Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hay v R [2013] NSWCCA 22 Hearing dates: 11 December 2012 Decision date: 13 February 2013 Before: Simpson J at [1]; Fullerton J at [53]; Davies J at [54] Decision: (i) Appeal against conviction dismissed; (ii) Leave granted to appeal against sentence; (iii) Appeal against sentence dismissed. Catchwords: CRIMINAL LAW - appeal - conviction - appellant convicted by jury of offences against s 307.2(1) and s 11.5(1) of the Criminal Code (Cth) - whether a miscarriage of justice - whether there was fresh evidence - no fresh evidence - appeal against conviction dismissed - CRIMINAL LAW - application for leave to appeal against sentence - whether there was a failure to take into account evidence of appellant's medical condition -whether there was an error regarding the issue of parity with co-offender - whether the sentences were too severe when effect upon appellant's family is considered - all grounds rejected - leave to appeal against sentence granted - appeal dismissed Legislation Cited: Criminal Code (Cth) Cases Cited: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Abou-Chabake [2004] NSWCCA 356; 49 A Crim R 417 R v Edwards (1996) A Crim R 510 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 Category: Principal judgment Parties: Matthew Robert Hay (Appellant) Regina (Respondent) Representation: Counsel: D Hawkins (Appellant) C P O'Donnell (Respondent) Solicitors: City Attorneys (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2009/209616 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-09-23 00:00:00 Before: Zahra DCJ File Number(s): 2009/209616 Judgment 1SIMPSON J: On 9 February 2011 the appellant was arraigned in the District Court on an indictment containing two counts, each brought under the Criminal Code (Cth) ("the Code"). The first count was of conspiracy to import a marketable quantity of a border controlled drug (cocaine), alleged to have been committed between 30 October 2008 and 20 September 2009 (the Code, s 307.2(1) and s 11.5(1)). On this count, the appellant was jointly charged with another man, Wayne Charles Williams. The second count against the appellant (but not against Williams) was of possession of a marketable quantity of an unlawfully imported border controlled drug (cocaine) (the Code, s 307.6(1)), alleged to have been committed on 20 September 2009. 2The appellant entered a plea of not guilty to each count. Williams entered a plea of not guilty to the single count against him. 3On 25 March 2011 the jury returned verdicts of guilty of each charge against the appellant. At that time it had not reached a verdict in respect of the count against Williams. Ultimately, in circumstances it is unnecessary to recount, the jury was discharged without verdict in respect of the count against Williams. 4Each of the offences of which the appellant was convicted carries a maximum penalty of imprisonment for 25 years and/or a fine not exceeding $550,000. On 23 September 2011 the appellant was sentenced, on each count, to imprisonment for 7 years with a non-parole period of 4 years, the sentences to be served concurrently, commencing on 27 December 2009. 5The appellant appeals against the convictions and seeks leave to appeal against the sentences. The Crown case 6What follows is an account of the case the Crown presented at trial. It does not represent findings of fact other than those necessarily encompassed in the jury verdicts. 7The appellant was a member of a syndicate that included among its members Wayne Dennis John Cleveland, Craig Tira Nicholson, Jose Arnel Alquillera, Williams, and various others. The syndicate had previously, in 2007, imported a commercial quantity of cocaine into Australia, by the same method the Crown allege was used in the 2008-2009 conspiracy. The appellant was not involved in the 2007 importation. 8From August 2008 the appellant was employed as a driver by Gate Gourmet, a catering company that serviced airlines flying international routes to and from the Sydney International Airport. One of the airlines so serviced was United Airlines. The appellant's work was based at a catering centre in Mascot, approximately 2 kilometres from the airport. His duties required him to attend at the catering centre, load items onto trucks, drive to the airport, transport the catering items, and load the catering items into the galleys of the aircraft. Alquillera had a similar position. Both men worked shift work, according to prepared rosters. 9On 14 September 2012 Craig Nicholson flew from Sydney to Los Angeles, with the intention of returning on flight UA839, to arrive in Sydney on 20 September. The appellant manipulated his shift work arrangements to ensure that he would be working on flight UA839 on that day, with Alquillera who was already rostered for that flight. Nicholson boarded the flight as planned; he was in possession of two packages of cocaine. These he secreted in a rubbish receptacle in a toilet cubicle at the rear of the aircraft cabin. In accordance with the arrangements, Alquillera boarded the aircraft. While servicing the galley, he removed the cocaine, placed it in a catering container in a service trolley which was then loaded onto a Gate Gourmet truck positioned at the rear of the aircraft. 10Alquillera and the appellant were apprehended shortly after, in possession of the two blocks of cocaine (which proved to have a pure weight of 250.7 grams) on the trolley. The trial 11In the trial there was extensive evidence of communications by telephone or text message, a relatively small number of which involved the appellant, which had been intercepted and recorded. These communications contained material consistent with arrangements for the importation of the cocaine. 12The appellant gave evidence in the trial. He gave explanations for a number of the communications. It is unnecessary to go into all of the detail. 13The appellant's evidence was to the effect that the purpose of re-arranging the roster for the UA839 flight on 20 September was to enable Alquillera to "pilfer" items from the duty free carts on the aircraft, and that he himself then became involved in the "pilfering" which was, in effect, an established practice. Given the arguments advanced on the appeal, it is important to recognise here that the appellant's evidence was to the effect that it was Alquillera who was the principal "pilferer", and that he (the appellant) himself became drawn into the pilfering, in a minor way, receiving what Alquillera allowed him to have. The pilfering, on the appellant's account, was rather small scale; apart from some items such as after shave lotion that the men retained for themselves, small items were passed to a market stall holder for quite modest amounts of money. 14Plainly, by its verdicts, the jury rejected this alternative hypothesis put forward by the appellant as an explanation for otherwise apparently incriminating communications and conduct. 15That rejection had a sound basis in the evidence. A Ms Leanne Benson, a United Airlines employee, gave evidence in the Crown case. Among other things, Ms Benson described a security system concerning the duty free trolleys that she had introduced in 2006, as a result of the loss (theft) of items from the trolleys. Although some losses had continued until 2007, there were no records of loss or theft thereafter. The conviction appeal The grounds of appeal 16Initially, two grounds of appeal against the convictions were pleaded. They were in the following terms: "1. There has been a miscarriage of justice in the trial of the applicant (sic) on account of fresh evidence and evidence undisclosed at the trial. 2. There has been a miscarriage of justice in the trial of the applicant on account of the jury making their own enquiries regarding the case prior to and after the finding of the appellant as guilty of the charges at the trial." At the commencement of the hearing of the appeal, counsel for the appellant abandoned ground 2. 17Three grounds of appeal against sentence were pleaded. I will come to these in due course. 18The principles upon which fresh evidence will be admitted on appeal were comprehensively stated by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; 49 A Crim R 417. His Honour adverted to a distinction between "fresh evidence" (evidence not available to the accused, actually or constructively, at the time of the trial) and "new evidence". Evidence is constructively available if it could have been discovered, or available at the trial, by the exercise of due diligence. 19The other matters set out by his Honour are: * great latitude is extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial: Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510; * the ultimate question is whether there has been a miscarriage of justice; * the evidence must therefore be examined in the context of the evidence given in the trial: Mickelberg v The Queen [1989] HCA 35; 167 CLR 259; * a significant issue is the capacity of the new or fresh evidence to sustain the orders sought in the appeal; * where it is contended that the evidence would justify a new trial, a number of questions must be answered affirmatively: (i)is the evidence fresh? (in the sense outlined above); (ii)is the evidence credible? (Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392; Mickelberg); (iii)if the evidence is credible, would it, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused? (Gallagher, Mickelberg). 20The evidence upon which the appellant now seeks to rely is evidence contained in a report, prepared for sentencing purposes, by a psychologist, Mr Tim Watson-Munro. I will extract some significant passages from that report: "Despite the finding of the Court Mr Hay maintains his innocence. He offers as an explanation for his association with this matter the fact that he was involved in stealing duty free goods from Sydney airport during the course of his employment there. Attendant to this he further describes a tendency towards compulsive and impulsive stealing (Kleptomania) and that as a sideline though illegal business, he is making additional income from selling the wares which he pilfered. ... [Mr Watson-Munro went on to outline a history he took from the appellant, including a history of sexual abuse by an uncle when the appellant was 5 years of age. In this context, Mr Watson-Munro said that it was clear that the appellant had suffered from longstanding emotional problems.] To close the history taking Mr Hay described a longstanding pattern of stealing over the years, which he conceded at times was somewhat beyond his control with a certain compulsive element to his behaviour. He stated that this was of relevance to his employment at Sydney Airport where he became involved in pilfering duty free goods and selling them in order to supplement his income. ... Testing confirms a high level of unresolved psychological malaise. Opinion: 1. Mr Hay presents as a cooperative though highly anxious and depressed man ... In addition he has elements of post-traumatic stress disorder in the context of he and his now deceased brother being sexually abused by his mother's sister's husband commencing when he was 5 years old and continuing for a number of years. This no doubt established the platform for his continuing psychological malaise to the present. 2. ... [Discovery of the sexual abuse] in turn led to a recrudescence of his symptoms inclusive of flashbacks, nightmares, hyper vigilance to danger, the loss of trust in others, social withdrawal and very low self esteem ... When pressed Mr Hay stated that he has suffered from poor impulse control over the years which has manifested itself in a pattern of stealing which came to the fore when he was placed in a position where this was possible through his employment at Sydney Airport and attendant to this the distribution of duty free goods. 3. In more recent times he has been affected by the break down of his marriage ... 4. ... 5. ..." (italics added) 21The reliance sought to be placed on this material on behalf of the appellant lay in the support which it was asserted it gave to the defence he advanced, that his activity was to do with "pilfering" and not with drug importation. It is for that reason that I have above referred to the evidence given by the appellant at trial. As I have pointed out, he did not explicitly speak of stealing by himself, but of being drawn into the established stealing pattern of Alquillera. That is a long way from the "compulsive stealing" which he described to Mr Watson-Munro. 22There are a number of other reasons, however, why the ground of appeal must fail. First, it is quite plain that the evidence does not qualify as "fresh evidence", in the sense in which that term is properly used. The source of Mr Watson-Munro's report was the appellant himself. Plainly that information was available to him at the time of the trial. 23An attempt was made to establish that it was the link between the sexual abuse of the appellant as a child and his "compulsive stealing" that was not available to the appellant at trial. The difficulty with that proposition is that Mr Watson-Munro does not himself make that link, or give any diagnosis of a condition known as "kleptomania". The opening passage of the extract above is no more than Mr Watson-Munro recounting the history given to him by the appellant. True it is that Mr Watson-Munro has inserted the label "kleptomania" but he does not give any diagnosis of such a condition. Nor does that appear anywhere in the rather lengthy opinion section of the report. When this was put to counsel for the appellant, she argued that Mr Watson-Munro, given an opportunity, might make that link. That was insufficient to enable this Court to take into account evidence of such a connection. That Mr Watson-Munro might, given an opportunity, make that link was pure speculation. In any event, it is immaterial. The reason the appellant sought to rely on Mr Watson-Munro's report was to establish that he was a compulsive thief, as support for his claim that, rather than being involved in the importation of drugs, he was involved in petty theft. A causal connection with sexual abuse would not strengthen that proposition. 24Even if the content of Mr Watson-Munro's report had been placed before the jury, it would be quite insufficient to establish the sort of connection for which counsel now contends. 25Another circumstance lies in the nature of the evidence given by the appellant in the trial. As I have pointed out above, he did not give any evidence of a history of stealing on his own behalf, compulsive or otherwise. His evidence was largely self-serving, distancing himself from the pattern of stealing that he asserted. That is a very long way from the position he now seeks to take. 26The evidence can not in any way come within the parameters outlined by Kirby J for the admission of fresh evidence. 27I would reject this ground, and dismiss the appeal against conviction. Sentence 28The grounds of proposed appeal against sentence are pleaded as follows: "3. The learned judge erred in that he took no account of evidence given at sentence by the appellant regarding harshness of gaol conditions concerning the appellant's medical condition. 4. The appellant has a justifiable sense of grievance regarding the issue of parity with the co-offender, Borg. 5. The sentence is too severe taking into account the effect upon the appellant's family." Ground 3: the appellant's medical condition 29The appellant gave evidence in the sentencing proceedings. 30By way of background, at some stage during the course of the trial, the appellant was briefly admitted to hospital suffering from what was said to be a gall bladder condition. 31In the sentencing proceedings he gave evidence that he discharged himself from the hospital against medical advice and returned for the continuation of the trial. He said that he had not received any treatment or surgery since being taken into custody after his conviction, notwithstanding "numerous" requests for treatment. He said that he was still in need of gall bladder surgery. 32That was the extent of the evidence which comes within the parameters of ground 3 as formulated. 33In the sentencing remarks, the judge erroneously said that the appellant had not given evidence during the sentence proceedings. He said this in the context of considering Mr Watson-Munro's report. He said: "I am not able to conclude, as I have already indicated, that alcohol or matters identified by the psychologist as touching upon the level of cognitive functioning of the offender bear any causative connection to his offending here." 34The submissions made on the appellant's behalf in the sentencing proceedings in this respect were as follows: "He is also still suffering his condition with the gall bladder, he's had no treatment. He sought, as he said, a number of times for treatment in gaol and hasn't received any. It is also, your Honour, the first time he would be incarcerated for such a period of time and I think he said he's already done 21 months." 35Accordingly, although it was a clear error for his Honour to say that the appellant had not given evidence in the sentencing proceedings, ground 3 is based upon a false premise - that there was evidence, overlooked by his Honour, concerning "harshness of gaol conditions" as a result of the appellant's physical health. There was no such evidence. 36Similarly, to the extent that the submissions in support of this ground relied upon a hypothesis that the appellant suffered from a psychological condition diagnosed as "kleptomania", they are misconceived. As indicated above, in respect of the conviction appeal, there was no such diagnosis. 37This ground should be rejected. Ground 4: parity - "the co-offender Borg" 38In the introductory passages of these reasons, I have identified certain named co-conspirators. It will be observed that the indictment also alleged that various others ("divers others") were involved. The name "Borg" does not appear in the list of those named as parties to the conspiracy. 39Geoffrey Wayne Borg was sentenced by the same judge on 29 July 2011. He had pleaded guilty to a charge of importing a commercial quantity of cocaine between 30 November and 2 December 2007. This was the earlier importation by the same syndicate to which I have referred above. As I have also mentioned above, the appellant was not involved in that importation. 40It is therefore incorrect to call Borg a "co-offender". 41Borg was sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 4 years and 6 months. The sentence that otherwise would have been imposed was reduced by 25 percent in recognition of his plea of guilty. 42The question of parity of sentencing has been considered by the High Court and by this Court on many occasions: see, for example, Postiglione v The Queen [1997] HCA 26; 189 CLR 295; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540. It is unnecessary here to restate the principles there stated. It is sufficient to note that Borg was charged with a different offence, he pleaded guilty, he was sentenced on the basis of his role in the conspiracy in which he was involved. His sentence, particularly when the 25 percent reduction is factored in, was significantly higher than the sentence imposed upon the appellant. 43Ground 4 should be rejected. Ground 5: effect on the appellant's family 44Again, the only colour of legitimacy in relation to this ground is the erroneous statement by the sentencing judge that the appellant did not give evidence in the sentencing proceedings. 45However, it is again necessary to examine the evidence which it is contended was overlooked. 46In fact, the appellant himself gave no evidence of the effect of his imprisonment upon his family. He had been on bail for a time prior to and during the trial. He gave evidence that he had two children from a de facto relationship, and that he had subsequently married another woman. A 14 year old son from the de facto relationship lived with him and his wife. 47There was some material in Mr Watson-Munro's report concerning the appellant's family. His marriage had disintegrated as a result of his incarceration. According to Mr Watson-Munro, his son had developed "a range of symptoms reflective of a conduct disorder" which had led to his being placed in juvenile detention. 48That was the extent of the evidence relevant to this ground of appeal. 49It is well established that the effect on family or others can be taken into account only in exceptional circumstances: R v Edwards (1996) A Crim R 510. The evidence in this case does not remotely approach the necessary standard. Accordingly, although it was an error for his Honour to have said that the appellant did not give evidence, there was no evidence that would have enabled him to make any adjustment to the sentence by reason of the effect on the appellant's family. 50This ground of appeal should be rejected. 51It follows that an appeal against sentence, if leave is granted, should be dismissed. 52I propose the following orders: (i) Appeal against conviction dismissed; (ii) Leave granted to appeal against sentence; (iii) Appeal against sentence dismissed. 53FULLERTON J: I agree with Simpson J. 54DAVIES 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2013