New South Wales Court of Criminal Appeal CITATION: Thompson v R [2007] NSWCCA 83 HEARING DATE(S): 26 March 2007 JUDGMENT DATE: 30 March 2007 JUDGMENT OF: Simpson J at 1; Howie J at 43; Hislop J at 44 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: CRIMINAL LAW - application for leave to appeal against severity of sentence - importation to Australia of not less than the commercial quantity of cocaine - previous trial of charges - applicant convicted - successful appeal - new trial ordered - sentence discounted by reason of plea - applicant born in New Zealand - two co-offenders of British origin - Convention on the Transfer of Sentenced Persons - whether transfer of co-offender a ground for parity - parity of sentencing - issue estoppel - no issue estoppel in reasoning of appellate court - finding as to applicant's criminality open to sentencing judge LEGISLATION CITED: Customs Act 1901 (Cth) s235(2)(c)(ii) R v Bartle and Others (2003] NSWCCA 329; 181 FLR 1 CASES CITED: R v Daley [2003] NSWCCA 109 R v Thompson: R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 PARTIES: Hamish Edward Thompson - Applicant Crown - Respondent FILE NUMBER(S): CCA 2006/1818 COUNSEL: K Chapple - Respondent SOLICITORS: Applicant in person Commonwealth Director of Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/1255 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 11 February 2005 IN THE COURT OF CRIMINAL APPEAL 2006/1818 SIMPSON J HOWIE J HISLOP J Friday 30 March 2007 Hamish Edward THOMPSON v REGINA Judgment 1 SIMPSON J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant in the District Court on 11 February 2005 by Berman DCJ, following the applicant's plea of guilty to a charge that, between 1 June 1999 and 1 February 2000, he was knowingly concerned in the importation into Australia of not less than the commercial quantity of cocaine. Pursuant to s235(2)(c)(ii) of the Customs Act 1901 (Cth) the maximum penalty applicable to the offence was imprisonment for life, together with a fine not exceeding $750,000. 2 Berman DCJ sentenced the applicant to a term of imprisonment for 20 years and six months, with a non-parole period of 13 years. The applicant now contends that this sentence was affected by error in the sentencing process. 3 Although he was represented by counsel at sentencing, the applicant has, throughout the appeal process, represented himself. He has identified three grounds of appeal, which he frames as follows: "- discriminatory treatment in sentencing - criminality issue in sentencing - issue estoppel" 4 In support, he has provided extremely lengthy written submissions. These are not easy to follow and reflect and portray his lack of legal training. 5 It is, however, convenient to begin by outlining a history of the proceedings, followed by the facts on the basis of which the sentence was passed. Procedural history 6 The applicant was arrested at Patonga at 3.30 am on 1 February 2000. Also arrested at or about the same time were Garry William Bartle; Maximiliano Diez; Peter Daryl Fox; Sir Thomas Graham Fry; Thomas McCaffery; Roberto Angelo Roberti. Arrested separately, but also involved in the same enterprise, was Russell Douglas Bateman. 7 In 2001 the applicant, together with Bartle, Fry, Roberti, Diez, Fox and McCaffery was tried in the District Court before Dodd DCJ and a jury. The trial proceeded over seven months. All were convicted. On 26 October 2001, Dodd DCJ sentenced all seven. The applicant was sentenced to imprisonment for 24 years with a non-parole period of 16 years. Bateman pleaded guilty. He gave assistance to police by providing information and agreeing to give evidence in the prosecution of the other men. On 31 August 2000 he was sentenced by James J in the Supreme Court to imprisonment for 13 years with a non-parole period of eight and a half years. This sentence incorporated a discount of 50% on the sentence that would otherwise have been imposed, referable to subjective circumstances and the assistance provided, and, presumably, his plea of guilty. 8 All seven convicted after trial appealed to this Court against their convictions. On 3 December 2003 this Court upheld the appeals against convictions in respect of three of the men, including the applicant, and ordered a new trial. (R v Bartle and Others [2003] NSWCCA 329; 181 FLR 1) It is unnecessary to go into the reasons that led to this result. 9 The re-trial was fixed to commence in the District Court on 5 July 2004 before Berman DCJ. On that date the applicant entered a plea of guilty to the charge. (Subsequently, McCaffery also pleaded guilty, and Fox was convicted by a jury.) 10 On 11 February 2005 Berman DCJ sentenced the applicant in the terms set out above – imprisonment for 20 years and six months, with a non-parole period of 13 years, commencing on 1 February 2000. It will be observed that the sentence then imposed is less than that imposed by Dodd DCJ. The explanation for this lies in the applicant's plea of guilty: Berman DCJ allowed a reduction on sentence, purportedly in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. The facts of the offence 11 The facts of the offence were put before Berman DCJ by way of an agreed statement. The applicant did not give or call evidence. 12 As may be gleaned from the number of co-offenders who have been before the courts, and the length of the original trial (seven months), the cocaine importation was part of an elaborate and highly organised enterprise. 13 The applicant was a New Zealand resident. He was also a master mariner. He knew the man called Sir Thomas Fry. (According to James J, who sentenced Bateman, the "Sir" in Fry's name does not denote elevated rank, but rather, is a given name.) Fry owned a large yacht called the Lone Bird that was moored in Gisborne, New Zealand. 14 In September 1999 Fry flew to Columbia under an assumed name, where he arranged for a large quantity of cocaine to be transported by ship (a yacht called the Bora Bora II) to the vicinity of the North Island of New Zealand. The plan was for Fry and others, including the applicant, to meet the vessel, unload the cocaine, reload it onto the Lone Bird, and transport it to Australia. Others were to meet the yacht in Sydney, offload the drug, and deliver it to a participant called Diez. 15 On 16 October 1999 Bora Bora II left South America, the aim being to meet Lone Bird off the northern tip of New Zealand in mid January 2000. Bora Bora II was carrying approximately half a tonne of powder containing cocaine. Unfortunately for the participants, Lone Bird was unseaworthy. A large amount of money was spent on repairs but it could not be made seaworthy. From October/November 1999 the applicant was involved in attempts to repair the yacht. Ultimately, it was decided to abandon Lone Bird and purchase another yacht. 16 Acting on behalf of another participant, McCaffery, who provided the finance, the applicant located, and entered into an agreement to purchase, another yacht, the Ngaire Wha, in Auckland. The purchase was completed on 13 December 1999. The applicant also purchased a dinghy and outboard motor. Ngaire Wha left New Zealand on 14 January 2000, in order to meet Bora Bora II. The applicant and two others (Roberti and Fry) were on board. On 19 January 2000 Bora Bora II arrived in the North Island of New Zealand. The two yachts met (it is not clear where) and the cocaine that was on Bora Bora II was transferred to Ngaire Wha. Ngaire Wha set sail for Sydney. It arrived on 1 February 2000, mooring at Patonga. At 3.30 am that day police boarded, discovered the cocaine, and arrested the applicant and Roberti. Others were arrested on land. 17 On analysis, the substance on board proved to contain 383.443 kilograms of pure cocaine, with a wholesale value of more than $60 million. 18 On arrest the applicant gave a false first name and otherwise refused to provide any details. Later, after taking legal advice, he gave his correct name, but declined to participate in a recorded interview. Other factual matters relevant to the grounds of appeal 19 Two co-offenders, Bateman and Bartle, who were Australian citizens but of British origin, have, pursuant to the Convention on the Transfer of Sentenced Persons, been transferred to the United Kingdom to serve their sentences in accordance with the agreements between this country and the United Kingdom. Because of those arrangements, and parole practices in the United Kingdom, Bateman was released on parole approximately two years earlier than would have been the case had he remained in the Australian prison system. Bartle will be eligible for parole under that system in January 2012. 20 Both Fox and McCaffery have also applied for transfer under the Convention, but their applications have not been determined. 21 No arrangements of a like kind exist between Australia and New Zealand, the applicant's home country. He will therefore serve the entirety of his sentence in this country in accordance with the NSW sentence administration regime. Subjective circumstances 22 The applicant was born on 19 March 1953 in New Zealand, into an academically gifted and high achieving family. His father was a general practitioner. He is one of seven children, of whom a number are practitioners of medicine, law, or other professions. He himself trained as a journalist but is said to have experienced some sense of underachievement relative to other members of his family. 23 He was, for some years, engaged in developing a fibreglass business in Mauritius, and in another business in France. 24 In 1977 he was convicted in New Zealand of an offence of importing cannabis in respect of which he was sentenced to three and a half years' imprisonment. In 1992 he was again sentenced, this time in Perth, in respect of a charge of being knowingly concerned in the importation of cannabis into Australia. After a successful Crown appeal, his sentence was of imprisonment for nine years with a non-parole period of five years. At the time of this offence, the applicant had been released on parole. The parole period had not expired and he remained subject to the conditions of the parole order. 25 Notwithstanding this rather discouraging history, a psychologist who provided a report for sentencing purposes considered that the applicant had some insight into the gravity of his offending, and a strong resolve to refrain from future criminal activities. The sentencing remarks 26 In sentencing the applicant Berman DCJ set out the circumstances of the importation enterprise, paying particular attention to the role played by the applicant. Given that this is of some significance in the grounds of appeal, it is appropriate to refer to those findings in some detail. 27 His Honour found that the applicant first became involved in the scheme when he participated in the work to make the Lone Bird seaworthy; and thereafter in the selection and purchase of a replacement vessel. He also found that the applicant was involved in equipping the Ngaire Wha by, inter alia, renting a storage unit in Albany. He noted the applicant's experience as a mariner and rejected a submission put to him that he was no more than "a deckhand". His Honour was satisfied beyond reasonable doubt that from the moment he began working on the Lone Bird the applicant was aware that the intention was that it would be used to transport a large amount of cocaine to Australia. He found that the applicant was working full time on the scheme from about December 1999, contributed his expertise in selection of the Ngaire Wha and its preparation for sailing to Australia and that he played: "a significant, if not the primary, role in sailing the yacht to Australia." 28 Relative to other offenders, Berman DCJ found that the applicant played an equivalent role to the roles played by Roberti and Bartle. In comparing the role of the applicant with the roles payed by McCaffery and Fox, Berman DCJ departed from the conclusion reached by the previous sentencing judge, Dodd DCJ, that the roles of these two offenders and that of the applicant were also equivalent. He considered the applicant's criminality to be greater than the criminality of either of those offenders. 29 He noted the applicant's prior record for importation of drugs, and that, at the time of this offence, the applicant was on parole in respect of the previous (Perth) offence and correctly regarded this as a matter of serious aggravation. 30 Curiously, in light of the procedural history I have outlined above, Berman DCJ acknowledged the applicant's plea of guilty by reducing the sentence imposed by Dodd DCJ by 15%. This, it seems to me, represents a misconception of the effects of the decision of this Court in R v Thomson; R v Houlton. While Thomson and Houlton acknowledges the appropriateness of discounting sentences where an offender pleads guilty, it does not lay down, as an absolute rule, that, in every case where a plea of guilty is entered, a sentence must be reduced: see R v Daley [2003] NSWCCA 109. Here, the applicant had participated in a seven-month trial, and had appealed against the conviction, before accepting the reality of his conduct. While it is true that avoidance of the re-trial carried with it some (indeed, having regard to the length of the original trial, considerably) utilitarian benefit, it does not thereby follow that he was entitled to such a reduction. Indeed, it is more than a little peculiar that an offender who eventually pleads guilty after a trial, appeal, and at the commencement of a proposed re-trial, is better off than an offender who accepts the verdict of a jury after trial. However, this matter is not the subject of contention either by the applicant or by the Crown and I need not trouble with it further. The application for leave to appeal 31 I have above set out the applicant's encapsulation of the grounds of appeal. In the course of his lengthy written submissions the applicant set out or referred to significant and, indeed, extensive, factual matters. This includes reference to evidence he claims to have been given by him and others. The papers demonstrate that the applicant did not give evidence in the sentencing proceedings before Berman DCJ. The evidence to which he was referring was evidence that he gave in the trial before Dodd DCJ. This was not before Berman DCJ and cannot be used as part of the present proceedings. This Court must proceed to determine the application on the basis of the material that was before Berman DCJ. 32 In any event, the factual matters include references to evidence indicating when the applicant became aware of the nature of the criminal enterprise. Berman DCJ made appropriate findings of fact based upon the agreed statement of facts that had been put before him. Nothing has been advanced by way of challenge to those findings that could possibly succeed in establishing error of fact on the part of his Honour. The grounds of the application 1. "discriminatory treatment/sentence" 33 I take this to be a ground raising issues of parity. The applicant put extensive written submissions concerning parity, including lengthy extracts from authority in this Court and the High Court. Much of this is, by reason of the applicant's lack of legal training, misdirected. 34 As I understand it, the nub of his argument in respect of parity concerns the transfers of Bateman and Bartle to Britain, where, it appears, parole arrangements are such that Bateman has derived, and Bartle might derive, a benefit in serving a lower proportion of the sentence in custody. 35 I am unable to see that this raises any issue of parity. Parity is concerned with sentencing like offenders to like punishments. Transfer of prisoners to other countries involves arrangements made between the Commonwealth of Australia and other countries. It is not a matter to which a sentencing judge can or should have regard. It is far removed from the sentencing process. Apart from anything else, whether or not one prisoner is to be transferred to serve a sentence in another country is something that will seldom, if ever, be known at the time of sentencing. Certainly, there was no reason for Berman DCJ to have been aware of what lay in the future for Bateman or Bartle. 36 There is no substance in this ground of appeal. 2. "issue estoppel" 37 As far as I can determine from the applicant's written submissions, the "issue" the subject of this ground of appeal concerns what the applicant knew, or more accurately, when the applicant knew of the proposed importation. In this respect he quoted from the judgment of Smart AJ in the appeal the subject of the judgment in R v Bartle and Others, where his Honour said: "The jury may not have been satisfied beyond reasonable doubt as to Thompson's knowledge that cocaine was to be or was being imported prior to the transhipment of the cocaine at sea." 38 That may have been so in relation to the trial; but it is not now the case, where the sentencing judge has been provided with an extensive agreed statement of facts and has made an available finding on the basis thereof. There is no "issue estoppel" in the observation made by Smart AJ. Indeed, the applicant wrote: "Thompson argues the determination of the NSWCCA Bartle v Orrs (sic) (2003) 329 at (839) quashing Thompson's conviction creating an estoppel in the accused's favour on that issue." 39 That paragraph incorporated the passage extracted above. Smart AJ made his observation in the context of determining that it would be inappropriate to apply the proviso to s6 of the Criminal Appeal Act 1912. It has no bearing upon the finding made by Berman DCJ. It does not represent or contain any concluded finding of fact, such as is necessary to amount to an issue estoppel. 3. "criminality issue/sentence" 40 I do not find it easy to understand the submissions advanced by the applicant in respect of this ground. However, they appear to be a detailed canvassing of factual matters concerning his role in the enterprise. Specifically, he appears to contend that he only became aware of the importation once he was at sea. This overlaps with the matters dealt with under Ground 1. As I have made plain already, the finding of the sentencing judge concerning the applicant's role in the enterprise was open to him and has not been shown in any way to have been incorrect. 41 Accordingly, this ground of the application, like the others, ought to be rejected. 42 I would grant leave to appeal but dismiss the appeal. 43 HOWIE J: I agree with Simpson J. 44 HISLOP J: I agree with Simpson 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. 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