Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chime v R [2014] NSWCCA 304 Hearing dates: 6 August 2014 Decision date: 17 December 2014 Before: Bathurst CJ at [1] Adams J at [2] R A Hulme J at [104] Decision: 1.Appeal against conviction dismissed; 2.Leave to appeal against sentence granted; 3.Appeal against sentence dismissed except as to the sentence imposed in respect of count 6. 4.The sentence imposed in respect of count 6 quashed and, in lieu thereof, a sentence of 2 years to be imposed commencing on 29 February 2012 and ending on 28 February 2014. Catchwords: CRIMINAL LAW - appeal - appeal against conviction - whether trial judge directed jury to find that offender was person in photographic evidence - whether juror fell asleep during trial - whether facilities for jury deliberation induced poor judgment - whether jury induced to give verdict before prepared to do so - whether trial judge erred in directing offender to answer questions in English - effect of interpreter falling asleep during trial - whether offender's legal representative mistaken or negligent in failing to call witnesses - whether absence of certain evidence occasioned miscarriage of justice CRIMINAL LAW - appeal - appeal from sentence - whether sentence manifestly excessive - whether inappropriate weight accorded to offender's psychological condition - whether offender's status as first-time offender accorded adequate weight - whether sentencing judge failed to consider offender's mental health history and family circumstances Legislation Cited: Criminal Code Act 1995 (Cth), ss 307.2(1), 11.2(1), 400.4(1) Cases Cited: Gallagher v The Queen (1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259 R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 Salmon v R [2012] NSWCCA 119 Category: Principal judgment Parties: Uchenna Jude Chime (Applicant) Regina (Respondent) Representation: Counsel: I D Bourke SC (Respondent) Solicitors: Self-represented (Applicant) Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2011/161270; 2011/166427 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-07-18 00:00:00 Before: Tupman DCJ File Number(s): 2011/161270; 2011/166427 Judgment 1BATHURST CJ: I agree with the orders proposed by Adams J and with his reasons. 2ADAMS J: Introduction 3On 21 February 2012, the appellant was convicted of nine counts of aiding and abetting marketable quantities (2 grams or more) of border controlled drugs contrary to the Criminal Code Act 1995 (Cth) ss 307.2(1) and 11.2(1) (carrying a maximum penalty 25 years imprisonment and/or $550,000 fine) and one count of dealing with money (comprising numerous transactions made between 19 November 2009 and 31 August 2010) that the appellant believed to be proceeds of crime, where the value of the money was $100,000 or more, an offence under the Criminal Code s 400.4(1) (carrying a maximum penalty of 20 years imprisonment and/or $132,000 fine). In respect of the former offences, count 1 involved 42.3 grams of heroin (2 July 2010), count 2, 64.7 grams of cocaine (8 July 2010), count 3, 174 grams of heroin, count 4, 106 grams MAM or 6-monoacetylmorphine, a derivative of morphine (both 3 August 2010), count 5, 116.7 grams of cocaine (6 August 2010), count 6, at least 2 grams heroin (20 August 2010), count 7, 158.6 grams methamphetamine (21 August 2010), count 8, 332.1 grams of heroin (24 August 2010), and count 9, 159 grams of cocaine (7 September 2010). On 18 July 2012 he was sentenced to an effective head term of 12 years imprisonment with a non-parole period of 7 years, commencing on 31 August 2010. 4The appellant, who appeared unrepresented in this Court (though represented at trial), appealed both his conviction and sentence. Amongst other things, he sought bail from this Court to enable him to assist police to identify the offenders who were involved in the offences by making contact with them. Unsurprisingly, the Crown did not join in this application. There is no power to grant bail in these circumstances or for such a purpose. Since there can be little doubt that the appellant acted with others, his application perhaps should not be dismissed as an altogether empty gesture and might be some evidence of contrition. However, in light of the view I have taken concerning his sentence appeal, the matter does not arise for consideration. I mention it only for completeness. 5It is convenient first to briefly outline the prosecution case to provide a context for his various complaints, which will then be dealt with seriatim. The prosecution case 6(Much of what follows has been extracted from the extensive and helpful submissions of the Crown prosecutor in this Court which, as to potentially controversial matters, I have compared with the evidence, and appear to me to summarise the case accurately and adequately.) 7The drugs whose importation the appellant allegedly aided and abetted were concealed inside packages sent by mail to Australia. On each occasion, the quantity of pure drug exceeded the "marketable quantity" (2 grams pure) set out in the Criminal Code. There were eight packages (but nine charges, because one of the packages contained two types of drug). Four of the packages were addressed to "Stanley Nartey" one to "Stanley Natay", one to Stanly Nartey, one to Nartey Stanley, one to Stanley Nartery (for convenience, called "Nartey") and one to Chidere Udo. Seven of the eight packages were intercepted by authorities, and were not delivered to their designated addresses. One package however (count 6) was not detected, and was delivered to a post office box in Rosemeadow (the remnants of that package, with traces of heroin, were later found in garbage bins at the appellant's home). The addresses on the packages (three post office boxes, and two residential addresses) were all linked to the appellant. The prosecution alleged that the appellant had used the names "Stanley Nartey" and "Chidere Udo" for the purpose of facilitating the importations. 8The prosecution case was that the appellant "aided and abetted" the importations, by arranging the delivery addresses to which the packages were sent. That he intended to collect the packages (and did successfully collect one on one occasion) was evidence of the purpose for which the addresses were organized. 9The appellant was arrested on 31 August 2010 at his home 118 Englorie Park Road, Glen Alpine (near Campbelltown). Federal Police officers executed a search warrant at the same time. Those present were the appellant, his wife Melody Chime (aka Marie Deanshaw), and her three children. A large number of items relevant to the offences for which the appellant has been convicted were seized. Those exhibited in the trial were listed in the Crown's submissions. For convenience, I insert that list below - A brown box with the name "Stanley Nartey". A wallet (in men's jeans in the main bedroom) which contained: 2 Travelex cards - one issued in the name Stanley Nartey, the other in the name Jude Chime; A receipt in name Stanley Nartey; A SIM card registered to Mr Tran Chan, which contained, (among other things) a text message "PO box 86 bringelly nsw 2556" (the delivery address for the package referred to in Counts 3 & 4); 10 passport sized photos, 5 of which the appellant agreed were pictures of him. Various documents with the name Stanley Nartey, which were located in a white plastic bag (in a storage room) along with documents in the name of his wife and documents in the name of the appellant. Also found in the bag were five passport photos which the appellant agreed depicted him. Three knives (in the en suite bathroom attached to the main bedroom upstairs) - two of which when tested revealed traces of heroin. A copy of a letter (on a computer hard drive) which read - "To whom it may concer (sic) - I Stanley Nartey of 155 Englorie Park Drive, Glen Alpine, NSW 2560, give permission for my friend Uchenna Chime, to collect my parcel EM950 354439KR from Korea, asm (sic) I am unable to do so. Thanks. Yours truly, Stanley Nartey.". Pieces of paper which contained scanned copies of two (false) NSW Driver's licences - one in the name Stanley Nartey and the other in the name Chidere Udo. The false NSW Driver's Licence in the name Stanley Nartey contained the residential address "36 Morton Terrace Harrington Park NSW". The appellant had previously lived at that address. A Western Union receipt in the name Stanley Nartey. This receipt was found in a locked suitcase under the Appellant's bed. The appellant gave police a passcode which opened the case. The receipt quoted phone number 0432 232552 as a contact for Stanley Nartey - this phone was registered in the appellant's name. A Moneygram transfer for US$8000 in the name Chidere Udo (Count 8) addressed to the appellant's brother) which was found in the main bedroom. A Post Office Box application form in the name Chidere Udo (Count 8) which was found beside a dresser in the main bedroom. A piece of paper with the name Chidero Udo and numbers "155" and "103725681" (Count 8). The number "155" matched the house number for the delivery address of the Count 8 package (a house opposite the appellant's house). The number "103725681" matched the numerals in the consignment number for this package - "EE103725681BD". This paper was found in the en suite to the main bedroom. Various items inside a red garbage bin and a yellow recycling bin. These included - the (Count 6) packaging addressed to Stanley Nartey PO Box 3038 Rosemeadow, and a number of items which contained traces of heroin. The appellant's fingerprint was found on a "Moneygram send money form" in the name of Stanley Nartey for $5000. This document was found in a red waste bin outside the Appellant's house. The appellant's fingerprints (4 of them) were also found on plastic bags retrieved from the red waste bin. Other items inside that bin contained substantial traces of white powder, which tested positively for heroin. A GPS device seized from a car in the driveway of the appellant's house - which contained the address "138 Lansdowne Road, Canley Vale" (the delivery addresses for packages in Counts 1, 2, 5, and 7). A mobile phone 0406 232685 with SIM card registered to "Victor Agu" of 1 Birmingham Ave, Villawood. This phone number was quoted on the application for PO Box 86 Bringelly (Counts 3 & 4) as the contact number for Stanley Nartey, 86 Morton Terrace Harrington Park. The contact list stored in this phone contained the appellant's bank account number, as well as links to other seized phones. A mobile phone 0410 206717 with SIM card registered to "John Sand" of 1/2A Birmingham Ave, Villawood. This phone contained various links to the appellant (eg it listed a phone number registered in the appellant's real name, and also a phone number for his wife). A mobile phone 0412 139368 with SIM card registered to "Tan Chan" of 1 Birmingham Ave, Villawood. This phone also contained links to the appellant (eg the phone number of his wife and her son), as well as a link to a phone in the appellant's real name. A mobile phone 0432 232552 with SIM card registered in the appellant's name, of 15 Birmingham Ave. This number was quoted as the contact for "Stanley Nartey" in application for PO Box 3038 Rosemeadow (Count 6). A mobile phone 0432 232197 with SIM card registered in the appellant's name, of 118 Englorie Park Drive, Glen Alpine. This phone was linked to the "Tan Chan" and "John Sand" phones (above) and to the "Tran Chan" phone (below) because those phones contained this phone number in their contact lists. A loose SIM card 0451 589308 registered to "Tran Chan" of 11 Sutherland Road, Jannali. This SIM card was found in a men's wallet in a pair of jeans in the main bedroom. This SIM card was linked to the appellant because (as well as being found in a wallet in his bedroom) it contained contact numbers for - the appellant's wife (under the name "SW Heart") and the number for one of the phones listed in the appellant's own name (recorded as "My Optus"). This SIM card also contained a text message sent from another phone on 25/6/10 - "Po box 86 bringelly nsw 2556" (the address for the package referred to in Counts 3 and 4). Subsequently, police obtained a copy of the Australia Post application form for PO Box 3038 Rosemeadow, which was rented in the name "Stanley Nartey" (Count 6). That application form quoted telephone number 0432 232552. That telephone number was registered in the name of the Appellant. 10The "count 6" package (found in the bin) had been sent from India, and arrived in Australia on 20 August 2010. The sender's details were "Amuta Chukwononso" (of Delhi, India). As well as being found in the bin, the prosecution linked this package to the appellant in another way: on 4, 5 and 8 April, amounts of AUD2,500 were transmitted via Western Union to "Amuta Chukwnonso" (with some minor spelling variations) in Delhi, India. These transfers were made in the name "Stanley Nartey" and quoted the false driver's licence of "Stanley Nartey" (a scanned copy of which was found at the appellant's house). In addition however, the "Sender phone" quoted for each of these transfers was 0432 232552 which was registered in the name of the appellant, Uchenna Chime. 11One of the two residential addresses used was 155 Englorie Park Drive, almost opposite the appellant's residence at 118 Englorie Park Drive. 12There was no dispute that the packages referred to in counts 1 to 5 and 7 to 9 had been imported, and each contained a marketable quantity of border controlled drugs but whether the prosecution had proved the importation of a marketable quantity as charged in count 6 was in issue. The fundamental dispute at trial, however, concerned whether the appellant had been involved in the Nartey or Chidere Udo transactions. The three post office boxes used to receive the various parcels which contained the drugs were Box 86, Bringelly NSW, Box 3038 Rosemeadow, NSW and Box 6159 Canley Vale NSW. Each had been obtained by use of the false driver's licence in the name "Stanley Nartey" to identify the user. A copy of another false driver's licence in the name of "Chidere Udo" was found in the appellant's house. Copies of these licences on the prosecution case, depicted the appellant. I should interpose here the evidence relied on by the prosecution for this contention. First, the prosecutor invited the jury to compare the photographs with the appellant. Second, he submitted that, if the jury compared the copy photos with other photos of the appellant which he agreed in his evidence depicted him, they would see, by referring to particular distinct characteristics appearing on both the photos and the copies that the latter were copies of the former. 13It is not necessary for present purposes to detail the whole of the extensive evidence showing the links between the various phones and documents relevant to the offences. It is useful to take but one example, the phone whose number ended with 368 (phone 3) was registered to Tan Chan at Birmingham Avenue, Villawood, also the street in which the Villawood Detention Centre was located. The phone ending in 330 was, on the prosecution case, one of the appellant's wife's phones. She had the nickname "Honey" which he used from time to time, the appellant said, and was entered in the call list in the appellant's phone (phone 4). From 330 to phone 3 from the person who has the nickname Honey was a message, "I tried to call you, this wrecker has found a front seat for your car for 200, but you're not answering your phones." The appellant said that he could not remember if this was from his wife to him. The next message read, "I went to the doctors, had a blood test and a pap smear and she told me it's all okay to have it every day to make our baby. Are you ready to try again?" He could not remember this message: "It's been a long time". A message sent on 2 March 2010 from "Ugo" in China (whom the appellant agreed he knew) to phone 3 said, "Uche, how is your family? Tried to check your offline message and after that you reply me, BK, thank." The appellant said he was not "uche" and the message was not addressed to him. The next message, from "Honey" said, "You know it was nice getting messages once in a while from you. It made me feel like the man I met and fell in love with is back. I want Uche, my love back." The appellant repeated his name was "Uchenna" not "Uche" and said the message was not addressed to him. The next message was also from "Honey" and said, "Baby I love you so much and I will just about do anything to keep us together but I need you to feel the same". The appellant said he could not remember if this message came from his wife. Neither could he remember a later message from "Honey" saying, "Baby just to let u know love u and Ty for being with me". He was taken to a message from a phone number ending in 367 (his wife's) saying, "My battery is dead. I love you. Remember that you need to read 1 Corinthian 7 and understand what I need from you and our marriage." He had earlier agreed that this was from his wife's phone. The prosecutor submitted that the reference to the battery being dead was that of the phone having the ending in 330 which was the phone used for the earlier messages. The prosecutor took the appellant to a message from a Nigerian phone number on 21 February 2010 at 11.58pm which said, "The contact; Surname: Martine, first name: John..." and pointed out that the receipt for the Western Union Money transfer from Melody Chime (the appellant's wife) which detailed the appellant's address and his wife's telephone number, to John Martine was dated 23 February 2010. He agreed that the money was sent by his wife but said he did not do so, adding "My cousin asked her sometimes". The appellant said that the contact for the message, in the receiving phone's contact list, ("ik, ik Bros") was his brother. He did not know who John Martine was. He was shown another Western Union transfer receipt dated 3 March 2010 showing the sender as his wife, Melody, to another person whom the appellant did not know. In the section with a question and answer for identification, the name is "Uche". The appellant denied this was a reference to him. The receipt contained a money transfer control number, 741968913. He was shown a message received 3 March 2010 from the contact "Honey" using the phone with the number ending in 330, which stated, "Mtcn 7419168913 US100 who Uche Melody Chime". He denied this message was sent to him or knowing the recipient. 14So far as the proceeds of crime offence is concerned, the prosecution alleged the applicant was involved in a number of overseas money transfers, totalling just over $524,000, between 19 November 2009 and 31 August 2010. Each transfer was for less than $10,000 to avoid, the prosecution contended, reporting requirements attaching to amounts exceeding that figure. In order to make these transfers, the sender must produce some form of original government photographic identification, such as a driver's licence. 15There were 125 money transfers through Western Union, totalling just over $390,000 of which more than 100 (totalling about $362,000) were in the name Stanley Nartey. In all of these transactions, the false Stanley Nartey driver's licence, which the prosecution contended contained the appellant's image (a copy had been found at the appellant's house) was used as identification. In 88 of the Stanley Nartey transactions, the phone number of the sender was that of the appellant's phone (4). In eight transactions, the phone number of the sender was phone 1 (registered to "Victor Agu") which contained, amongst other links to him, the appellant's bank account number. In 12 transactions, the "Sender phone" was phone 6 (registered to "Tran Chan) having the number of a loose SIM card found in a wallet in jeans in the appellant's bedroom. In nine of the transactions, the recipient of the funds (in Nigeria) was the appellant's brother (Ikechukwu Chime). 16The SIM card found in the wallet in the jeans contained significant text messages. The first was received on 28 May 2010 and read "dumebi samuel daniel". Western Union's records showed that, between 1 May and 22 June 2010, money totalling about $42,670 had been sent to "Samuel Dumebi" or to "Samuel Daniel Dumebi" in the name "Stanley Nartey". The second was received on 5 June 2010 reading, "Names of new I.D. : Emmanuel Ezeh". Western Union records showed that between 7 June & 15 June 2010, "Stanley Nartey" sent about $19,000 to "Emmanuel Ezeh". The third was received on 14 June 2010 and read "Michael Chukwudebelu". Western Union records showed that, on that day "Stanley Nartey" sent about $12,000 to "Michael Chukwudebelu" (Another amount was sent the same day to "Michael Chukwudebelu" in which the number of phone 4 was used.) The fourth text message, received on 15 June 2010 contained the name "Chibueze Ibeagwa". Western Union records showed that between 17 May and 23 June 2010, "Stanley Nartey" sent about $64,000 to "Chibueze Ibeagwa". The fifth message was received on 18 June 2010 containing the name "SOWAH DANIEL". Western Union records showed that on 17 June 2010, "Stanley Nartey" sent about $10,000 to "Daniel Sowah". Sixth was a message received on 18 June 2010 which contained the name "RILEY JOHNATTAN". Western Union records showed that on 19, 20, 21 and 22 June 2010, and on 1 July 2010 "Stanley Nartey" sent various amounts to "Johnattan Riley" in Dhaka, Bangladesh. 17There were six transfers via Western Union in the name Chidere Udo (totalling $9,442.05). In each case, the "Sender ID number" was the number of the false driver's licence in the name Chidere Udo, (item 5 seized by police). In two of the transactions, the sender phone number was that of phone 4 and in one transaction the number used was the same, except for the last digit (551 rather than 552). In the remaining three Udo transactions, the phone number used that of phone 1, which had been phone found in the appellant's residence which contained (among other links to him) the appellant's bank account number. Furthermore, on 28 September 2010 and 7 November 2010 (when the appellant was in prison) he telephoned "UZOEZIE EBERE", the Western Union records showing that on 19 August 2010 "Chidere Udo" had sent USD4322.81 to "EBERE UZOEZIE". 18Lastly, so far as the Western Union transfers were concerned, between 19 November 2009 and 1 April 2010, the appellant transferred money in his own name to his brother amounting to $18,635.92. In all but one of these (the number of his wife's phone) the appellant's phone number was quoted as the "Sender phone". These transactions occurred at various outlets including Lansvale, Narellan, Campbelltown, Ambarvale and North Parramatta where, also, a large number of the "Stanley Nartey" transactions occurred. 19"Stanley Nartey" also used Moneygram to make 17 transfers, totalling $84,247.25. The identification used on each occasion was the false driver's licence in the name Stanley Nartey (item 5). In respect of 15 of these transactions, the "Sender occupation" was recorded as "welder" (an occupation in which the appellant agreed he had worked). In 14 transactions, the recipient of the money (in Nigeria) was the appellant's brother (Ikechukwu Chime). In seven, the "Sender phone" number was that of phone 4, and in six transfers, the "Sender phone" number was that of phone 6 (registered to "Tran Chan"), the number of the loose SIM card found in the wallet in the jeans in the appellant's bedroom. The "Sender phone" number used in the remaining four transfers was that of phone 1 (registered to "Victor Agu"), also found on the appellant's premises, which contained (among other links to him) the appellant's bank account number. 20Six Moneygram transfers were made by "Chidere Udo", totalling $49,822. The identification used in each of these transactions was the false driver's licence in the name of Chidere Udo, on the prosecution case depicting the appellant. In all these transfers, the "Sender occupation" was recorded as "welder" and the recipient of the money (in Nigeria) was the appellant's brother (Ikechukwu Chime). In four of the transfers, the number of the "Sender phone" was that of phone 1, in one the number was that of phone 4 except that the last digit had been changed to 3 rather than 2 and in respect of the remaining transaction, the number was that of phone 2 (registered in the name "John Sand") which was another phone found at the appellant's house, and which contained links to him such as his wife's phone number. 21To summarise, the money transfers were made in the names of Stanley Nartey, Chidere Udo, and the appellant and used Western Union or Moneygram. The prosecution relied in the main on the items seized from the appellant's residence which connected him with the identities "Stanley Nartey" and "Chidere Udo", and the imported packages containing drugs. It could be inferred from the evidence of the appellant's income at the relevant time that he could not have come by the transferred funds by his employment or by working at a market three days a week with his wife, the only sources of income he claimed to have. The cross-linking of text messages, fingerprints on key items, names, phone numbers, phone memories, use of the false driver's licences depicting the appellant to obtain post office boxes and for money transfers, his association with the residential addresses to which drugs were posted together with some evidence of movement of the appellant's motor vehicle by information stored on the satellite navigation device provided the basic material establishing, as the prosecution contended, the appellant's use of Nartey's and Udo's identities to commit the offences. There was also negative evidence as to the failure of wide-ranging inquiries to identify any persons of those names. The defence case 22The appellant gave evidence, but called no other witnesses. What follows is a summary of his evidence, touching only on the main points. 23The appellant came to Australia in May 2008, and spent approximately one year in detention at Villawood, marrying his wife in May 2009 while still detained. In May 2009 the appellant returned to Nigeria and obtained a visa permitting him to return to Australia in September 2009. He lived with his wife (and her children) at Mt Annan (near Campbelltown) and, shortly after, they moved to 36 Morton Terrace, Harrington Park. 24The appellant said that his cousin "Stanley Nartey" also lived with the family, although he "freely moved out, freely came in". They then moved into 118 Englorie Park Drive, Glen Alpine. He said that Stanley Nartey also moved there and continued to live with them downstairs in a room called by the police a "storage room". Stanley told him on 30 August 2010 that he was going to Dubbo and last saw him on that day. Stanley's friend Chidere Udo also lived in Dubbo. He had spent time in the appellant's residence with Nartey. 25He said that Stanley had two friends ("Felix" and "Udo") who used to visit him at the house, and that Stanley and his friends would sometimes use the computers that were upstairs. 26The appellant said he lived upstairs in the main bedroom with his wife and that no-one else lived in that room, but that others used the ensuite, including his cousin. He and Stanley shared their clothes and the wallet found in the pair of jeans in his bedroom was not his. The jeans were either "not his" or he could not see clearly (on the video that was shown in Court). Nor had he noticed the knives (which had traces of heroin on them) upstairs in the en suite bathroom and could not explain how traces of heroin had been on them. They were normally kept in his kitchen. He could not explain how the post office box application in the name of Chidere Udo came to be in the bedside dresser in his bedroom. He agreed that a Western Union receipt in the name Stanley Nartey had been found in a locked suitcase under his bed (that he opened with a code) but said that Stanley and Chidere used to borrow that suitcase. 27He said he had never before seen the brown box addressed to Stanley Nartey (which was found in his house). He could not explain why his fingerprints were on a Moneygram document in the name of Stanley Nartey, as he had not touched it. 28The appellant said the facial images on the copies of the (false) driver's licenses (in the names Stanley Nartey and Chidere Udo) were not him. Ten passport photos were found in the wallet. The appellant said three did not depict him, but the rest did. He denied these matched the photos in either of the false driver's licences. 29The appellant said that "Felix" once used his photo to create a "profile" on a website for meeting women. In relation to the various phones found at his house, he said did not know any Victor Agu, John Sand, or Tan Chan. He said Stanley had bought those phones, but that he had sometimes used them as he used to exchange phones with Stanley. He denied that he was the "Uche" whose name appeared on the Moneygram transfer on 30 August 2010 to the appellant's brother, purporting to have been transferred by Chidere Udo and other transfers made by his wife. In phone 2 there was a message from "Chuck VG" which said, "uche please call me ok take care god bles you" The appellant said he was not the "Uche" in this message. 30The appellant said he had been to Lansdowne Road two or three times, but only to the block of units next door to 138, with Nartey, to visit his friends Felix and Ugo, who lived on the ground floor. 31The appellant denied any knowledge of the "to whom it may concer" [sic] letter which included his name and the name Stanley Nartey. 32The appellant agreed that he had sent the money transfers that were in his own name but denied sending the others in the names Stanley Nartey and Chidere Udo. "Ikechukwu" was his brother. He said that it was not him that transferred money out of Australia in the names Stanley Nartey and Chidere Udo, and that it might be just a coincidence that he used the same Western Union outlet on a number of occasions as they did. He denied ever using fake identification to send money overseas and said that he had never dealt with money that he knew to be proceeds of crime. 33The appellant agreed that phone 4 was registered in his name but said that Nartey also used that phone. He denied creating mobile phone accounts in names other than his own, but agreed that the address for 3 of those phones (Birmingham Ave Villawood) was the same street as the Villawood Detention Centre where he had resided for 12 months. In dealing with the prosecution case, I have already mentioned a number of the appellant's denials of knowledge of other matters that were put to him by counsel. 34He could not explain why various documents in his own name and his wife's name had been found in a plastic bag in the storage room along with documents in the name Stanley Nartey. 35The defence tendered the appellant's resume but this does not seem material to any of the issues in the appeal. The defence also tendered subscriber details and call charge records for 0432 232552 which the appellant said was his "old Optus number" and which showed that that phone was "inactive" between 1 April 2010 and 18 October 2010. The grounds of appeal 36These were set out in a written submission made to the Court, some aspects of which being also the subject of oral submissions by the appellant. The oral submissions did not take the written submissions further. For simplicity, this judgment takes the course of dealing with each ground seriatim. I have not corrected the appellant's language or spelling. The grounds are clear enough. Ground 1: On arrival to my home with a warrant, there was no questions on whom lived or continues to live in my home with my wife and I. This was cross examined and the Fed officer admitted to not asking and did not (ask) whom lived in the home at 118 Englorie Park Drive, Glen Alpine. The (p)residing Judge R Tupman did question her and still did not do anything about this. 37As I have already mentioned, the appellant attributed the offences to his cousin Nartey, whom he said had resided with his family until the day before his arrest, and Nartey's friend Chidere Udo. It is correct, as far as it goes, that the officer simply asked who was present and did not ask who lived at the house although the warrant named a number of persons other than the appellant. This was established by cross-examination of the officer by Mr English of counsel for the appellant, who made submissions on the point in his address to the jury. The possibility of other suspects, whose fingerprints might have been those found on the items in the bins and not identified, was (as I understand the submission) not adequately investigated by police. The prosecution case was not that the appellant had acted alone: he was charged with aiding and abetting the importations, which necessarily assumed others were involved in one way or another. It was never suggested by the defence that others than Nartey and Chidere Udo had any relevant contact with the appellant. 38It is not clear what the appellant means by complaining that the trial judge "did nothing about this". It was no part of the judge's role to do something about this apparent shortcoming in this aspect of the investigation. It is true that the issue was not directly mentioned in the summing up, but her Honour made it clear to the jury that the question was whether or not the appellant had committed the relevant incriminating acts. Ground 2 - The Judge R Tupman made a closing statement that and even went to state that she suggested to the jury to conclude that the picture of the photocopies of the fake licences was a blackman and they should regard that the blackman on trial here has the same similarities if they took into consideration that the shading and the nose and head is similar to him and that the picture is MINE. Then she made a suggestion that the photocopy is the same face as a blackman that appears to be him and that even though the photocopy was not clear Judge Tupman suggestion worked against me during the conclusion of the trial by the jury. This capitalised on the jury and throughout the trial and even the ones that were outside after i was arrested. The main thing i see here is that i was marked because of my race and colour and even though the id was not found and was still being used outside i was found guilty of all charges. 39This ground of appeal does not fairly accurately represent what the learned trial Judge said to the jury. Her Honour at no point referred to the appellant as being a black man or, indeed, to his skin colour at all. The following is an extract of the relevant passages - "The Crown says that you would accept, without any doubt, that the photos on the licences are photos of the accused and that you can be certain of that by comparing them with photos found in his possession when the search warrant was executed on 31 August which he, in fact, agrees were photos of him. Now, for this particular area of circumstances, that is where there is a dispute and I will come to the argument and the evidence called on behalf of the accused in relation to this circumstance in a moment, but in the Crown's argument, so far as it relates to the Stanley Nartey licence, is this - that there was a group of photographs found in a plastic bag in a wallet inside the pocket of jeans in the accused's bedroom which contained ten passport photos of three different types. Two types - these are tendered, of course, you know that is evidence - and, of course, the absence of lots of bits of paper on the bar this morning makes it clear that I sent all the exhibits to you this morning so that you have now got them in the jury room for the rest of the time, but you know that there are three different types of photos. Two of them were multiple copies of the same photo and one was one photo alone of a person on a white background. The accused agreed that the photo of the person on a white background was him. He also agreed that the photo on the American visa, which you see as part of exhibit AAAAA, the documents taken from the computer hard drive found during the search, was that photo, that is, the photo on a white background found in the wallet in the jeans in his bedroom. The Crown argues that you would accept that the photo on the fake licence in the name of Stanley Nartey is that photo and is, therefore, a photo of the accused. The accused denied that the photo on the Stanley Nartey licence was, in fact, a photo of him. He agreed that the photo in the wallet was him. He agreed that the photo on the US visa was him and he agreed that the photo on the US visa was the photo that was in the wallet, but he denied that the photo on the Nartey licence was him. ... [Other parts of the appellant's evidence on this matter were then summarised.] ... The Crown relies on the finding of that photo and what it says is that clear comparison between the photo on the licence and the photos which the accused agrees are him for you to conclude that, at least, at some stage in the past he allowed that photo to be used to create a licence and they rely on that then as part of the link between the accused, the licence, the setting up of post office boxes and the transferring of money out. The Crown puts to you that ultimately you would be satisfied, contrary to the evidence of the accused, that that photo on the Stanley Nartey licence is of him ... So you are asked to infer then that a person ... opening up a post office box, or transferring money out, has to, in the colloquial - in the vernacular - front the counter, show the identification and, in those circumstances, if you accept that the picture is of him on the licence, he is fronting the counter, showing the identification, the identification is of him, which the Crown relies on by inference to have you accept that, in fact, it was him who used the licence on those occasions to do what he did, that is, set up the post office boxes or transfer the money. Similarly for Chidere Udo, the Crown relies on the fact that in a white plastic bag in the storage room were found five passport photos. They were all the same identical photos, and the accused agreed that they were photos of him. They have been tendered as well. He was asked to compare them with the photo on the Chidere Udo licence. He denied that it was him but the Crown puts to you, for the same reason as it does for Stanley Nartey, that you would not accept that evidence and you would, in fact, accept that it was him and for both of the photos this is put to you, that you are not going to need to go to the jury room and try and remember what the accused looked like, when looking at the photos, to see whether you accept it is him or not because you have comparison photos to work from. You have the photos that the accused agrees are of him, either the ones found in the storage room, or the one found in the wallet in the bedroom. In any event, in both cases, he agrees they are of him, and you are asked by the Crown to compare those with the photos on the two relevant licences, and it is put to you that when you compare such things as the shape of the ears, the shape of the face, the indent above the ear on one side of the head, in particular, and in relation to both photos what is said to be a sort of photographic artefact like over exposure, the way in which the light is, whether it is lighter on one side than the other. In relation to the Chidere Udo photo, the shadowing on the face, and particularly in relation to the Chidere Udo photo, the shape of the T-shirt, the top of the T-shirt around the neck. For all of those reasons, the Crown puts this to you as a primary submission, that when you compare them yourselves, the overall pictorial representation will lead you to the view that it is the same person, but even if you are not satisfied on just looking at them, that when you make those comparisons of various aspects of those photographs, which are admittedly of the accused, that you would accept that, in fact, the photos on the relevant licences are, in fact, those same photographs and, in fact, therefore are the accused. As I have said the accused denied that they were of him and said he had never seen them before ... The most significant aspect of that evidence overall, from the Crown's perspective, is the assertion that you would accept that those photos are of the accused. It is a very important part of the Crown case in relation to each of the ten counts in the indictment. If you are not satisfied about that and if, in fact, that falls away, and unless you are satisfied that Stanley Nartey and Chidere Udo are, in fact, the accused as depicted on those licences, then you would not be able to convict the accused. It is a very important part of the Crown case and you would have to be satisfied about that, beyond reasonable doubt, in the way in which the Crown has brought this trial before you could convict the accused of any of these ten offences." 40There was no dispute in the trial that the "original" fake licences had not been found. This was referred to many times during the trial, and was common ground. The suggestion that "the id was ... still being used outside", presumably after the appellant's arrest, was not the subject of any evidence and is to be disregarded. 41This ground should be rejected. Ground 3 - whilst I was being on trial the older white caucasian old fellow amongst the jury members keep falling asleep and i was sitting on stand watching him sleep and wondering why the judge did not pick this up. 42There is no reference in the trial transcript about a juror "falling asleep". I would accept the submission of the Crown prosecutor in this Court that it is most unlikely that this would have gone unnoticed. The trial judge referred to some "stifled yawning" during the prosecutor's closing address and, as was submitted here, showed concern on several occasions that the jury be given proper breaks to ensure their continued attention. Moreover, the issue was not raised by Mr English, from which it safe to infer both that he had not noticed any problem and the appellant had not told him about it. The prosecutor did not mention the matter. I would also infer that none of the legal representatives for either side saw a juror asleep. I would reject this ground. Ground 4 - During and following the first week of trial the members on jury came up with several complaints that the rooms which were provided for them was not convenient to them because there were no air conditioning and windows and was too small and they made a expression in writing that if this was not changed then they would result in not having a good result and that resulted in making a bad judgement in 24 hours to finish the trial against me. 43The issue of the jury's accommodation was raised by the trial judge on the morning of day 12 of the trial, towards the end of the prosecutor's closing address. Her Honour said - "HER HONOUR: There was also a reason why I couldn't start immediately and the reason is something that I ought to bring to your attention. The jury in this trial haven't been in a jury room on this floor during the last three weeks ... Yesterday the jury started to tell the court officer about difficulties that they are experiencing in the room that they are in on another floor because it's small and it's claustrophobic, it has no windows, external light, certainly no ability to get outside. ... The jury representative has told the court officer either this morning or yesterday that the nature of the room is starting to have an impact on their ability to function as a jury. It's claustrophobic and apart from anything else at the moment the air-conditioning has stopped working. And he has actually said to the court officer that he fears they will not be able to reach, I think the words - well, the court officer used to me were "a healthy verdict" but that it would impact on their ability to deliberate once they're asked to do so particularly in circumstances where they're going out with 150 exhibits if they're told to stay in that room." 44The judge then adjourned to make enquiries and, on resuming, informed counsel - "I have found an alternate room which is not the one I wanted but it's a better option with air conditioning and a window. So what I'm going to do is I'll get the jury back in, we can continue with the address, the court officer will change the rooms and they'll go back to the new room. And if there's a problem, then they'll let him know." After discussing another matter with counsel, her Honour instructed the court officer to move the jury to the new room. Soon after, the jury returned to the court and the foreperson was asked about the adequacy of the room. The foreperson said, "I think so" and, although it was the same size, "it has a big window and the air conditioning works ..." There was a question, however, whether the room would be able to accommodate the exhibits once the jury retired. The judge assured the jury that another room would be available by that time. 45On the following morning the judge received a note from the jury - "Have you spoken to [the court officer] this morning about the layout and dimensions of our new jury room, we have decided that it would be best if we move back to our original room on Monday when the exhibits are brought down from the court room. There are tables in our original room that could be used to display the exhibits and the layout is slightly more flexible. Thanks for your consideration and for your efforts in securing a better room for us. Foreman." Her Honour told the jury that arrangements were being made for a better room. Mr English continued his closing address, concluding before the luncheon adjournment and the jury were sent away until 2 pm but sent home about 2.15pm, the judge commenting (in their absence) that a better room had indeed been found. 46At the start of proceedings the next day a note was received from the jury. "The jury wish to let you know that the new room we have been moved into today is more than satisfactory. There is a window and a balcony, the air conditioning works, and there is plenty of room to display the exhibits. Thank you for your efforts." Shortly after this, Mr English made a short supplementary address, and the judge commenced summing up. The jury were sent home before lunch that day for the weekend and directed to return at 11am on Monday 20 February 2012. On Monday the summing up was completed and the jury retired at 1.40pm. Before sending the jury out, her Honour told them - "...what I will do at 4 is if we have not heard anything from you I will ask [the court officer] to come and knock on the door and see how you are going and see whether if we wait around a bit longer today it is likely that you can deliver verdict in the trial or if you want to go home or even if you cannot deliver verdicts whether you want to wait a bit longer anyway and I will be guided by what you say at that stage and if you have not reached your verdicts by close of play this afternoon whatever time that happens to be then we will resume tomorrow and take it from there and I will hear from you when you need to contact me. Thank you ladies and gentlemen." 47The jury were recalled at 1.47pm for a few minutes for a character direction. At 4pm the jury were permitted to disperse until the next day. On 21 February 2012, the jury continued deliberating from 10am. At "about 3 o'clock" a note had been received from the jury to the effect that they had reached verdicts on all counts. At 3.33pm the jury returned verdicts of guilty on all 10 counts. 48This ground of appeal can be shortly dealt with. It is evident that, almost as soon as the judge became aware of the problem, she took steps to deal with it and it was satisfactorily resolved, as the jury itself indicated. Nor was there the slightest pressure placed on the jury to take less time than was needed to consider their verdicts. This ground should be rejected. Ground 5 - During the first weeks of the trial the one jury member informed Judge Tupman she had to be gone by the weekend due to a booked holiday to the states and flew out on the friday. Judge Tupman explained this to the barrister and they did not see anything wrong with having one less member if need be. Then as the time went on there were more flimsy excuses to going to a wedding ceremony on the weekend and needed to know if it would finish. After listening to all these excuses the judge hurried the trial up and finished with her conclusion about the blackman has the same head, face and lips and nose to mine as the black and white picture of the fake id. And that the jury should take that into consideration and find me guilty of all cases. 49On Tuesday, 14 February 2012, the judge received a note from the jury raising three issues - (a) Juror R has previously booked holiday commitments for Friday the 17th to Monday the 20th and requests that the jury be dismissed at 2pm on Friday and return 11am on Monday should the trial still be running. (b) Juror X has previously booked travel commitments to the US for one month and will need to be fully dismissed by Thursday the 23rd. (c) The university year commences on Monday the 27th and the juror will be going to Uni. 50After discussing the timetable with counsel, her Honour said to the jury - "Good morning, ladies and gentlemen I'm sorry about the disruption of yesterday, there were some matters that we needed to deal with of a legal nature before I could continue with the trial, that's now been dealt with and we are now in a position to proceed. As I said the first thing will be the Crown will address you and then Mr English and then I will sum-up. That will probably take us the next two or three days and in that context I have your note and everything will be fine. As for the juror who has holidays from Friday to Monday, yes, there's no difficulty about us finishing at 2 o'clock on Friday and resuming no earlier than 11 on Monday. I suspect that you will still be here on Friday at the very least. You'll probably be considering your verdicts at that stage and it's possible that we will have just finished the addresses and summing-up but that's not a problem and as for the other two I don't see any reason why it won't be over by then so there's no problem in any event." 51Issue (b) was referred to again (in the absence of the jury) on Wednesday 15 February 2012. The judge stated that the jury should be able to retire "at the latest Monday lunchtime, [and] that that will give them enough time to return the verdicts but I guess it's always possible that it won't ..." The possibility of continuing (if necessary) with only 11 jurors was tentatively raised but no decision made. On resumption the following day another jury note was received, which said - "Juror X will be leaving for the United States on Friday 24 February for a month, I will be available until 4pm Thursday if required.' Her Honour responded, "[thank] you for information about when that juror needs to leave, I've got that in mind." No further action was taken. I agree with the submission made here by the Crown that none was required to be made at that stage. 52After the jury retired to deliberate, the following exchange occurred (I set this out as it appears in the transcript, but the language suggests that the exchange involved Mr English rather than the Crown Prosecutor, at least at the early stage. I do not think that anything turns on this.) - "ENGLISH: Can I just clarify two things your Honour, first is that your Honour is content to let the US person deliberate until it's time for them to go. HER HONOUR: Well yes, I've been trying to - well look I suppose, do you want me to go and stop them now so that we can have this debate because if I'm not going to - CROWN PROSECUTOR: I'm in your Honour's hands, I'm not pressing it, I just want to - HER HONOUR: If I'm not going to I should stop it now. CROWN PROSECUTOR: Yes. I'm not pressing it your Honour. I just wanted to clarify that that's what your Honour - I suppose - HER HONOUR: I had thought about it. CROWN PROSECUTOR: Yes. HER HONOUR: I'm hoping that they will have delivered their verdicts by then but of course from the accused's perspective or from the Crown too but particularly from the accused's perspective, we don't want jurors feeling under any form of stress or duress or time pressure. But it is now halfway through the day on Monday, they've got a half day plus all Tuesday plus all Wednesday. I think it's probably open to take the risk and then deal with the problem if it arises. I don't quite know how and again the only issue would be if the person who is no longer there has played such a pivotal role in the jury's deliberations that there would be a different scenario should that person not be there. CROWN PROSECUTOR: Which we'll never know. HER HONOUR: Which we'd never know and would be contrary to the directions I gave them anyway that they all had to play an equal role. CROWN PROSECUTOR: Yes. HER HONOUR: I don't think there's any law is there that says that I can't discharge a juror once they've started deliberating. CROWN PROSECUTOR: No. HER HONOUR: I think there's sort of a-- CROWN PROSECUTOR: It's quite to the opposite, you can -- HER HONOUR: I can discharge them whenever if necessary and of course, if you know god forbid, somebody should get sick or die or something like that then that wouldn't be, even though on verdict, that wouldn't be a reason to necessarily discharge the whole jury. CROWN PROSECUTOR: Thank you your Honour. HER HONOUR: Mr English you might have to give some thought to that if we get that far about-- ENGLISH: I'll take it on notice, I'm with my friend, I'm in your Honour's hands at the moment but look if we reach a stage where it needs further thought and consultation I'll respond. ENGLISH: I'll take it on notice, I'm with my friend, I'm in your Honour's hands at the moment but look if we reach a stage where it needs further thought and consultation I'll respond." 53It is clear that Mr English agreed with the approach taken by the judge. In particular, he did not submit that the juror should have been informed by the judge that, if the jury had not completed its deliberations by the time he needed to go, he would be forced to remain. The assessment that the time available until the expiration of the period stipulated by the juror should be sufficient for the jury to reach its verdicts was plainly that of both judge and counsel, whose appreciation of the question was informed by the course of the trial. Plainly enough, the jury was alive to the issue and it is reasonable to infer that, had they thought the juror's impending departure might create a problem, they would have brought the matter again to the attention of the judge. In my view, although the judge might well have taken another course, it was reasonable and open to her Honour - especially in light of the approach of defence counsel - to take the course she in the end adopted. 54Issue (c) was not raised again. It was appropriately dealt with by the judge. 55There is nothing in the transcript of evidence or the judge's directions that suggests that the judge said anything that may have pressured the jury to bring in its verdicts before it was ready or from which it might have gathered that it should hurry its consideration of the evidence. As to the complaint that the judge directed the jury that the appellant was the man in the "fake ID" and the jury should "find me guilty", nothing said by her Honour could have been construed in this way. Moreover, Mr English made no application for a re-direction in this regard. Ground 6 - During the trial the Judge had my facts and there were all the documents about western union and money gram and never did she add them, but she judged me on 500,000 aud dollors and she gave me a sentence of five times 100,000aud and the end result gave me 6 years for a figure that was incorrect. This shows the Judge was biased against me being a black man and nigerian that money laundering where there was no CCT to say it was me but the black and white photo copy which Judge Tupman says is me. 56The appellant's sentences provide no basis for suggesting that the judge was biased against him. Nor, as I have already explained, did her Honour express any opinion about the identity of the person depicted in the fake licences but simply summed up the arguments put to the jury by prosecution and defence counsel. I deal with the complaints about sentence when addressing the sentence appeal. Ground 7 - During the trial the DPP gave me a interpreter that was speaking in english, and was employed by them to give my statements to and that the Judge could not even understand, so she made me speak for myself, This person fell asleep several times and was woken up at least three times during the day by the security court officers. 57The appellant commenced giving his evidence with the assistance of an interpreter but it is clear that he was answering many of the questions in English, which would then be repeated by the interpreter. This problem often arises when a witness has a working knowledge of English and the interpreter is somewhat inexperienced. The problem was first raised by the judge - "MR ENGLISH: Where were you working? A. WITNESS: I work in construction job I working. HER HONOUR Q. You're actually answering this in English so perhaps you can just speak up and answer it in English. I mean, the interpreter is not here to interpret your English into his English, he's here to interpret Ibo into English. But if you can answer in English please do so and to speak so the jury can understand you? A. INTERPRETER: I worked so that-- Q. I just heard an English word "construction" you're doing exactly what I told you not to do. [The jury took the luncheon adjournment and her Honour raised the matter with counsel] HER HONOUR: Now, Mr English, I've noticed this about the last 10 or 15 minutes and I wasn't going to say anything about it but the interpreter is not here to say in English exactly what the witness has said in English but to say it more loudly in a different tone of voice. The interpreter is here to interpret from a language other than English into English and back into that language if the witness doesn't understand. The jury will be told to make an assessment of the witness in deciding whether or not to accept if he's a reliable witness. He can answer perfectly well that last question that you asked him which is, "I go it from work. Where were you working?" And he said in perfectly understandable although soft in volume English, "I worked in the construction industry." Now, I heard that. He said it to the interpreter who would have then gone on to the jury and said in a louder voice, "He says he worked in the construction industry." He's not here to repeat what he says, he's here to translate. And then when I made that point your client then said something in a lower voice including the word "construction" in English. Now, it may be that he was using a combination of Ibo and English but I just think it's important that if he can answer in English then he do so because the jury has been asked to make an assessment of him as a witness, he has to let them do that and he can speak some English and he can understand some English. ENGLISH: I take your Honour's point and I think Mr Chime has heard that and I will have another word with him at lunchtime. HER HONOUR: And I'm sure that the last answer given more softly was a combination of other words and the English word, "construction" and that's not unusual for people whose first language isn't English to combine words from another language and English together and that's fine but it's time I think that if he's going to give his own evidence he gives his own evidence where he can. ENGLISH: Your Honour's point is noted. HER HONOUR: Mr Crown, you didn't make the point and take the point but I have been noticing that this has been happening for about the last 15 or 20 minutes and it just seemed to me it was time to bring it to an end. CROWN PROSECUTOR: I'm grateful to your Honour.' 58When the Appellant's evidence in chief re-commenced after lunch, Mr English said to him - "... If you feel confident enough to answer the question in English please do so to the microphone. If you need to speak in Ibo to the interpreter that's fine or if you need to speak in a combination perhaps in English and Ibo to the interpreter that's fine but please speak up so every time, even when you are speaking to the interpreter, we can still hear the words you say. Is that okay? A. WITNESS: Yes.' 59The transcript then shows the evidence of the appellant was almost all given in English and the matter was not again raised. In particular, there was no apparent difficulty on the part of the appellant in understanding or answering the questions. Indeed, he does not claim in his submissions that he did have such a difficulty. Nor did Mr English take any objection or make any submission about any language difficulty. There is no merit in this ground of appeal. Since the interpreter's services were not called upon, except on a few occasions (when no complaint was made), whether or not he slept at some times is immaterial. Ground 8 - My legal representative would not put any of my witness up as he took upon himself to say there was not enough evidence on me and that it was purely a circumstancial one. So i don't need anyone to verify someone lived at my house. The DPP were told several times by my wife she recognised the address and it was of a felix that i know and they never followed any of the leads. As they felt i was the one and that it was easy to sentence me as im in custody. 60At the end of the hearing on 6 February, whilst his client was still in cross-examination, Mr English indicated that he might call Mrs Chime but did not expect to call any other witnesses. On the following day he said he had decided not to call Mrs Chime and, in effect, his case would close with the completion of the appellant's evidence. 61Although the appellant suggests that his wife would have been able to give evidence that the Canley Vale address was that of Felix, no other witness is suggested as having been available to verify his evidence about who lived at his house during the relevant period. Of course, if Mrs Chime were called, it may be that her evidence about other matters might well not have supported the appellant's case. This is impossible to assess, as the Court has not been provided by the appellant with any proof or other statement of the evidence that she may have been able to give. Without knowing what the evidence of Mrs Chime (or, for that matter, the other unidentified witnesses) might have been the appellant is not in a position to show that their absence produced any miscarriage of justice, which is the essential character of a ground of appeal of this kind. 62A recent (and, with respect, helpful) iteration of the relevant principles is contained in the judgment of Hoeben JA (as his Honour then was, with whom RS Hulme and Schmidt JJ agreed) in Salmon v R [2012] NSWCCA 119 - "[127] Before dealing with specific submissions by the appellant, it is useful to set out the principles applicable to a ground of appeal raising incompetence of counsel. In Monteiro v R [2011] NSWCCA 113 Simpson J, with whom Hoeben and Price JJ agreed, said - '[155] The principles applicable to the determination of a ground of appeal raising alleged incompetence of counsel were settled in R v Birks (1990) 19 NSWLR 677. Those principles include - 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.' (p 685, per Gleeson CJ). [156] Earlier, Gleeson CJ had said - 'As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case.' (p 683). [157] The Chief Justice cited, and plainly accepted, a passage from Halsbury's Laws of England, 4th ed, Vol 3(1), par 518 at 420 which is in the following terms - '... a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.' (p 684). [158] The decision in Birks was essentially endorsed by the High Court in TKWJ v R [2002] HCA 46; 212 CLR 124. There, Gleeson CJ said - '16 It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.' [128] Hunt CJ at CL made observations to similar effect in Ignjatic v R (1993) 68 A Crim R 333 at 336 - 'Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instructions or even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstance of the case as to have led to a miscarriage of justice that this court will interfere'." 63There is no basis to suspect that the decisions made by Mr English in deciding what witnesses to call were attended by any mistake or negligence. Nor is there any ground for suspecting that the appellant's defence was compromised by those decisions, let alone that there was any miscarriage of justice. Accordingly, this ground of appeal must fail. Ground 9 - Judge tupman and the DPP were purely stating that I was the one as it was my photo and they both had proof that there was someone else involved and change the details and charges and sentence to give me a result over the average sentencing as per the courts. 64The judge at no time expressed an opinion about the identification of the appellant. The prosecution case, as summarised by the judge, was that the appellant did not act alone but that he had aided and abetted others in the importation of the drugs. As to the particular acts alleged by the prosecution to have been committed by the appellant in furtherance of the importation, of course there was an issue as to whether they were done by him or someone else. This controversy was fairly summed up by her Honour and (rightly) no complaint or application for redirection was made by Mr English in this respect. 65In his oral submissions, the appellant contended that a delivery of drugs had been made whilst he was in custody following his arrest and this demonstrated that he was not guilty (at least in respect of those drugs). Produced to this Court and tendered without objection are copies of police material concerning deliveries made after August 2010. One of the deliveries referred to in the documents is that of an item ED00279620IN, which was the subject of evidence in the trial, delivered to Rosemeadow Post Office, and collected on 23 August 2010 by someone who signed "Nartley". This is presently irrelevant. An Evidence Transfer Form relating to "white powder concealed in handbags testing positive for cocaine ..." addressed to "Stanley Nartery, PO Box 6159 Canley Vale NSW 2166" was exhibited in the trial. It too is presently irrelevant. The only delivery to which the appellant's submission can refer was also the subject of evidence in the trial, elicited by Mr English in his cross-examination of Federal Agent Hardy - "Q. You'll agree with me won't you that since he's been in custody more packages containing drugs have arrived in Australia addressed to 138 Lansdowne Road Canley Vale? A. I would have to check the records on that. Q. You're not aware of another package that arrived in Australia containing drugs that was addressed to Simone Davies at 138 Lansdowne Road Canley Vale? A. Yes I have heard that name, yes. Q. That arrived in Australia in the period after Mr Chime had been arrested? A. I'd have to rely on - Q. You'd accept it from me? A. I'll accept that yes." 66The prosecutor clarified the issue to some degree in re-examination - "Q. You were asked whether ... packages were addressed to 138 Lansdowne Road? A. I know that there were packages addressed to 138 Lansdowne Road Canley Vale, yes. Q. Were you aware whether they arrived in Australia past Mr Chime's arrest? A. Again I would have to check the Customs dates of arrival, but I'm aware of at least one arriving after his arrest. Q. Is that the one that was addressed to Simone Davies? A. Yes. Q. Did you know the basic information about Simone Davies? A. Not really, no. Q. Do you know whether that person is a male or female person? A. No. Q. You don't know? A. I'd assume it's female because it's the same name as my name, but again it's assumption. I don't have any knowledge of a person named Simone Davies." 67In his closing address, Mr English submitted that the matter was significant in the following way - "You might also recall me asking Federal Agent Hardy, during the cross examination, about her knowledge of other parcels containing drugs that were addressed to 138 Lansdowne Road, Canley Vale, which arrived into Australia after Mr Chime's arrest and detention in prison. You may recall Federal Agent Hardy's evidence that she was aware of one such parcel: addressed to a Simone Davies at 138 Lansdowne Road. But apart from that, you may recall that, when Federal Agent Hardy was re-examined by the Crown Prosecutor, she said that she did not know any basic information about Simone Davies. Now, you might think that the police investigating the importation of further parcels carrying drugs addressed to 138 Lansdowne Road, Canley Vale would be relevant to determining the true suspect and whether the true suspect was arrested and detained on 31 August 2010." 68It seems to me that Mr English made of this evidence the best that could be made, namely it perhaps pointed to some shortcoming in the extent of the police investigation (though he had not actually asked about this). It certainly did not suggest that the appellant had not been involved in the charges of which he was convicted. There is no merit in the appellant's contention. 69Also in oral submissions on the hearing of the appeal, the appellant sought to rely on evidence that had become available pursuant to subpoenas issued for the purposes of the appeal, relating to the existence of Felix. The appellant, in substance, argued that his credit had been attacked on the basis, inter alia, that Felix did not exist and, furthermore, that proof of his existence gave substantive support to his case that others had created the false licences. The appellant also submitted that his reason for going to Lansdowne Road was an innocent one, namely to visit his friend Felix. 70Tendered in the appeal (without objection) was a printout of Roads & Maritime Services Address Usage History which showed that the addresses recorded for Felix Ikechuga Ugomba included Unit 11, 136 Landsdowne Road, Canley Vale NSW 2166, effective from 24 April 2009 to 16 August 2011. The photograph attached to the record shows a person of African appearance but it does not resemble the photos of the appellant or that in the copies of the fake licence. Counsel for the Crown conceded that this showed the person Felix in fact existed and resided at some stage in Lansdowne Road. Also tendered without objection on the appeal was a copy of the visitor's application forms for the Villawood Detention Centre. Amongst these are applications from "Felix Ugombe" on 10 February and 8 March 2009, who gave as his address 19 Charles Street, Liverpool. The question which follows, of course, is the significance, if any, of this evidence. 71The existence of Felix was disclosed first in the trial by the appellant in his evidence in chief. As referred to above, the appellant said that Felix had used the computers upstairs in his residence with Nartey and Udo and had once used his passport photo to create a profile on a dating website. There was evidence from the phone records of messages from Mrs Chime about this profile which, she believed, had been created by him. He apparently explained that his picture had been used by another, as his wife messaged (on 9 February 2010, using a phone ending with 367 to phone 3) - "If not u I want to speak 2 who did it to find out y and I want all ur emails if u can't give me then I know it was u and I want a apology and respect I diserve [sic]." 72As well, the appellant said he and Nartey had visited Felix and Udo at their unit in a block of units next to 138 Lansdowne Road, on the last occasion his wife driving with Nartey. In cross-examination he said that Nartey's friends, including Felix, would use the phones. He was cross-examined about the use of his passport photo - "Q. Mr Chime, you say in respect of Felix using your passport photo on the Tag website that the only thing about you that was there was the photograph, is that correct? A. WITNESS: Yes. Q. Not your name? A. WITNESS: No. Q. Not your address? A. WITNESS: No. Q. Not an old address? A. WITNESS: There's no address-- Q. Not an old address? A. WITNESS: No address in website. Q. No phone number? A. WITNESS: No. Q. Not your email? A. WITNESS: No. Q. Nothing about you at all except your picture? A. WITNESS: Yes. Q. You said your wife found out about it whilst she was in Melbourne? A. WITNESS: Yes. Q. How did she find out about it? A. WITNESS: Because the profile app add to mine, my own website, my profile add. So when she - she call my email, when she opened my, and checked my, she find out I had another face there add to my own profile and she open it, and is my face. She think maybe I open another one. Q. That's not true, is it, you're making all this up, aren't you? A. WITNESS: No." 73In terms this appears to be an allegation that the appellant had fabricated his evidence about Felix's use of his passport photo. However, the prosecutor put the wider question - "Q. And you were the person who provided the address of 138 Lansdowne Road, Canley Vale as a delivery address for one of those packages containing drugs? A. WITNESS: No. Q. And the evidence that you gave about your friends living next door was not true, was it? A. WITNESS: It is. Q. You made that up to explain why the GPS had been close to the premises at 138 Lansdowne Road? A. WITNESS: No." 74The jury asked, at the close of the evidence - "The Crown suggested that Felix and Ugo did not actually live in the block of red brick units adjacent to 138 Lansdowne Road. Is there any evidence that this is indeed the case or otherwise?" The judge answered this question as follows - "Then the next question is, "The Crown suggested that Felix and Ugo did not actually live in the block of red brick units adjacent to 138 Lansdowne Road. Is there any evidence that this is indeed the case or otherwise?" There is no evidence about that fact. You might recall that I've just checked the transcript that what the Crown put to Mr Chime was that he made up the evidence that he gave that said that these two lived in a block of units next door to a 138 Lansdowne Road so that you could find an explanation as for why the GPS travelled to Lansdowne Road and that in fact it wasn't true. He denied that and that's the state of the evidence. The evidence is the accused's denial of that proposition. Questions are not answers, I will probably repeat that to you in the formal directions that I give you. You're not entitled to use as evidence propositions that are put in questions unless in fact either they're agreed with by the person to whom they're put or there is other evidence from which you accept the truth of the assertions that's put in the questions. So there is no other evidence and Mr Chime denied that he made it up." 75Not surprisingly, the matter was taken up by the prosecutor in his address to the jury but in a somewhat qualified manner - "You have heard that the Crown case is that Mr Chime was the person who was responsible for the provision of the address, 138 Lansdowne Road, to whomever it was overseas, and you've heard evidence that a GPS that was seized from a car at 118 Englorie Park Road revealed that the GPS at least had been in the vicinity of 138 Lansdowne Road on two occasions that the Crown says are relevant to the deliveries that occurred there. Now, Mr Chime, in his evidence, didn't deny that he had been to 138 Lansdowne Road - I withdraw that - didn't deny that he had been to Lansdowne Road, but he denied that he had been to 138. He said he had been to visit some friends next door, who he described as Felix and U G O. You might think it's quite extraordinary that his friends would live next door to the abandoned house where the package, or number of packages, had been addressed, but that was his evidence. ... ... There was no need to send a consignment number in this case, because there was no-one living at 138 Lansdowne Road and all someone had to do was to go and retrieve what you would expect to find in the letter box, which would be an attempt to deliver notice, and then trot off down to the post office to pick it up. The GPS went to 138 Lansdowne Road on 4 June and on 13 July. Now 4 June is about a month before the date of the first count. There could be a number of reasons why he went there on that day, and it could have been to scope the place out, to see where it was, to try and find a location that was convenient to send it to. It may have been selected because it was next door to where Felix and Ugo lived, much in the same way that 155 was across the road from 118. It may have been selected because they had people who could keep an eye on it. It may have just been random - the story about Felix and Ugo may be just a lie, but the fact is that those packages were addressed to 138 Lansdowne Road, and that address was sent to a mobile phone that was found in the home of Mr Chime." [Emphasis added.] 76Even if the prosecutor resiled from the allegation that the appellant had fabricated the existence of Felix, he was certainly contending that the jury would not accept the appellant's evidence about it. As a practical matter, whether Felix existed or not did not, of itself, matter to the Crown case. Indeed, in some respects the fact (if it were the fact) that he lived at 136 Lansdowne Road strengthened the case, since it was another contact between the appellant and 138 Lansdowne Road and the appellant would have, when visiting Felix, been aware that it was vacant; the situation also, as the prosecutor pointed out, reflected the proximity between the appellant's residence and the drop-off address across the road. That it was Felix, rather than some other person, who had used the appellant's passport photo on the dating website also mattered little. From the text messages it seems clear that his photo was on the site and he had told his wife someone else had used it. The real question was whether it was the appellant who had used his photo in that way. The mere existence of Felix, even at his house, did not do more than give rise to the logical possibility that he had done it. (The jury also might have found it curious that, if he had named him, Mrs Chime did not use the name Felix in her demand to speak to the person to whom he attributed the profile to her even though he was, on the appellant's case, a visitor to his home.) 77In the end, however, the appellant's evidence that Felix existed and lived at 136 Lansdowne Road was true. The prosecutor invited the jury to disbelieve him. The RMS record would have supported his credibility as to this issue and the credibility of the appellant lay at the centre of the case, since he had so much material he needed to explain. In my view, the missing verification of Felix's existence and his residing in Lansdowne Road is of trivial significance in the face of the overwhelming evidence of the appellant's involvement in the importation of the drugs. To take one crucial item of evidence - the images on the copies on the fake licences - to my eye they are indeed identical to the images on the passport photos in the sense that they are copies of those photographs, a fact made obvious by comparing in particular the way in which the placing of light and shade is identical and the position of the neckline of his tee-shirt. The fact that the fake licences must have been produced when collecting mail from the post office boxes and making the money transfers strongly supports the inference that he collected the mail and made the transfers, although it may be that, on some occasions the employee may not have looked closely at the photos or made a mistake (but not for Felix, whose face is very different). This necessity also strengthens the inference that the appellant created the licences rather than someone else without his knowledge. Other powerful evidence of the appellant's involvement comprises: the heroin on the knives in the en-suite to his bedroom; the fingerprints on the material in the bin; his fingerprint on the Moneygram receipt; cross-links in the money transfer documents; possession of the mobile phones cross-linked in various ways with details of consignment numbers, addresses, box numbers and his personal information of different kinds; that "Uche" is plainly short for "Uchenna"; and the proximity of the addresses to his home and the place where he visited Felix. Nor is this a complete list. 78It is clear enough that the RMS records would have been available had any reasonable enquiry been made. It is unknown whether the defence had this material and declined to use it (perhaps because of Felix's photo) or had not sought to obtain it. However, it is not fresh, as distinct from new, evidence. The appellant must demonstrate that, because the evidence was not available to the jury, there was a miscarriage of justice: see the summary of the relevant principles by Kirby J (Mason P and Levine J agreeing) in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63], which it is not necessary to repeat here. It is obvious that the new evidence, though credible, is insufficient to give rise to a reasonable doubt about the appellant's guilt of any of the charges; nor is there reasonable possibility that, had the evidence been available to the jury, it might, acting reasonably, have acquitted the accused: Gallagher v The Queen, (1986) 160 CLR 392 per Mason and Deane JJ at 402; Mickelberg v The Queen (1989) 167 CLR 259 per Toohey and Gaudron JJ at 301-302. 79Accordingly, there has been no miscarriage of justice arising out of the absence of the RMS records and it is unnecessary to consider whether acquittal or a new trial should be ordered. This ground must be dismissed. Conclusion as to conviction appeal 80In my view none of the grounds of appeal raised by the appellant, whether in his written submissions or orally at the hearing, have any merit and I propose the appeal against conviction be dismissed. Sentence appeal 81Following the appellant's conviction on 21 February 2011, the sentence proceedings were set for hearing on 25 May 2012, but were adjourned on the appellant's application, as his barrister had recently withdrawn and because he wished to provide some information to police by way of "assistance". The proceedings on sentence were heard on 13 July 2012 and, on 18 July 2012 the appellant was sentenced to a head term of 12 years commencing on 31 August 2010 with a non-parole period of 7 years. 82Each of the "drug offences" carried a maximum penalty of 25 years. The judge indicated that, while the circumstances of each offence were "more or less the same" she intended to treat the offences as falling into 3 rough categories, (largely based, it appears, on the pure quantities of drug imported). Thus sentences were imposed as follows - 2 years Count 1 (42.3 grams heroin - 21 times marketable qty) from 31 August 2010 Count 2 (64.7 grams cocaine - 32 times marketable qty) from 30 November 2011 3 years Count 3 (174 grams heroin - 87 times marketable qty) from 28 February 2011 Count 4 (106 grams MAM - 53 times marketable qty) from 28 February 2011 Count 5 (116.7 grams cocaine - 58 times marketable qty) from 31 August 2011 Count 6 (estimated - more than 2 grams heroin) from 29 February 2012 Count 7 (158.6 grams methamphetamine - 79 times marketable qty) from 31 August 2012 Count 9 (159 grams cocaine - 79 times marketable qty) from 31 August 2014 4 years Count 8 (332.1 grams heroin - 166 times marketable qty) 31 August 2013 83The "proceeds of crime" charge, pursuant to s 400.1 of the Criminal Code attracted a maximum of 20 years and involved a large number of small transactions occurring over a lengthy period, and which ultimately totalled over $500,000. A sentence of 6 years was imposed for this offence commencing 31 August 2016. 84It appears that the judge made a mistake in respect of the sentence for count 6. Her Honour had indicated an intention to impose a sentence of 2 years for Count 6 on the basis that it fell within the lower end of marketable quantities but, when formerly announcing the sentence for this count, a 3 year term (29/2/12 to 28/2/15) was imposed. The Crown brought the error to our attention and conceded that it needed to be corrected. Objective circumstances 85The facts of the offences are sufficiently set out above in dealing with the conviction appeal. The judge summarised the appellant's involvement as at least that of "an intermediary involving quite a degree of planning on his part". He obtained false identification documents and opened the post office boxes used to import the drugs. He was a party to identifying the residential addresses. He took steps to create authorities to take delivery from post offices in assumed names. His role included involvement in the unpacking and ultimate delivery of the drugs, as demonstrated by the heroin found on the knives in the en suite in his bedroom and the packaging in his garbage bin. He participated in transfers of very substantial sums which involved the proceeds of similar drug offences and enabled the drug importation business to be undertaken. The trial judge considered (with respect, rightly) his role to be significantly more than that of a courier. He would have continued with these offences had he not been arrested. They were committed for financial gain. Subjective features 86The following is taken from the judge's sentencing remarks. The appellant was 36 years of age at the date of sentence. He is a Nigerian citizen, coming from a poor family and with little formal education. His employment ended because of difficulties which led to him being threatened. As a result he left Nigeria in 2006 and went to live in China for two years on a working visa, where he ran a business supplying businesses in Nigeria with Chinese goods. He met his wife there. When his visa ran out in 2008 he came to Australia where his application for a protection visa was rejected and he was held for a period in immigration detention at Villawood. He married his wife whilst in detention in 2009 and returned overseas to apply for a spouse visa which was successful. He returned to Australia in September 2009 and lived here with his wife and her children helping her with her clothing import business and also undertaking some casual work as a welder in the construction industry. From November 2009, however, the appellant commenced the offending for which he was convicted, when he started to send funds overseas which were the proceeds of crime. 87A psychologist's (Dr John Jacmon) report was tendered giving the opinion that the appellant suffers from post-traumatic stress disorder arising from the threats that were made to him before he left Nigeria in 2006, as disclosed in the history provided by the appellant. The judge noted that the psychologist did not have available to him the evidence in the trial that the appellant's criminal activities involved a significant degree of planning, "including the obtaining of and use of false identity documents, forwarding only the sums of money which would be below detection levels by financial institutions, forwarding sums of money therefore on more than one occasion on the same day but in different parts of Sydney, again to avoid detection, and similar evidence". Her Honour's view that this was "not the behaviour of a person whose day to day functioning or memory and concentration or problem solving and decision making is impaired" should be accepted. At the same time, her Honour accepted that the appellant had some ongoing post-traumatic stress disorder and was suffering from anxiety and distress as a result of his situation. Accordingly, she considered his prospects of rehabilitation would benefit if he received some treatment for these both whilst in custody and once his gaol term has finished. There was no evidence that he suffered from poor health. Her Honour took into account, in setting the non-parole period, that the appellant is Nigerian and did not speak English well, which would make his experience of prison more onerous and more isolating. 88As the judge observed, there is little more known about the offender. Although his prior good character entitled him to some leniency, her Honour regarded the ongoing nature of the offences over an extensive period meant that his prior good character was of limited significance. The support of his wife and her children was a favourable factor in respect of the appellant's prospects of rehabilitation but, as her Honour noted, he was living with them at the time he committed the offences and much of the evidence on which he was convicted was found in the house in which they all lived. There was no evidence of any particular hardship to his family as a result of any period of custody. 89The judge then dealt with material which was put forward as evidence of the appellant's assistance. This comprised a statement made by the appellant to the authorities. Her Honour described it as "a restatement of the evidence which the offender gave at trial in which he asserted that Stanley Nartey and Chidere Udo were, in fact, genuine people who were responsible for these offences", an account which the jury clearly rejected, and known to the authorities from the trial itself, at least. The judge (with respect, correctly) dismissed the statement both as assistance to authorities and as evidence of contrition or remorse. 90As with the conviction appeal, I propose to deal with each ground seriatim. Ground 1 - Comparative sentencing of both charges was not used, I believed the judged (sic) erred and went above and over the normal sentence of both charges. 91In substance, this appears to be a complaint that sentence was manifestly excessive, that is, unreasonably or unjustly severe, either when considered alone or when compared with "normal sentences" for these offences. Of course, even if it were the case that members of this Court, may have imposed lower (or, for that matter, higher) sentences, this would not be sufficient to establish the discretion of the primary judge miscarried. The same necessarily applies to sentences imposed by other judges in other, though similar cases, although they might well inform the fundamental question. 92The primary judge was provided with a table of "comparative" cases by the prosecutor. Her Honour considered that, although the table was useful, the offences were not identical, nor were the quantities of drugs involved and the circumstances of the offending. Moreover, the offenders in most cases had pleaded guilty. I would respectfully agree with her Honour and likewise regard the cases of little assistance. They certainly do not demonstrate that the sentences passed on the appellant were excessively severe either individually or as a totality. Considering the sentences in isolation, I am not persuaded that they exceeded the discretionary range available to the primary judge. Accordingly, I would reject this ground of appeal. Ground 2 - Her Honour did not consider the psychologist report done by the government appointed psychologist, stating that because it was done by video-link, that it wasn't thorough enough. If that is the case, then why did she not order a new one and make sure it was done in person. The psychologist had 25 years of experience and offered to speak on my behalf but the judge rejected that as well. I have been seeing psychologist in Villawood detention centre and also the prison up to date. I feel that she should be taking my medical condition into consideration in the sentencing. 93There was no report from any "government appointed psychologist". Since his examination was conducted by video link, it can be inferred that the report is, in fact, that of Dr John Jacmon, who was engaged by the appellant's lawyers. It is clear that, contrary to the appellant's submission, the judge did consider the report and discussed its significance in sentencing the appellant. Her Honour's conclusion as to its limited significance, which was based on Dr Jacmon not having available and thus being unable to take into account the evidence of the appellant's criminal activities over the extensive period involved, was, with respect, entirely justified. 94That the appellant's interview with Dr Jacmon was conducted by video link had been mentioned by her Honour during submissions, immediately after reading the report on the Bench after it was tendered - "HER HONOUR: ... One of the problems about these reports just handed up like this Mr El-Hanania [the appellant's solicitor] is that the verdicts of guilty and the evidence on which they were based suggest a degree of reasoning and thinking which is entirely inconsistent with the opinion that Dr Jacmon has offered in that report. The person who committed these offences was organised, clear thinking, able to arrange affairs so as to be an attempt to conceal his identity. Able to transfer money in false names and to actually engage in a fairly complex system whereby these drugs came to Australia in a way were, because of the steps that he had taken, aiding and abetting their importation, it was very difficult to detect that they were being imported to Australia. That is entirely inconsistent with an opinion that says that the post traumatic stress disorder that apparently he was still suffering from in 2010 as a result from events that occurred in 2006 appeared to diminish his ability to formulate reasoned judgements. The basis on which he was convicted, it seems to me would suggest quite the contrary. EL-HANANIA: Well your Honour, if I can say this; attachment A at page 2 is the assessment and how John Jacmon arrives at his conclusions with regards to post traumatic stress disorder and it confirms whether it is indicated or not indicated with regards to the assessment. But-- HER HONOUR: Well that's only on the basis of a history given by him isn't it? And for that matter, over a video link to the gaol. EL-HANANIA: Mm. Just one moment your Honour-- HER HONOUR: I mean the only reason I raised it Mr El-Hanania was to say to you that I don't necessarily have to accept the opinion. EL-HANANIA: Of course, no. HER HONOUR: If it doesn't actually, if it doesn't coincide with the evidence that was before the jury which must have been accepted by them. It's not a matter for me even-- EL-HANANIA: No. With respect-- HER HONOUR: --to make a finding of fact. The facts are clear-- EL-HANANIA: No that's right. HER HONOUR: --that he did what the Crown alleged he did because otherwise he wouldn't have been convicted of all ten offences by the jury. EL-HANANIA: I understand that. HER HONOUR: All right, okay-- EL-HANANIA: The other issue is they weren't accepted by the jury and hence his convictions. HER HONOUR: Yes. I mean, I must say, I find it a little bit unusual that apparently such a diagnosis has been arrived at as a result of a face to face meeting conducted over a video link in the gaol when a lot of the material that is necessary to reach a finding of post traumatic stress disorder, things like hyper vigilance, alertness, all of that sort of thing, you might think if you've only got history to go on, you might go looking at perhaps others with whom he was living at the time to see if the history can be supported. Because the whole thing is based on history and the convictions would seem to be counter intuitive to a person if in fact he was living like that. It's a pretty rough opinion in my view." [Emphasis added.] 95The reference to the video link was, it seems to me, an incidental description of the interview made in the course of making the point that Dr Jacmon had not obtained any histories from the persons with whom the appellant had been living before his arrest, namely his wife and one adult son. In doing so, her Honour had overlooked the indication in the report that Dr Jacmon had interviewed Mrs Chime. However, Dr Jacmon does not disclose what information, if any, had been supplied by her and does not suggest that he actually relied on what, if anything relevant, she told him. In the judge's remarks on sentence dealing with the significance of Dr Jacmon's report the judge clearly articulated the matters which led her to regard it as having limited utility. They did not include the fact that his interview was by way of video link. Although her Honour referred to Dr Jacmon relying on the history provided by the appellant (making no reference to his wife), it seems to me that, so far the report actually went, this was a fair observation. However, it was made in the context of emphasising the unavailability to Dr Jacmon of the evidence in the trial as to the applicant's activities. In my view, there is no basis for concluding that the judge gave inadequate or inappropriately qualified weight to Dr Jacmon's report. 96There was, of course, no power in the circumstances for the judge to have ordered a new psychological report. Nor is there anything in the transcript that suggests the judge "rejected" an offer by Dr Jacmon to speak on behalf of the appellant. Whether he was called was a matter for the appellant's solicitor or, if he was required for cross-examination, for the prosecutor. Lastly, as I have set out above, the judge took into account the appellant's "medical condition", though necessarily only to a limited extent. 97I would reject this ground of appeal. Ground 3 - Being my first criminal offence in any country and it was all circumstantial evidence used to convict me but the actual evidence (sic) that she gave me was a very severe one and normally given to repeat offenders. I have not committed these crimes and I feel that she erred in her judgment to convict me. 98As mentioned above, the judge took into account the appellant's prior good character. Her Honour also noted that this was his first time in prison. Of course, the appellant could only have been sentenced on the basis of the jury's verdicts, which bound the judge. It is not the fact that the overall sentence imposed on him was "normally given to repeat offenders". Thus, in Okeke v R [2010] NSWCCA 266, the offender, with no prior convictions, who had been convicted on his plea of guilty of three counts of attempting to possess a marketable quantity of cocaine and heroin, one count of possessing a marketable quantity of heroin and recklessly dealing with proceeds of crime ($61,500) and had significant health problems was sentenced to an overall term of 10 years and 6 months imprisonment with a non-parole period of six years and ten months. He had used false names to take delivery of packages containing drugs from various addresses and collected some drugs from a courier. His role was an intermediate one. The JIRS statistics for first offenders for the offences on which the appellant was sentences show that the sentence was well within the statistical range. As I have already stated, the sentence was within the judge's discretion to impose. Ground 4 - Her Honour erred when she also did not take into consideration of my family here and my Villawood treatment here and my mental history into consideration and the history of what I and my family in Australia have been through with both mental health. 99The judge referred to the appellant's incarceration in the Villawood Detention Centre. There was no evidence about any treatment which had any adverse mental or other effect on the appellant although his incarceration was mentioned both in the Pre-sentence Report and that of Dr Jacmon. Nor did his solicitor make any submission to this effect. Nor is there any reference in the evidence (or his solicitor's submissions) of problems with the health of the appellant's family to which, however, the judge adverted in her remarks on sentence. The sentencing remarks include specific reference to the appellant's family as helpful on his release in respect of rehabilitation. Ground 5 - The judge took the word of DPP when asked how much the AUD dollar was money laundered and not by the actual amount on the documents and then she chose to times the amount by 5 times in sentencing as DPP quoted 500.000 and not the actual papers listed in court stated. 100The amounts of the Western Union transfers were set out in exhibits tendered without objection in the trial and Moneygram transfers. The total of the amounts transferred was just over $524,000. This evidence provided the basis for the judge's statement, in her remarks on sentence, "The amount sent out of Australia ... was... at least $500,000". The count on which the appellant was convicted was in the form - Further that he between about 19 November 2009 and 31 August 2010 at Sydney in the State of New South Wales did deal with money that was, and that he did believe to be proceeds of crime and at that time of the dealing the value of the money was $100,000 or more. [Emphasis added.] 101There is nothing in this ground. Conclusion as to sentence appeal 102None of the grounds relied on by the appellant have any substance except, to a limited degree, that which concerns the sentence imposed on count 6. The Crown submitted that the overall sentence and the non-parole period represented the primary judge's view of the appropriate punishment for the totality of the appellant's offences. This result was stated before the sentence for count 6 was pronounced which was, with respect, a slip and not intended by her Honour. In the result, therefore, I propose that the error by reducing the sentence to one of 2 years imprisonment but leaving the overall outcome unchanged. Orders 103I propose the following orders - (1)the appeal against conviction be dismissed; (2)leave to appeal against sentence be granted; (3)the appeal against sentence be dismissed except as to the sentence imposed in respect of count 6. (4)the sentence imposed in respect of count 6 be quashed and, in lieu thereof, a sentence of 2 years be imposed commencing on 29 February 2012 and ending on 28 February 2014. 104R A HULME J: I agree with Adams 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: 17 December 2014