Regina v TAMOTSU

[1999] NSWCCA 400

Reported Decision: 109 A Crim R 193

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v TAMOTSU [1999] NSWCCA 400 revised - 27/06/2000
FILE NUMBER(S):	CCA 60161/98
HEARING DATE(S):	26 November 1999
JUDGMENT DATE:	26 November 1999
PARTIES :	Sekine Tamotsu (Appellant) Regina (Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Dunford J at 46; Hidden J at 47

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0340
LOWER COURT JUDICIAL OFFICER:	Stewart ADCJ

COUNSEL:	Paul Byrne SC (Appellant) G J Bellew (Respondent)
SOLICITORS:	Legal Aid Commission (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
CATCHWORDS:	CRIMINAL LAW - Insufficient evidence of elements of offence ; EVIDENCE - Evidence Act 1995, s98 - probative value of coincidence evidence outweights prejudice; SENTENCE - Customs Act 1901, s233B - appropriate sentence; SENTENCE - parity with co-offender.
ACTS CITED:	Customs Act 1901 (Cth) Crimes Act 1914 (Cth) Evidence Act 1995
CASES CITED:	R v Sugahara and Watanabe (NSWCCA, 16 October 1998, unreported))
DECISION:	Appeal against conviction dismissed; Appeal against sentence allowed; Appellant re-sentenced, on the first count to seven years imprisonment commencing on 17 January 1997 and on the second count to ten years and three months imprisonment commencing on the same date, with a non-parole period of six years and three months.

IN THE COURT OF

CRIMINAL APPEAL

60161/98




SPIGELMAN CJ
DUNFORD J
HIDDEN J

Friday 26 November 1999



REGINA v Sekine TAMOTSU

JUDGMENT

1    SPIGELMAN CJ: The appellant was convicted after trial on two counts:

(1) That he, between about 1 September 1996 and about 30 September 1996, at Sydney in the State of New South Wales and elsewhere, did conspire with Hiroko Ohata and Toshimitsu Watanabe and other persons to import into Australia prohibited imports to which s233B of the Customs Act 1901 (Cth) applied, to wit narcotic goods consisting of a quantity of heroin, being not less than the trafficable quantity applicable to heroin.

(2) That he, on 17 January 1997, at Sydney in the State of New South Wales, did import into Australia prohibited imports to which s233B of the Customs Act applied, to wit narcotic goods consisting of a quantity of heroin, being not less than the trafficable quantity applicable to heroin.

2 On 17 January 1997, the appellant arrived in Sydney on a flight from Tokyo. He was detained by officers of the Australian Customs Service upon arrival. When he removed his clothing at the request of Customs officers he was found to be wearing a body pack around his waist, the compartments of which contained eighteen separate packages of white powder, later analysed and found to be heroin. Upon analysis and, on the basis of an admission made under s184 of the Evidence Act 1995, the total weight of pure heroin found on his body was 1,481.5 grams. This was slightly below the level identified in the Customs Act as a commercial quantity. It was at the very top of the range of a trafficable quantity.

3    Following his arrest, the appellant participated in a record of interview with police. During the course of that interview he informed police that he had travelled to Bangkok on the afternoon of 13 January 1997, where he was provided with a body pack containing the packages by a Mr Ohata. He returned to Tokyo, arriving there on 14 January. Upon arrival he removed the body pack at a toilet at a nearby railway station and gave it to his travelling companion, a Mr Sugahara. On the morning of 17 January the appellant met Sugahara at the railway station and was given the body pack. Once again he strapped it to his waist and boarded a flight to Sydney. The appellant further informed police that he was to receive 650,000 Japanese yen (approximately A$6,500) for his part in the importation. He denied any knowledge of the presence of heroin. He asserted on a number of occasions that he believed he was carrying a quantity of contraceptive pills.

4    During the course of this interview the appellant informed police that he had travelled to Australia in almost identical circumstances in September 1996. He indicated that he had flown from Tokyo to Bangkok on 20 September 1996 and left Bangkok on 23 September and arrived in Sydney on 24 September. Ohata had paid for the airline ticket and he indicated that he had a similar body pack as he had on the occasion on which he was apprehended. He indicated that when he arrived in Australia on that occasion he did as he was instructed to do by Mr Ohata. He had contacted Ohata and informed him of the name of his hotel and the room number. Ohata said that a Chinese man would come to pick up the package. That occurred. The Chinese man picked up the package and gave the appellant a sum of money which he first described as about A$6,000 and later as about A$6,500. He indicated that on both occasions he understood that what he was doing was illegal and that he was committing an offence.

5    He also indicated that on another occasion he accompanied Mr Watanabe to Australia at a time when he believed that Watanabe was carrying packets on his person. He also indicated that, at Ohata's request, he had picked up a package in Bangkok and carried it to New York in the United States of America. On that occasion also, he said, he believed he was carrying contraceptive pills. On that occasion he had also received something in the order of 600,000 yen.

6    The appellant indicated that he had been introduced to Mr Ohata by Mr Watanabe whom he described as a friend of his. With respect to the contraceptive pills he said in his record of interview that he had been told that it was difficult to obtain such pills in Australia and that they would be available from Bangkok.

7    The first ground of appeal on behalf of the appellant is that there was insufficient evidence to establish his guilt on the first count in the indictment. This was said to arise on the basis of three grounds which in the alternative, or cumulatively, are such as to justify the no evidence submission. These were:

(i) No evidence of the nature of the substance imported by the appellant;

(ii) No evidence of the purity of the substance and hence the quantity;
and

(iii) No evidence of any agreement to import occurring in Sydney as alleged in the indictment.

8    The evidence on this matter consisted of the admissions made by the appellant during the course of his record of interview, together with inferences from the circumstances of the occasion on which he was apprehended, the subject of the second count.

9    Mr Byrne SC, who appeared for the appellant in this Court, submitted that it was reasonably possible to draw an inference from the objective facts consistent with the appellant not having brought a trafficable quantity of heroin into Australia. He put forward three possible explanations. First, that it was known that in the illicit drug trade suppliers may "rip off" their customers by supplying innocuous powder. Secondly, the first overseas journey may have constituted "a dummy run" in order to test the trustworthiness and capacity of the appellant as a courier. Thirdly, the packages could have contained a substance other than heroin, including a substance believed to be prohibited, but which was not within one of the categories of prohibited substance in the schedules to the Customs Act.

10    No application was made at the close of the Crown case by counsel for the accused at the trial that there should be a verdict by direction on the basis that the Crown had failed to produce evidence of any essential element in the charge in count one. On this basis, leave is required under r 4 of the Criminal Appeal Rules 1952. I am not minded to grant leave on the basis that the submission has no substance. If the Court were to grant leave the result would be the same.

11    It was open to the jury to infer from the facts of the second occasion and the degree of similarity between the two occasions, that the substance imported on the first occasion was heroin, and that it was in excess of a trafficable quantity. The modus operandi of the two occasions is virtually identical. According to Mr Tamotsu’s admissions in the record of interview, the packaging was the same, the weight was about the same and the amount he was paid for the delivery and was to be paid for the delivery was about the same.

12    As the count was conspiracy rather than importation, on one view it does not matter whether or not there was any heroin imported on the first occasion. The essence of the offence is that of agreement rather than the carrying of that agreement into effect.

13    Plainly, the jury rejected his evidence that on the two occasions in question he believed he was carrying contraceptive pills which, apparently, he believed were difficult to obtain in Australia. Indeed, it appears that he believed that they were also difficult to obtain in the United States. The rejection of this evidence enabled the jury to conclude that he had the requisite intent with respect to the second count, and that he had the requisite knowledge of the nature of the commodity the subject of the conspiracy, with respect to the first count.

14    It was also submitted under this ground that the charge referred to an agreement to import occurring in Sydney. That is not precisely accurate. The indictment alleged that the appellant "at Sydney...and elsewhere, did conspire...to import".

15    I do not regard the location of an agreement as an essential element in a count of conspiracy. In any event, in my opinion, there was evidence of an agreement which was made in Sydney and elsewhere. The basic submission on behalf of the appellant was that the acts that were done in Sydney, pursuant to any agreement which might have existed, were done, and I quote from the written submissions, "after the process of importation was complete and hence not directed towards the act of importation". The act of importation occurred in Sydney, albeit at the airport.

16    More significantly, there was evidence of a prior arrangement amongst other co-conspirators, namely the arrangement by which the appellant would be met and the illegal shipment delivered. A co-conspirator, presumably Ohata, had contacted the person who was to pick up the delivery. There was evidence of a conspiracy occurring "at Sydney and elsewhere". Prior to the act of importation there was, it was open to the jury to infer, an arrangement for delivery in Sydney. In that regard the agreement was made in part in Sydney. The fact that no act of the appellant was involved at that stage does not preclude the conclusion that he was a member of a conspiracy which was in part made here.

17    The second ground of appeal was to the effect that evidence in relation to the first count should not have been admitted and left to the jury as relevant to the determination of the appellant's guilt on the second count. Similarly, it was submitted that evidence in relation to the second count should not have been admitted and left to the jury as relevant to the determination of the appellant's guilt on the first ground. It was submitted that directions that were given in this respect were inadequate.

18    For the reasons I have mentioned above, there was evidence of a character which would enable the jury to conclude that the requisite elements of the offence under the first count were made out in part on the basis of what happened on the second occasion. Those reasons are sufficient to dispose of this ground of appeal.

19    The only substantive issue in respect to the second count was whether or not the appellant had knowledge of the nature of the substance he was carrying. He asserted in his record of interview that he thought he was carrying contraceptive pills as he had done on the previous occasion to Australia and, on one occasion, to the United States.

20    The appellant called in his case the head of the Department of Japanese and Korean Studies in the School of Asian Studies at the University of Sydney. That witness indicated that the contraceptive pill was not generally available in Japan, although doctors could prescribe it for medical reasons. The possibility that a cultural difference would explain what, to an Australian, would be a ridiculous proposition, was before the jury. It was a matter for the jury to assess. It was open to the jury to reject the appellant's assertion as to his state of knowledge. They plainly did so with respect to both counts.

21    Juries are entitled to determine that there are limits to the credulity of drug couriers. This Court should also make it clear that there are limits to the credulity of jurors.

22 I have already referred to the great degree of similarity between the two incidents. The Crown had given notice under s98 of the Evidence Act. His Honour made a ruling as to the admissibility of the evidence under ss98 and 100 of that Act. His Honour indicated that the coincidence evidence did have significant probative value. His Honour was correct that the similarities between the two occasions were overwhelming, with considerable probative value on the issue of knowledge. As his Honour concluded, reflecting the terminology of the statutory provision:

"...the probative value of the tendency or coincidental evidence not merely outweighs its prejudicial effect but does so substantially."

23    It was open to his Honour to so rule and I agree that the ruling was accurate.

24    For those reasons I would dismiss the second ground of appeal.

25    The appellant also applies for leave to appeal against sentence. His Honour sentenced the appellant on the first count to seven years' imprisonment and on the second count to eleven and a half years' imprisonment, with a non-parole period of seven and a half years. The sentences were to be served concurrently.

26 First, it was submitted that the sentence was manifestly excessive. Secondly, it was submitted that his Honour erred in the application of the provisions of s16G of the Crimes Act 1914 (Cth). Thirdly, the parity principle was invoked on the basis of the sentence of Mr Watanabe as varied in this Court in R v Sugahara and Watanabe (NSWCCA, 16 October 1998, unreported).

27 In his reasons on sentence his Honour indicated that with respect to the first count he would have imposed a sentence of fifteen years. He adjusted that sentence pursuant to s16G to ten years. He then gave credit for other matters of discount and reduced the sentence to seven years. With respect to the second count he indicated that an appropriate sentence would be sixteen years. His Honour then said:

"Making the adjustments necessary under s16G I believe that an appropriate overall sentence for that offence is eleven and a half years."

28 He went on to indicate that by reason of s19AB of the Crimes Act (Cth) he should fix a single non-parole period, which he did, at seven and a half years.

29    The quantity involved in the importation on the second count was at the very top of the trafficable range. Inevitably, there will be an overlap between the sentences at the very top of the trafficable range and those at the bottom of the commercial quantity range. With respect to the second count, the sentence of eleven and a half years is not so obviously excessive as to justify the intervention of the court in the circumstances of this case. The period of seven years on the first count is clearly within the exercise of his Honour's discretion.

30    With respect to the first count, his Honour had given an express discount for reasons that he had outlined earlier in his judgment. Of particular significance, I assume, was the fact that the knowledge of the authorities about the importation was based entirely on the appellant's own admissions. Plainly, his Honour gave significant weight to this factor when sentencing on the first count.

31    In my opinion the court should not interfere with the sentence on either count on the basis that the sentences are manifestly excessive.

32    There is, however, one aspect of the comparison between the sentences his Honour imposed on the first and second count which is worthy of further consideration in conjunction with other matters to which I shall refer hereafter.

33 In his reasons on sentence on the first count, his Honour first applied a deduction under s16G and then reduced the sentence by a period of a further three years on grounds which his Honour referred to as "by virtue of the matters I have mentioned". Some of those grounds were not material to the second count, in particular, the fact that the authorities only discovered the offence by reason of a confession. Nevertheless, other aspects, including some of the subjective aspects to which his Honour referred and the offer of assistance, were material to both counts.

34 The structure of his Honour's reasons with respect to the second count made allowance for a s16G deduction from the head sentence. However, it made no other express allowance, unlike the structure of his Honour's reasons on the first count.

35 The second matter that the appellant puts with respect to sentence is that the s16G deduction should be one third, which is a customary rule of thumb with respect to this matter. However, this was only applied in the case of the first count. If the same one third had been applied in the case of the second count, then the deduction under s16G would have reduced the appropriate sentence from sixteen years to ten years and eight months, rather than eleven and a half years.

36    It is true, as counsel for the Crown submitted, that the one third rule of thumb must not be applied as if it were some form of rule of law. Variations from the percentage of the proportion applicable here (ie from thirty-three per cent to twenty-eight per cent) are acceptable and will not, in the normal course, require explanation. However, in a context where sentencing is occurring for two offences and an unexplained discrepancy in this respect occurs, the appellant could have a justifiable sense of grievance on the basis that in the absence of an explanation, he may have suffered from a mere miscalculation. It appears from the material before the Court that if there was a miscalculation it occurred in the course of the sentencing of Watanabe by his Honour O'Reilly DCJ, to which his Honour made reference during his reasons on sentence of the appellant.

37    The third matter relates to the issue of parity. His Honour had before him the sentences in the case of both Watanabe and Sugahara. Indeed his Honour said:

"The sentences imposed on Watanabe and Sugahara are of obvious relevance and I have derived assistance from the remarks of his Honour Judge O'Reilly."

38    His Honour went on to say that the cases did differ. The others pleaded guilty. On the other hand, the quantity involved in their cases was slightly above the 1.5 kilogram cut-off point for a commercial quantity of heroin at 1,511.2 grams in the case of Watanabe and 1511.46 grams in the case of Sugahara. His Honour noted that the offence involving a commercial quantity carries a maximum sentence of life imprisonment, however, the minor difference in amount did not justify any significant discrepancy. His Honour also made reference to the differences in the subjective circumstances. More significantly, there is a difference in the degree of assistance offered by Watanabe. It was of a different kind in the sense that he participated in a controlled delivery, albeit not a successful one. The offer of assistance by the appellant in the present case was of a lower order of significance. This Court in Watanabe assessed his assistance as six months. I assess the appellant's as three months.

39    His Honour did, however, take into account, as he said, the sentences imposed on the two other couriers. In the present case, counsel for the appellant submitted that the appellant was led into his offending by Watanabe. That is an overstatement of the position. The most that Watanabe did was to introduce the appellant to Ohata. It appears clearly from the judgment in the case of Sugahara and Watanabe that Watanabe was sentenced on the basis of being a courier, ie on the same basis as the appellant in the present proceedings.

40 The trial judge in the case of Watanabe had started off, as his Honour did in this case, with a sentence of sixteen years and after the s16G deduction he reduced that to eleven and a half years. That is a deduction of twenty-eight per cent.

41 In both cases the figures are identical to that employed by his Honour in the present case, including the failure to give a precise one-third deduction under s16G.

42    On appeal in this Court McInerney J, with whom I and Sperling J agreed, said that the eleven and a half years was excessive and after applying a deduction of one-third concluded that the appropriate sentence was ten and a half years. From this the court deducted a further period of six months from both the head sentence and the non-parole period for Watanabe's cooperation with the authorities. The court imposed a non-parole period of approximately two-thirds of the head sentence, being an amount of six and a half years, from which the six months for cooperation was deducted.

43    In the case of Watanabe the original head sentence was eleven and a half years with a non-parole period of seven years. In the present case the judge has fixed a head sentence of eleven and a half years with a non-parole period of seven and a half years. After his successful appeal, Watanabe's sentence was reduced to a head sentence of ten years with a non-parole period of six years.

44 Other than in the case of the higher level of assistance given by Watanabe, his plea of guilty and some differences in subjective considerations which do not appear to me to be of any significant magnitude, the appellant could feel a justifiable sense of grievance in having a sentence significantly greater than that of Watanabe. Combined with the other two factors I have mentioned above, ie the failure by his Honour to explicitly refer to any matters other than the s16G discount with respect to the second count and the application without explanation of a lower than customary s16G discount with respect to the second count only, in my view it is appropriate for this Court to intervene.

45    I would not interfere with the head sentence on the first count. Accordingly, the orders I propose are:

(1) Grant leave to appeal against sentence.

(2) Quash the sentence of the trial judge.

(3) Substitute sentence as follows:

(a) On the first count sentence the appellant to seven years' imprisonment commencing on 17 January 1997;
(b) On the second count sentence the appellant to ten years and three months commencing on the same date, ie 17 January 1997;


(c) Fix a non-parole period of six years and three months.

Otherwise I would dismiss the appeal.

46    DUNFORD J: I agree.

47    HIDDEN J: I also agree.

48    SPIGELMAN CJ: The orders of the court are as I have indicated.

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