R v FLAVEL [2001] NSWCCA 227

New South Wales Court of Criminal Appeal

CITATION : R v FLAVEL [2001] NSWCCA 227 FILE NUMBER(S) : CCA 60622/00 HEARING DATE(S) : 08/06/2001 JUDGMENT DATE : 8 June 2001

PARTIES : REGINA v Robert Scott FLAVEL JUDGMENT OF : Dowd J at 52; Barr J at 2; Greg James J at 53

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0473 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : Crown: D Fagan SC Appellant: W C Terracini SC SOLICITORS : Crown: Commonwealth Director of Public Prosecutions Appellant: Pitcher Walton & Co (incorporating Paton Lawyers) CATCHWORDS : Criminal Law - sentencing - importation of commercial quantity of cocaine. LEGISLATION CITED : Evidence Act 1995, ss 56, 101(2), 137 Harriman v The Queen (1989) 167 CLR 590 He Kaw Teh v The Queen (1984-1985) 157 CLR 523 CASES CITED: R v Leask [1999] NSWCCA 33 R v Pereira (1988) 35 A Crim R 382 R v Wong & Leung [1999] NSWCCA 420 DECISION : Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed

IN THE COURT OF CRIMINAL APPEAL 60622/00

DOWD J BARR J GREG JAMES J

Friday, 8 June 2001 REGINA v Robert Scott FLAVEL JUDGMENT

1 DOWD J: The Court is in a position now to give judgment in relation to the appeal of Robert Scott Flavel. In that respect Barr J will give the first judgment. 2 BARR J: Robert Scott Flavel appeals against his conviction by a District Court jury on the charge that between 1 September 1997 and 7 December 1998 he imported into Australia a prohibited import, namely narcotic goods consisting of a quantity not less than the commercial quantity of cocaine, and seeks leave to appeal against the sentence imposed by the trial judge, Ainslie-Wallace DCJ. The appellant was tried jointly with the co-appellant in this appeal, Beatriz Gonzalez-Betes. 3 The principal witness was an accomplice called Meggett. His evidence may be summarised as follows. Meggett met the appellant in about 1993. Meggett acted as crew for a man called Del Prado on a number of transatlantic voyages by boat. The appellant accompanied him on five of the voyages. 4 On each voyage the yacht carried a dinghy of a model called a Boston Whaler. At the conclusion of each voyage the dinghy was removed from the yacht in Spain and the yacht returned to its point of departure in the Caribbean. On one occasion Del Prado threatened Meggett with dire consequences if there should be any breach of the secrecy surrounding these journeys. The appellant was present and heard the threat. On one of the journeys Meggett and the appellant talked about places on the yacht in which things might be hidden. Meggett suggested the bilges but the appellant rejected the suggestion. Meggett mentioned the dinghy and the appellant nodded his head. 5 In 1997 Del Prado invited Meggett to make another voyage, this time across the Pacific, and offered him $400,000 to do so. Meggett told the appellant about the proposal and the money on offer. The appellant agreed to take part in the journey. Meggett went to Cuba where he met the co-appellant. They joined the yacht which was eventually used to make the journey, the Maeva. On a platform at the stern of the yacht was a Boston Whaler. Meggett, the co-appellant, and her husband sailed to the Netherlands Antilles and there met the appellant and Del Prado. Del Prado told Meggett to buy spares for the journey and asked the appellant to assist him. The appellant did as he was asked. 6 He and Meggett returned to the Netherlands Antilles where Del Prado gave instructions to the appellant to sail with Meggett and help him through the Panama Canal. They took the yacht together to Colon where Del Prado met them once again. He told them that he was leaving the next day to go to Colombia. He said the appellant was to sail with them and carry out the dinghy exchange while Meggett stayed out of sight. 7 The appellant took the yacht and about five days later returned with it to Colon. It was carrying a different Boston Whaler. They passed through the Panama Canal and the appellant left the yacht once again. Meggett set sail for Australia and during the journey kept in touch with the appellant, who met him in the Galapagos Islands and in Tonga. 8 The appellant instructed Meggett to sail to Lord Howe Island but he did not do so because of delays that had been experienced on the journey. He took the Maeva into Coffs Harbour, arriving on 5 December 1998. The appellant met the yacht there and assisted Meggett with customs procedures. On 7 December he directed Meggett to lower the dinghy from the yacht and assisted him in doing so. Meggett took it to the boat ramp where the co-appellant placed and secured it on a trailer. She was in the company of a co-offender called Campillo. He was later tried separately. The co-appellant, Campillo and Meggett were arrested at the boat ramp. The appellant was arrested at Coffs Harbour airport on his way to Sydney. The dinghy contained bulk cocaine weighing 244.8 kilograms, the equivalent of one hundred and seventy one kilograms of pure cocaine. 9 The defence case was that the appellant knew nothing about the presence of cocaine on board. He said that he was in a business which delivered craft and supplied parts for various parties who owned yachts and other vessels. He said that a man called John had offered him the job of taking the Maeva to Australia but that he had turned it down. Later on he found that Meggett had got the job and Meggett asked him to help. He agreed to help because he was a friend of Meggett. 10 He helped him take the vessel to Colon and through the Panama Canal. He assisted in getting visas and in obtaining repairs to damage which occurred to the boat en route. A representative of the owner got in touch with him when the yacht became overdue at Coffs Harbour and the appellant agreed to do all that he could to make sure that it arrived there. One reason why he did so was that Meggett was using his company name as he passed through various ports and he became concerned that if the yacht were delayed the reputation of his company might suffer. 11 The first ground of appeal complains about the admission of the evidence which I have summarised about the transatlantic journeys in which Meggett and the appellant took part and about the conversation they had about a good place to hide things. Timely objection was raised in the District Court and the point was decided before a judge other than the trial judge. The appellant's rights were preserved before the trial judge without any need to re-argue the issue. 12 It was common ground at trial and on appeal that the evidence about those journeys did not establish that any narcotic goods were carried or, for that matter, that there was anything unlawful about the activity carried on. 13 It was submitted on behalf of the appellant that the evidence was tendency evidence. It proved a tendency in the appellant to have a particular state of mind, that is to know that something suspicious was going on. It was put that the Crown case at trial was that the evidence proved that the appellant knew that some sort of contraband was being moved, concealed in the Boston Whalers. So the case was really one of "wilful blindness" as that term was used in He Kaw Teh v The Queen (1984-1985) 157 CLR 523 and other cases. Reference was also made to R v Pereira (1988) 35 A Crim R 382 and R v Leask [1999] NSWCCA 33. 14 The evidence, it was submitted, had therefore to pass the test set by s 101(2) Evidence Act, namely that it was inadmissible unless its probative value substantially outweighed any prejudicial effect it may have. It did not pass that test. Alternatively it was submitted that the evidence should have been excluded under s 137 of the same Act because its probative value was outweighed by the danger of unfair prejudice to the appellant. 15 In my opinion these submissions do not correctly describe the character of the evidence and the use to which the Crown was entitled to and did put it at trial. The evidence established that by the time the appellant undertook the Maeva voyage he knew about the journeys by yacht from the Caribbean to Spain, that Meggett had been involved in them, that on each voyage the yacht was met by Del Prado and the Whaler unloaded and taken away, that Del Prado had a strong desire to keep these events secret, that the appellant suspected that contraband was being carried in the dinghies, that he alone took each yacht to a location in the Caribbean and exchanged dinghies before each voyage and that the place where the dinghies were exchanged and his suspicion that contraband was being carried in them must have made him suspect that the contraband was cocaine. 16 The Crown was entitled to invite the jury to find against that background that the appellant must have believed when he began the Maeva voyage that the purpose of the transatlantic runs had been to carry cocaine, that Del Prado was probably a substantial trafficker in cocaine and that the purpose of the Maeva voyage would therefore be to transport cocaine. 17 For the evidence to be admissible upon that basis it was not in my opinion necessary that it should establish that narcotics or cocaine had been carried in any of the transatlantic journeys and it was enough that the evidence showed that the appellant's experience of those journeys must have given him a suspicion about Del Prado's purpose in organising the transpacific voyage. Thus the Crown did not rely upon the prior journeys to prove the transport of drugs. In my opinion it was admissible for the purpose that I have stated and in accordance with Harriman v The Queen (1989) 167 CLR 590. 18 Moreover, the Crown did not rely upon the evidence to prove that the appellant had a tendency to suspect Del Prado of smuggling cocaine concealed in dinghies. It relied upon the evidence to prove that he in fact suspected Del Prado of that activity. 19 In my opinion this ground of appeal should fail because the evidence was not tendency evidence. 20 The second ground of appeal complained about the summing-up. It was acknowledged for the purposes of this ground that the evidence was not admitted as tendency evidence but as evidence of knowledge. It was submitted that it was therefore necessary that the jury be properly directed as to how to use the evidence so that they did not use it for some purpose other than that for which it was admitted. Relevantly, her Honour said this: Now, the Crown relies on the following evidence from which it asks you to conclude that Mr Flavel knew that the dinghy contained or was likely to contain drugs. 21 It was submitted that, given that there was no evidence that any contraband was carried on any of the transatlantic journeys, there was a real risk that the jury might unfairly use the evidence as evidence that the appellant in fact knowingly participated in the importation of narcotic drugs during any of those voyages. In the circumstances her Honour's direction was insufficient to ensure that the jury did not misuse the evidence. 22 It seems to me that it must have been obvious to the jury that the Crown relied upon evidence of the transatlantic voyages only to show that the appellant must have suspected Del Prado's purpose in organising them. That was the basis upon which the Crown Prosecutor made his final address to the jury. Nowhere was it suggested to the jury that the evidence proved the carriage of cocaine to Spain. This may explain why defence counsel sought no further direction after the portion of the summing-up now complained of. Her Honour was never requested to instruct the jury that they could not use the evidence of the transatlantic voyages as demonstrating any tendency of the appellant to import drugs. 23 In my opinion because of the way in which the case was conducted there was no risk of the misuse by the jury of the evidence for the purpose now contended for. I would refuse leave to appeal on this ground. 24 The third ground of appeal asserted error in the trial judge in admitting evidence from certain witnesses, namely Aidan Banham, Allan Banham, Wendy McDonald and Judith McTaggett. 25 Aidan Banham said that in February 1998 he entered into an agreement with Campillo to let to him for cash a house in Taree. Campillo used to pay the rent in cash. 26 Allan Banham said that after falling into arrears, Campillo brought the rent up to date in October 1998, explaining that he had been overseas. The last payment was for four weeks made on 11 November 1998. 27 Wendy McDonald said that she saw Campillo when he moved into the house in February 1998. She saw him thereafter. She realised in August 1998 that she had not seen him for about three months. She saw him again later in the year. 28 Judith McTaggett said that on 13 March 1998 Campillo rented storage space from her and that in May the same year he paid her six months' rent in advance. She said that he attended in December the same year and said that he had lost his keys and cut the lock to the storage unit. He went to another unit where he again cut off the lock, took out a boat trailer and attached it to the back of his four-wheel drive vehicle. 29 The evidence of these witnesses also established that on an occasion or occasions Campillo drove a red Commodore, which towed a boat trailer, and a green Range Rover. 30 It was submitted that the evidence ought not to have been admitted because it was irrelevant as being incapable of rationally affecting directly or indirectly the assessment of the probability of the existence of any fact in issue: Evidence Act s 56. It was submitted that the fact that Campillo rented premises was not by itself evidence of any preparation or relevant to any joint enterprise in relation to which the appellant was being tried. It was submitted that there was no evidence that the red Commodore and the boat trailer were not the items which were to be stored in the units. 31 Alternatively it was submitted that the evidence ought to have been excluded under what was called the discretion of the trial judge under s 137 Evidence Act. In fact, relevantly, the section contains no discretion because, for present purposes, all it provides is that if the probative value of any evidence is outweighed by the danger of unfair prejudice to the accused, the evidence must be excluded. 32 The evidence showed, if accepted, that on 8 October 1998 Campillo spoke by telephone from Adelaide to the co-appellant in Spain, telling her that he would "go up the east coast" and would "fix up everything and will pay all the bills and return". The jury might have thought that conversation referred to an intention on the part of Campillo to pay up the rent which, according to the witnesses whose evidence is complained of, he ultimately did. The Crown case was that Campillo's arrangements had only one purpose, namely to provide for the arrival of the cargo from the Maeva. In my opinion there is no substance in the submissions and this ground of appeal should fail. 33 The next ground of appeal complained about the way her Honour dealt with the evidence in the summing-up. Her Honour dealt with it only in summarising the case against the co-appellant. Even so, it is submitted on appeal that her Honour ought to have warned the jury that the evidence was admitted only against that party and not against the appellant. 34 The implication in the submission is that in the absence of such a direction the jury might misuse the evidence in the case against the appellant. It is not explained how that might have happened, and I do not understand how the jury could have misused the evidence. This may explain why her Honour was not asked to say any more about the matter. In my opinion the submissions are misconceived and I would refuse the leave which is necessary before the appellant may argue this ground of appeal. 35 The next ground of appeal complains about her Honour's asserted failure to direct the jury that they could only use against the co-appellant evidence of out of court admissions made by her. According to the evidence of Meggett, the co-appellant told him that it was a good idea to put drugs in the dinghy and, on another occasion, that a Boston Whaler to which she was referring was exactly the same as one that they had brought in at Miami. 36 Before the jury was evidence of many admissions made by the appellant himself, including conversations with Meggett about the transatlantic voyages, conversations with Meggett and Del Prado about the voyage of the Maeva, in particular the arrangement made between the appellant and Del Prado to change over Maeva's dinghy in the Caribbean, and in numerous intercepted telephone conversations between the appellant, the co-appellant and Campillo. 37 In the circumstances there was little risk that the jury would misuse admissions by the co-accused. This may explain why trial counsel did not request any direction such as is now contended for. I would refuse leave to appeal on this ground. 38 The last ground argued in the appeal against conviction was that the verdict was unreasonable or incapable of being supported by the evidence. It was pointed out that there was no direct evidence of knowledge on the part of the appellant that the dinghy contained cocaine. It was submitted that the case put forward by the appellant, that he was assisting a friend in delivering a boat to Australia to refit it and sail it, was a reasonable conclusion on all the facts and consistent with the innocence of the appellant and that the jury ought therefore to have had a reasonable doubt about his guilt. 39 It seems to me that on Meggett's evidence alone the jury were entitled to be satisfied beyond reasonable doubt that the appellant knew full well that the cargo he was playing a part in importing was cocaine. 40 The other evidence supported such a conclusion, establishing that the appellant travelled from Florida to Coffs Harbour for no other purpose than to meet the Maeva, waiting there for the yacht for nine days, travelling to Sydney immediately after its arrival and after meeting Meggett only briefly, returning to Coffs Harbour and remaining there for about 18 hours and there doing nothing more than assist in getting the dinghy off the yacht and across to the boat ramp. 41 There was a further body of evidence which was capable independently in my view of proving beyond reasonable doubt that the appellant knew that the dinghy contained narcotics. The transcripts are of conversations which took place on forty three occasions between 9 July and 7 December 1998 which are too numerous to set out in full in this judgment. The appellant participated in many of them. In my opinion they alone were capable of demonstrating beyond reasonable doubt that he had the knowledge that was necessary for the Crown to prove its case. 42 In my opinion this ground of appeal also should fail and the appeal against conviction should fail. 43 Her Honour sentenced the appellant to imprisonment for life and imposed a non-parole period of twenty five years. It was submitted that the sentence was manifestly excessive. Her Honour found that the role of the applicant was more important than that of Meggett. She described him as "a mid level executive". It was submitted that that finding was against the evidence and it was Meggett who had inveigled the appellant to become involved in the importation. 44 It was submitted that the finding about middle management was inconsistent with the evidence about what the appellant did on the journey between Central America and Australia, such as assisting in obtaining supplies and the like. It was submitted that the real role of the appellant was to be a contact between Meggett and Del Prado or alternatively that he assisted with funds and physical assistance. 45 I do not accept these submissions. This is not a Court of rehearing, but of error. There was evidence upon which her Honour could have found the facts about which the appellant complains, and her Honour was in my view entitled to make the findings that she did. 46 Then it was submitted that the categorisation alone of the appellant as of mid level management required the imposition of less than the maximum penalty prescribed by the legislation or at least pointed to a sentence less than the maximum. I disagree. What must be looked at in my opinion is what exactly the offender did. It seems to me that it rarely will be possible to know what an offender did merely by the use of a concise description or label. See R v Wong & Leung [1999] NSWCCA 420. 47 What her Honour did find after reciting the facts to which I have referred was that the appellant supervised the importation and reported to Del Prado from time to time. In my opinion the head sentence and the non-parole period were well within the range of her Honour's sentencing discretion having found that that was substantially what the appellant did. 48 Finally, the appellant submitted that he had a justifiable sense of grievance by reason of a comparison with his sentence and that imposed on Meggett. Meggett was sentenced by Wood CJ at CL. His Honour found that Meggett was a mere courier. The starting point for the sentence his Honour imposed was thirty years' imprisonment. That was reduced to take account of the lack of remissions in New South Wales and to allow for Meggett's plea of guilty and other subjective matters. But for the assistance offered by Meggett his Honour would have imposed a sentence of sixteen years with a non-parole period of twelve years. 49 It was submitted that the relevant sentence for purposes of comparison was the commencing sentence of thirty years and that a sentence of life imprisonment was disproportionate. 50 In my opinion there is no substance in that submission. Given that Wood CJ at CL's conclusion was that Meggett was a mere courier and that her Honour's conclusion was that the appellant played a much more senior role in the importation, there appears to me to be no disparity at all between the individual sentences imposed. 51 I would dismiss the appeal against conviction, grant leave to appeal against the sentence but dismiss the appeal against sentence. 52 DOWD J: I agree with the orders proposed by Barr J and his reasons therefor. 53 GREG JAMES J: As I do also. 54 DOWD J: The orders of this Court will be as proposed by Barr J. **********