SUPREME COURT OF QUEENSLAND

[1]  JERRARD JA:  I respectfully agree with the reasons of Holmes JA and with the orders proposed by her Honour. 

[2]  KEANE JA:  I agree with the reasons of Holmes JA and with the orders proposed by her Honour. 

[3]  HOLMES JA: The applicant seeks leave to appeal against sentence and an extension of time in which to appeal against conviction, notwithstanding that he was sentenced on a plea of guilty. His argument on the latter application, put very shortly, was that the charge was not properly explained to him and, without an interpreter to assist him, he had not understood to what he was pleading guilty.

[4] On 13 February 2006, the applicant pleaded guilty to one count: that between 31 December 2000 and 18 July 2001 he was knowingly concerned in importing prohibited imports consisting of a trafficable quantity of methylamphetamine and a commercial quantity of 3, 4- methylenedioxymethamphetamine (ecstasy).  The case had been set down for trial and the plea came on its first day.  Defence counsel, Mr Hunter, asked that the further hearing of the sentence be adjourned to enable a Mandarin interpreter to be made available.  He explained that his client’s written English was good, but his spoken English and understanding of it not as good, so he wished an interpreter to be present for the sentencing.  The learned sentencing judge acceded to that request, and the sentence proceeded two days later.

[5] The Crown case against the applicant on sentence was put in the form of a statement of facts, which was made an exhibit, with further submissions made orally.  Its effect was that two Malaysian nationals named Khoo and Kwek were apprehended in a boat at Mooloolaba with 413 kilograms of drugs, comprised of about one and a half kilograms of ecstasy tablets, which were 0.616 kilograms pure (the commercial quantity being half a kilogram); 259.2 kilograms of methylamphetamine tablets which were 26.2 kilograms pure; and 152.25 kilograms of methylamphetamine crystal, 123.17 kilograms pure.  The Crown put the street value of the drugs at some $125 million. 

[6] The evidence against the applicant came largely from the co-accused, Kwek and Khoo. The Crown alleged that the applicant, using the false name Peter Lu, had assisted Khoo and Kwek on their arrival in Australia, advising them to rent a motel room in the first instance, subsequently paying a bond and advance rent on a unit, and helping them to buy a four wheel drive vehicle. At his instigation Kwek opened a bank account into which he deposited their expenses.  The three drove together to Airlie Beach, where the applicant conducted negotiations to buy a yacht, “Sunseeker II” on which he taught Khoo and Kwek to sail.  It seems that in that process they ran the boat aground. 

[7] The Crown put before this Court the statement of a customs officer who boarded the yacht to talk to the three about the grounding.  According to her statement, the applicant produced a driver’s licence in the name of Zhong Liang Lu and identified himself as Peter Lu.  He said that he and Khoo were learning to sail the yacht, and that Khoo was going to help him to sail it to Sydney. The customs officer’s notes record a series of questions and answers, none of which exhibit any difficulty with the English language.  The applicant completed a marine incident report which is in evidence. It seems to exhibit an excellent standard of comprehension, providing answers to questions about the nature of the incident, the damage done, the type of boat, the weather and water conditions, with a detailed handwritten account in English, not quite a page long, of how the grounding occurred.

[8] On the Crown case, the applicant assisted Khoo and Kwek to sail the yacht south to Gladstone where he left them to continue to Bundaberg.  He later gave them instructions to sail to a location where they were to collect five or six bags with drugs.  They attempted the venture but, not surprisingly given their inexperience, ran into trouble and were unable to restart the boat’s engine.  They telephoned the applicant by satellite phone.  He could only suggest that they use the yacht’s sails, which they could not manage.  They were rescued after running aground and taken to Gladstone from where they rang the applicant again and he told them to return to the Gold Coast.  Shortly after, he visited and told them to wait for instructions again. 

[9] Once more the applicant negotiated to buy a yacht; this one was named “Zen”.  A statement from the vendor describes him as having an excellent command of English.  The applicant asked Khoo to open a bank account into which the purchase money could be paid.  He also gave Khoo instructions to make cash withdrawals totalling $58,100, which the latter handed over to him.  The episode of giving instructions for drug collection was repeated.  He gave Khoo and Kwek the co-ordinates of a rendezvous point at which drugs were to be transferred; half of a $50 note was to be produced for identification. On this occasion the pickup was successful. 

[10]  Khoo telephoned the applicant to complain about the number of bags of drugs (21) they had received.  Apparently they had not expected so many.  The applicant told them to bring the bags back to land and later told them to take them to the Gold Coast unit where they would be contacted.  (On each occasion when the drugs were actually brought into the country, the applicant was in Hong Kong for the relevant period.)  Khoo and Kwek were arrested. While they were in custody they took part in telephone conversations with the applicant, transcripts of which were placed before this Court. Of particular interest is a conversation in which the applicant asks “How’s the stuff? …. the stuff in the boat”.  Khoo says that he has hidden three bags of the stuff, and the applicant expresses no surprise.  He speaks also of mistrust and arguments among the “bosses”.  In another conversation with Kwek, the applicant again asks about “the stuff in the boat in Mooloolaba”. 

The case put for the applicant at sentence

[11]  Lengthy submissions were put on the applicant’s behalf.  The Court was told that he had come to Australia in 1988 at the age of 20, obtained Australian citizenship in 1997 and had studied English. The central submission made was that his sentence should be the same as that for Khoo and Kwek on the basis that he was at no different level from them in the hierarchy which had arranged the importation; he had played a different role from them because he had local knowledge and could speak English.  That was why it was he who facilitated payment of money and other negotiations in relation to purchases of boat and car and rental accommodation.  He had passed on information from Hong Kong such as the co-ordinates for the rendezvous.  His benefit, it was claimed, was limited to $20,000. 

[12]  Mr Hunter emphasised that the 21 bags of drugs was far more than the amount contemplated.  From the transcript, it appears that after making that submission, he asked the judge to excuse him and then said “He’s just asked me to reinforce the submission that I was instructed to make a moment ago”. Giving evidence here, Mr Hunter said that he could not recollect precisely how that had come about; but the instruction had come from the applicant either directly or through the instructing solicitor, Ms Healy.  The applicant, on the other hand, said from the bar table that he did not recall that happening.

The sentence imposed

[13]  The Crown submitted that the head sentence of 14 years imposed on Khoo and Kwek ought to be treated as the benchmark for the applicant’s head sentence. That sentence itself had been affected by the requirement of s 16G of the Crimes Act 1914 (Cth), which was in force at the time it was imposed; it required that where no remissions were applicable, the court reduce the head sentence correspondingly.  That was the case at the relevant time, so what would have otherwise been a head sentence of 21 years was reduced by a third to a sentence of 14 years’ imprisonment.  The non-parole period for Kwek and Khoo was fixed at eight and a half years, the level appropriate as against a 21 year sentence.

[14]  In sentencing the applicant, Douglas J adopted the 14 year head sentence, but noted these points of difference from the cases of Khoo and Kwek:  they had entered an early plea of guilty whereas the applicant had pleaded guilty only on the first day of trial;  they had done their best to co-operate, identifying the applicant;  they had faced the hardship of imprisonment far from their homes and families in Malaysia in an unfamiliar country where they did not speak the language, whereas the applicant had a child and former wife in Australia who visited him from time to time, although his elderly father was still in China.  His Honour also concluded that the applicant was in fact to some extent above Khoo and Kwek in the hierarchy, co-ordinating their activities and facilitating their operations because of their lack of sophistication.  His Honour said that he recognised the plea of guilty, however, by imposing the same head sentence of imprisonment of 14 years, but he fixed a non-parole period of 10 years because the applicant’s co-operation was less than that of Khoo and Kwek.  He declared a period of 727 days as time already served under the sentence.

The applications and proposed appeal

[15]  On 17 February 2006, the applicant, through his solicitors, lodged an appeal against sentence on the ground that the sentence was manifestly excessive.  On 21 May 2006 the applicant in person lodged an application for extension of time within which to appeal against conviction.  In his application he says that he found out only on 15 May 2006, when he had the assistance of a Mandarin interpreter to discuss his appeal options, that his appeal was not against conviction as well as sentence; and he says it would be a miscarriage of justice if he were not allowed to appeal against his conviction. 

[16]  The applicant has put the basis of the proposed appeal before this Court in a number of handwritten documents. There seem to be two basic contentions, somewhat contradictory, in his proposed notice of appeal. He says that he did not understand what he was doing when he entered a guilty plea; his plea was supposed to have been not guilty.  There was no interpreter present on 13 February when he entered his plea. In his most recent written submission, he says that he did not hear the words “importation” “prohibited drugs” or “methylamphetamine” when he was arraigned. But his second ground in the proposed notice of appeal is that he entered the plea of guilty on the advice of his lawyers, even though he had told them that he did not know that persons he had trained to sail were involved in the importation of drugs. 

[17]  In his various submissions, the applicant says that he pleaded guilty believing that he was involved in something illegal, without appreciating that it had to do with drugs.  The real Mr Lu had paid him to help teach Khoo and Kwek to sail and help them, to pass on some money to them and to purchase the Zen.  When he enquired about “the stuff” in the telephone conversations after Khoo and Kwek were arrested, he was simply following Mr Lu’s instructions; no-one had ever mentioned drugs to him.

[18]  In an affidavit sworn on 29 June 2006 the applicant said that he had spoken to the barrister who appeared for him on sentence only twice, once at the gaol and once at court; on the second occasion it was for less than five minutes and without an interpreter.  He told his barrister, Mr Hunter, what his previous barrister had explained to him about the charge. That advice is set out in another handwritten document: that if he had no knowledge that drugs were involved, he was not guilty but if he believed that it was drugs, without actual knowledge, he would be guilty. Mr Hunter had told him to forget about that barrister and said words to the effect of “Do you want me to represent you or not?”  His complaints, the applicant says, are that the charge was not explained to him, he was given too little time to discuss the case and the plea and no interpreter was arranged for him, despite his requests.

[19]  In his most recent submission, the applicant says that he now has legal advice that if he were reckless as to the importation of drugs, he ought to be acquitted, because recklessness only became an offence in 2003. This is possibly a reference to s 5.4 of the Criminal Code 1995 (Cth); if so, it rather overlooks the fact that before the Code’s enactment, “a combination of suspicious circumstances and failure to make inquiry [could] sustain an inference of knowledge of the actual or likely existence of the relevant matter”[1]; what may, in shorthand form, be called “wilful blindness.”

The evidence of the applicant’s former legal representatives

[20]  Both Ms Simone Healy, the applicant’s former solicitor, and Mr Hunter swore affidavits as to their dealings with the applicant and were cross-examined. Ms Healy’s first affidavit annexed a copy of signed written instructions obtained from the applicant before he entered his guilty plea.  In them he acknowledges the charge and says that he has read the police brief of evidence and transcripts of the committal hearing and has provided extensive written instructions.  He sets out his barrister’s advice (expressed in forthright terms): that his prospects of defending the charge were extremely poor, and that if convicted after a trial he could expect a head sentence of around 20 years’ imprisonment with a non-parole period of up to 15 years.  While maintaining that he did not know that drugs were to be brought into Australia, the applicant goes on in those instructions to say that he wishes to accept the prosecution case and enter a plea of guilty.  In the balance of the instructions he says that he has not been promised anything or threatened and that there is no certainty of any given sentence being imposed. In an affidavit sworn for the purpose of this application, however, the applicant says that he did not completely understand the document.

[21]  Ms Healy, in the second of her affidavits, details a conversation she had with the applicant at the gaol in September 2005 in which he told her that he had changed previous instructions to plead guilty because he had not understood that the charge entailed knowledge that the importation of amphetamine and ecstasy was occurring.  She found him able to communicate in English and he provided her with voluminous amounts of instructions in English which included the explanation that he had earlier pleaded guilty without exactly understanding what the charge was.  That explanation, as set out in the applicant’s handwritten instructions, distinguishes between different mental states: knowledge, belief short of knowledge and ignorance of drugs being involved.

[22]  Ms Healy describes a later conference with Mr Hunter, in which the applicant was advised that his prospects of success on a trial were slender, and similar advice given on the day of the applicant’s plea. On that day, she says, the applicant asked Mr Hunter if he could plead guilty on the basis that he was unaware the importation was of drugs, and was advised that he could not; that if he pleaded guilty it would be on the basis of accepting knowledge.  The applicant subsequently said he wanted to plead guilty.  Mr Hunter had repeatedly asked him if he understood what he was saying and the applicant replied in the affirmative.  The applicant had carefully read through each page of the instructions and signed them.

[23]  Cross-examination of Ms Healy was chiefly directed to whether the applicant had asked for an interpreter.  Ms Healy’s recollection was that it was her idea: she had thought that the sentence would run more easily with an interpreter because court procedure could be confusing; but in her dealings with him, she was satisfied the applicant understood what was going on.

[24]  Mr Hunter gave in his affidavit his recollection of the conference at the gaol, which largely involved the applicant recounting his version of events.  The applicant’s spoken English was not as good as his written English, but he had no difficulty in making himself understood.  He, Mr Hunter, did not explain the charge, but it seemed obvious from the conversation that the applicant understood it was alleged that he was knowingly involved in the importation of drugs; he maintained that he did not know that drugs were involved.  In that conversation, the applicant said that he did not know what the “stuff” referred to in the intercepted telephone calls was; he had made that inquiry on instructions from the real Mr Lu.  Mr Hunter says he told the applicant his version of events sounded unlikely and explained the consequences in terms of sentence on an unsuccessful plea of not guilty, as opposed to a plea of guilty.

[25]  In the conference held at the court on the day of the arraignment, Mr Hunter says, he advised the applicant more strongly that the jury would not believe his account and that his conviction was inevitable.  The applicant did not ask for an interpreter, but indicated a willingness to enter a plea of guilty in order to minimise his sentence.  Mr Hunter denies that he told the applicant to forget about his previous counsel’s advice or said the words “Do you want me to represent you or not?”  The applicant appeared to read the instructions and sign them.  There was an interpreter at the sentence the next day.  The applicant did not indicate that there was anything mistaken about his plea of guilty, although he did tell Mr Hunter that he had intended to apply for leave to appeal against the sentence.  In cross-examination, Mr Hunter said that the applicant had not asked Ms Healy in his presence to arrange an interpreter.

Conclusions

[26]  I do not accept the applicant’s basic contention that he had any difficulty in understanding the charge to which he pleaded guilty.  There is no reason not to accept the evidence of Ms Healy and Mr Hunter, which indicates that he understood the issues involved.  Even if there were some potential for confusion in speech, his written English as is evident from the many documents before the Court, is of an extremely high standard, much higher than that of most applicants in criminal matters in this Court.  It is impossible to believe he did not understand the written instructions provided to Ms Healy and Mr Hunter.  Other material produced by him makes it clear that he appreciated the different mental states amounting to knowledge which might underlie the offence.

[27]  In Meissner v The Queen[2], Justices Brennan, Toohey and McHugh said this:

“A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea.  There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.” [citation omitted]

That is not to say that the absence of a consciousness of guilt is irrelevant to whether there has been a miscarriage of justice.[3]

[28]  The evidence here, in my view, demonstrates convincingly that the applicant understood the nature of the charge and intended to plead guilty. Everything points to a free and informed decision to make that plea.  And, indeed, the evidence strongly suggests that he was deeply involved in the offence to which he pleaded guilty.  He should not now be given leave to appeal against a conviction based on his decision to enter that plea.

[29]  As to sentence, the applicant’s submission was, in essence, that he should have been given a lighter sentence than Khoo and Kwek because he did not know that drugs were involved.  For the reasons I have given, that submission has no merit.  The applicant was probably fortunate in being sentenced on the basis that his culpability was not so much greater than Khoo’s and Kwek’s as to warrant a different head sentence. The non-parole period of 10 years was justifiably greater than theirs, because of the absence of co-operation and the late plea of guilty. Lengthy terms of imprisonment have consistently been imposed by courts in this state for major organised importations.[4] Given the proportions of this importation in terms of organisation and investment and actual drugs involved, the sentence imposed here was not outside the range demonstrated by those and other sentences which did not proceed to appeal.

[30]  I would dismiss both the application for leave to appeal against sentence and the application for an extension of time to appeal against conviction.