLR 501, Meissner v The Queen (1995) 184 CLR 132 referred to. R v Chiron [1980] 1 NSWLR 218 discussed.

2 A typographical error in the date on a certificate granted under s15M of the Crimes Act 1914 (Cth) where the intent is plain and the error obvious, does not qualify the validity of the certificate in so far as it specifies a day in accordance with the discretion to do so in s15N(4). The day “specified” within s15P(3)(a) is the intended date. Her Honour was correct in rejecting the challenge to the certificate in this case.

3 Nothing in the evidence suggested that the actions of the authorities involved in the matter played any material role in the conduct of the Appellant. No impropriety or contravention of law could be discerned that would justify the exclusion of the evidence. There is no basis for interfering with her Honour’s discretion to admit the evidence under s134 of the Evidence Act . Ridgeway v The Queen (1995) 184 CLR 19 followed.

Crown Appeal

4 Notwithstanding the Appellant’s low level of involvement in the importation, the sentence imposed by her Honour was manifestly inadequate and out of line with the pattern of sentencing for this offence. R v Wong (1999) 108 A Crim R 531 referred to.

Orders

1 Appeal against conviction dismissed.

2 The sentence imposed by the trial judge quashed.

3 The Respondent to the Crown appeal sentenced to six years imprisonment with a non-parole period of three years.

- 27 -

IN THE COURT OF
CRIMINAL APPEAL

60907/99
60746/99




SPIGELMAN C
NEWMAN J
ADAMS J

Wednesday 7 June 2000



REGINA v Alejandro Arturo TORO-MARTINEZ

JUDGMENT

1    SPIGELMAN CJ: Alejandro Arturo Toro-Martinez pleaded guilty to a charge under s233B(1)(d) of the Customs Act 1901 (Cth) of being knowingly concerned in the importation of not less than a trafficable quantity of cocaine. Her Honour Judge Ainslie-Wallace sentenced him on 26 November 1999 to three and a half years imprisonment with a two year non-parole period to commence on 9 June 1998, being the date on which he had been taken into custody.

2    On 5 November 1999 her Honour had considered a preliminary issue, namely, an application for a permanent stay of the proceedings and, it appears, an application in the alternative that certain evidence not be admitted, each on the basis of the involvement of the authorities in the importation and the subsequent dealing with the imported cocaine. Upon this application being rejected, Mr Toro-Martinez changed his plea from not guilty to guilty. The Court is invited to infer that, but for her Honour's decision on this application, Mr Toro-Martinez would not have altered his plea.

3    The Court has before it an appeal against conviction which, on the authorities, is permissible notwithstanding the plea of guilty, albeit in limited circumstances. The Court also has before it a Crown appeal against sentence.

4    Between May 1994 and February 1995 a Colombian national Castro-Vargas was an inmate at Long Bay gaol with the person subsequently referred to as the police informer "Warren". After the deportation of Castro-Vargas and the release of Warren, the former was in touch with the latter offering to send cocaine to Australia. Warren contacted the National Crime Authority (“NCA”) which proceeded to participate through Warren in the importation of cocaine. I will outline later the aspects of this participation which are material to the appeal of Toro-Martinez against his conviction. Included in that participation was the supply by Warren to Castro-Vargas of a series of addresses to which letters could be sent.

5    Between 19 September 1996 and 3 January 1997, twenty-three envelopes despatched in Colombia and Chile and addressed to five of the addresses supplied to Castro-Vargas arrived in Australia and were intercepted by the NCA. Each envelope contained some documents and a number of coloured plastic folders. There were fifty-eight such folders weighing 9.539 kilograms within which was impregnated 3.574 kilograms of pure cocaine. The mode of impregnation required a chemical process to extract the cocaine from the plastic.

6    By October 1996 Warren received information to the effect that a person, who became known as "the chemist", would arrive in Australia for the purpose of extracting the cocaine from the plastic covers. This person was a Mr Jorg Romero-Cepeda. It is Romero-Cepeda who introduced the appellant, Toro-Martinez, to the enterprise.

7    The Crown case was that the Appellant was only involved in the enterprise between 18 and 20 December 1996. The Crown case was that between those dates he was knowingly concerned in the importation of a trafficable quantity of cocaine. It was not alleged the Appellant was knowingly concerned in the importation of all of the twenty-three parcels which contained a commercial quantity of 3.573 kilograms as noted above. The Appellant's involvement was limited to the three particular days in which a trafficable quantity of 655.2 grams was involved. This was the quantity in the controlled delivery which the authorities permitted to occur.

8    It was common ground below, and on this appeal, that this was the amount of cocaine imported and in respect of which the allegation that the Appellant was knowingly concerned in the importation of cocaine, was based.

9    Other persons involved in the importation included Romero, whom I have mentioned as "the chemist". There was also a Mr Douglas Robertson, the owner of a farm, who permitted the clandestine laboratory to be set up in the shed on his property and also drove vehicles involved in the transport of the chemicals required for the operation. In addition there was a Mr Cardona-Reinoso who assisted Romero in various respects, including transferring chemicals and attending the laboratory.

10    The Crown case against the Appellant, Toro-Martinez, including the following acts of participation in importation:

· He attended a number of meetings with Romero and his accomplices.

· He wrote down the list of chemicals required for the extraction of the cocaine from the plastic folders.

· He contacted Robertson with a view to engaging the use of his farm for the extraction process.

· He accompanied a person to deliver the chemicals to Robertson, that person being an undercover police officer "Marcello."

· He discussed the relative merits of cocaine from various South American countries, cocaine trafficking and drug cartels with another person, who was also an undercover police officer, "Chris".

· He was handed a bag containing the shredded plastic impregnated with cocaine by Chris.

· He rang Chris from the airport as he was departing and told him not to shred the plastic "for the next time".

11    The charge against the appellant related to a quantity of 655.2 grams of pure cocaine which was the amount comprised in a controlled delivery of some of the plastic covers as arranged by the NCA. Accordingly the Appellant was charged with, and fell to be sentenced, only with respect to his participation in this controlled delivery on the basis that he had been knowingly concerned in the importation of that amount.

The Conviction Appeal

12    Notwithstanding his plea of guilty, the Appellant contends that this is one of those exceptional cases in which the Court will set aside a conviction following a plea. The submission is made that the plea followed upon the unsuccessful challenge to the continuation of proceedings based, inter alia, on the admission into evidence of evidence that had been obtained through illegal or improper conduct on the part of the authorities.

13 An avenue of appeal against the decision on the preliminary matter by her Honour would have been an application for leave to this Court under s5F of the Criminal Appeal Act 1912. The Appellant, however, took the course of pleading guilty and lodging an appeal based on alleged constitutional grounds, which have not been pressed, and two grounds which are pressed as follows:

· That the learned trial judge erred in law by holding that the officers of the Executive had not been knowingly concerned in the importation of a prohibited import, namely, cocaine from Colombia from July 1995 until December 1996.

· That the learned trial judge erred in law by holding that the officers of the Executive did not commit a number of illegal acts in connection with the relevant operation between July 1995 and December 1996.

14    The improprieties or illegalities allegedly committed by the authorities consisted of a range of acts over a period from July 1995 to December 1996. For almost the whole of this period, the Appellant had no participation in any relevant crime. It was a feature of the illegality alleged in the present case that it does not impinge in any respect on the involvement by the Appellant in the criminal enterprise. No inducement, trick or entrapment was employed by any representative of the authorities which involved the Appellant in any way. Rather, it is suggested, that certain aspects of conduct by the authorities meant that the actual importation and some subsequent steps within Australia were in some manner determined, or at least influenced by, such conduct. However, none of those acts influenced the Appellant to participate in the crimes. The submission appears to be that, but for that official conduct, the specific importation in which the Appellant was "knowingly concerned", on his own admission, would not have occurred.

15    In the present case, the appellant has given no evidence. No material concerning the circumstances relating to the change of his plea from not guilty to guilty is before the Court. What, if any, advice he was given is not the subject of any material before the Court. Rather, the Court is asked to infer that he would not have changed his plea but for the admission into evidence of evidence which was not specified with any degree of precision either at first instance or in this Court.

16    As Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed, said in R v Ferrer-Esis (1991) 55 A Crim R 231 at 233:

"... an applicant will be permitted to withdraw a plea of guilty where he did not appreciate the nature of the charge to which the plea was entered. The applicant for such permission does of course bear the onus of establishing that he did not have such appreciation."

17    In the absence of any evidence about the circumstances in which a plea of guilty was made, the Court is left to infer the circumstances in which a miscarriage of justice may have occurred. The only basis for such an inference is that the Appellant could not have been convicted and accordingly would not have changed his plea, if absolutely no evidence of the importation in which he was knowingly concerned, could have been adduced.

18    The issue sought to be raised in this case has some similarity with that considered in R v Chiron [1980] 1 NSWLR 218. In that case a plea of guilty to a charge of rape had been entered after the trial judge had ruled that evidence concerning another alleged rape by the accused in similar circumstances would be admitted as "similar facts". This was accompanied by an observation from the Judge, as understood by the then accused, that the admission of that evidence would be "sudden death" for his case.

19    Three quite different approaches are reflected in the judgments of this Court in Chiron. Street CJ found that by reason of the advice given by the accused's counsel and the Judge's comments, the plea of guilty was "tainted" and, accordingly was not "a free and voluntary confession". Both Nagle CJ at CL and Lee J found that the plea was freely and voluntarily given. Lee J held, dissenting, that in those circumstances there was no miscarriage of justice within the meaning of s6 of the Criminal Appeal Act 1912. Nagle CJ at CL, however, agreeing in the result with Street CJ but for different reasons, concluded that there was a miscarriage of justice where "an accused person freely and voluntarily but, nevertheless, induced by an incorrect ruling of the trial Judge as to the admissibility of material evidence" changed his plea to guilty (221G). The different approaches reflected in Chiron have never been resolved in this Court.

20    It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise. Nevertheless, other than the judgment of Nagle CJ at CL in Chiron, no decision in this Court has allowed an appeal after a plea of guilty in the case of a mere wrongful admission of evidence which does not impinge on the quality of the plea in any manner.

21    A formulation which has frequently been referred to with approval is that of Sholl J in R v Murphy [1975] VR 187 at 191:

"... for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt ..."

22    To similar effect are the observations of Lee J (with whom McInerney and Campbell JJ agreed) in R v Sagiv (1986) 22 A Crim R 73 at 80, who applied a test of "mistake or other circumstances affecting the integrity of the plea as an admission of guilt ...".

23    The significance of this factor is also affirmed in R v Cincotta (Supreme Court of New South Wales, Court of Criminal Appeal, 1 November 1995, unreported) in which Hunt CJ at CL with whom Grove and Allen JJ agreed, said at 1:

"A person who has pleaded guilty will be permitted to withdraw that plea where it has been shown that a miscarriage of justice has occurred. The applicant for such permission bears the onus of showing the existence of that miscarriage. It will be shown to exist where, for example, the plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty. There must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt. " (Emphasis added)

24    To similar effect is the reasoning in the joint judgment of Brennan, Toohey and McHugh JJ in Meissner v The Queen (1995) 184 CLR 132 at 141 where their Honours said:

"A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."

25    Furthermore, as Dawson and McHugh JJ said in Maxwell v The Queen (1996) 184 CLR 501 at 511:

"The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered."

26    Both Murphy and Sagiv were referred to with approval in this Court in R v Davies (Supreme Court of New South Wales, Court of Criminal Appeal, 16 December 1993, unreported) by Badgery-Parker J, with whom Wood and Matthews JJ agreed, at 3, 4 and 7 and which has frequently been referred to with approval. Badgery-Parker J concluded:

"The appellant's submissions that it would in the circumstances be unfair to hold him to his plea draws attention to the two factors which to my mind are the significant factors in this case. The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv ) and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea 'was not really attributable to a genuine consciousness of guilt' (per Sholl J in Murphy supra). If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Sholl J 'an issuable question of guilt'- to put it more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."

27    Nothing in the subsequent judgments of this Court suggests that the approach of Nagle CJ at CL in Chiron should now be accepted to constitute the law. Nevertheless it is not necessary to decide the case on this basis. Rather the concluding reasoning in the decision in Davies as quoted above, affirmed in subsequent decisions of this Court in R v Ganderton (Supreme Court of New South Wales, Court of Criminal Appeal, 17 September 1998, unreported); R v Favero [1999] NSWCCA 320, is of direct application. This Court will only permit an appeal against conviction after a plea of guilty, to reiterate Davies:

"… if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused ..."

28    Nothing in the material before the Court in this case suggests anything of this character. In the case of Chiron, which is the most closely analogous to the present case, there was such a basis for questioning of guilt. In the present case no attempt has been made to suggest that the Appellant might not be guilty. The case for the Appellant rises no higher than, if certain evidence had been rejected, he would not have been found to be guilty.

29    Nothing is more calculated to bring the criminal justice system into disrepute than to treat it as some form of forensic game. The criminal justice system is designed to discover the truth. The protection of personal liberty embedded in our criminal procedure - including the presumption of innocence and the standard of proof beyond reasonable doubt - do not constitute an invitation to manipulate or distort the truth.

30    The system recognises - not least in the discretion to exclude evidence illegally or improperly obtained - that the truth may cost too much. As Knight Bruce VC said in Pearse v Pearse (1946) 63 ER 950 at 957:

"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination ... Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much."

31    See also Minet v Morgan (1873) LR 8 Ch App 361 at 368; Carter vNorthmore Hale Davy and Leake (1994-1995) 183 CLR 121 at 133; The Queen vIreland (1970) 126 CLR 321 at 335.

32    The occurrence of circumstances in which considerations of this character could be permitted to overturn a conviction after a plea of guilty, when there is not even a pretence of innocence is, to my mind, virtually inconceivable. In the application of a test as broad as "miscarriage of justice" I am not prepared to say that there can be no such circumstances. However, they would have to be extreme, not just extraordinary. Nothing of that character appears on the facts of this case.

33    The nature of the impropriety or illegality alleged in the present case concerned the official involvement with the importation of cocaine into Australia and the subsequent handling. The specific importation in which the appellant was said to be knowingly concerned, was the subject of a controlled delivery organised by the authorities.

34 A second, alternative, basis for this appeal arises from the existence of a certificate under s15M of the Crimes Act 1914 (Cth). That section is found in the new Pt 1AB inserted by the Crimes Amendment(Controlled Operations) Act 1996 (Cth) following upon the decision of the High Court in Ridgeway v The Queen (1995) 184 CLR 19. The effect of the provision is that participation in an importation authorised in this manner does not constitute illegality, relevantly, for purposes of the exercise of the Ridgeway discretion or the parallel discretion found in s138 of the Evidence Act.

35 The offence with which the appellant was charged took place between 18 and 20 December 1996. There were two certificates obtained under s15M of the Crimes Act. The first was said to extend from 15 November 1996 until 14 December 1996. The Crown did not rely on that certificate. The Crown relied on the second certificate which was said to cover the period from "13 December 1996 until 11 January 1996". Before her Honour, and in this Court, the validity and scope of the second certificate was challenged by reason of the reference to "January 1996" in the second certificate. Her Honour found that the typographical error of inserting "January 1996" in lieu of "January 1997" was an immaterial error. I agree. This is the kind of typographical error that often occurs at the end of one calendar or the commencement of a new calendar year. The intent is plain and the error is obvious.

36    Attention was drawn in this Court to the provisions of s15N and s15P of the Crimes Act 1914. It was noted that subs15N(2) commencing with the words "The certificate must …" outlined a series of requirements for a certificate. The introductory words of s15(2), however, are to be contrasted with the provisions of s15N(4) which, with respect to the error relevant in the present case, states "The certificate may specify a day (not later than 30 days after the day on which it was given) as the day on which the certificate is to cease to be in force”. Even with respect to the apparently mandatory requirements of subs15N(2), there is a specific provision in subs15N(5) to the effect:

"A failure to comply with this section does not affect the validity of the certificate authorising a controlled operation."

37    There was no basis on which, in my opinion, the typographical error of the date can qualify the validity of the certificate in so far as it specifies a day in accordance with the discretion to do so identified in subs15N(4).

38    In the alternative, the appellant relied on the provisions of s15P which, relevantly, provided in subs(3):

"A certificate remains in force:
(a) if the certificate specifies a day on which it is to cease to be in force - until the end of that day."

39    The submission of the Appellant is that the day “specified” is the day which appears on the face of the certificate, namely, 11 January 1996. That day has long since passed and there was, accordingly, no certificate in force on the relevant days, namely, the days between 18 and 20 December 1996 inclusive.

40    In my view, the proper construction of the terminology, namely, "the certificate specifies a day", can accommodate a typographical error which is obvious on the face of the certificate. The words "11 January 1996" were so plainly both intended and actually did, on its proper construction, refer to 11 January 1997 that the day “specified” on the certificate should be understood to be 11 January 1997. Accordingly, the requirements of s15P(3)(a) were satisfied in that respect and a certificate was in force on the relevant day.

41    There was, in my opinion, a valid certificate under s15M. Accordingly, the relevant acts of the authorities with respect to the importation and handling of the cocaine were covered by a valid certificate, namely, the one dated 13 December 1996.

42    Submissions were made to the Court on the assumption that no valid s15M certificate was in operation. Her Honour considered the reasoning of the High Court in Ridgeway (supra) and applied that reasoning to the exercise of the discretion under s138 of the Evidence Act.

43    Her Honour referred to the two categories of cases identified in the joint judgment of Mason CJ, Deane and Dawson J in Ridgeway (supra) at 39:

"The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she had committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice requires exclusion of the evidence. The other category of cases where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence ..."

44    Her Honour also referred to the analysis in the joint judgment at 37 where their Honours said:

"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum stands of acceptable police conduct in all the circumstances including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged."

45    Her Honour concluded that the officers were not knowingly concerned in the importation of cocaine. This finding of fact was open to her Honour. She added:

"Had I formed the view that the officers had been knowingly concerned in the importation of cocaine, I am of the opinion that the illegal conduct of the officers would fall within the first category identified in Ridgeway (supra) and in which the decision to admit the evidence needs to be considered against those matters contained within s138 of the Evidence Act . Without gong to the necessity of listing those factors, I am satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it."

46    This passage of her Honour's reasons is attacked as a mere assertion, in breach of her Honour's obligation to provide proper reasons. There is some force in this criticism. However, in the light of her Honour's outline of the facts and submissions earlier in the judgment, it is reasonably clear which are the matters which she took into account.

47    Her Honour was dealing with a submission to the effect but for the involvement of the officers there would have been no importation. In submissions in this Court it was suggested that her Honour fell into error and that the real question was "Whether but for the actions of the officers the offence with which the appellant has been charged would have taken place?" Nothing in the evidence before the trial judge, nor in this Court, suggests that any act of the informer or the undercover officers involved in this matter, played any material role in the conduct of the Appellant. The basis on which the alleged improper or illegal activity on the part of the officers could have had an effect on the involvement of the Appellant was that, without such official involvement, there would have been no importation at all.

48    There was an absence of precision, both before her Honour or in this Court, as to what evidence it was which ought to have been excluded. The focus of the allegations of illegality and impropriety were on the act of importation. The other matters referred to were the acquisition of chemicals needed to extract the cocaine from the plastic folders and the steps taken preparatory to extraction. However, even if all the evidence associated with the acquisition or the use of the chemicals had been excluded, that would not have fundamentally undermined the case against the Appellant who was charged with being knowingly concerned in the act of importation. In the absence of any evidence from the Appellant or anyone associated with his defence, the Court cannot speculate about what, if any, effect on his plea may have been occasioned if there had ever been a separate objection to the admissibility of evidence in relation to the acquisition of chemicals and the preparatory steps.

49    On the evidence before the trial judge and this Court, an informer on behalf of the National Crime Authority had engaged in a process of subterfuge with Castro-Vargas who wished to export cocaine to Australia from Colombia. The process included a number of different aspects, including the provision of addresses for the delivery of cocaine parcels, the payment of moneys, the assertion of the existence of a safe distributor, meeting agents of the exporter and the introduction of other undercover agents of the NCA who, in turn, supplied, at the request of those criminally involved, the specific chemicals required to remove the impregnated cocaine. The involvement was, in many respects, tangential and the encouragement, in so far as there was encouragement, was of a minor order.

50    None of the conduct complained of on behalf of the authorities in this case, in my opinion, breaches a standard of impropriety, let alone of illegality, to a significant degree, if at all. Her Honour was entitled to find, as she did find, that even without any official conduct, there would have been an importation. As the officer-in-charge of the investigation, a Mr Michael Purchas, said in his evidence:

"Cocaine was going to be sent regardless. The idea was to make sure that we associated ourselves enough with the group that we knew where it was to be sent and we were in a position to seize it and to arrest them."

51 Her Honour was correct to find that this was the character of the involvement. The extent of the encouragement by the authorities through the informer and other involvement was, at the highest, of a low level. I am unable to discern an impropriety or contravention of Australian law to a degree which would justify the exclusion of the evidence. In the circumstances, there is no basis for interfering with her Honour's decision to balance in favour of admission, the desirability of admitting the evidence against any undesirability associated with the way in which the evidence was obtained. Accordingly, I am unable to detect undesirability to the relevant extent which would justify excluding the evidence or interfering with the exercise of the discretion under s138 by her Honour.

52 For these three alternative reasons - no suggestion of innocence, the s 15M certificate, the exercise of the s 138 discretion - the appeal against conviction should be dismissed.

Crown Appeal

53    I turn to the Crown appeal. Pursuant to the plea of guilty, her Honour sentenced the Respondent to the Crown appeal to a period of three and a half years imprisonment with a non-parole period of two years. Her Honour's decision was handed down some two weeks before this Court issued a guideline judgment with respect to this offence R v Wong (1999) 108 A Crim R 531. However, as that judgment made clear, the Court was not laying down any new principles or standards with respect to sentencing for this offence. Rather, it affirmed the sentencing levels, for persons low in the hierarchy of an importing organisation, which had emerged from decisions both in New South Wales and the other States. Specifically, her Honour had available to her the long-standing guideline for this offence from the judgment of R v Ferrer-Esis (1991) 55 A Crim R 231 as explained in subsequent judgments including R v Bernier (1998) 102 A Crim R 44.

54    In her reasons on sentence her Honour noted the submission made on behalf of the Appellant that his involvement was limited to translating for Romero. Nevertheless, it was understood at all times by him to be translation for the process of extracting cocaine from plastic. The Crown submission before her Honour was that the Appellant was a "trusted adviser" to both Romero and Cardona and, accordingly, has a more significant role in the scheme. Her Honour referred to an admission by the Appellant that, after a certain point, he became more involved in the scheme to extract the cocaine from the plastic than a mere interpreter. In the event her Honour generally accepted the version contended for by the Appellant namely:

"... that he came in to assist Romero and was drawn further into the criminality in so doing."

55    Her Honour rejected the submission that the Appellant's participation was "vital" to the scheme. These findings of fact were open to her Honour.

56    Her Honour took into account the plea of guilty, although in the circumstances, after the loss on the voir dire, a conviction was inevitable. The plea had some utilitarian value, even at that late stage. Her Honour took into account the Appellant's remorse and the limited degree of co-operation, together with his consent to the forfeiture of property under the Criminal Assets Recovery Act 1990 (NSW). Her Honour found these acts added to the expressions of contrition. Her Honour also took into account prior good character and a range of subjective considerations which are set out in her reasons on sentence.

57    Her Honour gave particular weight to the sentences that had, at that stage, already been imposed on the other participants in the importation and preparation of the cocaine. Romero received a sentence of eleven years with a non-parole period of six and a half years. Plainly, his involvement was of a completely different order for that which her Honour found on the part of the Appellant. In view of the fact that Romero's appeal against severity of sentence is to be heard in this Court on Friday, it is not appropriate to refer to that sentence by way of comparison for present purposes. In any event, it is concerned with an involvement of a qualitatively different character from that with which the Court is presently concerned.

58    Her Honour also had before her the sentences of Cardona and Robertson. In each case she indicated that their involvement had been of a higher degree of significance than that of the Appellant. She described Cardona as the agent in Australia for Castro-Vargas for the purposes of importing cocaine. She identified Robertson as active in the extraction process. Each of Cardona and Robertson had been sentenced to seven years with a non-parole period of four and a half years, the latter having been charged with supplying prohibited drugs under the Drug Misuseand Trafficking Act 1985 (NSW). On the basis of her Honour's findings of fact, it was open to her to conclude that the objective criminality of the Appellant was "significantly less" than Cardona and Robertson.

59    The Crown appeals on the basis that the disparity between their sentences and the Appellant's sentence was, nevertheless, too great. The Crown does not point to any particular error in her Honour's reasons on sentence. The Crown relies on the proposition that the final result is manifestly inadequate. Her Honour assessed the criminality of the Appellant at a head sentence exactly half that of both Cardona and Robertson and a minimum term of less than half.

60    In my judgment in Wong (supra), I set out a range of sentences for the offence including for mid-range trafficable quantities in for persons low in the hierarchy in both New South Wales and in other States. (See Schedule 1.2 and Schedule 2.2 at 565 and 567). These Schedules reflect the sentences imposed on persons low in the hierarchy of an importing organisation, in a range of cases, which pre-dated her Honour's sentencing in the present case. The comparison between the sentence her Honour imposed and those contained in the Schedules shows that her Honour's Schedule is the lowest of any sentence, as to both the head sentence and the non-parole period. It is well below the range identified for offenders of this category with respect to this quantity of cocaine. The preponderance of head sentences lie in the range of six to nine years.

61    The usual range for a non-parole period is 60 to 70 per cent of the head sentence (see Bernier supra). In this case her Honour's non-parole period of two years was just under this relationship. In my opinion, notwithstanding her Honour's findings of fact as to the low level of involvement of the Appellant, the sentence imposed is manifestly inadequate.

62    The pattern of sentencing to which I have referred above, reflects the significance that is to be attached to the requirements of general deterrence with respect to importation of drugs. There is no warrant in the present circumstances, either by reason of the level of participation of the Appellant or the subjective features to which her Honour referred and which are quite unremarkable in cases of this character, for her Honour's sentence to be so out of line with the pattern of sentencing for this offence

63    The requirements of personal and general deterrence and the extreme adverse social effects and personal degradation occasioned by drug use, require the conclusion which her Honour also reached, that no sentence other than imprisonment is appropriate.

64    In re-sentencing the Appellant it is necessary to take into account the sentences of Cardona and Robertson who were involved to a greater degree than the Appellant. It is also necessary to apply the principle of double jeopardy, particularly in this case as the non-parole period for the Appellant is about to expire. Although he has known for some time of the Crown appeal, nevertheless, the fact that an increase in his period of imprisonment occurs so late in his non-parole period must increase his burden. It is for that reason that a non-parole period below the normal range of 60 to 66 per cent is appropriate.

65    Having regard to the particular circumstances to which I have referred, in my opinion, the sentence that should be imposed is a period of imprisonment of six years with a non-parole of three years.

66    NEWMAN J: I agree with the reasons advanced by the Chief Justice in relation to both the Appellant's appeal and the Crown appeal and I agree with the orders he proposed.

67    ADAMS J: I also agree with the orders proposed by the Chief Justice and with the reasons given for those orders.

68    SPIGELMAN CJ: The orders of the court are:

1 The appeal against conviction is dismissed.

2 The sentence imposed by the trial judge is quashed.

3 The respondent to the Crown appeal is sentenced to a period of imprisonment of six years. Such sentence is to commence on 9 June 1998 and expire on 9 June 2004.

4 A non-parole period be imposed of three years. The Respondent is eligible for release on parole on 8 June 2001.

69    Mr Toro-Martinez, I am required to explain to you the effect of the sentence. It will involve a term of imprisonment for three years, one more year than that imposed by the trial judge. There will be a period of three years on parole. You must honour the terms of the parole during the parole period. You are bound to be of good behaviour and to be available to comply with the conditions. If you are not of good behaviour or do not, without reasonable excuse, comply with the conditions, then the parole order may be amended or revoked and you may be arrested and be required to spend the balance of the parole period in gaol.

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