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17
Court of Criminal Appeal 14 August 2013

Matthews v R

[2013] NSWCCA 187

Drugs
CRIMINAL LAW CONVICTION APPEAL WHETHER MISCARRIAGE OF JUSTICE OCCURRED RECKLESSNESS NO DENIAL OF PROCEDURAL FAIRNESS NO MISCARRIAGE OF JUSTICE. CRIMINAL LAW

Citation: Matthews v R [2013] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 14 August 2013
Judges: Hoeben CJ at CL, Leeming JA and Beech-Jones J

Background

The appellant was convicted in the District Court following a jury trial of importing a commercial quantity of pseudoephedrine, a border controlled precursor, contrary to s 307.11 of the Criminal Code Act 1995 (Cth). The offence carried a maximum penalty of 25 years imprisonment. The jury found that he imported the substance intending, or believing another person intended, to use it to manufacture a controlled drug.

The Crown's case centred on events in Bangkok in June 2008, where the appellant allegedly purchased hundreds of boxes of cold and flu tablets, ground them into powder, concealed the powder inside a water pump, and arranged for the package to be shipped to Australia under a false name and the details of a former business associate. The shipment, containing 2.47 kilograms of pure pseudoephedrine, was intercepted by customs officers after its arrival in Sydney.

The appellant was sentenced to seven years and six months imprisonment with a non-parole period of four years and six months. He appealed both his conviction and his sentence, appearing without legal representation on appeal. His grounds included that the jury's verdict was unreasonable, that his trial counsel performed improperly or negligently, and that several aspects of the trial and sentencing occasioned a miscarriage of justice.

  • Whether the jury's guilty verdict was unreasonable and unsupported by the evidence
  • Whether the conduct of trial counsel was so improper or negligent as to cause a miscarriage of justice
  • Whether the delay in bringing the matter to trial denied the appellant a fair hearing
  • Whether the appellant was denied a proper opportunity to cross-examine a key witness
  • Whether the trial judge misdirected the jury on the mental element of the offence, particularly on recklessness
  • Whether the summing-up mischaracterised the appellant's defence case
  • Whether the sentencing judge made findings of fact beyond the evidence
  • Whether a reasonable apprehension of bias arose at sentencing
  • Whether principles of parity or relativity between co-offenders were misapplied
  • Whether the sentence was manifestly excessive

Decision

The Court dismissed the conviction appeal. The evidence against the appellant was strong: two co-offenders, Thurling and Garcia, gave detailed evidence of the appellant's central role in planning and executing the importation, and this was corroborated by agreed facts about the shipment, telephone records, and the use of the former business associate's identity on shipping documents. The Court found the jury's verdict was not unreasonable.

The complaint about trial counsel's conduct was rejected. While the appellant criticised various tactical decisions made by his counsel at trial, the Court found no basis for concluding that the conduct fell below an acceptable standard or that it caused any unfairness. Similarly, the Court rejected grounds relating to delay, the cross-examination of witnesses, and alleged misdirections. The jury had been properly directed on the recklessness element, and the summing-up did not misrepresent the defence case.

On sentence, the Court acknowledged one factual error by the sentencing judge: a finding about the appellant's conduct had not been proven beyond reasonable doubt. The Court proceeded on the basis that this may have been material to the sentencing decision. However, the Court concluded that no lesser sentence was warranted in law, given the serious nature of the criminal enterprise, the appellant's leading role in it, and his criminal history including a breach of parole conditions.

The Court declined to re-sentence, noting that any adjustment would at best be minor. Established authority holds that re-sentencing is not appropriate merely to effect a minor adjustment. Leave to appeal the sentence was granted, but the appeal was dismissed.

Orders Made

  • Leave to raise ground 15 of the conviction appeal was granted
  • Leave to raise grounds 1, 2, 3, 4, 5, 6, 7, 10, 12 and 13 of the conviction appeal was refused
  • The appeal against conviction was dismissed
  • Leave to appeal against sentence was granted
  • The appeal against sentence was dismissed

Key Takeaways

  • A conviction will not be set aside on the basis of trial counsel's conduct unless that conduct fell below acceptable professional standards and caused actual unfairness to the accused; tactical decisions, even ones the accused later disagrees with, do not meet that threshold.
  • Where a sentencing judge makes a factual finding not established beyond reasonable doubt, that may constitute error, but the Court of Criminal Appeal will decline to re-sentence if it is positively satisfied that no lesser sentence is warranted in law.
  • Confirmed that the discretion to re-sentence must be exercised by reference to the legislative regime as it stands at the time of the appeal, not at the time of original sentencing.
  • Under s 307.11 of the Criminal Code Act 1995 (Cth), the fault element for whether a substance is a border controlled precursor is recklessness, while absolute liability applies to the quantity imported being a commercial quantity.
  • Strong corroborated evidence from co-offenders, combined with agreed facts and documentary evidence linking the accused to the importation, was sufficient to support a reasonable jury's guilty verdict.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.11
- Crimes Act 1914 (Cth), s 21E
- Criminal Appeal Act 1912
- Evidence Act 1995
- Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth)
- Drug Misuse and Trafficking Act 1985
- Judiciary Act 1903 (Cth)

Key Cases:
- Dupas v R [2010] HCA 20; 241 CLR 237
- Leach v R [2007] HCA 3; 230 CLR 1
- Green v R [2011] HCA 49; 244 CLR 462
- Lowe v R (1984) 154 CLR 606
- Lowndes v R [1999] HCA 29; 195 CLR 665
- Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Douar [2005] NSWCCA 455; 159 A Crim R 154
- Baxter [2007] NSWCCA 237; 173 A Crim R 284
- Campbell v R [2008] NSWCCA 214; 73 NSWLR 272