Regina v Muri Junior Balogun

[2004] NSWCCA 72

CITATION:	Regina v Muri Junior Balogun [2004] NSWCCA 72
HEARING DATE(S):	9 February 2004
JUDGMENT DATE:	26 March 2004
JUDGMENT OF:	Sully J at 1; James J at 31; Hulme J at 32
DECISION:	Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against sentence dismissed
LEGISLATION CITED:	Customs Act 1901 (C'th) Evidence Act 1995 (NSW) Crimes Act 1914 (C'th)
CASES CITED:	Domican v The Queen (1992) 173 CLR 555 Festa v The Queen (2001) 208 CLR 593 Reg v Coe [2002] NSWCCA 385
PARTIES :	Regina Muri Junior Balogun
FILE NUMBER(S):	CCA 60395/03
COUNSEL:	M. Cinque - Crown M. Bozic SC - Appellant
SOLICITORS:	Commonwealth Director of Public Prosecutions - Crown Legal Aid Commission of NSW - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0496
LOWER COURT JUDICIAL OFFICER :	Holt ADCJ

60395/03

SULLY J
JAMES J
HULME J

26 March 2004

REGINA v MURI JUNIOR BALOGUN

Judgment

1 SULLY J: The appellant, Mr. Balogun, stood trial in the District Court in November 2002 before his Honour Acting Judge Holt QC and a jury. The appellant was charged with having attempted, without reasonable excuse, to have in his possession a prohibited import, namely, a quantity of 3,4-Methylenedioxymethylamphetamine, (“MDMA”), being not less than the commercial quantity, which had been imported into Australia in contravention of the Customs Act 1901 (C’th). Such an offence contravenes section 233B(1)(c) of the Customs Act; and it attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for life.

2 The appellant was found guilty as charged; and he was subsequently sentenced to imprisonment for 8 years with a non-parole period of 5 years. He appeals against his conviction and applies for leave to appeal against his sentence.

The Appeal against Conviction

3 One ground only was argued, namely:

“His Honour erred in his directions in relation to identification evidence in that it failed to sufficiently inform the jury of the particular circumstances of the Appellant’s case requiring a need for caution before accepting the identification evidence.”

4 The identification evidence in question was given by a Federal Agent named Ferlazzo.

5 For a convenient over-view of the relevant facts, it is convenient to quote as follows from Judge Holt’s remarks on sentence:

“On 15 February 2002 an EMS Parcel Force world-wide package air ways bill, EE9357561381GB was dispatched from the United Kingdom. The consignor was shown as “Hamleys 188-196 Regent Street, London UK, WIB5B B”. The package was said to contain children’s toys. The package was consigned to Mrs. Lisa Stokes, 64 Dennison Street, Bondi Junction, New South Wales, Australia, 2022.
On 20 February 2002 members of the Australian Customs Service (ACS) at the Qantas mail handling unit examined the package. The package was a brown cardboard box, about 40 centimetres by 34 centimetres by 31 centimetres. Inside the cardboard box were three small cardboard boxes purportedly containing the children’s toys, each of which was wrapped in “Hamleys” red wrapping paper. Each of these boxes was found to contain a package wrapped in brown packing tape which in turn was found to contain a quantity of tablets.
Members of the Australian Federal Police (AFP) attended and took possession of the package. On examination by the AFP physical evidence team the three brown taped wrapped packages were found to contain a total of 18,864 warrant (sic) and off white tablets with a total net weight of 4.81 kgs.
2.6828 kgs of the tablets bore a dove logo. These tablets were found to contain 28.3 percent 3, 4 methylenedioxymethamphetamine, MDMA, resulting in a pure weight of 759.2324 grams.
2.1277 kgs of the tablets were marked with a Mercedes logo and were found to contain 26.5 MDMA and point 4 percent methylamphetamine. The resulting pure weights in the Mercedes tablets was 563.8405 grams of MDMA and 8.5108 grams methylamphetamine. The total pure weight of MDMA was 1.323 kgs.
The controlled operations certificate was obtained by AFP officers for the purposes of conducting a controlled delivery. The package was reconstructed with the bulk of tablets having been removed and substituted with an inert substance. A controlled delivery sample of 20 grams from the original tablets was left inside the package.
At about 9.45 am on Monday 25 February 2002 an AFP officer posing as a courier delivered the package to 64 Dennison Street, Bondi Junction. At that location the AFP officer spoke to a person named Ann McDonald who stated that although Lisa Stokes did not live at that address, she would take the package. McDonald said, “That’s cool, ‘cause her brother is living here”, and that she would be able to get the package to Lisa Stokes. McDonald signed for the package and took it inside.
At 10.12 am McDonald walked from the premises at 64 Dennison Street to Siobahn’s Irish Bar at 89 Ebley Street, Bondi Junction. Surveillance police observed her drinking and talking to staff. She was observed to get up and move to another area of the bar. A short time later at about 11.20 am she was observed using the public telephone in the bar. The telephone records later obtained in respect to that telephone showed that at 11.14 am a call was made to mobile number 0415 305278 (the Paul Tarr number). This call lasted for 32 seconds. A return call was made from the Paul Tarr number to the bar at 11.16.55 which lasted three minutes and thirty one seconds. The Crown case was that McDonald telephoned the offender who then called her back.
The SIM card related to the Paul Tarr number was found on the offender on his arrest. It was registered in the name Paul Tarr. The offender admitted in his evidence that this was his phone (although he said it had been registered by his friend Paul Habberly). He did not know that it had been registered in the name of Paul Tarr.
At about 11.28 am McDonald was seen to re-enter 64 Dennison Street. She left again at 12.03 and returned at 12.10. The records of the Paul Tarr number indicate that it rang 64 Dennison Street at 12.17, 12.19, 12.20, 12.22 and 12.27 pm.


The offender was seen to enter the rear of 64 Dennison Street at 13.06. He remained in the premises until 13.14 when he left via the back lane and walked from Lawson Lane to the corner of Ebley Street and Newland Street where he got into the passenger side of the Lancer driven by Paul Habberly. The vehicle was observed to drive around the area, passing 64 Dennison Street on two occasions. The offender got out of the car at a taxi rank at Spring Street where he got into a taxi at 13.25 pm. The taxi drove to the vicinity of 64 Dennison Street where it double parked whilst the offender got out and went to the front door. He returned to the taxi with the package. The taxi then drove via Bondi Road to the vicinity of Thomas Hogan Reserve at the intersection of Ocean Street and Martins Avenue, Bondi. The offender then walked into the reserve with the package. Police lost sight of him for a number of seconds. He was seen walking out the other side of the reserve without the package.
The offender was arrested a short distance away. At the time of his arrest he had removed the Paul Tarr SIM card from his mobile phone and was in the process of replacing it with another SIM card from which no relevant calls had been made.
The package was found in some bushes approximately two metres from the path through the reserve. It was not well hidden and could be seen from the path.
The prisoner was taken to AFP Headquarters where on advice he declined to be interviewed. Habberly was arrested later that day but released without charge. McDonald was not arrested and she has not been located.
The pure quantity of MDMA was 1.323 kilograms. There were 18,864 tablets. Evidence was given, which I accept, that the value of the drugs based on the number of tablets was estimated at between $377,280 and $1,320,480 (street value) and between $282,960 and $471,600 (wholesale).
The commercial quantity of MDMA is five hundred grams.”

6 The appellant made at his trial, and pursuant to section 184 of the Evidence Act 1995 (NSW), the following formal admissions:

“1. On 15 February 2002 an EMS Parcel Force worldwide package (Airway bill No. EE935761381GB) was despatched from the United Kingdom. The consignor was recorded as “Hamleys, 181-191 Regent Street, London, UK WIB 5BT” and the package was said to contain children’s toys. It was consigned to “Ms Lisa Stokes, 46 Denison Street, Bondi Junction, Sydney, NSW, Australia, 2022”.
2. On 20 February 2002 Australian Customs Service officers examined the package – a brown cardboard box approximately 40 cm x 34 cm x 31 cm. Inside that box were 3 smaller cardboard boxes each wrapped in Hamleys red wrapping paper.
3. ACS officers located in each of the 3 boxes a rectangular shaped package covered in brown packing tape, which contained a quantity of tablets.
4. Later on 20 February 2002 Australian Federal Police officers took possession of the package, which was subsequently examined. In total the 3 brown tape-wrapped packages contained 18,864 white and off-white tablets, some of which bore a Dove logo, and others a Mercedes logo.
5. Between 20 February 2002 and 25 February 2002 AFP members reconstructed the package, substituting the bulk of the tablets with an inert substance, but including a controlled delivery sample of approximately 20 grams of the original tablets, which was put inside the package which was then re-wrapped.
6. The results of the analysis at the Australian Government analytical Laboratories was a calculated pure quantity of

· 3,4-methylenedioxymethamphetamine (MDMA) 1,323.0729 g (1.323 kg);

· methylamphetamine of 8.5108 g, detailed as follows:

TABLET DETAILS	PURITY	PURE WEIGHT
Dove tablets	28.3% MDMA	759.2324g
Mercedes tablets	26.5% MDMA	563.8405g
Mercedes tablets	0.4% methyl-amphetamine	8.5108g

7 The Crown case, apart from the foregoing admissions, was a circumstantial case. It depended upon the combined effect of surveillance evidence which plotted various movements of the appellant in various motor vehicles; of various telephone calls made by the appellant at times when he was subject to that surveillance; of surveillance evidence tracking the appellant, then carrying the parcel to which reference has been made, into the Thomas Hogan Reserve fronting Martins Avenue, Bondi; of surveillance of the appellant as he entered that Reserve carrying the box, and walked out of the opposite end of the Reserve about a minute later without the box; and the subsequent finding of the box and its contents deposited in foliage to the left of the steps leading down from Martins Avenue into the Reserve. The actual point at which the box was deposited was very close to the Martins Avenue end of those access steps.

8 The appellant, who gave evidence at trial, did not dispute that he had taken possession of the box; and that he had taken the box to the Reserve. The appellant’s case was that he had done that as a favour to a person whom he knew only as “Oliver”, a person whom he understood to be the current boy-friend of McDonald. According to the appellant he had actually handed the box over to “Oliver” near the Martins Avenue entrance to the Reserve. The appellant did not dispute that in fact the box had contained MDMA, but he asserted that he had never had any knowledge of that fact; and that his only understanding of what the box had contained was that it had contained a scanner belonging to “Oliver”.

9 The evidence given at trial by Federal Agent Ferlazzo was evidence of observations which he said that he had made in the vicinity of the premises at 64 Denison Street. In that connection, Federal Agent Ferlazzo gave the following evidence-in-chief:

“About 1.00 pm, that same date, I saw a silver coloured Mitsubishi Lancer sedan with New South Wales registration XQS 384 and bearing a Thrifty Rental sticker on the back window.
Q. Just stopping you there. You made some observations of this vehicle at this point and later in the day?
A. Yes.
Q. Perhaps you might refer to it as the silver Lancer wherever you’re talking about the silver Lancer XQS 384.
A. Yes
At that time I saw a male person I now know as Muri Balogun, as driver and sole occupant, drive the silver Lancer along Denison Street, Bondi Junction, from the direction of Ebley Street towards Birrell Street and continue to drive out of sight.
I would describe Muri Balogun as being about 25 to 30 years of age, with a dark coloured complexion and a shaved head. At that time I saw that he was wearing a dark coloured shirt.
About 1.01 pm, that same date, I saw the vehicle, with Mr. Balogun as sole occupant, drive along Denison Street, Bondi Junction, from the direction of Birrell Street and drive into Ebley Street towards Lawson Street and continue to drive out of sight.
Q. Stopping you there for a moment. If I could clarify, you have indicated you saw the Lancer come down the street in one direction?
A. Yes.
Q. And if I understand you correctly, it has come back the other way about a minute later?
A. That’s correct, yes.
Q. Continue on.
A. Between 1.16 and 1.20 pm, that same date, I saw the silver Lancer, with a male person I now know as Paul Derrick Habberley as driver and Mr. Balogun as front passenger drive along Denison Street, Bondi Junction, and continue to drive out of my sight.


Q. So the first sighting is driving south along Denison Street?
A. Yes, it is.
Q. And next sighting that is the silver Lancer, that is driving north along Denison Street?
A. Yes, that’s correct.
Q. And in relation to both those sightings, the sighting at 1 o’clock and 1.01, you say the sole occupant was the driver, who was the person you now know as the accused?
A. Yes, that’s correct.
Q. I think you then come to a time between 1.16 and 1.20 pm when you saw the Lancer again?
A. Yes.
Q. And this time you saw two persons in the vehicle, the person you now know as Paul Derrick Habberley as the driver?
A. Yes.
Q. And you say the accused was the passenger?
A. Yes.
Q. And you saw it drive along Denison Street at that time?
A. Yes.
Q. Do you recall which direction it was going in at that time?
A. That was driving south as well.
Q. Then I think if I can take you to the top of page 7, read from there?
A. Yes.
Q. I would describe Paul Derrick Habberley as being about 25 to 30 years of age with a dark coloured complexion and short dark coloured hair. At that time I saw that he was wearing an orange coloured t-shirt.
Q. Just stop you there. In terms of your observations of firstly the accused on his own in the vehicle, and secondly the person Habberley, these were not persons with whom you were previously familiar as I understand it?
A. No, I wasn’t familiar with them before.
Q. Was there anything that would enable you to distinguish between the two of them?
A. At that time, I would have to say the clothing. One was wearing the dark coloured shirt, the person the accused, and the other person an orange shirt. Their physical description I could tell them apart as well.
Q. All right. If I can take you to: ‘About 1.24 p.m. ….’?
A. About 1.24 pm that same date I saw a white Ford Falcon sedan with New South Wales registration T3572, and bearing the logos of Taxis Combined, with an unknown male person (NFD) as the driver and Balogun as rear passenger, drive along Denison Street, Bondi Junction and double-park in the vicinity of the premises located at 64 Denison Street, Bondi Junction.
About 1.24 pm, that same date, I saw Balogun exit the taxi via the rear passenger’s door, and walk to and enter the premises located at 64 Denison Street, Bondi Junction via the front entrance and walk along the hallway and continue out of my sight. At that time I recorded my observations on the video.” [T 168-170]

10 The cross-examination of Federal Agent Ferlazzo was lengthy. It explored the times at which, the exactness with which, and the circumstances in which various of his surveillance notes had been made. The real point of the cross-examination for present purposes is caught, however, in the following passages:

“Q. So you say, do you, that at 1 o’clock Mr. Balogun was the only person in the motor vehicle who was driving past Denison Street, 64 Denison Street?
A. Sorry, you’ll have to repeat that.
Q. 1 o’clock?
A. Yes.
Q. You say Mr. Balogun was the driver and sole occupant who drove past Denison Street?
A. Yes, he did.
Q. He was someone you had never seen before and had no suspicion about, was he?
A. I hadn’t seen him before, no.
Q. There were other cars driving up and down, you can see it on the video can’t you?
A. Yeah and the nature of what I was suspecting as much as I could on that day and that was the purpose that I was there for.
Q. When you first saw that vehicle there was nothing outstanding about it, was there?
A. I made a mental note that it had driven past.
Q. Like every other mental note you made that morning?
A. Yes, I did.
Q. When you say you saw it come back at 1.01 that must have made you a bit more suspicious, didn’t it?
A. Yes, it did.
HIS HONOUR: When?
Q. At 1.01 when you saw it drive down the street and you watched it I take it?
A. Yes.
Q. You saw it coming back?
A. Yes.
Q. Did you think: “This is a bit odd”?
A. Yes, I did.
Q. Did you get out your video and take a shot of it coming back down?
A. No, there was no time to operate the video at that point.
Q. Why not?
A. Because the vehicle wasn’t stopping, it was just driving past, coming back, and if you can appreciate it I didn’t expect it coming back a minute later.
Q. You were watching it, you watched it go up and you watched it come back?
A. Yes I did. It went out of my sight at 1 o’clock and then it came back into my sight at 1.01 and continued on.
Q. You were opposite 64 Denison Street?
A. Yes.
Q. You see this vehicle go by you?
A. Yes.
Q. Did you see it coming back towards you?
A. Not until it was virtually in front of the premises at 64.
Q. You thought: “There is the vehicle I just saw”?
A. Yes, I did.
Q. With the Thrifty Rental sticker on the back window?
A. Yes, I did.
Q. And you saw the driver out in the distance, did you?
A. I saw the driver at a short distance as it passed, yes.
Q. Fifty metres was the extent of what you saw?
A. That would be the maximum if I attempted to look that far.
Q. So did you swing your video around and follow it down the street to pick up the Thrifty car rental sticker and the registration number?
A. I wasn’t attempting to video it at that stage, no.
Q. Wasn’t that set up looking directly opposite 64 Denison Street?
A. Yes.
Q. I take it you were capable of moving it?
A. Yes.
Q. To observe anything of significance?
A. Yes.
Q. I want to suggest to you sir that you’re mistaken about those two observations?
A. I’m suggesting that the time it takes to operate the video wouldn’t have been enough to actually get an image of the vehicle driving past.
Q. That’s not my question. I’m suggesting you are mistaken about that?
A. No, I’m not mistaken.
Q. How long did you make observations of this so called vehicle for, seconds, minutes?
A. Yes, it takes a couple of seconds to drive past.
Q. Did any other vehicle cross at the same time in front of your vision?
A. Not that I recall, no.” [T 197-199]

11 A fundamental part of the appellant’s case at trial was to dispute the identifications thus made of him by Federal Agent Ferlazzo. That necessitated the giving by the learned trial Judge of directions conforming to the principles in that regard that are established by the decision of the High Court of Australia in Domican v The Queen (1992) 173 CLR 555. Those principles are further explored and explained in the later decision of the High Court: Festa v The Queen (2001) 208 CLR 593. The Judge was required, also, to comply with the provisions of ss 116 and 165 of the Evidence Act 1995 (NSW).

12 Judge Holt did in fact give the jury lengthy and careful instructions on the issue of identification. It is not disputed that these instructions were, as far as they went, unexceptionable. What is submitted for the appellant is not focused upon what Judge Holt said; but rather upon what it is asserted his Honour should have said but did not say. In that regard the appellant has itemised in the written submissions of his Senior Counsel the particular matters which, according to the submission, the Judge should have put in terms to the jury. Those itemised matters are:

“(a) by 1.00 pm Ferlazzo had been at the location for 3.5 hours making observations of the street and the passing traffic;
(b) during that time the traffic was going up and down the street fairly constantly;
(c) when first observed at 1.00 pm and again at 1.01 pm Ferlazzo did not think the passing of the car was of sufficient interest to make a note of it and/or to pass on the information to other surveillance officers over the police radio;
(d) the vehicle and its occupant was observed by Ferlazzo for a couple of seconds. The total time in which Ferlazzo had to make his observations, not just of the driver but also of the car, was in the order of 5-10 seconds;
(e) this was the first time that Ferlazzo had seen either the car or the occupant.”

13 The Crown, in its written submissions, responds seriatim and as follows to those itemised submissions of the appellant:

“(a) The Appellant does not indicate the potential relevance of this matter. If it is meant to suggest that the officer’s concentration might have been affected one might have expected it would mean he was less likely to notice someone rather than likely to make a mistaken identification. The Respondent does not accept that this is a matter to which the trial judge should have referred.
(b) Again, the potential relevance of this matter is not elucidated and the Respondent does not accept that reference should necessarily have been made to it.
(c) Although his Honour did not specifically refer to this matter in his directions on identification at S/U 13-15, he did later, at S/U 33-36, deal with the evidence of Ferlazzo in detail. In particular he noted the cross-examination about his failure to record the time for his observation of the appellant at 1.00 pm and 1.01 pm. (S/U 36). The summing up followed, on the same day, the address of the appellant’s counsel in which particular reference was made to the evidence about Ferlazzo’s notes (8/11/02 TRS 4). In combination, the Respondent submits that the jury was adequately warned about the potential shortcomings of the identification evidence arising from the note taking.
(d) As is noted by the Appellant, the trial judge did direct the jury that the time that Ferlazzo had to see the person in the car (and the car itself) was a matter they should take into account. The substance of the Appellant’s complaint in this regard, then, is that the judge did not go on to specify that amount of time (5-10 seconds). In the circumstances of this case, the Respondent does not accept that this was a matter which required mention.
(e) As is noted by the Appellant the trial judge did note, effectively that this was the first time that Ferlazzo had seen the Appellant. Indeed, his Honour went further and noted that Ferlazzo “did not know that this may be a person he was watching out for”. (SU 15). No deficiency has been demonstrated.”

14 In considering those competing submissions, it is relevant to note that no application was made by counsel who appeared for the appellant at his trial for re-directions on the issue of identification. The Crown Prosecutor at the trial drew Judge Holt’s attention to what the Crown saw as a need for some further directions; his Honour accepted the need to give some additional directions, and specifically sought and obtained from the appellant’s counsel at trial his acceptance of the proposed further directions.

15 In that context, it is relevant to take note of two statements of this Court, (Giles JA, Dunford and James JJ), in Reg v Coe [2002] NSWCCA 385.

16 The first relevant extract from that judgment is taken from paragraph [87] of the judgment of Dunford J:

“It is important to bear in mind that, although the judge must stamp his authority on the directions, the judge is not required to lend his or her judicial authority to every argument reasonably open to defence counsel on the evidence: R v Cook (CCA – unreported – 24 Augusut 1998 at 13) citing R v Domican at 178-9; see also Eldridge at [56].”

17 The second relevant extract, also, is from the judgment of Dunford J, this time at paragraph [77]:

“Most of these matters can in my view be regarded as ‘nit-picking’ and demonstrate the reason why r4 exists. A large number of them (b), (c) and g(iii) were details on factual matters which may well have justified a reminder to the jury if either counsel at the trial had considered them significant; and the fact that neither counsel who had been there for the addresses and heard the whole of the summing-up sought fit to ask for further directions is, I would have thought, a clear indication that in the context of the trial and of the summing-up they were not regarded as significant. They certainly could not have led to a miscarriage of justice such as would justify the grant of leave, notwithstanding r4.”

18 It is clear from the course of the summing-up that Judge Holt made a particular, and a particularly careful, attempt to ensure that the issue of identification, always an extremely difficult topic for a summing up, was sufficient to meet the just requirements of the particular case. The appellant was represented at trial by counsel very experienced in the conduct of criminal trials. In my opinion, the second in particular of the two passages cited from the judgment of Dunford J in Coe is entirely in point.

19 On that basis alone I would not uphold the ground of appeal against conviction.

20 I add for the sake of completeness that, had I been persuaded to the view that there was some defect in the directions given in connection with the evidence of Agent Ferlazzo, I would have been satisfied that the appellant had not demonstrated any, let alone any substantial, miscarriage of justice resulting from any such defect.

21 The Crown case was, as earlier herein noted, a circumstantial case; but it was, in my opinion, a very strong circumstantial case. The surveillance evidence given about the appellant’s relevant movements, - on foot; in the Mitsubishi; and in the taxi, - showed quite extraordinary patterns of movement for somebody who was doing no more than an occasional favour for a mere acquaintance, the substance of the favour being something as straightforward as the collection and passing on of a parcel containing a scanner. There was available to be added to that material a convincing body of evidence showing sequences of telephone calls which were entirely consistent with the proposition, fundamental to the Crown case, that the appellant was making, throughout his convoluted movements, telephone calls that were consistent with, and overwhelmingly indicative of, something more being afoot than an accidental engagement to hand over a scanner. There was, additionally, the evidence of the Federal Agent, (not Agent Ferlazzo), who actually tracked the appellant as he moved from Martins Avenue into the Thomas Hogan Reserve. That evidence was, plainly, accepted by the jury. So accepted, the evidence effectively destroyed the substance of the appellant’s case at trial, namely, that he had in fact met “Oliver” and had handed to him the parcel which he, the appellant, then understood to contain nothing more sinister than a scanner belonging to “Oliver”.

22 When the whole of that circumstantial case is pieced together, and there is taken out of contention the evidence given by Agent Ferlazzo of his observations of the appellant in the Mitsubishi, there remains nevertheless, in my opinion, an overwhelmingly strong Crown case. I am unpersuaded that the directions given to the jury in connection with Agent Ferlazzo’s evidence, when that evidence is set fairly into the context of the entirety of the Crown case at trial, can be thought reasonably to have deprived the appellant of the fair chance, otherwise open to him, of an acquittal.

23 For the whole of the foregoing reasons, I would dismiss the appeal against conviction.

The Application for Leave to Appeal against Sentence

24 The appellant did not give evidence at the proceedings on sentence.

25 Judge Holt was asked to find, and his Honour did in fact find, that the role of the appellant had been that of a courier; and more particularly, an “internal courier” rather than an “external courier”. His Honour was, of course, bound to have regard to the matters prescribed by section 16A(2) of the Crimes Act 1914 (C’th). The remarks on sentence contain a precise and careful discussion of all of those matters that were relevant to the appellant’s particular case. I see no error in any part of that precise and careful analysis by his Honour.

26 Judge Holt expressed the view that the offence was “a most serious offence, taking into account the objective features, ……”. That assessment was, in my respectful opinion, justified.

27 The conclusion ultimately reached by Judge Holt was that the appellant’s case merited a head sentence of imprisonment for 12 years. His Honour reduced the sentence by one-third in order to comply with the then requirements of section 16G, (since repealed), of the Crimes Act. His Honour set the non-parole period at 62-1/2 percent of the head sentence, a point within the permissible range. The quantity of MDMA prescribed by statute as the commercial quantity is 500 grams. The pure quantity of MDMA in the parcel which the appellant undoubtedly handled with, as the jury found, the requisite knowledge and intent was 1.323 kilograms: that is to say, a little more than 2-1/2 times the prescribed commercial quantity. The street and the wholesale values as noted earlier herein were, of course, estimates. Even the taking of a conservative view of such estimates underscores the true extent and potential of this particular illicit transaction. The objective culpability of the appellant’s offence was very high. The subjective features of his case were not insignificant; but they were analysed and assessed fairly and carefully by his Honour.

28 In those circumstances, I am unpersuaded that the head sentence upon which his Honour ultimately settled was a sentence falling outside the permissible range.

29 I would grant leave to appeal but dismiss the appeal against sentence.

Orders

30 I propose:

[1] that the appeal against conviction be dismissed;

[2] that leave be granted to appeal against sentence;

[3] that the appeal against sentence be dismissed.

31 JAMES J: I agree with Sully J.

32 HULME J: I agree with the orders proposed by Sully J and with his Honour’s reasons.

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Last Modified: 04/15/2004