R v Gutierrez

MEAGHER JA : I agree with Shaw J.

KIRBY J : I have had the advantage of reading the judgment of Shaw J. His Honour proposes that the appeal by Mr Gutierrez against his conviction, and his application for leave to appeal against sentence be dismissed. I agree with that order. However, I should state my reasons, since they differ to some extent from those of Shaw J. His Honour also proposes that the Crown appeal against sentence should be dismissed. On that issue I have formed a different view. The charges

Mr Gutierrez was charged with three offences, as follows: · Count 1: Between about 11 August 1999 and about 20 September 1999 at Sydney was knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of cocaine being not less than the trafficable quantity applicable to cocaine. · Count 2: Between about 11 August 1999 and about 20 September 1999 at Sydney, New South Wales, did conspire with Marcos Moreno Lopez, Blades Yanira Ramos Palacios, Manual Antonio Amaya Gurerro, Maria Gutierrez and divers others to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of cocaine being not less than the trafficable quantity applicable to cocaine. · Count 3: Between about 11 August 1999 and about 20 September 1999 at Sydney, New South Wales did engage in money laundering in that he was engaged directly in transactions involving money that was the proceeds of crime and which he knew was derived or realised directly from some form of unlawful activity.

Application was made for a separate trial on count 2. Nicholson DCJ made that order on 13 November 2001. On 19 November 2001 the trial of Mr Gutierrez on counts 1 and 3 began. Mr Gutierrez pleaded not guilty. On 13 December 2001 the jury returned verdicts of guilty on each count.

On 21 January 2002, Mr Gutierrez pleaded guilty to the remaining charge, the indictment having been amended as follows: "Between about 11 August 1999 and about 20 September 1999 at Sydney, New South Wales, did conspire with Leo Jimenez and divers others to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit, narcotic goods consisting of a quantity of cocaine, being not less than the trafficable quantity applicable to cocaine." The Crown case on the importation

Mr Brent Atkinson lived at Whale Beach in Sydney. He had a small business at Avalon importing Mexican terra cotta pots and other artefacts. He used a warehouse at Brookvale in his business.

Mr Atkinson, by his own admission, was a drug dealer. On 13 September 1999 he provided a friend, Malcolm Hay, with 2 ounces of cocaine. That afternoon Hay was arrested. In the course of the arrest, he was shot by the police. He had the cocaine in his possession.

Mr Atkinson heard of the arrest and the shooting on the news. He decided to hide the cocaine in his possession. He took it from the warehouse and placed it in the roof of a friend's garage. Shortly thereafter he was arrested. He, in fact, had been under surveillance for some time. A warrant had been issued for the interception of his telephone on 1 September 1999.

Mr Atkinson recognised that he faced a long gaol term. He determined that he would co-operate with the police to minimise that term. He told them what he knew about the importation into Australia on 11 August 1999 of approximately 3.5 kilograms of cocaine. His account implicated Mr Gutierrez and others. Mr Atkinson was released on bail. He continued to deal with Mr Gutierrez after 13 September until Mr Guitierrez was arrested on 20 September 1999.

Mr Atkinson pleaded guilty to two offences. He was given a substantial discount on sentence upon the basis that he would give evidence against others involved in the offences, including Mr Gutierrez. He was sentenced to imprisonment for 7 years 9 months, with a non parole period of 3 years 9 months, both sentences concurrent.

Mr Atkinson was called by the Crown in the trial against Mr Gutierrez. He said that in the past he had dealings with Mr Leo Jimenez of the United States. On 1 August 1994, Mr Jimenez told him to contact a person "Karl", whose number he was given. He then met Mr Karl Gutierrez. He picked him up from the Manhattan Hotel at Kings Cross. They drove to Manly to make enquiries about beachside apartments. It was common ground that in the course of the journey Mr Gutierrez telephoned Leo Jimenez in the United States from a public phone box. In the course of that conversation Mr Atkinson also spoke to Mr Jimenez.

Having been to Manly, Mr Gutierrez returned with Mr Atkinson to the Manhattan Hotel. Mr Gutierrez entered the hotel, coming back a short time later with a person whom he introduced as "Martin". Martin was carrying a suitcase. Mr Gutierrez said to Mr Atkinson that they needed to stop at a supermarket. Mr Gutierrez and Martin emerged from the supermarket with two white shopping bags. Mr Gutierrez later said they also needed a fan. They drove to Mona Vale where a fan was purchased.

Throughout the journey Mr Gutierrez spoke to Martin in Spanish. He told Mr Atkinson that Martin had "the gear". He said that Martin had brought the goods through customs and the dogs had been all over them. He also said "it should weigh about 3.5 kilograms".

Mr Atkinson gave evidence that he drove Mr Gutierrez and Martin to his home at Whale Beach. The goods purchased at the supermarket included four plastic bowls. Martin produced from his suitcase a five litre wine cask. The wine cask was later found by the police at Mr Atkinson's premises (Exhibit A). It was inscribed with foreign writing, which was some evidence of importation. Martin proceeded to remove the bladder from the cask and drain the contents into the four bowls. The cocaine which had been imported was inside the wine cask, suspended in liquid.

The task of separating the cocaine from the wine proved difficult. The powder remained wet and sticky. Martin, with the assistance of Mr Gutierrez, continued the process of refinement. A coffee grinder was purchased and used. Mr Atkinson then attempted to distribute a small portion of the cocaine which had been separated. However, there were complaints. Mr Gutierrez said that he would try to "fix the stuff up". Martin, by this time, had moved from the Manhattan Hotel to Mr Gutierrez's apartment at Manly. A further 500 grams of cocaine was delivered by Mr Atkinson to the Manly unit. Mr Atkinson described how Martin sprayed the cocaine with acetone and then placed it in a microwave oven. Filter paper was then used and yet more acetone poured onto it. The yellow powder gradually became white. More heat was applied using a bar heater.

The next day (16 August 1999), Mr Atkinson transferred the remaining cocaine from his office to the warehouse. He was told to obtain twenty litres of acetone, filter paper and a bed sheet. He then transported Martin and Mr Gutierrez to his warehouse, taking the microwave oven from the Manly unit. According to Mr Atkinson, Martin and Mr Gutierrez then processed the remaining cocaine using the same methodology. The cocaine was weighed and found to be 2.5 kilograms.

On 17 August 1999, or thereabouts, Mr Atkinson said he drove Mr Gutierrez and Martin to the airport. Martin was booked on a flight to Columbia. The flight was delayed for twelve hours, which Martin spent in a city hotel. He later left Australia.

Mr Atkinson was scheduled to leave Australia for a holiday in New Zealand on 5 September 1999. Between Martin's departure and 5 September the cocaine was passed to distributors to sell. Some 2 kilograms were sold and, according to Mr Atkinson, $194,000 paid in cash to Mr Gutierrez.

After the departure of Martin, Mr Atkinson turned his attention to the 420 grams of cocaine (15 ounces) which had been given to his associates to sell, but which had been returned as unsaleable. Mr Atkinson's principal salesman was a person, "Bill" or "Billy". Bill and a chemist friend, "Phil", were asked to go to Mr Gutierrez's apartment at Manly to assist in refining the remaining 420 grams. They did so, using a process similar to that used by Martin. The 15 ounces reduced to 13 ounces. Bill took 10 ounces (280 grams) and Mr Atkinson the remainder, which he left at the warehouse.

Mr Atkinson was in New Zealand from 5 September 1999 until 12 September 1999. He was arrested on 13 September 1999. He spoke to Mr Gutierrez a number of times after that date and before 20 September 1999, when Mr Gutierrez was arrested.

Some three weeks earlier, on 1 September 1999, the Australian Federal Police had obtained warrants to intercept the phone at the Manly apartment occupied by Mr Gutierrez, as well as the mobile phone of Mr Atkinson. They also obtained a warrant for a mobile phone leased by Optus to a person, "Bazzi". On the Crown case that phone was used by Mr Gutierrez. His voice was identified. Documents leasing that phone were found in his unit after his arrest.

The Crown case included a number of intercepted calls, as well as observations made by the police after 1 September 1999 and before Mr Gutierrez's arrest. The Crown case on the money laundering

On 2 September 1999 Mr Giutierrez and Mr Atkinson were seen to leave Manly for the city. At approximately 4.00 pm they entered the American Express building and then the Singapore Money Exchange.

The next day, in a phone call which was intercepted, Mr Gutierrez telephoned the Singapore Money Exchange. He enquired about travellers' cheques. The same morning he spoke to Leo Jimenez in the United States. He said that he was sending "cake". It has "to have a nice little disguise or whatever". He discussed where to send it and how long it would take to get there.

At 12.30 pm on 3 September 1999 Mr Gutierrez was seen entering the Singapore Money Exchange. Ms Yusha Malik, employed by the exchange, gave evidence for the Crown. She admitted wrongdoing. She had undertaken to assist the Crown, and as a consequence no charges were brought against her. She said she spoke to Mr Gutierrez who said he would like to buy "lots of travellers' cheques". She said he would have to fill out a CTRA form. He responded by saying that he did not wish to fill out any forms. He left a $14,000 deposit.

Later on 3 September 1999, Mr Gutierrez spoke to Mr Atkinson. The conversation was recorded by listening device. The conversation included the words "converting it slowly" and "that anything under ten is no problem".

On 6 September 1999 Mr Gutierrez purchased American Express travellers' cheques. He said he did not wish to sign them, and did not do so. He did sign a purchase record, although using a false name and address.

Later that day Mr Gutierrez was seen posting three envelopes from a post box in Manly. The letters were later seized by the police. They were found to contain unsigned travellers' cheques totalling US$28,450. Each envelope contained cheques which were wrapped in carbon paper inside a greeting card. An intercepted call was made by Mr Gutierrez earlier the same day to a company at St Ives where he sought to confirm the address of that organisation. That address then appeared on the back of one of the envelopes.

That night Mr Gutierrez spoke to Mr Atkinson. The conversation was recorded. He said that he had sent Leo (Jimenez) "something" and used carbon paper and "made it look like it came from a company".

Mr Gutierrez returned to the Singapore Money Exchange on 9 September 1999. He purchased more travellers' cheques. The procedure was the same. He did not complete the CTRA declaration. He did not sign the cheques themselves. He did sign the purchase record, using a false name. In all, he purchased US$58,500 American Express travellers' cheques (Aust $95,730). Mr Gutierrez was again observed posting letters. Again the letters were seized. Again carbon paper had been used. In a conversation between Mr Atkinson and Mr Gutierrez on 14 September 1999, Mr Gutierrez discussed the use of carbon paper to hide any metallic strips.

Throughout this time Mr Gutierrez repeatedly telephoned the United States to enquire whether his letters had arrived. When told that they had not, he made enquiries with the post office. He said to one caller on 12 September 1999 that he wondered whether the carbon paper was "fucking it up".

Mr Gutierrez used at least three money exchanges to despatch money. The learned trial Judge could not be certain of the amount received by Mr Gutierrez from Mr Atkinson. He recognised that it was in Mr Atkinson's interests to overstate the amount paid over, and to minimise his own gain. His Honour, in his remarks on sentence, said that he was satisfied that the amount paid over was well in excess of $100,000. The conspiracy charge

Having been convicted of counts 1 and 3, Mr Gutierrez then pleaded guilty to having conspired with Mr Jimenez and others between 11 August 1999 and 20 September 1999 to import more than a trafficable quantity of cocaine into Australia. This was a recognition, at last, by Mr Gutierrez that the case against him was overwhelming. He had played a pivotal role in the organisation of the importation into Australia of several kilograms of cocaine. He repeatedly spoke to others in the conspiracy around the world, including Leo Jimenez, a person Marcos Moreno Lopez and his wife, and a person based in Oslo, Norway.

In view of the plea of guilty I need not recite the evidence in detail. Nicholson DCJ, in his remarks on sentence, helpfully provided the following summary: "I find Ott, apparently based in Oslo, Norway, was to supply Lopez with money intended to purchase cocaine for shipment to Australia, out of Spain, where Lopez lived. Ott acknowledged having the sum of 60,000, which I infer was US$60,000. This I take to be the purchase price of about 3-4 kilos of cocaine admixture. Lopez met Ott in Oslo, apparently received the money, returned to Spain, and apparently purchased cocaine destined for Sydney. Lopez and his wife told the Offender that a courier, Manuel Amaya would be bringing the cocaine, hopefully leaving Spain on 12th, later amended to the 15th September. The Offender undertook financing Amaya's tip to Australia. He organised for his sister to send to Lopez's wife approximately US$3000 comprising $2000 for the ticket and $1,000 spending money for the courier. The Offender extended his stay in Sydney for a week to oversee the arrival of the cocaine, and its introduction to Atkinson. The Offender's role appears to be a facilitator, financier and adviser. The telephone taps show him continually ringing various parties to the conspiracy informing each of what is to happen, and finding out what progress has been made in Norway and Spain. He also communicated with his sister, and others in the conspiracy by email. He organised, with some difficulty, for his sister to finance the courier's trip. He also suggested that the cocaine should be smuggled in a liquid form - as had been done in August. The route to be taken by the courier was to be the same as had been used in the August importation. Notwithstanding what the Offender was told by his Spanish connections, whether the cocaine was ever sent, whether it arrived, and if so, whatever happened to it and the courier are matters of speculation. If the Spanish connection is to be believed, and it was in fact dispatched from Spain, it disappeared somewhere between its departure point and The Carlton Crest Hotel in the Haymarket. Between the 15th September and his arrest on 20th September the Offender made numerous calls to Spain, and The Carlton Crest trying to track down Amaya without success. The Offender and Jimenez were planning to make about US$40,000 each from this shipment. He told Jimenez [7-9-99], "We still make close to four oh each ... and the main thing is I am here to take care of it." Based upon the Offender's communications with Jimenez, and the Offender's admission that he and Jimenez were to make about US40,00 each, I find Jimenez was a principal in this conspired importation."

His Honour continued: "Although I am suspicious, I cannot be satisfied beyond reasonable doubt the Offender is a principal. His enrichment of $40,000 may well be because he was in Australia 'taking care' of matters for Jimenez. Apart from the $3,000 contributed by him to cover the cost of the courier, I can find no evidence that he contributed any of (as distinct from being aware of) the 60,000 dollars supplied by Ott to Lopez." The defence case

Mr Gutierrez gave evidence. He denied any involvement in the importation of cocaine into Australia, or its preparation for sale. He had obtained a real estate agent licence in the United States. He also had other business interests and a number of partners. One was Leo Jimenez. Mr Jimenez said that he had invested funds in a Mexican pottery and artefacts business in Sydney. He was scheduled to leave Los Angeles on 10 August to look at the business. He asked Mr Gutierrez to go with him. Mr Gutierrez was reluctant but he felt obliged to do so. He was "emotionally blackmailed" because Mr Jimenez could provide financial support for his real estate business. According to Mr Gutierrez, Mr Jimenez had difficulty obtaining a visa. In the end, Mr Gutierrez flew to Sydney alone to examine Mr Jimenez's investment and report back. Mr Jimenez said he would follow.

Upon reaching Sydney, Mr Gutierrez said that he made contact with the principal of the business, Mr Atkinson. He brought US$60,000 in cash, illegally transported in canisters in his suitcase. The money was to be a cash injection into the pottery business. He handed Mr Atkinson part of the money on arrival. However, upon looking at the business, he was not impressed. He reported back to Mr Jimenez, who was still unable to obtain a visa. He was instructed to retrieve from Mr Atkinson his friend's investment. Mr Atkinson thereafter gave him some money. Mr Gutierrez used that money to purchase travellers' cheques to remit to the USA.

Mr Gutierrez said that in the course of his attempts to obtain the return of Mr Jimenez's investment in late August 1999, he became aware that Mr Atkinson had an interest in drugs, and specifically cocaine. After a few drinks at a nightclub on 26 August 1999, Mr Atkinson revealed that a person, "Billy", and "Phil", a chemist, were going to do something for him which would make a lot of money. This was his explanation (obviously rejected by the jury) for the many telephone conversations with Leo Jimenez in the United States, and with Mr Atkinson in Sydney.

Mr Gutierrez said that he never met a person, Martin. He did not witness, nor participate in the separation of cocaine from wine.

Moving to the second count, the money laundering charge, the issue was narrow. Mr Gutierrez acknowledged that he had purchased travellers' cheques for cash. He admitted that he had not completed the CTRA form, that he provided a false name and address, and that he had not signed the travellers' cheques. He acknowledged that he had then sent the cheques by post, wrapped in carbon paper, inside greeting cards, to a number of individuals, providing in some cases a false name on the outside of the envelope.

Mr Gutierrez, however, said that there was an innocent explanation. He was returning to America money he understood Leo Jimenez had invested in the pottery business in Australia. He had not refused to sign the CTRA form, nor the travellers' cheques, contrary to the evidence of Mrs Malik. Mr Gutierrez asserted that the Singapore Money Exchange (who had the obligation to ensure that these forms were completed) had not asked him to complete that form. He suggested that perhaps Mrs Malik could then charge a higher conversion rate. According to his evidence, it was Mrs Malik who had asked him to use a false name and address when he signed the purchase record. He had not understood that there was any difficulty in not signing the travellers' cheques.

Mr Gutierrez said it was his idea to buy travellers' cheques. He added that, upon reflection, it was a silly idea. He was under stress. There was pressure from Leo Jimenez. Indeed, he felt some tension between himself and Mr Jimenez. He saw travellers' cheques as a means of separating his own money from that of Mr Jimenez, and hiding his money to get it back to Los Angeles. Corroboration of Crown evidence

Mr Atkinson was an accomplice, as was Mrs Malik. Both had sought and received significant benefits through assisting the Crown. It was recognised, therefore, that their evidence may be unreliable. The jury was so warned.

However, there was significant corroboration for the evidence of each. Dealing first with Mr Atkinson, there was some common ground. Both agreed Mr Atkinson had an association with Mr Jimenez prior to August 1999. Mr Gutierrez confirmed Mr Atkinson's account of their first meeting.

The recorded telephone conversations of Mr Gutierrez were capable of being viewed as corroborating a number of other aspects of Mr Atkinson's account. First, it was Mr Atkinson's evidence that the cocaine had been imported in the wine cask suspended in wine. On 7 September 1999 Mr Gutierrez (referred to as "K") is recorded as having said to Leo Jimenez these words: (Appeal Book Vol 1: p134/5) "K ... the way that got this one got here I rather do it like that. .... K Yeah. L I don't know how ...."

Shortly thereafter, Mr Gutierrez said this: (App B Vol 1: p135) "K But I rather I rather I rather do the ELL do it do it in the in the liquid ..." L Right."

Erich Fiala, a Federal Agent, gave evidence of observations he made on 14 September 1999. He followed Mr Gutierrez to the Manly Internet Centre. He observed him typing an email. According to Agent Fiala, the text of the message sent to "Sebas 9648@yahoo" was headed "Let's get started", the message being as follows: "OK, glad you're back with us, the smallest boxes are 3 litre and half vino ... . The last one to arrive was 5 litres. You can pick the route."

It was put to Agent Fiala that his evidence was a "total fabrication", which he denied. Mr Gutierrez pointed to another email from Mr Sebas, which was in Spanish. He said that he always communicated with Mr Sebas in Spanish.

Secondly, Mr Atkinson said that approximately 3.5 kilograms was expected, which reduced to about 2.9 kilograms. Mr Gutierrez is recorded as having made the following comment to Leo Jimenez on 7 September 1999, in an intercepted call: (App B, Vol 1: p129) "K Oh that's no no out of the out of the total um I I gave this guy over here out of the total total we totalled everything up again and there was only like fuckin ah twenty nine seventy or something like that from what it should have been thirty six and then the last count was at ... L ... K The last count was at at um at three thousand ah thirty eighty and then the guy and then the guy cut and then the guy hit again so ..."

Thirdly, it was suggested by Mr Atkinson, and denied by Mr Gutierrez, that Mr Gutierrez with Martin (and assisted by Mr Atkinson) had undertaken the purification process, attempting to ensure that the cocaine was in saleable form. There were a number of conversations in which Mr Gutierrez made remarks capable of supporting that suggestion. On 3 September 1999, again speaking to Leo Jimenez, Mr Gutierrez said this: (App B Vol 1: p80/81) "K But it's it's fuckin us up on this side and then I talked to ... boy over here right now and ah and that stuff um is is ... that we did all that stuff to .. L Mmm K It's star... it's starting to go ..."

In the same conversation, Mr Gutierrez was recorded as having made the following comments, consistent with the refinement process Mr Atkinson described: (App B Vol 1: p96) "K This on ... this one is that ah what's a name was here today he was so happy you know tho ... those things that we wa ... that we washed the other day. L Yeah I know I know I know I know. K He says he says. L Yeah. K He says that ... now. L Yeah but the other one. K Because you know what's happening. L ... K You know what's happening. L Yeah. K Is that when we when we wash it. L Yeah. K It becomes fuckin almost even though we're we're losing a lot but it becomes that and I told him I said next time we do this and we wash it like that you better hit it you have to hit it because now it's fuckin it's almost it's almost like fuckin like ninety to hundred ..." (emphasis added)

On 7 September 1999, in another conversation with Leo Jimenez, Mr Gutierrez is recorded as having said this: (App B Vol 1: p129/130) "K BEE BOY has nothing on him he he split and he put everything out out there so when he comes back it's all amount of just collecting it that's all he told me and then told me that and then he told me this he goes he goes fuck when I can get back I'm not gunna have nothing and now that er now that we you know we we've put it through the wringer and you know wash real good a now now it's nice and ah now everybody you know says okay you'll be able to take care of me next when you get back yeah yeah he's telling everybody yeah that's what I told these guys." (emphasis added)

That passage is capable of being read as an admission that the problems that afflicted the cocaine when first presented to the market had now been resolved. The product was now acceptable, and they could expect to be paid upon Mr Atkinson's return from New Zealand.

Later in the same conversation, Mr Gutierrez said to Leo Jimenez the following: (App B, Vol 1: p137) "L ... but you know I think you guys kinda have a had a problem with it. K Yeah I know that's another thing too I meant it it number number one it didn't look as as sweet as before 'cause he was even some of the people that he had that he was owing it up with like he'd give them like ten thirteen of them and then um they'd give it back to him say ah but I can't do anything with this and those are the one he started fucking ah wish washing and then when we started wish washing them we were losing but you know it started coming out nicer and nicer the more you wash washed." (emphasis added)

Still later, Mr Gutierrez referred to "everything" being "on the street". He said this: (App B, Vol 1: p140/141) "K Yeah I know LEE the other L ... K The when he gets back I have to wait till he gets back to get the rest. L Well when's that. K He gets back on Sunday. L Well does it have it all K He's gunna have to have it on he has he put everything on the street. L Sunday is ah it's the eighth already over here Sunday was ... you're like talking the fourteenth or something. K Yeah the twelfth Sunday's the twelfth he left on the fifth to the twelfth." (emphasis added)

Fourthly, evidence was called from Snezana Skopee, a senior research chemist at the Australian Government Analytical Laboratory. She analysed a number of samples of cocaine seized by the police. One had been taken from the flat of Mr Gutierrez, another from the premises of Mr Atkinson. Another sample had been in the possession of Mr Hay when he was arrested on 13 September 1999. All had an unusual proportion of a particular impurity. They had a manufacturing signature. Ms Skopee believed they probably came from the same batch. They also showed signs of exposure to heat, which was consistent with the process described by Mr Atkinson.

Fifthly, there was evidence which suggested that Mr Gutierrez was associated with a person Martin, as Mr Atkinson alleged. This is an aspect which is the subject of complaint by Mr Gutierrez in grounds 1 and 2, which I will deal with below. Mr Gutierrez specifically denied there was a person "Martin", whom he had introduced to Mr Atkinson, and who had assisted in the reconstitution of the cocaine after its suspension in wine. Amongst the items seized by the police upon Mr Gutierrez's arrest was a souvenir photograph in his possession, taken at the Centrepoint Tower in Sydney. The photograph depicted Mr Gutierrez and another man. Mr Gutierrez said that the other man was someone he had met by chance in the lift, a backpacker. He and this gentleman were in search of the viewing platform and had became lost. They ended up having a meal together. The photograph was taken during the course of a meal. Mr Atkinson, however, when shown the photograph, identified the other person as Martin. That identification was not itself corroborated. It depended upon an acceptance by the jury of Mr Atkinson's testimony, and a rejection of Mr Gutierrez's account.

In addition, Mr Gutierrez was recorded as having said to Mr Atkinson on 6 September 1999, the following words which are capable of being taken as a reference to Martin: (App B, Vol 1: p25) "K Well I tal... I talked to um I talked to ah shit who did I talk to I talked to my guy you know the guy that was here. B Yep."

There are other passages besides. More than that, Mr Atkinson was observed by surveillance police leaving Mr Gutierrez's apartment at Manly at 5.15 pm on 1 September 1999, carrying a white plastic bucket.

In respect of the second count, the money laundering count, the ultimate issue was whether Mr Gutierrez knew that the money he was exchanging for travellers' cheques was the proceeds of crime. There was a deal of evidence that indicated such an awareness. First, in support of Mrs Malik's version that Mr Gutierrez wanted no record of his purchases, he was willing, on her evidence, to accept an inferior rate of exchange. Although he was offering cash, he was willing to lose $2,000. Secondly, although he purported to provide an explanation (which the jury plainly rejected), each aspect of the transaction suggested an awareness of wrongdoing on his part. He had not completed the appropriate declaration. The travellers' cheques were not signed. He had provided a false name and address on the purchase order. The letters were carefully packaged so as not to arouse suspicion, with the cheques wrapped in carbon paper. They were sent to multiple addressees, in some instances using a false name on the outside of the envelope. An attempt had been made to give the appearance of the envelope having been sent by a company.

The money laundering was undertaken at the same time as the events which are the subject of the first count. His conduct in converting large sums of money into travellers' cheques was capable of bearing upon the explanation he provided of his association with Mr Atkinson. More than that, after the jury had returned verdicts of guilty in respect of counts 1 and 2, Mr Gutierrez, as mentioned, entered a plea of guilty to having conspired between 11 August 1999 and 20 September 1999 with Mr Jimenez and others to import into Australia a further amount of cocaine. Were there a new trial, that likewise would be capable of reflecting upon each of the charges under consideration. In his remarks on sentence, Nicholson DCJ made the following comment upon the utility of the late plea of Mr Gutierrez: (ROS p20) "The plea reduces considerably the contest of an appeal on the issue of guilt in respect of the conspiracy count. In the circumstances of this case it also reduces the prospects of an appeal on the issue of guilt on the first count in the indictment. These are important factors insofar as the administration of criminal justice in his case is concerned. His plea of guilty contributes in a small but positive way towards confidence in the administration of criminal justice in this State."

At the time that Mr Gutierrez asserts that he was in Sydney investigating on behalf of Mr Jimenez his investment in Mr Atkinson's pottery business, he was, as he now acknowledged, also coincidentally conspiring with Mr Jimenez and others to import 3 to 4 kilograms of cocaine into Australia in a shipment due to arrive on 12 September 1999.

During the trial of Mr Gutierrez on counts 1 (importation) and 2 (money laundering), the material relating to the conspiracy to import cocaine could not be used against him. He had pleaded not guilty. His Honour had ordered a separate trial. However, were there a new trial, that would change. His plea to the conspiracy count is capable of bearing upon the true nature of his association with Mr Jimenez and his real purpose in being in Sydney ( Harriman v The Queen (1989) 167 CLR 590: R v Quach [2002] NSWCCA 519).

On any view, the Crown case on each count was very strong.

I now turn to the grounds of appeal. Grounds 1 and 2: The souvenir photograph

Grounds 1 and 2 were expressed in these terms: Ground 1: The Crown prosecutor, David Staehli, breached the prosecutors duty of disclosure to the defence and disingenuously mislead the court. Ground 2.1: The learned trial judge erred by reason of wrongful admission of unfair prejudicial evidence, Exhibit K, a souvenir photograph. Ground 2.2: The learned trial judge erred in refusing to discharge the jury following the admission of the souvenir photograph, Exhibit K.

When Mr Atkinson was cross examined by counsel for Mr Gutierrez, the following exchange took place: (T.129) "Q. Had the Federal Police shown you any photographs of anybody to pick out the fellow Martin? A. Yes. Q. Did you have any luck? A. Yes. Q. You picked out Martin? A. Yes. Q. Have you been asked to give evidence in any trial against Martin? A. No. Q. Do you know who the person is that you picked out? A. I've been told his real name is Carlos.."

Counsel called for the photograph. The Crown prosecutor responded in these words: "I am not sure which photograph the witness is referring to. We have a photograph. I am happy to produce a photograph, but whether or not it is the one that the witness is referring to."

The photograph produced was the souvenir photograph taken at the Centrepoint Tower Restaurant. Counsel took the issue no further. He passed on to other matters. However, later in his cross examination, the following was put to Mr Atkinson: (T236) "Q. I suggest there was never any person by the name of Martin in the presence of Mr Gutierrez? A. No, there certainly was."

In re-examination, the Crown prosecutor asked Mr Atkinson to look at the souvenir photograph. There was an objection. His Honour ruled that the photograph was admissible. It was marked Exhibit K. Mr Atkinson identified Martin as the person seated with Mr Gutierrez.

Mr Gutierrez makes three complaints. First, that he was taken by surprise. Although the Crown prosecutor had shown the photograph to Mr Atkinson in conference a month before the trial, a supplementary statement by Mr Atkinson identifying Martin had not been served. Secondly, Mr Gutierrez says the photograph was not admissible. Thirdly, he says that the photograph, and the prominence it was given by the way in which it was disclosed, were so prejudicial that the jury ought to have been discharged.

There is no substance in any of these complaints. The souvenir photograph was served upon Mr Gutierrez's counsel. The Crown referred to the photograph in his opening (T28), describing it as a photograph of Mr Gutierrez "and another man". It had also been referred to in the application for a separate trial before the trial began. In his Honour's judgment on the application to discharge, he said this: "Secondly, in an application for separate trials, the crown disclosed not only the existence of the photograph, but also of their belief that the second man in the photograph was Martin. The defence were always aware that Atkinson's testimony would be to the effect that there was an association, which he had seen, heard and otherwise perceived, between the accused and the man Martin. As a matter of common sense the defence must have recognised there was always the potential for Atkinson to be able to recognise Martin from a photograph, including the photograph they had been served with. Of course, no one in the defence team would have known who the man on the left was. However, proper preparation required them to show the photocopy of the photograph they had received to the accused and seek his instructions in respect of it."

In the same judgment his Honour dealt with the issue of admissibility. He said this: "The calling for the photograph was a tactic Mr King employed. Several times during the cross-examination he focused upon aspects of Atkinson's account, the police investigation - or absence of police investigation on that aspect, and then made a call on the Crown for some item relating to the police investigation. Invariably the Crown was not able to produce the item claimed, no doubt leaving the evidence in a situation where Mr King could claim there was no corroboration of the accomplice's account. In this case the call partially backfired, because the Crown produced to the court a photograph which it thought, but was unsure would answer the call. The jury heard all this. The jury also saw Mr King look at the photograph, and would have observed that he quickly moved onto another area of cross-examination. Had things been left alone, the photograph was not admissible through Atkinson. Whatever damage had been done would have involved speculation by the jury - something I would have directed them not to embark upon. However, the questions suggesting Martin did not exist, had never been seen with the accused, and that Atkinson was unable to name a third person who had ever seen the accused and Martin together changed all that. As I have said above, those issues were all raised by Mr King after he had seen the photograph. Whether he was surprised or not, that line of cross examination was extremely dangerous once he had seen the photograph."

I agree, although I also believe, with respect, that the photograph was admissible in chief. In my view the photograph, Exhibit K, would have been admissible even had counsel for the accused not suggested that Martin did not exist. Having admitted the photograph in re-examination, his Honour then allowed counsel for Mr Gutierrez to further cross examine Mr Atkinson on the issue of Martin and his alleged role. There was no basis upon which the jury should have been discharged.

I would dismiss grounds 1 and 2. Ground 3: Separate trial

Ground 3 was expressed in these terms: Ground 3: The learned trial judge erred in allowing Counts 1 and 3 of the original indictment to be heard together at trial. Count 3 of the indictment (Money Laundering under s81 Proceeds of Crime Act) was used to corroborate Count 1 and had an unfair and overwhelming prejudicial effect on Count 1 that could not be fairly overcome by His Honour's direction.

No reasons were advanced in the submissions in support of that ground. Counsel appearing for Mr Gutierrez at the trial did not object to the joinder of counts 1 and 3. There was nothing unfair in adopting that course. Rule 4 applies. I would refuse leave to raise ground 3. Ground 4: Direction on money laundering

Ground 4 was expressed as follows: Ground 4: The learned trial judge's direction to the jury as to Count 3 of the indictment (Money Laundering under s81 Proceeds of Crime Act) was unclear and ambiguous (Unreasonable and Inconsistent with the evidence).

The written submission by Mr Gutierrez was brief. In effect he made two suggestions: · First, that if the jury found Mr Gutierrez guilty on count 1, then the Judge's direction suggested that they should find him guilty on count 3. · Second, that his Honour suggested to the jury that the money used to purchase the travellers' cheques was "actually the proceeds of crime".

Neither suggestion has any foundation. His Honour gave the usual direction that each charge was separate, and had to be considered separately. His Honour added: "... The verdicts for each count do not have to be the same. It may be the Crown has proved one beyond reasonable doubt but not the other ... So let me repeat, you have to consider each separately."

In a careful summing up, his Honour analysed the different ways in which the Crown put its case. It relied upon alternatives. Either the money used to purchase travellers' cheques was indirectly obtained from the offence charged in count 1 (the importation), or, alternatively, the Crown must prove Mr Gutierrez knew that Mr Atkinson had possession of an imported drug, cocaine, from which the money derived.

I would dismiss ground 4. Ground 5: Lack of balance in summing up

Ground 5 was as follows: Ground 5: The learned trial Judge's summing-up to the jury was not fair and balanced, was not put to the jury in the same language or tone used by the Crown, and his Honour highlighted areas not put by the Crown.

Mr Gutierrez in written submissions asserted the following: (p35) "... Although in most criminal trials more time is spent on the Crown case, His Honour should not have gone so far in his summing-up of the Crown case to avoid any unfairness and bias to the appellant before the jury. His Honour did not as required by law, put fairly before the jury the case, which the appellant made. There is an obligation on a trial judge to put the defence case fairly to the jury: Regina v Davis (1997) 4 Crim LN [731]."

The same submission was made by counsel then appearing for Mr Gutierrez.

His Honour's obligation was to identify the elements of each charge, to relate the evidence to such elements, and by reference to the arguments of the Crown and those advanced on behalf of the accused, to identify the issues which the jury was obliged to determine. His Honour, with great clarity and conspicuous fairness, did exactly that. The Crown case was significantly longer than the defence case, as is usual. The time taken to refer to the evidence relied upon by the Crown was inevitably longer ( R v Lars (1994) 73 A Crim R 91, especially 145-146). His Honour interpolated the specific denials by Mr Gutierrez when dealing with aspects of the Crown case. He dealt with the evidence given by Mr Gutierrez fairly and at length.

There is no substance in ground 5. Ground 6: Factual errors

Ground 6 was as follows: Ground 6: The learned trial judge made factual errors in summing-up the evidence to the jury on several occasions by misquoting evidence, giving versions of events that were not available on the evidence put before the court, and he made factual errors in summing-up the evidence to the jury.

The first complaint concerns the trial Judge's use of transcript of telephone interceptions in the course of the summing up. Mr Gutierrez objected that the transcripts were, as his Honour told the jury, an aide memoire, not the evidence. The objection is misconceived. His Honour was entitled to refer to the transcript when reminding the jury of the relevant evidence.

Later in written submissions, Mr Gutierrez asserted his Honour "made numerous factual errors", which mislead the jury. He provided three illustrations. In the context of Exhibit K, the souvenir photograph, his Honour told the jury that, should they accept that the man in the photograph was Martin, then the photograph "became supportive evidence for Atkinson". Mr Gutierrez said this: (p41) "His Honour misdirected himself, as Atkinson's evidence of identifying Martin as the other man in the souvenir photograph was an unsupported finding, which he failed to direct the jury."

Mr Gutierrez is right. Acceptance of he photograph depended upon an acceptance of Mr Atkinson. It was therefore not capable of constituting independent corroboration.

However, no objection was made by counsel at the trial. Rule 4 applies. Having regard to the unlikely explanation given by Mr Gutierrez concerning his chance meeting with the person in the souvenir photograph (which the jury clearly rejected), as well as the other evidence against Mr Gutierrez, there was no miscarriage of justice.

None of the other examples provided by Mr Gutierrez demonstrate error. I would dismiss ground 6. Ground 7: Direction on "being knowingly concerned"

Ground 7 was expressed as follows: Ground 7: The learned trial judge erred to adequately direct the jury as to the elements of the charge - namely the meaning of "knowingly concerned in the importation under the Customs Act 1901 (Cth) s233(1)(d).

The written submissions do not elaborate. Mr Gutierrez, in his oral submissions, passed over this issue. The directions given by his Honour on the elements of count 1, including the element of being knowingly concerned, were appropriate. There is no substance in ground 7. Ground 8: Absence of circumstantial evidence direction

Ground 8 was as follows: Ground 8: The learned trial judge erred in not using the separate facts of the trial for Count 3, Money Laundering s81 Proceeds of Crime Act, to give a Circumstantial Evidence direction to the jury as to what is a reasonable hypothesis consistent with the innocence of the appellant for that charge or offence.

His Honour gave a lengthy and elaborate direction about drawing inferences. Counsel made no objection. Nor did he seek the direction which Mr Gutierrez now suggests should have been given. Rule 4 applies. His Honour put Mr Gutierrez's explanation for the money transactions fairly and at length. I would refuse leave. Ground 9: Warning on mental illness

Mr Gutierrez expressed ground 9 in these words: Ground 9: The learned trial judge erred in failing to adequately include mental illness warnings when giving his direction of evidence of accomplice warnings and the potential unreliability of witnesses pursuant to the Evidence Act (NSW) s165(1)(d).

Mr Atkinson was cross examined about his drug use. He admitted that he had regularly used cocaine for several years before his arrest. He may have used up to a gram or a gram and a half in an evening, although not every evening. He would pay up to $200 a gram. He would, in part, finance his consumption by selling drugs. At one stage he had sought professional help from a clinic (T130). At the time of his trip to New Zealand in September 1999 he described his use of cocaine as "slight" (T132).

There was other evidence, including from Mr Gutierrez, bearing upon Mr Atkinson's consumption of drugs. Federal Agents Mann and Benjamin interviewed Mr Atkinson after his arrest and dealt with him in the weeks following. Neither was cross examined about Mr Atkinson's behaviour or demeanour or the effect, if any, of drugs. Mr Gutierrez gave evidence that Mr Atkinson consumed drugs in his presence. Indeed, his drug taking was one of the reasons he recommended to Leo Jimenez that he retrieve his investment in the pottery business.

Section 165(1) of the Evidence Act 1995 identifies certain classes of evidence that may be unreliable. They include evidence where the reliability may be effected by "ill health" (whether physical or mental). Where there is such evidence before the jury, and a party so requests, the Judge should warn the jury that the evidence of that witness may be unreliable (s165(2)), unless there is good reason for not doing so (s165(3)). The Judge may warn the jury even if there is no request from a party, if he or she believes it is appropriate to do so (s165(5)). Here there was no request from counsel for Mr Gutierrez to provide the warning which Mr Gutierrez now suggests was appropriate. The Judge did not, of his own motion, provide such a warning. He was not obliged to do so. Rule 4 applies. The issue concerning Mr Atkinson's drug taking was before the jury. It was an obvious issue (cf R v Baartman [2000] NSWCCA 298, paras 62-67 ; R v Stewart (2001) 52 NSWLR 301). There was no miscarriage of justice. I would not give leave.

There is a second aspect to Mr Gutierrez's complaint. In R v Stewart (supra), Howie J (with whom Spigelman CJ and Hulme J agreed) said this: (para 126) "It may be preferable that a trial judge avoids using the word 'accomplice' during his or her warnings to the jury. The use of that word may convey, inadvertently, that the accused and, therefore, that the trial judge has formed the view that the accused is guilty of the charge before the jury."

Although there is force in the suggestion made by Howie J, the passage does not suggest that the use of the word "accomplice" is an error. It is a word commonly used in directions given under s165(1)(d). No objection was made by counsel for Mr Gutierrez at the trial. Rule 4 applies. As the Court of Criminal Appeal remarked in R v Ita [2003] NSWCCA 174, "the absence of an objection from counsel is usually a reasonably reliable indicator of the fairness and adequacy of the direction given". In view of the direction in fact given (the subject of ground 11 below), the jury could not have formed the view that the Judge was suggesting that Mr Gutierrez was guilty of the charge. I would refuse leave. Ground 10: No case submission

Ground 10 was as follows: Ground 10: The learned trial judge erred in not dismissing Count 1 of the Crown indictment, as the Continuity of the Crown case, in particular Atkinson's evidence, failed to suggest that the appellant had a case to answer.

The written submissions do not elaborate. Mr Gutierrez did not deal with the issue in his oral submissions. It was a strong Crown case. The ground plainly has no substance. Ground 11: The accomplice direction

Ground 11 was expressed in these terms: Ground 11: The learned trial judge erred in not directing the jury as to corroboration of evidence by the accomplice.

Ground 16 was a related ground, which was expressed as follows: Ground 16: The learned trial judge erred by not giving a ' special scrutiny' warning (as per s165) in relation to the real risk and danger in accepting prosecution witness, Mr Atkinson's evidence regarding the identification of 'Martin' from the souvenir photograph.

Mr Gutierrez drew attention to the obligations under s165(2). His Honour was obliged to warn the jury that the evidence of Mr Atkinson may be unreliable (s165(2)(a)), identifying the matters that may cause it to be unreliable (s165(2)(b)), and the need for caution in determining whether to accept the evidence, and the weight to be attached to it (s165(2)(c)). His Honour, in Mr Gutierrez's submission, failed to do so. The direction he gave was described by Mr Gutierrez as "perfunctory".

It should be noted that counsel for Mr Gutierrez made no objection at the time of the summing up. Rule 4 applies. His Honour's warning to the jury in respect of Mr Atkinson was anything but perfunctory. It extended over a number of pages. It included these words: (S/U 15) "The law recognises from bitter experience that evidence coming from persons who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings is evidence which may be unreliable. As I have indicated, accomplices are persons who have been criminally concerned in the events giving rise to the proceedings. It is important that you bear in mind this past experience of the law that accomplices can present as very convincing witnesses, yet their evidence may be unreliable. The evidence is potentially unreliable because the accomplice witnesses are likely to be of bad character, seeking to minimise or avoid their criminal responsibility. Atkinson is a self-confessed drug dealer. Your commonsense and life experiences will tell you untruths are part and parcel of a drug dealer's lifestyle."

His Honour identified the reasons such evidence may be unreliable. He said this: (S/U 15-16) "Both of these witnesses (Mr Atkinson and Mrs Malik) ... were involved in criminal activity, that is, activity which suggests their standards of honesty and reliability are very suspect. Evidence of the kind given by Atkinson ... can be easily concocted but very difficult to cross examine upon. I am not saying the evidence is concocted but where an accomplice uses a method of concoction that involves weaving an accused into a story that, so far as the accomplice is concerned, has its initial basis in reality, but is delivered in evidence simply by adding the accused to the narrative, then the account can be both convincing and difficult to challenge in cross examination or by denial. In considering the evidence of accomplices, it is important to recognise each may have been motivated to concoct such evidence by his or her realisation that he or she will derive some benefit in terms of the sentence, or the offer of an indemnity from prosecution, or a dropping of charges by the prosecution, or an undertaking that evidence given by him or her would not be used in subsequent proceedings against him or her. You must recognise that ... Mr Atkinson ... gained very, very substantial benefits of this kind from agreeing to give evidence against this accused. Mr Atkinson's prison sentence was reduced by years."

Mr Gutierrez alleged, wrongly, that his Honour omitted to point out that Mr Atkinson may have sought to ingratiate himself with the police, and in the process may have distorted the truth. His Honour in fact said this: (S/U 16-17) "So, it is against that background that I formally give you the following warning. I warn you that the evidence of Brent Atkinson is known by lawyers as 'accomplice evidence'. As a matter of law I direct you that such evidence may be unreliable. I direct you of the need for caution in determining whether you are prepared to accept the evidence of that kind and, if you do accept it, in determining the weight that you will give to it. Specifically, Brent Atkinson is, and was when first spoken to by police, a person of bad character, a drug dealer, a person who had every motive to lie, to minimise charges he was likely to face, and to ingratiate himself with the police and the courts which it came time for him to be sentenced. He is now aware - or he was when he was giving evidence - that if he does not give evidence against the accused he is liable to have an increase in his present sentence. He is aware that the prosecution authorities have statements by him commencing from September 1999 implicating this accused and you might think that Atkinson would believe the prosecution authorities would take a dim view of him not giving evidence in accord with his earlier allegations, even if those earlier allegations were false. Secondly, you should take into consideration that this sort of evidence, if it is a fabrication, depending as it does simply upon an assertion by Atkinson in circumstances where no independent witness is present, would be easy for Atkinson to concoct but difficult for the accused to rebut." (emphasis added)

Mr Gutierrez specifically complained that his Honour failed to direct the jury to look for corroboration of Mr Atkinson's evidence. Again, the complaint has no foundation. Although not using the word "corroboration", his Honour referred to the concept in these words: (S/U 18-19) "In taking into consideration whether you are prepared to accept the evidence of Atkinson ... you should have regard to whether there is some evidence from a reliable independent source ... which might assist you in conclusion that the contested evidence of the witness is in fact reliable."

His Honour then identified evidence which the jury may consider as "supportive evidence".

I would dismiss grounds 11 and 16. Ground 13: Fresh evidence

Mr Gutierrez did not press ground 12. Ground 13 was expressed in these terms: Ground 13: The Crown erred to disclose relevant information in its possession giving rise to New and Fresh evidence.

It will be remembered (supra para 18) that after Martin left the country, 15 ounces (420 grams) of cocaine was returned to Mr Atkinson as unsaleable. He then set about refining that cocaine. He did so employing Bill or Billy, a person he used in the distribution of drugs, and a friend of Billy's known as Phil. Phil was described as a chemist.

When Mr Gutierrez was giving evidence he described his attempts to obtain money from Mr Atkinson, being the return of Mr Jimenez's investment in the pottery business. On about 26 or 28 August 1999, they went to a nightclub. Mr Gutierrez said this: (T724) "A. Yes, it was at the nightclub, that after a few drinks he started telling me that he would have the money, that this guy Billy and this guy Phil, and they were doing different things and so forth. I mean, that is the first time that he told me something to that nature of what he was doing. Q. Did he tell you anything about Phil, what his occupation was or anything? A. He said that this guy Billy and this chemist guy Phil was going to do something for him so he could make more money from a certain thing. We were having drinks. We were in a nightclub and just ..."

That was as much at Mr Gutierrez said in chief on that subject. In cross examination, Mr Gutierrez, in one of his answers, referred to the same evening. He said this: (T818) " A. ... He basically opened up to me about certain things that he was doing."

His Honour sought clarification. The transcript is in these terms: (T818) "HIS HONOUR: Q. When you say 'certain things', opened up about 'certain things', would you tell the jury exactly what he said? A. Well, he said that this guy, Billy and Phil, in a sense he was getting drugs from them or somehow or something like that; that he was, this guy Phil was actually, well, from the details he gave me this guy Phil actually worked with some people, the chemist worked with some people in bringing in drugs into Australia; that he would do a process so the drug so it would be undetectable. And that when the drugs arrived here he would actually fly overseas and do this process. When the drugs arrived here he would reverse the process or what have you, and then he said that Billy would sell it, or these guys would sell it and Atkinson would buy it from them or something to that nature. CROWN PROSECUTOR: Q. You didn't tell us any of those details yesterday, did you? A. No, I did not. I did not give the details but that is the conversation that took place with Atkinson at that nightclub."

Shortly before this appeal, Mr Gutierrez issued an Order to Produce directed to the Commonwealth Director of Public Prosecutions. He made application to Greg James J for an order that the Commonwealth Director produce material in its possession relating to, amongst others, Phil, Bill or Billy, as well as statements made by Mr Atkinson where he identified these individuals. Greg James J made such orders on 24 October 2003. Thereafter Warren Grey, a Federal Protection Officer, swore an affidavit on 29 October 2003, annexing the material the Director had been ordered to produce.

In respect of the person Phil (the chemist), the records disclosed that by March 2000 the police were aware of his identity. They obtained his criminal record. They knew that he had been a senior chemist with AGAL. They made enquiries with his former employer. They had not, however, interviewed him. In the course of Mr Gutierrez's trial, Federal Agent Grey was cross examined about Phil. He said that his identity was known, but that he had not been charged. Although he had been named by Mr Atkinson, the police had no independent evidence (whether forensic or intercepted telephone conversations) confirming his involvement.

The material produced in response to Mr Gutierrez's notice also disclosed that the police were aware in August 2001 (that is, before the trial) of Billy's identity. He was Mr William Spencer Cuthbertson. An induced statement was taken from Mr Cuthbertson. The account he gave was consistent with that of Mr Atkinson. He took Phil to the flat. There were 10 ounces which were "no good". He saw "Phil, Brent and Karl". Mr Atkinson's Christian name is Brent. Mr Gutierrez's is Karl. The statement of Mr Cuthbertson included these words: "I saw Phil with coffee grinder, and jug of chemicals. Karl just watched what was going on."

Mr Cuthbertson added: "Karl into Real estate in LA, loss due to building burnt down. Leo's name mentioned."

Mr Cutherbertson also said, "Phil was not involved in the original extraction".

Mr Gutierrez complained that this was material known to the police before the trial which ought to have been produced to him in response to a subpoena which he had served. It is material which, had it been available, could have been used, according to Mr Gutierrez, to attack Mr Atkinson's credibility. The credibility of Mr Atkinson was vital to the Crown case. It should, therefore, be regarded as fresh evidence. It was evidence capable of changing the "dynamics of the trial". Withholding this material, in Mr Gutierrez's submission, brought about a miscarriage of justice. Mr Gutierrez said this: (p75) "13.50 The deprivation of relevant material to the testing of a witness's creditability is a miscarriage that affected the justice of the trial, because it deprived the appellant of knowledge ... Such knowledge was relevant both to the appellant's endeavours, by cross examination, to discredit Mr Atkinson's testimony, but also to request for 'special scrutiny' warnings, to the evidence of the accomplice witness, Mr Atkinson. Given the circumstances and the fresh material before this court today, one can fairly suggest that the trial judge would have been obliged to give a 'special scrutiny' warning or defence may have requested one."

Several subpoenas were served on the Director before the trial (one dated 15 March 2000 and the other 12 January 2001). The terms of neither subpoena appear to cover the enquiries in relation to Phil, who was not interviewed. It is certainly arguable that the induced statement by Mr Cuthbertson (Billy) was within the terms of the subpoena and should have been produced.

Assuming that it ought to have been produced, and assuming it should be received as fresh evidence, can it be said, in the context of this trial, that withholding that material may have caused a miscarriage of justice? Far from damaging Mr Atkinson's credit, the account of Mr Cuthbertson supported Mr Atkinson's account, including his description of Mr Gutierrez's involvement.

I would dismiss ground 13. Ground 14: Unsafe and unsatisfactory.

Ground 14 was expressed in these words: Ground 14: The verdict of the jury was unsafe and unsatisfactory and should be set aside as it has led to a miscarriage of justice.

There was nothing "unsafe or unsatisfactory" about the jury verdict. It was a strong, if not overwhelming, Crown case. There was substantial corroboration for the evidence of Mr Atkinson, including the recorded conversations of Mr Gutierrez. His explanation for these conversations, and for his presence in Australia, was far fetched. It is unsurprising that it was rejected by the jury. It would have been extraordinary had he not been convicted on both counts. Ground 15: Sentence

Ground 15 was expressed in these terms: Ground 15: The overall sentence imposed upon the appellant of 13-1/2 years is 'fundamentally flawed', given the circumstances established in Grounds 1, 2 and 13.

Mr Gutierrez, in submissions, did not really press his objection to the length of the sentence. The sentence was plainly not too long. The issue is whether his Honour was too lenient, and whether the Crown appeal against the sentence should be upheld.

I will now turn to that issue. I would, however, refuse leave to appeal against sentence. The sentences imposed

On 19 June 2002, Nicholson DCJ sentenced Mr Gutierrez as follows: · On Count 1 (knowingly concerned in the importation of cocaine) to a term of imprisonment of 10 years commencing on 20 September 1999 an expiring on 19 September 2009. · On Count 2 (money laundering) to a term of imprisonment of 4 years concurrent. · On Count 3 (conspiracy to import cocaine) to a term of imprisonment of 6 years 9 months to commence on 20 June 2006 and expire on 19 March 2013.

The total sentence, therefore, was 13-1/2 years. His Honour fixed a non parole period of a little less than 60%, namely 8 years (20 September 1999 to 19 September 2007). The Crown appeal

The Crown has appealed upon the basis that the sentence was manifestly inadequate. The Crown asserted errors in relation to a number of issues: · First, the relevance of the Atkinson sentence to his Honour's task. · Secondly, the discount (15%) given for assistance. · Thirdly, the sentences on each count were said to be inadequate. · Fourthly, the total sentence was inadequate, including the minimum term Mr Gutierrez would be obliged to serve (the non parole period).

I will deal with each matter in turn. The Atkinson sentence

Mr Atkinson pleaded guilty in the Local Court to two offences, namely: · Count 1: Possession of 800 grams of cocaine contrary to s233B of the Customs Act (maximum penalty 25 years imprisonment and a fine of $100,000). · Count 2: Supply of 2.2 kilograms of cocaine, contrary to the Drug Misuse and Trafficking Act 1985 (NSW) (maximum penalty life imprisonment).

On appeal to the Court of Criminal Appeal ( R v Atkinson [2001] NSWCCA 342) the sentences imposed, reflecting a 40% discount for the assistance given and promised by Mr Atkinson, were as follows: · Count 1: Imprisonment for 6 years with a non parole period of 3 years 9 months. · Count 2: Imprisonment for 7 years 6 months with a non parole period of 3 years 9 months, both sentences to be concurrent.

The effective sentence upon Mr Atkinson was therefore 7 years 6 months with a non parole period of 3 years 9 months. Half the 40% discount for assistance (20%) was for past assistance. The remainder was for assistance promised in the future, including giving evidence against Mr Gutierrez.

His Honour, in his remarks, made the following comment upon the Atkinson sentence: (ROS 30) "I do not regard this as a case calling for parity of sentence with Atkinson. Atkinson's situation is significantly different. His charges were different, both in number and in nature. His role in the criminal activity constituting the first and third counts of this offender's indictment, as I have said before, was of less criminality than this offender's role. The evidence in this trial does not point to him being criminally involved in the second count, that is conspiracy, although it is clear that he was to play a role similar to the role he played in the August importation. That role of course never eventuated. His criminal history differs from that of the offender. His level of co-operation with both the investigating and prosecuting authorities distinguishes him from this offender."

The Crown asserted that the approach of his Honour revealed error. The following submission was made: (Subs p19) "46 Notwithstanding the fact that they were charged with different offences, Atkinson and the Respondent were involved in the same criminal enterprise. For that reason, and in circumstances where Atkinson had given evidence against the Respondent, regard ought to have been had to the sentence which was imposed upon Atkinson. The fact that his Honour found differences in their respective roles, their criminal history and their degree of assistance did not lead to the conclusion that Atkinson's sentence was of no relevance. Indeed, the findings made by his Honour in respect of those matters simply highlight the manifest inadequacy of the sentence imposed upon the Respondent."

Mr Stratton SC, for Mr Gutierrez, submitted, in effect, that the parity principle was a one-way street. It may be used to reduce the sentence of a co-offender who, having regard to the fate of his companion(s), has a justifiable sense of grievance. It cannot be used to increase a sentence of a co-offender which is within the discretionary range.

In R v Radloff (1996) 88 A Crim R 26, Cox CJ (with whom Underwood and Crawford JJ agreed) said this: (at 31) "... The disparity principle applies in circumstances where an otherwise proper sentence is reduced so as to avoid the creation of a justified sense of grievance on the part of an offender of less culpability than another who has received the same sentence as that other or, where, their respective culpability being the same, the latter is treated more leniently than the former."

The Chief Justice then referred to the statement of principle of Mason J in Lowe v The Queen (1984) 154 CLR 606 at 613 that, in cases of disparity, that engender a justifiable sense of grievance, a sentence not otherwise inappropriate may be reduced. Cox CJ continued: (at 32) "The converse, however, cannot be justified. If the sentence of the more culpable offender is inadequate in itself, it can be increased if the Crown obtains leave to appeal, and the sense of grievance of the other offender can be mollified and the appearance of injustice to the objective bystander remedied by that means rather than by a reduction of the less culpable offender's otherwise appropriate sentence. In circumstances where the discrepancy amounted to an inconsistency in sentencing standards, which Barwick CJ saw as constituting 'error in point of principle' ( Griffiths (1977) 137 CLR 293 at 310), leave might well be granted. However, if the more culpable offender's sentence is an adequate or appropriate one, in the sense that Mason J used the latter expression in Lowe , namely as falling within an appropriate range having regard to all the relevant factors, it would be quite wrong, in my opinion, for an Appeal Court to intervene to cure the discrepancy by increasing the sentence at all. Even if an increase to eliminate discrepancy would not bring it to the point that it no longer fell within the appropriate general range and might not be regarded as excessive, an Appeal Court should not intervene to substitute for one sentence within the permissible discretionary range a higher one within the same range."

In R v Moore & Wiebe (unreported, CCA, 11.8.92) Wood J (with whom Gleeson CJ and Cripps JA agreed) said this: "It is to be borne in mind that in relation to a Crown appeal there is a residual area of discretion. It is inappropriate for the Crown, it seems to me, to approach a case, such as the present, by starting with the sentence imposed upon a co-offender and inviting the Court to intervene upon the basis that the Crown or the community might feel a sense of grievance because of disparity."

Here, Nicholson DCJ said, accurately, that the parity principle had no application. He did not say that Mr Atkinson's sentence was irrelevant. It plainly had relevance. It was a sentence imposed by this Court for a broadly similar offence in respect of a person involved in the same enterprise. Its relevance required an understanding of the differences between Mr Atkinson's situation and that of Mr Gutierrez. His Honour identified those differences. Nothing said by his Honour revealed error.

However, the sentence ultimately imposed by his Honour upon Mr Gutierrez, when compared to that imposed on Mr Atkinson (taking account of the differences) may be instructive in determining whether the sentence of Mr Gutierrez was manifestly inadequate. I will return to that issue. This discount for assistance

His Honour, in his remarks, described the assistance provided by Mr Gutierrez: (ROS 22) "At arrest, police regarded the offender as co-operative. ... I note the offender agreed, after arrest, to attempt to assist the Australian Federal Police by making a number of international telephone calls to overseas contacts involved in the conspiracy offence. There was other assistance offered to the AFP. In the view of the AFP, a view with which I concur, his assistance was of little value. By the time of his arrest it must have already been obvious to the European and American connections that the intended delivery had, for some reason, fallen apart. ... In those circumstances however, the international connections would have been very cautious in dealing with the offender. There were family and other reasons why the offender's capacity to assist meaningfully with the American connection were doomed to be ineffectual. The offender's willingness to help, particularly so far as the European connection is concerned, and his dealings with the Singapore Money exchange, limited in value as it was, must be recognized in the overall sentencing exercise. Federal Agent Grey concludes that the prisoner's assistance at the time of his arrest was of some value because it enabled Police to determine with precision when the investigation should be terminated. The information given by the offender in February 2002 can be used for intelligence purposes but not otherwise. There are no prospects that the offender will be requested to, nor has he demonstrated a willingness to, give evidence against any person."

His Honour allowed a 15% discount in respect of each offence. The Crown asserted that that was "wholly excessive". Mr Stratton, on behalf of Mr Gutierrez, submitted that on the contrary, the discount was significantly lower than that customarily given (20% to 50%) (cf Pang v R (1999) 105 A Crim R 474, per Wood CJ at CL at 477). It was submitted the selection of 15% was within the discretionary range ( House v The King (1936) 55 CLR 499).

The discount of 15% was, in my view, unquestionably generous. The assistance, such as it was, was "past assistance". It had very limited value. Unlike many who provide assistance, Mr Gutierrez was not obliged to serve his sentence in protection. There was no suggestion that he was in danger. It is difficult to see what possible assistance Mr Gutierrez had given which justified an equivalent discount on the money laundering count.

Having said that, I would not, on this account, disturb the sentence imposed. If there is a need to re-sentence, however, I would allow a discount of only 5% for past assistance, and then only on the importation count (count 1) and the conspiracy count (count 3). The sentence on Count 1

His Honour painstakingly analysed the role of Mr Gutierrez in respect of each offence. In respect of the offence of having been knowingly concerned in the importation of cocaine, his Honour made the following findings of fact: · That Mr Gutierrez arrived in Australia and thereafter made contact with Mr Atkinson. · That Mr Gutierrez took "a leading role" in the recovery of cocaine from the wine within which it had been suspended at the time of importation. · That by this means, about 3 kilograms of cocaine was obtained with a 55% to 60% purity (between 1.5 and 1.8 kilograms of cocaine). · That the importation, therefore, exceeded by 700 to 900 times the trafficable amount and that its cut down value exceeded $200,000. · That Mr Gutierrez was present, in Australia, "taking care" of the interests of Mr Leo Jimenez as well as his own interests.

When dealing with the criminality of Mr Gutierrez in respect of this offence, his Honour noted the following: (ROS 12) "... while he is not to be punished for criminality predating the 11th August, his criminality whilst actually in Australia is to be assessed against the proposition that it was part of a continuing exercise where his involvement predated his arrival in Sydney."

His Honour added: (ROS 12) "His pre-Sydney involvement gives insight into his role in the importation. His conduct whilst in Sydney is consistent with that role. I cannot be satisfied beyond reasonable doubt that he is the initiator of this importation, nor that he financed or contributed to the finance of the importation, but I am satisfied he was certainly the representative of the principal or principals in Australia. I am satisfied in particular he was 'taking care' of the interest of at least Jimenez, whom I regard as a principal or one of the principals. I am satisfied the offender knew who the principal was (or principals were). It is clear the Offender was sufficiently senior in the hierarchy to expect to share in the proceeds of the importation. I infer from his expectations of financial reward in the conspiracy, coupled with the sums he dispatched to members of his own family, that he anticipated personal gain of somewhere between $30,000 to $40,000 for his involvement in this offence."

His Honour was satisfied that Mr Gutierrez's motive in this and the other offences was to make "a large amount of money quickly" (between US$60,000 and US$80,000). His Honour described Mr Gutierrez as "highly placed" and having played a "significant role" (ROS 22).

The remarks deal at some length with Mr Gutierrez's subjective case. He was born on 17 November 1967 in the United States. In some respect his family circumstances were difficult. He had to abandon his university studies to look after family members. His parents are elderly. His father is not well. He will almost certainly die whilst Mr Gutierrez is in custody. His family and a number of friends have, nonetheless, remained supportive, which is relevant to his rehabilitation. He has used his time in custody well, attending a number of courses. He plans further university studies.

Mr Gutierrez, however, had a criminal record. On 4 December 1995 he was arrested in Germany. During a stop-over at Frankfurt his luggage was inspected. It was found to contain 6 kilograms of cocaine (the equivalent of 4 kilograms pure) hidden "in pictures". He was sentenced to 5 years 9 months. On 19 October 1998, a few months short of 4 years after his incarceration, he was deported. He was then released.

The importation, the subject of count 1, occurred ten months later. It concerned the same drug, cocaine. It is plain that Mr Gutierrez's incarceration in Germany had taught him nothing. The Crown complained that his Honour failed to give appropriate weight to the previous conviction and the need it demonstrated for significant personal deterrence. Plainly Mr Gutierrez had forfeited any claim to leniency.

His Honour found no real contrition. He doubted Mr Gutierrez felt shame. His failure frankly to acknowledge wrongdoing, even in respect of the offence to which he had pleaded guilty, suggested an absence of real insight into his offending behaviour.

His Honour determined that a sentence of 16 years imprisonment was appropriate. The s16G discount (there being no remissions) (one third), and the 15% discount for assistance, reduced the sentence to 10 years imprisonment. Count 2: Money laundering

In respect of the second count involving the charge of money laundering, his Honour made the following findings: · That the money was the proceeds of the sale of the imported cocaine, as Mr Gutierrez well knew. · That he received from Mr Atkinson well in excess of $100,000. · That he went to at least three exchanges converting large sums into American Express travellers' cheques. · That he purchased US$58,000 dollars in travellers' cheques from the Singapore Money Exchange for about Aust $96,000. · That he divided the cheques into 16 lots, wrapping each in carbon paper inside a greeting card, and that such cards were then sent to various destinations in the USA. · That he disguised some of the envelopes to suggest that they came from a corporation. · That he continued to monitor the arrival of the proceeds by telephoning the addressees in the USA. · That, in these respects, he was executing what was always the plan, that is, to take out of Australia the proceeds of the sale of the cocaine (ROS 13). · That the scheme was difficult to detect, and would have been successful had it not been for the surveillance undertaken by the police.

In describing the criminality of Mr Gutierrez, his Honour said this: (ROS 13) "The purpose behind the money laundering was to take the profits from that illegal trafficking and deliver it into the hands of those responsible for sending the cocaine here in the first place. In so doing the Offender was building the financial strength of the principals of the cartel responsible for this importation. In so doing, the Offender was placing money into the hands of those who were likely to use these ill-gotten gains to advance their international criminal activities, and in particular the importation of further cocaine into Australia. Indeed, the Offender's involvement in the conspiracy charge is demonstrable proof of that."

The maximum penalty for the offence was 20 years. Taking account of the subjective case, his Honour determined that the appropriate penalty was 7 years. Reducing that sentence to take account of s16G of the Crimes Act 1912 (Cth) (one third reduction), and the 15% for past assistance, a term of 4 years imprisonment was determined. His Honour made the term wholly concurrent.

Count 3: The conspiracy charge

In relation to count 3 (to which Mr Gutierrez pleaded guilty), his Honour made the following findings of fact: · The conspiracy, as the indictment makes plain, extended from 11 August 1999, when Mr Giutierrez arrived in Sydney, until 20 September 1999, when he was arrested. · It included Mr Jimenez, a principal, the person with whom Mr Gutierrez was dealing in count 1. · The amount of cocaine to be imported was uncertain, but somewhere of the order of 3 to 4 kilograms, or perhaps less, at a cost of US$60,000. · The phone interceptions from 1 September 1999 revealed that Mr Gutierrez's role was that of "facilitator, financier and advisor". · He made many calls to co-conspirators to determine the progress overseas and to report what he knew. · He undertook the finance of the courier's trip to Australia (US$3,000). · Mr Guiterrez extended his stay in Sydney to oversee the arrival of the courier and ensure the cocaine was passed to Mr Atkinson. · The courier having disappeared somewhere between Spain and Sydney, Mr Gutierrez made many calls attempting to uncover what had happened. · Mr Gutierrez expected to make about US$40,000 from the shipment, as did Mr Jimenez.

Nicholson DCJ reached the following conclusions: (ROS 11) "... Although I am suspicious, I cannot be satisfied beyond reasonable doubt the Offender is a principal. His enrichment of $40,000 may well be because he was in Australia 'taking care' of matters for Jimenez. Apart from the $3,000 contributed by him to cover the cost of the courier, I can find no evidence that he contributed any of (as distinct from being aware of) the 60,000 dollars (supplied by Ott to Lopez)."

Dealing with the criminality of Mr Gutierrez, his Honour said this: (ROS 14) "In this case the Offender was involved from the inception until its frustration with the disappearance of the cocaine courier. This conspiracy crossed a number of international borders with its participants in Australia, Spain, Norway, and the USA. It was a conspiracy having as its end aim the importation of a substantial quantity of cocaine destined for the Australian market. The investment by the conspirators was US$60,000."

Dealing specifically with Mr Gutierrez's role, he described him as "highly placed, ready willing and able to take care of the interests of Jimenez and other principals, if any" (ROS 22). His Honour also said: (ROS 14/15) "The role of the Offender in this conspiracy was a prominent one. He was a facilitator or overseer - contacting many of the other participants giving to them progress reports, and ascertaining the progress towards the completion of the conspiratorial agreement. He financed the courier's fare and spending money. He was to be the final contact point for the courier. His task was also to arrange delivery of the intended import to Atkinson..."

His Honour added: (ROS 15) "The Offender's criminality is also to be assessed against the fact that this illegal agreement was not a one-off venture, but followed close upon the heels of the August importation. In that sense both the August importation, the money laundering offence and the September conspiracy can be viewed as a continuing course of criminal conduct by this Offender."

Taking account of the plea of guilty, his Honour believed 12 years imprisonment was the appropriate penalty. Reducing that term by one third under s16G of the Crimes Act (there being no remissions in New South Wales), and allowing 15% for past assistance, his Honour sentenced Mr Gutierrez to 6 years 9 months, partly accumulating that sentence. The commencement date was 20 June 2006. The total effective term was 13-1/2 years with a non parole period of 8 years, which represented almost 60% of the term. The competing submissions

The Crown submitted that the sentence of 10 years imposed upon the first count was manifestly inadequate having regard to the features which were listed in its submission, which were as follows: "... in respect of a person: (i) who was found to have exhibited 'substantial criminality' in the commission of a serious offence; (ii) who was found to have been the representative of the principal(s) of an importation of between 1.5 and 1.8 kgs of pure cocaine; (iii) who could receive no discount for pleading guilty; (iv) who was found to have demonstrated little or no contrition; (v) who was found to have tried to minimize his role in the enterprise; (vi) who had committed the offence only a matter of months after being released from serving a term of imprisonment for a similar offence; and (vii) whose 'assistance' was of no practical value to the authorities."

Counsel for Mr Gutierrez drew attention to the comments of Spigelman CJ (with whom other members of the Court agreed, Simpson J having reservations on one aspect) in R v Wong & Leung (1999) 48 NSWLR 340, where the Chief Justice said this, describing sentencing trends to that time: (at 366) "142. The following guideline is intended to be non-binding in the sense explained in R v Jurisic and R v Henry. It has been determined primarily on the basis of existing sentencing patterns and is intended to apply to couriers and persons low in the hierarchy of the importing organisation. · Low level traffickable quantity - 5 to 7 years (2 grams-200 grams) · Mid level traffickable quantity - 6 to 9 years (200 grams-1 kilogram) · High range traffickable quantity - 7 to 10 years (1 kilogram-1.5 kilograms) (heroin) (1 kilogram-2 kilograms) (cocaine) · Low range commercial quantity - 8 to 12 years (1.5 kilograms-3. kilograms) (heroin) (2 kilograms-3.5 kilograms) (cocaine) · Substantial commercial quantity - 10 to 15 years (3.5 kilograms-10 kilograms)" (emphasis added)

Here the amount of cocaine was within the high range trafficable quantity (7 to 10 years), although Mr Gutierrez, as counsel acknowledged, was not a "courier or a person low in the hierarchy" of the importing organisation. It was submitted that Nicholson DCJ had recognised that fact by sentencing at the top of the range.

Counsel for Mr Gutierrez also drew attention to the sentencing statistics maintained by the Judicial Commission in respect of the importation of the trafficable quantities of cocaine covering the period October 1995 to September 2002. Of 102 offenders only 6% received a sentence greater than that of Mr Gutierrez.

However, the statistics, in this instance, do not assist. The quantity of cocaine involved exceeded the trafficable quantity by 700 to 900 times. The observations of the Chief Justice in Wong & Leung , however, do assist. Clearly a significant adjustment was required to reflect the senior profit sharing role of Mr Gutierrez and recognising, as well, that by reason of his record, and the recency of that record, he had forfeited any claim to leniency. With great respect to the sentencing Judge, I believe the sentence was too low. On a conservative view, appropriate to a Crown appeal, the sentence for such a serious offence ought not to have been less than 14 years (taking account of s16G remissions and assistance).

The sentence imposed on the money laundering count was also said, by the Crown, to be inadequate. The sentence does appear low. The issue is whether it was within the available sentencing range, and why, given the criminality and the separate nature of the wrongdoing, it was made wholly concurrent.

There are no useful statistics from the Judicial Commission in respect of that offence. Our attention was drawn to a number of cases in which persons involved in drug importation or distribution had also been convicted of money laundering ( R v Ian Saxon (unreported, CCA, 31.10.97); R v Snell [1999] NSWCCA 26; R v Yasin Capar [2002] NSWCCA 517).

Having regard to that material, I accept that the sentence was not outside the range. Whether it should have been concurrent can be considered in the context of the total sentence that ought to have been imposed.

Turning finally to the conspiracy to import, counsel for Mr Gutierrez pointed to two features which distinguished this count from the importation. The first was that Mr Gutierrez pleaded guilty. The plea was late, but some discount was appropriate. Secondly, it was suggested that there never was an importation.

However, I do not believe it can be said that the drug did not arrive in Australia. All that can be said is that the conspirators, including Mr Gutierrez, lost contact with the courier somewhere between Spain and Sydney. Certainly it cannot be inferred beyond reasonable doubt that the goods arrived. But in terms of the criminality of Mr Gutierrez, if it did not arrive, it was despite his best efforts that it should do so. Taking account of these matters, and having regard to the very senior role of Mr Gutierrez, again I believe, with respect, the sentence on the conspiracy count was also too low. After all appropriate discounts, including the plea of guilty, a term of imprisonment of at least 10 years was in my view appropriate.

Dealing, then, with the question of totality, Mr Gutierrez committed three serious offences. He did so, not as a courier, nor someone low in the hierarchy, but as a senior and significant figure. If he was not a principal (as his Honour found), he was someone very close to a principal. The offences, moreover, were committed within ten months of his release from a German prison for the same type of offence. Deterrence, both general and personal, was important. In this context, I believe, with respect, the sentence imposed of 13-1/2 years imprisonment with an 8 year non parole period was manifestly inadequate.

It is therefore necessary that Mr Gutierrez be re-sentenced. I accept, for the purposes of re-sentencing, his Honour's findings of fact in respect of each offence, and the subjective case, as he described. Being a Crown appeal, the sentence should be conservative. Taking account of s16G, allowing a 5% discount for past assistance on counts 1 and 3, I believe the total effective term should be increased by three years to 16-1/2 years with a non parole period of 11 years. Order

I would therefore propose the following orders: 1. That the appeal by Mr Gutierrez against conviction be dismissed. 2. That the application by Mr Gutierrez for leave to appeal against sentence be refused. 3. That the Crown appeal against sentence be allowed. 4. That the sentence imposed by Nicholson DCJ on 19 June 2002 be quashed as to count 1 (the importation) and count 3 (the conspiracy to import), and confirmed as to count 2 (the money laundering). The date of commencement of count 2 (20 September 1999) is also confirmed. 5. That, in lieu of the sentences on counts 1 and 3, Mr Gutierrez be sentenced as follows: On Count 1 (the importation of cocaine contrary to s233B of the Customs Act) a term of imprisonment of 14 years to date from 20 September 1999 and to expire on 19 September 2013. On Count 3 (the conspiracy to import) a term of imprisonment of 10 years to commence on 20 March 2006 and to expire on 19 March 2016. On the total sentence of 16 years 6 months, there should be a non parole period of 11 years commencing on 20 September 1999.

The intention is to impose an overall sentence of 16 years 6 months to date from 20 September 1999 and expire on 19 March 2016, with a non parole period of 11 years commencing on 20 September 1999 and expiring on 19 September 2010.

Shaw J, in his judgment, sets out the history of this matter after the hearing had concluded. Mr Gutierrez, without leave, purported to file further material, namely an affidavit of 4 December 2003. He did so having previously submitted an 86 page written submission (which was well written and helpful) which addressed in detail the issues which he sought to raise. The hearing on 28 November 2003 occupied the entire day. Most of that time was spent by Mr Gutierrez speaking to his written submissions.

The Commonwealth Director of Public Prosecutions did not respond in detail to Mr Gutierrez's affidavit. It asserted, however, a number of factual errors.

Mr Gutierrez was unrepresented. He obviously did not know that leave was required. I have briefly looked at the material in his affidavit. Much of it is familiar. None of it, in my view, suggests a miscarriage of justice. I would refuse leave to file the further affidavit of 4 December 2003.

SHAW J : There are two appeals presently before the Court. The Director of Public Prosecutions for the Commonwealth alleges that the sentences imposed upon the appellant were manifestly inadequate and the appellant appeals against his conviction and seeks leave to appeal against the alleged severity of his sentence imposed by Judge Nicholson SC in the District Court on 19 June 2002.

After a trial lasting for approximately one month, on 13 December 2001 a jury found the appellant guilty of two counts on an indictment alleging an offence of being knowingly concerned in the importation of a trafficable quantity of cocaine contrary to s 233B(1)(d) of the Customs Act 1901 (Cth) and an offence of engaging in money laundering contrary to s 81 of the Proceeds of Crime Act 1987 (Cth). The appellant pleaded guilty to a charge of conspiracy to import a trafficable quantity of cocaine contrary to s 233B(1)(cb) of the Customs Act on 21 January 2002 and he was sentenced for all offences on 19 June 2002.

The trial judge sentenced the appellant to terms of imprisonment as follows: · Importation: 10 years to commence on 20 September 1999 and expire on 19 September 2009. · Money laundering: 4 years to commence on 20 September 1999 and expire on 19 September 2003. · Conspiracy: 6 years and 9 months to commence on 20 June 2006 and expire on 19 March 2013. Grounds of appeal

The total effective sentence was a term of imprisonment of 13 years and 9 months with a non parole period of 8 years.

The appellant submits that there was a miscarriage of justice in his trial. He alleges: · that there was a failure of the prosecution to disclose evidence; · error in relation to the admission into evidence of that photograph; · error in relation to the trial judge’s decision not to sever the counts on the indictment; · various allegations of misdirection of the jury including a lack of balance in the summary of the evidence in the summing up and misdirection on the element of being ‘ knowingly concerned ’ in importation; · the absence of a circumstantial evidence direction to the jury on what is a reasonable hypothesis consistent with the innocence of an accused; · the failure to warn the jury about the potential unreliability of witnesses suffering from mental illness pursuant to s 165 of the Evidence Act 1995; · error in the trial judge’s rejection of a no case to answer submission in relation to the first count on the indictment; · an allegation of ‘ complicity of charges ’.

The appellant also alleges that the convictions are unreasonable and against the weight of the evidence. The Crown Case

The Crown case depended mostly upon the evidence of a Mr Brent Atkinson, an accomplice in the importation. The evidence of Mr Atkinson was that the appellant arrived in Australia on 11 August 1999 and, on the following day, met with Mr Atkinson. The appellant introduced Mr Atkinson to a person he described to him as ‘ Martin ’. The appellant told Mr Atkinson that he needed an office fan as ‘ part of the process of working with the coke ’. Mr Atkinson said that the cocaine, the subject of the charges, was imported into Australia in a liquid state suspended inside a large cask of wine. The appellant, Atkinson, and Martin drove to the premises of Atkinson in Whale Beach, and with an office fan used to cool the liquid to produce approximately three kilograms of powder. On 12 August 1999 Atkinson transferred the cocaine to his office in Avalon and the appellant changed his accommodation from Queenscliff to Manly. Martin moved into the same premises at Manly with the appellant.

Through the following day Atkinson spoke with the appellant, and the appellant with Martin, about various ways to dry and crush the cocaine powder. After use of a coffee grinder, approximately 2.9 kilograms of cocaine was then available. Atkinson distributed some of this substance but it proved unsaleable and subject of some complaint. The appellant allegedly caused some further refinement of the power through the use of acetone and blotting paper to produce a white crystalline substance, a process described as ‘ washing ’.

On 5 September 1999 Atkinson left Australia for New Zealand after the sale of approximately 2 kilograms of cocaine for around $200,000. Atkinson said that of that sum, approximately $194,000 was given to the appellant. Atkinson was arrested on 13 September 1999 (after several telephone intercepts had been utilised, pursuant to warrant, by Federal Police) and approximately 800 grams of cocaine was recovered. Following a search of Atkinson’s residence, the wine cask was also recovered.

Around the time of these incidents the appellant had apparently made enquiries of an organisation called the Singapore Money Exchange regarding the exchange of cash for blank traveller’s cheques without having to fill in any ‘ forms ’. On 6 September 1999 the appellant phoned an Usha Malik and changed a quantity of cash for unsigned traveller’s cheques with her. Later that afternoon, the appellant posted a number of cheques seized by Federal Police which contained unsigned traveller’s cheques totalling USD$28,450 wrapped in carbon paper and secreted in a greeting card. A similar transaction seems to have occurred on 9 September 1999 and Federal Police recovered traveller’s cheques totalling USD$16,500 on this occasion. Between 10 September and 20 September 1999 the appellant made several calls to people enquiring about the receipt of the cards and expressing the view that perhaps the carbon paper was ‘ fucking it up ’.

The Crown case on the conspiracy charge related to a phone call received by the appellant on 7 September 1999 from someone called ‘ Marcos ’. The allegation was that the appellant was using the funds obtained in the recent importation to arrange a courier from Marcos for a further importation of cocaine into Australia. On 8 September 1999 the appellant received a call from Marcos who said that he needed ‘ $30,000 for this man….who should be there on Sunday ’. On 12 September 1999 the appellant received a call from Marcos that someone had ‘ just arrived ’. These events were the subject of the charge to which the appellant pleaded guilty. The conviction appeal

Despite some difficulty in isolating his complaint, the grounds of appeal for the appellant’s conviction appeal seems to have been crystallised by Kirby J in argument before this Court. I will set out what was said before us: KIRBY J: As I understand what you put, at the bottom of your submission on page 73, part of paragraph 13.46, you reproduce an answer you gave at the trial, a conversation in which Atkinson names Bill and Phil as persons from whom he was getting drugs? APPELLANT: Yes. KIRBY J: (2) You say when Mr Atkinson came to speak to police he named you and Martin as the source of the drugs, which he had then had in his possession? APPELLANT: Correct. KIRBY J: (3) You say that nonetheless you wanted to investigate Phil and Billy, they being what you believed, based on the Atkinson information to you, people who were giving them the drugs? APPELLANT: That’s correct. KIRBY J: (4) You say Phil and Billy were not called at the trial and therefore you never had the opportunity to cross-examine them. (5) Although you knew of the existence of Phil and Billy you didn’t know Federal Agent Gray in August 2001, three months before your trial, had seen or spoken to one or other or both of those individuals? APPELLANT: That’s correct. KIRBY J: That is your case? APPELLANT: That is my case. KIRBY J: You don’t know what they say, you don’t know what, if anything, they told Federal Police, but whatever they told them you would have been interested in following it up in order to investigate the involvement of others, which may have demonstrated if they were involved [or] that you were not involved? APPELLANT: That’s correct but this changes the whole dynamics of the trial and I say this, that because here you have the Crown case relying on a person’s evidence, Mr Atkinson, who is allegedly acting with full and frank – and he is supposed to be giving evidence full and frank and he hasn’t said anything about these people – he hasn’t said anything about the people he supplied - - (T 16-17)

As I understand the appellants grounds of appeal, the appellant relies upon the fact that police knew of the identities of potential suppliers of the imported drugs and did not call them as witnesses in his case for him to cross-examine for the purpose of casting doubt upon the version of events given by Mr Atkinson by attacking his credibility as someone who gave ‘ full and frank ’ evidence to police immediately upon his arrest. Further, the appellant asserts that the failure of the prosecution or investigating officers to disclose that knowledge amounted to a breach of the prosecutor’s duties to disclose all relevant evidence to the defence. The allegation is that this failure amounted to an unfair trial or, in all of the circumstances, a miscarriage of justice.

Though it was put to the appellant several times in the course of submissions before this Court, he has not identified, with clarity, how this evidence of supply may have assisted him defend charges of importation . The jury were aware that they could only convict the appellant if they were satisfied of his involvement in the importation, beyond reasonable doubt, and that the real source of evidence of his involvement was the testimony of Mr Atkinson. They were also strongly warned that the evidence of Mr Atkinson was evidence of a kind that was likely to be unreliable. The trial judge gave an expanded direction to the jury that the evidence of Atkinson was unreliable because he was an accomplice and also because he was a ‘ self confessed drug dealer ’ for whom ‘ untruths ’ were ‘ part and parcel ’ of his lifestyle (SU 15). Nicholson DCJ warned the jury that the evidence of Atkinson could be ‘ easily concocted but very difficult to cross examine upon ’ (SU 15). The jury were also alerted to the fact that Mr Atkinson received a discount on his sentence for giving evidence against the appellant (a fact that distinguishes this case from Gray v The Queen [2001] HCA 65).

Though the appellant asserts that the directions, in this respect, were inadequate, I am of the opinion that they were adequate to drawing the jury’s attention to those aspects of Atkinson’s evidence that made it of a kind likely to be unreliable.

However, in this context, the jury’s verdict of guilty can only mean that they were satisfied that they could accept the evidence of Mr Atkinson regarding the appellant’s involvement in the importation and accepted him as a witness.

Further, the jury must have rejected the appellant as a witness. The appellant gave evidence that he had met Atkinson for the purpose of making inquiries into a pottery business he was about to undertake with Leo Jimenez. He said he met a man named Billy some time after arriving in Australia, but that it was a few weeks after his arrival, on approximately 26 August, that Mr Atkinson first produced cocaine and that Atkinson told the appellant about the connection between Atkinson, Billy, Phil and the cocaine (T 724). He gave evidence that Atkinson told him that Phil was a ‘chemist’ (T 735) and this was information he later passed on to the Federal Police. The only evidence the appellant gave with respect to Atkinson’s possession of cocaine was that Atkinson left a small bag of cocaine at the appellant’s apartment around 26 August. He denied the existence of a man named Martin and any involvement in, or knowledge of, a 5 litre cask of wine containing suspended cocaine. He denied that any of the money given to him was obtained by illegal means (T 751). He said that the money he exchanged for traveller’s cheques was money brought by him from the United States and exchanged for Australian currency at various times during his trip (T 773). He said in evidence that he did not know whether Jimenez and Atkinson were involved in drug transactions but did suspect it at the time of the trial (T 816). He denied that he had ever been to Atkinson’s home in Whale Beach but said that he had been to Atkinson’s office once (T 817). He said that he did not participate in the ‘ washing ’ of the cocaine but had simply described the process to Jimenez based on something said to him by Atkinson (T 818). He said that Atkinson told him that Phil was responsible for importing drugs into Australia and that Atkinson would buy it from Billy (T 818).

It is unclear how the appellant could have further advanced his case that Billy and Phil were responsible for the importation of drugs (and hence, his non-involvement) by cross examining Atkinson or these men on Atkinson’s statement at committal that he supplied imported drugs to Billy and Phil. It was clearly the appellant’s case that Billy and Phil were involved in the importation and he was not.

I find it difficult to see how evidence of Atkinson’s alleged failure to assist police in investigations into the supply of the prohibited imports (an issue potentially beyond the jurisdiction of the Federal Police in any event) would have ‘tilted the balance’ for the jury and meant that they would reject Atkinson as a witness entirely. In other words, I do not think that the alleged failure of the prosecution (an allegation I am not certain can be maintained) to provide the appellant with the allegedly relevant evidence (though I doubt that such evidence had any relevance to the issues for the jury to determine) meant that the appellant lost a fair chance at acquittal. I would reject this ground of appeal.

The appellant also alleges prosecutorial misconduct in the failure to particularise that the Crown would rely upon a souvenir photograph of the appellant and another man as identifying the man known as Martin. The appellant gave evidence at trial that the man was a stranger he had met in the elevators at Centrepoint Tower and with whom he had lunch. (T 719).

The Crown tendered the photograph after the defence cross-examined Mr Atkinson about it. The evidence, adduced in re-examination, that the other person in the photograph was Martin, may have come as a surprise to the appellant – indeed, the Crown could not explain before us why it took until re-examination to adduce such evidence - however I do not think the prejudice, if any, was substantially unfair to the appellant in the sense that the jury would not use the evidence in a logical or rational manner: see Festa v The Queen (2001) 208 CLR 593.

Similarly, I do not think that this amounted to any kind of misconduct or disingenuousness on the part of the prosecution. I do not understand why it took until re-examination to adduce the evidence but, in my opinion, the suggestion that the evidence was concealed or kept from the appellant cannot be supported. The photograph was served upon the appellant and his legal counsel in the brief of evidence. The defence knew that it may be used at trial. Further, in argument before the trial judge on the appellant’s application to sever the charges on the indictment for separate trials, he and his legal advisers were clearly put on notice that the Crown case was that it was thought the other person in the photograph was Martin. In these circumstances I think this ground of appeal should also be rejected.

In all of the circumstances, having considered the submissions of the appellant and reviewed the transcript of the trial, I propose that the appellant’s appeal against his conviction be dismissed. The sentences

In my opinion, the remarks on sentencing of Nicholson DCJ were circumspect and balanced. This was a serious case about the importation of an illegal substance. The trial judge was satisfied that the appellant was knowingly concerned in the importation of cocaine and involved in the refinement of the imported cocaine once imported into the country. His Honour said: I am satisfied that the offender and Jemenez were both knowingly concerned in the importation of cocaine prior to its arrival per Martin and that the offender’s own arrival in Australia was, so far as this offence is concerned, to meet Atkinson, as associate of Jemenez, and to oversee the refinement of the cocaine into powder form from its suspension in liquid. (ROS at 9)

In considering the objective gravity of the importation offence, his Honour said: First, while he is not to be punished for criminality pre-dating 11 August, his criminality whilst actually in Australia is to be assessed against the proposition that it was part of a continuing exercise where his involvement pre-dated its arrival in Australia. His pre-Sydney involvement gives insight into his role in the importation. His conduct whilst in Sydney is consistent with that role. I cannot be satisfied beyond reasonable doubt that he is the initiator of this importation nor that he financed or contributed to the finance of the importation but I am satisfied he was certainly the representative of the principal or principals in Australia. I am satisfied in particular that he was taking care of the interests of at least Jemenez, whom I regard as a principal or one of the principals. I am satisfied that the offender knew who the principal was or the principals were. It is clear the offender was sufficiently senior in the hierarchy to expect to share in the proceeds of the importation. (ROS at 15-16)

Nicholson DCJ also noted that the amount refined would exceed the trafficable amount of prohibited drug by between 700 to 900 times.

In relation to the conspiracy charge, however, his Honour came to a different view of the objective gravity of the offence: Although I am suspicious, I cannot be satisfied beyond reasonable doubt the offender is a principal. His enrichment of 40,000 may well be because he was in Australia taking care of matters for Jemenez. Apart from the 3,000 contributed by him to cover the cost of the courier, I can find no evidence that he contributed to any of, as distinct from being aware of, the $60,000 supplied by Ott to Lopez. (ROS at 14)

His Honour doubted whether the appellant’s plea of guilty to the conspiracy offence expressed contrition (ROS at 24) though some weight to the utilitarian value of that plea was considered appropriate (ROS at 25).

In relation to the money laundering charge his Honour noted: The purpose behind the money laundering was to take the profits from that illegal trafficking and deliver it into the hands of those responsible for sending the cocaine here in the first place… Money laundering must also be understood in the context of a crime against the economic good of the community. The introduction of cocaine into our community can hardly be said to contribute to the productivity of the nation. However, the money paid for the cocaine and then laundered overseas represents wealth being taken out of the economic cycle, without corresponding economic gain coming into the community. Money laundering as a consequence of drug importation causes a double illness. The drugs are a source of major harm to individuals while the money laundering is a diminution of the community’s wealth. (ROS at 16-17)

The close connection, observed by Nicholson DCJ, between the appellant’s involvement in both the importation and the money laundering explains why he made those two sentences wholly concurrent.

The sentences imposed were expressed as follows: · Importation: 16 years adjusted downwards to 10 years; · Money laundering: 7 years adjusted to 4 years; · Conspiracy: 12 years adjusted to 6 years and 9 months.

These adjustments seems to have been based on a two stage process of discounting in accordance with s 16G and then performing a separate downward adjustment to represent assistance to authorities.

The overall sentence structure imposed by Nicholson DCJ began at 24 years, adjusted downwards (pursuant to s 16G of the Crimes Act for the absence of remissions in NSW) to 16 years and further discounted to 13.5 years based on assistance offered by the appellant to Federal Police (representing a discount of 15 per cent). Crown appeal

The Crown submitted that the head sentence of 10 years for the importation was manifestly inadequate in respect of a person: (i) found to have exhibited ‘ substantial criminality ’; (ii) representative of principals in an importation of between 1.5 and 1.8 kilograms of cocaine; (iii) who has not received a discount for a plea of guilty; (iv) who was not found to have demonstrated contrition; (v) who was found to have attempted to minimise his true role in the importation; (vi) who had committed the offence only months after his release from imprisonment served for a similar offence; and (vii) whose assistance to authorities was of little to no value.

The Crown does not challenge the findings of fact made by his Honour, or, as I understand the Crown submissions, the sentence imposed for the money laundering offence. However, the Crown submits that, in all of the circumstances, the sentence imposed for the importation offence, and overall, was manifestly inadequate.

Further, the Crown submits that the trial judge was in error to hold that there was no parity between the appellant and Mr Atkinson. Nicholson DCJ held that the criminality of the appellant and Mr Atkinson was ‘ significantly different ’. His Honour said: The evidence in this trial does not point to him [i.e. Atkinson] being criminally involved in the second count, that is, the conspiracy, although it is clear that he was to play a role similar to the role he played in the August importation. That role of course never eventuated. His criminal history differs from that of the offender. He level of co-operation with both the investigating and prosecuting authorities distinguish him from this offender’s. (ROS at 30). In my opinion, this was correct. There is no clear or demonstrable inconsistency in these sentences.

Atkinson was sentenced in the District Court for charges of possession and supply of cocaine to 7.5 years with a non parole period of 4.5 years for the supply charge, and to a fixed term of 4.5 years for the supply offence. This Court reduced the first term to 6 years with a non parole period of 3 years and 9 months to reflect greater weight for assistance to authorities. However, this Court also increased the second sentence to 7 years and 6 months with a non parole period of 3 years and 9 months.

Atkinson was charged with significantly different offences under a different sentencing regime. In those circumstances it was open to the trial judge to sentence the appellant without regard to parity between Mr Atkinson and the appellant.

The Crown does not point to any further specified error in the sentence but relies upon the principle concerning discretionary judgments stated in House v The King (1936) 55 CLR 499 to assert that the sentences were manifestly inadequate. In all of the circumstances I do not think that the sentences imposed upon the appellant were out of the permissible range. Even if I am wrong about that finding, I do not think there is a sufficiently compelling reason, in the exercise of discretion for Crown appeals against sentence, to adjust the sentences. There is no clearly identifiable point of principle to correct and nor, in my opinion, is the public interest in limiting Crown appeals outweighed by the public interest in having appropriately proportionate sentences imposed. I would dismiss the Crown appeal against the alleged inadequacy of the sentences.

This appeal was heard on 28 November 2003 and judgment was reserved. On 4 December 2003 an affidavit, sworn on that date, was filed by the appellant, Mr Gutierrez. On 9 December 2003, the Registrar of the Court of Appeal advised the Commonwealth DPP that such evidence had been filed in the Court and the DPP duly advised by letter of 10 December 2003 that the prosecution had no objections to the memorandum being delivered to the Bench in the terms which had been proposed by the Registrar. However, the same letter from the DPP indicated factual differences and alleged that a number of assertions made by the appellant are simply “incorrect”. For example there was an allegation that the DPP had not provided copies of the affidavit of a federal agent to the Court, whereas it is asserted that such copies were filed with the Court. Also, it was contested by a written submission on the part of the DPP as to whether a letter of assistance by a federal agent conceded that “Martin” did not exist.

In all of the circumstances, I would take the view that the Court is not assisted by this ex post facto controversy having regard to the conclusion that I have come to, that both appeals (Crown and defence) should be dismissed and that the findings of the trial judge should be affirmed. Thus, it seems to me that it is unnecessary to go into either questions of admissibility or utility of the various matters agitated in the affidavit filed by the appellant. I have had regard to that material but have not found it of any substantial assistance in reviewing or reaching the conclusions to which I have otherwise come. Orders

The orders I propose are: (1) Appellant’s appeal against conviction dismissed; (2) Leave granted on Appellant’s application to appeal against severity of sentence but appeal dismissed. (3) Crown appeal also dismissed.