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2
Court of Criminal Appeal 1 May 2001

R v Richards

[2001] NSWCCA 160

Also reported as 123 A Crim R 14
DrugsPublic order & justice offences
CRIMINAL LAW AND PROCEDURE CONSPIRACY TO IMPORT NARCOTIC ALLEGED ENTRAPMENT EVIDENCE OFFENDER SPECIAL ARRANGEMENTS FOR JURY SECURITY

Citation: Richards v R [2001] NSWCCA 160
Court: New South Wales Court of Criminal Appeal
Date: 1 May 2001
Judge(s): Powell JA, Grove J, Simpson J

Background

The appellant was convicted in the District Court after a jury trial before Flannery DCJ on a charge that between January and September 1993 he conspired with a co-offender, Bijkerk, and others to import a commercial quantity of cocaine into Australia. The scheme relied on a forged customs stamp that, when applied to shipping invoices, falsely indicated that goods had been inspected at the point of export and required no further inspection on arrival.

The investigation arose after a man named Modica, who possessed the forged stamp, was arrested in February 1992 and agreed to assist police. A police-directed chain of contact ultimately led to the appellant being identified as a person willing to organise a drug importation. The case had a lengthy procedural history, including an earlier trial that resulted in a hung jury and two further aborted trials before the matter came before Flannery DCJ.

The appellant's co-offender Bijkerk pleaded guilty during the proceedings, after the trial judge ruled against evidentiary objections on the voir dire. The appellant contested the charges and was convicted. He appealed against both conviction and sentence.

  • Whether evidence obtained through the police-directed conduct of an informant should have been excluded under s 138 of the Evidence Act 1995, applying the principles in Ridgeway v The Queen (1995) 184 CLR 19
  • Whether cross-examination about the treatment of the co-offender Bijkerk was properly handled at trial
  • Whether special jury security arrangements and the co-offender's guilty plea being entered in the jury's presence caused a miscarriage of justice
  • Whether the appellant's sentence of twelve years (with an eight-year non-parole period) was excessive, particularly given an unjustifiable disparity with the sentence received by Bijkerk

Decision

Entrapment and exclusion of evidence (Ground 1): The Court found no error in the trial judge's decision to admit the evidence. Flannery DCJ had concluded that neither accused was induced to commit a crime they would otherwise have been unlikely to commit. The appellant gave no direct evidence of inducement and relied on inferences from documentation. The Court accepted the trial judge's finding and rejected the contention that the evidence should have been excluded under Ridgeway principles or s 138 of the Evidence Act 1995.

Trial irregularities (Grounds 2 and 3): The remaining conviction grounds concerned cross-examination about the co-offender's treatment and procedural events at trial, including special jury security arrangements and Bijkerk's guilty plea being entered in the presence of the jury. The Court dismissed these grounds, finding they did not establish any error that would warrant setting aside the conviction.

Sentence and disparity: The Court allowed the sentence appeal. Bijkerk had received a lesser sentence that incorporated a discount reflecting the possibility of entrapment. Although the trial judge had recognised some disparity, the Court found the remaining gap between the two sentences was large enough to constitute a justifiable grievance for the appellant within the principles in Postiglione v The Queen (1997) 189 CLR 295 and Lowe v The Queen (1984) 154 CLR 606. The Court did not reduce the appellant's sentence to match Bijkerk's, but reduced it sufficiently to bring the disparity within an acceptable range.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence allowed
  • Sentence imposed below quashed
  • In lieu thereof, the appellant sentenced to nine years imprisonment with a non-parole period of six years, both commencing 2 July 1998
  • The appellant's solicitor directed to explain to the appellant the purpose and consequences of fixing a non-parole period, in accordance with s 16F of the Crimes Act (Cth) 1914

Key Takeaways

  • Applying Ridgeway v The Queen, the Court confirmed that entrapment arguments require evidence that police conduct induced an accused to commit an offence they would otherwise have been unlikely to commit; an absence of direct evidence from the accused, with reliance solely on documentary inference, was insufficient to displace the trial judge's contrary finding.
  • Under s 138 of the Evidence Act 1995, a court retains a discretion to exclude improperly obtained evidence, but that discretion was not misexercised here where the trial judge had properly weighed the relevant considerations across an extensive voir dire.
  • Sentencing disparity between co-offenders does not automatically warrant resentencing, but where the gap is large enough to constitute a justifiable grievance, a reduction is required even if the co-offender's lower sentence reflected a discount the appellant was not entitled to on the same basis.
  • In dismissing the conviction appeal, the Court affirmed that procedural events at trial, including security arrangements for the jury and a co-offender pleading guilty before the jury, do not necessarily cause a miscarriage of justice sufficient to overturn a verdict.
  • Resentencing under the Crimes Act (Cth) 1914 required the Court to apply the statutory criteria in ss 16A and 16G and to have regard to the High Court's guidance in The Queen v Wong (1999) 48 NSWLR 40 on the proportionality of federal sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act (Cth) 1914, ss 16A, 16F, 16G
- Evidence Act 1995 (NSW), s 138

Cases:
- Ridgeway v The Queen (1995) 184 CLR 19
- Postiglione v The Queen (1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- The Queen v Olbrich (1999) 199 CLR 270
- R v Wong (1999) 48 NSWLR 40
- Bunning v Cross (1978) 141 CLR 54
- R v Bijkerk (2000) 111 A Crim R 443
- R v Richards & Bijkerk (1999) 107 A Crim R 318
- R v Taouk (1992) 65 A Crim R 387
- R v Mandica (1980) 24 SASR 394
- R v Birtles (1969) Cr App R 469
- Sherman v United States 356 US 369 (1958)
- Mooney v James [1949] VLR 22
- R v Sloane (1990) 49 A Crim R 270
- R v Sloane (No 2) (unreported, CCA NSW, 15 July 1992)
- R v Stokes (unreported, CCA NSW, 16 June 1988)