Robert Minniti v R [2006] NSWCCA 30 (20 February 2006)

CITATION: Robert Minniti v Regina [2006] NSWCCA 30

FILE NUMBER(S):

2005/155

HEARING DATE(S): 30 January 2006

DECISION DATE: 20/02/2006

PARTIES:

Robert Minniti

Regina

JUDGMENT OF: Sully J Hoeben J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0774

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:

K.A. Chapple SC - Crown

O.P. Holdenson QC - Appellant

SOLICITORS:

C'wealth DPP - Crown

Gregory J. Goold - Appellant

CATCHWORDS:

LEGISLATION CITED:

Customs Act 1901 (C'th)

Crimes Act 1914 (C'th)

DECISION:

Appeal against conviction dismissed

Leave to appeal against sentence granted

Appeal against sentence dismissed

JUDGMENT:

- 32 -

IN THE COURT OF

CRIMINAL APPEAL

2005/155

SULLY J

HOEBEN J

LATHAM J

20 February 2006

ROBERT MINNITI v REGINA

Judgment

SULLY J:

Introduction

1 Between 23 November 2004 and 2 December 2004 Mr. Minniti, the appellant, stood trial in the District Court at Sydney before his Honour Judge Dodd and a jury. The appellant was so tried upon an indictment which charged him with having attempted, on 2 November 2003 at Sydney, to commit an offence against section 233B(1) of the Customs Act 1901 (C’th) in that he had attempted to possess narcotic goods which had been imported into Australia in contravention of the Customs Act. The goods were described in the charge as having consisted of a quantity of 3.4 – methylenedioxymethamphetamine (“MDMA”); the particular quantity having been not less than the commercial quantity as defined by the Customs Act. An offence of the kind thus described attracts upon conviction a penalty of, relevantly, imprisonment for life.

2 On 2 December 2004 the jury found the appellant guilty as charged. On 17 March 2005 Judge Dodd formally convicted him and sentenced him to imprisonment for 12 years, fixing a non-parole period of 8 years.

3 The appellant now appeals against conviction and applies for leave to appeal against sentence.

The Competing Cases at Trial

4 These are summarised, helpfully and succinctly, and as follows, in the written submissions put in by learned Senior Counsel for the Crown:

“Brief statement of the Crown case

4. Briefly, the Crown case was that on 4 October 2003 a large piece of farm equipment was imported into Sydney from Belgium. Secreted within the machinery was a very large quantity (865 bags) of tablets that were discovered by Customs and the Australian Federal Police (“AFP”). On examination the tablets were found to contain 3-4 Methylenedioxymethamphetamine, also know as MDMA or ecstasy. On 9 October 2003 a Dutch national, Antonius Rutten came to Australia to supervise the distribution of the tablets. Later that month 2 Belgian nationals came to Australia, removed the tablets and provided them to Rutten.

5. Rutten took the tablets to a city apartment he had rented. Both Rutten and the Belgian nationals were arrested on 1 November 2003 by AFP Federal Agents. On the same date, 1 November 2003 Tibor Vermes borrowed a white VW Transporter (Victorian Registration no. OLE 957) from a friend who lived in Victoria. (Admissions relating to parts of this evidence were made by the Appellant at AB 190-191).

6. Following Rutten’s arrest the police had taken one of the wheelie bags Rutten had in his apartment, removed the real ecstasy tablets weighing about 47 kilograms with a pure weight of about 20 kilograms (a smaller part of the original shipment( (AB 460) and replaced them with a large quantity of harmless tablets. The police had also taken the Toyota Tarago Rutten had been using during his time in Sydney, parked it in Goulburn Street near the Delifrance Café (at the intersection of George Street and Goulburn Street, Sydney) and placed the wheelie bag containing the inert substance inside the vehicle.

7. After he was arrested Rutten agreed to assist the authorities. Under police supervision he made a phone call to a man whose number Rutten had been provided with by his European controller. The next day, 2 November 2003, after being fitted with a recording device, Rutten was allowed to travel to the Delifrance Café. Surveillance police and other Federal Agents were in the area by arrangement.

8. On the same day that Rutten attended the Delifrance Café, Sunday 2 November 2003, Vermes, the Appellant, another man called Kazich (who was also later arrested) and the VW Transporter vehicle were in the general vicinity of the Delifrance Café.

9. About mid afternoon on 2 November 2003, Rutten was joined in the Delifrance by Vermes. Rutten recognised Vermes’ voice from the telephone conversation the previous night. After some conversation Rutten and Vermes left the Delifrance Café and headed towards Rutten’s Tarago parked in Goulburn Street. They were joined en route by the Appellant. At the Tarago Rutten took out the bag the police had placed in the vehicle and all three men retraced part of their journey back to the George Street/Goulburn Street intersection. Along the way the Appellant took over wheeling the bag from Rutten. The Appellant left Rutten and Vermes at the George Street/Goulburn Street intersection and took the wheelie bag from that location to Rawson Place, a street further south off George Street in the vicinity of Central Railway. On the way the Appellant met up again with Vermes and also Kazich who was standing in the street and all three kept on walking south. The Appellant left Vermes and Kazich at the intersection of George Street and Rawson Place and headed along Rawson Place towards Pitt Street.

10. The VW Transporter was parked in Rawson Place. The Appellant took the bag to an alcove near the VW Transporter and then was told to stop by a Federal Agent who was in the area. The Appellant left the bag and ran along Rawson Place away from George Street and was apprehended by a number of Federal Agents who converged on the Rawson Place and Pitt Street intersection. The wheelie bag was recovered and the Appellant was found to have the keys to the VW Transporter in his pocket.

11. When the recording device was removed from Rutten later that day it was found to contain some conversation between Vermes, Rutten and the Appellant before the Appellant left their company. After some exchanges about the suitcase and the car (the Crown case being that the “suitcase” was the wheelie bag and the “car” was the VW Transporter) the Appellant said “ ..... what about if we walk it just take our time ...... walk back like normal fucking ..... normal tourists ....”. (Transcript, Exhibit C, AB 645-6).

Brief Statement of the case raised by the Appellant

12. In essence the case put forward by the Appellant at the trial was that he knew nothing about attempting to possess MDMA. After his arrest he exercised his right not to be interviewed (Transcript, Exhibit D, AB 646). Federal Agents were cross-examined regarding their surveillance observations and it was suggested to the relevant witnesses that the Appellant had not run away from the Federal Agents. The Appellant did not give evidence and did not call any witnesses.”

5 It will be necessary to return presently to a more particular consideration of aspects of the cases thus summarised.

The Conviction Appeal : Grounds of Appeal

6 The following grounds were formally notified. All were pressed at the hearing of the appeal:

“1. The learned trial judge erred in not preventing (by way of direction or ruling) the Crown Prosecutor from making and relying upon a submission to the jury in support of the Crown case that the accused had run away from the police when he was approached by the police because the accused knew or believed unequivocally that the suitcase contained ecstasy pills or some goods of a narcotic nature and, as a consequence, there has been a substantial miscarriage of justice.

PARTICULARS

(i) This submission invited the jury to engage in an impermissible process of circular reasoning because such a submission invited the jury to find (or conclude) that the accused ran away because the accused believed that the suitcase contained ecstasy pills or goods of a narcotic nature in circumstances where, if the jury had found that the accused believed that the suitcase contained ecstasy pills or goods of a narcotic nature, then there was nothing further which the Crown had to prove concerning the conduct of the Appellant.

(ii) It was not open to the jury to make such a finding.

2. The Crown Prosecutor erred in making and relying upon a submission to the jury in support of the Crown case that the accused had run away from the police when he was approached by the police because the accused knew or believed unequivocally that the suitcase contained ecstasy pills or some goods of a narcotic nature and, as a consequence, there had been a substantial miscarriage of justice.

PARTICULARS

(i) This submission invited the jury to engage in an impermissible process of circular reasoning because such a submission invited the jury to find (or conclude) that the accused ran away because the accused believed that the suitcase contained ecstasy pills or good of a narcotic nature in circumstances where, if the jury had found that the accused believed that the suitcase contained ecstasy pills or goods of a narcotic nature, then there was nothing further which the Crown had to prove concerning the conduct of the Appellant.

(ii) It was not open to the jury to make such a finding.

3. The learned trial judge erred in failing to direct the jury that the jury must not act upon the submission to the jury made and relied upon by the Crown Prosecutor that the accused had run away from the police when approached by the police because the accused believed that the suitcase contained ecstasy pills or some goods of a narcotic nature and, as a consequence, there has been a substantial miscarriage of justice.

PARTICULARS

(i) This submission invited the jury to engage in an impermissible process of circular reasoning because such a submission invited the jury to find (or conclude) that the accused ran away because the accused believed that the suitcase contained ecstasy pills or goods of a narcotic nature in circumstances where, if the jury had found that the accused believed that the suitcase contained ecstasy pills or goods of a narcotic nature, then there was nothing further which the Crown had to prove concerning the conduct of the Appellant.

(ii) It was not open to the jury to make such a finding.

4. The learned trial judge erred in his directions to the jury concerning the accused running away from the police when he was approached by the police and, as a consequence, there has been a substantial miscarriage of justice.

PARTICULARS

(i) The learned trial judge invited the jury to engage in an impermissible process of circular reasoning because the learned trial judge invited the jury to find (or conclude) that the accused ran away because the accused believed that the suitcase contained ecstasy pills or goods of a narcotic nature in circumstances where, if the jury had found that the accused believed that the suitcase contained ecstasy pills or goods of a narcotic nature, then there was nothing further which the Crown had to prove concerning the conduct of the Appellant.

(ii) The learned trial judge failed to direct the jury that, before the jury could use (in support of a finding that the Appellant was guilty of the offence charged) a finding that the accused had run away from the police because the accused knew or believed that the suitcase contained ecstasy pills or goods of a narcotic nature, the jury was required to make that finding to the standard of beyond reasonable doubt.

5. The learned trial judge erred in failing to direct the jury that, before the jury could use (in support of a finding that the Appellant was guilty of the offence charged) a finding (or conclusion) that, in referring to “walking like normal tourists”, the accused was saying that they should pretend to be normal tourists or act like normal tourists instead of as persons in carrying illicit drugs or so as not to attract attention to themselves or himself, the jury was required to make that finding (or draw that conclusion) to the standard of beyond reasonable doubt and, as a consequence, there has been a substantial miscarriage of justice.

6. The verdict of the jury is unreasonable and cannot be supported having regard to the evidence.

PARTICULARS

(a) It was not open to the jury to find beyond reasonable doubt that the Appellant knew or was aware or believed unequivocally that the suitcase being dragged by him contained (or was supposed to contain) ecstasy pills or goods of a narcotic nature.

(b) It was not open to the jury to exclude beyond reasonable doubt an hypothesis consistent with innocence, namely, that the Appellant was, at the behest of Vermes, taking the suitcase to Vermes’ car, the Appellant having no knowledge that the suitcase contained (or was supposed to contain) ecstasy pills or goods of a narcotic nature.”

7 Grounds 1, 3 and 4 focus, appropriately in my opinion, upon alleged deficiencies in the trial Judge’s directions to the jury.

8 Ground 2 is, in my opinion, misconceived. Insofar as the Crown Prosecutor made and relied upon the impugned submission, and the submission is demonstrably wrong in law, then any resulting miscarriage flowed, having regard to the way in which this particular trial was conducted, from the failure of the presiding Judge to correct the demonstrated error. So much is recognised, in various particular ways, by the terms of Grounds 1, 3 and 4. In my opinion Ground 2 calls for no extended present consideration.

9 Grounds 1, 3 and 4 seem to me to make, essentially, a single point in three different ways. I propose, therefore, to deal jointly with those grounds, but concentrating upon Ground 4 which seems to me to identify the point at which the alleged miscarriage occurred, if it occurred at all.

The Conviction Appeal : Grounds 1, 3 and 4

10 On 29 November 2004, the fifth day of the trial, learned Senior Counsel then, (but not now), appearing for the appellant made an application for a directed acquittal. The Crown case had not been formally closed; and, for reasons at present of no significance, there was the prospect of a delay until the Crown case could be formally closed. It was agreed that the time thus available could be employed usefully by dealing with a foreshadowed application for a directed acquittal; and the trial proceeded accordingly. It was not controversial that the Crown case was circumstantial. The attack made by the defence upon that case and in aid of the application for a directed verdict was summarised as follows in the trial Judge’s ruling upon the application:

“I now turn to what I regard as the more substantial submission made by the defence, which is that there is no evidence in the Crown case to prove that the accused knew, in the relevant sense, that the narcotic goods that he was attempting to posses, according to the Crown case, were in fact narcotic goods. It is accepted by the Crown that, in order for the jury to bring in a verdict of guilty, the Crown case must prove beyond reasonable doubt that the accused knew, in the relevant sense, that the goods he was attempting to possess were prohibited narcotic goods.”

11 His Honour’s ruling is supported by the following process of reasoning:

“Knowledge is defined in the Commonwealth code at section 5.3 in the following way:

“A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.”

In this case, in my view, what is required is evidence – that is, for the purpose of considering this application – sufficient to go to the jury that the accused had knowledge that the goods he was attempting to possess were prohibited narcotic goods. I need not, for this purpose, go into a theoretical discussion of knowledge any further.

The Crown case is not particularly strong. The evidence as to knowledge is not direct. The Crown relies upon certain evidence to raise an inference that the accused knew that the goods were prohibited narcotic goods. The Crown relies upon the circumstances of the accused accompanying another person to Sydney, apparently for the purpose of collecting a suitcase from a man Rutten who was concerned, on his own admission, in the importation into Australia of the prohibited narcotic goods, or at least in the attempted distribution of those goods after their importation into Australia. Rutten handed over the suitcase, which in fact contained dummy, substituted goods rather than the actual prohibited narcotic goods. The accused took the suitcase some short distance down George Street, Sydney, apparently intending to place it eventually in the vehicle that he and his companion had used to come to Sydney from Melbourne.

If the Crown case stood at that, it seem to me it would not be sufficient to go to the jury. However, there are two other circumstances. One is a conversation in which the accused takes part. That conversation is not yet before the jury, but its contents are known. As I have indicated before, it has been fully taken account of by both parties in considering this submission by the defence.

In part of that conversation the accused utters words which, in my view, could support the inference that he knew, in the relevant sense, that what he was attempting to obtain in the bag were prohibited narcotic goods.

In addition, the other circumstance is evidence given by police officers of events shortly before or at the time of his arrest. It is said by a number of police officers that when an arrest was attempted he ran away a short distance and was apprehended only after either a chase or on collision with one of the police officers – the evidence of the police officers is contradictory in a number of respects and defence counsel has rightly, from the defence point of view, made much of that in cross-examination and no doubt will make much of it if the matter goes before the jury by way of address.

Despite the inconsistencies in the evidence of the police officers, it seems to me that it is a jury issue as to whether in fact he ran away. It has been put to those police officers that he did not run away when the arrest was attempted. That, it seems to me, is a matter of fact that I cannot now decide. The jury, of course, will have to be given the usual directions and cautions as to their consideration of such evidence. Despite that, it seems to me that, in the total context of the case, that is evidence from which they could, if they saw fit, draw the conclusion that the accused did run away when an arrest was attempted and on that basis, combined with the other evidence, it seems to me the jury could come to a verdict of guilty.”

12 As previously noted herein, the appellant neither gave nor called evidence.

13 In due course the Crown Prosecutor addressed the jury. In his peroration he put these submissions:

“Members of the jury, the circumstances that we submit to you are important in the case and that you would find ultimately are a matter for you, but if it be suggested to you that there are circumstances in the case and you are unclear about what the Crown is saying, may I go through them once again with you, because I have referred to all of them in a number of ways before lunch.

Firstly, the accused is in this area of the Delifrance to meet, we submit you would find on this evidence, with Vermes, to meet with Rutten he and Vermes are acting together.

Secondly, the accused takes this bag. We submit that’s clearly what he is there for; he’s there to take the bag and that’s what happened. Rutten hands it over to him, even though Vermes is still there with them. It’s the accused that takes the bag and heads off down George Street to be joined by Vermes. It is the accused that has the keys to this vehicle when he is arrested up in Rawson Place and he takes the bag to the vehicle. That’s effectively, we submit, what he was doing.

True it is, you may feel, that the evidence is not actually there; it’s not actually in the vehicle, and we submit to you it’s not in the vehicle because his freedom of movement was taken away from him. Not to put any finer point on it, that’s what happened; he was arrested before he could do that.

When he was approached by the police, he ran away. We also submit to you that if you consider and take into account the directions that his Honour gives to you in relation to the street conversation, as we have been calling it, the recorded conversation on this wire that’s on Rutten the accused, in fact, was suggesting that they would pose as normal tourists instead of drug collectors. That’s, in effect, the circumstances under which this conversation occurred with Rutten there. What you may feel is it’s a pretty bizarre series of events. Again, not to put too fine a point on it, the three men are in the middle of Sydney on this Sunday afternoon, we submit, to do exactly what happened. They went there by arrangement, Rutten with Vermes over the phone; Vermes approaches Rutten and the three men eventually meet up and do exactly what they set out to do, and even discuss it, which in itself you may feel is an incredibly bizarre conversation. They discuss at some length what they are going to do, the various ways that they could be done. We submit to you that, itself, extenuates the thing that is concerning them the most – getting this bag and getting it from point A to point B without any trouble.

That, we submit to you, if you step back and if you think about the evidence that you have heard, if you go and read and digest and take on board the admissions that cover a vast amount of evidence in the case that hasn’t had to be called, that’s in exhibit 1, if you apply your collective minds and wisdom to these facts, follow his Honour’s directions, you will draw the inferences that we submit to you are available and you will be satisfied beyond a reasonable doubt that this accused did commit this offence.”

14 Learned Senior Counsel then appearing for the appellant opened his closing address to the jury thus:

“The real issue in this case is when the accused took physical control of the suitcase by taking its handle, pulling it along, did he do so intending to take possession of its contents, and did he believe – this is what you have got to be satisfied of – as he did so, that it contained narcotic goods, to wit drugs, or that it would contain narcotic goods, or was aware that it contained narcotic goods?”

15 Much later during his address, Senior Counsel returned to this point:

“It may be necessary, and I’m sure his Honour will direct you, for you to understand this: possession of a suitcase is irrelevant at law. It is possession of the contents that we are concerned with. You have got to have the intention to be in possession of the contents of the suitcase with the belief that they are narcotic drugs. That’s the issue. Not physically being in possession. There is no dispute, and there never has been any dispute, that in so far as he’s got the handle, he’s in physical possession of the bag. It’s the mental element and the law always requires that it is the mental element that must accompany the physical element that is the important aspect.”

and on the following day, shortly after having resumed his address:

“................. You should concentrate on the fact that the defence says that there is simply no evidence before you that the accused ever believed that the case that he was pulling along and left near the alcove contained drugs. That’s the nub of the case.”

16 The address, as it continued, made a precisely argued and sustained attack upon the prosecution evidence of suggested flight, or attempted flight, by the appellant. It was put to the jury in that connection:

“One thing is absolutely sure: the evidence of these witnesses cannot be reconciled. It is open to you to find – you don’t have to find – that there has been quite a deliberate attempt to reconstruct or build or reinvent evidence in the witness box, particularly, you might think, by Mr. Murray, in suggesting that he was knocked over, knocked to the ground by the accused and the like. None of those matters are claimed by others, as I understand it, who were the ones who chased and actually apprehended the accused, or confirmed that that’s what they did. Each one of them contradicts the other.

I don’t know, I can only guess at, the motives of those who have gone about this exercise. It may well be it will remain in the area of only possibilities, but it is obviously there, evidence about the so-called running is obviously there, and in a case where otherwise there is extraordinarily little to nothing against the accused

You will be directed in due course by his Honour how to deal with the evidence that I have just been dealing with. Of course, you don’t even get to deal with that evidence, or use it in any way, unless you are satisfied that you can accept the police officers, that it happened – in other words, that you are satisfied that their evidence is reliable about the accused running.”

17 A strong attack was made, also, upon the tape-recorded conversation evidence led as part of the Crown case. The thrust of that attack was that the jury should regard that material as unreliable, principally because of obvious gaps in the continuity of what had been put before them.

18 The trial Judge began his summing-up immediately upon the conclusion of the defence address. Very early in the summing-up, and in the context of a series of conventional general directions of law, his Honour gave these instructions:

“The next important direction that I must give you is what lawyers refer to as the onus of proof. This is a criminal trial of a most serious nature, and the burden of proof of the guilt of the accused is placed firmly upon the Crown. That onus remains on the Crown in relation to every issue in this case. This does not mean that the Crown has to prove the truth of each assertion of each Crown witness. What the Crown must prove beyond reasonable doubt is each ingredient in the charge.”

19 Soon thereafter his Honour embarked upon an examination of the essential elements of the charge upon which the appellant was standing trial. His Honour directed the jury in terms that the jury must be satisfied beyond reasonable doubt that the appellant had in fact attempted to obtain possession of the relevant suitcase and its contents. The notion of possession was explained to the jury in this way:

“Let me say something about possession. A dictionary would tell you that to possess something means to have that thing, but I need to clarify that concept of possession as it is recognised by the law in the present context. The essence of the concept of possession in law is that at the relevant time you intentionally have control over the object in possession. You may have this control alone or jointly with some other person or persons. You, and those persons, if any, must have the right to exclude other people from it. If these conditions are fulfilled, then you may be said to have possession of that object, whether it is your own sole possession or whether it is a joint possession with somebody else.

It is not necessary for you to have something in your hand, pocket, wallet or purse before the law says that you have it in your possession. Further, you do not need to own something in order to possess it. You can possess something temporarily or for some limited purpose. You can possess something jointly with one or more other persons.”

20 The further development by his Honour of this section of the summing-up led his Honour to re-summarise what his Honour described as the “physical elements” and the “mental elements” of the offence charged. The relevant parts of this excursus are as follows:

“I come, now, to a discussion of what is really at the crux of this case and where I suggest you will need to focus most if not all of your attention in terms of deciding what your verdict is to be in this case, and that is what I have referred to as the mental elements or the state of mind of the accused. The Crown must prove to your satisfaction beyond reasonable doubt that the accused intended to possess the thing, that is, what was in the suitcase. In terms of what was in the suitcase without identifying it as anything in particular, I suggest to you that, again, you probably will not have too much difficulty in deciding that the accused intended to possess, in the relevant way that I have discussed with you, what was in the suitcase. But these are all matters for you to decide. You must find that beyond reasonable doubt.

The next element that you must be satisfied of beyond reasonable doubt before you can find the accused guilty of this offence is this, that he had knowledge of what was supposed to be in the suitcase, that being, in the context of this case, knowledge or awareness that what was supposed to be in the suitcase was prohibited narcotic goods. And that is, I suggest to you, where your focus will be for the most, if not the entire, part of your discussion of this case. What is clearly the issue in this case is whether the accused knew that what was supposed to be in the suitcase was prohibited narcotic goods.”

and a little later:

“It is sufficient if he knew or was aware or believed in the relevant sense that I have discussed with you that there were ecstasy pills, or supposed to be ecstasy pills, or some prohibited narcotic goods in the suitcase when he took it down George Street towards Rawson Place. But as I say, unless you conclude beyond reasonable doubt that he knew or was aware or believed unequivocally that so far as he was concerned what was in the suitcase was prohibited narcotic goods, you will find him not guilty.”

21 There were quite extensive further directions in the same vein; but it is unnecessary to repeat them in detail.

22 His Honour then proceeded to the topic of proof of a circumstantial case. The directions central to this part of the summing-up were these:

“Where, however, the Crown case depends in whole or in part on circumstantial evidence, then it relies upon evidence of a basic fact or facts from which the jury is asked to infer or conclude that a further fact or facts existed, being the accused’s guilt of the crime; in this case, in particular, the relevant mental state or state of mind of the accused. Because the onus of proof is on the Crown to prove its case beyond reasonable doubt as to every essential element or ingredient of the charge, any such inference or conclusion from basic facts relied upon by the Crown must of course be a conclusion reached by you beyond reasonable doubt, having taken into consideration not only the material presented on behalf of the Crown, but also any material presented on behalf of the accused and after having given careful consideration to the submissions of counsel on behalf of both the Crown and the accused.

Now a case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence depending on the nature of the circumstances relied upon when considered as a whole, not individually or in isolation, and the degree of clarity and certainty to which that evidence may lead inevitably to the conclusion that the Crown has established its case. It is essential that you examine the evidence with care and consider whether it is reliable before drawing any conclusions from facts which you regard as established by it. If, in your view, it is not of sufficient reliability to enable you to come to the conclusion which the Crown says you will come to after having taken into consideration any material or arguments presented on behalf of the accused and also after taking into account the submissions of the Crown, then you must acquit. That is, you must find the accused not guilty.

The circumstances relied upon by the Crown in this case are as follows. I noted six I think it was that the Crown sought to rely upon. Firstly, that the accused was in company with the man Vermes and brought by Vermes, at one stage at least, to meet the man Rutten I think in Goulburn Street. Secondly, that the accused, again I think it was in Goulburn Street, takes the bag or the suitcase from Rutten. Thirdly, that the accused has on his person or in the clothes he is wearing the keys to I think what has been termed the VW Transporter vehicle. Fourthly, that he takes the suitcase to the vehicle or at least to the vicinity of that vehicle, the VW Transporter. Now, I might not have expressed all of those exactly in the way that the Crown expressed them, but I think that is a fair summary of those aspects of what the Crown is relying upon. I say to you that if the Crown case stood there, if they were the only matters sought to be relied upon by the Crown, then you would not find the accused guilty, you would be bound to find him not guilty. The Crown also relies upon the following circumstances. Fifthly, that the accused ran away when approached by police. I will have some further directions to give you about that. And finally and sixthly, the Crown relies upon the conversation which is the subject of ex C. You will have the CD and have the ability to play it, facilities to play it, in the jury room if you wish, and you have the transcript which is there for your assistance. And, in particular, the Crown relies upon that particular part of the conversation where Mr. Minniti is said to be speaking, identified in the transcript at number 34 on the second page, where he refers to “walking like normal tourists”. Counsel for the Crown suggests to you that the conversation indicates, and you would draw this conclusion or inference, that Mr. Minniti, the accused, in suggesting that they would walk like normal tourists is saying that they should pretend to be normal tourists or act like normal tourists instead of as persons involved in carrying illicit drugs. In relation to what the Crown says is his behaviour in running away when approached by police who wished to arrest him, the Crown says you would draw the conclusion that he ran away because he knew or believed unequivocally that there were prohibited narcotic goods in the suitcase that he had been carrying down George Street.”

23 Once again, there were further directions in the same vein, but they need not be set out in detail.

24 His Honour then moved to a more precise charge to the jury on the topic of, as the Crown had put its case, the flight of the accused. In that connection his Honour gave to each member of the jury a document, and gave directions in the terms set out. This part of the summing-up is central to the grounds now being considered, and it is useful to reproduce the contents of the document. They are:

“RUNNING FROM POLICE

The Crown submits to you that you will find that the accused ran away when the police first tried to arrest him, and that you will draw the inference that he ran away because he believed there were ecstasy pills (or some prohibited narcotic goods) in the suitcase he had taken along George Street to Rawson Place.

The Defence submits to you that you will not find that the accused ran away from police. The Defence also submits to you that if, contrary to this first submission, you do find that he ran from police, you will not draw the inference that he ran away because he believed there were prohibited narcotic goods in the suitcase.

In considering these submission first you must decide whether the accused did in fact run away from police in Rawson Place. Only if you come to the conclusion that you are satisfied of this do you then go to the next step. If you are not satisfied that he ran away from police as alleged by the Crown that is an end of your consideration of this issue.

If you are satisfied that he ran away from police as alleged by the Crown you then consider whether you are satisfied that he did so because he believed there were prohibited narcotic goods in the suitcase. Only if you are satisfied of this do you use it to support a finding of guilt of the charge.

In considering this issue (if you get to it) of why he ran away from police you must take into account any other possible reason why he may have acted in that way. If you think there is another possible reason why he may have run away from the person or persons who were police in those circumstances then you will not be satisfied of the Crown submission. If you think his actions in running away are capable of innocent explanation or an explanation different from that submitted to you by the Crown then you will not be satisfied on this point. Only if his actions in running away are unambiguously attributable to a belief on his part that there were prohibited narcotic drugs in the suitcase you will find this matter established.

Bear in mind that sometimes persons may run away from police for reasons unconnected with the alleged offence for which police wish to arrest them. It may be out of panic, or a fear of being unjustly accused of something, or to avoid another consequence having nothing to do with the alleged offence, and there may be other reasons. If you think he may have run away for any reason other than that he believed there were prohibited narcotic goods in the suitcase then you will not use his running away to support a finding of guilt.

However, if you are satisfied that he did run away and if you are also satisfied that he ran away because he believed there were prohibited narcotic goods in the suitcase then you are entitled to take that into account together with all the other evidence in deciding whether you are satisfied beyond reasonable doubt that the accused is guilty.”

25 The remainder of the summing-up summarised the opposing submissions of the parties. That material need not be examined in detail.

26 The submissions of the appellant respecting Grounds 1, 3 and 4 really come down to this proposition: that in each of the paragraphs of the written directions on flight, the trial Judge should have directed upon the basis that the alleged flight of the appellant constituted an intermediate fact which itself constituted an indispensable link in a chain of reasoning towards an inference of guilt – see paragraph 20 of the appellant’s written submissions. It follows, so the appellant’s argument runs, that the directions should have put explicitly to the jury that there could not be a proper finding either of flight in fact; or of flight evidencing consciousness of guilt as charged; unless the finding was one made beyond reasonable doubt.

27 In fact, the trial Judge had proposed, in draft directions earlier circulated to counsel, to take that very course: see the discussion at AB 520 and following. It seems that his Honour changed his initial position because of a submission by the Crown Prosecutor that to do so would better reflect the guidance given by this Court, (Meagher JA, Bell and Hidden JJ), in Ho [2002] NSWCCA 147; [2002] 130 A Crim R 545.

28 Ho dealt, inter alia, with directions that had been given to a jury at trial upon the topic of flight by the accused from the crime scene. The core of those directions appears in a passage quoted by Bell J, who delivered the principal judgment, at paragraph 59 of her Honour’s reasons. The quoted passage reads:

“The direction of law I give you is that if you are satisfied beyond reasonable doubt that the accused fled the scene of the alleged assault and alleged robbery you may draw an inference against him that he acted in that way because he believed that he was a knowing and willing participant in either or both of the two alleged offences. But before you can draw that inference you must be satisfied beyond reasonable doubt that there is no other reasonable explanation for the fleeing and hiding, in all of the circumstances.”

29 Her Honour proceeds in her paragraph 63 to summarise as follows the submissions of the Crown in connection with the quoted directions:

“The Crown points to the directions on flight as a whole and submits that any deficiency is overcome by the circumstance that his Honour gave a direction which was unduly favourable to the appellant in that it required the jury to be satisfied beyond reasonable doubt that the appellant’s flight was the product of his consciousness of guilt of the offences charged before it might be relied upon.”

30 Her Honour notes some of the observations of this Court in Adam [1999] NSWCCA 189; (1999) 106 A Crim R 510 at 521[54] – 522[57], those observations including references to parts of the joint reasons of Deane, Dawson and Gaudron JJ in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193; as well as references to various decisions of this Court, to one of which:Taylor (unreported), NSWCCA, 18 April 1995), I shall return presently.

31 The foregoing survey in hand, her Honour expresses her conclusion as being:

“I consider that read in context his Honour’s directions on flight were adequate and in certain respects favourable to the appellant.”

32 That sentence, read sensibly in context, seems to me to require reading as though the word “unduly” preceded the word “favourable”. That was, after all, the gravamen of the Crown submission which the Court upheld.

33 Taylor, to which I have referred, contains the following observations and statements of principle, the quoted extracts being taken from the reasons of Hunt CJ at CL, Sully and Levine JJ concurring:

“The ground of appeal numbered 6A asserts that the judge misdirected the jury that:

“It is the combination of the totality of the circumstances that you find proved that you must look at and you must then consider whether that combination and totality is consistent with innocence.”

That direction must be seen in its proper context.

The Crown relied upon a circumstantial case in order to establish that the act of the appellant causing the rifle to discharge and thus the death of the deceased was a deliberate one on his part. After a brief explanation of what circumstantial evidence is, the judge directed the jury as follows:

“However, before you can convict on circumstantial evidence you must be satisfied beyond reasonable doubt that the facts as found by you are inconsistent with any other rational conclusion than that the accused is guilty; but that does not mean that you should consider each circumstance by itself and consider whether that circumstance is consistent with innocence, and then move on to the next circumstance.”

There followed the passage already quoted:

“It is the combination of the totality of the circumstances that you find proved that you must look at and you must then consider whether that combination and totality is consistent with innocence.”

That was followed by this passage:

“If it is, then it is your duty to acquit but if, having regard to the nature of the totality and combination of circumstances, you are satisfied beyond reasonable doubt that the circumstances are consistent only with guilt then it is your duty to convict.”

In that context, there can be no valid complaint concerning the passage to which this ground of appeal is directed. Where the Crown case depends upon circumstantial evidence, the customary direction (when given) is that such a case can succeed only where the guilt of the accused is the only reasonable (or rational) inference which can be drawn from the circumstances established in that evidence: Hodge’s Case (1838) 2 Lewin 227 at 228 [168 ER 1136], Peacock v The King (1911) 13 CLR 610 at 634; Plomp v The Queen [1963] HCA 44; (1936) 110 CLR 234 at 243; Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104; Grant v The Queen (1975) 11 ALR 503 at 504; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 578. It is often added that, if the jury consider that there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, they are bound to find the accused not guilty: Peacock v The King (at 630); Regina v Alan Clifford Clarke (CCA, 29 March 1995, unreported) at 5-6.

Read properly, that is all that the judge has said here. Counsel appearing for the appellant at the trial appears to have misheard the direction. At the next adjournment, he said:

“In respect of circumstantial evidence the standard direction is that referring to innocence. In my submission, the appropriate direction is the jury can only find guilt if they are satisfied on the totality with the material and there is no other reasonable hypothesis except guilt and the references to consistent with innocence deleted and replaced with lack of guilt.”

The judge said that he had already given the standard direction.

Complaint is also made of a repetition of the effect of what had already been said:

“Which circumstances you accept or find proved are matters for you and having determined which facts or circumstances are proved to your satisfaction you then consider the totality and combination of what you find proved and whether that combination and totality is consistent with common sense, or whether it is consistent only with guilt.”

(The words “common sense” were obviously a misreading by the shorthand writer of the shorthand outline for “innocence”.) This direction is said by counsel now appearing for the appellant to have been likely to confuse the jury totally. His predecessor, however, complained about the use of the word “innocence”, not any likelihood of confusion.

The complaint concerning the reference to innocence was not pursued after the recent decision of this Court in Regina v Alan Clifford Clarke was drawn to the attention of counsel for the appellant. I would reject this ground of appeal.”

34 The approach thus propounded seems to me to accord with long settled principles.

35 Ever since the decision of the High Court of Australia in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, any case of the present kind has to be dealt with in the shadow of two contrasted forensic metaphors. The first is the “links in a chain” metaphor. The second is the “strands in a cable” metaphor.

36 It appears to be now settled law that a circumstantial Crown case which is properly to be treated as a “links in a chain” type of case will require jury directions about any so-called intermediate facts which are “indispensable links in ........ (the jury’s) .......chain of reasoning towards an inference of guilt”, to borrow from the Court judgment, (Wood CJ at CL, James and Adams JJ) in Merritt [1999] NSWCCA 29 at paragraph 70. Such directions must identify facts having that potential significance; and the jury must be instructed that if the jury sees any such fact as constituting such an indispensable link, then the fact must be proved beyond reasonable doubt before it can be utilised as part of the chain of reasoning to an inference of guilt as charged.

37 It appears to be equally settled law that a circumstantial Crown case which is properly to be treated as a “strands in a cable” type of case will not require any directions other than the conventional directions that are summarised by Hunt CJ at CL in the passage commencing: “In that context, there can be no valid complaint ..........” in his Honour’s reasons in Taylor as previously herein quoted.

38 What continues as a difficult concept, and a concept unexplored in any decision to which this Court was referred in the present case, is the concept, or principle, by which a trial Judge can determine with a proper professional confidence whether he has on his hands a case calling for “links in a chain” directions; or, rather, a case calling for “strands in a cable” directions.

39 That this conundrum is a real one is illustrated by the reasoning in Merritt (supra) where it is said at paragraph 69:

“It is important not to be carried away by the power of metaphors but, in the context of this case, we think that whilst it is possible to consider this concatenation of facts as strands in the cable, it was also possible, quite reasonably, to consider one or more of them as links in a chain, that is to say indispensable to a conclusion of guilt.”

40 It is easy enough to rationalise the view of the Court that in such a case the fact that the case in hand exhibits the characteristics of both a “links in a chain” case and a “strands in a cable” case requires directions appropriate to the former category. After all, to say that a case might be supposed reasonably to attract a “links in a chain” analytical method, is to say that the jury might reasonably so approach the case, in which event the jury must be forewarned appropriately about what the law requires in that connection.

41 What is not so easy to pin down, at least as I understand the current state of the law, is some clear and practical exposition of the principle(s) by reference to which a particular case is to be categorised in the first place as a “links in a chain” case as distinct from a “strands in a cable” case.

42 It seems to me that a key to the correct resolution of that problem can be found in some propositions advanced by Hunt CJ at CL when dealing, in Taylor, not with the topic of flight, but with the separate topic of lies. It is useful to quote in full the relevant passages:

“The ground of appeal numbered 6B asserts that the judge misdirected the jury as to lies. In his written submissions, counsel for the appellant complained that the judge failed to identify the particular lies which could be considered by the jury as evidencing a consciousness of guilt, and that he should have directed them “that, before they could use the telling of a lie as an independent proof of guilt, they would have to be satisfied as to the lie and its character beyond reasonable doubt”.

The simple answer to the second complaint is that it was no part of the Crown case as put to the jury that they should use any lie as independent proof of guilt. And, where lies are used merely as evidencing a consciousness of guilt, as part of a circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt: Regina v Dellapatrona (1993) 31 NSWLR 123 at 150; Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 210; Regina v Sandford (1994) 72 A Crim R 160 at 181; Regina v Small (1994) 33 NSWLR 575 at 596.”

43 That approach, whether or not it provides a comprehensive resolution of the problem now being discussed, seems to me both correctly principled and practical, as an indication of how this Court should now dispose of Grounds 1, 3 and 4.

44 The six matters which Judge Dodd summarised for the jury in the passage quoted at paragraph 22 hereof outlined a concatenation of propositions which the Crown was putting forward in combination as a circumstantial Crown case which, if accepted, was inconsistent with any other reasonable hypothesis than that of the appellant’s guilt as charged. No one of the six nominated propositions was put forward by the Crown as “independent proof of guilt”. No two of the propositions were put forward as having the necessary combined cogency provided that some further proposition connecting them was first accepted as having been established in fact. The Crown went to the jury upon the bases that the jury could and should find each of the six propositions to have been established; and that the combined effect of all six propositions was, thereupon, sufficient to establish beyond reasonable doubt the appellant’s guilt as charged.

45 It seems to me that a sensible, practical analysis of the authorities does not require that a Crown case framed in that fashion needs to be complicated in its presentation by the trial Judge to the jury by an arcane philosophical digression that issues in directions which are likely to confuse rather than to assist the jury. In my opinion the Court should follow the approach of Hunt CJ at CL in Taylor. That entails, in my opinion, that Grounds 1, 3 and 4 should be rejected.

The Conviction Appeal : Ground 5

46 The facts particular to this Ground differ, of course, from those particular to Grounds 1, 3 and 4; but the analysis made in connection with those latter grounds applies mutatis mutandis to Ground 5.

47 I would not uphold Ground 5.

The Conviction Appeal : Ground 6

48 The governing principles are not in doubt. They are established by the decision of the High Court of Australia in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, reaffirmed in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. The essential principle, taken from M, is:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

49 The six component parts of the circumstantial case upon which the Crown went to the jury raised a handful of straightforward issues of fact. The first four components were undisputed. The fifth component was hotly disputed, both as to what had actually happened and as to what could fairly be read into what had actually happened, due regard being had in the latter connection with the whole of the relevant course of events covered by the remaining five components. The sixth component was disputed, not as to the words actually spoken by the appellant, or as to the broad factual context in which the words were spoken; but as to what could fairly be read into the words, due regard being had in that connection both to deficiencies alleged by the appellant to be present in the recording itself, and to the wholly equivocal nature of what might be thought to have been meant by the words themselves.

50 The first major issue of fact for the jury was whether the appellant had decamped, or at least had attempted to decamp, from the scene after the police arrived at the scene. It is but necessary to read the material extracted at paragraph 16 hereof in order to grasp the unmitigated bluntness of the attack that was made upon the Crown witnesses who had given evidence of the fact of the appellant’s having attempted to flee the scene. The verdict of the jury, having seen and heard the relevant witnesses, those advantages not being available to this Court, entails to my mind, and speaking in practical terms, that the jury rejected that attack.

51 Much the same can be said about the attack made upon the recorded conversation in which the appellant spoke the allegedly incriminating words to which the Crown case pointed. The attack itself was somewhat more temperate; but the jury heard the actual recording, and was better placed than this Court to evaluate any suggested deficiencies, whether in the recording itself or in what was caught by the recording.

52 I am unpersuaded that it was not open to the jury to decide in favour of the Crown all of the disputed issues of fact that the jury had to resolve in connection with the fifth and sixth components of the circumstantial Crown case.

53 It is then necessary to answer the M question, looking for that purpose at the combined strength of all six of the individual matters constituting the circumstantial Crown case.

54 That exercise calls into play some practical considerations that are explained as follows in the reasons of Gleeson CJ in Antoun v The Queen [2006] HCA 2, a decision delivered on 8 February instant by the High Court of Australia:

“It does not cut across established principles of onus of proof in civil or criminal cases to recognise the forensic reality that there are defence cases that have little practical chance of success unless supported by the testimony of a defendant, or an accused. Here, there was ample evidence to support a conclusion that what was going on was extortion. Such a conclusion may not have been inevitable, but it was clearly open on the evidence. It was possible to find, in the evidence, statements made by one or other of the appellants that were consistent with a possibility that they were seeking to recover a debt of $8,000. That did not mean the prosecution must fail. If there was material capable of raising an issue as to whether the appellants honestly held a certain belief, it may be accepted that it was legally necessary for the prosecution to prove that no such belief was held. Even so, in the absence of evidence from the appellants, the prosecution may have had little difficulty in persuading a tribunal of fact that the onus had been discharged. In the circumstances of a given case, evidence led by the prosecution, in the absence of a plausible explanation from an accused, may give rise to a strong inference adverse to the accused. An example is to be found in the decision of this Court in Weissensteiner v The Queen [3]. As was pointed out by Mason CJ, Deane and Dawson JJ in that case [4], it is a question of evaluating evidence; a matter of factual judgment. When a tribunal of fact came to evaluate the evidence of Mr. Savvvas and the other witnesses in this case, including the evidence of the conversations between Mr. Savvas and the appellants, in the absence of any explanation from the appellants, there were strong grounds for inferring that the appellants were not honestly pursuing a claim of right but were engaged in an attempt to extract payments to which they had no right.”

55 Appropriate allowance being made for particular factual differences between that case and the present appellant’s case, the Chief Justice’s exposition seems to me to be entirely apposite to the present ground of appeal.

56 I am unpersuaded that it was not open to the jury which tried the appellant to reject the attacks made upon the fifth and sixth components in the circumstantial Crown case; and to accept, thereupon, that the circumstantial Crown case as constituted by all six of the propounded parts of that case was sufficient to establish beyond reasonable doubt the appellant’s guilt as charged.

57 I would not uphold Ground 6.

The Conviction Appeal : Conclusion

58 In my opinion the appeal should be dismissed

The Application for Leave to Appeal against Sentence

59 Two grounds are advanced in support of this application. They are:

“1. The learned sentencing judge failed to accord any, or sufficient, weight to the Applicant’s previous good character.

2. The sentence imposed (that is, both the head sentence which was imposed and the non-parole period which was fixed) is, in all the circumstances of the case, manifestly excessive.”

It is convenient to deal jointly with both grounds.

60 In my opinion the correct starting point is this: once it is accepted that the appellant was rightly convicted of the crime for which he stood trial, then it must follow that the only sentence that was “of a severity appropriate in all the circumstances of the offence”, (see section 16A(1) of the Crimes Act 1914 (C’th) ), was a significant sentence of full-time custody. The objective criminality of the enterprise in which the appellant took part is put with complete clarity by the learned sentencing Judge:

“The quantity of Ecstasy involved was about twenty kilograms pure in about 200,000 tablets, weighing about forty-seven kilograms gross. The street value is about $14 million. This is an extremely serious offence.”

61 As to the basic objective facts relevant to sentence, his Honour found them, beyond reasonable doubt, as follows:

“1. You together with Vermes met Rutten in the vicinity of the Delifrance Café on George Street.

2. The meeting was for the sole purpose of obtaining from Rutten a significant quantity of Ecestasy.

3. You took possession of the bag containing the substituted Ecstasy tablets.

4. You transported the bag containing the Ecstasy substitute to the vehicle parked in Rawson Place.

5. You had the keys to that vehicle.

6. You took possession of the bag for the purposes of retaining it and ultimately taking it away from the Sydney CBD area.

7. When you were approached by police you ran leaving the bag with the Ecstasy substitute, and but for the intervention of police in arresting you, you would otherwise have been able to use the vehicle and leave with a significant quantity of Ecstasy which ultimately would have been distributed throughout the Australian community.”

62 I see no basis upon which this Court can now say that any of those findings was not properly open to his Honour.

63 His Honour was required by the basic principles of sentencing to determine as best he could the actual role of the appellant in the overall enterprise. His Honour dealt with that topic thus:

“The Crown further submits that there is a commercial and professional aspect to the nature of the operation which places your criminality and thus the seriousness of the offence in a higher category than if you had acted by yourself.

On your behalf it is submitted that there is no foundation for a finding that you were a principal or one of the principals or anything other than a mule. Rutten’s telephone conversations and negotiations leading up to the meeting were all with Vermes. Rutten was not aware of your existence before you met. Rutten’s evidence is that there was no discussion of drugs or money in your presence. You played no part in any negotiations, nor in the handing over of any money by Vermes which was done, apparently deliberately, in your absence and it is submitted on your behalf that this leads to the conclusion that you played a very minor role. It is further submitted on your behalf that you should be dealt with as merely being the conduit by which the suitcase and its contents were transported at the direction of Vermes to the vicinity of the vehicle where you sought further instructions from Vermes. It is submitted that it cannot be established either by direct evidence or inference that your role is anything more than a conduit who took the suitcase from Goulburn Street to the vehicle parked in Rawson Place. Although you were in possession of the keys to the car you did not put the suitcase in the car but put it on the edge of the footpath and there apparently called out to Vermes, it is submitted seeking further instructions or directions. It was also submitted on your behalf that there is no evidence that you gained or stood to gain anything by your actions.

In my view to a large extent the facts speak for themselves. There is no need to further categorise your role.

64 I see no proper basis for any interference by this Court with any part of those findings.

65 Those findings in place, it was necessary for his Honour to consider any particular matters which had to be placed into the balance by reason of the requirements of section 16A(2) and (3) of the Crimes Act (C’th). His Honour did so in careful detail. With one exception no present complaint is made about his Honour’s approach, analysis and conclusions.

66 The one exception concerns the factor of prior good character. It is now submitted that his Honour did not give the appellant the benefit to which he was entitled by reason of his undisputed prior good character.

67 His Honour summarises, as follows, in the remarks on sentence his Honour’s conclusions upon this topic:

“The main point of dispute appears to be whether you stood to gain some financial reward. There is no direct evidence of that. That is not unusual in these kinds of cases. However I cannot see that it makes any difference to this sentencing exercise. Whether you did it because you were promised some money or merely out of friendship or something else, the fact remains that you willingly assisted Vermes in obtaining a very large amount of Ecstasy which was obviously intended for widespread distribution, which you must have known. Your role was less than that of Vermes. It was not as significant as that of Rutten. Others were involved but there is no point in seeking to analyse their roles at various stages of the importation and distribution, and in any event the details are not strictly speaking before me in respect of your trial and this sentencing exercise.

While the part you played in the total enterprise may be described as minor in comparison to that played by others, it is not a minor offence. You chose to commit a very serious crime. It is an offence which must result in a fulltime custodial penalty.”

68 I see no error in that approach. There is, indeed, authority supporting the approach; an example will be found in the reasons of Wood CJ at CL, (Meagher JA and Barr J concurring) in Reg v Pang [1999] NSWCCA 4; (1999) 105 A Crim R 474 at 476(6).

69 His Honour was required, ultimately, to bring into a fair balance all of the relevant considerations, both objective and subjective. His Honour did not lack appellate guidance as to how that balance should be struck in such a case as the present one. Some brief citations of authority might now be useful.

70 In Reg v Muanchukingkan (1990) 52 A Crim R 354, Wood J, (as he then was), said at 356, (Gleeson CJ and Grove J concurring):

“A clear sentencing pattern exists for those involved in the heroin trade, and particularly those who bring that commodity into this country for financial gain. In the absence of a consistently tough sentencing policy, there is nothing to deter overseas purveyors of this drug, or local entrepreneurs out to make quick profits, from perpetuating the trade which poses such a threat to this community and its young. The observations which his Honour made concerning the need for Australian courts to show their muscle to potential traffickers from overseas were not misplaced, and I would express my entire agreement with them.”

71 It is, of course, correct to say that the present case is not concerned with heroin but with MDMA. It is equally correct to say that there are many other differences of detail between the facts of the case with which Wood J was dealing and the facts of the present appellant’s case. I can see, however, no reason in principle why Wood J’s essential reasoning ought not to be applied mutatis mutandis to such a case as the present one.

72 In Reg v Le Cerf (1975) 13 SASR 237 at 239 Wells J expressed the following views:

“Persons concerned in the importation, distribution and sale to consumers of cannabis, occupy respective positions that vary considerably in the importance that each has for the community as a whole, and for those charged with the duty of law enforcement on behalf of the community. Where evidence discloses that a convicted person is highly placed in an organisation for the importation, distribution and sale of drugs, contrary to law, it is to my mind, obvious that, other things being equal, he must expect condign punishment. Substantial retribution must be exacted from those who deliberately, cynically and greedily seek to profit on a large scale from breaking the law.

But again, assuming all other things are equal, it does not follow that a person less exalted in the organisation can confidently expect that his punishment will be correspondingly less severe. The ambit of his direct responsibility in deliberate law breaking is, in a sense, less, simply because his authority and role are less important to the organisation as a whole, but it remains true that he has knowingly entered into an unlawful conspiracy with persons known and unknown to obtain and distribute drugs, and it is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were no middle men and underlings, there would be no top men in an organisation. If an organisation is starved of recruits it must collapse.”

73 This reasoning has been adopted repeatedly by variously constituted Benches of this Court: see for example Reg v Behar [1998] NSWSC 567, (Spigelman CJ, McInerney and Sperling JJ); Reg v Muanchukingkan (supra).

74 Applying the foregoing authorities to the facts of the present case, I am unpersuaded that the sentence and the non-parole period fall outside the permissible range of sentence. I am strengthened in that view by the approach of this Court, (Dowd and Bell JJ, Smart AJ), in Reg v Emanuel [2004] NSWCCA 267. That was a Crown appeal; it entailed dealings in amphetamine rather than MDMA; and the offender had entered a timely plea of guilty. The case has, therefore, no more than a broadly indicative present value. Even so, Smart AJ expressed at paragraph (63) the view that a starting point on re-sentencing after a successful Crown appeal was, in his Honour’s view, a head sentence of imprisonment for 9 years. Having factored in a discount of 20 per cent for the plea of guilty, Smart AJ said of the resulting penalty:

“These are still lenient sentences and reflect the restraint of the court when re-sentencing.”

75 I would grant leave to appeal against sentence; and would dismiss the appeal itself.

Orders

76 I propose the following orders:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted.

3. Appeal against sentence dismissed.

77 HOEBEN J: I agree with the conclusions of Sully J and the orders he proposes.

78 LATHAM J: I agree with the reasons and orders proposed by Sully J.

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LAST UPDATED: 22/02/2006