Reported Decision : 121 A Crim R 196 New South Wales Court of Criminal Appeal CITATION : R v GUINAN [2001] NSWCCA 55 FILE NUMBER(S) : CCA 60295/00 HEARING DATE(S) : 6 March 2001 JUDGMENT DATE : 6 March 2001 PARTIES : Regina GUINAN, Sean Gerrard JUDGMENT OF : Meagher JA at 49; Hulme J at 1; Smart AJ at 50 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0302 99/11/0706 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : Crown: CP O'Donnell Appellant: PR Boulten SOLICITORS : Crown: Commonwealth Director of Public Prosecutions Appellant: Peter Ash & Associates DECISION : Appeal dismissed - 16 - IN THE COURT OF CRIMINAL APPEAL No: 60295/00 MEAGHER JA HULME J SMART AJ Tuesday, 6 March 2001 REGINA -v- Sean Gerard GUINAN JUDGMENT 1 HULME J : On 12 April 2000 the appellant pleaded guilty to a charge to the effect that on or about 11 December 1998 he was a party to two or more non-reportable cash transactions and, having regard to the manner and form in which they were conducted, it would be reasonable to conclude that he conducted the transactions in that manner and form for the sole or dominant purpose of ensuring or attempting to ensure that the currency involved in the transactions was transferred in a manner and form that would not give rise to a significant cash transaction. 2 On the same day he pleaded not guilty to charges that between about 5 November 1998 and, in one case 5, and in the other case 12 January 1999, he was knowingly concerned in the importation into Australia of prohibited imports, to which s 233B of the Customs Act 1901 applied; namely, narcotic goods consisting of not less than the trafficable quantity of 3, 4 methylenedioxymethamphetamine, in other words, ecstasy. Due to some problem with the jury, that trial aborted and another involving the same charges and pleas commenced on 13 April 2000. 3 On 20 April 2000 the jury brought in a verdict of guilty on both counts and on 19 May 2000 Judge Gibson sentenced the appellant as follows: "1. In respect of the charge of conducting cash transactions to avoid reporting, the appellant was sentenced to a fixed term of 12 months imprisonment from 20 August 1999. 2. In respect of the first count of importation, a fixed term of imprisonment for four years, commencing on 20 August 1999; and 3. In respect of the second count of importation, imprisonment for nine years, including a non-parole period of six years, both terms also commencing on 20 August 1999." 4 It is to be inferred that the commencing date of 20 August 1999 was fixed to reflect some pre-trial custody which the appellant had suffered. 5 In his appeal against conviction the appellant relies on three grounds:- "1. The trial miscarried as a result of the Crown Prosecutor submitting to the jury that they might find it strange that the appellant did not call evidence from his brother, David Guinan. 2. His Honour erred when he instructed the jury that the defence contended that the only reasonable explanation consistent with innocence was that someone sent the drugs to the accused's post box by mistake. 3. His Honour erred by inappropriately cross-examining the appellant such as to question the appellant's veracity." 6 There was also an application for leave to appeal against sentence. 7 To place these grounds in context, some short account of the matters relied upon by the Crown is necessary. The appellant had in about November and December 1998 sent to his brother David in the United Kingdom sums totalling some $54,000 made up of a number of payments, each of which was under $10,000, and thus which did not require the banks involved to report them to the authorities. Four of the payments were each of $8,500 and were made on the same day. 8 On about 4 January 1999 officers of the Customs Department intercepted a parcel posted from London. It was found to contain about 2,500 tablets containing MDMA. It was addressed to Phillip Johnson, Suite 166, 3 Holtermann Street, Crows Nest. At 3 Holtermann Street, Crows Nest, a business of Mail Boxes Etc was conducted. The appellant had, in September 1998, rented mail box 166 at that address for a period of three months. On 9 December the proprietor of the business had placed a letter in the box indicating that the rental of it would expire in 14 days. On or shortly before 5 January there had also been placed in the box a yellow slip stating that there was a bulky parcel available for collection. 9 On 5 January 1999 the appellant attended on the mail box. He obtained the letter and yellow slip, went to the counter, renewed his lease of the box, and received the parcel. His conduct in relation to the parcel was somewhat suspicious, but in due course he took it away and was later found with it under the seat of his car. In the meantime, he had purchased some forty-odd small sealable plastic bags, which he also had with him at the time of his arrest later that day. 10 On 11 January another similar parcel, similarly addressed, arrived at Mail Boxes Etc. It was also found to contain about 2,500 white tablets containing MDMA. This parcel was the subject of the second charge. There was evidence that the value of 5,000 MDMA tablets purchased in wholesale lots of 1,000 in the United Kingdom in December 1998 was between about $AUD27,000 and $AUD61,000. The wholesale value in Australia was between $AUD75,000 and $AUD125,0000 and the maximum retail value if sold individually was $500,000. GROUND 1 11 Following upon the closing addresses and before his Honour commenced to sum up, counsel appearing for the appellant expressed his concern that the Crown Prosecutor in his address had said, "You might find it strange that Noel gave evidence but not David", referring to two of the appellant's brothers. 12 His Honour responded by observing that the Crown had then said that the appellant "doesn't have to prove anything". His Honour went on to express the view that he thought the topic was best left alone, but asked what counsel for the appellant wanted his Honour to say. Counsel replied that he did not want his Honour to say anything. His concern was that an observation to like effect not be made in his Honour's summing up. 13 In support of his submission that the remark by the Crown Prosecutor should not have been made, reliance was placed by counsel for the appellant on observations in RPS v R [2000] 199 CLR 620, R v Buckland (1977) 2 NSWLR 452, R v Newland (1997) 98 ACrimR 455, OGD (1997) 45 NSWLR 745 at 753, R v Taufua [1999] NSWCCA 205 and R v Scott [2000] NSWCCA 187 at [34-39] wherein the dangers and often inappropriateness of using in a criminal trial the approach for which Jones v Dunkel (1959) 101 CLR 298 is the leading authority were pointed out. 14 It was submitted on behalf of the Crown that, in light of the stance taken by counsel for the appellant at the trial, the Court should apply Rule 4 of the Criminal Appeal Rules and decline to permit the point to be taken in this Court. However, if the original remark by the Crown Prosecutor should not have been made, it would be somewhat unfair to the appellant to deny him the opportunity of relying on the matter here, because he did not wish additional emphasis to be directed to the topic in front of the jury. Thus, leave under Rule 4 should, in respect of this ground, be given. 15 And the comment was inappropriate. Indeed, counsel appearing for the Crown before us conceded as much. If the Crown case was correct, David Guinan was almost certainly an accomplice of the appellant. He would have been well advised not to enter New South Wales with its attendant risk or increased risk of prosecution, and the calling of him would have been not unlikely to have involved the issuing of a certificate under s 128 of the Evidence Act and warnings under s 165 of that Act being given. Simply on the basis of those matters, or merely of not adding to the issues in the trial, there were legitimate reasons for the appellant or his legal advisers wishing not to call David Guinan. Thus, no inference could fairly be drawn from their failure to do so. 16 However, in light of the subsequent statement by the Crown Prosecutor, which I infer from his Honour's remarks closely followed the offending submission, it is in the highest degree unlikely that that submission will have had more than minimal, if any, effect on the jury. That the Crown bore the onus of proof of all the elements of the charge beyond reasonable doubt was also repeatedly stated by his Honour in the course of summing up in terms to which no objection was or could be taken. 17 In light of both the remarks of the Crown to this effect and what his Honour said, I regard the remark to which objection has been taken as inconsequential. GROUND 2 18 The passage of his Honour's summing up which is the inspiration for this ground is in these terms: "If there is another reasonable explanation consistent with his innocence then you must acquit. What is the other explanation? As I understand it, it is suggested this: That someone has, by mistake, sent to the address of the accused's box in the name of Johnson, Ecstasy worth between $75,000 and $500,000 on the street, in the circumstances that I have set out above. When the person to whom it has been wrongly sent has been sending money to England illegally, which would be sufficient to cover the cost of those drugs, at least in the lower range, as I understand it, and it is entirely a mistake, and that, as I understand it, is the explanation that is consistent with his innocence in that he did not know anything about it. It is entirely a matter for you. You make up your mind on the evidence." 19 The passage, it is submitted, is erroneous on two bases. Firstly, it is submitted that the passage suggests that the jury could not have a reasonable doubt unless they were persuaded that it was a rational one, and reliance was placed on a passage in Green v R (1971) 126 CLR 128 at 33 where the High Court held that a reasonable doubt was not so confined. 20 The simple answer to this submission is that there is nothing in the passage I have just quoted from the summing up which constitutes such a restrictive direction. 21 The second complaint is that the direction was "a gross mischaracterisation of the defence case and was delivered with clearly apparent irony". It was asserted that the appellant had no set explanation for how it was the drugs arrived addressed to Mr Johnson in the appellant's mail box; he had never contended that the drugs arrived at his post office box by accident and had given evidence that three nominated persons knew, or had the opportunity to know, the mail box address. 22 His Honour's summing up concluded at about 3.45 p.m. on the afternoon of 19 April. Slightly earlier, his Honour obviously considered he had come to the end of his summing up and asked counsel whether there was anything they wished to raise. Counsel for the Crown responded in the negative, but Mr Boulton, appearing for the appellant, raised, and raised only, the topic of good character. His Honour then gave some directions on that topic, concluding at the time I have indicated. 23 His Honour then sent the jury out, indicating to them that they could commence their deliberations on the following morning. On that morning counsel for the appellant said that his Honour's reference to an alternative hypothesis "came across as though this was an argument which was being advanced by the defence and that it was in fact a mere coincidence that somebody would send $75,000 or $500,000 ....". 24 Counsel seems to have been cut off and the following exchange occurred: "HIS HONOUR: Well that's the effect of it isn't it? BOULTON: Well there are other possibilities and we didn't hit upon any of them as being the precise alternative scenario nor do we have to ... HIS HONOUR: What are you asking me to do? BOULTON: I'm not asking you to do anything. HIS HONOUR: Well what's the purpose of this application if you're not asking me to do anything? BOULTON: Because I just wanted it noted that there is disquiet on behalf of the accused. HIS HONOUR: Unless you want me to do something, I'm not going to spend my time round here having things noted that you want noted for the purposes of an appeal, if you think that's what it's all about. It's down there. You made no objection to the summing up. If you want me to do something, tell me what you want me to do and I'll consider. BOULTON: Yes, no, I don't want you to do anything." 25 The irony said to be clearly apparent in the above passage was, it would seem, not sufficiently clear for it to be adverted to by counsel in his remarks on the following morning. While that fact cannot be determinative of the issue, the absence of any mention of irony suggests that what his Honour said and the manner of expressing it cannot have left such an impression. 26 But when one has regard to what counsel did say, a clearer case of counsel electing not to seek a redirection in respect of something said to be erroneous in a summing up would be hard to find. 27 The error, if there was one, may fairly be described as a statement of the alternative hypothesis advanced on behalf of the appellant which was inadequate in only referring to one and inaccurate in misstating the one which was adverted to. 28 I do not doubt that there may well be cases where such an error in a summing up required the intervention of this Court and the granting of leave under rule 4. But when regard is had to the fact that the trial started on 13 April, the Crown case finished at lunchtime on Monday 17 April, the accused was in the witness box from then until shortly before lunch on 18 April, the evidence concluded before lunch on 19 April, when counsel addressed, the address of counsel for the appellant extending into that afternoon, the same day in which the remark of his Honour was made, it may reasonably be inferred that such arguments and alternative hypotheses as had been advanced on behalf of the appellant were still fresh in the jury's mind. 29 Leave to rely on this ground of appeal should be refused. GROUND 3 30 The first passage to which exception is taken occurred shortly after re-examination of the appellant commenced. He acknowledged that he had been cross-examined about what he had said to the police in an ERISP concerning what he had said to the proprietor of the mail box at the time of picking up the package containing the drugs the subject of the first charge. He was asked to look at question 154 in the record of the interview and then the following exchanges occurred: "Q. Where you were asked 'What did you do when you were actually handed the postal article?', the answer which is recorded is 'When I was handed it, had a look at it, had a look at the thing, the address and everything, had a look at the package. I think I said to the guy, I said something to the guy I don't know what it was.' Q. What did you mean when you said to the police 'I said something to the guy I don't know what it was' HIS HONOUR: There's a full stop after 'guy'. BOULTON: Yes, well this is the way it's been transcribed yes. Q. What did you mean by that answer? A. I mean that's what I was trying to tell the guy. Q. What? A. Being Mr Schlosser, that I didn't know what it was. Q. Didn't know what was? A. The parcel. HIS HONOUR: Are you seriously saying that the answer that you recorded there 'I said something to the guy I don't know what it was', aren't you referring to the fact that you don't know what you said to the guy? (no verbal reply) Q. Well is that so or not? A. Sorry, what was the question your Honour? Q. You say 'I think I said something to the guy I don't know what it was', now are you saying that those words 'I don't know what it was' are the words you suggest you said to the man? A. I think - I think it is the case your Honour." 31 His counsel then suggested that the video recording itself should be looked at, then reflected on the fact that would take a little time and said he would pass on to something else. 32 The question objected to is that of his Honour and it is submitted that the words "are you seriously saying" indicated disbelief in the appellant's evidence. 33 In fact, after another page and a half, when it would seem that Mr Boulten had concluded his re-examination, the transcript records that, due to problems with the video player, he decided not to bother reshowing the video in court, observing that the jury were able to play it for themselves. 34 After that apparent end of the re-examination his Honour then asked a number of further questions, which, together with their answers occupy about a page of transcript. The topic was the purpose for which the appellant had bought 40-odd plastic bags shortly after picking up the package of drugs. He had earlier given some evidence to the effect that he had bought them to contain some sundry items, such as children's marbles or keys and for samples of applied paint which might be needed should there be any claim arising out of defects in painting work for which he was responsible. 35 His Honour's questions seemed almost exclusively directed or calculated to providing further particularity of that latter use. Again, it is submitted that his Honour's questions were designed to test, rather than clarify, the appellant's evidence and, combined with the earlier questioning to which I have referred under this ground, likely to further lead to the diminution of the appellant's case in the eyes of the jury. When, according to the submission, that questioning is further considered in light of what is said to be the belittling of the defence case in the summing up in the passage I have referred to when considering ground 2, it is submitted that the cross-examination was likely to have led to a miscarriage of justice. 36 I do not agree. The topic of judicial intervention is said to amount to a miscarriage of justice and some of the authorities bearing on that were considered by me recently in R v Sinanovic [2000] NSWCCA 396 and it is unnecessary for me to repeat that review. 37 Those authorities make it clear that a judge is entitled to comment, and comment strongly, on factual issues and I see no ground for concluding that the mere fact that his views may become apparent - if indeed that is the proper conclusion for what happened in this case - during the course of some questioning of an accused rather than during the course of the summing up makes any difference. Of course interventions which make it impossible for an accused to fairly tell his story to the jury or prevent his counsel from fairly presenting the defence, or which are expressed so strongly or so often that the jury is or may be - I do not purport to state the test with accuracy - overborne will constitute a miscarriage of justice. 38 The questioning and remarks which are the subject of this ground of appeal come nowhere near the level where they could be regarded as constituting a miscarriage of justice. This ground also fails. SENTENCE 39 The quantity of pure MDMA in each parcel was about 205 grams. Under the Customs Act the trafficable quantity of MDMA and of any drug analogue thereof is .5 of a gram and the commercial quantity is 500 grams. Pursuant to s 235, the maximum penalty for the importation of a commercial quantity is imprisonment for life and for the importation of a trafficable quantity, imprisonment for twenty-five years and a fine not exceeding $100,000. Sacrificing some accuracy for brevity, where a person has previously been convicted of an offence under s 233B involving a trafficable quantity, the maximum penalty for a conviction involving a second trafficable quantity is life imprisonment. 40 Of course, because remissions are not available in New South Wales prisons, the figure of twenty-five years has to be discounted by about one-third: see eg R v Spiteri [1999] NSWCCA 3 at [13] where I reviewed a number of cases on this topic. Hence, the appellant's offences (treating them as one instance of criminality) rendered him liable to imprisonment for about sixteen and a half years. 41 Two principal matters were relied on in support of the application to appeal against sentence. The first was that his Honour had found that the applicant was "the principal entrepreneur in Australia". This finding was attacked, it being submitted that the evidence did not support it. I agree. Although the evidence of the sending of money to his brother, and receipt of one of the parcels, and the addressing of the second parcel to the appellant's mail box, suggests that his interest in the venture was more than that of a mere courier, the evidence was silent as to the involvement of other persons. Thus it is that I do not regard the finding as justified. 42 However, the appellant did not give evidence and there was equally no evidence to suggest that the appellant's involvement was less than the evidence to which I have referred makes apparent. There is no reason to think that his role was a minor one or that of, for example, a mere courier. In these circumstances, it is appropriate to sentence him on the simple basis of his offending against the statutory proscription, rendering him liable to sixteen and a half years gaol. See The Queen v Olbrich . [1999] HCA 54; (1999) 199 CLR 270. 43 The second basis upon which it was contended that the sentence was too high was by comparison with statistics published by the Judicial Commission and references to sentences imposed in other cases. 44 The table summarising sentences previously imposed and published by the Judicial Commission do reveal that for the offence of importing a trafficable quantity of Ecstasy the highest full term imposed in twenty-six cases the subject of that table is nine years, that highest being imposed in one case, and the highest minimum term six years imposed in two cases. Contrasted with the statutory maximum of approximately sixteen and a half years, those figures make one wonder whether adequate attention has been given by sentencing judges to the maximum prescribed by Parliament for the offence. I find it surprising that of twenty-six cases not one has come closer to a situation of a worst case. Tables for the importation of a commercial quantity of Ecstasy do nothing to alleviate my concern. 45 I have had occasion in the past to review many of the cases in which sentences have been imposed for the importation of Ecstasy. R v Burrill on 11 December 1998 and R v Slaternik [1999] NSWCCA 2 are two such cases and I do not think it necessary to review at length, as I did in those cases, previous authorities. 46 I agree that the sentence imposed on the appellant in this case was high. I agree that it is higher than many cases referred to in those reviews. However, when I compare his offence against a worst case, as that term is understood in this area, of offences under the relevant statutory provision, I am not persuaded that the sentence was outside the legitimate exercise of his Honour's sentencing discretion. Indeed, I think it was well within it. 47 The quantity involved was something over 80 per cent of the maximum quantity which answers the description trafficable. The applicant's involvement was not shown to be of a minor nature. It is true that he had no prior record, and that would argue against his sentence being at the top of the range. Nevertheless, at nine years, it was something less than 60 per cent of the maximum sentence. 48 In my view, both the appeal against conviction and the application for leave to appeal against sentence should be refused. 49 MEAGHER JA : I agree. 50 SMART AJ : I also agree. 51 MEAGHER JA : The orders of the Court therefore are the orders proposed by Hulme J. -------------------------------------------------------------------------------------------------------------------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.