Rohen v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0140

JACOB ROHEN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2023
DATE OF JUDGMENT:	12 January 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 1
JUDGMENT APPEALED FROM:	DPP v Jacob Rohen (Unreported, County Court of Victoria, 24 August 2022, Judge Bourke)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of attempting to possess a commercial quantity of an unlawfully imported border controlled drug – Whether final address of co-accused caused a substantial miscarriage of justice in the applicant’s trial – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Leave to appeal refused.

Criminal Procedure Act 2009, ss 193, 276.

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Counsel
Applicant:		Mr J. Murphy
Respondent:		Ms K. Breckweg with Ms C. Nicholson
Solicitors
Applicant:	Sarah Tricarico Lawyers Pty Ltd
First Respondent:	Mr S Bruckard PSM, Solicitor for Public Prosecutions (Cth)

PRIEST JA:

For the reasons given by Boyce JA — whose reasons for judgment I have had the considerable advantage of reading in draft — I agree that the applications for leave to appeal against conviction and sentence should both be refused.

TAYLOR JA:

I also agree with Boyce JA.

BOYCE JA:

Introduction

An indictment filed in the County Court charged the applicant with attempting to possess a commercial quantity of a border controlled drug, cocaine.[1]
[1]Criminal Code (Cth), ss 11.1(1) and 307.5(1). The maximum penalty is life imprisonment.
A jury empanelled to try him found him guilty on 7 June 2022.
Following a plea, on 24 August 2022 the trial judge sentenced the applicant to 10 years’ imprisonment, and fixed a non-parole period of 6 years and 6 months.
The applicant now seeks leave to appeal against both conviction and sentence. With respect to conviction the applicant relies on a single ground of appeal which contends that:
A substantial miscarriage of justice occurred because of submissions made in the closing address on behalf of the co-accused.
As to sentence, the applicant’s sole ground is expressed in the following terms:
The sentences imposed on the attempting to possess a commercial amount of a border control drug, namely, cocaine, was manifestly excessive.
In my opinion, for the reasons that follow, the applications for leave to appeal against conviction and sentence must be refused.

Conviction

The prosecution case

The prosecution case, insofar as it is relevant to the determination of the current ground of appeal, may be summarised as follows. The prosecution adduced evidence in proof of its case that a consignment of five Xerox printers arrived in Melbourne by air freight from Mexico on 30 April 2017. Prior to delivery at its intended Melbourne address, this consignment was intercepted by investigating officials. Examination of the consignment revealed 10 blocks of cocaine located in the printers — two blocks in each of the five printers. The blocks weighed approximately 22.4 kilograms; the pure weight of cocaine was 15.456 kilograms. Police deconstructed the consignment, removed the cocaine, and substituted an inert substance. The consignment was then reconstructed and made to look as if the substitution had never occurred. Tracking and listening devices were installed in the consignment. The reconstructed consignment took the form of five cardboard boxes on two wooden pallets — three boxes on one pallet, two on the other. Some of the boxes were stacked on top of one another. The whole consignment was wrapped in clear and black plastic.
The consignee was listed as: Overall Auto Care, Mark Hart, 26 Charles Street, Coburg North. A contact mobile phone number was provided.
On 8 May 2017, two covert police officers, posing as delivery men, delivered the consignment to Overall Auto Care at 28 Charles Street. The applicant was present at, and assisted in, the delivery of the consignment at Overall Auto Care.
Prior to the consignment’s delivery, the freight company, ‘DHL’, with responsibility for the consignment received two telephone calls about the consignment from a person identifying himself as ‘Mark’ or ‘Mark Hart’. These phone calls were made by use of a phone card that was also linked to a Mark Hart. In the period between arrival in Australia, and delivery of the consignment, it could be established that this phone card was in the physical vicinity of the vehicle of one of two more senior persons connected with the importation — the person ‘DA’.
The owner of Overall Auto Care, a Mr Danzi, said that he knew the applicant as ‘KT’. Mr Danzi said that KT had attended Overall Auto Care, from time to time, over the days preceding the consignment’s delivery. He said that, upon the arrival of consignment, the applicant told him: ‘I’ve got this, I’m moving house’. The applicant then signed electronically for the consignment. It was the Crown case, albeit this was disputed by the defence that, additionally to signing, the applicant identified himself as Mark Hart to one of the police officers posing as a delivery man.
The consignment was unloaded at Overall Auto Care at the applicant’s direction. A pallet jack and a hydraulic lift were used to bring the consignment down from the delivery truck. The consignment was then placed inside Overall Auto Care’s premises. Later, another of the senior players connected with the importation, ‘JT’, arrived in a truck. This truck was registered to a company that JT owned — ‘GT Skips’. A forklift was then used to lift the consignment into a skip positioned on the back of JT’s truck. The applicant again assisted with this process of loading. There was some evidence to suggest that the applicant requested the use of a forklift. The consignment was still wrapped in its covering plastic. JT then drove the consignment to the premises of GT Skips in Campbellfield. The applicant remained at Overall Auto Care for a relatively short period and then left.
The consignment was later transported from GT Skips to a premises at 29 Randor Street, Campbellfield where it was left overnight. Both DA and JT had a connection with the Randor Street address. Police later discovered a skip containing two pallets at Randor Street. A knife was located balancing on the ledge of this skip.
On the afternoon of 9 May 2017, the applicant and his partner hired a Budget removal truck from a rental business in Sydney Road Campbellfield. The applicant had attempted to use his boat licence for this purpose but was unsuccessful; when this did not work, his partner’s driver’s licence had to be used instead. The applicant paid $800.00 in cash for the hire of the truck. The applicant’s partner drove the truck out of the Budget store and was followed by the applicant in a separate vehicle.
A little over an hour later, the Budget truck was seen at, and indeed entering, the Randor Street property. About an hour later after that, the Budget truck emerged from the Randor Street property carrying the consignment. It was the Crown case that the applicant was driving the Budget truck. Roughly 15 minutes after having left Randor Street, the Budget truck stopped at the intersection of Bell Street and Sydney Road, in Coburg. At this point, the applicant’s co-accused appeared. The co-accused exited a nearby Mercedes and got inside the cabin of the Budget truck. The Crown alleged that both the applicant and the co-accused were then in the Budget truck. The Budget truck was then driven to the co-accused’s residence at 97 Shaftsbury Avenue, Coburg. The consignment was unloaded from the Budget truck at Shaftsbury Avenue and taken into the co-accused’s property on 9 May 2017, where it stayed overnight.
On 10 May 2017, JT drove a white Kia van to the Shaftsbury Avenue address. At around 5.20 pm on the 10^th, sounds that were similar to the tearing of wrapping were picked up by the listening device secreted in the consignment. What appeared to be a slamming door was then heard. The co-accused loaded the consignment into the Kia van and drove it to an area (King Street) in Airport West. The Kia van was escorted by the applicant’s white BMW, although it was not suggested that the applicant was driving this vehicle at that time. The co-accused stopped the van, and alighted from it, at a point not far from a warehouse controlled by JT. The co-accused then left the scene. JT’s warehouse was located at 27 Halsey Road, Airport West. The Kia van was driven to the Halsey Road warehouse where JT and DA unloaded and unpacked the consignment. They identified the surveillance device that had previously been installed by police. DA and JT then departed.
Wrapping from the consignment was later found at the Shaftsbury Avenue address. The co-accused’s fingerprints were found on this wrapping. Fingerprints belonging to the co-accused were also found on two of the cardboard boxes that had formed part of the consignment that had been left at JT’s Airport West warehouse. The Budget truck was later found outside the applicant’s address with furniture inside it.
A latent left palm print belonging to the applicant was found on one of the boxes forming part of the consignment left at JT’s warehouse. It was this palm print, and, in particular, counsel for the co-accused’s treatment of it during his final address to the jury, that gives rise to the applicant’s ground of appeal against conviction.

The applicant’s left palm print

The applicant’s left palm print found on one of the consignment boxes was an important piece of evidence in the case levelled against the applicant by the Crown. The palm print was located on the top of one of the boxes which had formed the base of the collection making up the consignment. The Crown argued that because the palm print was located in an area covered by one of the top boxes, and given the fact that the whole consignment had been wrapped in plastic, the palm print must have been deposited on the relevant box either during or after the consignment’s unwrapping. This contention was disputed by the applicant. He argued that it was possible, because of a gap in the plastic wrapping near to where the palm print was found (combined with the possibility that the boxes altered position while they were being moved and unloaded), that this palm print came to be left by the applicant at Overall Auto Care at Coburg North, when the applicant assisted in the stabilisation of the consignment as it came down from the delivery truck on the hydraulic lift. The applicant’s counsel contended that the applicant must have placed his hand through this gap in the plastic during this process.
The applicant placed in issue that he had contact with the consignment after it left Overall Auto Care. He contended, also, that the Crown were unable to establish beyond reasonable doubt that any connection that he may have had with the consignment during its process of its delivery was possession coupled with a guilty mind.

Final addresses given by the prosecutor and the co-accused’s counsel

The applicant was second on the indictment. Thus the applicant’s co-accused delivered his final address first. It is what was said by the co-accused’s counsel during his final address concerning the applicant’s left palm print which led to an application to discharge the jury, and which, as already noted, gives rise to the present ground of appeal. But in order to understand the significance of what the applicant relies on in this regard, it is necessary to have some appreciation of precisely what was put by the prosecutor concerning this palm print in his final address.
In his closing address the prosecutor said as follows:
That palm print is located on the box in a position that had to be covered by the top box while the consignment was at Overall Auto Care… Mr Rohen’s palm print could not have been placed on that box until some wrapping was removed from it or the consignment, until some wrapping was removed from it and the top box removed from the bottom box. The evidence of Ms… [Karp]… makes that clear.[2] That had to happen at some stage after the Budget truck attends Randor Street on 9 May. So, sometime before or when it attends at Randor Street, and between then and when the consignment is delivered to… [the co-accused’s]… address later that evening.
[2]Jacqueline Karp was a crime scene investigator with the Australian Federal Police. On 2 May 2017, she was involved in the deconstruction and reconstruction of the consignment containing cocaine. See [9] above. The effect of her evidence is that the applicant’s palm print could not have been placed on the box where it was found without some of the plastic packaging having first been removed.
In further explanation of when, according to the Crown, the applicant’s palm print was placed on the box it was argued:
Now, there was no packaging or wrapping located at Randor Street. It’s clear from the photographs of Randor Street… that the consignment had been removed from the pallets, which were still there in the skip. There was plastic wrapping located at… [the co-accused’s]… house. It appears to include wrapping from the lower portion of the plastic wrapping on the pallet of three boxes and part of the black plastic on the top box of the pallet of three boxes… The plastic wrap had to be removed either at Randor Street and conveyed, possibly, to Shaftsbury Avenue in the Budget truck or at Shaftsbury Avenue, or there was packaging removed at Randor street that was disposed of. But the palm print could not have got there at Overall Auto Care. It had to be placed on that pallet at another time when Mr Rohen was in proximity of it, after the budget truck had been hired, when the consignment is being moved on 9 May 2017.
A little later, the prosecutor told the jury:
Mr Rohen plays a knowing part in having them… [the five printers]… delivered to the address of Overall Auto Care. He hires the Budget truck, his palm print is on a box of the consignment or in the consignment, which must have occurred at a time on 9 May at some stage, then, when the consignment was being unpacked… As soon as it’s… [the truck]… rented, within an hour, it’s at Randor Street where the consignment has been secreted overnight. And somewhere, in the ensuing couple of hours thereafter, his palm print gets on a box when the printers must have been, to some extent, unpacked. Where and how we cannot say, but that’s the only period of time when the palm print could have been applied, on the evidence.
Nearing the end of the case mounted against the applicant, and just prior to outlining the case the Crown would make against the co-accused, the prosecutor submitted to the jury:
Now, the circumstances suggest that Mr Rohen may have been in possession of the consignment on two separate occasions. You will notice the charge on the indictment alleges the offence occurred between dates 8 May 2017 and 10 May 2017. The evidence suggests that Mr Rohen was in possession on the eighth when he took delivery of the consignment, and again on the ninth when he drove it from Randor Street to Shaftsbury Street when he is the driver of the Budget truck.
Pausing there, it can be seen that the prosecutor’s case to the jury — as outlined above — was that the applicant’s left palm print could not have been placed on the relevant consignment box when the consignment was delivered to Overall Auto Care. Rather, it was placed on the box either at Randor Street; or later, either at or during the journey to, Shaftsbury Avenue. Randor Street was more likely. Essential to the prosecutor’s argument was that the applicant’s palm had not made it through any gap in the plastic wrapping; the deposit had occurred during or after the process of unwrapping the consignment.
It is unnecessary for present purposes to dwell at any length upon the prosecutor’s case outlined in address against the co-accused, save to say that it was not alleged that proof of the co-accused’s participation in any criminality commenced before his having climbed aboard the Budget truck at Bell Street, that is, after the truck had left Randor Street. As the prosecutor said, vis-à-vis the co-accused:
The Crown case is that… [the co-accused]… met the Budget truck on the evening of 9 May 2017 at 7.30pm under an agreement to take possession of the consignment as distinct from the substance within it. The prosecution relies on the evidence of the… [co-accused’s]… conduct on 9 May as part of the circumstantial case against him. Concerning his possession of the substance, the Crown case is that the… [co-accused]… had the necessary intent to possess the substance within the consignment when he commenced driving the Kia van from his home at 97 Shaftsbury Street, Coburg, to King Street Airport West on the evening of 10 May 2017.
Concerning the period during which Crown alleged that the co-accused and the applicant were together in the truck, the prosecutor said:
Having picked up… [the co-accused]… the truck then travels through a series of side streets to his residence at 97 Shaftsbury Street, Coburg, where between 7.34 pm and 7.50 pm, the consignment is unloaded and left behind the gates to the backyard overnight.
Given its importance to the resolution of the present application, it is now necessary to deal, in some detail, with the manner in which counsel for the co-accused dealt with the evidence of the applicant’s palm print and when, in particular, it was alleged by the co-accused’s counsel that the applicant’s palm print might have been deposited on the relevant consignment box.
The thrust of the co-accused’s counsel’s closing was that the two senior persons connected with the consignment (DA and JT) had every opportunity to open and access the consignment (that is to say, open the boxes and obtain the drugs) from the point almost immediately after the consignment had been driven away from Overall Auto Care. But it was argued that this was not what DA and JT did. The reason for this was clear, so it was submitted. The contention made by the co-accused’s counsel was that those most intimately connected with the importation had to allow a period of, as it were, protective grace when the consignment might be intercepted by authorities.
As it was put by the co-accused’s counsel, DA and JT must have said to themselves: ‘if we lose the shipment, don’t get caught yourself’. Thus, so the co-accused’s counsel argued, the co-accused constituted a ‘shield’ for DA and JT. As counsel put it: ‘why tell him… [the co-accused]… anything?’. In other words, the case developed by the co-accused’s counsel in closing was that his client was essentially an ‘innocent dupe of very clever people’ — a person who, if he was found with the consignment, could prove no connection with the senior criminals. Or, as the co-accused’s counsel put the matter later on: ‘(t)he whole point of this — the whole point was to have someone who had no idea look after it’. It was put that it was the wish of both DA and JT ‘to park the truck with the bomb in someone else’s garage’.
In light of this theory, but no doubt cognisant of the prosecutor’s alternative case concerning the deposit of the applicant’s palm print (which suggested that this palm print could have made contact with the consignment, by means of a process of ‘some’ unwrapping at some point after it had left Randor St right up to the time of the consignment’s delivery to 97 Shaftsbury Avenue — a period which included when the co-accused was in the applicant’s presence), the co-accused’s counsel felt the need to deal specifically with what counsel termed ‘this vexing question about Rohen’s fingerprint’. And so the co-accused’s counsel put the following to the jury:
Now, this handprint of… Rohen – is found in a place and what’s been sort of urged as I understand – I think I’ve got it right – that the wrapping didn’t come off until… [the co-accused]… took it off prior to loading it in the van – shortly which I’ll come to – but therefore, his handprint could not have effectively – ergo couldn’t have got on it before that point in time. Well, let’s have a look at the evidence.

The co-accused’s counsel then drew the jury’s attention to how it was that the consignment boxes had been wrapped together when they were intercepted by the authorities, and also to how they had been re-wrapped after the process of substitution had taken place. When the boxes were in that latter condition, the co-accused’s counsel asked the jury to note — by reference to relevant photographs — what he argued was a ‘gap… [in the plastic]… where it doesn’t cover’. Counsel submitted that:
(Y)ou’ll see the region in where the fingerprint (sic) is meant to be found is in that region where there’s no plastic over that part of the box – I appreciate there’s the box on top.
Counsel for the co-accused argued that the box under which the applicant’s palm print was found had the capacity to alter its position during the process of the consignment’s general movement and transportation. Counsel drew attention to the prospect of movement of the boxes (notwithstanding their being wrapped together) while the consignment might have been manhandled by a number of persons (which, given the consignment’s weight, would have been necessary). Counsel said:
It’s not a miracle at all. Who would’ve thought. In the exact vicinity of where there is no plastic covering the boxes is where the palm print is found, and I say palm print, not a fingerprint. You’ll work out for yourself how awkward it would be to try and move those three boxes still together. Now, we know they were moved off the pallets at Randor Street because the pallets are still in the skip where we saw them loaded into at Overall Care. What else do we know. What’s another piece of circumstantial evidence that assists in drawing the conclusion they were moved off the skip. The knife that – as the informant said – extraordinarily found just on the side. You can’t make this stuff up. But of course what’s a knife doing there, because if you look back at the photos, you’ll see part of the plastic goes down onto the pallet.
Counsel then focused upon the process that he said must have been involved in moving the consignment off the pallets that could be seen left in the skip at Randor Street. He suggested that the consignment would have had to have been ‘manhandled’ off the pallets and out of skip through the skip’s open gate. He suggested that this process would have had to involve ‘more than one person, that’s for sure’ and have necessitated ‘someone in the middle keeping the balance on the top one’. He argued:
You’ll be shocked how heavy they are. And so manhandling and moving that with some attention to the top box so it doesn’t topple over or whatever because of the weight distribution. What’s the law of averages on where the palm print is found in the vicinity of the part there’s no plastic. QED. And I said they’re not fixed, the top box is not fixed, so they’re just manhandling them to get a hundred kilos off that pallet and down obviously out of the skip and obviously ultimately again – there’s no suggestion of a forklift here – so this hundred kilos needs to be lifted into the Budget vans… But when you just feel how heavy that is - this has to be lifted, this 90 kilos, with weight at the top of it into a Budget van. So there’s no mystery about this palm print. There’s none because what’s important about Rohen’s case… but it’s a circumstance where he never reappears in the context of relevantly, after renting the Budget truck. So it proves nothing… And all I’m using that is as an example. When you examine the photographs, not surprisingly, the answers are there. You don’t get a palm print without touching it. And there’s no doubt this wrapping stayed on which I’m going to come to in a moment until… [the co-accused]… tore it off.
The co-accused’s counsel then moved to the events of 10 May 2017 at Shaftsbury Avenue and, inter alia, the evidence which suggested that the co-accused tore the packaging of the consignment as it was being placed into the Kia van at around 5:25 pm.
At the conclusion of the co-accused’s counsel’s final address, the applicant’s counsel commenced his final address. This took up the rest of that particular afternoon; it dealt with matters immaterial to the disposition of this application. The case was then adjourned until the following day, a Friday. Due to a juror’s illness on the Friday, the matter was further adjourned to the following Monday. Just prior to that adjournment the issue of the applicant’s palm print was raised and, in particular, how the palm print had been dealt with in closing by the co-accused’s counsel. The applicant’s counsel said: ‘I have to deal with that somehow’.

A discharge application

The following Monday, the applicant’s counsel applied for a discharge of the jury in respect of his client. The applicant’s counsel based this application upon ‘the remarks made in the trial of… [the co-accused]… by… [the co-accused’s counsel]… about Randor Street’. At least initially, the trial judge appeared receptive to the application. Indeed, the trial judge observed that he had ‘never seen anything more remarkable in my life now that I understand the thrust of it’. The applicant’s counsel complained that he now not only had to challenge the arguments made by the prosecutor; he was also now required to challenge arguments made by the co-accused that he did not expect. These new arguments the applicant’s counsel described as a ‘categorical proposition that the left hand palm print of my client was deposited at Randor Street’. The trial judge observed that ‘the Crown probably didn’t put as detailed an argument about it occurring [at] Randor Street… as the co-accused did’.
The applicant’s counsel drew attention to the fact that the prosecutor’s, and the co-accused’s counsel’s, arguments had been in the jury’s minds ‘since Thursday’ and that he did not wish to be ‘highlighting the issue’. The judge considered that a prophylactic direction could perhaps be given; namely, one to the effect that:
Unless… [the jury are]… satisfied that… [the applicant]… was driving the truck at and around Randor and after,… beyond reasonable doubt, they can’t find possession.
The trial judge observed that what had occurred, namely, the subject matter of the applicant’s counsel’s complaint, was ‘not dissimilar to the so called cut-throat defence’. Nevertheless, the judge said that he did not ‘presently… see any rational reason for why it has to be cut-throat in this case’. His Honour acknowledged that ‘(t)hey’re completely distinct alleged periods of… possession’.
The applicant’s application for a discharge of the jury was, in a practical sense, not dissimilar to an application for a separate trial on behalf of his client; it was presumed by all — for instance — that if the jury were discharged in respect of the applicant then the ‘[co-accused’s]… trial will continue’.
The prosecutor opposed the discharge application. He said that the matter of the applicant’s palm print, and the manner with which it had been dealt in the co-accused’s address, was ‘an issue we had to face in any event’. As the prosecutor put it:
The Crown said, on the evidence available, the palm print could only have occurred on Thursday the ninth either at Randor Street or in the journey up to Shaftsbury Avenue.
But the judge still struggled to see how it was that the co-accused’s counsel’s address, insofar as it dealt with the applicant’s palm print, exhibited any ‘connection to the case of [the co-accused]…’. Nevertheless, the judge indicated that he was:
disinclined to discharge because it’s such a high test and I think things can be said to the jury to move them away from it, including a comment by me… taking up your proposition about the knife; that they shouldn’t get too carried away by what the … [co-accused’s counsel]… said about the knife because it would’ve been there for any reason, including cutting those – well, would it be necessary, yes, to cut the stays or not?
It was at this point that the co-accused’s counsel offered an explanation for why he had addressed as he had. He explained, in some detail, the forensic significance of his focus upon the opportunity for the applicant’s palm print to have made its way onto the consignment at Randor Street. The co-accused’s counsel explained that the ‘only inference’ was that the knife was ‘clearly used to cut the Glad Wrap which was the only way it was attached to the pallets’. This meant, so counsel stated, that:
[The boxes] stayed in their bundles of three and two but the anchor, in so far as it went from the plastic, was removed to (sic) the pallets… (s)o you cut that and the bind is lost. It’s not going to leave any packaging.
The co-accused’s counsel continued:
[The applicant’s] counsel knew I was going to address on it, maybe not to the extent of it before I did. I’m not going to go into discussion between counsel.
The co-accused’s counsel said that the ‘issue of the packaging’ had always been very important to his client’s case, namely, to draw attention to the difference in the nature of packaging that was found at Shaftsbury Avenue as opposed to where the consignment was finally located. Then, perhaps cutting to the heart of the matter, the co-accused’s counsel made clear that part of his case was that there be ‘no link with us with Rohen’. The co-accused’s counsel posed the question, namely ‘where are the places the… [Rohen]… palm print could have got on the goods’ and observed:
Unloading at 97 Shaftsbury if he drove the truck; that’s one place. So I want to distance from that.
The co-accused’s counsel posited three possible places that the applicant’s palm print could have got on the consignment and, as counsel put it, all three were ‘intractably neutral’. Those three places were: (1) Overall Auto Care, (2) Randor Street, and (3) 97 Shaftsbury Avenue (after it had been delivered in the Budget Truck). Counsel said:
So I am trying to eliminate 96 Shaftsbury because I say there’s no evidence of connection with Rohen. Now, self-evidently, Rohen’s driving the truck and we get in. That doesn’t help me in my contention in relation to, it was Rohen we unloaded it with at 97 Shaftsbury. The next thing is, as I made crystal clear to the jury, all I was doing, and I made it clear this was not on instructions, this was simply on an analysis of the evidence, because it had three points; (1), when you look at the evidence, clearly the plastic did not need to be off for a palm print to get in that area; that is intractably neutral.
The co-accused’s counsel stressed, however, that the theory that he was developing was that, apart from being removed from the pallets and skip at Randor Street, the consignment boxes remained bound in plastic until this plastic was removed at Shaftsbury Avenue. Thus, as the co-accused’s counsel put it, if the applicant’s handprint was deposited at Randor Street then this occurred by means of the hand extending through the gap in the plastic in a manner not materially dissimilar to what the applicant had argued had occurred at Overall Auto Care.
Counsel for the co-accused disputed that he had put, as a positive suggestion, that the palm print had been deposited at Randor Street but not at Overall Auto Care. In his own words, counsel for the co-accused told the judge:
So my point was, at any time from when it left AFP, there are two clear positions in evidence. I left Overall to my learned friend, I didn’t know what he was going to say about that and my point was, this opportunity occurs not at 97 Shaftsbury. There is opportunity elsewhere and that was the point of it because I don’t want him at 97 Shaftsbury.
The judge was, nevertheless, of the view that the co-accused’s counsel had mounted a positive argument that the palm print was deposited at Randor Street, and not at Overall Auto Care. Despite this, the judge did come to appreciate that the whole purpose of the co-accused’s argument concerning the palm print was ‘to discount any chance that the palm print got on the box at Shaftsbury’. The judge considered that this could be told to the jury. The applicant’s counsel maintained that his understanding of what had been put by the co-accused’s counsel was that ‘it was categorical that the print… was deposited at Randor Street’.
The judge contemplated that he would give a corrective direction calculated to encourage the jury to ‘disregard all of the colour and movement which may distract’ the jury from what the co-accused’s counsel was ‘really saying’. But the applicant’s counsel maintained his application for a discharge of the jury. The prosecutor thought that ‘something needs to be done about it’ and agreed with the judge that the jury ought be told that they were to ‘disregard’ any argument put by the co-accused’s counsel ‘about the handprint happening at Randor Street’. The judge reiterated that the ‘only fair way’ of putting the matter to the jury would be to direct them:
that unless they find beyond reasonable doubt that he’s driving the truck at Randor Street and following, they can’t find that second possession in my view.

The applicant’s counsel’s final address

The applicant’s counsel continued with his final address. He dealt specifically with the suggestion that his client’s palm print made contact with the consignment at Randor Street. Counsel sought to undermine this suggestion by arguing that there was a lack of evidence connecting his client with Randor Street in the first place. It was submitted that while the Budget truck was hired and initially driven by the applicant’s partner (with the applicant following close behind) at around 5:00 pm on 9 May, there was insufficient evidence to connect the applicant to the Budget truck when it arrived, a little over an hour later, at the Randor Street address. The applicant’s counsel argued:
the overwhelming evidence of this case, or certainly the evidence you couldn’t rule out is that palm print was deposited by Jacob Rohen at Overall Auto Care.
Developing this argument further, the applicant’s counsel submitted that:
You know it has that area and that weakness in the plastic, what you also know is that the truck is driven for about half an hour by the controlled delivery officers. You know nothing about how it was secured in the back of that truck, you know nothing about its presentation at the time it arrives at Overall Auto Care.
Counsel called attention to the fact that the boxes were not glued together and that, in consequence of the moving process, ‘things can and do move’. He said that the applicant ‘helped push those pallets to keep them stable’. More particularly, it was submitted that:
What we know when it arrived is that Mr Rohen assisted with the unloading of the pallets… (s)o, there is clearly a scenario here that Mr Rohen is in contact with the pallet… that the actions of Mr Rohen are consistent with keeping it stable.
Counsel took the jury to photographs where the palm print was found as well as expert evidence adduced that pertained to the palm print’s orientation. Counsel submitted that:
That is significant… because… it has Mr Rohen’s palmprint pointing in the direction which you may expect someone to do to keep something like that stable. And you have evidence from Mr Schembi… [one of the undercover delivery drivers]… that Mr Rohen was assisting to stabilise the pallets.
As to the prosecution’s argument that the area where the palm print was located was under a top box, counsel argued that, by reference to the photographs, ‘you can clearly see a cardboard space’ and, as such:
you can’t exclude the possibility that there has been some movement along of that box, both in the transporting of it to Overall Auto Care, but also the movement and the unloading of the pallets.
The applicant’s counsel told the jury:
Mr Rohen’s palm print, left palm print, when you think about it in terms of keeping something stable, you can’t rule out the reasonable possibility that his left arm was there and his other hand is somewhere around here, to keep it stable. And you’ll appreciate what that does to the prosecution case, because what it opens up is the reasonable possibility that that left palm print was deposited at Overall Auto Care. And in fact my submission to you is that the evidence powerfully points towards that particular fact.
The evidence that you have about deposition of the finger print at Randor is really bereft of any great significance, certainly nothing you could say, look, I would be satisfied making any finding that there was deposition of the fingerprint at Randor, given this evidence about Overall Auto Care. I mean, this – just realise the significance of this; this is forensic evidence, this was forensic evidence which was not contested in this trial by Mr Rohen, and it’s not contested because, as you are now aware, it coincides with the evidence given by Detective Schembi, that he had contact, he tried to stabilise and assist with the unloading of the pallets.

The judge’s charge to the jury

The judge made clear to the jury that the Crown alleged two occasions of possession against the applicant:
Possession of it by his behaviour in respect of it at Overall Auto Care on the 8 May and later, possession of the consignment when, as the Crown alleges, he picked up the consignment and drove it away in the Budget truck at Randor Street.
Then, during a break in the charge, and in the absence of the jury, the following exchange occurred between the judge and counsel:
HIS HONOUR: As to this Randor Street issue, I understood that I was told and that was part of [the co-accused’s counsel’s] address to the jury, effectively if not expressly, that the knife may have been necessary to remove the consignment from the pallets but when I’ve looked at the photographs, the plastic over the boxes don’t seem to connect to or attach it to the pallets.
THE PROSECUTOR: That’s correct.
HIS HONOUR: They just seem to sit there.
THE PROSECUTOR: They do.
HIS HONOUR: I’ll avoid that aspect like the plague, I think. Do you want to say anything about that?
COUNSEL FOR THE CO-ACCUSED: No, Your Honour.
The judge then dealt specifically with the question whether the applicant’s palm print might have made contact with the consignment at Randor Street. Dealing first with how it might have been open, at all, to find that the applicant had possession of the consignment at Randor Street, the judge said:
I… direct you that you could not find possession of the consignment at Randor Street and following unless you find beyond reasonable doubt that Jacob Rohen was driving the Budget truck and that he drove it away with the consignment on board.
Then, in dealing specifically with the arguments put forward by the co-accused’s counsel concerning the applicant’s palm print, the judge told the jury:
[The co-accused’s counsel] spent some time dealing with what he put as to likely circumstances of moving and managing the heavy consignment, as he described it, in the skip at Randor Street on 9 May. You may remember that part of his address to you.
This is my voice, that did not in any way, but it was revealed to me at the time concern his client or was relevant to his client. You may think that [the applicant’s counsel’s] and [the prosecutor’s] arguments about Randor Street and what happened in relation to the skip and the truck are more to the point and you may think it more advisable to concentrate on the arguments of those two barristers. However, it is perhaps important to make these comments. It is for you to decide, these are comments only, this is not about the evidence and the facts, you are in charge of that, not me. However, you may also have been wondering, like me, what it had to do with… [the co-accused]…, his trial. Ultimately, I have come to the understanding that… [the co-accused’s counsel’s]… point was this.
That you, the jury, should not find that the Rohen palm print was placed on the box at Shaftsbury Avenue when it was moved to… [the co-accused’s]… home. I have seen and see no argument to you that it was. Also, as… [the co-accused’s counsel]… seemed to point out, the gap in the wrapping to which all counsel have referred was there before Randor Street. It was there in the photographic evidence of what arrived at Overall Auto Care.
Again, it is my advice perhaps in this case, you not be distracted by what you might term colour and movement but on this subject of what happened at Randor Street, the best thing might be to focus on the competing arguments of… [the prosecutor]… and… [the applicant’s counsel]… on that…

Again, later, the two stages of possession, as alleged against the applicant, were outlined:
For Jacob Rohen, it must be proved beyond reasonable doubt, 1) that he had possession of the consignment itself, either at Overall Auto Care on 8 May, or took possession in the Budget truck at Randor Street on the evening of 9 May.

Submissions in this Court

As noted above, the applicant’s sole ground of appeal alleges that: ‘(a) substantial miscarriage of justice occurred because of submissions made in the closing address on behalf of the co-accused’.
In writing, the applicant submitted that there were essentially nine reasons why the co-accused’s closing had caused a substantial miscarriage of justice.
First, it was submitted that the question of whether the applicant’s palm print was deposited at Overall Auto Care on 8 May 2017 or at Randor Street was ‘irrelevant’ to any issue joined between the prosecution and the co-accused given that the co-accused’s involvement with the consignment was only said to have commenced after the co-accused entered the Budget truck after it had left Randor Street on its way to Shaftsbury Avenue.
Secondly, it was put that any case made by the co-accused in favour of the applicant’s palm print being deposited at Randor Street must have been made without the co-accused’s instructions. Moreover, there was no contention by the prosecution that the applicant and his co-accused were bound together by any suggestion of formal, or legal, complicity.
Thirdly, it was submitted that the co-accused’s defence was not a ‘cut-throat’ defence. Thus there was no legitimate forensic purpose in the co-accused’s counsel connecting the applicant’s palm print with Randor Street.
Fourthly, it was submitted that the co-accused’s counsel’s case for linking the applicant’s palm print with Randor Street was ‘highly speculative and did not have a proper evidentiary basis’. ‘In short’, it was submitted, this particular case ‘grossly overstated’ the evidence.
Fifthly, it was submitted that the co-accused’s counsel’s closing was significantly prejudicial to the applicant in that the prosecution’s case for when it was that the applicant’s palm print was deposited on the consignment was ‘amplified and supported by submissions made on behalf of… [the co-accused]… in circumstances where there was no true dispute between the prosecution and… [the co-accused]… on that issue’. Closing in that manner by the co-accused’s counsel, so it was submitted, ‘impermissibly divested an unfair advantage to the prosecution on a critical issue that was, in truth, really a dispute between… [the applicant]… and the prosecution’.
Sixthly, it was submitted, essentially, that the applicant’s counsel had been given no warning that the co-accused’s counsel might close in the manner that he did. I understood this submission to contend that any assertion by the co-accused that the applicant’s palm print was deposited at Randor Street was not reasonably foreseeable.
Seventhly, it was put that any attempt by the applicant’s counsel to ‘counter’ what had been said by the co-accused’s counsel ‘would only have highlighted the issue’ and, as such, would have been ‘counterproductive’ to the applicant’s ‘best forensic interests’. It was submitted that for the applicant’s counsel to have dealt with this matter in his closing ‘would have been to give credence to submissions that simply should not have been made’.
Eighthly, it was put that because of the order of addresses, and the fact that there was a period of three days between the conclusion of the co-accused’s closing address and the ‘substantive part’ of the closing address on the part of the applicant, the impact of the co-accused’s closing address was ‘likely to have been fixed in the minds of the jury’.
Finally, in writing, it was said that the attempts by the trial judge to cure the alleged prejudice, though ‘laudable’, were insufficient to ‘cure’ what had made the trial unfair.
Oral submissions made on behalf of the applicant at the hearing of the application echoed, and developed further, what had been submitted in writing. Nevertheless, to some extent the oral submissions, as I perceived them, departed somewhat from what had previously been set forth in the applicant’s Written Case. It appeared — ‘theoretically’ — as it was put, to be conceded orally that, at least prior to the judge’s charge to the jury, there was a proper forensic purpose in the co-accused’s counsel closing in the manner in which he did concerning the timing and location of the applicant’s palm print. This was so notwithstanding that counsel for the co-accused may have misunderstood the Crown case by thinking that it was being alleged against his client that the palm print became deposited on 10 May at Shaftsbury Avenue just prior to the co-accused loading the consignment into the Kia van.
The oral submissions maintained, nevertheless, (1) that the jury would not have understood any proper forensic purpose lying behind the co-accused’s counsel’s concentration on the timing and location of the deposit of the applicant’s palm print (largely because, it was submitted, the judge had struggled to do so); (2) that the arguments made in aid of any such proper forensic purpose, whereby a ‘positive’[3] case that the palm print was deposited at Randor Street had been mounted, went beyond what the evidence could reasonably bear and was prejudicially unnecessary (given all that needed to be said was, as the Crown had put it, that the deposit of the palm print at Randor Street was a possibility, even if a highly likely possibility); and (3) that the co-accused’s argument about the deposit of the applicant’s palm print was, ultimately, entirely gratuitous and irrelevant given that the jury had been directed in a manner that removed any proper forensic purpose from relevant consideration.
[3]Characterised by the co-accused’s counsel’s use of phrases like ‘there’s no mystery about this’ and ‘QED’.
Counsel highlighted the alleged prejudice to his client inherent in the applicant having to fight a case essentially on two fronts. While it was the Crown case that it was highly likely that the palm print was deposited at Randor Street, the Crown did not present such detailed argument like the co-accused’s counsel, and the co-accused’s counsel’s argument was — in any event — different to what had been presented by the Crown: whereas the Crown’s theory of deposit at Randor Street rested on such having occurred after the consignment was, at least to some extent, unwrapped; the co-accused’s argument adopted the theory of the deposit taking place through a gap in the wrapping.
The applicant, in this Court, drew attention to the error committed by the co-accused’s counsel in contending that the knife found with the skip at Randor Street had been used to dislodge the consignment from the pallets. This matter was not pressed in support of the applicant’s overall submission concerning the present ground of appeal.
The respondent submitted that in light of the fact that the prosecutor had closed on the basis that the applicant’s palm print could only have come into contact with the consignment during the process of its dismantling, and that this closing countenanced such dismantling having taken place ‘at some point between when… [the applicant]… collected the consignment from Randor Street, picked up… [the co-accused]… and helped unload the consignment at… [the co-accused’s] address’ (Shaftsbury Avenue), the argument made by the co-accused’s counsel to the effect that the applicant’s palm print made contact with the consignment at Randor Street ‘was necessary to support… [the co-accused’s]… defence’. That argument was logical, forensically, so it was submitted, because it was plain that the co-accused would have to seek to distance himself from the applicant given the applicant’s apparent greater overall involvement in the enterprise.
It was submitted, further, that the closing delivered on behalf of the co-accused did not foreclose on the palm print being deposited on the consignment at Overall Auto Care[4] and there was no reason why the jury might have understood it in this way; after all, the applicant’s and the co-accused’s counsel were united on the means of such deposit, namely, that it took place by placement of the applicant’s hand through a gap in the plastic wrapping and not, as the Crown alleged, either during or after the process of unwrapping.
[4]Or, in other words, the co-accused’s counsel did not present a ‘positive’ case for deposit at Randor Street.
It was emphasised, also, that it was the Crown case, after all, that the applicant’s palm print might have been deposited on the consignment at Randor Street. It was submitted that the co-accused’s argument concerning deposit at Randor Street was properly grounded in the evidence and that what the trial judge said to the jury, either by way of comment or direction, entirely removed any prospect of unfair prejudice.

Consideration

As Gibbs ACJ explained in Maric v The Queen:
(W)hen a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction.[5]
[5](1978) 52 ALJR 631, 634 (Gibbs ACJ, Mason J agreeing at 636, Jacobs J agreeing at 636, Aikin J agreeing at 637).
The refusal to discharge the jury, by itself, does not give rise to a ground of appeal.[6] Rather in such an appeal the usual principles applicable to an appeal against conviction apply, ‘thus the fundamental question is whether there has been a substantial miscarriage of justice’.[7]
[6]See Dragojlovic v The Queen [2013] VSCA 151, [169] (Redlich and Weinberg JJA and Bell AJA); Qadir (a pseudonym) v The King [2023] VSCA 155, [24] (Priest, Walker and Kaye JJA) (‘Qadir’).
[7]Qadir [2023] VSCA 155, [24] (Priest, Walker and Kaye JJA).
Pursuant to s 276 of the Criminal Procedure Act 2009 (‘CPA’) this Court must allow an appeal against conviction if the appellant satisfies the Court that as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or for any other reason there has been a substantial miscarriage of justice. In any other case, this Court must dismiss an appeal.[8] In my view, in this case, there was no ‘error’ or ‘irregularity’ in, or in relation to, the trial that was productive of a substantial miscarriage of justice; nor was there ‘any other reason’ giving rise to a substantial miscarriage of justice.
[8]CPA, s 276(1)(b)-(c) & (2).
It is clear that the prosecutor had submitted to the jury that it was impossible that the palm print had been deposited at Overall Auto Care through a gap in the plastic wrapping that covered, and bound together, the boxes making up the consignment. The passages quoted above from the prosecutor’s closing make it clear that the Crown case in respect of the deposit of the applicant’s palm print was that such deposit occurred during, or after, the consignment was unwrapped and this occurred most likely at Randor Street, although it may even have occurred after departure from Randor Street right up to the point when the consignment was unloaded out of the Budget truck at Shaftsbury Avenue — which, of course, took place in the presence of the co-accused. The circumstantial case against the co-accused included his journey to Shaftsbury Avenue in the Budget truck. The prosecutor said to the jury:
The applicant’s palm print could not have been placed on that box until some wrapping was removed from it or the consignment, until some wrapping was removed from it and the top box removed from the bottom box. The evidence of Ms Karp makes that clear. That had to happen at some stage after the Budget truck attends Randor Street on 9 May. So, sometime before or when it attends at Randor Street, and between then and when the consignment is delivered to… [the co-accused’s] address later that evening…[9]
The plastic wrap had to be removed either at Randor Street and conveyed, possibly, to Shaftsbury Avenue in the Budget truck or at Shaftsbury Avenue…[10]
[9]See [24] above.
[10]See [25] above.
Thus, I consider that there was a proper forensic purpose in the co-accused’s counsel seeking to maximise opportunity for the deposit of the applicant’s palm print to have occurred at an earlier stage, including at Randor Street. As I note above, it was not apparent to me that, ultimately, counsel for the applicant in this Court disputed that this was so (at least until the judge’s charge to the jury).
As to whether the co-accused’s counsel presented, what was described by the applicant’s counsel in this Court, a ‘positive’ case for deposit at Randor Street (in the sense of such deposit being impossible, say, at Overall Auto Care), I do not think that this was so, or that the co-accused’s case would have been understood by the jury in this manner. At no point did the co-accused’s counsel tell the jury — like the prosecutor had done — that the process of deposit could not have occurred at Overall Auto Care. And it seems to me counterintuitive in the extreme to suggest that the jury might have understood the co-accused’s counsel’s closing in this way. This is so especially given that the process of deposit (that is, through a gap in the plastic) was essentially the same — as between the applicant and the co-accused, and unlike what was put by the Crown — whether the deposit occurred via a course of ‘manhandling’ at Randor Street or ‘stabilisation’ at Overall Auto Care.[11] The applicant’s counsel argued that this process of deposit could have occurred at Overall Auto Care and the Crown’s argument concerning the impossibility of deposit at Overall Auto Care was not premised on any difference between ‘stabilisation’ and ‘manhandling’. The Crown simply sought to undermine the ‘gap in the plastic theory’ in favour of reliance on a process of unwrapping.
[11]Even the judge in his directions to the jury characterised the co-accused’s counsel’s closing as having ‘seemed to point out’ that the ‘gap in the wrapping to which all counsel have referred was there before Randor Street… It was there in the photographic evidence of what arrived at Overall Auto Care’.
I note that any evidentiary deficiency inherent in the co-accused’s Randor Street palm print theory was made contingent, by the applicant’s counsel in this Court, upon acceptance that the co-accused had made a ‘positive’ case for deposit at Randor Street. I have rejected the submission that the prosecutor did make such a ‘positive’ case. But it is quite apparent, in any event, that there was a reasonable evidentiary basis for what the co-accused’s counsel said concerning how the applicant’s palm print might have come to be deposited on the consignment box at Randor Street.
I cannot accept the submission that the jury might not have understood the purpose or thrust of the co-accused’s argument concerning the applicant’s palm print even if the trial judge might have struggled at times to understand its significance. As it was, the judge did come to an understanding of matters once they had been explained by the co-accused’s counsel. In my opinion it was patently clear that once the prosecutor raised the potential for the applicant’s palm print to have become deposited on the consignment in the co-accused’s presence (either on the way to, or after having arrived at, Shaftsbury Avenue), then given the applicant’s allegedly greater involvement in the criminal enterprise and the co-accused’s case that co-accused was simply an ‘innocent dupe’ of those with greater connection to the importation, it would have been readily apparent to the jury that the co-accused would seek to maximise the potential for the palm print’s deposit to have occurred at a time earlier than the co-accused’s involvement.
I agree that it is not abundantly clear what the co-accused’s counsel meant during his address when he said of the Crown case that:
(w)hat’s been sort of urged as I understand – I think I’ve got it right – that the wrapping didn’t come off until… [the co-accused]… took it off prior to loading it in the van…
It is true that it was not alleged by the Crown that the applicant’s palm print made contact with the consignment at any point on 10 May (that is, well after the Budget truck had departed from Shaftsbury Avenue). Then again, what counsel for the co-accused said in the quoted passage above was not necessarily inconsistent with the Crown allegation that the wrapping could have come off in a manner sufficient to permit deposit of the applicant’s palm print on 9 May either at or on the way to Shaftsbury Avenue after the co-accused had entered the truck at Bell Street. The point is that I do not think that this quoted passage would have diverted the jury’s attention from (a) the alternative case of possession that the Crown made against the applicant which carried with it the prospect of the deposit of the applicant’s palm print having occurred at some point between Bell Street and Shaftsbury Avenue (inclusive) and (b) the need for the co-accused’s counsel to say something in response to that case such as emphasising the potential for deposit at Randor Street.
Nor do I think that any directions given by the judge foreclosed upon the issue and thereby rendered irrelevant what the co-accused counsel had argued concerning the applicant’s palm print. The judge said that he had ‘seen and see no argument… [put]… to you’ that ‘the Rohen palm print was placed on the box at Shaftsbury Avenue’.[12] That may have been true for when any process of unwrapping had taken place on 10 May. This statement by the judge did not account for the journey to Shaftsbury Avenue. But, it seems to me that it had been clearly put by the prosecutor that the deposit of the applicant’s palm print could have taken place at a point in time when the applicant was in the presence of the co-accused (which included at least arrival and unloading at Shaftsbury Avenue). And, in any event, this remark by the judge was styled as a ‘comment’ such that the matter was ‘for you… [the jury]… to decide’. The jury had already been directed that any ‘comments’ that the judge might make as to the facts did not bind them.
[12]This was the passage relied upon by the applicant’s counsel in aid of this foreclosure argument.
Moreover, in no manner inconsistent with how the prosecutor had put his alternative case of possession to the jury (and how this case extended to the Budget truck arriving, and being unloaded at, Shaftsbury Avenue), the judge’s directions to the jury concerning this alternative case plainly encapsulated liability on the applicant’s part including the period when the applicant ‘picked up the consignment and drove it away in the Budget truck at Randor Street’, ‘took possession in the Budget truck at Randor Street’, or had ‘possession of the consignment at Randor Street and following’.
Still, it was alleged by the applicant that he had suffered prejudice on account of the co-accused’s counsel being permitted to make a different and far more detailed argument than had been made by the Crown concerning the potential deposit of the applicant’s palm print at Randor Street.
I agree that, at the very least, it must be recognised that had the applicant been tried separately from his co-accused, he would not have had to deal with such additional argument. But still, I am not persuaded that — in effect — the joinder of the applicant and his co-accused caused a substantial miscarriage of justice. The applicant and his co-accused were, after all, jointly charged with the same offence. The joinder, per se, was not put in issue. Thus the prima facie rule applied requiring, at least presumptively, that the applicant and his co-accused be tried together.[13] Having regard to the law that applies concerning when properly joined co-accused might be granted a separate trial,[14] I do not consider that the fair trial of the applicant was prejudiced by the co-accused’s closing or that any other reason justified overcoming the prima facie rule.[15]
[13]See R v Alexander and McKenzie (2002) 6 VR 53, 633 [25] (Winneke P, Charles JA agreeing at 80 [57], Vincent JJA agreeing at 80 [58]).
[14]See R v Demirok [1976] VR 244, 251-6 (Young CJ, Lush and Crockett JJ).
[15]See CPA, s 193(2) & (3)(b)-(c).

First, as is obvious, it was the Crown case that in all likelihood the applicant’s palm print came in contact with the consignment at Randor Street. In other words to a very large extent, and as the prosecutor emphasised on the discharge application, ‘this was an issue that… [the applicant’s counsel]… had to deal with in any event’. The present was not a case where, for instance, the Crown had either said nothing about, or had positively eschewed, any notion that the applicant’s palm print having come into contact with the consignment at Randor Street and thus where such a notion first arose during the co-accused’s closing. It was not a case, as Priest JA put to the applicant’s counsel at the hearing of this application, where the applicant had been swamped by evidence prejudicial to his interests in circumstances where such evidence was admissible only against the co-accused.
Secondly, the applicant’s counsel had every opportunity to answer the suggestion that his client’s palm print had come into contact with the consignment in the manner described by the co-accused’s counsel. And it is apparent that the applicant’s counsel took up that opportunity with vigour. In this respect, the applicant’s counsel’s closing centred on the fact that whilst it was known and conceded that the applicant was at Overall Auto Care, the evidence was much weaker when it came to the applicant’s presence at Randor Street. Moreover, and as is apparent, the applicant’s counsel presented a forceful case for why his client’s palm print was far more likely to have come into contact with the consignment at Overall Auto Care, through a process of stabilisation of the consignment on the hydraulic lift, as opposed to at Randor Street.
Thirdly, the judge directed the jury that they could not find that the applicant possessed the consignment ‘at Randor Street and following’ unless they found ‘beyond reasonable doubt that… [the applicant]… was driving the Budget truck and that he drove it away with the consignment on board’. In my view — as between the respective defence theories of deposit — the palm print evidence did not render it more likely that the applicant drove the Budget truck.[16] But where it was indubitable that the Budget truck drove into the Randor Street property and then drove out again with the consignment on board, a finding that the applicant was driving this particular truck, on those particular occasions, rendered the co-accused’s case for how the applicant’s palm print might have come into contact with the consignment at that location, in my opinion, effectively moot. In other words, as had been contemplated and notwithstanding anything that appears above, this direction in my view essentially cured any potential prejudice to the applicant that might have been thought to have arisen by virtue of the co-accused’s final address.
[16]Whether the applicant’s palm print ‘stabilised’ the consignment at Overall Auto Care or ‘manhandled’ it at Randor Street seem, on the evidence, to me intractably neutral insofar as likelihood is concerned given, especially, the detail of the case made by the applicant in favour of his palm print’s deposit at Overall Auto Care.
For these reasons the application for leave to appeal against conviction must be refused.

Sentence

The plea

The facts connected with the applicant’s offending have been summarised above. Nevertheless, on the applicant’s plea the main issue that fell for determination was how the jury’s verdict should be interpreted. In particular, the question was whether it was open to the sentencing judge to find that the applicant’s participation in the offending extended beyond any assistance that he may have provided at Overall Auto Care. The prosecutor submitted that so much was open; counsel for the applicant disagreed.
The applicant’s counsel tendered a psychological report authored by Ms Naomi Cameron. This report dealt in some detail with the applicant’s background and made reference to the applicant in the past having been diagnosed with schizophrenia. Notwithstanding this past diagnosis, it was conceded by the applicant’s counsel that the applicant’s mental condition was, and had been, relatively stable due to medication. Counsel did not place any reliance on the way in which an offender’s mental condition might lessen an offender’s moral culpability or the need for general and specific deterrence.[17]
[17]See R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
The applicant was 41 years of age at the time of sentence and had been educated to Year 9 level. Thereafter he had worked only sporadically. Counsel emphasised, nevertheless, that the applicant had had a difficult upbringing. He was the eldest of 10 siblings, five of whom suffered from cerebral palsy. This meant that the applicant had been required to act effectively as parent. His twin brother could not converse or walk and thus was in palliative care. The applicant also had to provide support to his mother and effectively act as an interface between her and the wider community. His relationship with his father was poor. The applicant did have a good relationship with his partner, but she suffered from an auto-immune disorder; this required the applicant to act as carer for her as well. The effect that the applicant’s imprisonment would have upon his family grounded a submission in mitigation based on family hardship.[18]
[18]See s 16A(2)(p) of the Crimes Act1914 (Cth). It was unnecessary for the applicant to establish exceptional circumstances in respect of family hardship: see Totaan v R (2022) 108 NSWLR 17, 36 [77], 37 [82], 39-40 [92]-[93] (Bell CJ, Gleeson JA agreeing at 50 [148], Harrison J agreeing at 50 [149], Adamson J agreeing at 50 [150], Dhanji J agreeing at 50 [151]) as well as Mohamed v The Queen [2022] VSCA 136, [81]-[93] (Maxwell P, Emerton and Sifris JJA).
Counsel emphasised the approximate five-year delay that had elapsed between the applicant’s arrest and interview, and the date of sentence.
The applicant had suffered from drug addiction (especially methylamphetamine), but he had shown signs of rehabilitation whilst on bail due to his employment as a traffic controller.
The prosecutor made reference to a number of other sentencing cases that were said to be comparative, but it was agreed that the main comparators were the sentences that had been imposed on DA and JT — the other ‘main identified entrepreneurs’ connected with the importation. The prosecution otherwise made reference to relevant sentencing factors and emphasised, inter alia, the amount of drugs contained within the consignment, the drug’s wholesale and retail values and the importance of general deterrence.

The reasons for sentence

The judge, in interpreting the jury’s verdict, made certain specific findings of fact. The judge found that the applicant had received, and had assisted in the unloading of, the consignment. He determined that the applicant had assisted also in the consignment’s placement on the skip at Overall Auto Care although, in the judge’s view, it was ‘not certain’ what ‘total role, physically’ the applicant had played in the movement of the consignment onto the skip. The judge accepted that the applicant had hired the Budget removals truck that was used to transport the consignment away from Randor Street. It was accepted, also, that the applicant had allowed others the use of his BMW vehicle to escort the transfer of the consignment in the Kia van from Shaftsbury Avenue to Airport West. The judge noted that the applicant was arrested some days later in possession of the Budget truck. The judge accepted that, at that point, the Budget truck was being used by the applicant to transport furniture from his Coburg home.
As to the applicant’s state of mind, the judge found that the applicant at Overall Auto Care meant to possess a substance inside the printers. More particularly, the judge found that:
Further, as to what that was supposed or believed by you to be, you were at least reckless about it being a border controlled drug. I would find, in the circumstances proven, that you believed it to be a border controlled drug.
As to the main issue in dispute on the applicant’s plea, namely, whether the applicant’s attempted possession extended beyond his assistance at Overall Auto Care, the judge found as follows:
I do not find beyond reasonable doubt that you resumed possession, for example, on 9 May at the Randor Street yard. I do not so find beyond reasonable doubt that you were driving the Budget truck or otherwise directly involved in the transfer of the consignment from the skip there into the Budget truck and the transfer to… [the co-accused’s]… Coburg home… I do not exclude the reasonable possibility, although unlikely, that your palm print found on part of the consignment was caused in the circumstances (both known and unknown) of your management of the consignment at Overall Auto Care on 8 May rather than at the Randor Street yard on 9 May. I do not find beyond reasonable doubt that you were present and driving your BMW in its escort of the consignment to Airport West on the following evening. It is conceded that you were not.
Notwithstanding this finding, the judge nevertheless found that the applicant’s assistance to the enterprise was ‘substantial and important to its aims’. The judge made reference to the sentences of 15 years’ imprisonment with a 10 year minimum that had been imposed on two ‘more senior players’ (DA and JT) involved in the enterprise — persons who were ‘higher in the entrepreneurial hierarchy’.
The judge noted that the pure weight of the drug was about 15.5 kilograms — more than seven times the legislated commercial quantity threshold of two kilograms. The estimated wholesale value of the drug was between $3.920.000 and $5,376.000; the estimated ‘street value’ was between $9,327,600 and $12,436,800.
The judge largely accepted what had been put in mitigation on the applicant’s behalf. He accepted that the applicant had, from his youth, been required to take up the parenting and caring role in his family. The judge was prepared to conclude that the applicant’s upbringing was ‘hard, demanding and also traumatic’. The judge accepted that the applicant was now in a committed relationship but he noted that the applicant’s partner was also in need of the applicant’s care because of her auto-immune disorder.
The judge paid heed to the maximum sentence of life imprisonment and gave consideration to the applicant’s moral culpability, the need for specific deterrence, condemnation of the offending as well as proportionate punishment. The judge considered that, in this case, ‘general deterrence’ was ‘a particularly important sentencing purpose’.
The judge, however, was prepared to take into account certain ‘moderating factors’. Such factors the judge listed as follows:
(a)The applicant’s difficult upbringing and mental health condition;
(b)The hardship that would be caused to others (the applicant’s family and partner) by virtue of the applicant’s imprisonment which would impact emotionally upon the applicant in custody. The judge thought this a ‘significant moderating factor’;
(c)The over five-year delay since applicant’s arrest and interview which the judge considered caused the applicant ‘anxiety and stress, likely made worse by knowledge of… [the applicant’s]… family and personal obligations’;
(d)The applicant’s prospects of rehabilitation, which the judge did ‘not discount’.
The judge considered various ‘comparative sentencing cases’. The judge considered that the applicant should receive a ‘lesser sentence’ than had been imposed upon DA and JT.

Submissions in this Court

In writing, the applicant submitted that the sentence imposed upon the applicant was manifestly excessive in light of the judge’s finding that the applicant’s participation in the enterprise was limited to his assistance given at Overall Auto Care and, in particular, when this assistance was placed against the context of the various ‘moderating factors’ that had been found by the judge. Counsel relied on: the delay of approximately five years; family hardship and the effect of such hardship upon the applicant; the applicant’s abusive and dysfunctional history; the serious debilitating condition (cerebral palsy) which affected numerous of the applicant’s siblings and that required his care; the applicant’s poor educational history; the applicant’s history of substance abuse looked at in conjunction with the encouraging signs of such abuse’s abatement; the applicant’s intermittent and low-skilled employment history; and, the applicant’s prospects of rehabilitation which were evident, so it was submitted, in the stable relationship that the applicant enjoyed with his partner as well as in the care that he bestowed upon his partner and family in general.
Orally before this Court, emphasis was placed upon what was described as the applicant’s ‘lack of sophistication’ in terms of his involvement in the offending. The question of ‘family hardship’ was also singled out for particular mention.
As to the first matter, it was suggested that those more senior in the enterprise had been prepared to ‘hang… [the applicant]… out to dry.’ Counsel emphasised that the applicant was a person who ‘doesn’t wear gloves’, ‘shows his face’ and ‘speaks to the person’ (namely, the person who delivered the consignment). Moreover, it was observed by counsel for the applicant that his client used his own boat licence to try and hire the Budget truck and was prepared to allow his partner to complete this transaction when it became evident that the boat licence would not suffice.
Counsel submitted that even though it was not necessary to show ‘exceptional circumstances’ to establish family hardship in this case, such family hardship as would flow due to the applicant’s imprisonment in this case, was truly, ‘exceptional’. Such exceptionality was said to arise, especially, on account of the manner in which this hardship was ‘exacerbated in the way that it was combined with delay’.
The respondent submitted that the sentence was not manifestly excessive. In writing, the respondent emphasised the importance of general deterrence in cases of this nature as well as the applicable maximum penalty of life imprisonment. Particular reference was made to: the fact that the weight of pure drug in this case (15.5 kilograms) stood at over seven times the commercial threshold (two kilograms); the wholesale and ‘street’ value of the drugs; that it could reasonably be inferred that the applicant’s participation in the enterprise was for reward; that the applicant could not rely on the mitigatory benefit of a plea of guilty; that the applicant had relevant prior convictions thus highlighting the need for specific deterrence; that the applicant’s role was an important one; that the judge’s finding of recklessness on the applicant’s part could not be viewed as a mitigatory matter; and, that the sentence imposed in no manner stood outside relevant current sentencing practices either in general, or in particular, when compared to the sentences imposed on DA and JT. Overall, the respondent submitted that the sentence imposed ‘adequately synthesised’ the applicant’s role, his state of mind, the objective seriousness of his offending and such mitigatory matters as could be relied upon.
Orally, counsel for the respondent submitted that it overstated matters to suggest, as the applicant’s counsel had done, that the applicant had been ‘hung out to dry.’ To this end, the respondent’s counsel pointed to the fact that JT had also assisted at the point of the consignment’s delivery.

Consideration

In Rosales v The Queen[19] Priest and Beach JJA listed several propositions which, among others, were determined to be of ‘particular relevance’ to offending of the kind committed by the applicant. They included the following:
(A)n offence of attempting to possess imported drugs is not necessarily in a less serious category than one of importing the drugs;
the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation or to possess the drugs;
importation and possession offences now contained in the Criminal Code (Cth) provide for a structured sentencing regime by reference to the quantity imported or possessed; and although a distinction is drawn between different drugs in fixing commercial and marketable quantities, no distinction otherwise is made between different border controlled drugs so far as maximum penalties are concerned;
although the weight of the drug imported or attempted to be possessed is not the principal factor to be considered when fixing sentence, the size of the importation, or the quantity of drugs attempted to be possessed, is a relevant factor;
any sentence imposed for drug importation, or for attempting to possess border controlled drugs, must signal to would-be drug offenders that the potential rewards to be gained from such activities are neutralised by the risk of severe punishment;
involvement at any level in a drug importation, or an offence of attempting to possess border controlled drugs, must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served; and
the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.[20]
[19][2018] VSCA 130, [21].
[20]Beach and Priest JJA cited in support of these propositions: R v Nguyen (2010) 205 A Crim R 106, 126-8[70]-[72] (Johnson J). Their Honours also cited, in this regard, Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 681-3[33]-[34] (Maxwell P) & Hoang v The Queen [2018] VSCA 86, [34] (Priest and McLeish JJA).
In order to establish manifest excess, the applicant must show that something went obviously, plainly or badly wrong in the exercise of the sentencing discretion.[21] The test is a stringent one. The question to be asked is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[22]
[21]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), quoting Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[22]R v Abbott (2007) 170 A Crim R 306, 309-10 [13]-[15] (Maxwell P, Eames JA agreeing at 312 [22]. Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
I am not persuaded that the sentence imposed upon the applicant is manifestly excessive.
As has been noted, the offence committed by the applicant carries a maximum penalty of life imprisonment. The applicant attempted to possess a very substantial quantity of cocaine — well over the commercial threshold — that was valued at millions of dollars (whether the value be assessed at wholesale or street level). His role, while limited, was nonetheless an important one; after all, he signed for the consignment containing the drugs and assisted in the consignment’s transfer away from the point of delivery. The judge, in my view correctly, characterised the applicant’s assistance as ‘substantial and important’ to the overall aims of the criminal enterprise. The applicant could not rely on the mitigating effect of a plea of guilty. The applicant had relevant prior convictions.
The applicant was able to rely upon various mitigating factors which included the various ‘moderating factors’ taken into account by the sentencing judge. Whilst the combination of those factors carried weight, in my view the sentence imposed, having regard to the sentencing principles that apply to offending of the type committed by the applicant and given the overall circumstances of the offending, gave adequate expression to the combined weight of the mitigatory matters relied upon.

As has been noted above, the Crown at the plea relied upon a number of comparative cases that were said to be suggestive of current sentencing practices for the offence of which the applicant had been found guilty. No express submission was made by the applicant to the effect that, insofar as these comparative cases might serve as relevant ‘yardsticks’[23] against which the present sentence could be measured, this sentence somehow stood outside, or was inconsistent with, relevant current sentencing practices. From my own perusal of the comparative cases put forward by the Crown,[24] it is not apparent to me that they give rise to any particular concerning manifest excess.
[23]See R v Pham (2015) 256 CLR 550, 559-60 [29] (French CJ, Keane and Nettle JJ); [2015] HCA 39 (citations omitted).
[24]I have found it unnecessary to list the comparative cases given the manner in which the sentence application was argued by the applicant.
It follows that the applicant has failed to demonstrate that the sentence imposed was wholly outside the range of sentencing options available to the judge. Leave to appeal against sentence must therefore be refused.

Conclusion

For the foregoing reasons the applications for leave to appeal against conviction and sentence must be refused.

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[2024] VSCA 1

12 January 2024