SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0081
| RAYAN JADEN SCHANKER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE and McLEISH JJA and KIDD AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 7 February 2018 | |
| DATE OF JUDGMENT: | 18 April 2018 | |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 94 | First revision: 30 April 2018 [23], [25], [82] |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Schanker (Unreported, County Court of Victoria, Judge Stuart, 4 August 2016 (Conviction)); [2016] VCC 1771 (Judge Stuart) | |
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CRIMINAL LAW – Appeal – Conviction – Attempt to possess commercial quantity of methylamphetamine – Admissibility of evidence – Whether judge erred in characterising the evidence as res gestae – Whether evidence admissible as original transactional evidence – Whether evidence could be used for hearsay purpose – Leave to appeal granted – Appeal dismissed – Evidence Act 2008 ss 60, 65, 136, 137.
CRIMINAL LAW – Appeal – Sentence – Attempt to possess commercial quantity of methylamphetamine – Traffick in commercial quantity of methylamphetamine – Total effective sentence of 18 years’ imprisonment – Non-parole period of 14 years – Whether offender wrongly categorised as a ‘principal’ – Whether offender wrongly sentenced on basis of offence of importation – Whether manifestly excessive – Leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Grant | Condello Lawyers |
| For the Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
TATE JA
McLEISH JA
KIDD AJA:
Introduction
On 4 August 2016, the applicant was convicted by a jury in the County Court of Victoria of one charge of attempting to possess a commercial quantity of an unlawful imported border-controlled drug, namely methlyamphetamine[1] (‘Indictment 1’). On 8 August 2016, the applicant entered a plea of guilty to one charge of trafficking in a commercial quantity of a border controlled drug, namely methlyamphetamine[2] (‘Indictment 2’). He was sentenced to a total effective sentence of 18 years’ imprisonment with a non-parole period of 14 years.
[1] Contrary to ss 11.1(1) and 307.5(1) of the Criminal Code 1995 (Cth).
[2] Contrary to section 302.2 of the Criminal Code 1995 (Cth).
The applicant seeks leave to appeal against his conviction in respect of Indictment 1 and leave to appeal against his sentence imposed in respect of both Indictments.
It is necessary to give a short summary of the history of this application to put in context the way the grounds of appeal have ultimately been considered by this Court.
The conviction appeal (Indictment 1)
The applicant was unrepresented at the time of preparing his written case and the accepted written case for the applicant (dated 27 May 2017) was prepared without the assistance of counsel. Prior to the hearing of this application, the applicant obtained legal representation. Several days prior to the hearing of this application, the applicant’s solicitors forwarded correspondence on his behalf confirming that he was now represented and that he intended to abandon grounds 2, 3, 4 and 7 of the conviction appeal. No further or amended written case was filed by the applicant.
The proposed grounds of appeal against conviction which were pursued are as follows:
1(a). The Authority for a Controlled Operation Number: AFP 14-15/53 under section 15GC of the Crimes Act 1914 issued to conduct a controlled operation under section 15GI of the Act was invalid and unlawful to be used for this operation as it was an authority for another operation.
1(b). Federal Agent Carswell did not have the authority to be involved in this operation.
1(c). The authority for Controlled Operation Number AFP 14-15/53. Attempt to possess a marketable quantity of an unlawfully imported border control drug, namely methamphetamine under section 307.6 by virtue of section 11.1 of the Criminal Code (Cth) a new application for an authority under section 307.5 by virtue of section 11.1 of the Criminal Code (Cth) to cover the commercial quantity should have been applied for which was known from 29 October, 2014 onwards which was not done.[3]
5. Incompetence of [trial counsel].
6. A substantial miscarriage of justice occurred due to the trial judge’s errors in:
(a) finding that exculpatory remarks made by Mr Seleman were admissible; and
(b) not refusing to admit that evidence pursuant to s 137 of the Evidence Act 2008.
[3] Emphasis added.
In oral argument, the applicant focused primarily, almost exclusively, on ground 6 to make good the application for leave to appeal and appeal. It was the only ground which was meaningfully pressed in the conviction appeal.
Relevant facts
On 17 October 2014, the Australian Federal Police (‘AFP’) obtained a Controlled Operation Authority pursuant to s 15GI of Part 1AB of the Crimes Act 1914 (Cth) (‘the Authority’). The Authority concerned the investigation of importation and attempted possession of a marketable quantity of a border controlled drug, namely methlyamphetamine. It identified several targets of the investigation by name, but not the applicant. It authorised named law enforcement officers and named civilians to engage in certain criminal conduct in furtherance of the investigation.
On 27 October 2014, customs officers working at DHL Express Freight Melbourne seized an overseas mail package. The package was marked ‘1 of 2’ (‘package 1’). It was addressed to Sam Fernando of 171 Glengala Road, Sunshine West, Victoria and the sender was noted as Dong Shun, C/O Ltd, Mr Xiang He of the People’s Republic of China. The contents of this package were listed as ‘bicycle’.
On 28 October 2014, customs officers retrieved and seized another package, which had also arrived the day before and was marked ‘2 of 2’ (‘package 2’). This package bore the same airway bill number as the package examined on the previous day, although it had arrived on a different flight.
The following day, 29 October, the AFP deconstructed both consignment packages. Both packages contained a bicycle frame, a number of wheels and numerous bicycle seats. In addition to two bicycle seats fixed to frame poles, there were 15 loose bicycle seats in the two consignment packages and in each of these seats a quantity of crystalline substance was concealed. Forensic analysis revealed that 15 bicycle seats contained a total of 5896 grams of pure methlyamphetamine, with a total weight gross of 7.425 kilograms. The quantity of pure methlyamphetamine was not less than 7.8 times the threshold for a commercial quantity applicable to that drug.
On this date, the AFP obtained a variation of the Authority which added additional law enforcement participants and authorised additional controlled conduct for participants (‘the Variation’).
The AFP removed the methlyamphetamine from each of the 15 bicycle seats and fully substituted an inert substance. A Federal Agent Carswell was involved in this process. The packages were subsequently reconstructed for the purposes of undertaking a controlled delivery of the consignment.
Two days later on 31 October, the AFP attempted a controlled delivery of the two packages to 171 Glengala Road, Sunshine West. The premises were vacant and no delivery was made.
Three days later on 3 November, a person purporting to be the addressee of the consignment, Sam Fernando, contacted DHL Express and enquired about delivery of the consignment. The caller indicated that the delivery had been attempted to an old address. The caller requested that the two packages be delivered instead to 601 Little Collins Street, Melbourne, which was a storage business called The CBD Storage Place, to storage unit D82. The storage unit was leased to a man named Omar Seleman.
On 6 November, the AFP delivered the two packages containing the substituted substance to the storage facility. To facilitate collection, an AFP member (Federal Agent Ty Thornton), pretending to be an employee of the storage facility, attempted to contact Mr Seleman by telephone on three occasions. Seleman returned these calls around 1.00pm. On the telephone Seleman stated that he was not aware of the packages, queried the nature of the packages and said that his wife might have been expecting some wine. Seleman initially asked if the packages could be placed in his storage unit, but was told this was against policy. This conversation was recorded (‘the telephone conversation’).
At 1:30 pm, Seleman attended at the storage facility to collect the packages. He had a further conversation in person with Federal Agent Thornton and repeated his earlier assertions: that he was not expecting the packages and all he was possibly expecting was a box of wine for his wife. With the assistance of Federal Agent Thornton, Seleman collected the packages and placed both packages into his storage unit D82. This conversation was also recorded, though the recording was poor (‘the storage unit conversation’).
Later that evening, around 7:30 pm, Seleman re-attended at the storage facility with the applicant. The applicant and Seleman arrived in a vehicle registered to and driven by the applicant. This was captured on CCTV footage. CCTV footage also showed the applicant and Seleman inside parts of the storage facility over a period, but did not depict the storage unit itself or the unpacking of any boxes. Sometime after their arrival, CCTV footage captured the applicant standing next to his vehicle with a bicycle in his hands. Seleman was observed approaching the vehicle with a package on a trolley. Seleman unloaded the trolley and placed the bicycle and the package into the boot of the car. The applicant and Seleman drove away in the applicant’s car.
The following day the AFP attended at the storage facility and located empty cardboard boxes and plastic wrappings in unit D82 and an empty unit nearby. The applicant’s fingerprints were located on one of the boxes.
On 26 November 2014, the AFP executed a search warrant at the applicant’s usual place of residence in Caroline Springs, seizing a sum of $24,000 in cash and two bicycle seats which were part of the consignment subject of the controlled delivery. The police also located a piece of torn paper in the applicant’s vehicle, in an air vent under the driver’s seat, with the handwritten words ‘Sam Fernando, 171 Glengala Road, Sunshine West, 0470 182 944’, being the addressee details of the original consignment.
That same day the applicant was charged and arrested for this offending and the offending subject of Indictment 2.
Omar Seleman made a formal police statement in respect of the events surrounding the collection of packages from storage unit D82 on 6 November. In this statement, he implicated the applicant. After making this statement, Mr Seleman went overseas in late 2014. By the time of the applicant’s trial he was not available to give evidence.
Ground 6 – Admissibility of Seleman’s hearsay assertions
The course of the trial argument
Before addressing the applicant’s arguments in relation to Ground 6, it is necessary to first examine the basis on which the evidence was admitted by the trial judge, the positions taken by the parties, and their treatment of the evidence at trial.
The prosecution filed a hearsay notice seeking to admit, pursuant to s 65(2)(b) and (c) of the Evidence Act 2008 (‘the Act’) the police statement of Seleman, in which he directly implicated the applicant. In the police statement Seleman said, amongst other things, that the applicant effectively admitted to him that the packages were his.
During the course of argument, the judge highlighted the inherent unreliability of such assertions, made by a person implicated in the criminal wrongdoing against a possible accomplice in the form of a police statement made after the event. In the face of these judicial exhortations, the prosecution subsequently abandoned this application.
However, the prosecution, nevertheless, sought to admit, pursuant to s 65(2)(b) of the Act, the evidence of the telephone conversation and the storage unit conversation for a hearsay purpose.
It was common ground that Seleman was relevantly ‘unavailable’.
The prosecution sought to rely upon the representations made by Seleman in these conversations, which were to the effect that he was not expecting these packages and had no knowledge of their contents. The prosecution sought to rely upon those assertions to establish the truth of the facts which were asserted.
The prosecution’s position was that these assertions were relevant to rebut the anticipated defence, or at least one component of it.
The defence case at trial was that Seleman was criminally involved in attempting to obtain possession of the drugs. He enlisted the applicant as an innocent ‘dupe’ or ‘stooge’. Soon after Seleman learned of police involvement in the case, Seleman fled the country, leaving the applicant behind as ‘the patsy.’ During pre-trial argument, it was understood that this would indeed be the defence case.
Trial counsel for the applicant conceded that the telephone call and its contents were relevant and admissible for a non-hearsay purpose, namely to explain how Seleman came to be at the storage unit that afternoon (when he and Federal Agent Thornton moved the boxes to Seleman’s storage unit D82) and to then explain how Seleman and the applicant came to be at the storage unit that night unpacking and collecting the packages (which was captured on CCTV).
In the course of argument, the applicant’s trial counsel said ‘the jury need to hear the telephone call, in my submission.’
He went on to submit that the trial judge should nevertheless place a limit upon the use which could be made of the conversation:
In my submission, they shouldn’t be permitted to use it as evidence of the truth of its contents, they should only use it for the purpose of understanding why certain things took place.
Having initially resisted the admission of the storage unit conversation, the applicant’s trial counsel later[4] accepted that it too was relevant and admissible upon the same basis as the telephone conversation. He also sought to invoke the same prohibition on hearsay use.
[4]During argument on the following day.
During the course of argument on the first day, the trial judge introduced the doctrine of res gestae into the discussion:
My preliminary view is that there being no objection to the telephone call to be used for a particular purpose, namely to explain how the transaction unfolds, how he becomes aware of it and why he attends, is admissible for that purpose. It would be admissible as part of the res gestae regardless of s.65.
On the second day of argument, and before ruling, His Honour expressed what he called some ‘strong preliminary views’ as to the admissibility of the conversations:
I would have thought that all conversations relating to this part of the importation process by either of the accused[5] was part of the res gestae and relevant in all ways, subject to my discretion to restrict the use to which those statements might be made. So, I put aside at this stage, and whether I’m right or wrong I’ll hear argument, the need for the s.65(2)(b) matters to be satisfied, rather approaching it on the simple basis that this is all relevant evidence going to the res gestae of the importation process on this one day.[6]
[5]We interpolate to say that there was only one accused. Seleman was not an accused person and nor did the Crown say he was an unindicted accomplice.
[6] Emphasis added.
And later, his Honour went on to say:
It's evidence - well, as I have said, capable, as I see it in this preliminary state of mind, of explaining what, and giving substance to the fact that that same day, within a short period of time, the accused, Mr Schanker, is on the scene, who happens to have the details of the original addressee in his car when he is later on searched that same month.
During this discussion, the prosecutor (who had until this point been relying upon s 65(2)(b)) embraced this so called res gestae basis for the admissibility of the evidence, but maintained her argument that the evidence could also be used for a hearsay purpose, so as to rebut the anticipated defence that the applicant was unwittingly assisting Seleman.
When trial counsel for the applicant was invited to respond, the following exchange occurred:
His Honour: [Defence Counsel], as I say, these are preliminary views, I might have expressed them strongly but what do you say?
Defence Counsel: As the views were expressed by Your Honour, my view at this stage is that it’s probably unarguable.
His Honour: Yes.
Defence Counsel: I think the evidence is probably – is admissible. If I come to a different conclusion, then I would obviously seek to re-ventilate the point but I can’t argue it at the present time….
While not entirely clear, we take it that trial counsel’s concession as to admissibility is confined to the evidence being admitted as original evidence only, while maintaining there should be a prohibition on hearsay use.
The impugned ruling
In the ruling the trial judge characterised the defence position as follows:
[Defence counsel] accepted that the telephone conversations[7] were admissible as part of the res gestae but sought to limit the use to which that telephone conversation could be used, namely that it could not be used to establish that Mr Seleman did not expect the packages and was ignorant of the contents of the packages, but relevant to explaining the process which caused him to come to collect the packages and place them in the storage unit.
[7]In the ruling the trial judge makes reference to the admissibility of two telephone conversations: one between the Federal Agent and Seleman (to which reference has been made in this judgment) and secondly, a telephone conversation apparently at the storage unit. In fact, there was no such telephone conversation at the storage unit. There were a series of conversations in person at the storage unit between Seleman and the Federal Agent and the employee working at the storage unit. His Honour’s reference to the ‘telephone conversations’, must be taken to be a reference to the initial telephone conversation (between Seleman and the Federal Agent) and to the storage unit conversation (in person involving Seleman and the Federal Agent and the employee). It was this evidence which was admitted as a consequence of this ruling.
It may not have been strictly correct for the trial judge to say that the applicant’s trial counsel accepted the conversations were admissible as part of the res gestae. It was his Honour who employed the term res gestae, not trial counsel. However, significantly, trial counsel for the applicant did accept that the evidence was relevant, in an original (non-hearsay) way, to explain the applicant’s attendance with Seleman at the storage unit on the night in question.
The trial judge summarised the prosecution’s argument as follows:
The Crown seek to rely upon Mr Seleman's purported ignorance as demonstrating that he, at that point of time, was not involved in the importation process and therefore by exclusion only Mr Schanker who could have known of the true contents of the boxes…
As to his conclusion, and the basis for admissibility, his Honour stated:
It is my clear view that not only the things done but the things said during the course of this part of the importation process by any of the parties to it is relevant and admissible. In particular, it would be a curious thing for evidence to be given by Mr Thornton about what was done when Mr Seleman arrived to collect the parcels but not what was said.
…
There is clearly open an inference that whether Mr Seleman was initially ignorant of the arrival of these packages, it was to Mr Schanker which he turned. Such an inference is open regardless of whether or not Mr Seleman knew of the packages or not or later on became aware. The important point is that he turned, on the Crown case, to Mr Schanker, who had, importantly the details of Mr Fernando, his name, his address and a contact number, all of which was for the original address destination.
Viewing the evidence as a whole, it would be extraordinary for all statements made contemporaneous to this importation process by the parties to it to be inadmissible. I am satisfied that all this evidence is admissible and insofar as it goes to evidencing a state of mind of one of the parties at a particular point, it is admissible for that purpose as well, explaining, potentially, why Mr Seleman had to turn to another source and, on the Crown case, the other source being Mr Schanker, the accused.
This evidence is also capable of excluding a hypothesis that may be put forward that Mr Schanker was the dupe of Mr Seleman. Whether or not that is so is a matter for the jury but all such matters are relevant and I see no reason why any of this material of the conversations between Mr Seleman and Mr Thornton over the phone and later upon collection of the two boxes for the placement in the storage unit of Mr Seleman are relevant.[8]
[8]We take it that his Honour intended to say that he could see no reason why any of this material was not relevant. It is plain from the ruling as a whole that his Honour had found that all the material was relevant.
As for the discretion to limit the use of the evidence to a non-hearsay purpose, the trial judge concluded:
Furthermore, at this stage I see no reason whatsoever as to the why I should exercise my discretion to limit the use to which any of those conversations may be put. Should that situation change, I will, of course, review the matter should [Defence Counsel] seek to have that matter reviewed.
The trial judge was never asked to review the matter.
Later, the trial judge directed the jury in the following terms with respect to how to approach, and use the evidence of Seleman’s statements:
Thank you, Mr Foreman, ladies and gentlemen. I now want to deal with an aspect of the evidence that came from Mr Thornton concerning statements made to him by Mr Seleman to the effect that he was not expecting any packages and he was perhaps expecting a package from his wife of wine bottles or something to that effect.
Those statements can be used by you as evidencing Mr Seleman's state of mind as to whether he was expecting any such packages. And you will recall that that was the foundation of an argument by [the prosecutor] to you that if Mr Seleman truly did not expect the packages, then by a process of elimination Mr Schanker must have been expecting the parcels. So that is an argument that implicates Mr Schanker by a process of elimination. Now, [The prosecutor] put it differently, but that is as I understand the argument. And it is a legitimate argument should you wish to accept it. Whether you do or whether you do not is a matter entirely for you, just as whether you do accept these statements as truthfully reflecting Mr Seleman's absence of knowledge or awareness or belief of the contents of the packages. That entirely is a matter for you. But it is the foundational question as to how you can go about analysing this evidence. And of course, as with all evidence, you analyse the evidence in the context of the whole of the evidence that is presented to you, including by Mr Schanker, of course. Now, what follows is not - is not - a comment by me as the trial judge. What follows is a direction of law as to how you must analyse this evidence, and so are you bound to analyse the evidence, this evidence, having regard to the matters that I am about to direct you about.
In assessing this evidence and the worth of the argument advanced by [The prosecutor] as a consequence, you must take into account the following matters:
(1) This evidence has not been in any way tested by cross examination. Necessarily so, because Mr Seleman is absent. Cross-examination is the method of testing the truthfulness, the accuracy, the credibility and the reliability of a witness's evidence. This has not been able to be done. So you must take that into account in assessing the evidence as to whether you accept the evidence or do not accept the evidence as to his state of mind.
(2) In addition, you must take into account that Mr Seleman may have had a reason to distance himself from the parcels and their contents if he was involved in the importation by feigning ignorance. So that is a second matter that you must take into account in assessing his statements.
(3) A third matter that you must take into account: there is a body of evidence that implicates Mr Seleman as being a party to this importation process. That body of evidence includes that he rented the storage unit, D82, shortly prior to the importation.
(4) He accepted delivery of the package despite it having an addressee and address that had nothing to do with him. He had attended the day before in relation to the collection of a package, that is, the day before the collection on 6 November. And
(5) I think it is five - he was involved in the collection process himself.
Now, there are other matters that [Defence Counsel] has identified beyond those matters, but what I am trying to do here is simply particularise certain matters that are capable of implicating Mr Seleman himself as a party to this importation. And as such, if he has, if he is a party, and you must consider that, then his statements are less likely to be credible and reliable as to his state of knowledge. These are matters that you must take into account. That is not a direction to you to say ‘We'll put that evidence aside’. It is a question for you. You are the judges of the facts, but you must take into account those matters. So therefore, as the trial judge in this case, I direct you that you must exercise caution in assessing what importance or weight to this evidence, and that is the evidentiary foundation to an argument that [The prosecutor] put forward as to why you should find the accused guilty of this charge.
Doctrine of res gestae as a basis for admissibility
The applicant first submitted that the trial judge was in error in purporting to admit the evidence of the telephone conversation and the storage unit conversation under the doctrine of res gestae.
We accept that the doctrine of res gestae has not survived the introduction of the Act.[9] Subsequent to the hearing of the appeal, the respondent filed further submissions conceding as much.
[9]Karam v The Queen [2015] VSCA 50 [69].
For hearsay evidence to now be admitted, the evidence must qualify under one of the exceptions in Part 3.2 of the Act (assuming it is otherwise relevant pursuant to s 55). While the doctrine of res gestae is embodied, to varying degrees, in a number of the provisions in this Part[10], the doctrine itself can no longer be used as a separate or independent basis for justifying the admission of hearsay evidence.
[10]See ss 65(2)(b) and (c), ss 66(2)(b) and 66A.
Therefore, this evidence could not be admitted under the compendious umbrella of the res gestae, as the trial judge purported to do. We agree with the applicant’s argument (ultimately accepted by the respondent) that the trial judge misdirected himself as to the doctrinal basis for the admissibility of the evidence.
However, the question of admissibility does not depend solely upon the terminology used by the trial judge. The underlying reasons for the admission of the evidence require some analysis. Looking beyond this label, it is our opinion that an examination of what lay behind the trial judge’s ruling shows that the evidence was admitted, or permitted to be used, for two purposes, as original, non-hearsay evidence (it being relevant evidence) and as hearsay evidence (in conformity with the operation of ss 60 and 136 of the Act).
We examine each of these bases in turn.
Admissibility as original evidence
The applicant’s trial counsel accepted that the impugned conversations (in their entirety) were both relevant and admissible as original transactional evidence. They were admitted for that purpose by the trial judge.
Even though the applicant adopted this position at trial, in order to address the complaints now made by the applicant concerning the admissibility and treatment of this evidence it is necessary to examine how it was seen to be relevant, and why the defence accepted this at trial.
The ultimate fact in issue in this case was whether the applicant believed that the packages contained the border controlled drugs, when he obtained possession of packages at the storage unit at 7.30 pm on 6 November 2014. It was common ground at trial, that the collection of the consignment packages was the culmination of a transaction, or an event, which had been in train over the course of 6 November. This in turn had to be viewed against the background of the arrival at DHL Express of the two packages a little over a week beforehand, and their subsequent re-direction to the storage unit.
The interactions between Seleman and Federal Agent Thornton in the telephone call on 6 November, followed by his interactions at the storage unit in the early afternoon on that day formed part of the same connected series of events. They were required, at least in some form, to explain and make intelligible what occurred on the night of the collection of the packages.
Specifically, the fact that Seleman turned to the applicant, who was a person later found in possession of the note (hidden in his car) with the original consignment details, made it more probable that the applicant was criminally involved from an earlier point in time and was not, as the defence would have it, a last minute innocent ring in.
It is clear his Honour ruled that the evidence was relevant and admissible as original transactional evidence, broadly in accordance with the above reasoning.
In our view, the trial judge’s use of the phrase res gestae was at least, in part, a short hand way of describing original transactional evidence, namely facts which were so contemporaneous with, and intimately connected to, the charged event that they were relevant.
Importantly, the applicant at trial adopted the position that the evidence was relevant and admissible on this basis. Indeed, trial counsel for the applicant was somewhat insistent that the telephone conversation be tendered, and played, saying ‘the jury need to hear the telephone call, in my submission.’[11]
[11]Emphasis added.
In addition to not objecting to the reception of the evidence, the applicant’s trial counsel made much of the telephone conversation in his final address in support of the defence case that Seleman was criminally involved. He put to the jury that:
… there’s a very strong inferential case to say that Mr Seleman clearly knew that these packages contained at the very least, something seriously wrong, and realistically he knew that they contained the border controlled drugs.
Counsel argued that Seleman’s assertions (that he was not expecting the packages and had no knowledge of their contents) amounted to a pretence about not expecting the parcels. He submitted to the jury that:
[Seleman] tells Mr Thornton - asks about the packages, and in my argument to you, makes a pretence that he knows nothing about them. ‘What do they look like?’, ‘What size are they?’, et cetera, et cetera.
But significantly he simply says, ‘Look, just put them in my unit’, and then, having been told that they can't do that, he turns up to the facility and he takes delivery of these packages. They're addressed to someone called Sam Fernando and it's an address in Sunshine. When he takes possession of those packages there's no suggestion that he made any denial. He didn't reject them.
He didn't say to Mr Thornton, ‘Hey, are you sure these are mine?’
Having then attacked the prosecution arguments to the effect that Seleman was in a state of ignorance, trial counsel for the applicant returned to make some further points about the telephone conversation:
You know that Mr Seleman by the way had been at that facility on the day before on 5 November, so he had other visits there. It might be that Mr Seleman arranged for someone else to move the boxes out of D82, but in that respect you'll recall that when he spoke to Mr Thornton on the phone he didn't recognise Mr Thornton. He asked for a particular person, because he wanted to speak with a particular person at that storage unit, and he effectively was saying - I haven't written a note of the person, but you might recall in that conversation he says, ‘Can you get such and such’, because in effect, ‘such and such can stick them in my unit’. So there's the possibility that someone else may have moved those items to a unit that Mr Seleman himself had checked out, because his prints were on the door.
In our opinion, the defence wanted, for apparently sound reasons, to emphasise Seleman’s prior dealings at the storage unit, no doubt so that this could be contrasted with the isolated and solitary visit by the applicant.
The defence also relied upon Seleman’s failure to ask questions about the packages, a stark omission for someone taken by surprise.
What also emerges in the telephone conversation is evidence that Seleman was expecting something. Federal Agent Thornton says to Seleman, ‘Kane was saying you came in yesterday, told me to call you….he thought you might have been expecting them’.
It seems to us that eliciting or exposing these matters, favourable to the applicant, necessarily required the entirety of the conversation to be admitted, including Seleman’s assertions that he was not expecting the packages.
We have also listened to the telephone conversation between Seleman and Federal Agent Thornton. Having heard the same, we are of the opinion that it was at least open to trial counsel for the applicant to take the view that a jury, acting reasonably, might well find Seleman to be unconvincing.
We are left with the clear impression that the defence allowed Seleman’s assertions of his ignorance to be placed before the jury because it was confident about raising a real question about their falsity. This in turn supported the defence case that Seleman was criminally concerned (which made it more probable, though not inevitable, that the applicant was nothing more than an innocent ‘dupe’).
The applicant’s trial counsel’s approach to the admissibility of these conversations was also no doubt influenced by the fact that Seleman’s assertions do not (of themselves) inculpate the applicant. In them, Seleman never asserts, explicitly or impliedly, the applicant’s participation or involvement. They are confined to his own knowledge. They were not of the prejudicial kind of one possible accomplice implicating another.
Counsel for the applicant has, on the appeal for the first time, submitted that Seleman’s assertions as to his state of mind were either irrelevant, or alternatively, if relevant, should have been excluded pursuant to s 137 of the Act. While the applicant seems to still accept that some version of these conversations were relevant and admissible as original evidence, he now contends that it was not necessary to lead the impugned conversations in their entirety, submitting that the evidence should have been led in a truncated form, excluding any reference to Seleman’s assertions.
It was never contended at trial that Seleman’s assertions were irrelevant, at least insofar as they constituted original evidence. No application was made to sanitise the evidence in the manner now contended. The approach taken by the applicant at trial to this evidence presents a very formidable obstacle to the complaint now made.
It may be accepted that by themselves, and when divorced from the dynamics of this trial, there was little value in the non-hearsay use of the impugned assertions. In our opinion, the applicant’s submission that they were irrelevant is entirely disconnected from the way in which he chose to conduct the trial. The applicant, through his counsel, determinedly elected to have this evidence introduced, and then exploited the evidence to his perceived forensic advantage. More tellingly, in our opinion, any excision or expurgation now suggested would have been artificial, and would probably have undermined the very points which the defence wanted to make about the conversation. It is not at all surprising that there was no attempt in this trial to disaggregate the various verbal utterances or scrutinise their non-testimonial significance, in isolation from each other.
Similar points can be made about the storage unit conversation, which was, in substance, similar to the telephone conversation. In the end, this was approached in the same way by the defence.
We are conscious that Ground 6, as particularised in the written case, pleads incompetence of trial counsel. At the hearing of this appeal the applicant’s counsel (who is different from the trial counsel) stated that Ground 6 was tied to Ground 1 only. He disavowed the argument contained in the written case that the admission of this evidence was attended by incompetence of counsel. Indeed, at one point the applicant’s counsel at the hearing of the appeal went so far as to accept that the approach taken by trial counsel in relation to the relevance and admissibility of the impugned evidence was ‘understandable’. Nevertheless, given that the resolution of Ground 5 turns, to some degree, upon the conduct of trial counsel, some further brief observations in this respect are warranted.
It is well settled law that parties are bound by the conduct of their counsel, save for some exceptions. As observed in Patel v The Queen[12] this is ‘a cardinal principle of litigation’[13] and reflects the adversarial nature of the justice system, where parties are entitled to determine how they put their cases.
[12](2012) 247 CLR 531.
[13]Ibid 562 [114].
Where an appellate court is invited to consider whether an appellant should be released from counsel’s conduct, it does not involve consideration of the correctness of the decision. It is a question of whether there has been some unfairness in the process below, resulting in obvious and overwhelming prejudice to the appellant.[14] Therefore, an informed and deliberate decision by counsel to seek to admit evidence or to allow evidence to be admitted, which amounts to a rational, tactical decision, will invariably bind an appellant.[15]
[14]Ibid; Ulutui v The Queen (2014) 41 VR 676, 681 [27].
[15]Jansz v The Queen [2010] VSCA 137 [21], [38]; R v Mateiasevici [1999] 3 VR 185, 196 [36]–[37]; Pate (a pseudonym) v The Queen (2015) 250 A Crim R 425, 453–4 [138]–[140]; NJ v The Queen (2012) 36 VR 522, 533 [45]–[46].
We are of the view that in this case the applicant’s trial counsel‘s decision to not object to the admission of the telephone conversation and storage unit conversation in their entirety was a rational, tactical decision made to enhance the applicant’s prospects of acquittal.
The introduction of this evidence into the trial as original evidence did not cause a miscarriage of justice, let alone a substantial miscarriage of justice.
Admissibility or use as hearsay evidence
Turning now to the question of whether the evidence of Seleman’s assertions was properly left to the jury to use as hearsay evidence.
As we have observed, the impugned evidence was relevant and admissible as original evidence, as conceded by trial counsel for the applicant. The only controversy between the parties at trial was whether the evidence could also be used for a hearsay purpose. The argument at trial thus moved immediately from the strict question of admissibility to one of use. [16]
[16]The ground of appeal was framed as one concerning the admissibility of the evidence as hearsay evidence, rather than the use of the evidence (admitted for a non-hearsay purpose) as hearsay evidence. We have, however, approached this ground upon the basis that the complaint, while directed against the admissibility of the conversations as hearsay evidence, embraces or subsumes the question of use of the evidence as hearsay evidence. Ultimately this appears to have been the position adopted by the applicant at the hearing of the appeal.
While his Honour, wrongly, proceeded upon the basis that the evidence was also admissible and could be used for a hearsay purpose, under the res gestae exception, the fact is that the evidence did become available to be used as hearsay evidence, but upon the different footing of s 60. The effect of s 60 of the Act is that once evidence is admitted for a purpose other than for a hearsay purpose, then it can be used also as evidence of the facts asserted (i.e. for a hearsay purpose).
Relevantly, s 60(1) of the Act provides that:
The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
The application of s 60 is subject to the statutory controls contained in ss 135, 136 and 137, which ensure that unfair prejudice is avoided and that a fair trial ensues. Specifically s 136 confers a discretion on a court to limit the use of evidence, taking into account the danger of unfair prejudice or the danger that a particular use might be misleading or confusing. The discretion in s 136 arises from the consequences of s 60. At common law evidence admitted for a non-hearsay purpose was not admitted for a hearsay purpose. Section 60 radically reverses the common law position. Section 136 is designed to provide some restraint on the sweeping consequences of s 60.[17]
[17]J Heydon, Cross on Evidence (Lexis Nexis Butterworths, 11th ed, 2017) 1431–2 [35440]; N Williams et al, Uniform Evidence in Australia (Lexis Nexis Butterworths, 2nd ed, 2017) 815 [136-1].
When the trial judge’s ruling is read as a whole, it seems to us that the judge’s approach to the question of whether the impugned evidence could be used for a hearsay purpose involved the following path of reasoning:
(a) The impugned conversations were relevant and admissible as original transactional evidence;
(b) The conversations could also be used for a hearsay purpose, subject to the relevant statutory control of s 136;
(c) The trial judge addressed the discretion in s 136, albeit implicitly, and decided he did not need to exercise it;
(d) The impugned conversations were therefore admissible or could be used for the hearsay purpose ‘as well’.
In our view when the ruling is stripped back in this way, it is apparent that, in substance, the evidence was left to the jury for them to use for a hearsay purpose via the path of reasoning contemplated by the interaction between ss 60 and 136.
Counsel for the applicant on appeal contended that the trial judge did not turn his mind to s 60, which meant, so it was said, that the admission or use of the impugned evidence for a hearsay purpose could not be justified under that provision.
For the following reasons, we reject that argument.
The trial judge addressed the consequences of the application of s 60, by addressing s 136. While s 136 was not mentioned in terms in the ruling, the applicant’s counsel on the appeal submitted that the applicant’s counsel below was clearly inviting the judge to exercise that discretion. The judge must equally be taken to have understood as much. The language employed by the judge during the argument, and in his ruling, also shows he was addressing the discretion to limit the use of evidence (otherwise admissible) under s 136.
There was also no requirement for the judge to specifically address s 60 before it could be engaged. The engagement of s 60 is not conditioned upon any decision being taken by the trial judge. Its application is triggered by the fact that the evidence was admitted for a non-hearsay purpose. What mattered was that judge addressed the consequences of its application. He did this under s 136.
In our opinion, his Honour and the parties all proceeded upon the correct footing in conformity with the combined application of ss 60 and 136 that the evidence would be left to the jury to use for a hearsay purpose unless his Honour exercised his discretion to prohibit that use.
The applicant also contended that the state of mind of Seleman as to his expectation of receiving the packages (and thus his knowledge of the contents) was irrelevant to a fact in issue in the trial.[18] Seleman’s state of mind was irrelevant, so it was said, because no party was asserting a common purpose. The only relevant state of mind was that of the applicant.
[18]While this argument seemed to be directed towards the application of s 66A (to which we will come shortly) it does bear upon the judge’s decision to not prohibit its hearsay use under s 136.
For the following reasons, we reject this argument.
While the ultimate fact in issue in this case was whether the applicant believed that the packages contained border controlled drugs, Seleman’s state of mind was placed squarely in issue by the defence case. The defence case was that Seleman was expecting the parcels, knew about their contents and was criminally involved, while the applicant was merely Seleman’s innocent dupe. The prosecution theory, effectively by way of rebuttal, was that if anyone was duped, it was Seleman and it was the applicant doing the conning.
Seleman’s assertions as to his expectations and knowledge, if accepted as true, made it more probable that he was not criminally involved and that he was the dupe of the applicant. They thus possess a testimonial relevance, which did not depend upon an allegation of common purpose.[19]
[19]It is to be recalled that the test of relevance in s 55 is a low one – it speaks of evidence which could rationally affect directly or indirectly the assessment of the probability of the fact in issue.
It follows that in this case, and having regard to the manner in which the trial was contested, the relevance of Seleman’s state of mind did not turn upon whether a common purpose was alleged.
Unsurprisingly, and given that the defence case in this respect was foreshowed during pre-trial argument, it was never suggested at the trial that the assertions had no testimonial relevance. The defence concentrated on persuading the judge to exercise the discretion under s 136 upon the basis that the evidence was intrinsically unreliable and could not be tested in cross-examination.
Next, counsel for the applicant submitted that, in any event, the trial judge was obliged to apply the hearsay rules contained in Part 3.2 of the Act once it became apparent that the prosecution’s principal or real forensic purpose was to use this evidence for a hearsay purpose. Specifically, the prosecution was required, so he claimed, to satisfy the requirements of one of the hearsay exceptions in Part 3.2 of the Act, in particular s 65(2)(b). That was so irrespective of whether, and even if, that evidence was capable of being admitted for a non-hearsay purpose.
We also reject this argument.
Section 60 is not concerned with the subjective purpose or intention of the party seeking to adduce the evidence, but with ‘the use to which the evidence, if admitted, would be put as objectively ascertained.’[20] Objectively ascertained, there was another (non-testimonial) purpose for the admission of the evidence in this case, one to which the defence at trial acceded. This activated the application of s 60, subject to the exclusionary and discretionary provisions.
[20]R v Adam (1999) 47 NSWLR 267, 277 [96], 279 [115]–[116]; Adam v The Queen (2001) 207 CLR 96, 109–110 [39(f)].
Underpinning the argument is the flawed proposition that the evidence should not be admissible for a hearsay purpose simply because the evidence would not (but for the operation of s 60) have been so admissible under s 65(2)(b). The argument, if accepted, would undercut the policy of s 60 (and would amount to an impermissible restoration of the common law).[21] The applicant has not advanced any cogent reason why the judge should have departed from the policy underlying s 60.
[21]Papakosmas v The Queen (1999) 196 CLR 297, 310 [39], 327 [96]–[97].
This is not a case where it might be said that the prosecution has unfairly bypassed the stringent requirements of ss 59 and 65(2)(b) by seeking to have the evidence admitted, over objection, upon a contrived reason for relevance. Rather, in this case the judge identified the reason of relevance as original transactional evidence, which basis was conceded (and indeed encouraged) by trial counsel for the applicant.
Complaint was made that in addressing s 136, the trial judge failed to have regard to the threshold requirements which found the general rule of inadmissibility of s 65(2)(b). The applicant submits that the potential admission of the evidence must be looked at in light of his Honour's concerns expressed during argument that he could not be satisfied that such assertions were not fabricated.
We accept that these threshold considerations are relevant to the exercise of the s 136 discretion.[22] In our opinion the trial judge did take them into account.
[22]Williams et al, Uniform Evidence in Australia (Lexis Nexis Butterworths, 2nd ed, 2017) 815 [136-2]; Stephen Odgers, Uniform Evidence Law, (Thomson Reuters, 11th ed, 2014) 838 [1.3.14640].
His Honour was very much alive to the frailties which attended Seleman’s assertions in the impugned conversations. While not articulated in his ruling, these deficiencies were raised in the discussion beforehand, and were ultimately outlined by the judge in his charge to the jury[23].
[23]Reproduced above [46].
Equally we think that the trial judge was alive to the fact that, whatever these deficits were, they were less potent than those which attended Seleman’s post-facto police statement, in which he shifted blame to the applicant. By contrast, Seleman’s assertions, sought to be admitted, did not assert the applicant’s criminal involvement. The representations in question assert Seleman’s own ignorance, and lack of involvement. Still less were these representations made to authorities with a view to shifting blame onto the applicant.
As to the strident unreliability concerns about the risk of fabrication ventilated by the trial judge in the course of legal argument, these were all directed to the unreliability of Seleman’s written statement made to police, in which he inculpated the applicant after the event. It was for this very reason that the prosecution withdrew its application to admit the entirety of Seleman’s police statement. The impugned conversations, while attended by some unreliability, do not fall into that extreme category.
As to whether the discretion under s 136 miscarried generally, a court is entitled to consider the extent to which the dangers associated with the hearsay use could be, or were, adequately mitigated by direction. Here, his Honour gave a strong direction to make the jury understand that the evidence had been untested by cross-examination, came from an intrinsically unreliable source, and therefore had to be approached with caution. In our opinion, the strong direction effectively endorsed, with the full weight of judicial office, defence counsel’s arguments concerning the unreliability of Seleman’s assertions. These directions plainly exposed the issues which the jury had to consider in determining what weight should be given to this hearsay evidence. The direction showed that cross-examination of Seleman in relation to his assertions was not necessary to meaningfully uncover its potential unreliability. There was other evidence in the case against which the jury could weigh these assertions (i.e. a body of evidence which implicated Seleman). The final addresses show that the defence was able to satisfactorily address the infirmities of this evidence through argument. We are left with no doubt that the jury was capable of understanding the issues. Any danger of misuse or confusion was, in our view, acceptably addressed by the judge’s direction.
Of course the discretion under s136 is also affected by the fact that the use of the evidence is to be limited rather than excluded entirely.[24] There are always risks that a jury may be incapable of comprehending (and thus applying) what might be seen to be a two-edged direction on permissible and prohibited use. The policy which underpins s 60 recognizes the notorious conceptual difficulties faced by tribunals of fact, especially by juries, in being told that they may use the evidence for a non-hearsay purpose, but not for a hearsay purpose.
[24]Stephen Odgers, Uniform Evidence Law, (Thomson Reuters, 11th ed, 2014) 841 [1.3.14655].
In our view, the comprehensive direction given by the trial judge as to the limitations of this hearsay use is likely to have afforded the applicant with at least as much protection from the dangers of misuse as might have been provided by a blunt prohibition on hearsay use altogether. By contrast, the risk of confusion arising out of a straight prohibition direction was especially pronounced in this case. One of the issues in this trial was the falsity (and conversely the veracity) of Seleman’s assertions of ignorance as to the packages and their contents. Just how a jury could sensibly have evaluated the falsity of the assertions, while at the same time being restrained from acting upon their veracity, is a little difficult to comprehend.
In all the circumstances, we have not been persuaded that the use of the evidence should have been limited under s 136, or that a substantial miscarriage of justice has resulted from the failure to so limit the evidence. In our opinion, the approach taken by the trial judge served to guard against undue unfairness, rather than cause a miscarriage of justice.
Next, the applicant advanced an all-encompassing submission that if the consequences of the conversations being admitted as original evidence were that they would become admissible for all purposes pursuant to s 60 of the Act, the judge should have given consideration to excluding all the evidence pursuant to s 137.
We would also reject that argument.
The reasons which we have advanced as to why the judge was not required to exercise the discretion under s 136 to limit the use of the evidence apply with similar force to the s 137 argument.[25] More significantly, the applicant at trial never sought to invoke s 137. As we have already found, the applicant’s trial counsel purposefully refrained from seeking to have this body of evidence excluded under s 137. For the reasons canvassed above, trial counsel for the applicant made a calculated and rational strategic decision to allow the evidence to be admitted but to seek to have its use limited under s 136, rather than seek to have the evidence excluded altogether under s 137. It is a decision to which the applicant is therefore bound.
[25]See [101]–[108] above.
In written submissions following the appeal hearing, the applicant further submitted that the trial judge was ‘wrong to admit the evidence on the basis that Seleman was criminally involved and/or acting with a common purpose with the applicant pursuant to s 87(1)(c) of the Evidence Act’. The applicant points to the fact that it was neither the Crown case nor the case for the applicant that Seleman was criminally involved and/or acting with a common purpose with the applicant.
We also reject this argument.
It is plain that the trial judge did not admit or purport to admit the evidence under s 87(1)(c) or upon the basis that there was a common purpose or joint criminal enterprise between the applicant and Seleman. The trial judge concluded, inter alia, that the significance of the evidence lay in the very fact that Seleman turned to the applicant (the person who was in possession of a note with the original consignment name and address) to collect the packages, and that this was so irrespective of whether Seleman knew what was contained in the packages. Further, insofar as it had hearsay significance, his Honour found that ‘this evidence is also capable of excluding a hypothesis that may be put forward that [the applicant] was the dupe of Mr Seleman’. This allows for the possibility, amongst others, that the applicant was acting alone, and Seleman was a dupe. Self-evidently these uses were not predicated upon there being an alleged common purpose.
The applicant’s argument also seems to proceed upon the mistaken assumption that Seleman’s representations assert the participation of the applicant and amount to (hearsay) admissions attributable to the applicant. We note that s 87(1)(c) permits the admission of evidence tendered as an admission made with authority, where it was made in furtherance of a common purpose. [26] Such evidence would otherwise be excluded by the hearsay rule. The problem for the applicant is that Seleman’s representations do nothing of the kind. They only assert Seleman’s own ignorance, and lack of involvement. They contain no admissions purportedly made by the applicant, or with his authority, or attributable to him. In our opinion, s 87(2)(b) had, and has, no role to play in the admission or use of the impugned evidence for a hearsay purpose.
[26]This provision embodies the common law’s co-conspirators’ rule in R v Macraild (unreported, New South Wales Court of Criminal Appeal, Sully, Dunford and Simpson JJ, 18 December 1997). See also Elomar v The Queen (2014) 316 ALR 206.
To support his contention the applicant’s counsel pointed to the fact that during argument the judge made reference to the applicant and to Seleman as ‘the accused’, while in his charge to the jury he characterised Seleman as ‘a party’. The applicant notes that language of ‘party’ is redolent of Seleman being a participant in a common purpose.
This does not assist the applicant. In our opinion, the judge’s reference to Seleman as an accused in argument was nothing more than a slip of the tongue. This mischaracterisation did not persist in the ruling. It is of no moment.
As for the complaint about the language used in the charge, the judge instructed the jury that there was a body of evidence that implicated Seleman as being ‘a party’ to the importation process. This direction was focused entirely on impressing upon the jury the care they must exercise when evaluating the weight to be given to Seleman’s claims of ignorance about the packages, because of the evidence that he ‘was criminally involved’. It was centred exclusively on the issue of Seleman’s role, not upon the applicant’s role, still less their joint role. The trial judge was here, effectively, endorsing defence counsel‘s argument. It was in this context that he was using the term ‘party’. It does not suggest an understanding (or misunderstanding) on the judge’s part that the evidence was admitted upon the basis that Seleman’s words were uttered in furtherance of a common purpose.
The applicant also contended that the judge’s references to Seleman being ‘a party’ to the criminal transaction invited the jury to reason that there was more than one party to the criminal enterprise, and that the applicant must have been the other party. There is nothing in the point. It stretches credulity to think the jury would have construed the direction in this narrow and legalistic manner. Had trial counsel perceived this risk, now identified for the first time by appeal counsel, he would have taken exception, as the trial judge invited him to do. No exception was taken, which is telling. It is also unsurprising that no exception was taken. The direction, as a whole, on this issue was exceptionally favourable to the applicant.
There remains the question of whether the evidence was also admissible for a hearsay purpose, by reason of s 66A of the Act.
This section relevantly provides that the hearsay rule does not apply to evidence of a contemporaneous representation about the person's knowledge or state of mind.
It was contended by the applicant that s 66A of the Act was not enlivened and could not justify the use of the evidence of Seleman’s state of mind for a hearsay purpose. This is because, according to the applicant, Seleman’s state of mind was not relevant to a fact in issue.
We have already said that as Seleman’s state of mind was placed in issue in this trial by the defence case, any evidence that bore upon his state of mind was relevant.
However, given the conclusions we have reached above concerning the operation of s 60, we do not need to finally decide whether the evidence was also admissible as hearsay evidence pursuant to s 66A. This was never raised by the prosecution at trial as a basis to justify the hearsay use of the evidence. The trial judge never considered it.
Certainly, to the extent that it was suggested, we would reject the argument that for the evidence to be admitted or used as hearsay evidence, it had to qualify under s 66A.
We are of the opinion that ground 6 is sufficiently arguable to justify a grant of leave, given that the trial judge misdirected himself on the application of the res gestae doctrine. There should be a grant of leave on ground 6, but ultimately we would dismiss the appeal.
Ground 1 - Controlled Operation Authority & Ground 5 – Incompetence of trial counsel
Ground 1 concerned the decision by the trial judge to admit evidence of the controlled operation and complained that the Authority and Variation were invalid and the operation ultimately conducted was not within their scope. Ground 5 concerned the alleged incompetence of trial counsel.
These grounds were not pressed at the hearing of the appeal, though we take it that they were not formally abandoned. In the circumstances we will deal with them very briefly.
As we have already noted, in the course of investigating drug-related crimes, the AFP obtained a Controlled Operation Authority followed by a variation of the Authority pursuant to Part IAB of the Crimes Act 1914 (Cth), which authorises identified people, to engage in certain criminal conduct in furtherance of the investigation.
Section 15GA(2) of the Crimes Act 1914 (Cth) provides that in deciding whether to admit evidence of a controlled operation, the fact that an authorised participant engaged in criminal activity is to be disregarded if the person was authorised and the activity was ‘controlled conduct’ as defined.[27]
[27]Section 15GC of the Crimes Act 1914 (Cth) defines controlled conduct as ‘conduct constituting an offence for which a person would, but for section 15HA, be criminally responsible’.
In his written case, the applicant advanced various arguments to the effect that the Authority and Variation were either invalid or did not cover the scope of all of the activities engaged in by the Federal Agents in this investigation. He contended that the evidence obtained as a consequence (which is all evidence of the offending) was unlawfully obtained and should therefore have been excluded under s 138.
Sectionhttp:// 138 of the Act forbids the reception of evidence obtained by means which were directly or indirectly improper or unlawful, unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, given the defect in the means by which it was obtained.
Counsel for the applicant at the hearing of this appeal frankly (and properly) acknowledged that he was unable to identify any conduct engaged in by the Federal Agents which might be said to be unlawful or improper.
Still less has the applicant identified unlawful or improper conduct resulting from a deliberate and reckless disregard of the law or any other public policy considerations (including those enumerated under s 138(3)) which might possibly have justified the exclusion of all the evidence of such a serious criminal offence.
It is to be remembered that in this case the illicit border controlled substances had been immediately (and lawfully) seized by the Federal Agents and substituted for a wholly inert substance. The ‘controlled delivery’ involved the movement of that wholly inert substance to the storage unit where it was collected by the applicant.
As the applicant has not identified any unlawful (or improper) conduct on the part of the Federal Agents, it is not to the point whether their activities were covered by a ‘valid’ authority. There being no unlawful or improper conduct identified, the discretion in s 138 is not even enlivened.
Trial counsel for the applicant clearly considered this issue. In the notice of admissions (signed by the applicant) filed at trial, it was acknowledged that the Federal Agents engaged in a lawful controlled delivery.
We are left to assume that trial counsel for the applicant chose not to challenge the admissibility of the evidence on this basis because he formed the view that any such application would be hopeless and bound to fail. The applicant’s counsel at the hearing of the appeal agreed that it was open to trial counsel to reach this conclusion. In our view, trial counsel was correct to form this view.
Accordingly we would refuse leave to appeal with respect to grounds 1 and 5.
The sentence appeal (Indictment 1 & 2)
On 21 October 2016 a plea hearing was conducted in respect of the charges contained in Indictment 1 (the factual basis of which we have already detailed) and Indictment 2. On 21 November 2016, the applicant was sentenced as follows:[28]
[28]DPP (Cth) v Schanker [2016] VCC 1771 (‘Sentencing remarks’).
Charge Offence Maximum Penalty Sentence Cumulation 1 Attempt to possess a commercial quantity of a border controlled drug – ss 11.1(1) and 307.5(1) Criminal Code (Cth) Life imprisonment 15 years’ imprisonment Base 2 Traffick in a commercial quantity of a controlled drug – s 302.2(1) Criminal Code (Cth) Life imprisonment 9 years’ imprisonment 3 years
Commencement 21 November 2025Total Effective Sentence: 18 years’ imprisonment Non-Parole Period: 14 years Pre-sentence detention declared: 374 days S 6AAA Statement: But for the plea of guilty, the sentence imposed on charge 2 would have been 11 years imprisonment
Circumstances of offending – Indictment 2
The applicant was charged on Indictment 2 with trafficking in a commercial quantity of an imported border controlled drug, namely methlyamphetamine between 25 and 26 November 2014. The prosecution case was that the applicant trafficked in a commercial quantity by having possession of the methlyamphetamine with the intention of selling it.
On 25 November 2014, the applicant contacted a Mr Nguyen by telephone and arranged to meet at Ballarat Road in Ardeer. Nguyen asked him to bring ‘2’ to which the applicant responded ‘Okay.’
At 1:03 pm that day the applicant attended at the Ballarat Road address nominated by Nguyen, carrying a black shopping bag and a white object. The applicant got into Nguyen’s vehicle with Nguyen for a period of time, before he left in his own car, a Mazda 3.
Between 2:18 pm and 2:51 pm that afternoon the applicant and Nguyen exchanged a number of text messages. At 2:18 pm Nguyen texted: ‘Bro. all bag. 1k.’ At 2:47 pm, the applicant texted back: ‘U mean short?’ Nguyen responded two minutes later: ‘I have to clean lost.’ At 2:51 pm, the applicant texted: ‘Don't cry bro I will fix on the next one.’
Later that day the applicant collected Nguyen and they drove to a premises at 8/3 Austin Place, Melton South, where they went inside.
The following day, on 26 November 2014, the applicant and Nguyen exchanged further texts which alluded to meeting up and discussed quantities.
At 4:20 pm, police intercepted an Audi vehicle driven by the applicant on Ballarat Road, Deer Park and conducted a search. During the search police located 402.2 grams of pure methlyamphetamine.
Police then attended at an address at the Austin Place address, which was owned and accessed by the applicant. During the search of this property, police accessed a safe containing 2.358 kilograms of methlyamphetamine (1888.6 grams of pure methlyamphetamine) and $20,000 in cash in two money clips. The applicant’s finger prints were on one of the clips.
The applicant’s Mazda vehicle was also searched on 2 December 2014. Police seized a number of items including a total of 15.4 grams of pure methlyamphetamine from the boot and $19,505 in cash. There was also an envelope containing a handwritten message that read: ‘Two guys from China who packed the stuff changed it but the other one didn't know about the guy is fear in complication (sic).’ That was in addition to the note with the consignment addressee details that we have already described in relation to Indictment 1.
Personal circumstances
The applicant was 32 years old at the time of sentencing. He was born and grew up in Sierra Leone. He is the second of five siblings, with two sisters and two brothers. He is married, having met his wife in a refugee camp in Guinea. They arrived in Australia in 2007. He does not have any children.
The applicant’s early life in Sierra Leone was marked by experiences of extreme violence and trauma. When he was aged 8 years, civil war broke out. The rebel forces were targeting rich families and forcing them out of their homes and into the forests. The applicant and his family, who had been living in Freetown, were forced out in this way and they lived in the forest without proper food or shelter. He did not receive any schooling.
Approximately four years later, the family escaped these living conditions. They went into hiding in another part of the country. At age 15, after three years of hiding, they were discovered by rebel forces. Upon finding the applicant’s family, the rebels shot his father in the chest, killing him. His mother and younger sister, aged 13, were repeatedly raped. The applicant witnessed all of this and he was also shot in the leg.
The applicant was taken to a hospital but it became apparent that he was in danger. He escaped the hospital and returned to the forest. At this time, he was raped himself.
Eventually the applicant made his way to a refugee camp in Guinea. He did not know what had happened to his remaining family members. Here the applicant witnessed a number of highly traumatic events involving extreme instances of sexual assault and mutilation.
When the applicant arrived in Australia in 2007, he completed studies in financial planning. However, he was not able to secure work in this area. He did eventually find work variously as a truck driver, but had to cease this work because of swelling in his leg, which was a result of having been shot. He then undertook some factory work and some cleaning work.
In 2012, the applicant learned that his mother and his younger brother were still alive. He travelled to a refugee camp to meet them. They were still deeply traumatised and appeared to the applicant to be suffering from some kind of psychosis.
The applicant commenced receiving specialist therapeutic support from Foundation House, which supports people from refugee backgrounds who have experienced torture or other trauma, from May 2014.
Between May 2014 and his initial remand in November 2014, the applicant received counselling through Foundation House. After his release on bail in August 2015, until December 2015, the applicant attended again and received counselling. After this, the applicant had some phone contact with his counsellor at Foundation House.
The applicant has substantial mental health issues, with a history of experiencing post-traumatic and depressive symptoms, anxiety and at times suicidal ideation. Forensic Psychiatrist, Dr Anthony Cidoni, in a report dated 11 October 2016, which was exhibited on the plea, diagnosed the applicant with a major depressive disorder and post-traumatic stress disorder.
In May 2016, prior to his final remand in August 2016, the applicant underwent knee surgery on his left knee to relieve pain associated with a deformity (resulting from being shot) and some arthritis. The applicant has also had issues with his right leg, where the bullet eventually lodged. The applicant has since recovered.
The applicant has a history of methlyamphetamine use. Since 2012, he has used up to 1 gram of methlyamphetamine per day when in the community.
Criminal history
The applicant has a not insignificant criminal history, concerning fraud and dishonesty offending.
On 10 December 2009, the applicant was sentenced at the County Court at Melbourne to a total effective sentence 2 years and 3 months’ imprisonment with a non-parole period of 12 months in relation to one charge of attempting to obtain a financial advantage by deception and one charge of obtaining financial advantage by deception. The applicant was ordered to pay $130,500 in compensation.
On 4 January 2010, the applicant was sentenced at the Dandenong Magistrates’ Court to an aggregate term of 6 months’ imprisonment for charges including obtain property by deception. Later that year on 19 July, the applicant was sentenced to another aggregate of 6 months’ imprisonment at the Melbourne Magistrates’ Court for two charges of theft. It appears this offending was related to the fraud that the applicant was sentenced for in the County Court.
Finally, on 30 May 2014, the applicant was sentenced at the Sunshine Magistrates’ Court to undertake a Community Correction Order (‘CCO’) for a period of 12 months, with community work and treatment and rehabilitation conditions, for a charge of providing false documentation in an application for an Australian travel document and a charge of attempting to commit an offence. The offending which is the subject of the appeal occurred during the operational period of this CCO.
Sentencing remarks
After describing the facts and legal principles, the judge’s remarks contain a general observation about the overall gravity of the offending and the applicant’s role:
The circumstances surrounding that attempted importation and the circumstances surrounding the trafficking are interrelated. They inform each other. It is plain that you were a principal in the attempted importation of the methamphetamine which was of high quality, in the vicinity of 80 per cent pure. You did so for the purpose of trafficking in that same drug at a wholesale level, as revealed by the charge of trafficking in Indictment 2.
This offending, both alone as well as in combination, is of the utmost gravity….[29]
[29]Ibid [54]-[55].
His Honour later went on to identify a number of matters which informed the gravity of the offending, which he assessed as being ‘serious’:[30]
[30]Ibid [71].
First, the maximum penalty is life, evidencing the gravity with which Parliament considers such offending in each indictment charge.
Second, on each charge, there are multiple times the commercial quantity, in particular, in relation to the attempted importation charge.
Third, the value of the product both at wholesale level and retail level was large.
Fourth, the purity of the narcotic seized upon arrival in Australia and the narcotic seized in other various places including in your car was high, in the vicinity of 80 per cent pure.
Fifth, you had a role as a principal in relation to both the attempted importation and the trafficking.
Sixth, you are motivated by greed to engage in this offending.
Seventh, you were involved not only in the process of importation of this narcotic, but also in trafficking in it in commercial quantities.
Eighth, you had plenty of time to reflect on what you were engaged in but decided to continue with your criminal conduct, knowing the consequences if caught.
Finally, this offending must be seen in the context of you having previously been incarcerated for not inconsiderable period of time for serious dishonesty offences. As I have said, imprisonment has not in any way deterred you from engaging in this offending which is by far more serious than any offences you have committed in the past.[31]
[31]Ibid [72]–[80].
The sentencing judge then turned his mind to general deterrence, specific deterrence and denunciation and said:
This offending is heinous and requires stern punishment. The principal or chief factor in sentencing you is general deterrence - deterring others from engaging in this type of offending. Further, specific deterrence - deterring you, is a significant sentencing factor, particularly having regard to the matters I have set out. Further, the sentence I impose must be one which involves the imposition of just punishment and denunciation of your involvement in this evil trade.[32]
[32]Ibid [81].
His Honour took into account the plea of guilty in respect of Indictment 2 and said:
You have pleaded guilty to the charge of trafficking on Indictment 2. The utility of that plea of guilty albeit a plea late in time must be, and is, taken into account by me. I estimate that a trial on that charge would have occupied between one to perhaps two to three weeks.[33]
[33]Ibid [70].
In respect of the applicant’s extremely deprived background, which we have detailed above, his Honour said: ‘This is a background that is so extreme that I must say that I have not encountered the like.’[34]
[34]Ibid [58].
Having considered submissions regarding the applicant’s drug addiction, his Honour said:
During the course of the plea [Defence counsel] sought to explain in some part your offending by reference to your addiction to methamphetamine. In my view, that addiction does not even come close to explaining even in part your high level of involvement in the criminal conduct that is before me.
The sentencing judge described the applicant’s physical health, as a result of being shot in the leg in Sierra Leone. His Honour referred to a report of orthopaedic surgeon, Mr Chris Harris, dated 12 August 2016, exhibited on the plea. Mr Harris was of the opinion that the applicant, after six to 12 months of recovery ‘should have a leg that is good for walking and doing most of the things that he wants to do.’[35] His Honour concluded that: ‘In the end, I intend to adopt a cautious approach as to the suggested prognosis articulated by Mr Harris.’[36]
[35]Ibid [65].
[36]Ibid [66].
His Honour then went on to consider the applicant’s mental health, the operation of Verdins principle 5 and other factors which bore upon the applicant’s custodial hardship:
It has been submitted by [Defence counsel] that your period of imprisonment has been and will be more burdensome than for others within the prison population and that therefore the sentences and the total effective sentence that I impose ought be moderated. I accept that submission and intend to achieve that result by moderating the sentence on Charge 1 of Indictment 1 for reasons which I will come to.
There are a number of aspects to this submission - (1), the mental health adverted to by Dr Cidoni; (2), the physical health that I have just dealt with. In addition, your mental health including depression, your concern for your wife who is unwell and your own concerns about your future in Australia, with the prospect of you being deported at the conclusion of serving your sentence. In combination these matters point to imprisonment for you being more burdensome.[37]
[37]Ibid [68]-[69].
Grounds of appeal
The applicant relied on three grounds of appeal against sentence as follows:
1. The learned sentencing judge erred by sentencing the applicant on the basis that he was a principal in the importation of a border controlled drug.
2. The sentences imposed on each charge, the total effective sentence and the non-parole period are manifestly excessive.
3. The trial/sentencing judge erred in law by not stipulating the non-parole period for each charge offending the ‘Pierce’ principle.
At the oral hearing, the focus of submissions was narrowed to Ground 1 and Ground 2.
While we take it that Ground 3 was not formally abandoned, it was not actively pursued as a standalone ground. On this appeal, counsel for the applicant sought to interpret the meaning of Ground 3 as asserting that the sentencing judge erred in so far as the cumulation of charge 2 on charge 1 offends the totality principle. Counsel accepted that this point was really a consideration properly falling within Ground 2 on the question of manifest excess and we have treated it as such.
Finally, although Ground 2 formally alleges that both individual sentences were manifestly excessive, it was apparent at the hearing of the appeal that no complaint is made about the individual sentence imposed on the traffick charge contained in Indictment 2. We have proceeded on that basis.
Ground 1
In respect of Ground 1, counsel for the applicant made two specific complaints about the trial judge’s sentencing approach.
First, it was submitted that the sentencing judge had erred by sentencing the applicant for the offence of importation of the border controlled drugs in question, as distinct from the offence of attempting to obtain possession of the drugs. Reliance was placed upon the trial judge’s statements in the sentencing remarks that the applicant was involved ‘from the very beginning of this importation process’[38] and that the evidence ‘speaks to your involvement in this importation from the earliest.’[39] There were other similar references. The applicant pointed out, correctly, that he was not charged with an offence of importation.
[38]Ibid [25].
[39]Ibid [26].
Second, counsel for the applicant submitted that the sentencing judge had erred in sentencing the applicant as a principal of the attempted possession. On the available evidence, such an inference was not open to the requisite standard, beyond a reasonable doubt, so said the applicant.
Before addressing these complaints it is convenient to identify the conduct and acts (as distinct from any descriptive label) which the sentencing judge attributed to the applicant. There is a need to look beyond the label to the judge’s assessment of what the applicant did.[40]
[40]Nguyen v The Queen [2017] VSCA 286 [27]-[28].
The acts or conduct upon which the judge relied when assessing the applicant’s role included:
(e) The handwritten note containing the original consignment address details of Sam Fernando of 171 Glengala Road, Sunshine, found hidden in the applicant’s car, belonged to the applicant.
(f) On 3 November, the packages were re-directed from that address, over the telephone, by a person purporting to be Sam Fernando. The sentencing remarks are silent about who made the phone call to re-direct the package. The Crown case at trial was that it could not be proven who was responsible for this initial call. Nevertheless, it is implicit in his Honour’s findings that the applicant had some involvement in this. In the course of the plea the judge made plain that this was his view.[41] We also read this into his Honour’s conclusion in the sentencing remarks that the applicant was involved from the beginning.
[41]See the exchange re-produced at [195] below. See also sentencing remarks [25]–[27].
(g) The applicant attended the storage facility with Seleman, on 6 November, arriving in a vehicle registered to and driven by the applicant.
(h) At the storage unit the applicant was involved, with Seleman, in (partly) unpacking the packages and then in taking the packages away in his car. The applicant’s fingerprints were located on one of the empty cardboard boxes left behind.
(i) Two bicycle seats which were part of the consignment subject of the controlled delivery were seized by police on 26 November at the applicant’s usual place of residence. We note that these two seats did not contain any drugs within them at any time, a point emphasised by the defence on the plea. Nonetheless, their location at his residence points against the applicant playing a transitory role of being Seleman’s assistant.
(j) Within a few weeks of the applicant attempting to possess a commercial quantity of methylamphetamine, the applicant was involved in trafficking a commercial quantity of that same drug (as revealed by his plea to the charge of trafficking in a commercial quantity contained in Indictment 2).
As to the applicant’s temporal participation and motive, the judge found:
(k) The applicant’s role was greater than simply attending at the CBD storage place to collect the packages[42].
(l) The applicant knew in advance, well before 6 November, what the contents of these package were;[43] indeed he was involved from the earliest or from the beginning. [44]
(m) The applicant’s attempted possession was done for the purpose of trafficking that same drug at a wholesale level.
[42]Sentencing remarks [26].
[43]Ibid [22].
[44]Ibid [25]–[26].
We now turn to the two complaints.
Certainly some of the sentencing remarks, viewed in isolation, do suggest that his Honour was approaching the matter upon the basis that the applicant was complicit in the importation.
Despite this, for the following reasons we are of the view that his Honour sentenced the applicant in relation to the offence of attempting to possess.
First, it must be remembered that prior to sentencing the applicant the judge had witnessed his arraignment on the charge of attempt to possess, presided over a trial in relation to this offence (which included charging the jury as to the elements of this offence), received the verdict of jury on this charge and finally presided over the plea hearing. It is improbable that the judge, in that context, misunderstood and sentenced the applicant on an incorrect basis.
Second, there were several exchanges between the trial judge and trial counsel for the applicant which demonstrate that his Honour did not intend on sentencing the applicant for an offence with which he had not been charged.
The most explicit of these exchanges is as follows:
[Defence Counsel]: But in terms of the level of his involvement it’s not part of the Crown case that he arranged the importation.
His Honour: No, I understand that.
Third, there is an explanation for the reference to the importation. The comments about the applicant being concerned in the importation, were made in response to the submissions of defence counsel that the applicant was merely Seleman’s helper, and that his participation was confined to the activities on 6 November.
At one stage, the following exchange occurred:
[Defence Counsel]: Your Honour shouldn’t conclude that my client was involved in that attempt to possess drugs, at anything other than a level of knowledge and assistance of Seleman….
His Honour: At the level of?
[Defence Counsel]: Knowledge that there were drugs in the containers and assisting Seleman to collect them.
His Honour: Why should I approach it on that basis?
His Honour later gave this preliminary view as to the facts which demonstrated the applicant’s protracted involvement:
Those series of facts, and I - there’s probably others that I could add to that mix, is consistent with your client knowing about the importation, be involved in the delivery, because he’s got the address that the consignment is addressed to, and the name and he collects them….
Having examined the evidence, the sentencing judge concluded:
Thus you knew, if not well before, what the contents of these package were and the unusual nature of the contents of the packages there being some 18 bicycle seats with only three bikes…
Later, his Honour said the following:
I am satisfied beyond reasonable doubt that this scrap of paper was yours, and that it speaks to your involvement in this importation from the earliest. There is no reason why you would have such a scrap of paper with the details of the consignee unless your role was greater than simply attending at the CBD Storage Place to collect the packages.
In our opinion, when his Honour made reference to the applicant’s involvement in the importation process from the beginning, we think he was endeavouring to convey his view that, on the strength of the evidence before the Court, the applicant’s participation extended beyond simply collecting a package on 6 November as Seleman’s helper, and had commenced well beforehand. The judge does not identify what that point in time was but it must be a time proximate to the arrival of the packages in Australia given the judge’s finding that the note with the original consignment addressee details belonged to the applicant. The attempt to collect the controlled border drugs commenced at around the time the drugs entered Australia bearing those original consignment addressee details. It was then redirected. This was no doubt done to facilitate its collection. The applicant was involved in this in some way, as evidenced by the note in his possession.
In our opinion, taking the entire transaction into account in the way that occurred here did not bring into consideration complicity in the importation by way of aggravation.
The applicant’s case can be distinguished from the decision of the New South Wales Court of Criminal Appeal of Tu v The Queen,[45] where the judge wrongly sentenced the offender on the basis that he was complicit in the importation of drugs, an offence with which he was not charged, offending the principle in R v De Simoni[46].
[45](2011) 205 A Crim R 566 (‘Tu’).
[46](1981) 147 CLR 383 (‘De Simoni’).
In Tu, the applicant was sentenced to the maximum penalty of 25 years’ imprisonment for one charge each of possess and traffick a commercial quantity of a border controlled substance. These sentences were to be served concurrently. It was found that the imposition of the maximum penalty could only have been referrable to the sentencing judge taking into account matters only relevant to complicity in the importation.[47] In our view, the sentence imposed in this case (substantially less than the maximum) does not bespeak such error.
[47]Tu (2011) 205 A Crim R 566, 587–88 [140], [142].
Further, in Tu the sentencing judge made some findings that the offender had participated in the ‘China end’ of the operation. This strongly suggested he was being punished for complicity in the importation. There was no such finding in the applicant’s case.
We turn now to the second complaint under Ground 1 which concerns his Honour’s finding that the applicant was a ‘principal’ in the attempted possession.
We think that when regard is had to the judge’s assessment of what the applicant did, his Honour was intending to express by the term ‘principal’, his assessment that the applicant was working for himself and was not simply seeking to collect the consignment on behalf of someone else (including Seleman).
There is no challenge on this appeal to the judge’s finding that the applicant was a principal in the commercial quantity trafficking charge (Indictment 2). The evidence of this (virtually) contemporaneous trafficking in very significant quantities of methylamphetamine by the applicant, as principal, tends to powerfully support an inference that he was working for himself in the attempted possession of similarly large quantities of the same drug. It defies coincidence. His Honour was right to find that one logically ‘informed’ the other.[48]
[48]We note that the applicant does not contend that the guilty plea to Indictment 2 and the facts underpinning it could not be taken into account by the judge when considering the applicant’s role in relation to the attempted possession offence.
The course of events before or after an instance of offending (such as an attempted possession), if they are known, can be relevant to the sentencing exercise, in particular to the identification of the offender’s role and culpability.[49] In this case, the sentencing judge did in fact have information about the course of events both before the attempted possession (the applicant’s possession of the consignment note and involvement in re-direction of the packages) and after the attempted possession (the applicant’s trafficking of a commercial quantity of methylamphetamine) which enabled him to draw an inference in relation to the applicant’s role, to the criminal standard.
[49]R v Olbrich (1999) 199 CLR 270, 277–79 [13]–[19].
Counsel for the applicant initially sought to advance the point that because there was a large amount of evidence to show Seleman’s involvement in the attempted possession, this excluded the judge’s finding that the applicant was the principal. The problem with this argument is that his Honour did not find that the application was the sole principal. He was sentenced upon the basis that he was a principal given the evidence before him.
Counsel for the applicant eventually conceded that Seleman and the applicant could have been equally involved and that the judge’s remarks allow that both Seleman and the applicant were principals.
Counsel then submitted that the two men’s conduct did not amount to that of principals and that, as with many of these kinds of drug cases, there may have been a guiding hand orchestrating the importation, even well after the consignment had arrived in Australia. The short answer to this is that there was no evidence before the judge of the involvement of a syndicate or other persons within Australia (other than Seleman). On the other hand, there was cogent evidence of the applicant’s significant participation in the attempted possession offence, together with the evidence that he was otherwise heavily involved in the business of trafficking large quantities of the same drug.
To conclude, the point made by the applicant that he was sentenced upon the basis that he was complicit in the importation is sufficiently arguable to justify a grant of leave, but, for the reasons outlined above, we would ultimately dismiss the appeal.
Ground 2
In respect of Ground 2, counsel for the applicant submitted that the sentence imposed is a severe sentence, which is outside the range of sentences that could have been imposed. He contended that very powerful mitigating features in this case were not given due weight by the sentencing judge in fixing the individual sentences, total effective sentence and non-parole period.
Counsel for the applicant took the Court to two cases[50] to seek to demonstrate that the sentence imposed was out of step with the current sentencing practice for the attempted possession offending. He contended that a sentence of the order imposed on the applicant was applied for offending involving significantly greater quantities of drugs.
[50]R v Franze [2013] VSC 421 (‘Franze’); Beqiri v The Queen; [2017] VSCA 112 (‘Beqiri’).
In respect of Ground 2, the respondent submitted that the individual sentences, the total effective sentence and the non-parole period are not manifestly excessive, given the objective gravity and utmost seriousness of the offending. The judge had balanced all the relevant matters and given due consideration to the significant factors in mitigation that the applicant could call upon, particularly with respect to his physical and mental health conditions. The respondent relied on a number of cases involving drug offences with similar maximum penalties and quantities of drugs, to demonstrate that this sentence falls within the range of available sentences.[51]
[51]Saab v The Queen [2012] VSCA 165 (‘Saab’); Banker v The Queen [2016] QCA 74 (‘Banker’); Kev v The Queen [2015] VSCA 232 (‘Kev’).
Given the discretionary nature of sentencing, the ground of manifest excess is difficult to establish.[52] In order to establish the proposed ground of manifest excess, the applicant must establish that the sentence imposed is wholly outside the range of sentencing options available.[53]
[52]DPP (Cth) v Brown [2017] VSCA 162 [55]
[53]DPP v Karazisis (2010) 31 VR 634, 662-63 [127]; Clarkson v The Queen (2011) 32 VR 361, 384 [89].
As we have already noted, the submissions of both parties on Ground 2 have been directed towards comparable cases in an effort to demonstrate whether the sentence is outside the range of sentences available or not. It is convenient to consider those cases referred to by the parties, particularly those highlighted at the appeal hearing.
In Franze, a total effective sentence of 17 years’ imprisonment, with a non-parole period of 13 years was imposed for two charges of attempting to possess a commercial quantity of an illegal border controlled drug, namely methylamphetamine (133.3 kilograms) and cocaine (14.1 kilograms). On the charge of attempt to possess a commercial quantity of methylamphetamine, the offender was sentenced to 16 years’ imprisonment and on the cocaine count he was sentenced to 10 years’ imprisonment, with one year cumulated on the base count. The amount of methylamphetamine was almost 200 times the threshold for a commercial quantity applicable for that drug and the amount of cocaine was seven times the threshold. The offender had pleaded not guilty. He was sentenced on the basis that he had played a ‘significant role’ in the drug enterprise.[54]
[54]Franze [2013] VSCA 421 [16].
In Beqiri, Beqiri appealed against a sentence of 15 years’ imprisonment, with a non-parole period of 11 years imposed in respect of a single charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methlyamphetamine. The attempted possession related to a quantity of pure methlyamphetamine which was in excess of 23 kilograms. This was 30.7 times the commercial threshold applicable for this drug. Beqiri had pleaded not guilty, but had no prior history. Beqiri was sentenced on the basis of playing a principal or executive role and that he had participated in the offending in expectation of substantial financial gain. The Court dismissed the appeal against sentence.
Counsel for the respondent took the Court to the following decisions in support of her submission that the individual and total effective sentences and non-parole period were within range.
In Saab, the offender appealed against a sentence of 14 years’ imprisonment imposed for a charge of import a commercial quantity of a border controlled drug, namely cocaine. The offender had imported 14.6 kilograms of cocaine, which amounted to 7.3 times the threshold applicable for that drug. Saab had pleaded guilty at the earliest practical opportunity and the sentencing judge found that his plea was ‘accompanied by genuine remorse’.[55] Saab was sentenced on the basis that he was a principal organiser of the importation in Australia and was on any view ‘a major figure in a large scale and highly organised drug importation.’[56] The appeal was dismissed, with the Court finding that there was ‘nothing at all untoward about a sentence of 14 years imprisonment for offending of this nature.’[57]
In Banker, the offender appealed against a sentence of 12 years’ imprisonment, with a non-parole period of 8 years on a charge of import a commercial quantity of a border controlled drug, namely 4.177 kilograms of pure methylamphetamine, which was 5 times the threshold applicable for this drug. The offender had pleaded not guilty. Unlike the applicant in the instant case, Banker was sentenced on the basis that he was simply a courier. [58] He was 71 years old, with no prior criminal history. The Court refused the application for leave to appeal against sentence.
[58]Banker [2016] QCA 74 [53].
In Kev, both Kev and Sok appealed against total effective sentences of 14 years and 9 months’ imprisonment, with a non-parole period of 11 years imposed on each of them for one charge of import a commercial quantity of a border controlled drug (heroin) and one charge of possession of a commercial quantity of a border controlled drug (heroin). The total effective sentence was the base sentence imposed on each of them for the importation offence. The amount of heroin which they imported was 12.36 kilograms, 8 times the commercial quantity applicable for that drug. On the charge of possession of a commercial quantity of heroin (2.4 kilograms), they were each sentenced to 6 years’ imprisonment, which was wholly concurrent. They both pleaded not guilty. They were each sentenced as participants in the importation who ‘occupied trusted and significant positions in a wider organisation involved in this offending.’ [59] Both of the offenders had some prior convictions. The Court refused both applications for leave to appeal, noting that the sentences were entirely appropriate.
[59]Kev [2015] VSCA 232 [12].
The applicant’s sentence of 15 years does appear high when compared with the two cases relied upon by the applicant of Beqiri and Franze. These cases involved sentences of or slightly above 15 years’ imprisonment for offending which involved quantities which were certainly significantly greater than in this case. The applicant effectively submits that sentences of this kind are reserved for offending which concerns massive quantities. Although the quantity of the drug is not the controlling factor when it comes to assessing the seriousness of the offence, a sentence in the order of 15 years’ imprisonment for this offending, not involving massive quantities, invites some scrutiny. [60]
[60]Wong v The Queen (2001) 207 CLR 584, 609 [70]; R v Pham (2015) 256 CLR 550, 562–3 [35]–[37], 564 [45].
Self-evidently Beqiri and Franze represent only two instances of sentencing, and two cases do not define a sentencing practice, still less do they indirectly set a boundary for drug offending concerning large, though not massive, quantities. Besides, they are not precedents.[61] The applicant’s argument tends to elevate the importance of sentencing practice (assuming it can be discerned from just two cases) to the point where it is determinative of the appropriateness of the sentence in question. The sentencing practice informs, but cannot determine, the appropriate sentence in a particular case.[62]
[61]For example, DPP v Zhuang (2015) 250 A Crim R 282, 292 [30]; DPP (Cth) v Brown [2017] VSCA 162 [56].
[62]DPP v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063.
In any event, regard must also be had to all of the cases referred to during the hearing of the appeal. We are mindful that a number of the cases relied upon by the respondent involve the offence of importing a controlled border drug, rather than possessing or attempting to possess a controlled border drug. Due allowance must be made for this. Nevertheless, they still provide some guidance. There is no established pattern of sentences for the offence of possession of or attempt to possess a border controlled drug, and this offending and the offence of import carry the same maximum penalty and involve very similar conduct.[63] The applicant took no issue on the appeal that these cases provide some guidance.
[63]DPP (Cth) v Haynes [2017] VSCA 79 [39].
Viewed broadly, the cases suggest that high quantity, high value border controlled drug offending, at least where it concerns significant levels of responsibility and where there are none of the discounts associated with a plea of guilty, will invariably attract sentences of imprisonment in the early to mid-double figures.
The applicant’s case could be so described. The quantity may not have been of the massive kind with which Beqiri and Franze were concerned, but it was still very large all the same (nearly 8 times the threshold quantity), it concerned high levels of purity (in the vicinity of 80 per cent), the applicant occupied a commercial role, was motivated by the potential of significant financial reward, and he received none of the benefits of a plea of guilty. We agree with his Honour’s assessment that the objective seriousness of this offending was of the ‘utmost gravity’.
We repeat that this offending occurred when the applicant was on a court-imposed Community Correction Order, which makes this offending more serious.
Approached in this way, and when regard is had to all the relevant factors, including the maximum penalty of life imprisonment, it cannot be said that the sentence of 15 years is wholly outside the range of sentencing options available. At best, the sentence probably falls towards the upper end of that permissible range.
We are very aware of the applicant’s sad, indeed shocking, background. It does moderate his sentence but there are limits to its ameliorating influence. There was no specific evidentiary nexus established between this deprivation and the offending in question. It is also trite that general deterrence and public denunciation loom very large in the sentencing of large scale drug offenders. As is usually the case with large scale drug offending, the applicant’s offending here was calculated. One of the functions of this sentence is that it must deter others from entering into this pernicious trade. Persons who are considering chasing the potential riches associated with this trade must know that, if caught, they will face substantial punishment. That is why Parliament has set the maximum penalty of life imprisonment.
Finally the cumulation of three years of the trafficking sentence upon the attempt to possess sentence was, in our view, appropriate. The orders allowed for six years of the trafficking sentence to be served concurrently, which no doubt reflected the overlap or connection between the two offences. We discern no error in this approach or in the resulting total effective sentence of 18 years. It did not offend the totality principle. In short, once it is accepted, as we have found, that the 15 year sentence on the attempted possession offence was within the available range, so too was the total effective head sentence of 18 years.
Finally a 14 year non-parole period fixed with reference to a head sentence of 18 years is unremarkable and could not be described as manifestly excessive.
In our opinion, ground 2 is sufficiently arguable to justify a grant of leave, but for the reasons given above, we would dismiss the appeal.
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- AGLC
- Schanker v The Queen [2018] VSCA 94
- Case
- [2018] VSCA 94
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the admissibility of certain evidence and the appropriateness of the sentence imposed. Specifically, the court had to determine whether the trial judge erred in characterising the evidence as res gestae, and whether it could be admitted as original transactional evidence or for hearsay purposes under the Evidence Act 2008. Additionally, the court examined whether the appellant was wrongly categorised as a 'principal' offender and if his sentence was manifestly excessive.
The High Court found that the trial judge did not err in characterising the evidence as res gestae, and it was appropriately admitted. The court also held that the evidence could be used for hearsay purposes under the Evidence Act 2008. Furthermore, the court concluded that the appellant was correctly categorised as a 'principal' offender, and his sentence, which included an effective total of 18 years' imprisonment with a non-parole period of 14 years, was not manifestly excessive.
Consequently, the High Court dismissed the appeal against conviction and sentence, affirming the decision of the lower court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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