[2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1
[2010] NSWCCA 194
Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573
[2015] NSWCCA 208
Hili v R
Jones v R (2010) 242 CLR 520
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1[2010] NSWCCA 194
Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573[2015] NSWCCA 208
Hili v RJones v R (2010) 242 CLR 520[2010] HCA 45
House v The King (1936) 55 CLR 499[1936] HCA 40
Kuti v R [2012] NSWCCA 43
Liu v R [2005] NSWCCA 450
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Ng v R (Cth) [2010] NSWCCA 232
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57
R v Aaron TranR v Peter TranR v Hoang Nguyen 233 A Crim R 167[2011] NSWCCA 65
R v Karan [2013] NSWCCA 53
R v Olbrich (1999) 199 CLR 270[1999] HCA 54
R v Otto (2005) 157 A Crim R 525[2005] NSWCCA 333
R v Qutami [2001] NSWCCA 353(2001) 127 A Crim R 369
R v Riddell (2009) 194 A Crim R 524
Judgment (7 paragraphs)
[1]
The Applicant's Case
The applicant did not give evidence.
He relied upon a psychological report from Bradley Jones, dated 1 August 2018. On the basis of the applicant's account of himself, Mr Jones regarded him as having a cocaine use disorder, in remission due to his incarceration. The applicant conceded that the agreed statement of facts was "relatively accurate". He claimed that his involvement in the Federal offence was to collect the parcel and take it to his home, where it was to be collected by another - unnamed - individual. He said that he had become involved in the enterprise to pay off a drug debt standing at some $40,000 to $50,000, a debt accrued through his $2,000 per day cocaine habit.
The applicant told Mr Jones that he had the firearm to protect himself against those to whom he owed the drug debt.
When asked about his feelings about his offence he said "It's fucked up what I did". He said that he regarded gaol as "like rehab", and noted that he was "doing a drug programme one on one with a psychologist".
Mr Jones took a personal history from the applicant, observing that he was [then] aged 24 years of age, and was one of three children to loving and supportive parents. The applicant maintained a close relationship with his parents and siblings, and additionally had a supportive long-term partner, who was at the time pregnant with the couple's child.
The applicant had a happy childhood, attending school until Year 10, after which he entered the workforce, undertaking a number of unskilled jobs.
He told Mr Jones that he began smoking cannabis at the age of 16 years in a social context, but substituted cocaine for cannabis a year later, continuing to use cocaine weekly, and then daily, thereafter. He claimed to have been using 3 grams of cocaine daily at the time of his arrest. The applicant said that gaol had been good for him, as he had stopped using drugs, and was physically well. He indicated a wish to continue with some form of drug rehabilitation treatment in the future.
Mr Jones recorded that the applicant felt ashamed and regretful of his offending.
A second report from Mr Jones, prepared on 29 April 2019, confirmed that - on the basis of the history taken from the applicant - he had completed drug treatment courses in custody, and continued to be abstinent from drugs.
The applicant reported that his partner had suffered a miscarriage. He hoped that they could be married upon his release from custody, and stated that his brother intended to employ him in a smash repair business in Melbourne.
Mr Jones assessed the applicant as at "low-moderate risk" of re-offending.
In a letter to the sentencing court the applicant said that he had made a mistake and had learnt from it. He apologised for what he had done and said that he was "asking for a second chance". He continued:
"Im [sic] willing to be free & help my family & partner to have a good life and away from bad things. I've been doing all my rehab to become a better person and so far its [sic] going well. I'm here to ask for a second chance […]".
In an affidavit of 1 May 2019 the applicant's father told the sentencing court that he had noticed a change in the applicant after he had lost a job as a spray-painter. He had become withdrawn, and was associating with a new group of friends. Mr Awraham said that following his arrest, the applicant had "calmed down", and was "less erratic" than he had been. His son had apologised for what he had done and the impact it had had on his family.
A document from Parklea Correctional Centre confirmed that the applicant had attended five "Remand Addictions" sessions (as at 29 October 2018), and engaged well with the group, being keen to attend further programmes. Justice Health confirmed that the applicant had regularly seen a Drug and Alcohol Counsellor at the Long Bay complex for assistance with drug rehabilitation. The author regarded him as a suitable candidate for a residential rehabilitation programme. A TAFE Statement of Attainment certified that the applicant had completed training in work and safety procedures, and in the safe movement of goods.
[2]
The Submissions of the Parties
The Crown submitted that the applicant was a "key player" in the Federal offending, with the evidence pointing to the applicant as the "intended final recipient" of the consignment, given that he had sliced open the boxes and removed the bags of cocaine. It was noted that the applicant was distanced from the riskier roles of receiving and transporting the consignment, taking possession of it only after the chance of detection might be regarded as reduced. He was more than a courier or "passive receiver", although his precise role could not be determined. The applicant was plainly aware of the weight of the consignment, and of the location of its secret cargo, some 2.152 kilograms of pure cocaine. His motivation was financial gain.
The applicant contended that the evidence did not support any conclusion as to the circumstances in which the consignment came into his possession that increased the gravity of the offence. He submitted that his involvement was limited to collecting the parcel and taking it to his home, where it was to be picked up by another. It was further argued that the applicant was not in a "managerial" or "decision-making" role, and nor was he part of an organised distribution network. His crime was one involving minimal planning, and his intention was only to discharge a drug debt. It was noted that no drugs were in fact disseminated into the community. He submitted that he was remorseful, and had successfully demonstrated rehabilitation such that principles of general and specific deterrence had lesser application.
[3]
The Remarks on Sentence
Sentence was imposed upon the applicant on 5 July 2019.
In his remarks on sentence, the sentencing judge found the facts of the offences to be as they had been agreed between the parties. He summarised the evidence placed before the court, and the submissions of the parties.
His Honour accepted that the applicant was neither a manager, nor an important decision-maker with respect to the consignment of cocaine, with a sufficient level of risk attaching to his role as to make it unlikely that he was a principal in the importation. Whilst his Honour could not determine the precise nature of the applicant's role, he concluded that the applicant was more than a "mere recruit", since he knew when and where the consignment was to be delivered, and had taken receipt of it, before unpacking it, and was "at least in the position of courier". This, his Honour concluded, distinguished the applicant's case from that of R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen 233 A Crim R 167; [2013] NSWCCA 136 ("Tran, Tran & Nguyen"), to which he had been referred as a comparator by the applicant.
The sentencing judge did not accept that general deterrence had no or a limited role to play in the sentencing exercise, noting that the principle was of particular significance. Specific deterrence too had a role to play in his Honour's conclusion, as did the protection of the community.
The sentencing judge found that the Federal offence was one that fell within the "low midrange" of objective gravity for an offence of its type.
Some level of accumulation between the State and Federal offences was held to be necessary.
The early pleas of guilty attracted a full discount on sentence, of 25% for the State offences and in the same order for the Federal offence. His Honour accepted that the applicant had "expressed some remorse, albeit broad and limited". He was satisfied that inroads had been made by the applicant into his rehabilitation. Noting that the applicant's adult criminal history contained driving offences only, his Honour treated him as, "for all intents and purposes" a person with a "clean record". There was a finding of special circumstances, pursuant to s. 44 of the Crimes (Sentencing Procedure) Act with respect to the State offences, with the ratio of sentence 64% for those offences, and 67% for the Federal offence.
[4]
The Application to this Court
The only ground advanced by the applicant is:
"The sentence imposed for the Commonwealth offence of attempting to possess a commercial quantity of border controlled drug was manifestly excessive."
The applicant argues that, having regard to his Honour's conclusions as to his role in the attempt to possess the consignment of cocaine, and the subjective case before the sentencing court, the "starting point" for the sentence, absent the 25% discount, was one of 10 years imprisonment, with a pre-discount NPP of almost 6 years and 9 months. This is, he asserts, a sentence which is manifestly excessive.
The Court was referred to Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194 in which "similar comparable cases" were analysed. It was submitted that the range of non-parole periods in the cases there considered was in the range of 3 - 4 years and 6 months.
The Crown referred the Court to Wong v R [2018] NSWCCA 263 in which it was emphasised at [79] that the "starting point for considering whether a sentence is manifestly excessive (or inadequate) is the maximum penalty specified for the offence; here, life imprisonment". With a maximum penalty of that magnitude, it was held that sentencing courts are obliged to treat such crimes with considerable seriousness.
The Crown submits that the applicant was clearly aware of the consignment's delivery, destination and its contents and had unpacked it, supporting the conclusion of the sentencing court that his level of responsibility was "greater than a mere recruit who assisted in moving and unpacking the consignment".
The importance of general deterrence was highlighted, with the Crown submitting that there was nothing in the applicant's subjective case which warranted special consideration or invited any leniency on sentence.
[5]
Determination
The determination of the sentence to be imposed upon an offender is a discretionary matter. Where error in the exercise of the discretion is asserted, this Court can interfere if the appellant demonstrates that error of the type referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40, per Dixon, Evatt and McTiernan JJ, at 505 has occurred:
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, the High Court (per Gleeson CJ and Hayne J) said at [6]:
"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion."
In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J distilled those and other important principles applicable to a claim of manifest excess thus:
"443. When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
[6]
Endnotes
(2002) 202 CLR 321; [2000] HCA 54 at [6].
See, for example, Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27].
See, House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.
see, for example, Dinsdale v The Queen (2002) 202 CLR 321; [2000] HCA 54 at [6], [22].
R v Awraham [2019] NSWDC 341 at [107].
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [40], Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [13], [37]-[44].
Prosecutor's written submissions on sentence at [41]-[44] relying on R v Qutami [2001] NSWCCA 353 at [58]-[59]; (2001) 127 A Crim R 369, R v Elfar [2003] NSWCCA 358 and DAB v R [2010] NSWCCA 2745 at [21].
R v Awraham [2019] NSWDC 341 at [100].
R v Awraham [2019] NSWDC 341 at [100].
R v Awraham [2019] NSWDC 341 at [99].
R v Awraham [2019] NSWDC 341 at [49], [101], [107].
R v Awraham [2019] NSWDC 341 at [30].
R v Awraham [2019] NSWDC 341 at [33].
See the comments of Simpson J in DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [284], [303] - [304] cited with approval by the High Court in Hili v the Queen (2010) 242 CLR 520; [2010] HCA 45 at [54].
(2010) 79 NSWLR 1; [2010] NSWCCA 194.
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19].
R v Awraham [2019] NSWDC 341 at [67], [121].
See, for example, Liu v R [2005] NSWCCA 450 at [22], Dang v R [2013] NSWCCA 246 at [27], [29]-[30] and Cutajar v R [2020] NSWCCA 273 at [71].
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; (2015) 252 A Crim R 573 at [8], [61].
[7]
Amendments
09 October 2021 - Typographical amendment to [14] and [23].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 October 2021
appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: [2019] NSWDC 341
Date of Decision: 05 July 2019
Before: Weinstein SC DCJ
File Number(s): 2018/128463
Judgment
DAVIES J: I have had the considerable advantage of reading in draft the judgments of Hamill J and Wilson J.
My own examination of a number of cases, including Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; (2015) 252 A Crim R 573, Webber v R [2014] NSWCCA 111, Ng v R (Cth) [2010] NSWCCA 232, R v Karan [2013] NSWCCA 53 and R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen [2013] NSWCCA 136; (2013) 233 A Crim R 167, satisfies me that the sentence for the offence of attempting to possess a commercial quantity of a border controlled drug, whilst a stern one, was within the range of sentences available to the sentencing judge, having regard to his Honour's findings of objective seriousness, the role of the applicant, and the applicant's subjective case taken at its highest, notwithstanding that the applicant did not give evidence at the sentence proceedings.
I otherwise agree with the reasons of Wilson J and with the orders that her Honour proposes.
HAMILL J: I have had the considerable advantage of reading the draft judgment of Wilson J. Her Honour's comprehensive reasons relieve me of the need to repeat the careful analysis of the facts of the case, the findings of the sentencing Judge or the relevant legal principles. As her Honour points out at [75], by reference to what Gleeson CJ and Hayne J said in Dinsdale v The Queen [1] whether a sentence is manifestly excessive is a conclusion. I find myself in respectful disagreement with her Honour's conclusion. My conclusion is that the sentence imposed is, as the applicant submitted, manifestly excessive.
As Wilson J also observes, the comparative exercise undertaken by both parties at first instance and in this Court is one that must be undertaken carefully and with discernment. Once such care is taken, it can be informative. However, as her Honour also acknowledges, it is an exercise that has limitations. The fact that a sentence under review falls just within, or just outside of, an array of sentences imposed in other similar cases, is not determinative of the issue of whether a particular sentence is manifestly excessive or inadequate. When reference is made to the "range" of sentences, it is the range that may be appropriate in the individual case. As is often said, there is no single, correct sentence. [2] The outcomes in other "comparable" cases does not, and cannot, establish a range referable to an individual case.
The applicant did not contend that there is any patent error in Judge Weinstein's SC careful sentencing remarks. While Wilson J concludes the sentence imposed on the applicant is "a stern one that falls at the upper end of the available range that might properly be imposed" (at [77] and [107]), her Honour is not satisfied that error is established or that the sentence falls outside of the permissible range or that it represents a "substantial wrong". [3] I have reached a contrary conclusion albeit that I am guided by the same legal principles and have considered the same array of comparable cases. My conclusion is that the sentence falls outside of the permissible range, even allowing for the wide discretion residing in the sentencing Judge, and that the sentence is "plainly" wrong, unreasonable or unjust. [4]
Bearing those principles firmly in mind, and noting the test of a "substantial wrong" referred to in House v The King, although I regard the sentence imposed upon the applicant as a stern one that falls at the upper end of the available range of sentences that might properly be imposed for an offence of this nature, I am not persuaded that there has been a failure on the part of the sentencing judge to properly exercise the discretion that reposed in him. Particularly when proper weight is afforded to the important guidepost provided by the maximum penalty specified by law - life imprisonment or a fine of 7,500 penalty units, or both, I am unable to conclude that "a substantial wrong" has occurred such as to determine that the sentence is manifestly excessive.
It is important to give full weight to the broad nature of the discretion his Honour was exercising, and to the availability of a range of sentences that could be legitimately imposed upon the applicant. Sentencing is not a mathematical exercise wherein a formula can be applied and a single correct outcome produced. The ultimate result of the exercise of the sentencing discretion is to some extent the product of a subjective exercise, albeit one that is undertaken within an objective, principled framework. The attribution of the weight given to particular features in an individual case might vary between judicial officers; it is the compliance with established principles of sentencing law that cannot. That approach allows for some difference in sentences which is not indicative of error.
The Court was referred to a number of decisions by which, it was submitted, the proper range of sentence available to be imposed upon an offender in the applicant's circumstances might be ascertained. Whilst a comparative exercise can be informative in that regard, it must be undertaken carefully, since there will often be as much dissimilarity between the case under review and others as there is similarity.
The case held up by the applicant at first instance as of most assistance is that of Tran; Tran; & Nguyen. In that case the charge was one of importing a commercial quantity of heroin, being 6.25 kilograms of pure heroin, in circumstances where the commercial quantity specified is 1.5 kilograms. Aaron Tran was sentenced to a term of 4 years and 6 months imprisonment, to be released on recognisance after serving 2 years and 9 months, conditioned that he be of good behaviour for 1 year and 9 months. Peter Tran was sentenced to 7 years and 6 months imprisonment with a NPP of 4 years and 6 months; Nguyen was sentenced to 9 years imprisonment with a NPP of 5 years and 6 months. The Crown appealed against the asserted inadequacy of the sentences imposed, arguing that the "plainly unjust" sentences pointed to some error having occurred.
The three respondents had taken possession of a consignment of four crates dispatched from Vietnam and marked as containing "statue, vase, and bathroom accessories". The consignment - which in fact contained an inert substance placed there by authorities after the detection and removal of the cargo of heroin - was delivered to Peter Tran's house, after which he and Aaron Tran moved it to Nguyen's house. When a search warrant was executed there the consignment was found, with inner partitioning that had concealed the illicit cargo removed, and the packets of inert substance separated from the rest of the crates' contents. A heat sealing device and two sets of electronic scales were also found. All three respondents were arrested. Each made full admissions.
Nguyen told police that he had been approached with an offer to make some "easy money" which he knew involved narcotics. He had been provided with mobile phones by a person he named only as "Anh" and, having enlisted Peter Tran to assist him, used them to make arrangements for the cargo to be delivered to Peter Tran's house. Nguyen asked Peter Tran to deliver the cargo to him and Tran and Aaron Tran brought it to him at his home and assisted him in unpacking it. He had intended to await further instructions from Anh. Nguyen said he had been offered a large amount of money.
Peter Tran admitted receiving the consignment, which was addressed to him, and taking it to Nguyen, remaining present when it was opened. Other evidence established that he had arranged to pay for the freight and duties, and had liaised with someone in Vietnam about the delivery, as well as keeping in touch with Nguyen. He signed for the delivery when it was brought to his house.
Aaron Tran acknowledged having assisted Peter Tran to move the crates into Tran's garage, and later take them to Nguyen's house. He said he helped to open the crates and, on seeing internal partitioning in the crates, suspected illegality.
The roles of Nguyen and Peter Tran were assessed as essential and important, whilst that of Aaron Tran was not critical to the success of the enterprise. The first two were both motivated by a desire for financial gain, with Nguyen expecting a large amount of money, and Peter Tran a fee of $10,000. The sentencing judge did not accept Aaron Tran's claim to have anticipated no reward or payment, although what he was to receive could not be determined. The respondents had all entered an early plea and received a full discount on sentence; each had a "clear" criminal history.
They were all young men of 20 years, who had a drug addiction, and were remorseful. All were assessed as having good prospects of rehabilitation. Peter Tran and Aaron Tran both additionally had a positive history of employment, and strong family support.
In considering the Crown's appeal Fullerton J (with whom Macfarlan JA and Adamson J agreed) reviewed the decisions of this Court in R v Otto (2005) 157 A Crim R 525; [2005] NSWCCA 333; Speer v R [2004] NSWCCA 118; R v Riddell (2009) 194 A Crim R 524; [2009] NSWCCA 96; Ng v R (Cth) [2010] NSWCCA 232; Youssef v R [2011] NSWCCA 104; Thong Nguyen v R [2012] NSWCCA 184; Seah v R [2011] NSWCCA 269; Kuti v R [2012] NSWCCA 43, and R v Holland (2011) 205 A Crim R 429; [2011] NSWCCA 65, as well as a number of unreported decisions of the District Court of NSW, the County Court of Victoria, and the Supreme Court of Queensland, imposing sentence at first instance.
Having reviewed those numerous decisions, Fullerton J concluded that, "whilst lenient, perhaps even very lenient" the sentences imposed upon the respondents was within the range of sentences involving the importation of commercial quantities of border controlled drugs.
Consideration of Tran, Tran & Nguyen, and of the sentencing decisions referred to therein, tends to suggest that the available sentencing range for an offence of attempting to possess a commercial quantity of a border controlled drug is a broad one. It also highlights the difficulties inherent in a comparative analysis, when no two cases are ever likely to be relevantly identical. That is only confirmed upon review of the other cases advanced to this Court as useful comparators.
In Director of Public Prosecutions (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208 this Court (constituted by Basten JA, Garling and Hamill JJ) heard an appeal brought by the Crown against a sentence of 8 years imprisonment with a NPP of 5 years that was imposed upon the respondent in the District Court after trial, for an offence of importing a commercial quantity of cocaine. The amount of the drug imported was 2.3 kilograms of pure cocaine, secreted inside a consignment of computer parts addressed to the respondent. Gow had travelled from his native country, Canada, to Australia, the sentencing judge found, to engage in the importation. Whilst he had "some autonomy" in the way he conducted himself in Australia, there was little to suggest his role was above that of "a trusted recipient and consignee". He was naïve and unsophisticated in the way he carried out his role, using his own driver's licence for identification for example. His role was "toward the lower end of the hierarchy" whilst not at the very lowest end. The respondent acted as he did for financial gain. His subjective case was unremarkable.
Basten JA (with whom Hamill J agreed; Garling J dissenting) accepted that the "sentence was markedly lenient and involved a marked disparity from at least some prior appellate court decisions". In reaching that conclusion his Honour reviewed a number of those decisions.
Webber v R [2014] NSWCCA 111, which involved a commercial quantity of cocaine in an amount close to that in Gow, attracted a sentence, after a discount of 25% for an early plea of guilty, of 11 years imprisonment with a NPP of 7 years. An appeal arguing that the sentence was manifestly excessive was rejected by this Court.
In Ng v R (Cth) [2010] NSWCCA 232 the sentence imposed after discount was one of 11 years and 3 months imprisonment with a NPP of 7 years and 3 months for the importation of a commercial quantity of heroin, being 2.445 kilograms, where the commercial quantity is 1.5 kilograms. An appeal against sentence by Ng was rejected.
R v Calis [2013] QCA 165 was a decision concerning the importation of 1.3kg of methamphetamine (commercial quantity 750 grams), where the sentence imposed after trial upon "a bare courier" was 10 years imprisonment with a NPP of 6 years. The offender's appeal against sentence was dismissed.
Whilst Basten JA had regard to De La Rosa and the review of sentencing decisions contained therein, his Honour did not find the classification into four categories of various sentences imposed for Federal offences to be particularly helpful. As his Honour observed, many offenders (and, I would suggest, the applicant) fall into the third or fourth groups identified in De La Rosa, of which McClellan CJ at CL said:
"[213] In this group the head sentences range from 8 years to 15 years, and non- parole periods start at 4 years and end at 11 years. A number of the sentences in this group involved pleas of guilty. The range of sentences represents a noticeable "step down" from the sentences in the previous group. A number of factors appear to explain this. First, the pure quantity of drugs imported is generally below 7kg. (Two obvious exceptions are R v Chalmers and NP: the former was a successful Crown appeal and the latter involved a very favourable subjective case for the offender.) Secondly, the offenders in this third group occupy mid-range roles between that of principal and courier. (The exception is Speer, which may have been placed within the fourth group had the offender's plea been entered at an early stage.) Finally, in this group, there are instances of assistance, sometimes significant, provided to the authorities (for example, Vasquez-Felipe, NP, Speer and R v W). These efforts attract discounts of up to 30%."
Although Basten JA concluded that the head sentence imposed in Gow was "lenient", his Honour observed that it was "not necessarily below an available range" (at [42]). Hamill J agreed with Basten JA. Garling J dissented, concluding that the sentence imposed in Gow was manifestly inadequate, and the Crown appeal should be allowed. Garling J observed that the range of sentence suggested by comparable cases was a head sentence in the order of 14 to 15 years, with a NPP of 7 to 10 years.
One of the decisions the Court was referred to was R v Karan [2013] NSWCCA 53, a co-offender of Gow. Like Gow, Karan was a Crown appeal against asserted inadequacy of the sentence imposed for an offence of aiding and abetting an attempt to possess a commercial quantity of cocaine, being a term of imprisonment for 3 years and 9 months, with a NPP of 2 years and 6 months. The respondent had been recruited to assist in collecting a consignment of 3.173 kilograms of cocaine secreted in boxes of household items dispatched by air from Canada. He recruited two others to assist him and they ultimately collected the consignment from a courier company. The respondent had expected to be paid $5,000 for his role in the importation.
Karan entered a late plea. He had a negligible and largely irrelevant criminal history, and had taken documented steps to address his drug and alcohol addiction following his arrest. He was contrite, and had assisted authorities to the extent of presenting himself at a police station to facilitate his arrest. His plea, contrition, and such assistance as he gave authorities was recognised at first instance by a discount on sentence in the order of 25%.
This Court (Adamson J, with whom Johnson and Harrison JJ agreed) concluded that the sentence imposed in the District Court was so manifestly inadequate that it must have involved error. It was observed that a term of 7 years imprisonment was "the minimum starting point" of sentence. On re-sentence, a term of 6 years imprisonment with a NPP of 4 years was imposed.
In R v Boimah [2017] QCA 50 the drug the appellant attempted to possess was methamphetamine in an amount of 791.9 grams, being 41.9 grams in excess of the commercial quantity. The drug was concealed inside a parcel sent by courier from Hong Kong. A person telephoned the courier and arranged for delivery to a particular address. At that address was the appellant, who said he was to take possession of the parcel for the consignee. He had a false passport in the name of the consignee, and a mobile phone with the service number that had been used as the consignee's telephone number. The appellant was 29, had no criminal history, and was motivated by profit. His appeal against a sentence of 8 years imprisonment with a NPP of 4 years was dismissed.
What can clearly be taken from Gow is that "there is a level of variation, perhaps an undesirable level of variation" in the sentences imposed for broadly comparable offending. In short, it will ordinarily be possible to find a decision or decisions in which the sentence(s) imposed will be less than the decision under consideration. That fact is not necessarily demonstrative of error; after all, it will be equally possible to find decisions where the sentences imposed were greater than that which is under review. The variation may signal no more than that consistency in sentencing "is not demonstrated by, and does not require, numerical equivalence": Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45, at [48].
In the present matter, the applicant was closely involved in an attempt to import 2.152 kilograms of pure cocaine. His role was "at least that of a courier", and above that of "a mere recruit". That assessment was well and truly open to the sentencing judge, given that the applicant was aware of when and to where the consignment would be delivered, and arrived at the delivery address, inferentially, to oversight what occurred after the package was delivered. He did not himself take the risk of collecting the consignment from the delivery address and transporting it across Sydney, with another person undertaking that role. Since the applicant sliced open only those boxes in which the cocaine had been found by the ABF, it seems clear that the applicant knew precisely where the drug should have been located. His removal of the inert drug substitute from the packaging clearly points to a role above that of a mere recruit.
He expected to gain significantly from the attempt to import the cargo, to the extent of discharging a drug debt of $40,000 to $50,000.
The subjective case was largely based upon the applicant's untested assertions, either to Mr Jones, or in his letter to the sentencing court. The applicant was not prepared to give evidence of his claims, or be cross-examined on his account. The only objective evidence clearly in his favour was that which attested to his attendance at five drug rehabilitation meetings in custody, and upon a psychologist for that purpose, on a regular basis. This was positive, but hardly the proof of completed rehabilitation that the applicant submitted to the sentencing judge that it was.
Although the applicant submitted that he fell within "category 4" of De La Rosa, he should in my view be placed in category 3, if there was any real utility in the exercise.
Rather than seek to assess whether the sentence imposed in the District Court was within the available range by reference to a category, it is more useful to have regard to the particular features of the offending and of the subjective case, and to the principles applied by the sentencing judge in determining the sentence imposed.
I can find no error in his Honour's approach, albeit that it produced a sentence that falls at the upper end of the available range for an offence of this nature, committed by an offender with the subjective case that applies here. I am not persuaded that there has been error.
Whilst I would grant leave to appeal, I propose that the appeal is dismissed.
As I perceive it, my reasons for reaching a contrary conclusion to that of Wilson J are essentially three-fold.
First, the 18-month accumulation of the sentence for the federal offence on the sentences imposed for the three state offences, resulted in a total sentence and, in particular, a non-parole period, that is disproportionate to the totality of the criminality involved in the offending taking into account the positive findings made by the sentencing Judge and evidence relating to the applicant's personal circumstances. In relation to the non-parole period, the sentencing Judge found there were "special circumstances" pursuant to s 44 of the Crime (Sentencing Procedure) Act 1999 (NSW), a finding that was only relevant to the state offences. His Honour explained his reasons as follows:
"Given the terms of s44(2) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period (which is imprisonment for 4 years for the s7(1) Firearms Act (NSW) offence) are the special circumstances that the offending was below the mid-range of objective seriousness and the subjective factors favouring the offender, including his age, his good behaviour as an adult relative to his juvenile history and his prospects of rehabilitation. He has demonstrated significant efforts at rehabilitating himself. He will require assistance to comply with any treatment program. My finding of special circumstances results in a ratio of 67% for the Commonwealth offence and 64% for the State offences." [5]
However, the adjustment made to the individual sentences was mostly lost as a result of the accumulation. The result was that the proportion between the total non-parole period (6 years, 6 months and 15 days) and the total sentence (9 years) was about 72.7%. While his Honour enunciated correctly the principles of totality and the factors relevant to questions of cumulation and concurrence, it is unclear that the sentencing Judge was alive to the impact of the accumulation on the total sentence and the proportion the non-parole period would bear to the total sentence. The result (72.7%) seems contrary to the intention to adjust the state sentences down from the so called "statutory norm" (75%) under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and in circumstances where there was no requirement that the Commonwealth non-parole period bear any particular proportion to the total sentence. [6] While there is no ground of appeal asserting specific error in this regard, it is a matter to be considered in determining whether the sentence under review is manifestly excessive.
Secondly, in reaching a conclusion about the issue of manifest excess, I take a different approach to certain mitigating features and the applicant's personal circumstances. Wilson J notes (at [104]) that the evidence tendered on the applicant's behalf was "untested". That evidence included a psychologist's report and a letter to the sentencing Judge written by the applicant. The applicant's father also swore an affidavit that was part of the applicant's bundle on sentence. Wilson J observes that "the applicant was not prepared to give evidence of his claims or be cross-examined on his account" and that his attendance at rehabilitation programmes in gaol "was positive, but hardly the proof of completed rehabilitation that the applicant submitted to the sentencing Judge that it was". The Prosecutor at first instance referred to well-known authorities regarding the caution with which an offender's "self-serving" statements should be treated. [7] However, no objection was taken to the material and, it seems, the psychologist was not required for cross-examination. The observations of Allsop P (as his Honour then was) in Devaney v R [2012] NSWCCA 285 at [88] are pertinent to the opinions expressed by the psychologist concerning the applicant's prospects of rehabilitation:
"It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional."
The sentencing Judge held "the objective evidence that [the applicant] has achieved abstinence whilst in custody … supports his statements to Mr Jones [the psychologist]". [8] His Honour also found the applicant "has made inroads into his eventual rehabilitation since his incarceration, which is much to his credit" and that "I have taken into account the prospects of his eventual rehabilitation as a mitigating factor." [9] The sentencing Judge also found that the offender had demonstrated "some insight into his offending behaviour" and "has expressed some remorse, albeit broad and limited". [10] These, and other passages of the judgment demonstrate that, while Judge Weinstein was cautious in dealing with the untested statements of the applicant (in his letter, in his history to Mr Jones and in his conversations with his father), his Honour accepted important aspects of them and made positive findings as a result of them. This acceptance no doubt resulted from the consistency between the three sources of evidence, the fact that parts of the evidence involve admissions contrary to the applicant's interests, and the fact that there was some independent support for the evidence of the applicant's rehabilitation.
There were other mitigating features, and positive aspects of the applicant's personal case, that derived from sources other than the applicant's own statements. The sentencing Judge took into account the applicant's youth and that "for all intents and purposes" he had a clean record, having only one other conviction for a driving offence. [11] His Honour referred to the evidence from the applicant's father of strong family support, including regular visits by him and the applicant's mother to Lithgow gaol, two hours from their home. The applicant's uncle had offered a business loan to the applicant and his partner to set up a beauty salon in Melbourne after the applicant's release from custody. [12] There was also evidence that the applicant had completed TAFE courses during his period on remand. [13] Those matters informed his Honour's positive finding as to the applicant's prospects of rehabilitation.
The third matter which I perceive leads me to a different conclusion to that reached by Wilson J concerns the application of past sentencing cases to the applicant's circumstances and criminality. Again, I find no fault with her Honour's legal analysis and stress, as does her Honour, that no individual past authority, or collection of authorities, can be determinative of the outcome of a particular sentencing appeal. [14]
Wilson J at [105] implicitly questions the utility of placing the applicant within one of the "categories" identified by McClellan CJ at CL in the case of DPP v De La Rosa [15] but expresses the view that, "if there was any real utility in the exercise", the applicant "should be placed in category 3". While I also doubt the utility of this exercise, I think the applicant's situation falls more easily into category 4. I mention this because the difference in our opinions on this issue may illuminate the reasons we have reached a different conclusion as to the ultimate outcome. The third category referred to by McClellan CJ at CL was said to "occupy mid-range roles between that of principal and courier" while the fourth category "occupy roles variously described as instigators, overseers, collectors and couriers". Of course, this attempt at categorisation "must not obscure the assessment of what the offender did". [16] Further, an individual offender may fit somewhere between the categories identified by McClellan CJ at CL.
The sentencing Judge found the applicant was "at least in the position of a courier" and more than a "mere recruit". [17] However, his precise role was unclear apart from the fact that he was aware when the package was delivered, took delivery of it and unpacked it. There was no suggestion that he was a principal or had any managerial responsibility. The applicant admitted (to the psychologist) that he was to gain financially from his involvement, but this was to finance "what he believed to be a drug debt of between $40,000 to $50,000". This debt arose from his $2,000 per day cocaine habit. An offender motivated purely by financial greed may be distinguished from the case of an offender who has allowed himself to be involved as a result of his addiction to drugs. [18] Although counsel at first instance conceded the applicant "intended to significantly profit from his possession of the drugs", the evidence did not seem to go so far as to establish that the applicant was to discharge the whole of his drug debt from the proceeds of his involvement in this enterprise.
Reference has been made to the Court's decision in Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; (2015) 252 A Crim R 573 ("Gow"). Basten JA (with whom I agreed) held at [42]:
"These and other cases referred to in Agboti tend to confirm that the head sentence imposed in the present case is lenient, though not necessarily below an available range, but that the non-parole period is within an appropriate range."
Gow was a case where the offender travelled from Canada for the sole purpose of engaging in the importation, had a degree of autonomy in spite of his lack of sophistication, and there was "a lack of any substantial mitigation". [19] He conducted an implausible defence which he maintained on oath during the sentencing hearing and exhibited no remorse. By contrast, the present applicant demonstrated some insight and expressed remorse to his father, the Court and the psychologist. There were positive signs for rehabilitation. The sentence imposed on Mr Gow (8 years with a non-parole period of 5 years) was not disturbed although Garling J found it to be manifestly inadequate, a finding that demonstrates that (as in the present appeal) judicial minds may differ when reaching conclusions as to questions of manifest excess and inadequacy. The starting point for the applicant's sentence for the equivalent offence, before the 25% reduction for the plea of guilty (10 years) far exceeded that imposed on Gow and was then accumulated by 18 months on sentences for the state offences. While a consideration of this individual case (Gow) goes nowhere close to establishing the ground of appeal raised by the applicant, it certainly does not support the contrary argument.
I acknowledge that Wilson J has demonstrated the existence of cases where sentences of a similar magnitude have been imposed but my focus remains on the individual circumstances of this offence and this applicant. I am also conscious of the significance of the maximum penalty of life imprisonment, but note that this penalty applies to quantities of drugs measured in tonnes as well as those that fall, like the present case, just in excess of the commercial quantity of 2 kg. I restate my conclusion that, in spite of Judge Weinstein's thorough and thoughtful judgment, the sentence imposed fell outside of the legitimate range available in all of the circumstances, even allowing for the broad discretion residing in the sentencing Judge.
For those reasons, I would grant leave to appeal and allow the appeal.
In exercising the sentencing discretion afresh, I adopt the findings of the sentencing Judge which have been set out in the judgment of Wilson J. It is unnecessary to repeat the comprehensive analysis of the facts and relevant legal principles undertaken by Judge Weinstein in the District Court: R v Awraham [2019] NSWDC 341.
In summary, I adopt his Honour's findings that the sentence had to be mitigated as a result of the applicant's youth, "clean" adult record, expressions of remorse, good prospects of rehabilitation and early plea of guilty.
The sentencing Judge assessed that the offending fell in the "low midrange" of objective gravity for an offence of this type. I note the comments of Basten JA (Price and Campbell JJ agreeing) in Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]:
"This kind of characterisation, which was no doubt encouraged by the introduction into State law of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to offences the subject of standard non-parole periods, is often unhelpful. That is because it is rarely explained what is meant by the 'middle of the range'. Clearly a range is not a point on a scale, but it could cover anything from 25% to 75% of a most serious case, or it could be far more narrowly defined. Unless it is narrowly defined, it is unlikely to provide useful guidance for the sentencing judge, let alone for those reading the judgment."
On that basis, I agree with and adopt Judge Weinstein's evaluative judgment as to the objective seriousness of the offence. In doing so I note: (i) the weight of the drugs was only slightly above the legislated commercial quantity (which has no upper limit), (ii) the applicant's role (although slightly greater than a "mere recruit") was unclear and not managerial, and (iii) the applicant sought to profit from his offending, albeit to finance a drug debt.
The applicant read an affidavit to be used if the Court came to re-sentence. The affidavit refers to his time in custody since being sentenced. He has continued to attend education classes when he has had the opportunity. In the first part of his sentence, his contact with his family was intermittent as a result of distance. However, since January 2020 he has not seen his family at all because family visits were suspended as a result of COVID-19 pandemic. His parents struggle with English and technology and "cannot do AVL" visits. I have taken these matters into account in determining the appropriate non-parole period, that is, the minimum period that the applicant must remain incarcerated.
No challenge was made to the sentences imposed for the state offences and I would confirm those sentences, noting they have already expired. I would commence the sentence for the Commonwealth offence six months earlier than did the primary Judge, resulting in an accumulation of 12 months. As to that offence, I would commence with a sentence (or starting point) of nine years which will be reduced by 25% for the early plea of guilty. This results in a sentence of six years and nine months. I would set a non-parole period of four years and three months.
The total effect of the orders I would make is that there would be a total effective sentence (for all offences) of seven years and nine months (reduced from the 9 years imposed at first instance) and a total effective non-parole period of 5 years 3 months (reduced from 6 years 6 months and 15 days). The proportion of the non-parole period to the head sentence, once the 12 months accumulation is taken into account, is 67.74%.
I would make the following orders:
1. Leave to appeal granted.
2. Allow the appeal.
3. Confirm the sentences imposed in the District Court for the offences of possession of an unauthorised pistol, possession of an unregistered firearm and supplying a prohibited drug (MDMA).
4. Quash the sentence imposed in the District Court for the offence under ss s 11.1 and 307.5(1) of the Criminal Code Act 1995 (Cth) of attempting to possess a commercial quantity of a border-controlled drug (cocaine) and in lieu thereof:
1. The applicant is sentenced to imprisonment for a period of six years and nine months, with a non-parole period of four years and three months, commencing on 23 April 2019.
2. The sentence will expire on 22 January 2026.
3. The non-parole period will expire on 22 July 2023 at which time the applicant will be eligible for release on a parole order.
4. Direct the applicant's legal representatives to explain the effect of this sentence and non-parole period in accordance with s 16F of the Crimes Act 1914 (Cth).
WILSON J: On 23 April 2018 the applicant was arrested and charged with a number of offences contrary to both State and Federal criminal laws. He was later committed for sentence to the District Court of New South Wales, where he appeared before his Honour Judge Weinstein SC. For offences of attempting to possess a commercial quantity of a border controlled drug, possessing an unauthorised pistol, possessing an unregistered firearm, and supplying a prohibited drug - and taking into account a number of other State offences - his Honour imposed an overall term of imprisonment of 9 years, with an overall non-parole period ("NPP") of 6 years and 6 months: R v Awraham [2019] NSWDC 341.
The most significant of the individual sentences was a term of 7 years and 6 months imprisonment, with a NPP of 5 years and 15 days, imposed for the Federal drugs offence, the attempt to possess a border controlled drug. It is that sentence against which the applicant now seeks leave to appeal, advancing a single ground of appeal, that the sentence was manifestly excessive.
The offences, the sentences imposed for each offence, and the commencement dates, are set out below:
Offence Sentence Commencement date
Possessing unauthorised pistol: s 7(1) of the Firearms Act 1996 (NSW) 3 years (NPP 1 year, 11 months) 23 April 2018
Maximum penalty: 14 years, standard NPP 4 years
Possessing unregistered firearm: s 36(1) of the Firearms Act 1996 (NSW) 18 months 23 April 2018
Maximum penalty: 14 years
Supply prohibited drug: s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) 2 years, 3 months 23 April 2018
Maximum penalty: 15 years
Attempting to possess commercial quantity of border controlled drug: s 11.1 and 307.5(1) of the Criminal Code Act 1995 (Cth) 7 years, 6 months (NPP 5 years, 15 days) 23 October 2019
Maximum penalty: Life imprisonment