Director of Public Prosecutions (Cth) v Blackman Director of Public Prosecutions

THE FINDINGS OF THE SENTENCING JUDGE 7Having set out the facts, his Honour made reference to various cases to which he had been referred, in which sentences had been imposed for similar offending. He expressed the view (at ROS 18) that those cases provided limited assistance, pointing out that no two cases are factually the same. He concluded (at ROS 19) that they were helpful only to the extent that they provided an indication of the matters that were important to take into account in determining an appropriate sentence for a matter of this nature. His Honour made a similar observation in respect of the sentencing statistics with which he had been provided by counsel for each of the respondents. 8In terms of the objective seriousness of the offending, his Honour concluded (at ROS 19-20) that at certain stages each respondent had individually exercised a degree of independent judgment and initiative, but that there was nothing to distinguish between them in relation to their overall involvement. His Honour also noted the amount of the cocaine, its street value, and the potential effect of its ultimate distribution in the community. 9His Honour then made reference (commencing at ROS 20) to the conduct of each of the respondents in the period leading up to the commission of the offence. He concluded that such conduct was indicative of their "substantial and continuing involvement". 10His Honour observed that the use of the term "courier" to describe the role of each respondent was "misleadingly simplistic" before saying (at ROS 22): "...the point that needs to be made is that neither man could be said to have simply been enlisted for the purposes of picking up the drug from a pre-determined address and taking it to another address without more. Their involvement was certainly more substantial than that." 11His Honour then said (at ROS 25): "...There is no evidence that either Jomaa or Blackman were the "kingpins" or the brains of the enterprise and in fact there is no evidence of any involvement of either of them in the enterprise before 14 September 2010, that is, just over a week before the commission of the offence. There is no evidence that they were directly involved in the process of the shipping and import of the drugs. However, what is important to note is that while it is necessary to take into account the evidence of their limited involvement in the enterprise in a chronological sense, that does not necessarily mean that either or both had no connection of any kind with the importation of the illicit drug prior to 14 September 2010." 12His Honour then turned to the evidence of a conversation which had occurred between the two respondents some 12 months prior to the commission of the offence. He concluded that such conversation indicated that both respondents had some interest in the importation of prohibited drugs before saying (at ROS 26): "I stress in drawing attention to that evidence that it cannot be connected in any direct way with the offence in this case. There is nothing in that conversation to suggest that they were talking about the consignment which became the subject of this offence but it is nonetheless evidence of an earlier interest in illicit drug importation, and perhaps importantly how much money could be made out of it. It is inconsistent with any suggestion that their involvement in this offence was entirely spontaneous and a response to an offer unconnected with any earlier knowledge or interest in the illicit drug trade." 13Ultimately, in terms of the role played by the respondents, his Honour said (commencing at ROS 38): "I noted earlier that there is in any case no evidence of any direct role on the part of either offender in the process of importation. There is certainly is (sic) no evidence that either was the principal in the process, that is the architect of the whole process of importation and delivery. But that does not relieve their involvement in the offence of its grave seriousness, evidenced by the quantity of drugs involved and the substantial payment which each of the offenders expected to obtain for their involvement. In particular, the quantity of the drug carried with it the prospect of a very substantial personal, social and financial cost to a significant number of potential users, had the drug found its way, as was intended, into their hands. That is a matter (of) which, in this case, both offenders must have been well aware, given their own association with and the impact of the particular drug, cocaine, on their own personal lives. But that unfortunately seems to have no affect (sic) in averting their decision to become involved in this offence." 14His Honour considered the respective subjective cases (commencing at ROS 29 in the case of Jomaa and ROS 33 in the case of Blackman). He identified one distinguishing feature between those subjective cases, namely the psychological condition of the respondent Jomaa. He described the need for the respondent Jomaa to have appropriate psychiatric treatment (at ROS 48) as "very serious" and concluded that there was no doubt that the respondent had psychological problems which needed to be addressed. 15His Honour noted that both respondents had indicated that they were in difficult financial circumstances, partly as a consequence of their involvement in drug abuse. However, he found that this was not a matter of mitigation and concluded (at ROS 38) that the imposition of a substantial period of full-time imprisonment was warranted. 16His Honour then considered the provisions of s. 16A of the Crimes Act 1914 (Cth) ("the Act"). He found (at ROS 39) that in letters sent to the Court both respondents had expressed contrition and remorse, but that such expressions were of limited weight in circumstances where neither respondent had given evidence. 17In considering the pleas of guilty, his Honour set out (commencing at ROS 40) the history of the proceedings, before concluding that the plea entered by the respondent Blackman was forthcoming at committal and thus entered at the earliest opportunity. He found that this was not the case with the respondent Jomaa, his plea having been entered only after there had been proceedings in which requests had been made to the Crown to call a number of witnesses. His Honour concluded that whilst those requests were a legitimate use of court process, they nonetheless reflected a reluctance on the part of the respondent Jomaa to fully facilitate the course of justice. Ultimately, his Honour allowed a discount of 25% in the case of the respondent Blackman, and 20% in the case of the respondent Jomaa, to reflect the utilitarian value of the respective pleas. 18His Honour then considered the assistance given by the respondent Blackman to the authorities (commencing at ROS 42). He made reference to confidential information provided by the Australian Federal Police on sentence before finding (at ROS 42): "... there was some assistance, but ... in the end it was ranked as of very little value in a practical sense and therefore a matter to which only limited weight can be given. However, I am satisfied that some weight should be given to it, even though it might be of a modest degree." 19He proceeded to allow an additional discount of 5% on account of the respondent Blackman's assistance. 20Although not the subject of a specific finding, his Honour appears to have been generally of the view (at ROS 44-46) that the prospects of rehabilitation of each of the respondents were favourable. In terms of s. 16A(2)(p) of the Act his Honour found (at ROS 46) that whilst the effect of the sentences that he proposed would be profound on the family and close associates of the respective respondents, such effect was not exceptional. His Honour also noted (at ROS 47) that the respondent Jomaa had no criminal record and that the respondent Blackman's criminal record was of limited significance. 21Ultimately, his Honour concluded (at ROS 51) that the appropriate starting point in each case was a period of 14 years imprisonment. He then proceeded to impose the sentences I have previously outlined.

THE SUBMISSIONS OF THE CROWN 22The Crown did not assert that the sentencing judge had erred in principle, nor did the Crown assert that there was any error arising from any of his Honour's findings. The Crown submitted, by reference to five particular matters, that the sentence imposed in each case was manifestly inadequate, and that this Court should intervene in order to perform its function of establishing principles for the governance and guidance of courts having the duty of sentencing convicted persons (see Everett v R (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ, citing Griffiths v R (1977) 137 CLR 293 at 310). 23The five matters relied upon by the Crown as supporting the conclusion that the sentences were manifestly inadequate were: (i)the maximum penalty prescribed for the offence; (ii)the weight of the drug; (iii)the serious nature of the offending; (iv)the subjective circumstances of each respondent; and (v)a consideration of sentences imposed in what were said to be comparable cases. 24In the case of the respondent Blackman, the Crown advanced the additional submission that the discount allowed by the sentencing judge for assistance was manifestly excessive. The maximum penalty 25The Crown pointed to the fact that the applicable maximum penalty was life imprisonment, or a fine not exceeding $825,000.00, or both. It was submitted that the maximum penalty was not to be regarded as a mere formality, but rather as a sentencing yardstick to which careful attention needed to be paid when determining an appropriate sentence. Although not specifically put, inherent in the Crown's submission was the proposition that the sentencing judge had failed to give the maximum penalty appropriate consideration. The weight of the drug 26The Crown pointed to the fact that the commercial quantity applicable to cocaine was 2 kilograms, and emphasised that the amount of the drug in the present case was almost 16 times that quantity. The Crown also pointed to the fact that the cocaine had a wholesale value in excess of $9.9 million, and a street value in excess of $22.8 million. 27The Crown further submitted that the evidence supported a finding that both of the respondents knew of the weight of the drug prior to their collection of the bags. I have dealt with this submission in more detail below but it should be noted that the sentencing judge made no such finding. The nature of the offending 28The Crown submitted that the respondents had engaged in significant planning as evidenced by their activities in the week prior to the commission of the offence. The Crown pointed, in particular, to the fact that because the narcotics had been secreted in an otherwise legitimate importation of commercial goods, the respondents had been required to obtain information about the container, the date of its transportation and its location. The Crown submitted that once armed with that information, the respondents were then required to access the container and remove what they thought to be the drug. In these circumstances, the Crown argued in written submissions that the respondents were "senior operators in the criminal enterprise" such that "every other person referred to in the facts was subordinate to (them)". The latter submission cannot stand in light of the Crown's abandonment, in oral argument, of the proposition that the respondents were responsible for the "conscription" or "recruitment" of others, most notably Mr Long. 29Finally, the Crown emphasised a number of the findings made by the sentencing judge, including the finding that the respondents exercised a degree of independent judgment and initiative, as well as the finding that their involvement was a substantial and continuing one.

The subjective cases of the respondents 30The Crown submitted that there was nothing remarkable about the subjective case of either respondent. In particular, the Crown submitted that the evidence of the mental state of the respondent Jomaa was of no particular significance. 31The Crown further submitted that the discount which was allowed by the sentencing judge to reflect the past assistance of the respondent Blackman was manifestly excessive. The Crown pointed, in particular, to the fact that such assistance was unrelated to this offending and was found by his Honour to have been of little practical value. In submitting that a discount of 5% (which equated to 8 months) was manifestly excessive, the Crown declined to advance any specific submission as to the appropriate discount.

Sentences imposed in other cases 32Finally, the Crown provided the Court with a schedule containing details of sentences imposed in 33 other cases of similar offending. Ten of those cases were extracted and set out in a separate table in the Crown's submissions. The Crown submitted that the manifest inadequacy of the sentences imposed upon the respondents was evident from a consideration of the sentences imposed in those other cases. In particular, the Crown argued that the circumstances of the cases contained in the table set out in the written submissions were "broadly comparable" to the cases of each of the respondents.

SUBMISSIONS ON BEHALF OF THE RESPONDENT JOMAA 33Senior counsel for the respondent Jomaa commenced by emphasising that neither he nor the Crown took any issue with any of the findings made by the sentencing judge. He then proceeded to address the five factors relied upon by the Crown. 34Senior counsel submitted that the sentencing judge was obviously well aware of the maximum penalty, that he appropriately took it into account, and that in sentencing the respondents he did not diminish the seriousness of the offending. Senior counsel submitted that offending of this nature encompassed a wide range of culpability, and that focussing upon the maximum penalty was particularly inapposite in the present case in light of the respondent Jomaa's subjective case (which is discussed further below). 35Senior counsel acknowledged that the weight of the drug was an obviously important consideration on sentence. However, he submitted that it was not determinative of the objective seriousness of the offending. He emphasised that there was nothing to suggest that the respondent Jomaa was aware of the quantity of the drug at any time before the bags were collected, and submitted that the Crown had failed to identify any aspect of the sentencing judge's approach to this issue which indicated error. 36As to the objective seriousness of the offending, senior counsel emphasised that the sentencing judge had not found that there was any evidence of either respondent having played a direct role in the process of importation. He also pointed out that the sentencing judge had effectively found that the role of the respondent Jomaa was limited to involvement in arrangements for the collection and transportation of the drugs, and some "casing" of the Minto area in the week leading up to the commission of the offence. 37It was further submitted that the Crown's proposition that each respondent was a "senior operator in the criminal enterprise" was not supported by the evidence and in any event was not a finding made by the sentencing judge. Senior counsel also submitted that the Crown's reliance upon what was said to be the significant role played by the respondents was undermined by their direct involvement in the collection and transportation of the bags, and their arrest whilst in possession of them. 38Senior counsel submitted that the respondent Jomaa's subjective case was compelling, particularly in light of the unchallenged findings of the sentencing judge regarding the respondent's intellectual limitations and psychiatric condition. Indeed, he submitted that in light of those matters, it would have been open to the sentencing judge to place even greater weight on the respondent's subjective case than he ultimately did. 39Finally, in terms of the Crown's reliance upon sentences imposed in other cases, senior counsel submitted that the cases relied upon by the Crown were not comparable, even in a broad sense. In particular, he submitted that on the limited information available, none of the offenders in the cases relied upon by the Crown had any intellectual or similar problems of the kind suffered by the respondent Jomaa. SUBMISSIONS ON BEHALF OF THE RESPONDENT BLACKMAN 40Counsel for the respondent Blackman similarly emphasised that no issue was taken with any of the findings reached by the sentencing judge. He too acknowledged that the weight of the drug was a significant factor in determining the objective seriousness of the offence but submitted that there was no indication that the sentencing judge had erred in considering the importance to be attached to that circumstance. 41Counsel submitted that Blackman's involvement in the enterprise surrounding the importation was limited to his activities during the week prior to the commission of the offence, and his actions in collecting the bags. He submitted, in particular, that there was no evidence that the respondent Blackman was directly involved in the actual importation or that he was connected to those involved in it. Emphasis was placed upon the fact that his Honour had not found that the respondent Blackman had occupied any managerial role. 42Counsel submitted that the discount allowed by the sentencing judge on account of past assistance was completely consistent with his finding as to the value of the assistance which was provided. It was submitted that the discount was neither excessive nor disproportionate. 43In terms of the Crown's reliance upon sentences imposed in other cases, counsel pointed out that the Crown had adopted a similar position on sentence, and that the sentencing judge had concluded (at ROS 18-19) that the cases to which he had been referred provided only limited assistance. Counsel submitted, in effect, that the same could be said of the material now provided by the Crown and that the sentencing judge had applied the correct legal principles when considering the relevance of so called comparative sentences, as well as the relevance of the sentencing statistics which were made available to him.

CONSIDERATION 44As I have noted, the Crown has not pointed to any specific error on the part of the sentencing judge, but has submitted that by reference to the five matters in [23] above, this Court should conclude that the sentence imposed upon each of the respondents was manifestly inadequate. In these circumstances, the Crown must establish such sentences were unreasonable or plainly unjust (see Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 370-371; [25]). 45In my view, for the reasons that follow, the Crown has failed to make good its submission that the sentences were manifestly inadequate and the appeal in each case should be dismissed. 46I turn firstly to the Crown's reliance on the applicable maximum penalty. 47In Markarian v R (2005) 228 CLR 357 Gleeson CJ, along with Gummow, Hayne and Callinan JJ said (at 372): "[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observed that: 'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century...or because it has more recently been set at a high catch-all level... At other times the maximum may be highly relevant and sometimes may create real difficulties... A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].' [31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick." 48In the present case, the sentencing judge was plainly aware of, and paid careful attention to, the maximum penalty. So much is evident from the fact that he expressly referred to it on two separate occasions (at ROS 1 and ROS 37). His Honour said nothing which diminished the objective seriousness of the offending and his reasons were comprehensive. In these circumstances, the fact of the maximum penalty, either of itself or in combination with the other factors relied upon by the Crown, does not support a conclusion that the sentences imposed were manifestly inadequate. 49There is no doubt that the weight of the drug in the present case was significant, and that this was a relevant factor in determining an appropriate sentence (see R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72] per Johnson J, Macfarlan JA and R A Hulme J agreeing). It is also clear that the weight of an imported drug has added significance where an offender is aware of it (see Nguyen and Pham (supra) at [72]; Garcia v R [2013] NSWCCA 241 at [74]). Equally however, weight is not determinative, be it of the sentence itself or the range into which a sentence should fall (see DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [68] per Allsop P (as his Honour then was)). 50In the present case, the sentencing judge said (at ROS 20): "Forty-eight kilograms of cocaine with a street value between twenty-two and twenty-six million dollars is a very substantial amount of that drug, well in excess of a commercial quantity for the purposes of this offence. The potential effect therefore of the ultimate distribution of this drug was profound in terms of the very large number of potential users who would have access to a share of the consignment". 51His Honour then returned to this issue (at ROS 38) and said: "In particular, the quantity of the drug carried with it the prospect of a very substantial personal, social and financial cost to a significant number of potential users, had the drug found its way, as was intended, into their hands." 52It is evident from these passages that the sentencing judge was aware of the weight of the drug, and its significance in the determination of an appropriate sentence. If the Crown wished to argue, on sentence, that either or both of the respondents knew of the weight of the drug, it bore the onus of establishing that fact beyond reasonable doubt (see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]; 281). The sentencing judge made no such finding. 53Before this Court, the Crown submitted that the respondents must have known that the cocaine was capable of being collected with the aid of a utility, as opposed to a larger vehicle such as a truck, and that this sustained an inference of knowledge of the weight. That evidence was, of course, entirely circumstantial, and in my view was equally consistent with each respondent holding a belief that the amount of drug was capable of being secreted in two relatively small bags, and therefore the amount was at the lower end of the scale. 54In any event there were other, more fundamental, difficulties with the submission advanced by the Crown before this Court. Firstly the Crown did not challenge any finding reached by the sentencing judge. Secondly the Crown did not assert that the sentencing judge had erred in failing to reach any particular finding. In particular, the Crown did not assert that the sentencing judge had erred in failing to conclude that the respondents knew of the weight of the drug. In these circumstances, it was not open to the Crown, in support of the proposition that the sentences imposed were manifestly inadequate, to submit that this Court should find that each respondent had such knowledge. 55A similar observation may be made in relation to the Crown's submission that the respondents were "senior operators in the enterprise". The sentencing judge did not make such a finding and the Crown did not argue before this Court that his Honour had erred in failing to do so. 56It has been recognised that the circumstances leading to the commission of this particular offence can encompass a wide range of moral culpability. In particular, the circumstances in which a person might obtain possession of such material, and what it was that the person intended to do with it, can be relevant to determining the degree of moral culpability (see El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208 per Spigelman CJ at [33], James and Simpson JJ agreeing). It follows, as senior counsel for the respondent Jomaa pointed out, that the sentencing range will be similarly wide. I have already set out the findings which were made by the sentencing judge in relation to the circumstances of the respondents' offending, which are not the subject of any challenge. His Honour's reasons were comprehensive and he took all relevant factors into account. 57The Crown argued that much of the evidence in support of the subjective case of each respondent had been placed before the sentencing judge in a hearsay form and that as a result, such evidence remained untested in the absence of sworn evidence. Be that as it may, the Crown has not challenged the findings of the sentencing judge based upon that evidence. In the absence of such a challenge, the form in which the evidence was placed before the sentencing judge is immaterial. 58One of the important aspects of the subjective case of the respondent Jomaa concerned his mental health. In this regard, the sentencing judge made the following findings (commencing at ROS 47): "A matter which distinguishes the two offenders is not only Jomaa's intellectual limitations but his psychiatric and/or psychological condition. This was another matter which was commented on and indeed was the subject of diagnoses by a number of the authors of expert reports which are in evidence. Dr Roberts, for example, diagnosed major depression which required extensive psychological treatment which, according to Dr Roberts, would not be available as long as Mr Jomaa remained in custody. There was a similar expression of concern from Professor Woods, that is, that whatever was needed to address Mr Jomaa's psychological problems or psychiatric diagnoses was unlikely to be adequately available as long as he remained in full time custody. I just make one comment about that before I deal in more detail with his psychological condition. I am not satisfied that at least some appropriate psychiatric treatment would not be available and I do draw attention to the very serious need identified in the reports. I therefore recommend that when Mr Jomaa returns to full time custody that appropriate psychiatric treatment be made available. There is in my view no doubt that Mr Jomaa does have psychological problems which need to be addressed." 59The Crown's submission that the respondent Jomaa's subjective case was unremarkable ignores these unchallenged findings. 60In terms of the discount allowed in respect of the assistance of the respondent Blackman, the sentencing judge found that it was of "very little value in a practical sense". Whilst a discount of 5% might be viewed as generous, it could not be regarded as manifestly excessive. The discount was generally consistent with the finding reached by the sentencing judge as to the value of the assistance. 61The final matter for consideration is the Crown's reliance upon sentences imposed in other cases which were said to be comparative. Before dealing with the substance of that matter, it is appropriate to make some preliminary observations. 62Firstly, in R v Todoroski [2010] NSWCCA 75 the adoption of a similar approach by the Crown in support of a submission that the sentence imposed was manifestly inadequate gave rise to the following observations by Grove J (with whom Allsop P (as his Honour then was) and Hislop J agreed) at [26]: "The manifest inadequacy of the sentence was sought to be demonstrated by reference to a selection of other cases which were said to be comparable, and in some of which observations were made about appropriate ranges of sentence. It is not to criticise this approach that I note that every offence and every offender is different and the essential aim of all sentencing is to render individual justice. Comparable cases and statistics can be useful guides and departure from established sentencing patterns would require justification, but the exercise of sentencing discretion must be directed to fulfilment of the stated aim". 63Such observations are directly apposite to the present case. 64Secondly, it follows from Grove J's observations that in order to render the individual justice to which his Honour referred, care must be taken when the Court is asked to compare the sentence imposed in one case with the sentence imposed in another (see RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing; see also Nguyen and Pham (supra) at [106] per Johnson J, Macfarlan JA and R A Hulme J agreeing). 65Thirdly, particular care must be adopted when the Court is asked to engage in such a comparative exercise in cases of attempted possession of illicit drugs. This is because of the broad range of moral culpability which is encompassed by such offending (see Nguyen and Pham (supra) at [110] citing El-Ghourani (supra) at 218; [41]-[44]). 66Fourthly, the schedule provided by the Crown contained references to 33 separate cases, 10 of which were extracted from the schedule and set out in a separate table contained in the Crown's written submissions. It was submitted by the Crown that those latter 10 cases were "broadly comparable to the facts underlying the objective seriousness of the offences committed by Blackman and Jomaa". The Crown's use of the term "broadly comparable" tends to acknowledge the fact that cases differ, and that there is a need for care in engaging in comparisons. 67Finally, the Crown did not approach this aspect of the matter by exhaustively analysing, in detail, each and every case. However, I understood that by extracting 10 of the 33 cases in its written submissions, the Crown was arguing that those 10 cases were the most useful for comparative purposes. 68With all of that in mind, the first observation to be made is that in a number of the 33 cases set out in the Crown's schedule, the amount of the drug was less, as was the role played by the particular offender when compared with the present case. In some cases, those differences were substantial (see for example R v Tran and ors [2013] NSWCCA 136; R v Considine [2013] NSWCCA 97; R v Karan [2013] NSWCCA 53). In each of those three cases, the sentences imposed upon the respective offenders were, as one might expect, less than the sentences imposed upon the present respondents. In my view those cases, and others like them, provide little or no assistance and do not support the Crown's submission that the present sentences are manifestly inadequate. The differentiating features to which I have referred are such that those cases are not properly regarded as comparable, even in the broadest possible sense. 69Of the 10 cases set out in the Crown's written submissions, 8 involved amounts of drug which were less (and, in the majority of cases, substantially less) than the amount in the present case. The amount of the drug is, as I have pointed out, not determinative of sentence. That said, the amounts in some of those 8 cases are so far removed from the circumstances of the present case that they are immediately distinguishable. 70The first of the two remaining cases referred to in the table set out in the Crown's written submissions is that of Nguyen and Pham (supra). The Crown cited that case as one in which the criminality of one of the offenders (Pham) was comparable to that of the present respondents. 71Pham had pleaded guilty to an offence of attempting to possess a quantity of approximately 27 kgs of cocaine which had been imported into Australia. A charge of attempting to possess approximately 13.4 kgs of methamphetamine was taken into account on sentence. At first instance the offender was sentenced to 11 years imprisonment, with a non-parole period of 7 years. That sentence was set aside by this Court and a sentence of 15 years imprisonment, with a non-parole period of 10 years, was imposed. Such sentence took into account a discount of 10% to reflect the utilitarian value of the plea of guilty. 72The findings reached by the sentencing judge regarding Pham's role were not the subject of challenge on the Crown appeal. That role included (as set out at [36]): (i)supervising the co-offender; (ii)travelling from Canada to Australia for the specific purpose of engaging in the offending; (iii)physically removing what were thought to be drugs from storage, and liaising with persons in Canada; (iv)providing instructions to the co-offender, and physically transporting some of what she thought were drugs to another person; and (v)engaging in such activities in full awareness of being involved in an enterprise which had, as its object, the distribution of a large quantity of drug. 73On any view, Pham's criminality was greater than that of either of the respondents in this case. Given that, it is unsurprising that the sentence imposed by this Court upon Pham was greater. In these circumstances, the decision in Pham and Nguyen provides no assistance to the Crown. 74The second of the two remaining cases in the Crown's table was that of R v Hong; R v Lee [2012] NSWDC 267. In that case, the offenders had come to Australia for the specific purpose of facilitating an importation of approximately 24 kgs of heroin. They were aware not only of the importation, but also of the method by which it was to be effected. 75The sentencing judge found (at [27]) that both offenders were "critical participants in the enterprise of importing drugs into Australia as well as the initial stages of its intended distribution". He also found (at [29]) that the offenders were "entrusted with the responsibility of managing a consignment of a very large amount of heroin which had arrived in Australia" and were "responsible for its collection, transit to temporary storage and passing on to somebody else in Australia, no doubt for ultimate distribution ...". The activities of the offenders extended over a period of 3 weeks between their arrival in Australia and their apprehension. 76The offender Hong was sentenced to imprisonment for 15 years with a non-parole period of 10 years, and the offender Lee to imprisonment for 13 years and 6 months, with a non-parole period of 9 years. Each sentence was imposed after applying a discount of 25% to reflect the pleas of guilty which had been entered. 77I am unable to accept the Crown's submission that the roles of Hong and Lee were comparable to those of the respondents. Their roles are distinguishable on several bases, including the fact that Hong and Lee specifically travelled to Australia to manage the consignment, along with the fact that the activities in which they engaged, and which were directed to the importation, were carried out over a substantially longer period of time than either of the present respondents. That the sentences imposed upon Hong and Lee were greater than those imposed upon the respondents is completely consistent with those circumstances. 78Senior counsel for Jomaa submitted, in my view with some considerable force, that the following propositions emerged from the 33 cases in the Crown's schedule: (i)almost half of the offenders in those cases received sentences which were less than that imposed upon one or both of the respondents; (ii)the head sentences ranged from 1 year and 8 months to 18 years; (iii)in terms of cocaine, the amounts ranged from 3.173 kgs to 27,153 kgs; (iv)some offenders who received lesser sentences than either or both of the respondents occupied roles which were greater; (v)in a number of instances where offenders had occupied greater roles, the sentences imposed had been less than those imposed in the present case. 79All of those matters simply confirm, if any confirmation were needed, that facts of cases obviously differ, and that this will necessarily result in the imposition of different sentences. 80The sentences imposed upon each of the respondents could well be described as lenient. They fell at the very bottom of what might be regarded as the appropriate sentencing range. However for the reasons outlined, I am not satisfied that either sentence is manifestly inadequate. 81In particular, reference to the schedule of cases relied upon by the Crown does not support a conclusion that the sentencing judge departed from any established sentencing pattern or range in a way which warrants the intervention of this Court. ORDERS 82I would propose the following order in each case: (i)The Crown appeal is dismissed.

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: 28 May 2014