New South Wales Court of Criminal Appeal CITATION : R v Jerry Royston Maloney [2004] NSWCCA 250 HEARING DATE(S) : 26/07/04 JUDGMENT DATE : 28 July 2004 JUDGMENT OF : Spigelman CJ at 1; Hidden J at 2; Buddin J at 3 DECISION : Appeal against conviction dismissed. Leave to appeal against sentence be granted but that appeal dismissed. CATCHWORDS : Appeal against conviction - attempt to obtain possession of prohibited import - verdict unreasonable - Crown Prosecutor's address - application for leave to appeal against sentence. CASES CITED : Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 PARTIES : Regina Jerry Royston Maloney FILE NUMBER(S) : CCA 60410/03 COUNSEL : Ms M Cinque (Respondent) D Brezniak (Appellant) SOLICITORS : Commonwealth Director of Public Prosecutions (Respondent) McGowan Lawyers (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0435 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60410/03 SPIGELMAN CJ HIDDEN J BUDDIN J WEDNESDAY 28 JULY 2004 REGINA v JERRY ROYSTON MALONEY Judgment 1 SPIGELMAN CJ: I agree with Buddin J. 2 HIDDEN J: I agree with Buddin J. 3 BUDDIN J: The appellant was convicted of attempting to obtain possession of a prohibited import, being not less than the trafficable quantity applicable to cocaine, which had been imported into Australia. He was sentenced by Judge Hock to a term of 8 years' imprisonment, with a non-parole period of 5 years. He appeals against his conviction and seeks leave to appeal against his sentence. He has filed the following Grounds of Appeal: 1. Her Honour, the trial Judge, did not sufficiently warn the jury as to the dangers of convicting the Appellant upon the evidence at trial 2. Her Honour, the trial Judge, did not sufficiently put the case for the defence in her summing up to the jury 3. The verdict of the jury is, in the circumstances of the trial of the Appellant, a miscarriage of justice as being a verdict which cannot be supported having regard to the evidence at the trial and which is a verdict which is unreasonable 4. In regard to the evidence concerning fingerprints the change in the prosecution case, after the close of the case for the defence, gave rise to a miscarriage of justice 5. In regard to the evidence concerning fingerprints Her Honour, the trial judge, erred in her direction to the Jury, at page 278 of the trial transcript, in that she failed sufficiently to direct the jury as to the effect of the absence of any evidence identifying the fingerprints of the Appellant with the envelope containing drugs 6. Her Honour, the trial judge, erred in her summing up to the Jury in that she failed to direct the jury to disregard the unfairly prejudicial material in the closing address of the Crown Prosecutor. And as to sentence: 1. That the sentence imposed upon the Appellant is excessive in all of the circumstances and having regard, also, to the sentence imposed upon Mr Illingworth 2. There was no, or no sufficient evidence to identify the Appellant as a principal or organiser. 4 At the hearing of the appeal, the appellant indicated that in respect of Grounds 1, 2 and 6 he relied solely upon the written submissions which had been filed on his behalf. Nor was any oral argument advanced in relation to the application for leave to appeal against sentence. In that respect also, the written submissions were relied upon. 5 In order to consider the Grounds of Appeal and, in particular, Ground 3, it is necessary to refer to the evidence which was led at the appellant's trial. Substantial parts of the Crown case were the subject of formal admissions made by the appellant. 6 On Saturday, 27 October 2001, United States Customs officers identified for examination two packages under the one airway bill number (6731201444) at the Miami International Airport Foreign Mail Facility. The packaged was addressed to: Active Hire Group, John Spinks, 10 Salisbury Road, Hornsby NSW 2077 Australia 7 The consignor details marked on the package were: Frank Adonis Mount Pleasant PO Mt Pleasant St Vincent Tel# 784-458-0111 8 The DHL tape on the packages was marked "DHL CARIBBEAN". The evidence established that the area code "784" is that for a group of islands in the Caribbean known as St Vincent and the Grenadines, St Vincent being one of the islands in the group. 9 The packages were examined by US Customs officials in Miami and found to contain packages of suspected cocaine. Australian authorities were contacted and it was determined to send the packages to Australia under the control of US and Australian law enforcement officers. 10 The two DHL satchels (which had been placed in a brown cardboard box for transportation) arrived in Sydney on the morning of Thursday 1 November 2001. Officers of the Australian Federal Police (AFP) attended Sydney Kingsford-Smith Airport later that day and took possession of them. 11 Members of the AFP Physical Evidence Team deconstructed the two DHL satchels. Within each DHL satchel was a yellow envelope and contained within each of these yellow envelopes were two black leatherette A4 compendiums. Inside three of the compendiums were A4 computer generated building plans. Within one of the DHL satchels there was another empty DHL satchel. 12 Inside the front and back covers of each of the four compendiums were a total of eight packages. Subsequent testing showed that the eight packages contained a total of 1,966 grams of powder in which there was 1359.7 grams of pure cocaine. The cocaine was removed and two controlled delivery samples (CDS) each containing 20 grams were created. Eight substitute packages were then made up. Four packages were then returned to each of the satchels. In each satchel there was one package, out of the four, which contained a CDS. The compendiums and satchels were then reconstructed in their original form. 13 At about 4.38 pm on Friday, 2 November 2001, an AFP officer, posing as a DHL courier, attended the Active Hire business premises, located at 10 Salisbury Rd, Hornsby to deliver the two satchels. At the premises Richard Illingworth, an employee, accepted delivery of the packages. 14 At about 7.09 that evening the appellant telephoned Illingworth at Active Hire. Illingworth was seen by police officers to leave the premises at about 7.45 pm without the parcels. All other employees had left prior to Illingworth's departure. Police maintained surveillance of the premises overnight. 15 At about 7.00 am the next day, Saturday, 3 November 2001, Illingworth arrived at the Active Hire premises. A number of other employees also arrived. By about 12.30 pm all employees other than Illingworth had again left the premises. No one else was seen to leave or enter the premises until about 3.44 pm when the Appellant arrived in a white Toyota van. 16 Telephone records subsequently obtained revealed that Illingworth had received a call on his mobile phone from a public phone in Darling Point at about 1.48 pm and that he had called the appellant's mobile phone at 3.12 pm and again at 3.32 pm from his own mobile. 17 When the appellant arrived at Active Hire, he knocked on the rear door of the premises and was admitted by Illingworth. The metal roller door at the front of the premises, through which customers would enter and leave in business hours, was closed. 18 In addition to videoing the appellant's arrival, an AFP officer sitting outside the premises was listening to the product of one of the listening devices which had been concealed in each of the packages. About a minute after the appellant entered the premises, the parcel which contained the listening device which was being monitored, was moved. The officer monitoring this listening device on 3 November 2001, Federal Agent Wallace, had also recorded on the monitor's log a conversation at 1.04 pm that day, which included the words "the package is here". A recording of the listening device product commencing at 3.39 pm was played to the jury. Federal Agent Wallace gave evidence that shortly after the appellant's arrival, he could hear initial sounds which suggested that one of the DHL packages was being opened and further noises which sounded like the package being opened further "and perhaps the manila envelopes being opened and the leather compendiums being removed from the envelopes". 19 At 3.56 pm a call lasting 3 minutes and 39 seconds was made on an Active Hire landline to a telephone in St Vincent and the Grenadines. The call was routed through a service provider called Tel-Pacific. The Appellant agreed in his evidence that local time in St Vincent and the Grenadines was then about 1 am. When he was arrested the appellant was found to have a Tel-Pacific phone card in his possession. Some of the conversation which occurred during this call was recorded by a listening device which was in one of the packages. It was the Crown case that both the appellant and Illingworth spoke during this call and that the appellant was talking about the black compendiums when he said "black, it's black" and "one, one, two, two" and "one, one, two, one". Those numbers corresponded to numbers on the substituted packages. The phone card had also been used in the days leading up to 3 November 2001 in order to make other calls to the same number in St Vincent and the Grenadines from telephones associated with the appellant. 20 At about 4.04 pm AFP officers used a sledgehammer to gain entry to the rear door of the Active Hire premises. The door had apparently been locked following the appellant's entry. Upon entry the AFP officers observed one yellow envelope and the DHL satchel which had been placed inside one of the outer DHL satchels on the floor near the workbench. The other yellow envelope was on a shelf above that workbench. The remaining two DHL satchels and the four black compendiums, which had been removed from the satchels, were found on a desk. Illingworth was a few metres away from the workbench and the appellant was in the next room. Police also located a pair of scissors and a Stanley knife near the parcels. A black briefcase belonging to Illingworth was found to contain $1,000 cash. A number of resealable plastic bags of different sizes and a small set of electronic scales were also located. 21 The appellant was arrested. He told police that he was a citizen of St Vincent and the Grenadines and that he had been resident in Australia for some years. 22 Two days later AFP scientific officers examined the four compendiums and removed the substitute packages from them. The covers of three of the compendiums were found to have been opened. Examination of one of the substitute packages revealed that one corner of the package had a small cut in it. 23 A number of the appellant's finger and palm prints were found on both sides of the yellow envelope which was found on the floor of the premises. Two of his right thumbprints were located on one of the A4 sheets of paper which came from one of the compendiums located on the workbench. 24 A schedule setting out information about telephone calls which had been made at relevant times was introduced into evidence. It revealed that the following calls had taken place: (1) 2 calls on 28 October 2001 to the number in St Vincent and the Grenadines (the St Vincent number) which was called from the Active Hire premises at 3.56 pm on 3 November 2001; (2) calls to the St Vincent number at 9.20 pm on 1 November 2001 and at 10.38 am and 11.53 am on 2 November 2001; (3) calls from the Appellant to Illingworth's mobile at 12.45 pm and 7.09 pm on 2 November 2001; (4) a call from the Appellant to the St Vincent number at 8.43 pm on 2 November 2001; (5) a series of calls made on 3 November 2001 namely: (a) a call from the Active Hire landline to Barry Dickman lasting 24 minutes and 31 seconds at 1.02 pm; (b) a 21 second call from a public telephone located at Darling Point to Illingworth's mobile at 1.48 pm; (c) a 25 second call from Amanda Illingworth's phone to Illingworth's mobile at 3.11 pm; (d) a 6 second call from Illingworth's mobile to the Appellant's mobile at 3.12 pm; (e) a 28 second call from Illingworth's mobile to the Appellant's mobile at 3.32 pm; (f) an 11 second call from the Active Hire landline to Amanda Illingworth's phone at 3.45 pm This was approximately 1 minute after the Appellant entered the Active Hire premises and at about the time that sounds emitted from one of the listening devices indicated that one of the DHL parcels had been moved. 25 The jury was informed that Illingworth had pleaded guilty to, and had been convicted of, an offence in respect of the importation but that he did not wish to give evidence in the trial. Other evidence established that a John Spinks had been employed by Active Hire for some years up until 1 December 1999. Barry Dickman gave evidence that he had spoken to Illingworth on 3 November 2001 about possible employment with Active Hire and that an interview had been arranged for 11 am on Tuesday, 6 November 2001. He said that he could not recall saying anything about a package but that if he had, he might have been referring to a salary package. Dickman also gave evidence that he had attended the interview in due course and had been told of the circumstances in which Illingworth had left Active Hire. He commenced employment with Active Hire at about that time and had been appointed Manager on 2 August 2002. 26 The appellant gave uncontested evidence that he had had dealings with Active Hire outlets in the course of his work in the building industry. He said that his attendance at the premises of Active Hire Hornsby on 3 November 2001 arose from the fact that he had been trying, unsuccessfully, from before 23 October 2001 to arrange the hire of a compound saw. He said that it had not been delivered "even after several request" (sic) and that it was imperative that he get the saw so that he could carry out the next stage of the project in which he was then involved. 27 The appellant said that, on the afternoon of 3 November 2001, he had withdrawn the sum of $1,000 from an ATM located on New South Head Road between Darling Point and Double Bay. He had then telephoned Illingworth from a public telephone in Darling Point to tell him that he would be at the premises at about 3.00 o'clock to collect the saw. He had then gone home, paid the rent and then driven to Hornsby. The appellant said that he had not had the use of his mobile phone after 30 October 2001. As a result he said that he had not spoken to Illingworth during the 2 calls which were made to his mobile that afternoon by Illingworth. 28 When he arrived at the premises he said that he had told Illingworth that it was a "big inconvenient" (sic) to have come all this way to collect the saw. As he had sat down on a chair he had lifted up "an envelope on the chair with some papers" and had put it on a bench top nearby. The appellant said that he had sat on that chair while he waited for Illingworth to finish "whatever he was doing". During that time he had told Illingworth that he needed to make a phone call and that Illingworth had offered the Active Hire landline for him to use. He said that he had then made the call to St Vincent and the Grenadines (with the use of his Tel Pacific card) to a man by the name of O'Carroll Pompey. Pompey was someone who had undertaken building work for him in St Vincent. He said that he had telephoned him to tell him to go to a restaurant in order to dismantle a "display" kitchen which the appellant wished to have delivered to another location. As he had been speaking on the phone he said that a building plan on the desk "just caught my eyes" and that he must have touched it. This was his explanation as to how his fingerprints had come to be on one of the pages that was contained within one of the black compendiums. 29 The appellant raised good character. It consisted of an absence of prior convictions and evidence as to his professional background and other activities which stood to his credit. Ground 1 30 No particulars were provided as to why such a warning was required. There was no occasion in any event, in view of the evidence which was adduced at trial and the nature of the case which the Crown put, for such a warning to be given. The trial judge gave the customary directions concerning circumstantial evidence in impeccable fashion. Nothing more was required. This no doubt explains why no complaint of the type which is now advanced, was made at trial. 31 This Ground should be rejected. Ground 2 32 The appellant contended, in his written submissions, that although the trial judge "summarised the case for the defence in a balanced way…greater attention to the detail of the submissions [should have been given]". There is no elaboration of what "greater attention" was required. Moreover no request was made by trial counsel for redirections. In any event a fair reading of the relevant part of the summing-up reveals that this complaint is entirely without substance. This Ground of appeal should also be rejected. Ground 3 33 The question for the Court in determining this Ground is whether it thinks that, upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty. See M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. 34 The appellant relied upon a number of matters in support of this Ground. He highlighted in particular: (a) the fact that he had a legitimate business connection with Active Hire and with Mr Illingworth in particular; (b) the fact that nothing incriminating him was found when his car and his house were searched; (c) the fact that during the conversation between Dickman and Illingworth there was an apparent reference to "the package is here" and to the fact that two further telephone calls were made by Dickman to Illingworth later that afternoon; (d) the fact that he was in a different room from the one in which the packages were located when police entered the premises; (e) the fact that the cash and the electronic scales were located in the possession of Illingworth; and (f) the fact that the envelope which contained his fingerprints was described on one occasion as being yellow and on other occasions as being brown (a visual inspection of the package indicates that it could meet either description ). 35 The Crown case against the appellant was of course a circumstantial one. There were a number of strands in it which linked the appellant with the packages which contained the cocaine. First of all there was evidence of his association with llingworth. Indeed there were a number of phone calls between them in the days immediately before Mr Illingworth took receipt of the packages. The appellant also made a telephone call from a public telephone to Illingworth shortly before his arrival at the Active Hire premises where the packages containing the cocaine had been delivered. Moreover the appellant made a number of phone calls in the days preceding the delivery of the cocaine to the same number in St Vincent and the Grenadines as Mr Illingworth had called prior to his receipt of the packages containing the cocaine. Furthermore, the appellant made a phone call to that number whilst at the premises where the cocaine was located, even though it was 1 am local time in that country. No one apart from Mr Illingworth was at the premises at the time when the appellant arrived there. It was clearly out of business hours and the rear door was locked after the appellant had entered the premises. This combination of circumstances was capable of an inference being drawn that the meeting was, and was intended to be, covert. 36 When police entered the premises and examined the packages, it was discovered that they had been opened. Product from a listening device revealed that shortly after the appellant's arrival, sounds suggesting that the packages and the envelopes were being opened were heard. It was only after those sounds were heard that the appellant made the phone call to which I have just referred. The contents of that conversation, which was monitored, were capable of demonstrating that the appellant was referring in it to the black compendiums. It was open to the jury to conclude that the appellant was a citizen of the country to which the call was made, which is of course from where the consignment is said to have originated. Of even greater significance is the fact that the appellant's fingerprints were located on both sides of the yellow envelope. In addition, his thumbprints were found on one of the sheets of paper which had been inside one of the compendiums. 37 The appellant, as I have observed, gave evidence. The jury clearly rejected it. Suffice it to say that I am of the view, having considered that evidence, that it was inherently implausible. It is unnecessary to refer to it in any great detail. Reference to a few parts of it is sufficient to demonstrate why it was most unlikely to have impressed the jury. 38 The appellant's professed reason for being at the premises (namely to collect the saw) is simply at odds with the fact that he did not, it would seem, during the 20 minutes or so that he was in the premises, pursue the matter or indeed obtain possession of the saw. Neither his explanation for having decided apparently spontaneously to make the phone call to his country of origin nor the purpose for making it are not readily acceptable, especially when regard is had to the contents of the conversation. The jury would also have been entitled to be extremely sceptical of the fact that the packages containing the cocaine had not been opened until the appellant's arrival at the premises, even though they had by then been in Illingworth's possession for nearly 24 hours. 39 The appellant's endeavours to explain the circumstances in which his fingerprints came to be placed upon the envelope and the sheet of paper were similarly quite incapable of being accepted. 40 The fact that his finger and palm prints were located at six different locations on the envelope, as well as being on both sides of it, is at odds with his version of events (that is, that he simply moved the envelope together with the other papers which were on the seat). Rather the evidence as to the location of the fingerprints is entirely consistent with the appellant having either opened the envelope or at least having demonstrated an interest in its contents. 41 Even allowing for the matters which the appellant has raised, I have arrived at the conclusion that this was a strong circumstantial Crown case. Accordingly I am of the view that this Ground must fail. Grounds 4 & 5 42 It is convenient to deal with these Grounds together. As I have previously indicated, the appellant made a number of formal admissions. It is convenient to refer to several of them in order to properly understand the submissions put in support of the present Grounds. About 4.04 pm Australian Federal Police entered the premises and arrested Richard Illingworth and me. The packages had been opened. The four leatherette compendiums were stacked on the workbench together with the two DHL satchels which had contained the compendiums. One of the yellow envelopes and a DHL satchel was located on the floor next to the work bench. The other yellow envelope was on another bench nearby. The rear covers of three of the compendiums had been opened along one edge. Some papers previously contained in three of the compendiums were also found on the workbench. All items from the packages were tested for fingerprints. Thirty-six finger or palm prints were developed from envelopes and papers which had been contained in the packages. A number of the fingerprints have not been identified. My fingerprints were located on an envelope located on the workbench, and on a piece of paper found on the workbench. Both of these items had been in the packages when delivered to the Active Hire premises on 2 November 2001. (par 14) 43 Before the summing-up commenced, the trial judge raised with counsel the question of whether the admission contained in the last of the paragraphs referred to above accurately reflected the evidence which had been given at trial, especially as it appeared to be the appellant's evidence that his fingerprints were on the envelope which was located on the floor. There was considerable debate as to how this issue should be resolved. The trial judge was informed that the admission in question had been drafted in accordance with the police statements which had been served upon the appellant's representatives prior to trial. 44 Following discussion with counsel as to what would be said to the jury, the judge, with the concurrence of counsel, directed the jury in the following terms: In paragraph (14) of exhibit AC this admission is made, "My fingerprints were located on an envelope located on the workbench and on a piece of paper found on the workbench". It would seem that that admission – the words "located on the workbench" really amount to a misunderstanding of where that envelope was located. The evidence is that exhibit N, the yellow envelope, was located on the ground as I'm sure you'll recall from the video, and you'll have the video with you, and that officer Morley told you the video showed where the items were at the time that the police entered the premises. So when you see the words "on the workbench" I just ask you to bear that in mind members of the jury, that the admissions were made to shorten the proceedings. They were done on the understanding that that was the evidence – that the envelope was apparently found on the workbench when in actual fact the yellow envelope was found on the ground. 45 Counsel did not seek any redirections. As a matter of fact, it is quite wrong to assert, as the appellant does, that the Crown case changed after the close of the case of the defence. Even if there was a change in the Crown case, it occurred during the course of its case. There was ample opportunity in those circumstances for the appellant to meet any asserted change in its case. At no stage did trial counsel suggest that he had been put at a disadvantage. There was accordingly no miscarriage of justice and Ground 4 should accordingly be rejected. 46 In written submissions, the appellant asserted that "the prosecution case was that it was the envelopes found on the desk top which contained the drugs". He pointed out that his fingerprints, however, were on the envelope which was located on the floor. This was said to be of vital significance. In oral argument, counsel properly withdrew this submission concerning the Crown case as it was plainly incorrect. The concession effectively disposes of the complaint made in respect of this Ground. 47 As I have said, counsel ultimately accepted that the evidence revealed that the packages had been reconstructed in such a way that each of the envelopes contained a CDS of the cocaine. The Crown case was that both yellow envelopes contained cocaine both before and after the intervention of police officers. Accordingly, it did not matter, upon the Crown case, which envelope bore the appellant's prints. The only relevance of this material was as to the plausibility of the appellant's explanation as to how his prints came to be on the envelope. 48 These considerations no doubt explain why counsel at trial did not seek redirections. This Ground is without merit and should be rejected. Ground 6 49 The Crown Prosecutor made the following remarks in the course of her address to the jury: …It is for you to determine what weight you give to any part of the evidence that you do accept, and at this point I might just make a note – say something about one of the witnesses, Barry Dickman, the man from Active Hire. You might think that he gave his evidence honestly and truthfully, that the suggestion perhaps was put to him that he had tailored his evidence to take account of a suggestion that he – the words, the package is here, had been used in a conversation with him. And you might think that he actually readily accepted that possibility as a person who had nothing whatsoever to hide, and thought that it must have referred to some sort of salary package or something like that. And you might think that he is unlikely to have had anything to do with the matter. He came to work permanently for Active Hire three days later as a result of Mr Illingworth leaving, and indeed you might think that Mr Dickman didn't look like the type of person who would have organized this sort of an importation of cocaine . (emphasis added) 50 Counsel for the appellant responded to those submissions in his address in the following fashion: You see this is a call from the person who is criminally involved and who has collected the package with the drugs in it, the package is here, made after other employees have left and on the evidence it has to be to one of those two people. Well belatedly Barry Dickman came on the scene, someone bothered to speak to him earlier this month and he came along to give some evidence. Now of course the Crown would tell you Barry Dickman just doesn't look like the sort of person who would be involved in a criminal activity of this nature (not like the accused who of course does look like the sort of person who would get involved in a criminal activity of this nature). Now I don't know I'm not a student of profiling and there's no evidence of it, but I think you might take with a grain of salt or perhaps at least have a bit of an open mind about what sort of people might get involved in criminal matters of this nature. What does Mr Illingworth look like? We've only seen a couple of fleeting glimpses of him on the video screen. Does he look like the sort of person who would get involved in a drug importation of this nature? Well we know he is. So you can take that sort of comment or suggestion only so far. Anyway here it is, the thing you would expect the man to whom the drugs have been delivered getting in contact with whoever else is involved. And Mr Dickman came along, having said in his statement of 8 August this year, there was no mention of any package, no didn't talk about no package [sic] and when he gave evidence he said oh well we could have talked about a salary package. Now the salary package for the mechanics job, the salary package no doubt involved share options, company car you know the rest of it for the mechanics job. 51 The trial judge (of her own motion) addressed this issue in the context of giving standard directions to the jury concerning the way in which the evidence of witnesses was to be assessed: You will take into account, no doubt, the demeanour or the behaviour of the person in the witness box, any inconsistencies between accounts that may have been given, and accounts that may have been given on previous occasions and how important you think such inconsistencies are to the reliability of the witness. I interpolate here that the Crown Prosecutor, in her address, said that Mr Dickman did not "look like the sort of person who would be involved in the importation or attempting to possession (sic) of cocaine". Mr McGrath, on behalf of the accused, took that remark up and took that remark literally, where it was no doubt meant figuratively. It would be quite wrong to work on the basis that anyone looked like a criminal and I am sure you would not do so. What I am sure the Crown prosecutor was adverting to is your role of assessing the witnesses, all witnesses, by the way they appear in the witness box and the answers they give. In other words, their demeanour, as I told you at the beginning of the trial. 52 It is now submitted that there was potential prejudice occasioned to the appellant by the Crown Prosecutor's remarks concerning whether or not Mr Dickman looked like a person who would get involved in the importation of cocaine. The prejudice is said to have arisen because the remark carried with it the suggestion that his evidence was to be preferred to that of the appellant, since it was implicit in what was said that the appellant did or may have looked like such a person. I am quite unable to accept the submission. In any event even if there had been any prejudice, the trial judge's directions, in my view, adequately cured it. Again counsel made no application for redirections. I would reject this Ground of appeal. 53 As I have observed none of the Groundss of appeal, other than obviously Ground 3, attracted complaint from counsel at trial. Were it have been necessary to do, I would have invoked Rule 4 in relation to each of these Grounds. Sentence 54 The applicant contends that the sentence imposed upon him is manifestly excessive when regard is had to the sentence which was imposed upon Illingworth. He was sentenced to a term of 6 years' imprisonment with a non-parole period of 3 years 3 months. It is acknowledged that a sentence which is comparable to that imposed upon the co-offender would not be appropriate because Illingworth was able to advance matters of a subjective nature which were not available to the present applicant. Indeed Judge Kinchington allowed a discount of 25% to that offender on account of his early plea of guilty and contrition and what his Honour described as his impressive subjective material. They were matters to which Judge Hock made specific reference when passing sentence upon the applicant. That would, of itself, be sufficient reason to satisfactorily explain why a somewhat more lenient sentence was imposed upon the co-offender. 55 In any event the sentencing judge concluded that the applicant had a greater involvement in the offence than did Illingworth. Such a finding was open to Her Honour, particularly as Judge Kinchington accepted that Illingworth's role, although important, was a limited one. His Honour accepted that he had been requested by the applicant to receive the cocaine and that he was to pass it on to him in return for a reward of $1,000 or $2,000. In contrast, the applicant stood to be sentenced on the basis that he was the intended recipient of the cocaine which had been imported. Nevertheless it might be noted that Judge Hock did not, as the applicant suggested, make a finding that the applicant was a "principal or organiser". 56 In any event, having regard to the objective gravity of the offence, I am of the view that the sentence imposed was well within the permissible bounds of a sound sentencing discretion. I propose the following orders: 1. Appeal against conviction be dismissed. 2. Leave to appeal against sentence be granted but that the appeal be dismissed. ********** Last Modified: 08/06/2004 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.