New South Wales Court of Criminal Appeal CITATION : Minall and Watkins v Regina [2003] NSWCCA 311 HEARING DATE(S) : 10/03/2003 JUDGMENT DATE : 11 November 2003 JUDGMENT OF : Meagher JA; Dowd J; Barr J DECISION : In respect of each applicant, application granted; appeal dismissed. LEGISLATION CITED : Crimes Act 1914 Customs Act 1901 R v Olbrich (1999) 199 CLR 270 CASES CITED : Wong and Leung v R (2001) 76 ALJR 79 Wong and Leung (1999) 108 A Crim R 531 Benjamin Richard Minall (First Applicant) PARTIES : Justin David Watkins (Second Applicant) Crown (Respondent) FILE NUMBER(S) : CCA 60361/02; 60374/02 S Odgers SC (First Applicant) COUNSEL : B Walker SC with G Bashir (Second Applicant) G J Bellew (Respondent) Watsons (First Applicant) SOLICITORS : John D Weller & Associates (Second Applicant) DPP (Commonwealth) (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0180 FILE NUMBER(S) : 02/11/0189 LOWER COURT Christie DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60361/02 60374/02 MEAGHER JA DOWD J BARR J Tuesday, 11 November 2003 REGINA v BENJAMIN MINALL REGINA v JUSTIN DAVID WATKINS Judgment 1 MEAGHER J: I agree with Dowd J. 2 DOWD J: These applications, which were heard together, were for leave to appeal against sentence imposed by Christie DCJ on 11 June 2002 from a sentence of seven and a half years for each applicant with a non-parole period of five years. Each applicant had the sentence backdated to accommodate pre-sentence custody. 3 The applicant, Minall, who was thirty four years of age at the time of sentence had been charged with, and pleaded guilty to, importing a trafficable quantity of cocaine contrary to s233B (1)(b) of the Customs Act 1901, he having no previous convictions. 4 The applicant, Watkins, who was thirty three years of age at the time of sentence also with no prior convictions was charged with the same offence and similarly pleaded guilty. The Facts on Sentence 5 Both applicants arrived in Sydney on 17 August 2001, on a flight from Los Angeles travelling together, but approached Immigration clearance separately. In a conversation with a custom's officer, Minall said that he was travelling alone, and gave the name of a person whom he said was a friend that he was to meet. Both declared they proposed to stay at the W Hotel in Woolloomooloo, that their intended length of stay was eight days and that the primary purpose was business. 6 Minall was, with his consent, frisk searched. A custom's officer noticed the applicants waiting together at the taxi rank. Shortly thereafter, the Australian Federal Police entered a room occupied by the applicants at the W Hotel, and observed Watkins lying on the side of a double bed with pellets wrapped in white paper towelling on his side of the bed, and on the other side, where Minall had been lying, were pellets in a watch case. Further pellets were discovered in the room. 7 After arrest the applicants were conveyed to St Vincent's Hospital where X-rays revealed other items internally. Under supervision, the remaining pellets were passed by Minall. Watkins, in hospital, also passed pellets. All pellets contained cocaine. 8 The gross weight imported by both offenders was 646.3 grams, the pure weight being 437.3 grams. This had an estimated street value of $174,080. 9 Minall had previously visited Sydney in December 2000, departing January 2001. Watkins similarly had visited Sydney at that time with a slightly different arrival date, with a prior visit in January to February 1999. 10 Both tickets for the August 2001 visit were purchased using Minall's Visa card. The room at the W Hotel was in Watkins' name but secured by Minall's American Express card. 11 A number of deleted emails from Watkins' laptop in which he used his business name "Justin King" arranged tickets for both Minall and Watkins through an American travel agent, the emails seeking the use of a credit card, as for the agent's requirements a cheque was not appropriate. 12 Each of the applicants entered into a record of interview with Australian Federal agents admitting certain matters but not all questions were answered on legal advice. 13 In Minall's record of interview the following conversation was recorded: "Q72 Who were you travelling with? A Justin Watkins Q73 Did Justin have any travel luggage? A I don't believe so. Q74 Who paid for the ticket? A I paid for the ticket 'cause his card was maxed out. Q75 So you paid for your ticket? A I paid for the my ticket Q76 And you paid for his ticket? A He gave me the money, I paid for it on credit card. Q77 Okay. And you bought those over in Los Angeles? A Correct." 14 It is to be noted that in his Probation and Parole Service Report Minall did not alter this evidence and advised the Probation and Parole Officer that the opportunity to make money was offered by the co-offender, Watkins. Some few days after the record of interview was given, Minall's solicitor faxed the Probation and Parole Officer to say that an error had occurred in the facts given by Minall to the officer and that Watkins was not the instigator of the offence but another person allegedly from the same town as Watkins, who remains in America, being the person who allegedly threatened Minall's family in England. 15 Evidence was given by Minall on sentence which was on the same day as the supplementary report of the Probation and Parole Service, 24 April 2002. Minall gave evidence that the money for the tickets was provided to himself and Watkins by this other man and that the third man had told him that the tickets should be purchased with a credit card otherwise it would draw attention to the matter, if cash were used. Sentencing Judge's Remarks on Sentence 16 The learned sentencing judge, in evaluating the evidence of emails between Watkins and the travel agent, found that the first email was sent on 2 August 2001, when the first inquiry as to the price of tickets was made and as at 13 August 2001, when the travel agent told Watkins that a cheque would not be satisfactory, his Honour found that at that stage Watkins was considering paying by cheque which presumably would be met subsequently from the proceeds of the venture and a day or two before the departure from Los Angeles, Minall's credit card was used. 17 His Honour took into account the period of incarceration before Minall received bail and also took into account the fact that bail creates onerous conditions and further took into account that custody resumed on the commencement of the sentencing hearings. His Honour found that both Minall and Watkins should serve the same sentence. 18 At the sentencing hearing both applicants submitted that they should be regarded as couriers and that they had been persuaded by an unnamed man to embark upon the venture and that he had forced them to continue by reason of threats to the applicants' families. The Crown had submitted that, in fact, the parties were principals. 19 His Honour found that in the evidence given by the prisoners there were significant discrepancies as to the manner in which, and the time at which they were set to come in contact with the man they say organised the enterprise and who subsequently was alleged to have issued threats if they did not proceed. His Honour found at p6 ROS that the drug importation matter was raised on the first occasion that they met and, in contradiction, suggested that it was also raised at the second and that he provided US$2,500.00 in cash sometime late in July or early August, some significant time before the refusal by Amex to honour Watkin's card on 10 August 2001. His Honour rejected the submission that the Crown could have produced records of the credit card of either Watkins or Minall as to the banking of the $2,500.00 as his Honour found that this allegation was only known to the Crown at the time of the sentencing hearing. 20 His Honour then found that the enterprise was a joint enterprise and that they should not be sentenced proportionally with respect to the pellets carried internally by each of them as submitted. From his examination of the evidence His Honour found overwhelmingly that it was a joint enterprise, relating particularly to the emails, the use of credit cards at the W Hotel and the securing of the tickets by the credit card and the fact of separation after landing solely for the purpose of customs clearance, having travelled together. 21 His Honour found that the level of participation of the applicants was such that he could not dismiss the possibility that a third person provided the financing for the enterprise, or at least part of it, but without any evidence before his Honour it was difficult to see a payment to either of their credit cards of $2,500.00 by some other person and his Honour found it difficult to find how they could be regarded other than as principals. 22 His Honour found that if he were wrong about being principals, they were certainly well above the level of supply couriers, having regard to the value of the cocaine. He further found that there could be no truth in the suggestion that they were to receive $7,000.00 each from an unknown person at an unknown time after parting with their valuable cargo. 23 The learned sentencing judge pointed to the fact that the first Minall pre-sentence report was to the effect that it was the co-offender, Watkins, who talked Minall into the offence and that was only corrected in the amended pre-sentence report through the solicitor some few days later. His Honour noted this as being significant without, in fact, referring to the statement made by Minall in his record of interview that has been set out in paragraph 12 above. 24 His Honour reviewed the sentencing statistics and the statements of both applicants and the evidence of character adduced and found that there had been considerable financial difficulties, as confirmed by evidence exhibited before his Honour on the part of both of the parties before the venture took place. 25 His Honour took into account the prior good character of both which entitled them to a not insignificant consideration in mitigation as well as the plea of guilty and that, although a conviction is not always certain, the evidence in the Crown case was, in the terms used by his Honour, "virtually irresistible that a conviction would have occurred". 26 His Honour found the commercial enterprise to be fairly well planned and did not accept that the potential profit for each was of the nature of $7000.00 each. His Honour found that they, or at least one of them, must have known where that amount of cocaine could have been obtained in the United States. 27 His Honour took into account the discount in accordance with s16G of the Commonwealth Crimes Act 1914 in dealing with the issue of remission and the non-parole period. Submission on Sentence of Watkins 28 It was submitted during the course of the sentencing proceedings that his Honour had said that he had the impression there was no other person, as described by the applicants, notwithstanding that the Crown conceded that a person existed. The concession actually made in the hearing, on behalf of the Australian Federal Police, was that there was an indirect link between Minall and a male person originating from Brighton UK but that there was no intelligence or other material linking that person with the applicant, Watkins, or the offences before the court. 29 In my view, it was a matter open to his Honour to see whether the person, conceded by the Crown to have existed, was, or could have been, the person on whose existence and on whose actions both applicants relied, particularly in the light of the variation of the two pre-sentence reports above, the latter contradicting assertions made to the Probation and Parole officer by one of the applicants only a few days before. 30 It was further submitted on appeal that the evidence strongly supported the applicant Watkins being in severe financial difficulties and the problems arising from his "out of control" cocaine use. 31 Watkins sought to rely on fresh evidence, being the affidavit of Benjamin Minall dated 14 December 2002 and the affidavit of Christopher Heath Watson of 17 December 2002. The fresh evidence establishes a deposit of US$1,200.00 into his card on 13 August 2001 and that on 15 August 2001 he purchased two airline tickets worth US$1,162.10. 32 It was put, on behalf of Watkins, that it corroborates Minall's account that he had been given a sum of money by the man from Brighton and that the sum was US$2,500.00 and that he kept US$800.00 for the trip and gave US$500.00 to his wife, Tina. It was submitted that the Crown had conceded that "the man from Brighton" did exist and that it was not open to his Honour to make that finding in the light of the Crown concession referred to above. 33 In my view, in the light of the evidence given by Minall in the original statement made to police and in the first Probation and Parole Service Report, until it was corrected at about the time of the hearing by his solicitor, it was indeed open to his Honour to make the finding that the did. The fact that there was a connection with a man from Brighton who was not connected with these offences, as submitted, means that the finding by his Honour was not open to him. 34 It was also submitted that the finding that Watkins was a principal was erroneous and not supported by the evidence and reference was made to his Honour's comment that his Honour could not dismiss the possibility that a third person provided financing. 35 It was submitted that his Honour's findings created a reversal of onus of proof as far as being satisfied that the applicants were principals in that his Honour found, in effect, that it was for the applicants to prove they were not financed by another person. The applicant sought to rely on R v Olbrich (1999) 199 CLR 270 and it was further submitted that the onus was on the Crown to prove the applicants were principals in the invitation and it was not for the applicants to disprove that they were principals by tendering bank records. 36 Olbrich is simply the statement by the High Court that the Crown must prove aggravating factors beyond a reasonable doubt and that the onus for the applicants was simply the civil onus to establish matters on their behalf, in mitigation. 37 It is not, in my view, correct to suggest that the Crown had an onus to establish that they were principals. Offenders who plead guilty to offences and thereby prove all the elements of that offence are, by that fact, principals in the offence. Even if there were a third party to this joint enterprise who had produced finance, it does not make that person, if it is a joint enterprise, any higher in the hierarchy than the two offenders. The Crown does not have to prove that someone is a principal in a drug offence beyond a reasonable doubt or, indeed, beyond any standard. The Crown simply has to prove the offence. It is, although on a civil onus, the obligation of the applicants to prove, beyond merely a civil onus, that they are, in fact, couriers or some lesser participant. 38 His Honour's finding on the evidence referred to above was open to his Honour. The fact that there was another person conceded by the Crown, but not related to the two offences, is not such as to prevent his Honour making the finding that he did. The fact that there was considerable evidence to support the financial position of the applicants did not prevent his Honour making the finding that they were principals and his Honour did not breach any of the issues as raised in Olbrich in the findings that he made. 39 The fact is that his Honour found that neither of the prisoners, nor their representatives, have been able to advance any reason why the cash was provided by the person, if he did exist, and why that cash was not used to provide the tickets as suggested in the applicants' evidence about the undesirability of using cash rather than credit cards. 40 I note, and it was discussed in the course of the hearing on sentence on appeal, that there were a series of withdrawals made from an ATM on 15 August 2001, four payments of which occurred on 15 August, and it should be remembered that in the emails there had been a question of waiting until a certain time on 13 August 2001 and, in fact, the sum was drawn on 15 August 2001. 41 I do not consider that error has been shown in the findings by the learned sentencing judge and would dismiss this ground of appeal. 42 It was further submitted on behalf of Watkins that the learned sentencing judge failed to take into account the plea of guilty and the subjective factors of the applicant. His Honour had found prior good character but, appropriately, held that in drug importation matters, matters of good character have considerably less impact. 43 It was further put that the evidence was that the applicant's thinking was "out of control" and that his Honour should have taken into account the danger and degree of discomfit involved in the importation and should have granted significant leniency because of the applicant's good prospects for rehabilitation and his no longer having anything to do with drugs and his working as a sweeper in the gaol. I would point out, as is conceded, that his Honour, having found a virtually a non-existent likelihood of re-offending and excellent prospects of rehabilitation and in talking about the need for deterrence, should have lessened that need for deterrence. It was further submitted that his Honour had used a two stage approach which was contrary to Wong and Leung v R (2001) 76 ALJR 79. 44 It was submitted that in the acceptance of a plea of guilty that there was a demonstration of willingness to facilitate the course of justice and real remorse and acceptance of responsibility. 45 A further ground of appeal was that, although the applicant Watkins had his sentence back dated to take into account the period that he had been in custody, his Honour found the two should serve the same sentence, taking into account that the applicant Watkins had been on remand and the applicant Minall had been on onerous bail conditions. 46 It was submitted on Watkin's behalf that he had a justifiable sense of grievance no matter how onerous the bail conditions for Minall and that they cannot have been as onerous as the effective service of part of a sentence on remand. I do not consider the disparity to properly give rise to any sense of grievance or that error has been shown by the learned sentencing judge. Submissions on behalf of the Applicant, Minall 47 It was submitted that the learned sentencing judge fell into error in finding that both applicants were principal offenders and that, from the evidence of the banking records in cross-examination at T27-28, Minall had not thought that there would be any issue raised about the money. 48 The submission is that the amount of $1,200.00 was deposited into the applicant's account on 13 August 2001, which, it is conceded, was not the sum of $2,500.00 as deposed by the applicant in his testimony. 49 As shown, however, in the submissions in relation to Watkins, the withdrawals from the ATM were consistent with the deposit of the sum of $1,200.00 on 13 August 2001, particularly in the light of the reference in the email to payment not being made before a certain date. 50 It was further submitted that the fact of Watkin's American Express card being declined was evidence of his impecuniosity and that he plainly was not the source of the $1,200.00 paid into the applicant's account. On behalf of Minall, it was submitted that the concession by the Crown about the other person from Brighton was a matter which should have been taken into account. 51 It was further submitted that, in the light of the new evidence as to the banking records, the court should be satisfied that, on the balance of probabilities, the applicant, Minall and Watkins were couriers and thus, a head sentence of six years is appropriate with a non-parole period of three years nine months and that the guideline judgment of Wong and Leung (1999) 108 A Crim R 531 indicates the appropriate range. 52 It was submitted further on behalf of the applicant, Minall, that although his Honour the learned sentencing judge gave considerable weight to the strong subjective case of good character and excellent prospects of rehabilitation, that, on the basis of being couriers rather than principals, a sentence of six years would have been more appropriate. 53 The applicant, Minall, relied on the submissions made on behalf of Watkins as to being principal offenders and thus submitted that his Honour was in error in so finding. 54 It was finally submitted on behalf of the applicant, Minall, that, in the choice of a proportion as a non-parole period of 66.7%, the usual range for Commonwealth sentences is 60% – 66.7% and that, in the circumstances of the case, 63% would have been an appropriate figure. It was submitted, in this respect, that his Honour, in referring to special circumstances, was in error. 55 The reference by the learned sentencing judge to special circumstances was inappropriate but it is the actual sentence imposed which is the subject of this application to appeal. In my view, the figure of 66.7% was within the range available to his Honour and, in that respect, no error has been shown. 56 The Crown submitted that the evidence relied on as fresh evidence by Minall was clearly available at the time of the sentencing but that in the event the evidence were admitted, the fresh evidence does not concur with the evidence tendered by him before the sentencing judge and in the evidence in questions 74-76 of the record of interview set out in paragraph 12 above, Minall said that he had paid for his own ticket and that Watkins had given him money which Minall paid for on the credit card. This was before the change of evidence given at hearing and is clearly supportive of what was said in the first Probation Report referred to above, rather than the change which occurred on the day of the hearing in the second Probation and Parole Report. 57 It is, in my view, clear that it was open to his Honour the learned sentencing judge to make the findings that he did as to the payment of the funds on the contradictory evidence adduced by Minall as set out at p51 of Minall's evidence on 24 April 2002, being the first day of the sentencing hearing. 58 In my view, the contradictory evidence concerning both payments of money and into whose account it was paid and the changes in the applicant's evidence, left it clearly open to his Honour the learned sentencing judge to make the findings that he did about the money and for the reasons that I have set out earlier in relation to Watkins it was clearly open, as submitted by the Commonwealth, for him to find that there was no concession made by the Crown in relation to the person at Brighton sufficient to displace his Honour's finding that there was doubt as to whether that person existed. Certainly it was open to his Honour to find that there may have been another person there but no evidence to support that person being someone further up in the hierarchy, inevitably causing a finding that the applicants were principals. 59 It was submitted by the Crown, and I accept this submission, that his Honour's only finding is that the applicants were principal offenders in this importation, not principals in any hierarchy and that is consistent with the approach set out in Olbrich and there is thus, no error. Conclusions 60 In my view, there is no evidence which prevented his Honour making the finding that the parties were principals in the offence and it was reasonably open to his Honour not to make the finding on a civil onus that the applicants, in the light of the evidence, set out above, were mere couriers. Clearly, they were significantly involved in the whole enterprise and even if another person existed and supplied money that does not make them in some way subordinate to him. It was open to his Honour to reject their evidence particularly in the light of the discrepancies referred to above. 61 The findings by the learned sentencing judge as to taking into account the plea of guilty and the subjective features of the applicants were clearly given appropriate weight by his Honour and it has not been shown in the light of the seriousness of the offence that the sentence is outside the appropriate range. 62 It is also my view that there was no two tiered approach indicative of error. The provisions of s16G of the Crimes Act (Commonwealth) obliged his Honour to do so and the discount was within appropriate discretion. 63 The sentences were clearly within the range for offences of this seriousness. 64 In relation to the ground of appeal relied on by the applicant Minall, in my view, no so called new evidence should be admitted and because of the inconsistencies with the sworn testimony before the sentencing judge and in the record of interview, no re-consideration is justified. 65 In relation to both appeals I consider that no ground of appeal has been made out and that no error has been demonstrated on behalf of the learned sentencing judge. 66 The orders, therefore, that I would propose are as follows: i. That in respect of each applicant, the application be granted; ii. That in respect of each applicant, the appeal be dismissed. 67 BARR J: I agree generally for the reasons given by Dowd J that in each application leave to appeal should be granted but the appeal should be dismissed. 68 One of the duties of a sentencing judge is to find such facts as enable the making of a proper assessment of the criminality of the offender. That will ordinarily require findings to be made about precisely what the offender did and with what intent. Where other offenders are involved it may require findings to be made about the relationship between the offender and them. Importations of prohibited drugs often involve more than one person and a sentencing judge in such a case may have to differentiate between the parts played by the different actors. Some reference may need to be made to seniority and juniority and to who had authority to do what. 69 The facts found in any particular case may justify the use of descriptions like principal, mid-level executive or courier, but standing alone such descriptions are unhelpful and may even obscure the assessment of what an offender did. See Olbrich v The Queen [1999] HCA 54, particularly the judgment of Gleeson CJ, Gauldron, Hayne and Callinan JJ at paras 19-23. 70 In the present case the sentencing judge found that the applicants jointly brought in the drug on their own account irrespective of whether any third person was involved, even as a financier. That finding was open to his Honour on the evidence. The findings about particular things done by the applicants individually, such as the amount of the drug each personally carried, the booking of tickets and accommodation by Watkins and the use of Minall's credit card, were consistent with that finding. In my view the sentences imposed were within the proper range of his Honour's sentencing discretion. ********** Last Modified: 11/11/2003 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.