Chan v Director of Public Prosecutions (Cth)

Texts Cited: Nil

Category: Principal judgment

Parties: Chun-Man Chan (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

Representation: Counsel:
P English (Applicant)
F Sullivan (Respondent)
Solicitors:
Bilias and Associates (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/00158002

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Chun-Man Chan, was convicted following a jury trial in the District Court of three offences relating to the import and manufacture of methamphetamine by a criminal syndicate in 2015. Count 1, import a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Commonwealth Criminal Code, arose from the importation of 72.517 kg (calculated pure weight) of methamphetamine in a shipping container purporting to contain aloe juice drink products from Hong Kong. Count 3, knowingly take part in the manufacture of a commercial quantity of a prohibited drug contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), arose from the applicant’s involvement in the extraction of up to 400 g (calculated pure weight) of methamphetamine from aloe juice. Count 7, deal with proceeds of crime not less than $50,000 contrary to s 400.5(1) of the Commonwealth Criminal Code, related to cash in the amount of $62,005 found on execution of a search warrant on premises the applicant was renting.

The applicant was sentenced to 20 years imprisonment with a non-parole period of 13 years in respect of count 1, 12 years imprisonment with a non-parole period of 8 years in respect of count 3, and 2 years 8 months imprisonment in respect of count 7. The total effective sentence was 23 years imprisonment, expiring 26 May 2038, with a non-parole period of 16 years expiring 26 May 2031.

The applicant sought leave to appeal against the sentence imposed on count 1 on the sole ground that the sentencing judge erred in failing to take into account the effect of the sentence on the applicant’s family and dependents, as required by s 16A(2)(p) of the Crimes Act 1914 (Cth), in light of the decision in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (“Totaan”).

The Court (Mitchelmore JA, Ierace J and Chen J agreeing) held, granting leave to appeal and dismissing the appeal:

(1) Consistently with the law prior to Totaan, the sentencing judge considered that family hardship could not be taken into account under s 16A(2)(p) unless it was “exceptional”. By applying the law as it was known at the time, the sentencing judge acted upon a wrong principle. It was thus necessary to re-sentence the applicant.

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75; House v The King (1936) 55 CLR 499; [1936] HCA 40; Green (a pseudonym) v R [2025] NSWCCA 16; 393 FLR 339; Ozgen v R (Cth) [2025] NSWCCA 65*;* Fakh**reddine v R [2024] NSWCCA 74; AE v R [2023] NSWCCA 74, applied.

(2) Having regard to the applicant’s submissions, the evidence, the maximum penalties applicable to the offences, the matters in s 16A of the Crimes Act 1914, and the purposes of sentencing applicable, and notwithstanding error on the part of the sentencing judge, no lesser sentence is warranted in law.

Turnbull v R [2019] NSWCCA 97; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; AE v R [2023] NSWCCA 74; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, applied.

Saab v R [2025] NSWCCA 58; 394 FLR 410, McLaughlin v R [2025] NSWCCA 13; 393 FLR 349, Flower v R; Mafiti v R [2024] NSWCCA 76; Heng v R [2019] NSWCCA 317; Parker v R [2020] NSWCCA 206, considered.

JUDGMENT

1. MITCHELMORE JA: The applicant, Chun-Man Chan, was convicted following a trial in the District Court, before Woodburne SC DCJ sitting with a jury, of the following three offences relating to the import and manufacture of prohibited drugs between 28 March 2015 and 28 May 2015:

2. Count 1: Import a commercial quantity of a border controlled drug contrary to the Commonwealth Criminal Code, s 307.1(1) (maximum penalty life imprisonment and/or 7,500 penalty units);

3. Count 3: Knowingly take part in the manufacture of a commercial quantity of a prohibited drug contrary to the Drug Misuse and Trafficking Act 1985 (NSW), s 24(2) (maximum penalty 20 years imprisonment and/or 3,500 penalty units, with a standard non-parole period of 10 years); and

4. Count 7: Deal with proceeds of crime being not less than $50,000, contrary to the Commonwealth Criminal Code, s 400.5(1) (maximum penalty 15 years imprisonment).

5. On 2 November 2018, the applicant was sentenced to a total effective sentence of 23 years imprisonment, commencing 27 May 2015 and expiring 26 May 2038, with a non-parole period of 16 years, commencing 27 May 2015 and expiring 26 May 2031. The structure of the sentence was as follows:

6. On count 1, her Honour sentenced the applicant to 20 years imprisonment commencing 27 May 2018, with a non-parole period of 13 years;

7. On count 3, her Honour sentenced the applicant to 12 years imprisonment commencing 27 May 2015, with a non-parole period of 8 years; and

8. On count 7, her Honour sentenced the applicant to 2 years 8 months imprisonment commencing 27 May 2018.

9. The applicant sought leave to appeal against his sentence on the following ground:

“In sentencing the applicant in respect of Count 1, the sentencing judge acted upon a wrong principle by failing to take into account the probable effect of the applicant’s sentence on his family or dependants pursuant to s 16A(2)(p) of the Cth Crimes Act.”

4. The basis of the ground is the Court’s decision in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (“Totaan”), which was handed down in April 2022. The respondent properly accepted that in light of that decision it would be open to this Court to find that the exercise of the sentencing discretion miscarried and the ground of appeal was made out.

5. The applicant requires an extension of time to file the Notice of Appeal, which was filed on 26 June 2025, some 6 years and 7 months after the sentence was handed down, and 6 years and 1 month after the expiry of the initial Notice of Intention to Appeal that was filed on the applicant’s behalf. In light of the position that it took on the appeal, the respondent did not oppose the extension of time.

6. The applicant relied on an affidavit sworn by him and an affidavit of his instructing solicitor to explain the delay in bringing the application for leave to appeal. In circumstances where, given the Crown’s position on the substantive appeal, the Court must re-sentence the applicant unless it considers that no lesser sentence is warranted at law, the interests of justice favour the grant of the extension of time: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [32]; Ozgen v R (Cth) [2025] NSWCCA 65 (“Ozgen”) at [17]. The evidence does indicate periods in which there appears to have been no action taken in relation to the matter, but I do not consider that those gaps should disentitle the applicant from bringing the appeal. I would grant the extension of time.

7. For the reasons outlined below, the applicant has established error on the part of the sentencing judge which calls for resentence. Accordingly, leave to appeal should be granted, and the ground of appeal upheld. However, having exercised the sentencing discretion in accordance with Kentwell, I am of the view that no lesser sentence is warranted in law.

Background to the ground of appeal

8. The applicant was tried together with two co-accused, Kwong Leung Cheng and Chun Nam So. In relation to the counts involving Mr So, the jury could not agree on their verdict and was discharged accordingly. When a new indictment was subsequently presented against Mr So, he entered a plea of guilty on one charge of contravening s 24(2) of the Drug Misuse and Trafficking Act which was accepted in full satisfaction of the indictment. The sentencing judge sentenced Mr So separately.

9. The Crown prepared a Summary of Facts for Sentence (Summary of Facts) with which the applicant and Mr Cheng did not take issue. In sentencing the applicant and Mr Cheng, the sentencing judge relied on the Summary of Facts. Given the level of detail in that document and its length (63 pages), her Honour attached the Summary of Facts to her reasons as Annexure A and provided a summary in the reasons.

10. The sentencing judge found that in 2014 and 2015, there was an international criminal syndicate operating out of Hong Kong and China, the object of which was to import methamphetamine into Australia so that it could be manufactured/extracted and supplied to the community for significant profit. The methamphetamine was manufactured and concealed in China in an apparently legitimate product, bottles of aloe juice drink. The bottles containing methamphetamine were packaged with genuine aloe juice drink and imported into Australia by shipping container. Premises and chemicals were obtained so that upon receipt of the product, the drug could be stored, extracted and supplied. Her Honour found that the evidence showed “the operation of a well-organised and substantial business”.

11. The applicant is a Chinese national, who first arrived in Australia on 21 January 2014, travelling on a Hong Kong passport. Her Honour found that at the time of his first arrival, the applicant was a member of the syndicate and that his activities thereafter, as detailed in the Summary of Facts, were for the purposes of the syndicate.

Count 1: import a commercial quantity of a border controlled drug

12. The sentencing judge found that the applicant and Mr Cheng were parties to a joint commission/joint criminal enterprise, with other members of the syndicate, to import into Australia a commercial quantity of methamphetamine, concealed in a shipping container numbered FSCU5073950, for the purpose of its manufacture (by extraction) and sale for significant financial reward.

13. Following the applicant’s arrival in Australia on 21 January 2014, he travelled between Australia and Hong Kong on several occasions. On 12 May 2015, the applicant arrived in Sydney from Hong Kong, together with his wife, Lei Fang, and their one-year old daughter. Although he declared upon entry that he was in Australia for a holiday, her Honour was satisfied that he was present for the purposes of the syndicate, with his role being to facilitate the receipt, storage and collection of the shipment. Additionally, having regard to the facts relating to the charge of knowingly take part in the manufacture of a commercial quantity of a prohibited drug, the sentencing judge was satisfied that the applicant travelled to Australia for the purpose of directing and overseeing the extraction of methamphetamine from both an earlier shipment and the pending shipment.

14. The sentencing judge found that although he arrived in Australia after Mr Cheng, the applicant “performed a senior and vital role in co-ordinating the importation by remaining in contact with co-offenders in Hong Kong and China and by being the organiser and person in charge in Australia by giving direction to Mr Cheng and others”. Her Honour found that the applicant had initiated the rental of storage premises in Mascot (referred to as “Third Eye Mascot”) and arranged for those premises to be cleared out (from earlier consignments) to make room for the pending consignment. He also provided the delivery address to the Chinese freight forwarder, along with a contact number for Mr Cheng (Mr Cheng had obtained the number using a false name). The applicant also sent text messages to Mr Cheng about the Third Eye Mascot premises, and Mr Cheng moved boxes of aloe juice drink from those premises into a Kennards storage facility in advance of the pending consignment.

15. Her Honour referred to a number of phone calls and WeChat messages between the applicant and persons in China in the lead up to the importation. On 23 May 2015, the shipping container arrived in Sydney from Huangpu Port in China aboard a merchant vessel, bearing a declared commodity of “Aloe Vera Drink”. In the evening of 26 May 2015, the container was offloaded from the ship.

16. On 28 May 2015 the shipping container, which comprised palletised cartons of aloe juice drink, was unpacked by officers of the Australian Customs and Border Protection Service. Bottles of aloe juice drink within the cartons were presumptively tested, which identified 277 litres of liquid methamphetamine concealed variously throughout the consignment. The liquid in the bottles that contained liquid methamphetamine had slightly different characteristics from the genuine aloe juice drink, while the bottles were found to have a small “x” scratched on the inside of the lid.

17. Australian Federal Police conducted further testing and identified a total of 284,490.6 g of clear colourless liquid containing methamphetamine. The calculated pure weight of methamphetamine was 72,517.1 g.

18. The sentencing judge found that the objective seriousness of the offending was significant, describing the enterprise of the syndicate as sophisticated and well organised. The role of both the applicant and Mr Cheng was an important one intended to effect the successful importation of the border controlled drug.

19. Her Honour found that the scale of the importation was very large and potentially extremely valuable. Given the threshold for a commercial quantity of methamphetamine is 0.75 kilograms (see Criminal Code Regulations 2019 (Cth) Sch 2 item 1(1)), the quantity of pure methamphetamine the subject of count 1 fell just short of an amount that was 100 times the commercial quantity. Based on the price per kilo in 2015, if purchased in bulk the drug had a potential street value of $8,855,000, with the profit likely to have been far greater if sold in smaller amounts.

20. The sentencing judge was satisfied that the applicant was “aware of the identity of the drug, the method of concealment, the means of importation by container” and that he knew “if not the exact kilo, the general quantity involved”. In relation to the role of each offender, her Honour found that the applicant was “superior to Mr Cheng and others on the ground in Australia”. Consistently with his superior position, “he largely left the work to be done in relation to the preparation of storage premises, the clearing out of the Third Eye premises and the payment of ongoing rent to others and it was Mr Cheng, rather than he, who was to deal with the Australian Freight Forwarder as the contact person”. Her Honour ultimately found that the applicant’s culpability was greater than that of Mr Cheng.

21. Her Honour found that both the applicant and Mr Cheng participated for financial gain for themselves and for the syndicate. There was no specific evidence as to amounts they were to be paid, although her Honour concluded that the applicant was to be paid more than Mr Cheng, in accordance with his seniority. The destructive effect of such a large amount of methamphetamine being released into the community was obvious, and it was by reason only of the intervention of law enforcement that this did not occur.

Count 7: deal with proceeds of crime

22. When executing a search warrant, on 27 May 2015, at premises in North Curl Curl where the applicant was staying with his wife and child, police found cash in the amount of $62,005. The sentencing judge was satisfied, consistently with the jury verdict on this count, that the applicant was in possession of that cash by reason of acts he performed in connection with the drug activities of the syndicate. Accepting that the amount was not “particularly large”, her Honour nonetheless considered the offence to be a “serious” one which needed to be viewed in the context of the importation offence and the State manufacture offence.

Count 3: knowingly take part in the manufacture of a commercial quantity of methamphetamine

23. Count 3 related to the manufacture of methamphetamine between 28 March 2015 and 28 May 2015 at premises at Hurstville. Upon execution of a search warrant at those premises on 27 March 2015, police located the following items in the kitchen, which the sentencing judge detailed by reference to the Summary of Facts:

24. “Subgroup 3”: a pink bucket containing a “transparent yellow liquid”, determined to be 625.4 g of liquid containing methamphetamine at a purity of 21.6%;

25. “Subgroup 4”: a pink bucket in the kitchen cupboard containing a “transparent yellowish-brown liquid”, determined to be 1,800.7 g of liquid containing methamphetamine at a purity of 10%;

26. “Subgroup 5”: a square plastic container with a black lid containing an “off-white crystalline material”, being 19.2 g of methamphetamine at a purity of 77.4%;

27. “Subgroup 6”: a pink bucket containing “white crystalline material”, being 1.3 g of methamphetamine at a purity of 79.2%; and

28. “Subgroup 7”: a pink bucket containing “light brown crystalline material”, being 0.8 g methamphetamine at a purity of 46.1%.

29. In addition to these items, the police found a number of items at the premises that an AFP crime scene investigator opined could be used to expedite the process of extracting methamphetamine from the aloe juice. Those items included numerous fans, portable gas stoves, a stove top with black residue, numerous soup filter bags, plastic trays, large silver pots and a plastic measuring cup.

30. The total gross weight of the liquid and crystalline material found was 2.447 kgs. Section 24(2) of the Drug Misuse and Trafficking Act proscribes the production, or knowing involvement in such, of a large commercial quantity of a prohibited drug. Where a person is tried for an offence relating to a large commercial quantity, s 24(3) permits an alternative verdict in respect of a commercial quantity where the jury is not satisfied that the large commercial quantity threshold is met. The applicant was convicted in respect of a commercial quantity rather than a large commercial quantity, which the sentencing judge described as consistent with the expert evidence about the theoretical maximum amount of methamphetamine that could be derived from what was found in the kitchen (approximately 400 g).

31. The sentencing judge described the Crown case as involving the methamphetamine in the buckets being a step in the process of manufacture. The Crown asked the jury to infer that the bottles of aloe juice drink had been retrieved from the storage facility and taken to the Hurstville premises, and then emptied into buckets. Mr Cheng, with the assistance of Mr So, then engaged in a process of extraction through evaporation. The applicant was said to have been directly involved by supervising the manufacture and giving Mr Cheng directions in that regard.

32. The sentencing judge described the jury’s verdict as consistent with acceptance of this aspect of the Crown case. In relation to the objective seriousness, the sentencing judge found that the offending conduct was part of a planned and organised criminal activity. The applicant and Mr Cheng had travelled to Australia for the purpose of committing the offence (among others), and the conduct extended from 28 March 2015 to 28 May 2015. Her Honour noted that the method of manufacture, being merely extraction of already-produced methamphetamine, was less complex than might otherwise be the case. Nonetheless, the offending was serious, particularly having regard to the fact that it formed part of the activities of an international criminal syndicate.

33. Her Honour was satisfied that the applicant was the organiser, giving directions to Mr Cheng about the necessary equipment and processes. Although he distanced himself from the hands-on work, the instructions he gave showed his familiarity with the chemicals, equipment and method. In terms of the quantity of drug involved, the offending conduct involved a process which was intended to yield approximately 400 g of methylamphetamine, which was well above the commercial quantity threshold (0.25 kg) although it was less than the large commercial quantity threshold (1 kg). As with count 1, the sentencing judge noted that the applicant engaged in the offending the subject of count 3 for financial gain.

34. Overall, the sentencing judge considered that the level of objective seriousness of the applicant’s offending on this count was above the mid-range, amounting to “very serious offending”.

The applicant’s subjective case

30. The sentencing judge identified the following material as tendered in respect of the applicant’s subjective case:

31. a letter from the applicant addressed to the Court, dated 1 March 2018;

32. a document from the Open University in Hong Kong and a number of TAFE certificates for qualifications the applicant had completed whilst in custody on remand;

33. a letter from the applicant’s wife, Ms Lei, dated 9 March 2018;

34. a letter from the applicant’s former business partner, Chong Lee Yung, together with a copy of a Hong Kong Business Licence for a company called “Huizhou Tong Yin Sustainable Energy Limited”;

35. a reference from Man Kit Ng, dated 12 February 2018; and

36. a letter from Chaplain Peter Baines, dated 2 April 2018.

37. The applicant was born in November 1977 and was 37 years old at the time of the offences in 2015. He had no Australian criminal history but he did have convictions in Hong Kong, with offences recorded between 3 August 1992 (when he was 14 years old) and 3 March 1999 (when he was 21 years old). The last recorded offence was a drug trafficking offence for which the applicant was sentenced to a term of imprisonment of 14 years. According to the Hong Kong record, he was released in mid-2007, having spent about 8 years and 3 months in prison from the date of sentence, although there may have been some pre-sentence custody. Her Honour found that despite his very lengthy imprisonment the applicant was not deterred from committing further drug offences, “and his record plainly requires consideration being given to the need for increased weight being given to retribution, deterrence and the protection of society”.

38. In his letter to the Court, the applicant had set out some of his personal history. He left secondary school at 14 years of age, as he was thin and weak and was bullied by other students. His family was poor and his father, who was unemployed, was unable to find an alternate school for him. The applicant attempted a number of jobs but none lasted, and he got into trouble on the streets and met bad friends. Her Honour referred to the applicant’s record as bearing out his early contact with the law, with convictions for robbery, assault, attempt pervert the course of justice (at 14), attempt theft and possession of a dangerous drug (at 15), burglary, assault occasioning actual bodily harm and theft (at 16) common assault (at 18), and fighting in a public place (at 20). During his period of imprisonment in Hong Kong for the drug trafficking offence, he learnt basic English and Mathematics and undertook studies through the Open University.

39. Following his release from custody, the applicant began working in a kitchen and undertook some part time work “purchasing various goods from Hong Kong to mainland China”. He married Ms Lei in 2008. The applicant said that he established his first restaurant in 2010 with two business partners and, in 2013, invested in a factory in China to turn waste wood into pieces for energy generation. Her Honour described Ms Lei’s account in her letter, and the Business Licence, as broadly consistent with the applicant’s account.

40. The applicant stated that following his arrest in Australia he was haunted by feelings of regret and distress, and he was suffering from the pain of separation from his family. Noting that his daughter was one year old at the time of his arrest, the applicant realised that it was going to be impossible for him to be the father he had hoped to be for her. The sentencing judge observed that in coming to Australia to commit very serious crimes, the applicant had taken the risk of being caught and imprisoned away from his family, before stating:

“It is to be accepted that the probable effect of his lengthy imprisonment is that the separation will be difficult, not only for him but for his family, who will be deprived of financial support.”

35. Her Honour also referred to the letter from Chaplain Baines, the prison chaplain, which referred to the applicant’s understanding of the danger and damage of illegal drugs, and his regret for the damage to his family from his criminal conduct. Her Honour also noted that he had undertaken a number of courses through TAFE whilst in custody.

36. Her Honour then referred in more detail to the letter from Ms Lei, in which she described having a child in 2014 after struggling to get pregnant, and then suffering from post-natal depression. They came to Australia to go sightseeing and she was very shocked and confused when the applicant was arrested. At the time of sentence she still did not believe that he was involved in drug trafficking. Ms Lei wrote that she had sold their restaurants and equipment in the processing plant to pay for legal fees, and that relatives and friends had also lent her some money. She pleaded for leniency on behalf of her daughter, having lost her own father when she was 10 years old. She also said that the applicant’s mother was 80 years old and paralysed in bed, that her own grandmother was 90 years old and required care that her mother provided, and that she felt the strain of keeping her husband’s predicament from all of them and from her daughter. Ms Lei also said that she was alone in Hong Kong and could not work as she has no one to help her look after her child. Her youngest sister and her husband gave her money to cover her living expenses.

37. The sentencing judge summarised the references tendered from Chong Lee Yung and Man Kit Ng. Her Honour noted some inconsistency between the latter reference, which described a close friendship between the two families, and Ms Lei’s statement in her letter that she had no friends in Hong Kong. However, her Honour considered it unnecessary to resolve the inconsistency “as it is clearly a significant thing for [Ms Lei] and her child to face that the offender is likely to be incarcerated for a lengthy period in a foreign country”.

38. Her Honour noted that the applicant had agreed facts during the proceeding which had assisted in cutting down the hearing time, and took that into account in his favour. Her Honour also accepted that the applicant regretted his current position and felt genuine pain that he was separated from his wife and child. However, whilst he had expressed some insight into the effect of his offending on the community he had not accepted responsibility for the offences and was not remorseful. Her Honour was unable to conclude that the applicant was unlikely to reoffend or that his prospects of rehabilitation were good. That was not to say that he had no prospects, with her Honour noting that he had been motivated in the past to educate himself and to engage in businesses to support himself and his family.

39. The sentencing judge had regard to parity considerations in respect of count 3 and count 1. The sentencing judge found that the applicant’s offending on both counts was more serious than that of Mr Cheng, principally because of his more senior position, and that this should be reflected in the sentences imposed. Her Honour declined to accumulate the sentence for count 7, finding that the criminality could be accommodated within the sentence imposed for the import offence. Her Honour found special circumstances in relation to the State offence, having regard to the accumulation of the sentence and the need to have regard to rehabilitation and the support that might be required after a lengthy term of imprisonment.

The ground of appeal: family hardship

40. Section 16A(2) of the Crimes Act 1914 (Cth) provides that in addition to any other matters, “the court must take into account such of the following matters as are relevant and known to the court”. Those matters include:

(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

41. Before the decision in Totaan, courts had construed s 16A(2)(p) as being subject to an implied limitation requiring that hardship be “exceptional” in order for the factor to be taken into account as a discrete sentencing factor: see R v Togias [2001] NSWCCA 522; 127 A Crim R 23 at [16]; R v Hinton [2002] NSWCCA 405; 134 A Crim R 286 (“Hinton”) at [31]. Consistently with that construction, the Crown’s written submissions on sentence referred to Hinton at [31]. Although the Crown accepted that the probable effect of the sentence upon the applicant’s family and dependants remained “a relevant factor to take into account as part of the offender’s ‘general mix’ of subjective features”, its ultimate submission was that “in the absence of exceptional circumstances” such hardship was not to be taken into account as a specific and particular matter that resulted in a substantial reduction or elimination of a sentence of imprisonment.

42. The applicant’s written submissions on sentence did not address family hardship. However, the applicant did tender the material to which I have referred above, including the letter from Ms Lei. In tendering the latter, counsel for the applicant made it clear that he did not submit that this material enlivened the consideration in s 16A(2)(p).

43. It is apparent from the parts of her Honour’s reasons to which I have referred that her Honour considered the material concerning the applicant’s wife and daughter, including what the applicant wrote in his letter, his wife’s letter, and in the character references. Although her Honour did not expressly explain whether or for what purpose the material going to the hardship occasioned to the applicant’s family was relevant to the sentencing exercise, it would appear from her Honour’s careful summary of that material that she took it into account, but as no more than part of the general mix of subjective factors.

44. In Totaan, the Court held that it was not necessary for a court imposing a sentence for a federal offence to find that the circumstances of hardship to a family member or dependent to be exceptional before it must take that hardship into account pursuant to s 16A(2)(p): at [82], [93] (Bell CJ). By applying the law as it was known at the time, the sentencing judge acted upon a “wrong principle” in the sense described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40. Several such appeals against sentences predating Totaan have succeeded on the same basis: see for example Green (a pseudonym) v R [2025] NSWCCA 16; 393 FLR 339 at [45]; Ozgen at [39]-[40]; Fahkreddine v R [2024] NSWCCA 74 at [32]-[33]; AE v R [2023] NSWCCA 74 (“AE”) at [36].

45. The applicant has established error. It is thus necessary to re-exercise the sentencing discretion in accordance with Kentwell.

Resentence

46. In Turnbull v R [2019] NSWCCA 97 at [40], Simpson AJA emphasised the need for an appellate court that re-exercises the sentencing discretion “to put aside the sentence imposed at first instance”. Her Honour described the process in the following terms at [44]:

“… the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that 'no lesser sentence is warranted in law'. This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in [R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534] and [Baxter v R [2007] NSWCCA 237; 173 A Crim R 284], and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender's prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon.”

47. In the event that the Court moved to resentence, the applicant relied on the following affidavits:

48. an affidavit of the applicant sworn 23 June 2025; and

49. an affidavit of the applicant’s solicitor, Angelo Bilias, sworn 15 September 2025.

50. In his affidavit, to which no objection was taken, the applicant said that he works in the education wing of the prison as a sweeper, earning $60 per week. He has obtained a number of qualifications after sentence, being a Certificate III in Business, a Certificate III in Cleaning Operations, and Certificates II and III in Hospitality. He also provided certificates of achievement for having completed a course titled “Who Are You?” run by Crossroads and for having completed 12 weeks of beginner/intermediate guitar lessons. The applicant attends chapel three times a week for mass, bible studies and choir. His only custodial infringement occurred in 2019 and was of a minor nature.

51. The applicant described initial language difficulties in custody which have improved over time as he learned to speak and write some basic English. Apart from contracting the COVID-19 virus during the pandemic, he has had no major illnesses or sickness. Although he feels depressed and very sad, this has improved over time, particularly through going to church. The applicant described the COVID-19 pandemic in 2021 as hard, with lock-ups over a period of one-to-two months leading to lack of exercise and stress. When the applicant contracted the COVID-19 virus, he had to remain isolated in his cell. He was also very anxious when his wife and daughter contracted the virus.

52. In relation to contact with his family in China, the applicant gave evidence of making phone calls to his wife every day. It is expensive to do so, and he uses the money he earns from working in prison, and money sent to him by his wife, for this purpose. The applicant used to speak to his daughter using a video link every one-to-two months. Although these links are now offered weekly, due to the time difference with China he is often unable to speak to his daughter. He and his daughter use some apps that the prison makes available to play games with each other, which they enjoy.

53. The applicant gave evidence that he used to be the sole earner and would pay for all living expenses. His wife now pays the rent from her income working as a cashier at a restaurant that he is still a part owner of, and working at a real estate agent. The applicant’s mother is 72 years old, and he understands from his wife that her health is declining. His father died some three years ago while the applicant was in custody in Australia.

54. The affidavit of Mr Bilias was primarily directed to the application for an extension of time. Relevant to resentence was a letter that he annexed from the applicant’s wife, dated 10 June 2025, together with a translation certified by a NAATI-accredited interpreter. Ms Lei confirmed that she was working in a real estate agency and assists at a restaurant in which her husband holds a small share. She outlined in some detail the difficulties associated with raising her daughter as a single parent, working long hours to meet expenses and with limited support. She has been unable to visit the applicant in Australia and cherishes their phone calls.

55. Ms Lei referred to the challenges of watching her daughter grow up in the face of judgment from others and relentless gossip. Her daughter has wanted to know where her father is, although since starting primary school she has rarely mentioned him and has become reluctant to speak to him on the phone. Ms Lei singled out the pandemic as a difficult time, when her daughter contracted the virus and became very unwell. She also referred to her elderly relatives who always ask where the applicant is, to the applicant’s father having died since the applicant’s imprisonment, and to his elderly mother who asks often when her son can come home.

56. I have taken the above evidence of the applicant and the applicant’s wife into account on resentence, together with the material that was before the sentencing judge. The post-sentence material confirms the position as it was before the sentencing judge, namely, that the applicant’s custodial sentence has had an ongoing adverse impact on his wife and daughter, both financially and emotionally, as well as his relationship with them. I have also taken into account the applicant’s general (and somewhat limited) evidence concerning the impact of the pandemic, both in terms of the harshness of the custodial environment at that time and his anxiety associated with his daughter contracting the virus in China.

57. The applicant did not expressly challenge the factual findings of the sentencing judge, or her Honour’s assessment of the objective seriousness of the offending. Nonetheless, the applicant submitted that the sentence imposed for count 1, being the importation offence, was stern, including when compared to what were described as recent comparable sentences. The respondent disagreed, submitting that the seriousness nature of the applicant’s offending should not be underestimated.

58. I have considered the cases to which the applicant referred in this regard, as well as the cases in the table that the respondent provided on sentence and the additional cases to which it referred on the appeal. The submissions that each made about the other’s cases served to emphasise the caution expressed in the authorities about the necessarily general nature of the guidance that past sentences can provide to sentencing judges and to appellate courts: see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54].

59. In oral submissions, the applicant’s counsel referred in particular to decisions of this Court in Saab v R [2025] NSWCCA 58; 394 FLR 410, McLaughlin v R [2025] NSWCCA 13; 393 FLR 349, and Flower v R; Mafiti v R [2024] NSWCCA 76, emphasising that the applicant in each of those cases was involved in the importation of a substantially greater quantity of border controlled drug and received sentences of 9 years with a non-parole period of 6 years (after a 25% discount) (Mr Saab), 12 years with a non-parole period of 7 years and 6 months (after a 25% discount) (Mr McLaughlin), 21 years and 6 months with a non-parole period of 13 years (after a 10% discount) (Mr Flower) and 16 years with a non-parole period of 9 years and 6 months (after a 20% discount) (Mr Mafiti). I have considered those cases, although I do not consider there is a significant overlay with the present case either in terms of the circumstances of the applicant’s offending and his role, or his subjective circumstances. I also note that, in Saab, the Court did not consider the appropriateness of the sentence in terms, the ground of appeal being one that raised parity concerns.

60. The cases that the Crown emphasised, in the annexure to their written submissions were Heng v R [2019] NSWCCA 317 and Parker v R [2020] NSWCCA 206. Those cases involved the importation of similar quantities of border controlled drugs as in the present case, in which higher sentences were imposed. As with the cases on which the applicant relied, I have considered those cases, noting the differences in the circumstances of the offending in those cases and the particular subjective circumstances of the respective offenders.

61. Relatedly, the applicant invited the Court to keep in mind that although he played the role of organiser in Australia for that offence, he was but one player in an international syndicate, whose “relatively dispensable level” could be inferred from his position on the ground in Australia and therefore at considerable risk of detection. I do not accept that characterisation of the applicant’s role within the international syndicate of which he was a member. Her Honour was satisfied that his role was important and significant. His actions included dealings with the Hong Kong and China connections about the identification and progress of the container, and giving directions to Mr Cheng in preparation for arrival of the shipment. That he was on the ground in Australia and thus at greater risk of detection than others in the syndicate who remained overseas did not undermine the significance of his role in terms of effecting the successful importation of the border controlled drug, as her Honour found.

62. In relation to his criminal record in China, the applicant submitted that while it did not assist him, care should be taken not to speculate about the drug-related offending that underpinned the lengthy sentence he had received, about which this Court knew nothing about the facts or the applicable sentencing regime. So much may be accepted. Nonetheless, that the applicant receiving a lengthy custodial sentence for drug-related offending in the past disentitles him to leniency. As the sentencing judge found, this aspect of his criminal history was also of relevance to considerations of deterrence, as well as the applicant’s prospects of rehabilitation.

63. The applicant submitted that on the updated evidence the Court would conclude that his prospects of rehabilitation have improved over the decade he has spent to date in custody. I accept that the applicant’s evidence indicates he has sought to maintain employment and has undertaken courses while in custody which, together with having incurred only one custodial infraction, is to his credit. Nonetheless, I remain guarded about the applicant’s prospects of rehabilitation, in circumstances where his affidavit does not address the offending conduct and gives no indication of any insight into or remorse for that conduct.

64. In AE, N Adams J observed at [58]:

“As the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 makes clear, the duty of this Court in each case where error is established is to exercise the sentencing discretion afresh. It is not the duty of this Court to adopt the sentence imposed at first instance as a starting point and consider whether a reduction ought to be made to it. It is inevitable that in some cases this Court, having put the original sentence to one side and proceeded to exercise the sentencing discretion afresh, will arrive at a higher sentence. Thus, even allowing for some amelioration of the sentence to account for the error below, a longer sentence is still arrived at. As Wilson J has observed at [54], despite the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW) it is not the practice of this Court in such cases to impose a sentence which is more severe; rather, this Court would dismiss such an appeal on the basis that no ‘less severe’ sentence is warranted. The question of whether a ‘less severe’ sentence is imposed by this Court (by way of comparison) will depend on the severity of the sentence imposed at first instance.”

(Emphasis in original.)

63. Having considered the applicant’s submissions and evidence in relation to the objective and subjective factors, and having regard to the maximum penalties, the matters in ss 16A(1)-(2) of the Crimes Act 1914, and the purposes of sentencing in the common law (see Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14) and in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I am of the view that notwithstanding the error on the part of the sentencing judge, no lesser sentence is warranted in law.

Conclusion

64. I propose the following orders:

65. Grant the applicant the extension of time to file the application for leave to appeal against sentence to 26 June 2025.

66. Grant leave to appeal.

67. Dismiss the appeal.

68. IERACE J: I agree with Mitchelmore JA.

69. CHEN J: I agree with Mitchelmore JA.

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