Director of Public Prosecutions (Cth) v De La Rosa

Australian Constitution Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1914 (Cth) Crimes Legislation Amendment Act (No 2) 1990 (Cth) LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Customs Act 1991 (Cth) Judiciary Act 1903 (Cth) Mental Health (Criminal Procedure) Act 1990 (NSW)

Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593 Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39; 203 CLR 136 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 Barany v R [2000] WASCA 240; (2000) 114 A Crim R 426 Berlitone v R [2009] WASCA 149; (2009) 231 FLR 383 Bibaoui [1997] 2 VR 600 Blay v R [2006] WASCA 248; (2006) 205 FLR 414 British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30 Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268 Cao v R [2009] NSWCCA 273 Cheatle v The Queen [1993] HCA 44; 177 CLR 541 Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; 88 CLR 168 Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49 Courtney v R [2007] NSWCCA 195 Danial v R [2008] NSWCCA 15 Davidson v R [2009] NSWCCA 150 De Bonde v R [2002] WASCA 251 De Campos v R [2006] NSWCCA 51 De La Espriella-Velasco v R [2006] WASCA 31; (2006) 31 WAR 291 Diefenbach v R [1999] WASCA 4; (1999) 108 A Crim R 19 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60 Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123 El-Ghourani v R [2009] NSWCCA 140 Everett v The Queen [1994] HCA 49; 181 CLR 295 Forsyth v The Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 Gett v Tabet [2009] NSWCA 76; 254 ALR 504 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Harris v R [2004] WASCA 292; (2004) 150 A Crim R 509 Heryadi v R (1998) 19 WAR 383; (1998) 98 A Crim R 578 House v The King [1936] HCA 40; 55 CLR 499 John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Kelly v Saadat-Talab [2008] NSWCA 213; 72 NSWLR 305 Kwong v R (1997) 97 A Crim R 283 Lam v R [2009] VSCA 148 Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 Law v R [2006] NSWCCA 100 Le v R [2006] NSWCCA 136 Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470 at 489 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Malvaso v The Queen [1989] HCA 58; 168 CLR 227 Mazzitelli v R [2002] NSWCCA 436; (2002) 135 A Crim R 132 Medina v The Queen (1990) 108 FLR 288 Milich v R [2008] NSWCCA 148 Miller v R [1999] WASCA 66 Minister for the Army v Parbury Henty & Co Pty Ltd [1945] HCA 52; 70 CLR 459 Mirza v R [2007] NSWCCA 257 Mohlasedi v R [2006] WASCA 267 Monahan v McLeod [2004] QDC 10 Navasardian v R; Petrosyan v R [2009] NSWCCA 108 Nguyen v R [2009] NSWCCA 273 Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 NP v R [2008] NSWCCA 205 P v R [2003] WASCA 180 Parry v R [2003] WASCA 222 Pedersen v Young [1964] HCA 28; 110 CLR 162 Peel v The Queen [1971] HCA 59, 125 CLR 447 Phan v R [2009] NSWCCA 273 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; (1997) 98 A Crim R 134 Putland v The Queen [2004] HCA 8; 218 CLR 174 R v Acosta [1999] NSWCCA 334 R v B [2004] WASCA 1 R v Baldock [2010] WASCA 170 R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1 R v Bartlett [2005] NSWCCA 103 R v Bateman [2000] NSWSC 915 R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 R v Bimahendali (1999) 109 A Crim R 355 R v Carroll [2010] NSWCCA 55 R v Carstein [2007] QCA 209; (2007) 174 A Crim R 491 R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 R v Chandler [2010] QCA 21 R v Chea and Ors [2008] NSWCCA 78 R v Chong [2009] NSWDC 377 R v Diez [2003] NSWCCA 329; (2003) 181 FLR 1 R v Do [2005] NSWCCA 258 R v Egbue (Unreported, District Court of NSW, 22 September 2003) R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Fry [2003] NSWCCA 329; (2003) 181 FLR 1 R v Geerlings [2007] QCA 209; (2007) 174 A Crim R 491 R v Harb [2001] NSWCCA 249 R v Hayes (1987) 29 A Crim R 452 R v Hemsley [2004] NSWCCA 228 R v Henry [2007] NSWCCA 90 R v Hoang [2006] NSWDC 185 R v Hovorka (Unreported, District Court of NSW, 17 December 2007) R v Huynh (2008) 180 A Crim R 517 R v Israil [2002] NSWCCA 255 R v Jackson (1998) 72 SASR 490 R v Jain [2004] VSCA 20 R v Jiminez [1999] WASCA 7 R v Jimson [2009] QCA 183 R v JW [2010] NSWCCA 49 R v Kaldor [2004] NSWCCA 425 CASES CITED : R v Kevenaar & Ors [2004] NSWCCA 210 R v Klein [2001] NSWCCA 120; (2001) 121 A Crim R 90 R v Krasnov & Shlakht (1995) 125 FLR 120 R v Labanon [2006] QCA 529 R v Lake [2007] QCA 209; (2007) 174 A Crim R 491 R v Laurentiu (1992) 63 A Crim R 402 R v Lawrence (2005) NSWCCA 91 R v Le (Unreported, Victorian Court of Appeal, 19 February 2010) R v Lee [2007] NSWCCA 234 R v Liu [2005] NSWCCA 378 R v Mascaro-Varillas [2002] NSWCCA 524 R v Mattheyer (Unreported, District Court of NSW, 18 April 2008) R v Mirzaee [2004] NSWCCA 315 R v Mohammadi [2006] QCA 530; (2006) 175 A Crim R 384 R v Mokoena [2009] QCA 36; [2009] 2 Qd 351; (2009) 193 A Crim R 351 R v Muanchukingkan (1990) 52 A Crim R 354 R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493 R v Ngui and Tiong [2000] VSCA 78; (2000) 1 VR 579; (2000) 111 A Crim R 593 R v Nhu Mai Huynh Nguyen [2006] NSWCCA 369; (2006) 205 FLR 79 R v Nhu Thi Hong Ho; R v Thanh Nhu Ho [2007] NSWDC 27 R v Nikolovska [2009] NSWDC 291 R v Ntsi (Unreported, District Court of NSW, 27 August 2004) R v Okafor [2007] NSWCCA 147 R v Okeke [2005] NSWCCA 444 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v ONA [2009] VSCA 146 R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366 R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525 R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451 R v Pearson [2004] NSWCCA 129 R v Perrier [1991] 1 VR 717; (1990) 59 A Crim R 164 R v PHA [2004] NSWCCA 445 R v Pham [2005] NSWCCA 314 R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26 R v Riddell [2009] NSWCCA 96 R v Roberti [2003] NSWCCA 329; (2003) 181 FLR 1 R v Robillard [2007] NSWDC 115 R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10 R v Salcedo [2004] NSWCCA 430 R v Salles (Unreported, Queensland Court of Appeal, 20 May 1997) R v Saputra [2009] NSWDC 239 R v SC [2008] NSWCCA 29 R v Schmakowski [2001] NSWCCA 395 R v Scott [2003] NSWCCA 28 R v Skura [2004] VSCA 53 R v Springer (2007) 177 A Crim R 13 R v Springer [2009] NSWCCA 144 R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 R v Studenikin [2004] NSWCCA 164 R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577 R v Talbot [2009] TASSC 107 R v Tee (1994) 61 SASR 501; (1994) 71 A Crim R 181 R v Thinh Tang (Unreported, Supreme Court of Victoria (Court of Appeal) 2 October 1997) R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121 R v Todoroski [2010] NSWCCA 75 R v Toure [2008] NSWDC 335 R v Tran [2007] QCA 221; 172 A Crim R 436 R v Trang (Unreported, District Court of NSW, 16 February 2007) R v Tsay [2006] QCA 423 R v Tsiarias [1996] 1 VR 398 R v Verdins [2007] VSCA 102; (2007) 16 VR 269 R v Vo; R v Tun Thanh Tran [2006] NSWCCA 165 R v W [2002] NSWCCA 192; (2002) 129 A Crim R 400 R v Wangsaimas [1997] HCA 51; (1997) 190 CLR 378 R v Wong [1999] NSWCCA 420, 48 NSWLR 340 R v Wright (1997) 93 A Crim R 48 R v Wright [2003] WASCA 56; (2003) 138 A Crim R 390 Radebe v R [2001] WASCA 254; (2001) 162 FLR 313; (2001) 122 A Crim R 559 Rohde v Director of Public Prosecutions [1986] HCA 50, 161 CLR 119 Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214 Seng v R [2007] NSWCCA 335 Sevilla v R [2007] WASCA 116 Soewandi v R [2002] WASCA 315 Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 Speer v R [2004] NSWCCA 118; [2005] NSWCCA 333 Tan v R [2009] VSCA 148; (2009) 22 VR 706 Tanadi v R [1999] WASCA 188 Tansakun v R [1997] HCA 51; (1997) 190 CLR 378 Taylor v R [2007] WASCA 146; (2007) 172 A Crim R 430 Teng v R [2009] VSCA 148; (2009) 22 VR 706 The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation ("GMAC case") [1977] HCA 34; 137 CLR 545 The Queen v Kiltie (1986) 41 SASR 52 The Queen v LK; The Queen v RK [2010] HCA 17 Thom v R [2001] WASCA 322; (2001) 126 A Crim R 196 Tiong [2000] VSCA 78; 2 (2000) 1 VR 579 Tsen v R [2010] WASCA 21 Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458 Tyn v R [2009] NSWCCA 146 Vanit v R [1997] HCA 51; (1997) 190 CLR 378 Vasquez-Felipe v R [2006] NSWCCA 411 Victoria v Commonwealth [1937] HCA 82; 58 CLR 618 Viera v R; Teehan v R [2006] NSWCCA 401 Weininger v R (2003) 212 CLR 629 White v R [2006] NSWCCA 340 Whittaker v The King [1928] HCA 28; 41 CLR 230 Williams v The King [No 2] [1934] HCA 19; 50 CLR 551 Wilson v Alexander [2003] FCAFC 272; 135 FCR 273 Wong v R [2009] VSCA 148 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 X v R [2000] WASCA 355

TEXTS CITED: Australian Law Reform Commission Report No 103, Same Crime, Same Time - Sentencing of Federal Offenders Australian Law Reform Commission Report No 44, Sentencing

PARTIES: Director of Public Prosecutions (Cth) (Appellant) Jose Miguel Garcia De La Rosa (Respondent)

COUNSEL: W J Abraham QC/L Crowley (Appellant) P Strickland SC/D O'Neil (Respondent)

SOLICITORS: Commonwealth Director of Public Prosecutions (Appellant) Legal Aid Commission of NSW (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2009/1196

ALLSOP P BASTEN JA McCLELLAN CJ at CL SIMPSON J BARR AJ

17 September 2010 Director of Public Prosecutions (Cth) v Jose Miguel Garcia De La Rosa HEADNOTE The respondent pleaded guilty to the importation of the border controlled drug cocaine, in a marketable quantity (1870 grams), contrary to s 307.2(1) of the Criminal Code 1995 (Cth). On 16 November 2008, Zahra DCJ sentenced the respondent to imprisonment for eight years, with a non-parole period of five years. The Commonwealth Director of Public Prosecutions appealed against the sentenced imposed on the basis of manifest inadequacy.

Section 68(2) of the Judiciary Act 1903 (Cth) confers appellate jurisdiction on this Court in respect of Commonwealth offences, applying s 5D of the Criminal Appeal Act 1912 (NSW). Section 16A of the Crimes Act 1914 (Cth) identifies matters which, if known and relevant, must be taken into account when determining a sentence; sub-section 16A(2)(m) encompasses the "mental condition of the person".

Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) precludes a court dismissing a prosecution appeal against sentence, or imposing a less severe sentence than it would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. "Double jeopardy" refers to the distress and anxiety to which a respondent is presumed to be subject by reason of being exposed to the risk of a more severe sentence: Rv JW [2010] NSWCCA 49."

The issues for determination on appeal were: (i) Whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) was inconsistent with s 16A of the Crimes Act 1914 (Cth), for the purposes of s 109 of the Constitution. (ii) Whether s 16A of the Crimes Act 1914 (Cth) was a Commonwealth law which provided otherwise, so that s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) was not picked up by s 68 (or ss 79 and 80) of the Judiciary Act 1903 (Cth). (iii) Whether the sentence imposed was manifestly inadequate.

The Court held, dismissing the appeal: In relation to (i) (per curiam)

1. There is no inconsistency between s 16A of the Crimes Act 1914 (Cth) and s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), for the purposes of s 109 of the Constitution, since s 68A is not to be construed as operating of its own force, to sentencing for criminal offences created by Commonwealth law: [28]-[56], [79], [162], [273], [314]. R v Todoroski [2010] NSWCCA 75; R v Baldock [2010] WASCA 170 followed. Northern Territory v GPAO [1999] HCA 8; 196 CLR 553; Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251; Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49; John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65 cited. R v Talbot [2009] TASSC 107 distinguished.

In relation to (ii) (per McClellan CJ at CL, Simpson J and Barr AJ agreeing): 2. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) precludes reliance by this Court upon the presumption that the respondent is suffering anxiety and distress. It has not removed from consideration any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced. Section 16A(2) of the Crimes Act 1914 (Cth) requires that the catalogue of matters identified in the subsection be taken into account when relevant and "known to the court" in reference to actual, rather than presumed, anxiety and distress. It follows that s 68A is not in conflict with s 16A(2)(m) so as to prevent any of ss 68, 79 and 80 of the Judiciary Act 1903 (Cth) picking up s 68A and applying it to a Commonwealth offence: [162]-[180], [274]-[282], [315]. DPP (Cth) v El Karhani (1990) 51 A Crim R 123; 21 NSWLR 370; R v JW [2010] NSWCCA 49 followed. R v Thinh Tang (Unreported, Supreme Court of Victoria (Court of Appeal) 2 October 1997); R v Scott [2003] NSWCCA 28; R v Hayes (1987) 29 A Crim R 452; R v JW [2010] NSWCCA 49; R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398; R v Fahda [1999] NSWCCA 267; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333; R v Harb [2001] NSWCCA 249; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228; R v Verdins [2007] VSCA 102; Courtney v R [2007] NSWCCA 195; R v Henry [2007] NSWCCA 90; Miller v R [1999] WASCA 66; R v Jiminez [1999] WASCA 7; R v Pearson [2004] NSWCCA 129; R v Wright (1997) 93 A Crim R 48; R v Lawrence (2005) NSWCCA 91; R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 Monahan v McLeod [2004] QDC 10 cited.

(per Allsop P, dissenting) 3. To permit s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) to operate would be contrary to, and impliedly repeal, in part, s 16A(2)(m) of the Crimes Act 1914 (Cth), removing from the Court's consideration a part of the person's mental condition, even if it only be presumed by the common law to exist. Section 68A is not picked up in, and for the purposes of, the sentencing task here to be undertaken by the appeal court. That task is not limited to the ascertainment of sentence, but extends to the ascertaining of the correct order on the appeal: [37]-[54]. R v JW [2010] NSWCCA 49; Kelly v Saadat-Talab [2008] NSWCCA 213; 72 NSWLR 305 followed. Northern Territory v GPAO [1999] HCA 8; 196 CLR 553; Austral Pacific Group Pty (in liq) v Airservices Australia [2000] HCA 39; 203 CLR 136; Putland v The Queen [2004] HCA 8; 218 CLR 174; Johnson v The Queen [2004] HCA 15; 78 ALJR 616; Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268; Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470; DPP (Cth) v El Karhani (1990) 21 NSWLR 370; The Queen v Kiltie (1986) 41 SASR 52 cited. R v Talbot [2009] TASSC 107 distinguished.

(per Basten JA dissenting) 4. Section 68A of the Crimes (Appeal and Review) Act 2001 (NSW) removed from sentencing consideration the additional distress and anxiety caused by the possibility of a harsher sentence on appeal. This kind of anxiety and distress falls within the scope of s 16A(2)(m) of the Crimes Act 1914 (Cth). As the original specification of factors in s 16A(2) pre-dated similar provisions in State and Territory laws, the purpose and effects of s 16A could be impaired by the application of State and Territory laws to different effect. The opening words of sub-s 16A(2) incorporate a mandatory requirement to consider such additional matters as are known and relevant in accordance with general law principles, even though they are not listed: [100]-[107]. R v JW [2010] NSWCCA 49 cited.

5. Although sub-s 16A(1) of the Crimes Act 1914 (Cth) refers to a sentence appropriate in all the circumstances of "the offence", that language cannot be intended to exclude the personal circumstances of the offender or there would be an inconsistency between that which each subsection mandates. To the extent that sub-s 16A(2) is comprehensive, it does not permit qualification or restriction by State law. An approach which permitted such qualifications or restrictions where, on a semantic analysis, it was not clear that s 16A had expressly covered a particular consideration, would be so inimical to the proper administration of criminal justice that it is not an approach which should be adopted where a reasonable alternative is available: [108]-[110].

In relation to (iii) (per curiam) 6. On the facts and bearing in mind the applicable maximum sentence, the sentence did not fall outside the sentencing judge's proper range of discretion: [66]-[69], [134]-[175], [254]-[271], [291]-[311], [313]. Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; R v Schmakowski [2001] NSWCCA 395, followed. Lowndes v The Queen [1999] HCA 29; 195 CLR 665; Everett v The Queen [1994] HCA 49; 181 CLR 295; Heryadi v R (1998) 19 WAR 383; (1998) 98 A Crim R 578; R v Acosta [1999] NSWCCA 334; Tanadi v R [1999] WASCA 188; X v R [2000] WASCA 355; R v Ngui and Tiong [2000] VSCA 78; (2000) 1 VR 579; (2000) 111 A Crim R 593; Radebe v R [2001] WASCA 254; (2001) 162 FLR 313; (2001) 122 A Crim R 559; Thom v R [2001] WASCA 322; (2001) 126 A Crim R 196; P v R [2003] WASCA 180; Parry v R [2003] WASCA 222; R v Mirzaee [2004] NSWCCA 315; R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451; R v Do [2005] NSWCCA 258; R v Pham [2005] NSWCCA 314; R v Vo; R v Tun Thanh Tran [2006] NSWCCA 165; Anna Le v R [2006] NSWCCA 136; Viera v R; Teehan v R [2006] NSWCCA 401; De Campos v R [2006] NSWCCA 51; Mirza v R [2007] NSWCCA 257; R v Mokoena [2009] QCA 36; [2009] 2 Qd 351; (2009) 193 A Crim R 351; Tyn v R [2009] NSWCCA 146; Tsen v R [2010] WASCA 21; R v Laurentiu (1992) 63 A Crim R 402; R v Bimahendali (1999) 109 A Crim R 355; R v Ferrer-Esis (1991) 55 A Crim R 231; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; R v Liu [2005] NSWCCA 378; R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531; R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430; R v Muanchukingkan (1990) 52 A Crim R 354; R v Klein [2001] NSWCCA 120; (2001) 121 A Crim R 90; R v Robillard [2007] NSWDC 115; R v Hovorka (Unreported, District Court of NSW, 17 December 2007); R v Mattheyer (Unreported, District Court of NSW, 18 April 2008); R v Toure [2008] NSWDC 335; R v Saputra [2009] NSWDC 239 cited.

(per Allsop P and Basten JA): 7. The argument as put came close to requiring the quantity of the drug to dictate the seriousness of the offence and thus the sentence. Such an approach would be wrong. It is a factor, but it does not govern the sentence and the range into which it must fall: [68], [135]. Wong v The Queen [2001] HCA 64; 207 CLR 584 cited.

(per Basten JA) 8. When this Court is asked by the Commonwealth Director to intervene to increase a sentence imposed on a federal offender, such intervention cannot be justified purely on the basis of reference to other decisions within this jurisdiction. More than principles of comity require that the Court must be satisfied of manifest inadequacy, having regard to comparable sentenced from other parts of the country, if available: [126]. R v Chandler [2010] QCA 21; R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10 cited.

9. The case originally presented by the Director was deficient and failed to establish manifest inadequacy of the sentence imposed on the respondent. The appeal should have been dismissed on that basis. The Court should not undertake its own research in order to satisfy itself as to the range of sentences applied nationally in respect of the offence for which the respondent was convicted: [73]-[78], [129]. House v The King [1936] HCA 40; 55 CLR 499; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 followed.

(per Simpson J) 10. The task of this Court is to examine the sentence imposed, and, in the case of a Crown appeal, to determine whether it is manifestly inadequate, or in the case of a severity appeal, to determine whether it is manifestly excessive. In undertaking that task, the Court assumes a responsibility not only to the parties, but to the community as a whole. In doing so, the Court may well be assisted by examination of previous decisions, sometimes additional to those cited by the parties. Occasionally, the Court does not receive an adequate level of assistance. In those circumstances, in order to discharge its function, it may be necessary that the Court undertake its own research and investigation: [283]-[290]. IN THE COURT OF CRIMINAL APPEAL 2009/1196

ALLSOP P BASTEN JA McCLELLAN CJ at CL SIMPSON J BARR AJ

17 September 2010 Director of Public Prosecutions (Cth) v Jose Miguel Garcia De La Rosa Judgment 1 ALLSOP P: This is a Crown appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed by a Judge of the District Court of New South Wales (Zahra DCJ) upon the respondent in respect of his conviction upon a plea of guilty for the importation on 16 November 2008 of a border control drug, namely cocaine, in a marketable quantity (1,870 grams) contrary to s 307.2(1) of the Criminal Code (Cth). The respondent was sentenced to imprisonment for eight years from 16 November 2008 to expire on 15 November 2016, with a non-parole period of five years expiring on 15 November 2013.

Whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) applies 2 It is necessary first to deal with the question whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) (the "Crimes (A and R) Act") is constitutionally valid and, if so, whether it is "picked up" by the operation of any one or more of ss 68, 79 and 80 of the Judiciary Act 1903 (Cth). 3 Although, of course, a Constitutional issue should only be dealt with if necessary to do so, these issues are appropriate to deal with first (and notwithstanding my views otherwise on the appeal) for two reasons. First, for the reasons discussed below the issue to be decided is not a Constitutional issue. It is one as to the operation of the Judiciary Act. Secondly, a five judge bench was assembled to deal with the issue. A number of Commonwealth Crown appeals await the result and the business of the Court will be expedited by a decision on the question. 4 Notices under the Judiciary Act, s 78B adequately describing the Constitutional arguments propounded were despatched to the Attorneys-General of the Commonwealth, States and Territories in adequate time before the appeal. 5 The various arguments were as follows:

1. Section 68A was inconsistent with the Crimes Act 1914 (Cth), s 16A and therefore invalid in respect of Commonwealth offences by reason of the Australian Constitution , s 109.

2. Section 68A was inconsistent with the integrity of the Court of Criminal Appeal and its capacity to function as a court under the Australian Constitution , Ch III.

3. Section 68A was not picked up by any possibly relevant provision of the Judiciary Act . 6 Section 68A of the Crimes (A and R) Act is in the following terms: "68A (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal."

The statutory context 7 Various provisions of the Judiciary Act are relevant. Section 68(2) of the Judiciary Act confers jurisdiction on State and Territory courts in criminal matters, including appeals under Commonwealth law, as follows:

"68 (2) The several Courts of a State or Territory exercising jurisdiction with respect to: (a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

(c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth." 8 Section 68(2) operates here to apply the Criminal Appeal Act 1912 (NSW), s 5D so as to give this Court jurisdiction to hear Crown appeals in relation to Commonwealth offences and convictions: Peel v The Queen [1971] HCA 59; 125 CLR 447; Rohde v DPP [1986] HCA 50; 161 CLR 119; and see generally The Queen v LK; The Queen v RK [2010] HCA 17 at [18]-[20]. 9 The law to apply in the exercise of such jurisdiction is provided for, relevantly here, by the Judiciary Act, ss 68(1), 79 and 80. 10 Section 68(1) of the Judiciary Act provides for laws of a State or Territory to apply to trials and appeals of Commonwealth offences and provide for the application of certain State and Territory laws in Commonwealth criminal jurisdiction: "68 (1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: (a) their summary conviction; and (b) their examination and commitment for trial on indictment; and (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section." 11 Two aspects of s 68(1) should be noted immediately for presently relevant circumstances:

(a) the provision deals with laws respecting the procedure for the hearing and determination of appeals; and

(b) the State or Territory laws apply "so far as they are applicable". 12 The picking up of State and Territory law by s 68(1) by reference to procedure might perhaps be seen as narrower than the terms of s 79 of the Judiciary Act, dealing with applicable law in the exercise of federal jurisdiction, which is, relevantly, as follows: "79 (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable." 13 It is clear that s 79 operates beyond practice and procedure and picks up substantive law: Commissioner of Stamp Duties (NSW) v Owens (No 2) [1953] HCA 62; 88 CLR 168 at 170; Austral Pacific Group Ltd (In liq) v Airservices Australia [2000] HCA 39; 203 CLR 136; British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; 217 CLR 30 at 59 [65]; and Wilson v Alexander [2003] FCAFC 272; 135 FCR 273 at 279 [19]. 14 The word "procedure" in the chapeau to s 68(1) and in s 68(1)(c) ("the procedure for … their trial and conviction on indictment") has been held to include powers conferred under sentencing laws: Putland v The Queen [2004] HCA 8; 218 CLR 174 at 188 [34] (per Gummow J and Heydon J, with whom Callinan J agreed at 215 [121]). It can be accepted that the meaning of procedure in its context in s 68(1)(d) ("[the procedure for …] the hearing and determination of appeals …") would be the same. 15 In R v ONA [2009] VSCA 146, Neave JA raised the question (at [112]-[113]) whether these views in Putland applied only to State provisions dealing with (procedural) powers to make particular types of sentencing orders, and not to provisions that could otherwise be seen to deal with (substantive) issues of sentencing discretion. Her Honour did not have to resolve this question because of the wider reach of s 79. That is, if s 68(1) did not pick up laws concerning sentencing, s 79 would otherwise do so, subject to the operation of its terms. I will take a similar course. It is a course consistent with the refusal of the High Court in Ah Yick v Lehmert [1905] HCA 22; 2 CLR 593 to read down s 39 of the Judiciary Act in the light of the specific provisions made in ss 68, 72 and 77: see LK and RK at [15]. 16 Related to the operation of ss 68 and 79 is s 80 of the Judiciary Act which provides for the common law of Australia to apply in the exercise of federal jurisdiction: "80 So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters." 17 The phrases "so far as they are applicable" in s 68(1) and "except as otherwise provided" in s 79(1) have "little, if any, functional difference": Putland v The Queen at 179 [7] (per Gleeson CJ) and 189 [41] (per Gummow J and Heydon J with whom Callinan J agreed at 215 [121]) and see Kelly v Saadat-Talab [2008] NSWCA 213; 72 NSWLR 305 at 307 [2] (special leave refused). As to the meaning of these phrases, see the discussion of the relevant authorities in Kelly v Saadat-Talab at 307-309 [3]-[9]. It can be accepted that the phrase in s 80, "so far as it is applicable and not inconsistent with", has the same meaning as the cognate phrases in ss 68 and 79. 18 The specific State law here said to be picked up by s 68(1) or ss 79 and 80 is s 68A of the Crimes (A and R) Act. 19 The meaning and content of s 68A were discussed in R v JW [2010] NSWCCA 49 at [44]-[146] by Spigelman CJ, with whose reasons in this respect all members of the Court agreed. For present purposes, it is sufficient to set out [141] of the Chief Justice's reasons: "[141] The following propositions emerge from the above analysis:

(i) The words 'double jeopardy' in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.

(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.

(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.

(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.

(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise." 20 The submissions on behalf of the Crown in JW had originally placed a wide meaning on the phrase "double jeopardy". The submission was later narrowed by the Attorney-General (which the Director of Public Prosecutions accepted). The narrowing of the submission was discussed in JW at [47]-[53], as follows: "[47] With respect to the scope of s 68A, the principal submission on the part of the Attorney was stated in writing as follows: '… the words "any element of double jeopardy" in s 68A refer to the principle that an appeal court may apply a discount in sentencing an offender because the offender is being sentenced twice. It is evident that this is the only element of double jeopardy addressed in s 68A.'

[48] In the course of advancing this submission, reliance was placed on an Agreement in Principle Speech (a new name for a Second Reading Speech) made by the Parliamentary Secretary on the Amendment Bill in the New South Wales Legislative Assembly on 23 September 2009. This was in the same terms as the Second Reading Speech tabled in the New South Wales Legislative Council on 22 September 2009. In each case, the Parliamentary Secretary identified the practice under the double jeopardy principle to the effect that 'the Court will … give an automatic discount because the offender is being sentenced a second time for the same offence'.

[49] Mr J Griffiths SC, who appeared for the Attorney General, characterised the 'discount' referred to by the Parliamentary Secretaries in written submissions as amended in oral argument, as follows: 'The discount was intended to reflect the distress and anxiety of facing sentence again irrespective of the circumstances of the particular offender.'

[50] I note at this stage that, as the authorities to which I will shortly refer indicate, it is not appropriate to confine the double jeopardy principle to a 'discount'. The double jeopardy principle was also deployed in significant degree to the exercise of the discretion not to intervene and resentence the applicant at all. Furthermore, an issue has arisen as to whether s 68A affects references in the case law to the 'rarity' of Crown appeals.

[51] Mr D Arnott SC, who appeared for the Crown, also submitted that s 68A 'excludes only the distress and anxiety of facing sentence a second time'. The Crown, correctly in my opinion, distinguished between distress and anxiety of facing sentence for the first time, which is an inevitable concomitant in most cases of a conviction, and the additional distress and anxiety caused by the possibility of a harsher sentence on appeal.

[52] The Crown accepted that the anxiety and distress of an offender facing a term of imprisonment may be relevant, by reason of the subjective circumstances of that particular offender. It submitted that s 68A was not directed to that consideration. I agree that such anxiety and distress may be relevant to resentencing. It is capable of being a significant indication that considerations of personal deterrence are not to be given significant weight. That appears to be the case on the facts of the matter before the Court.

[53] The original Crown submission, which submitted that a wider range of matters relevant to the exercise of the sentencing discretion fell within the double jeopardy principle, was withdrawn. The matters withdrawn were: '… damage to reputation, legal costs, negative effects on third parties such as family members, completion of the sentence by the respondent or his or her imminent release from custody, delay by the Crown in lodging the appeal or in notifying the respondent of the appeal, errors by the Crown representative at sentencing that led the sentencing judge into error or acquiescence in the sentence by the Crown, and "tinkering" with the sentence (that is, where there is only a small difference between the sentence at first instance and "what should have been").'" 21 This narrowing of the Crown's submission and the significance of such was discussed in R v Carroll [2010] NSWCCA 55 (heard immediately after JW) at [31]-[36], see especially the last sentence of [36], and see [1], [71] and [72] as to the concurrence of the whole Court. 22 No submission as to the meaning of "double jeopardy" was pressed in this Court by the Crown wider than was ultimately relied on by the Attorney-General in JW and Carroll. The meaning and content of s 68A has therefore been determined for present purposes and can be taken to be summarised at [141] of JW. It will, however, be necessary to return to aspects of the concept of double jeopardy discussed by the Chief Justice in JW. 23 A Crown appeal against sentence is provided for in New South Wales by the Criminal Appeal Act, s 5D, which relevantly provides as follows: "5D (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper." 24 As already explained, s 68(2) of the Judiciary Act gives this Court like appellate jurisdiction in respect of Commonwealth offences. Section 68(2) deals with jurisdiction; s 68(1) deals, relevantly, with laws concerning procedure for appeals. Section 80 deals with the common law to apply. Section 79 deals with the application of other State or Territory laws. 25 The Commonwealth statutory provision said in this case to invalidate (by s 109 of the Australian Constitution), or prevent the operation of (through ss 68, 79 and 80 of the Judiciary Act) s 68A of the Crimes (A and R) Act is the Crimes Act, s 16A, which, relevantly, is in the following terms: "16A (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) 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: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (f) the degree to which the person has shown contrition for the offence: (i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or (ii) in any other manner; (fa) the extent to which the person has failed to comply with: (i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976 ; or (ii) any obligation under a law of the Commonwealth; or (iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903 ; about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (g) if the person has pleaded guilty to the charge in respect of the offence - that fact; (h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

The incompatibility issue 26 The notice under s 78B of the Judiciary Act asserted that s 68A diminished the integrity of the Court and its capacity to function under Ch III of the Constitution on the ground of its retrospectivity and on the following grounds: "1. It excludes from consideration by 'an appeal court' factors which are integral to the exercise of the discretion not to intervene and;

2. Renders irrelevant factors which are essential to a judicial assessment of the circumstances of an offence in the process of resentencing on a Crown appeal and;

3. In so doing it obliges any such Court to assume a fictitious history which offends the very function of judicial process and leaves the Court unable to render a proper decision." 27 No submissions were put to the Court by the respondent to support these propositions. The essential aspects of these propositions were dealt with in Carroll at [31]-[38]. There is no occasion to reconsider the views there expressed to the effect that s 68A is not invalid by reason of these kinds of consideration.

Inconsistency under s 109 of the Constitution 28 The s 78B notice also sought to impugn s 68A on the basis of its inconsistency (for the purposes of s 109 of the Australian Constitution) with the Crimes Act, s 16A. A precise and narrow submission was put in this regard that focused upon s 16A(2)(m). It is convenient to address first, however, the implicit reliance that was placed upon a broader proposition, focused on s 16A(1) and based on the decision of the Full Court of the Tasmanian Supreme Court in R v Talbot [2009] TASSC 107 that found that the Criminal Code (Tas), s 402(4A) (the Tasmanian equivalent of s 68A), was inconsistent (for the purposes of s 109) with the Crimes Act, s 16A(1). The relevant State provision and the reasoning of Blow J (with which Crawford CJ and Parker J agreed) are found in [18] and [19] of the reasons: "[18] The Criminal Code (Tas) has recently been amended so as to prohibit that fact from being taken into account in re-sentencing. Section 402(4A) of that Code provides as follows: '(4A) The Court, on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor) -

(a) may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime.'

[19] The Commonwealth has not introduced any legislation preventing a court that allows a Crown appeal against sentence from taking into account the fact that an unsuccessful respondent is to be sentenced a second time for the same crime. Under the Crimes Act 1914 (Cth), s 16A(1), when a court is determining the sentence to be passed for a federal offence, that court must impose a sentence 'that is of a severity appropriate in all the circumstances of the offence'. Prior to the enactment of s 402(4A), it was clear that 'double jeopardy' in the re-sentencing process following a successful Crown appeal was to be taken into account in favour of the respondent: R v Hayes (1987) 29 A Crim R 452; R v Clarke [(1996) 2 VR 500]; R v Harland-White (Tas CCA, 20 March 1997); Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; Attorney-General v McDonald ([2002] TASSC 120; 137 A Crim R 401). In my view s 402(4A)(b) is inconsistent with the general requirement in s 16A(1) to impose a sentence that is of appropriate severity, and therefore does not apply to re-sentencing under Commonwealth legislation: Constitution, s 109. Counsel did not submit otherwise at the hearing of the appeal." 29 Two matters need to be addressed from this approach. The first concerns the application of s 109. The interaction between, and the order of operation of, s 109 of the Australian Constitution and s 79 (or s 68(1)) of the Judiciary Act has been discussed on a number of occasions: eg Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at 576 [38] and 586 [76]; Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 at 271 [61]-[63]; and see ONA at [70]-[137] per Neave JA. It is undoubted, as Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ stated in Agtrack at 271 [62], that the possible operation of s 109 is an anterior question to that of s 79 (or s 68(1)). Only a valid law of the State will be "picked up" by these latter provisions: Agtrack at 271 [61]. There is, in that sense, a sequential operation. Further, ss 68(1) and 79 only begin to operate when there is a court exercising federal jurisdiction. 30 Nevertheless, the sequential operation of s 109 and ss 68 and 79 is not mechanical. Necessarily, the first task is to understand the proper reach of the State law to see whether it can, or does, conflict with the Commonwealth law. Provisions of State statutes that deal with the exercise of judicial power need to be examined carefully for this purpose. 31 In R v Todoroski [2010] NSWCCA 75 at [8], I said (in comments that were not an expression of any concluded view) that "an Act of a State Parliament concerning how a court exercises power, on its face, cannot have anything to say about how a court (whether State or Commonwealth) exercises federal jurisdiction. That jurisdiction is of another polity, the Commonwealth". State Parliaments can, generally, legislate for their own courts: cf Commonwealth v Hospital Contribution Fund [1982] HCA 13; 150 CLR 49. State Parliaments cannot, however, legislate for federal courts: John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65 at 79, 87 and 93; Pedersen v Young [1964] HCA 28; 110 CLR 162 at 167; Northern Territory v GPAO at 628 [195]. Further, a law of a State with respect, for instance, to limitation of actions, cannot operate, of its own force, in relation to a claim arising under a law of the Parliament: Agtrack at 270 [58]; Northern Territory v GPAO at 575 [33]; and John Robertson v Ferguson Transformers at 84. Similarly, here, a law of a State providing for relevant considerations in sentencing (whether after conviction at trial, or on appeal) cannot, of its own force, have anything to say about sentencing for an offence created by a law of the Commonwealth Parliament: LK and RK at [25] (in particular the noting of the erroneous analysis in Cheatle v The Queen [1993] HCA 44; 177 CLR 541) and [86]-[88]. A court sentencing a person for an offence created by Commonwealth law looks to law provided by the Constitution and the Commonwealth, not to State law operating of its own force, in order to undertake its task. It is at this point that State legislation and the common law are made relevant and applicable by the operation of the Judiciary Act, ss 68, 79 and 80. 32 It is unnecessary to discuss further the valid reach, if any, of State laws, of their own force, in connection with the exercise of federal jurisdiction by State courts: see, for example, Saint-Gobain Abrasives Pty Ltd v McPherson [2009] NSWCA 214 at [7] and Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 at 134 [21]. 33 Thus, here, I see no possible inconsistency between the Crimes Act, s 16A and the Crimes (A and R) Act, s 68A for the purposes of s 109, since s 68A is not to be construed as operating, of its own force to sentencing for criminal offences created by Commonwealth law. 34 Section 68A being the subject of possible operation of s 68(1) or s 79 (as an otherwise valid State law), the question of its operation, and whether it is picked up, is to be assessed by reference to its character as (surrogate) federal law: Kelly v Saadat-Talab at 307-308 [3] and the cases there cited and discussed. 35 Thus, I respectfully disagree with the approach adopted by the Court in Talbot. I am sufficiently persuaded, if I may respectfully say, of the error of that approach to depart from it: Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [274]-[295]. I note that in reasons published on 17 August 2010 the Western Australian Court of Appeal reached the same conclusion in R v Baldock [2010] WASCA 170. 36 The place of s 68A in a Commonwealth appeal is to be assessed by reference to the Judiciary Act ss 68(1), 79 and 80 and any existing Commonwealth law, here, the Crimes Act, s 16A, not by anterior reference to inconsistency under s 109 of the Australian Constitution. 37 A second difficulty with the reasoning in Talbot is the conclusion that s 68A is inconsistent (in the sense described in the High Court authorities discussed in Kelly v Saadat-Talab at 308-310 [4]-[11]), with s 16A(1). 38 It is necessary, at the outset, to construe both provisions (Commonwealth law and surrogate Commonwealth law) to ascertain whether there is inconsistency or "actual contrariety": Putland at 179 [7] and 189 [40]; Northern Territory v GPAO at 587-588 [79]-[80]; Austral Pacific at 144 [17]; and see generally Kelly v Saadat-Talab [4]-[11]. 39 Section 68A seeks to remove from a court's consideration in a prosecution appeal one human aspect that the common law had prescribed to be taken into account in sentencing on Crown appeals: an element of (presumed) distress and anxiety. 40 Section 16A(1), on the other hand, is directed to the appropriateness of the sentence and its severity in all the circumstances of the offence. The phrase "circumstances of the offence" is not apt to encompass the "circumstances of the offender" at the time of a prosecution appeal. Section 16A(1) is not directed to double jeopardy; rather it is directed to the appropriateness or proportionality of the sentence to the circumstances of the offence. No doubt, as the cases referred to by Blow J make clear, double jeopardy has been taken into account in the sentencing process as part of the common law: see also JW. To the extent this has occurred in appeals in respect of federal offences, this is so because the concept is part of the common law of Australia applied by the Judiciary Act, s 80 to the resolution of the controversy, not because double jeopardy is a "circumstance of the offence", the object of the command in s 16A(1). 41 Section 16A(2) is, however, more relevant. It is not, in its terms, an explication of s 16A(1); though, in part, it deals with matters that can be seen to be "circumstances of the offence": eg s 16A(2)(a), (c), (d), (e) and (h). Other considerations in s 16A(2) are plainly not "circumstances of the offence": eg 16A(2)(j), (n) and (p). Further, s 16A(2) can be seen to be directed to the whole of the task to which s 16A(1) is directed ("determining the sentence … or the order to be made …"). 42 Section s 16A is an attempt by the Commonwealth Parliament to identify matters which, if relevant, must be taken into account. It was not intended either to cover the field or to create a code of features being the exclusive universe of considerations in sentencing. This is clear from the opening words of s 16A(2). 43 Section 16A was passed against the background of the common law and upon the assumption that common law principles would apply: Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [15]; Lodhi v R [2007] NSWCCA 360; 179 A Crim R 470 at 489 [81]; and DPP (Cth) v El Karhani (1990) 21 NSWLR 370. 44 In Lodhi at [81], Spigelman CJ said: "[81] The very generality of the language - 'a severity appropriate in all the circumstances of the offence' - indicates the breadth of the discretion conferred upon the sentencing judge. In this formulation the Parliament has indicated that the sentencing principles developed at common law, rather than the various provisions in State legislation, should apply to sentencing for Commonwealth offences. (See Johnson v The Queen [[2004] HCA 15] (2004) 78 ALJR 616 at [15].)" 45 In Johnson at [15], Gummow, Callinan and Heydon JJ said: "[15] The proposition contained in the first of the appellant's grounds is largely uncontroversial: that except to the extent stated in ss 16A and 16B of the Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable. That common law principles may apply follows from the use of the words 'of a severity appropriate in all the circumstances of the offence ...' in s 16A(1) and the introductory words 'In addition to any other matters ...' to s 16A(2) of the Act." 46 Putland, however, made clear that the Crimes Act, Part 1B did not set out a code, or evince a Parliamentary intention to make it an exclusive source of law, for sentencing of federal offenders, so as to render State law inapplicable: Putland at 185 [22]-[24] and 193 [53]-[54]. 47 Thus, the appropriate analysis is whether State law is, or is not, to be picked up by ss 68, 79 and 80 of the Judiciary Act. How any particular State law concerning sentencing is to be seen as affecting (or not, as the case may be) the command in s 16A (or Part 1B) will be a matter for individual analysis: cf Wong v The Queen [2001] HCA 64; 207 CLR 584 at 597, 609-610, 632-633 and 643. If the surrogate federal law (here, s 68A) is contrary to the Commonwealth law (here, s 16A) by, for instance, impliedly repealing or qualifying it in a material respect, it will not be "picked up". This kind of "actual contrariety" was discussed by Fullagar J in Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268 at 275, cited in Putland at 189 [40] and discussed in Kelly v Saadat-Talab at 308-309 [6]-[8]. 48 It was submitted by the respondent that this kind of inconsistency or contrariety arose here from the terms of s 16A(2)(m) and s 68A. It was submitted that "mental condition" in s 16A(2)(m) is wider than medically diagnosed or clinically recognised condition, or mental illness or mental disorder. It meant, it was submitted, the mental state of the person. 49 These submissions should be accepted. Section s 16A(2) should be read widely, not narrowly. The Parliament was evidently attempting to identify (albeit non-exhaustively) a broad range of considerations to be taken into account in reaching a just and appropriate sentence. Section 16A(2)(m) is apt to encompass important aspects of the offender. The phrase "mental condition" should not be read as requiring some requirement of a diagnosable clinical state. For instance, here, the respondent swore an affidavit that he was depressed. That might not be particularly influential in any sentencing exercise. Nevertheless, it is evidence that describes one aspect of his mental condition, unless s 16A(2)(m) is limited to a recognised medical condition, in which case medical evidence of the character and gravity of the depression would be necessary to ascertain whether it was of a seriousness or a kind as to qualify as a medical condition. Section 16A(2)(m) should not be narrowly construed in this way. 50 It was submitted by the DPP that the phrase "mental condition" in s 16A(2)(m) related to questions of culpability, deterrence, hardship and the like to which a mental condition was relevant in general law sentencing principles and practice. Reference was made to R v Pham [2005] NSWCCA 314 at [34] ff. 51 To the extent that that submission was intended to equate the phrase "mental condition" with mental disorder or mental illness, it should be rejected. The phrase is not a term of art, but has a wider meaning though, of course, the meaning of the phrase falls to be considered in its context: The Queen v Kiltie (1986) 41 SASR 52 at 61 (King CJ), 64-66 (Legoe J) and 70-71 (Johnston J). Its context, here, is the broad wording of s 16A(2)(m) concerned with the attributes of the offender in a provision directed to identifying the appropriate or proportionate sentence. 52 This being the reach of the Commonwealth law (s 16A), is the putative surrogate federal law (s 68A) inconsistent with, or contrary to, it? The answer is that it is. The Chief Justice in JW discussed the nature of double jeopardy. Section 68A is directed to stress and anxiety to which all respondents to a Crown appeal are presumed to be subject. In other words, the offender's ("the person's" for s 16A(2)(m)) mental condition (in the wide sense that I would read it) is presumed to be affected by stress and anxiety. Stress and anxiety are part of the mental condition of the person. 53 To permit s 68A to operate would be contrary to, and impliedly repeal, in part, s 16A(2)(m), removing from the Court's consideration a part of the person's mental condition, even if it only be presumed by the common law to exist. Thus, in my view, s 68A is not picked up in, and for the purposes of, the sentencing task here to be undertaken by the appeal court. That task is not limited to the ascertainment of the sentence, but extends to the ascertaining of the correct order on the appeal. Thus, s 68A is not picked up insofar as it might have an operation described in JW at [141(iii) and (iv)]. The question whether s 68A is picked up in so far as it might have an operation described in JW at [141 (v)] can be left to one side as unnecessary and inappropriate to decide in the absence of submissions. 54 I do not think the inconsistency is avoided by stressing the presumed nature of the distress and anxiety. It is a presumption of the reality of the distress and anxiety. To permit s 68A to operate and then to permit (because of s 16A(2)(m)) evidence of actual distress and anxiety at being sentenced a second time and losing the benefit of the first sentence would be both somewhat artificial and also apt to give s 68A a meaning and effect different in Commonwealth Crown appeals to State Crown appeals. 55 If the above view that the correct framework of analysis is the operation of the Judiciary Act rather than s 109 of the Australian Constitution be wrong, the direct inconsistency between s 16A(2)(m) and s 68A and the impairment of the former by the latter would amount to inconsistency for the purposes of s 109. No detailed discussion of relevant principle is required once the conclusion is reached that a State law (on this hypothesis) is directly inconsistent with, and impairs the intended purpose of, the Commonwealth law: eg The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation ("GMAC case") [1977] HCA 34; 137 CLR 545 at 563-564; Victoria v Commonwealth [1937] HCA 82; 58 CLR 618 at 620. 56 Given that mine is a minority view, it is unnecessary to consider whether, as a matter of precedent, I would defer to the reasoning in Baldock (with which I otherwise generally agree) given that the argument based on s 16A(2)(m) was not propounded in Baldock.

The merits of the appeal as to the sentence 57 I have read the reasons in draft of Basten JA, the Chief Judge at Common Law and Simpson J. Their Honours' reasons enable me to be brief in expressing why, in my view, the appeal should be dismissed. 58 The only ground of appeal was that the sentence was manifestly inadequate. Mr P Strickland SC, who, with Mr D O'Neil, appeared for Mr De La Rosa, stressed two well-known passages from Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 and Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306. 59 In Lowndes, the Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) said at 671-672: "[15] The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass [(1993) 72 A Crim R 561] and R v Clarke [[1996] 2 VR 520]. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [ House v The King [1936] HCA 40; 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." 60 In Everett, McHugh J said the following at 306: "… Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence."

To put the matter thus is not to differ from the expressions of principle of this Court in Allpass (Gleeson CJ, Hunt CJ at CL and McInerney J) at 562, approved in Lowndes . There, in relation to appeals against sentence the Court said: "… An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance."

Nor is it to depart from the expression of the matter in Clarke at 522 (Charles JA, with whom Winneke P and Hayne JA agreed) approved in Lowndes : "2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (…); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (…); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (…) (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (…)." 61 It is also well to recall what Gleeson CJ and Hayne J said in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325-326 [6] about the apparency of manifest inadequacy: "[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. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case." 62 In the submissions put forward on behalf of the Director, a number of matters were referred to to assist in the identification of the proper "sentencing range": statistics from the Judicial Commission of New South Wales, statistics from the Commonwealth Sentencing Database and a schedule of what were said to be comparative cases (virtually all of which were from this Court). 63 After the matter was reserved, research was undertaken by the Court to obtain a better understanding of the sentencing for this and like offences in other Courts in the Commonwealth. This research was put to the parties and further argument took place on it. 64 I do not propose to deal with the very large number of cases that were before the Court for argument. I have considered them and the submissions of the Director. In my view, there is no basis to argue that this sentence was so inadequate as to require intervention on a Crown appeal (whether or not s 68A of the Crimes (A and R) Act applies) unless it is demonstrated that the sentencing judge could only approach the sentencing task on the basis that all the circumstances (objective and subjective) were to be evaluated as at the high end of the range of seriousness. 65 One needs to approach the sentencing task by reference to the facts found by the sentencing judge. No appeal was directed to any of those findings. The assessment of their seriousness and what was a proper sentencing response to them are broad evaluative judgments, in respect of which minds could reasonably differ at a number of points and from a number of perspectives. 66 The offender was given eight years with five years non-parole, after a 25 per cent discount for an early plea. The ignoring of the discount produces a head sentence of 10⅔ years and a non-parole period of 6⅔ years. If one recognises the subjective factors mentioned by the sentencing judge, some allowance (though not great) could legitimately be made for the hardship that Mr De La Rosa will experience in prison by his lack of English and the distance from his family in Spain. Giving full recognition in this respect to what Wood CJ at CL said in R v Schmakowski [2001] NSWCCA 395 at [28] about the risk taken by the offender of incarceration in a foreign gaol, some recognition of that hardship could have been taken into account. Doing so, it is possible to posit a judge commencing with a 10⅔ to 12 year head sentence and a 6⅔ to 8 year non-parole period. Any sentence in that range would be a significant sentence. Why would it be manifestly inadequate? It could only be so if there was no other conclusion open but that the facts only admitted of an evaluation demanding a sentence towards the higher end of the scale for the offence with a maximum penalty of 25 years imprisonment. 67 Here, the offender was sentenced as a courier, not as a principal. Whilst the sentencing judge found aspects of his story not plausible, it is clear (and there was no complaint by the Director about this) that he was sentenced on the basis that he was not high in any hierarchy and that he was not a principal. 68 The Crown stressed that the quantity of the drug was near the upper limit for this offence. On occasions, the argument as put came close to requiring the quantity of the drug to dictate the seriousness of the offence and thus the sentence. Such an approach would be wrong: Wong v The Queen at 597 [31], 609 [68]-[69], 610-611 [73] and 628 [121]-[122]. Of course, it is a factor; but it does not govern the sentence and the range into which it must fall. 69 The necessarily evaluative judgment made by the sentencing judge, addressing, as he did, all relevant considerations, that the offence warranted the sentence he gave was not one that could be said to be obviously wrong, or not open to him. That being so, the sentence could not be viewed as manifestly inadequate. Certainly, minds could reasonably differ as to the question where in the range of seriousness all the circumstances fell and also whether a higher sentence was not perhaps appropriate. One could without difficulty see another judge imposing a somewhat harsher sentence. That said, I would not describe the sentence as lenient; nor would I describe it as harsh. The sentencing judge was entitled to come to the evaluative assessment that he did. 70 The appeal should be dismissed. 71 Neither party put any submission that the course taken by the Court in undertaking its own detailed research on cases not previously relied on by the Director was not appropriate. No occasion therefore arises to comment on it further, other than to say two things. First, if the Director is to seek consistency in sentencing across the country for Commonwealth offences (as opposed to consistency of sentences for those incarcerated in State prisons for like or comparable Commonwealth and State offences) the Court needs to be assisted by cases from other jurisdictions. Secondly, recognising, of course, sometimes the need or appropriateness of the Court going beyond the cases referred to by counsel in argument and leaving to one side the necessity, in any given case, to afford the parties procedural fairness, I would reserve my view on the true nature of a Crown appeal insofar as it might be seen to affect the boundaries of the Court's freedom to act in the way it did, by reference to considerations of the public interest, with consequences that may be to the significant disadvantage of a respondent offender when the Crown, despite encouragement, has not developed its argument past a certain point.

72 BASTEN JA: The circumstances leading to the appeal by the Director of Public Prosecutions (Cth) against the sentence imposed on the respondent by Zahra DCJ are fully set out by McClellan CJ at CL and need not be repeated. Subject to the following observations, and for the additional reasons noted below, I agree with the judgment of Allsop P. The appeal should be dismissed.

Procedural steps 73 The Court is unanimous in its view that the appeal should be dismissed; however, there are different paths to that result. First, the President and I take a different view from the majority as to the applicability of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") in a case involving federal jurisdiction. Secondly, we share a concern as to the procedural course taken by the Court in determining this matter. In my view the case as originally presented by the Director was deficient and failed to establish manifest inadequacy of the sentence imposed on the respondent. The appeal should have been dismissed on that basis. Instead, the Court undertook its own research in order to satisfy itself as to the range of sentences applied nationally in respect of the offence for which the respondent was convicted, viewed in the context of other related offences. It was then necessary, as a matter of procedural fairness, to accord both parties the opportunity to comment on the results of that research. In my view, that course was inappropriate and demonstrated a departure from established practice in relation to the proper role of an intermediate criminal appeal court. 74 It is undeniable that the equal administration of justice requires consistency in sentencing those who commit a particular offence in similar circumstances. Conversely, material differences should be reflected in differential sentencing. It is also undeniable that the statutory conferral on a prosecuting authority of a right to appeal against sentence and the conferral on this Court of a power, in its discretion, to "vary the sentence and impose such sentence as to [this] Court may seem proper", should be seen as an instrument for promoting the equal administration of justice: Whittaker v The King [1928] HCA 28; 41 CLR 230 at 248 (Isaacs J); Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310 (Barwick CJ); Malvaso v The Queen [1989] HCA 58; 168 CLR 227 at 234 (Deane and McHugh JJ). On the other hand, equality of treatment is an ideal not readily translated into exact application. Further, equality of outcome should not be pursued at the expense of procedural fairness to the individual offender. 75 The fact that an appeal by a prosecuting authority may provide an opportunity for the Court to "lay down principles for the governance and guidance" of sentencing courts, so as to avoid "manifest disparity and inconsistency in sentencing" should not lead to resentencing in the absence of demonstrable error in principle, of the kind described in House v The King [1936] HCA 40; 55 CLR 499 at 505: see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [21] (Gaudron and Gummow JJ). Further, as noted by Kirby J in Dinsdale at [66]: "Unless error is stated and demonstrated, the appellate court has no legal authority to substitute a sentence which by law belongs to the primary judge. Adhering to strictness in this matter is also a protection to the prisoner who may wish to be advised on rights of further appeal." 76 Consistently with these principles, where no specific error is identified, the prosecuting authority must establish to the satisfaction of this Court that the sentence imposed of itself demonstrates an erroneous application of proper sentencing principles. It must also be clear from the reasons given by this Court as to why that is so. 77 However, recognition that the role of this Court on an appeal by a prosecuting authority is to provide guidance to sentencing courts and promote consistency in sentencing was, until very recently, understood to impose a constraint on appellate intervention. The procedure adopted in this case (and at least considered in other jurisdictions - see The Queen v Baldock [2010] WASCA 170) would turn the principle of constraint into a licence to conduct an inquiry, neither undertaken nor proposed by either of the parties. Such a course should be eschewed. 78 As the President correctly notes (at [71] above) neither party sought to contend that the course taken by the Court was inappropriate. On the other hand, neither party had an opportunity to object until the course had been taken. In any event, this Court cannot acquire a function inconsistent with its constitutional role through the failure of a party to object. As explained in greater detail below, if the information supplied by the Director was inadequate to demonstrate manifest inadequacy, on the basis that it was appropriate or necessary to take national considerations into account, the appeal should have been dismissed on that basis.

Constitutional issues 79 In relation to the first issue raised at [5] above, s 68A of the Appeal and Review Act should not be construed as a State law purporting to apply of its own force, in federal jurisdiction: see above at [31]-[33]; Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 at [9] and [21] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ, [37] (McHugh J) and [74]-[76] (Kirby J), albeit in a different statutory context. It follows that there is no inconsistency with a law of the Commonwealth engaging s 109 of the Constitution. The second constitutional matter, concerning institutional incompatibility, was disposed of by this Court in R v Carroll [2010] NSWCCA 55 and does not require further consideration.

Content of relevant laws 80 Before determining the operation of s 68A of the Appeal and Review Act in federal jurisdiction, it is necessary to identify more precisely the scope of the critical provisions of Commonwealth and State law. 81 It is convenient to note first the operation of s 16A of the Crimes Act 1914 (Cth) in this Court. Section 16A (set out by Allsop P at [25] above) applies in "determining the sentence to be passed": it does not in terms apply to the determination of an appeal. Although the parties in the present case assumed that s 16A did apply in this Court, it is desirable to note how that is so. On an appeal by the prosecuting authority against the sentence imposed, the Court may need to address four factors (not always distinctly), namely:

(a) considering, as a preliminary matter, whether, because of delay or for other procedural reasons, intervention should not be entertained;

(b) assessing the sentence imposed by the trial judge to consider whether it was erroneous, in the same manner as in assessing an appeal by an offender: see Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672, set out at [59] above;

(c) if satisfied as to error of the requisite kind, determining whether to intervene to quash the sentence, and

(d) having determined that intervention is appropriate, resentencing the offender. 82 It is clear that the second and fourth categories can only be addressed in accordance with principles stated in s 16A. The determination to intervene or to dismiss the appeal may turn on factors other than those identified in s 16A, but may be influenced by the likely outcome of a resentencing. Thus, s 16A may not be entirely irrelevant in relation to the first and third categories, but it does not directly condition the operation of the discretion. 83 Section 68A of the Appeal and Review Act (set out at [6] above) is structured as a prohibition, imposing a constraint upon an "appeal court" in the exercise of its jurisdiction, including that conferred on this Court by the Criminal Appeal Act 1912 (NSW). Its operation is directed to the powers of the court in considering a "prosecution appeal against sentence". 84 Section 68A, it was accepted in R v JW [2010] NSWCCA 49, had no application in relation to the first or second categories. It does, however, operate in relation to both the third and fourth. To the extent that it has removed a factor which would otherwise have been relevant to the exercise of the discretion, it has effect in an area as to which s 16A is silent. To the extent that it affects the resentencing exercise there is potentiality for conflict with the obligations imposed by s 16A.

Application of state law in federal jurisdiction 85 In addressing the intersection of these provisions, the central legal question is whether s 68A of the Appeal and Review Act is picked up and applied as surrogate federal law by a relevant enactment of the Commonwealth Parliament. The argument in this regard turned on the potential operation of ss 68, 79 and 80 of the Judiciary Act 1903 (Cth). 86 The term "appeal court" is defined in s 3 of the Appeal and Review Act by reference to provisions which would limit it to appeals from the Local Court, were it not for the extended operation given by s 68A(2). The reference to an appeal under the Criminal Appeal Act must include an appeal brought by the Attorney-General or the State Director of Public Prosecutions under s 5D of that Act. It is now beyond doubt that s 68(2) of the Judiciary Act confers jurisdiction on this Court to hear an appeal by the Commonwealth Director in relation to a sentence imposed for a federal offence: see, eg, Peel v The Queen [1971] HCA 59, 125 CLR 447; Rohde v Director of Public Prosecutions [1986] HCA 50, 161 CLR 119; Wong v The Queen [2001] HCA 64, 207 CLR 584 at [47] (Gaudron, Gummow and Hayne JJ). It is, nevertheless, necessary to consider how the conferral of jurisdiction under the Judiciary Act operates. 87 In relation to the application of s 68, sub-s (1) picks up laws of a State with respect to, relevantly, "the procedure for … the hearing and determination of appeals … [which] … shall, subject to this section, apply and be applied so far as they are applicable …": see at [10]. In relation to the phrase "subject to this section", it was not suggested that any relevant limitation on the operation of sub-s 68(2) was to be found in sub-ss (4)-(11), whether expressly or by implication. (Subsection (3) was repealed in 2006.) The question raised by this provision is, therefore, whether and in what manner s 68A of the Appeal and Review Act constitutes part of the "procedure" for the hearing and determination of the appeal brought by the Director. 88 In Putland v The Queen [2004] HCA 8; 218 CLR 174 the High Court held that s 52 of the Sentencing Act (NT), empowering a court sentencing an offender for several offences to impose a single term of imprisonment (an aggregate sentence), was picked up by s 68(1), so as to be applicable in sentencing for federal offences: at [4]-[6] (Gleeson CJ); [34] (Gummow and Heydon JJ, Callinan J implicitly agreeing); Kirby J not deciding, on the basis that s 79 would be effective to pick up the relevant provision in any event: at [78]-[79]. The passage in the judgment of Gummow and Heydon JJ made reference to a decision of the South Australian Court of Criminal Appeal, R v Jackson (1998) 72 SASR 490, which also involved the application of a State provision permitting aggregate sentences. 89 The Chief Justice in Putland, stating that sentencing laws came within the language of s 68(1) relating to procedure for trial and conviction on indictment, referred to Dixon J in Williams v The King [No 2] [1934] HCA 19; 50 CLR 551 at 560. In that passage, Dixon J was addressing the question whether s 68(2) operated upon s 5D of the Criminal Appeal Act so as to enable the Attorney-General of the Commonwealth to appeal against a sentence. He held that it did, reasoning that the word "conviction" in s 68(1)(c) included a sentence. His Honour was not expressly referring to the procedures or powers applicable at trial on sentence, that not being in issue. However, in an earlier passage, Dixon J concluded that s 68(2) did not merely seek to identify which court should exercise existing rights of appeal and administer existing remedies, but conferred a jurisdiction "to review proceedings not hitherto subject to appeal and so creates new remedies by conferring power to administer them". He continued by way of explanation: "This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice." 90 Where the issue was the possible expansive effect of picking up powers conferred on a State court by State law, it was not necessary to consider how a restriction on power would operate. However, a State law which constrained the powers of the court entertaining the appeal might be seen as restricting the "like jurisdiction" to be exercised under s 68(2) in respect of a federal offence, or it might constitute a limitation on the laws to be applied, reflected by the language of limitation in s 68(1) in describing the State laws as applying "so far they are applicable". The latter possibility identifies a point of ambiguity in the language of limitation in s 68(1): was it intended to refer to limitations on application applying within the State law (such as a limitation on the available sentencing options), or a limitation on applicability because of the operation of other federal law? (It could, of course, have both operations or, if it referred to limitations under the State law itself, inconsistency with another Commonwealth law could arguably render the State law inapplicable by the overriding operation of s 79 or s 80.) 91 Although reference was made in Putland to s 68(1) being subject to a similar limitation to that imposed by s 79 through the phrase "except as otherwise provided by the Constitution or the laws of the Commonwealth" - at [7] (Gleeson CJ) and [41] (Gummow and Heydon JJ) - their Honours were not concerned with a limitation imposed by the State law in question. On the other hand, it is neither consistent with the policy as expressed by Dixon J in Williams [No 2], nor with general principle, to allow a State law to be picked up and to operate in a manner which is more expansive than that which it would have in its home environment. As explained by Dixon J in Minister for the Army v Parbury Henty & Co Pty Ltd [1945] HCA 52; 70 CLR 459 at 505, in a passage cited with approval in Forsyth v The Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 at [3]: "The limits of jurisdiction of any court so invested found their source in State law and, I presume, any change made by the State in those limits would, under the terms of s 39(2), ipso facto make an identical change in its Federal jurisdiction." 92 Section 39(2), also a jurisdiction-conferring provision, expressly referred to the several courts of the States having jurisdiction "within the limits of their several jurisdictions, whether such limits are as to locality, subject matter or otherwise". A similar limitation must flow from the more elliptical language of s 68(2), referring to the "like jurisdiction". 93 On this approach, the relevant question is whether s 68A of the Appeal and Review Act, operating either as a limitation on the jurisdiction of the State appeal court hearing a prosecution appeal against sentence, or by limiting a common law principle which might otherwise be applicable in exercise of that jurisdiction, has conditioned the application of that law as engaged by s 68(1) of the Judiciary Act. 94 Consistently with the statement of principle frequently articulated, it cannot be an objection to the construction of either a provision of the Judiciary Act or of the State law that the availability or determination of an appeal in a criminal matter may operate differentially as between States and Territories, or over time, despite the uniform operation of the Commonwealth law creating the offence. For example, in contrast to the right of appeal given to the Attorney and the Director under s 5D of the Criminal Appeal Act in this State, the equivalent provision in the Tasmanian Criminal Code, considered in Everett v The Queen [1994] HCA 49; 181 CLR 295, permitted an appeal only by leave. 95 In Everett, the error identified by the High Court was that the majority in the Court of Criminal Appeal, (Zeeman J dissenting), had failed to consider separately the need to grant leave to the prosecution to appeal, in circumstances where the course taken by the sentencing judge had been one of which the prosecution had been aware as a possible outcome during the course of the sentencing, but to which no objection had been taken. Everett was not concerned with a federal offence, but there is no reason to suppose that the relevant statutory provisions, and the principles with respect to the exercise of the discretionary power to grant leave, would not have constituted the applicable law at the time for the purpose of federal offences prosecuted in Tasmania. If the Tasmanian legislature had then prohibited the Court of Criminal Appeal, when considering whether to grant leave, from taking into account the failure of the prosecution to object to the possible sentence prior to its imposition, it seems inevitable that the law picked up by s 68 of the Judiciary Act would have been the combination of general law principle and the local statute law in force at the relevant time. If that is so, a similar approach should apply with respect to s 68A of the Appeal and Review Act. Subject to the existence of a law of the Commonwealth which provides otherwise, this Court's jurisdiction in respect of prosecution appeals against sentence, constrained as it is by s 68A in State matters, must be so constrained when picked up by s 68 of the Judiciary Act in relation to a federal offence.

Operation of s 68A as Commonwealth law 96 It remains to consider whether s 68A of the Appeal and Review Act is not "applicable" pursuant to s 68(1) of the Judiciary Act, because, to use the language of s 79 of the Judiciary Act, another Commonwealth law "otherwise provides". The potentially relevant law identified in this case is, as explained by the President, s 16A(2)(m) of the Crimes Act. To address this argument, the structure of the section suggests that one should address separately the two limbs of s 68A.

(a) the discretion to dismiss an appeal 97 The first limb, in paragraph (1)(a), prohibits the court "dismiss[ing] a prosecution appeal against sentence … because of any element of double jeopardy involved in the respondent being sentenced again". As explained by Jacobs J in Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 326-327: "Under s 5D the Court has a wide discretion whether or not to interfere even though it may reach the conclusion that another sentence should have been passed. In this respect s 5D gives a wider discretion than s 6(3) where the Court is bound to interfere once it reaches the conclusion that the sentence was not both warranted in law and one that should have been passed. The trial judge is given a wide discretion from the circumstance that a Court on appeal will not lightly conclude that another sentence should have been passed. The incorrectness of the sentence must be manifest. See House v The King (1936) [1936] HCA 40; 55 CLR 499, at p 505. But if it does so conclude it must interfere in the case of a defendant's appeal; it may in its discretion interfere in the case of an appeal under s 5D." 98 Section 16A of the Crimes Act does not address any question concerning appellate intervention: it is addressed solely to the matters to be taken into account in imposing a sentence. Of course, identification of the relevant matters to be taken into account may affect the assessment of the sentence and in that way affect the decision as to whether or not to intervene. But that indirect effect does not necessarily preclude specification by State law of other mandatory, permissible or impermissible factors affecting the discretionary power. 99 No other provision of Commonwealth law having been relied upon, the first limb of s 68A(1) of the Appeal and Review Act could be picked up by s 68 of the Judiciary Act, so as to limit the factors which can be taken into account by the appeal court in deciding whether to intervene on a prosecution appeal. However, given the limitation on its operation conceded in JW at [53], it is unlikely to operate in relation to the factor identified at [81(a)] above.

(b) resentencing 100 The next question relates to the second limb of s 68A of the Appeal and Review Act, namely paragraph (1)(b), and its potential effect on the course which the court may take in resentencing, once it has determined that it should intervene. As already noted, by that stage the appeal court will have identified an error of principle on the part of the sentencing judge. At the next stage, the appeal court is the court imposing the sentence in respect of a federal offence and is, accordingly, required to comply with s 16A of the Crimes Act. 101 The list of matters to be taken into account, set out in s 16A(2), is not meant to be exhaustive: the opening words of the provision, "in addition to any other matters", preclude such a construction. Nor does the list apply universally, but only where the matters are "relevant and known to the court". However, the list is otherwise mandatory, being matters the court "must take into account". If a State law qualified, limited or removed a particular matter from consideration, s 16A(2) would provide otherwise. 102 Further, it is clear that the specification of matters in sub-s (2) is, like sub-s (1), intended to apply whenever a court is "determining the sentence to be passed … in respect of any person for a federal offence": s 16A(1). It is applicable, therefore, to an appeal court imposing a sentence. Accordingly, the appeal court must take into account any matters which are relevant and known to it, which are listed in s 16A(2) and possibly "any other matters" which it considers to be relevant and which are known to it. (This last point will be addressed below.) 103 In JW [2010] NSWCCA 49, Spigelman CJ noted the submission of senior counsel for the Attorney-General that the discount in sentencing an offender for a second time, which was intended to be removed by s 68A, was that "intended to reflect the distress and anxiety of facing sentence again irrespective of the circumstances of the particular offender": at [49]. His Honour also noted acceptance on the part of senior counsel for the prosecutor of the need to distinguish between the "distress and anxiety of facing sentence for the first time, which is an inevitable concomitant in most cases of a conviction, and the additional distress and anxiety caused by the possibility of a harsher sentence on appeal": at [51]. It was the latter element which was removed from consideration by s 68A. 104 There is no doubt, as explained by Spigelman CJ in JW, that anxiety and distress of the second kind so identified was, prior to the statutory reform, a factor routinely taken into account in dealing with prosecution appeals against inadequacy of sentence. It was not a factor applicable to a first exercise in sentencing, to which s 16A was no doubt primarily directed. Nevertheless, that kind of anxiety and distress, being relevant in respect of a second sentencing exercise, falls within the scope of s 16A(2)(m), for the reasons explained by Allsop P above. 105 It would be possible, in theory, to argue that the anxiety and distress at facing a possible sentence following trial might not fall within s 16A(2)(m), so that it could be argued that the further anxiety and distress experienced on facing the possibility of an increased or new sentence, when being sentenced for a second time, would also fall outside that provision. That was not submitted, no doubt because the effect of facing a possible sentence may often be relevant, where, for example, it will so affect the mental condition of the offender as to reduce the need for personal deterrence. 106 A second argument, which is relied on by the majority, asserts that the anxiety and distress preceding a second sentencing is presumed, and therefore is beyond the scope of s 16A(2)(m). However, the reference to "presumed" in JW at [141], which appears to be the source of the argument, uses the term in the sense of a fact inferred from common experience, without necessarily being proved. It would be surprising if s 68A had no, or at least some differential, operation where (as here) the offender presents evidence of anxiety and distress. Similarly, it would be surprising if s 16A(2) only referred to a directly proven mental condition, and not one established by inference. Section 16A was clearly drafted so as to be expansive and, so far as possible inclusive, of the kinds of factors and matters which were considered relevant under the general law. 107 As revealed by the information drawn from reports of the Australian Law Reform Commission referred to below, the original specification of factors in s 16A(2) pre-dated similar provisions in State and Territory laws and now differs in significant respects from equivalent provisions since enacted in other jurisdictions. The purpose and effects of s 16A could be impaired by the application of State and Territory laws to different effect. Secondly, and if it were necessary, I would read the opening words of sub-s (2) as incorporating a mandatory requirement to consider such additional matters which are known and relevant in accordance with general law principles, even though they are not listed. 108 Two further comments are required. First, the analysis set out above reads sub-ss 16(1) and (2) together. The former is a general statement of approach; the latter provides a non-exhaustive particularisation of relevant considerations. Although sub-s (1) refers to a sentence appropriate in all the circumstances of "the offence", that language cannot be intended to exclude the personal circumstances of the offender or there would be inconsistency between that which each subsection mandates. Secondly, as is not uncommon with provisions which seek to tabulate factors derived from the general law, without seeking to change the general law, the process can give rise to unintended implications. If a factor relevant under the general law is known to the court, it is mandatory in the sense that failure to consider it may constitute appellable error. 109 Although sub-s (2) recognises that it may not be exhaustive, it was clearly intended to be reasonably comprehensive. To the extent that it is comprehensive, it does not permit qualification or restriction by State law. An approach which permitted such qualifications or restrictions where, on a semantic analysis, it was not clear that s 16A had expressly covered a particular consideration, would be so inimical to the proper administration of criminal justice that it is not an approach which should be adopted where a reasonable alternative is available. 110 Accordingly, when determining on a prosecution appeal the fresh sentence for a federal offender, the appeal court is required to apply s 16A of the Crimes Act, unaffected by the second limb of s 68A(1) of the Appeal and Review Act.

(c) conclusions as to operation of s 68A 111 The separate functions identified in s 68A(1) will not always be distinct in their operation. There will be circumstances in which an appeal is dismissed because of a preliminary assessment of the likely outcome, were resentencing to occur. In that circumstance, consistently with the last conclusion, a step will be taken under s 68A(1)(a), disregarding the effect of that section. In other cases, a decision to dismiss a prosecution appeal will be taken on the basis of procedural steps, such as the delay in giving notice of the proposed appeal or, as in this case, delay resulting from the way in which the prosecuting authority has conducted the appeal. In such a case a decision may be made to dismiss the appeal without reference to the possible outcome on resentencing. However, in such cases, it appears that s 68A will not operate in any event: JW at [53]. 112 There remains a question as to whether this outcome conforms to the provisions of the Judiciary Act which seek to pick up State law to be applied in federal jurisdiction, unchanged, so as to invest the court with "like jurisdiction". The question is not whether some administrative function, not merely appurtenant to the exercise of judicial power, is being picked up, but whether a condition of the exercise of State judicial power can be disregarded: cf Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; 88 CLR 168; Solomons at [24]-[28]. In this regard it may be appropriate to draw a distinction between State provisions which form an integral part of the jurisdiction conferred (such, for example, as the need for leave to appeal) and those which merely condition the exercise of powers (such as those governing procedure or evidence). However, as no party argued that any issue would arise if s 68A were not picked up, in part or at all, the matter need not be addressed further.

(d) authority in other intermediate appeal courts 113 In relation to R v Talbot [2009] TASSC 107, I agree with the reasoning of Allsop P: the proper analysis does not engage s 109 of the Constitution. In considering constitutional inconsistency, different approaches will be necessary in cases where the general law of a State will be applicable because it governs the activities of, for example, an emanation of the Commonwealth and State laws which operate only when the jurisdiction of a court is engaged. The present case falls into latter category, which will generally be determined by reference to the provisions of the Judiciary Act, without reference to constitutional inconsistency. 114 In The Queen v Baldock [2010] WASCA 170, an issue arose as to the application, in federal criminal jurisdiction, of s 41(4)(b) of the Criminal Appeals Act 2004 (WA), which precluded the Court, on an appeal, taking into account "the fact that the court's decision may mean that the person is again sentenced for the offence". The majority (Pullin JA and Kenneth Martin J) held that the State law applied, by adopting submissions of the Director (the appellant) which were summarised in the following terms at [63]: "The appellant submitted that there was no direct inconsistency because s 16A of the Crimes Act sets out a non-exhaustive list of factors to consider in sentencing without explicitly dealing with the question of double jeopardy. Secondly, the appellant submitted that the Crimes Act does not cover the field in relation to the consideration of principles that a court may take into account in sentencing. Thirdly, the appellant submitted that there was no operational inconsistency between the two laws because the court simply follows s 80 of the Judiciary Act and applies the common law as modified by s 41(4)(b)." 115 Their Honours also declined to follow Talbot, as being plainly wrong. The third member of the Court, Buss JA, came to the same view, noting at [114]: "In my opinion, s 16A(1) does not contain, as part of its content, the principle of 'double jeopardy' which is applicable at common law to State or Crown appeals against sentence. In particular, s 16A(1) does not, by the words 'of a severity appropriate in all the circumstances of the offence', incorporate the principle of 'double jeopardy'. Those words require the sentencing court to impose a sentence which is commensurate with the seriousness of the offending after having regard to all relevant aggravating and mitigating factors, including those set out in s 16A(2) and those personal to the offender. The critical words are not apt to pick up the attitude of restraint adopted by appellate courts in the traditionally unusual circumstance of a Crown appeal against sentence." 116 Because my view of the inter-relationship between the State and Commonwealth provisions is a minority view, it is not necessary for me to determine whether the approach adopted in Baldock can be distinguished (given the different language of the respective State provisions) or, if binding upon me, whether I am persuaded that it is "clearly wrong", or should follow it despite being of a different opinion. To express a view would be inappropriate, particularly in circumstances where the decision was drawn to the Court's attention by the Director after the second hearing and neither party had an opportunity to address it. Suffice it to say that, in relation to the exercise of resentencing, the approach preferred above focuses on the restrictive effect of the State law on a Commonwealth law expressed in mandatory and expansive terms. The judgments in Baldock turn on a different analysis.

Disposition of present case (a) inconsistency between jurisdictions 117 It is clear that, since 1990 when Pt 1B was inserted in the Crimes Act 1914 by the Crimes Legislation Amendment Act (No 2) 1990 (Cth), increasing levels of provision have been made by the Commonwealth in respect of the sentencing of federal offenders, in order to promote higher levels of consistency between sentencing in different jurisdictions. 118 The need for greater consistency in sentencing was identified with some clarity in the Australian Law Reform Commission Report No 44, Sentencing (1988) ("the 1988 Report") at pars 26, 32-34 and 155. In particular, the Commission stated at par 155: "The need for consistency in all aspects of the criminal justice system … applies particularly to the sentencing hearing, where the type and quantum of punishment are determined for individual offenders. Consistency is a basic requirement of justice. Consistency in sentencing simply means that the court should impose similar punishment for similar offences committed by offenders in similar circumstances. Disparity in sentencing can be justified only if there are acceptable and convincing grounds for differentiating between offences or offenders." 119 Drawing on that principle, the Commission noted the lack of guidance provided by current statute law and proposed a list of relevant factors to be included in legislation, in order to "promote consistency of approach": at par 170. The recommendations of the Commission were given effect by the legislation proposed in 1989 and passed in 1990, but only in part, a circumstance which has created a degree of difficulty for the courts: see Bibaoui [1997] 2 VR 600 at 602 (Ormiston JA); Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 at 372 (Kirby P, Campbell and Newman JJ), referred to in Putland v The Queen at [10]-[12] (Gleeson CJ) and at [87] (Kirby J). 120 Subsequently, in Report No 103, Same Crime, Same Time - Sentencing of Federal Offenders (April 2006) ("the 2006 Report") the Australian Law Reform Commission returned to its concern as to the level of inconsistency. At par 3.29 it stated: "The ALRC agrees with the majority of stakeholders that, in relation to the law governing the determination of a federal offender's sentence, a high degree of inter-jurisdictional equality is possible and desirable. Relying on State and Territory legislation in this area would introduce an unacceptable level of inconsistency in the sentencing of federal offenders. The High Court has made clear that consistency in punishment is a fundamental element in a rational and fair system of criminal justice." 121 The reference given for the last proposition was that also relied upon in the 1988 Report, being comments of Mason J in Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610-611. By 2006, the tabulation of relevant considerations had been adopted in nearly all States and Territories. The Commission reiterated its view that "identification of mandatory factors provides guidance to courts and promotes consistency in sentencing": at par 6.24. The Commission continued, noting that "in the federal context the need for guidance is greater than within a single jurisdiction because consistency must be sought in relation to sentences imposed by federal, state and territory judicial officers". 122 In 2006, the Commission took an additional step of obtaining and publishing data demonstrating significant variations in outcomes in like cases which might indicate inconsistency of approach: par 20.9 and Appendix 2. The disparities in respect of some groups of offences justified the concern regarding inconsistency between jurisdictions. On the other hand, the Commission did not seek to correlate such inconsistencies with sentencing patterns for similar State offences within the respective State and Territory jurisdictions. It is possible to envisage that uniform factors, properly taken into account, may give rise to disparity in sentencing, because the circumstances in different jurisdictions vary. On the other hand, it is more likely that the disparities reflect (at least in part) different approaches generally to the level and extent of imprisonment thought appropriate in different communities.

(b) establishing a national range 123 The increasing level of specification in the Crimes Act, not only of relevant criteria, but also of available sentencing options, is consistent with the view that sentencing courts should strive for consistency nationally: R v Wong [1999] NSWCCA 420, 48 NSWLR 340 at [89]-[91] (Spigelman CJ), referring to Medina v The Queen (1990) 108 FLR 288 at 292-293 (Malcolm CJ) and R v Krasnov & Shlakht (1995) 125 FLR 120 at 123-124 (Hayne JA, Crockett and Southwell AJJA). When Wong reached the High Court, it was not thought necessary to inquire whether the Court of Criminal Appeal "should have paid greater attention to the decisions of other intermediate appellate courts relating to that offence": Wong v The Queen [2001] HCA 64; 207 CLR 584 at [88]. (As noted by Atkinson J (Keane JA and White J agreeing) in R v Tran [2007] QCA 221; 172 A Crim R 436 at [33] the footnoted reference to that comment in Wong in the High Court was to Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485, which was concerned with the need to establish consistent interpretation of Commonwealth legislation in intermediate courts of appeal, a somewhat different issue.) 124 In R v Chandler [2010] QCA 21 at [18], Keane JA, with the agreement of de Jersey CJ and Douglas J, stated: "[18] In R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 10, this Court reviewed extensively the authorities … relating to the statutory sentencing scheme applicable to Commonwealth offences under the Crimes Act 1914 (Cth). At the conclusion of that examination, this Court summarised the position in the following terms: '... Sentencing judges should take into account decisions which are sufficiently like the subject case to shed light on the proper sentence. That includes comparable decisions both in Queensland and in the other States and the Territories which shed light upon the proper orders, although sentencing judges should also take into account that both the head sentence and order for early release in such cases might have been influenced by inconsistent local sentencing practices which must be put to one side in sentencing for Commonwealth offences. (It is not necessary in these appeals to consider the considerable complexities which may be thrown up in cases where it is necessary to impose sentences both for State and Commonwealth offences). In the end, the proportion which the period to be served in prison bears to the whole term is not itself a separate and distinct object of any part of the sentencing exercise. Rather, it is the result of the sentencing judge's discretionary determination of both the appropriate sentence of imprisonment and the appropriate terms of the recognizance release order after taking into account all of the circumstances of the offence, rather than by applying or making adjustments to any rule of thumb.' [19] The underlying value of equality under the law is best served by reference to the guidance afforded by authoritative sentences of this Court or of the Courts of other States and Territories which concern comparable cases. In this way a sentencing judge may seek to achieve reasonable consistency in the overall sentence. In the light of the clarification afforded by the decision in R v Ruha, Ruha & Harris ; ex parte Cth DPP , it can now be said that a sentencing judge should take into account comparable decisions of this State and of the other States and Territories bearing in mind that a non-parole period (which may reflect the influence of local sentencing practices influenced by local corrective services regimes) is an integral aspect of the sentence. Consequently, the issue for this Court in this case is whether the sentence which was imposed by the learned sentencing judge is manifestly excessive bearing in mind both the severity of the head sentence and the length of the non-parole period." 125 In Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60, the Victorian Court of Appeal (Harper JA, Redlich JA and Williams AJA agreeing) stated at [21]: "When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation." 126 In my view, more than principles of comity are involved when this Court is asked by the Commonwealth Director to intervene to increase a sentence imposed on a federal offender. Such intervention cannot be justified purely on the basis of reference to other decisions within this jurisdiction. The Court must be satisfied of manifest inadequacy, having regard to comparable sentences from other parts of the country, if available. As was recognised in Ruha and Chandler, permissible local considerations may affect comparability. However, it is important to be satisfied that such local considerations are both permissible and material. In some cases the exercise may involve a degree of sophistication and even complexity; but, the Commonwealth Director, as the moving party, should be well placed to provide comparable material from the various jurisdictions in which he or she conducts prosecutions. 127 Senior counsel appearing for the Director was pressed in the course of this matter to provide such comparable information from other jurisdictions. She stated that she did not have such material immediately available. As a result, the Court has conducted some research of its own in order to ascertain the true position, so far as that can be done without the resources of the Director to assist it.

128 A similar difficulty arose in Baldock, as noted by Pullin JA and Kenneth Martin J at [26]-[28]. Their Honours stated at [28]: "It is not satisfactory to leave the court to carry out its own research after the hearing, to select a list of cases which provide evidence of a range of sentences customarily imposed, to make decisions about which cases should be included and which cases should be excluded from that list, to then compare the sentence imposed by the sentencing judge with that range and then to determine the appeal without the parties having input in that process. … The solution is not to return to have a further hearing about what the court has uncovered. That would promote laziness in the parties' preparation and would convert appeal hearings into preliminary hearings. The solution is that the parties should carry out more research. If the court detects that the appellant has not carried out sufficient research then the safest course is to direct a party to carry out the work and allow the other party to make submissions about the list created." 129 It is clear that the problem which arose in the present case is not unique. What is less clear is the proper solution. Although prosecution appeals in particular may have consequences for the wider administration of justice, that which is before the court is the sentence imposed on an individual, which is challenged by one party or the other. A court should, in my view, be cautious about directing parties to undertake research. Such a course may require individuals to incur expenditure, in a jurisdiction where costs cannot be recovered. If the individual offender has legal aid, the expenditure of further time and effort on behalf of one litigant may involve a diminution of the resources available to others, within a tight legal aid budget. Such a course will also give rise, as it did in this case, to significant additional delay in the resolution of the sentence being served by the offender. The preferable course is to dismiss the appeal on the basis that the prosecuting authority has failed to satisfy the Court as to the relevant range of sentencing against which, at least in part, the challenged sentence is to be assessed. I would have dismissed the appeal on this basis. 130 The offence with which the respondent was charged involved importing a marketable quantity of cocaine. That was not one of the offences which was investigated by the Australian Law Reform Commission in the research addressed in the 2006 Report. The sentences analysed in that Report appear to have fallen within a period between 2000 and 2004 and to have involved trafficable and commercial quantities of prohibited drugs imported contrary to s 233B of the Customs Act 1901 (Cth), since repealed. (Prior to the enactment of the current provisions in the Criminal Code, there was no separate quantification between trafficable and commercial quantities, such as that now identified as a marketable quantity.) Further, it is unclear what allowance was made for the effect of s 16G of the Crimes Act, which was in force for part of the period and required a sentencing court, in a State or Territory where there was no provision for remission of sentence, to take that fact into account and adjust the sentence accordingly: see Tran at [34]-[35]. For these reasons, the material provided by the Australian Law Reform Commission can have no direct application. Nevertheless, it demonstrates the basis for concern at the limited material provided by the Director. 131 In respect of the first category of offences, involving prosecutions for trafficable quantities of MDMA (3-4 Methylenedioxymethamphetamine), there was variation shown between the States, but the differences were not significant statistically: the 2006 Report, p 877, fig A2.87. However, it may be noted that the mean minimum period of imprisonment was comparable in New South Wales (47 offences - 72 months) and Western Australia (17 offences - 69 months), but each was significantly higher than Victoria (10 offences - 39 months). Similarly, in relation to the maximum sentence, the mean period was, in relation to New South Wales 154 months, in relation to Western Australia 132 months, but in relation to Victoria 66 months. 132 The second category of offences involved prosecutions for trafficable amounts of heroin and the variations were statistically significant: the 2006 Report, p 880, fig A2.93. In this case, New South Wales and Victoria were closer to each other, but both were significantly below Western Australia. In relation to the third category, involving prosecutions for commercial quantities of heroin, there were variations, but they were not statistically significant, probably due to small sample sizes: the 2006 Report, p 883, fig A2.98. Thus, New South Wales, with a sample of 35 offences, had a mean minimum term of 150 months, whereas Queensland (5 offences) had a mean minimum term of 74 months and Victoria (8 offences) had a mean minimum term of 93 months. Similar disparities were revealed in the mean maximum terms being, for New South Wales 406 months, for Queensland 170 and for Victoria 132. 133 The significance of this material for present purposes is not to draw any inference as to the adequacy or otherwise of the respondent's sentence, but to demonstrate the importance of the Court having access to sentencing patterns in other relevant jurisdictions, so that it can give consideration to the level of consistency which would be achieved by intervening or by not intervening. Of course, inquiry may reveal that there has been no significant number of prosecutions for similar offences in other jurisdictions. That fact would render the proposed inquiry inappropriate, but not even that circumstance was revealed in the material originally provided by the Director.

(c) assessing the sentence imposed 134 The Director accepted that no specific error was capable of being identified in the meticulous consideration of all material circumstances by Zahra DCJ in the District Court. The grounds (identified at [181] below) did no more than suggest that, in some unidentifiable respect, inappropriate weight must have been given to some features of the case. 135 The Director referred to statistics published by the Judicial Commission in this State which indicated that an offender pleading guilty to a marketable quantity of cocaine received a total sentence of "up to nine years". The respondent's sentence was within that "range". The range in respect of heroin was said to be "up to 12 years" and, the Director submitted, no distinction should be drawn between the two drugs. That submission was based on the proposition that because, within the Code, serious drug offences "are arranged according to a quantity based regime … there should therefore be no differentiation between the two drugs according to whether one is more serious or harmful than the other". However, the logic of that proposition is that all considerations other than quantity are irrelevant: not only can that logic not be accepted, it is contrary to authority. As the High Court explained in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [73] (Gaudron, Gummow and Hayne JJ) the approach of this Court in that matter adopted a starting point for calculation "based on the false premise that gravity of the offence can usually (perhaps even always) be assessed by reference to the weight of narcotic involved": at [73]. 136 The Director submitted that the sentence of eight years in the present case constituted a mean sentence (in a range from seven to nine years) for importation of a "mid-range" quantity of drugs. The present case, it was submitted, involved a "high-range" marketable quantity, for which the appropriate range was 10-13 years with a median of 11.5 years. This was an entirely "quantity based" approach which disregarded the weight to be given to all the other considerations set out in s 16A(2) and was not in conformity with Wong. 137 McClellan CJ at CL has discussed 29 offenders, being the cases to which the parties referred the Court: at [226]-[253]. Of those, 11 had total sentences above that of the respondent, the highest being 11 years. The remainder were equal to or below that of the respondent. Seven had longer non-parole periods, the longest was 10 years (in the case which also had the longest head sentence) and was described by the Western Australian Court of Appeal as "severe". If these cases were to be taken as demonstrating a range, the Crown appeal would be dismissed as without substance. However, the conclusion reached (at [266]) is that the present case falls within "the first group of cases … involving importation of a marketable quantity of border-controlled drugs". Those cases were not all of the cases discussed, but were those identified at [217]. 138 The majority of the cases discussed by his Honour fall into what he describes as "the second group" of offences involving a marketable quantity. However, the categorisation appears to be based on a self-fulfilling premise, identified by the range of "head sentences" imposed. To conclude that the present case fell within the first group is merely to state what should have been the appropriate head sentence. As appears from the description at [248], the case of R v Mattheyer (Unreported, District Court of NSW, 18 April 2008) had significant features in common with the present case. The amount of cocaine imported was said to be 1.27kg; the street value was estimated at approximately twice the mid-point of the range in the present case (judgment, p 3), but it is treated as falling within a different group to the present case because the offender was described as a mere courier. 139 The sentencing judge in this case held, after analysing the evidence, that "the offender … was engaged as a courier": judgment, pp 7-8. The Director did not challenge that finding. It is therefore not appropriate to reassess the respondent's role in the importation, so as to suggest it "was above that of a mere courier": see [259] and [267(4)] below. 140 That recharacterisation aside, the fact that Mr Mattheyer received precisely the same sentence as the respondent highlights the difficulty in concluding that the present sentence was unquestionably outside the appropriate range. Nor is it insignificant that, of the cases put in the "first group" only two (other than Mohlasedi, which was, as the Chief Judge recognises, distinguishable) had a head sentence of nine years. If nine years were within the relevant range, it is difficult to see why eight years would not be. Further, of those which his Honour concludes were in the first group, three had non-parole periods of 6.5 years (none was higher) and five had non-parole periods of 5.5 years or less (that is, at the peak, only 10% higher than the present case). 141 Also included in the first group (but not discussed) was White v R [2006] NSWCCA 340 in which a sentence of 10 years with a non-parole period of six years was imposed. The offender was a principal and faced a maximum term of life imprisonment. No doubt the case is distinguishable, but its inclusion in the first category illustrates a degree of circularity in drawing inferences from a category defined by reference to the head sentences imposed. 142 Attempts to distinguish the present case from apparent peers need to take into account the unchallenged findings of the sentencing judge. After careful attention to the evidence, the sentencing judge found it "difficult to make any meaningful assessment of the offender's prospects of rehabilitation": judgment, p 10. It is not appropriate for this Court to reassess those prospects as "at the least, poor", meaning 'poor or worse', and conclude that the sentence imposed "should carry with it a strong component of personal deterrence": see [267(7)]. 143 Consistently with material in the 2006 Report, the case of Ngui, discussed at [230], tends to confirm that lower sentences may be imposed in Victoria. For an importation involving 1.25kg of heroin, the offender received a five year sentence with a 4.25 year non-parole period. Section 16G was then in operation so that some increase would be required to achieve comparability. However, the head sentence would be below that imposed in the present case after due allowance for the operation of that provision. 144 The respondent made a further criticism of the exercise undertaken by the Director, namely that the cases relied upon were all decisions of this Court, almost entirely on appeals by offenders. It followed, the submission suggested, that these were likely to be sentences at the upper range of acceptability, and thus distorted the true range of sentences imposed in trial courts. That submission gains support from the Judicial Commission's statistics. Some further support for that submission was obtained through the resources of the respondent, in providing to the Court details of a number of decisions of the District Court, referred to at [195] below, some of which are discussed by McClellan CJ at CL in his case summaries. The respondent's criticism should be accepted in part, although it may be that greater weight should properly be given to sentences which have been reviewed by an intermediate appellate court. However, where the process of review was accompanied by a comment that the sentence imposed, though not reduced, was "severe" (Tsen), or "heavy" (Mirza), it should be inferred that those sentences were seen by the appeal courts to be towards the top of the range: Tsen v R [2010] WASCA 21; Mirza v R [2007] NSWCCA 257, respectively; see also Tyn v R [2009] NSWCCA 146. Similarly, although there does not appear to have been such a case amongst those presently under consideration, a comment that a sentence was "lenient" would no doubt be taken to indicate that it was towards the bottom of the appropriate range. 145 This analysis has been undertaken, not to demonstrate any precise range applicable in the present circumstances, but to cast doubt on the proposition that the sentence imposed by Zahra DCJ was manifestly inadequate, in the sense that its inadequacy was "plainly apparent", to use the language of Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] set out by the President at [61] above. In my view neither the Director's case, nor the Court's independent research, makes good that proposition.

Conclusions 146 The procedure of carrying out research and proffering a second hearing was inappropriate, delayed the resolution of the Director's challenge to the sentence and no doubt caused additional anxiety to the respondent. The additional anxiety and stress generally associated with a prosecution appeal cannot be taken into account in circumstances where s 68A of the Appeal and Review Act applies: R v JW 141. Section 68A operates in federal jurisdiction to preclude such a consideration at this stage of the analysis. However, it does not follow that, despite s 68A, the Court may not properly dismiss an appeal, rather than engage in its own research and conduct a second hearing, on the basis that the material presented by the Director was inadequate: cf JW at [146]. 147 Given these conclusions, I would dismiss the appeal on the following grounds:

(a) the case as originally presented by the Director was deficient and failed to establish manifest inadequacy;

(b) it would, in that circumstance, have been proper for the Court then to have dismissed the appeal, rather than embark on further inquiries; and

(c) the material eventually relied upon in this Court did not demonstrate manifest inadequacy. 148 McCLELLAN CJ at CL: The respondent pleaded guilty to one count of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) ("the Code"). The offence carries a maximum penalty of imprisonment for 25 years. A marketable quantity of the relevant drug, cocaine, is 2 g. The commercial quantity is 2000 g. The pure weight of cocaine involved was 1,870.3 g. Accordingly the quantity was more than 900 times the minimum quantity required for the offence, and some 130 grams shy of a commercial quantity. The cocaine had an estimated wholesale value of $252,490 - $346,005 and a potential street value of $374,060 - $841,635. 149 The respondent pleaded guilty in the Central Local Court and was sentenced to a term of imprisonment of 8 years with a non-parole period of 5 years. The appellant appeals against the sentence. The error was said to be revealed by the manifest inadequacy of the sentence.

The relevant facts 150 The respondent is a Spanish national. He was issued with a Spanish passport on 6 August 2008. Two days later, he travelled from Spain to Argentina, returning to Spain on 15 August. On 5 November 2008 he again travelled to Argentina, during which time he purchased a travel ticket to Australia. On 10 November 2008 an international money transfer for an amount of 3,667 in unspecified currency was sent to the respondent from a person described as "Williams". The respondent arrived at Sydney International Airport on 16 November 2008. He was flying on a return ticket and was due to depart from Sydney for Buenos Aires on 21 November 2008. He had pre-booked accommodation in his own name for the duration of his stay. 151 On 14 November 2008 the Australian Embassy in Buenos Aires advised the Australian Federal Police of the respondent's travel plans and the fact that he had obtained a visa for travel to Australia. When the respondent arrived at Sydney International Airport he was subject to a search by Australian Customs officers. The search revealed the following relevant items: 1. One 750ml shampoo bottle containing white powder (bulk weight approximately 1 kg); 2. One 300ml hair care bottle containing white powder (bulk weight approximately 300 g); 3. One 300ml hair care bottle containing white powder (bulk weight approximately 300 g); and 4. One laptop bag concealing a black plastic package in the lining of the bag. 152 The respondent was questioned at the airport about the powder in the bottles. He stated that he had obtained the bottles in Argentina and had been using the shampoo product for about a week. The Australian Federal Police then attended the airport and placed the respondent under arrest. The respondent sought legal advice and declined to be interviewed. 153 Subsequent forensic analysis of the bottles and laptop bag revealed that the white powder was cocaine with a purity of between 60.1 and 81.9%. 154 The respondent gave evidence at the sentence hearing. He said that during the three and a half years he had previously spent in custody for robbery, he accumulated a significant debt to some friends in Argentina, who had been supporting his family and providing funds to him in jail, which he said he would use to purchase food. These friends are not identified, however I will refer to them as "the friends". He said that when he was released from prison he was in debt to the extent of €5,000, and found himself unable to repay the money. It was the respondent's evidence that his friends then began threatening him. Subsequently, the friends offered him €30,000 to import the cocaine into Australia. Of this amount, €15,000 was to be used to extinguish the debt, and the remainder to support his young family. 155 The respondent said that he was told by the friends that when he cleared customs in Australia he was to call a person in Spain who would give him instructions as to where to deliver the drugs. He did not know the identity of the planned recipient. 156 The respondent's evidence was that the friends funded his August trip to Argentina. They had wanted him to take drugs with him from Argentina back to Spain at that time but because he had a prior criminal record in Spain, which included drug offences, he did not agree to this plan. The second trip (Spain - Argentina - Sydney - Argentina - Spain) was also funded by the friends. The respondent agreed that the entire trip had been organised in advance. The respondent booked his accommodation in Argentina in his own name. The friends delivered the drugs (which were already packed in the bottles and bag in which they were found) to the respondent at his hotel. The respondent was aware that the bag and bottles contained drugs.

Remarks on sentence 157 The sentencing judge noted that the respondent entered a plea of guilty, which his Honour accepted as reflecting a measure of remorse. For the willingness to facilitate the course of justice evidenced by the plea his Honour allowed a 25% discount. 158 When assessing the objective criminality of the offence, his Honour remarked on the desirability of ascertaining the role played by offenders who are involved in criminal syndicates. His Honour was not satisfied beyond reasonable doubt that the offender was a principal and sentenced him on the basis that he was involved as a courier. His Honour remarked: "In some respects, the offender's account as to how he became involved in the importation is not credible. The offender's account is that those who were benevolent to him over many years, his friends, then turned on him and threatened him. His explanations as to the prior journeys to Argentina also lack credibility. These journeys may suggest that he was more involved in the planning and organisation of the importation than he has stated, however it is difficult to be conclusive.

At the same time however, the offender appeared, when giving evidence, to lack any sophistication, and as I have indicated, his explanations tended to be simply implausible. It is likely, considering his background of crime, that he had been recruited in what would clearly have been a high-risk activity. It would have been likely that customs authorities would have determined that the offender, on his arrival, would have fitted a profile that would have called for enquiry. He was a single man, travelling on his own from South America with no ties in Australia who had a ticket to depart only a matter of days after his arrival.

Having considered the material before me, and the principles referred to in Olbrich , I am not satisfied that there is evidence upon which it can be concluded that the offender was a principal. I am of the view that the offender, consistent with his evidence, was engaged as a courier.

Having considered his evidence relating to his background, it is unlikely that he would have been able to fund such an enterprise, including travel and sourcing drugs. There is no evidence to contradict his evidence that he is not a person who has any wealth.

The evidence of the transfer of money to the offender from an unknown person is consistent with his receipt of monies from others to fund his participation in the importation.

The fact that a person may be subordinate to others involved in the importation does not necessarily reduce the objective gravity of the offending, particularly where the role is crucial to the success of the importation, as was the act of the offender here. The superior courts have made it clear that couriers and intermediaries should not receive any particular leniency because without them the trade in narcotics would not exist. The quantity of drugs imported here, if it were not intercepted, was likely to cause substantial harm. There is a significant need for the sentence to be imposed to reflect the need for general deterrence." 159 His Honour emphasised the harm capable of being caused by drugs and the need for the sentence to reflect principles of general deterrence, particularly in light of the serious nature of the offence. His Honour found that the respondent imported a quantity of cocaine that was "towards the upper limit of the marketable quantity range" and participated in the importation for significant financial reward. 160 His Honour observed that the respondent had a significant criminal history involving both property and drug offences, and had spent approximately 10.5 years out of the preceding 12 in gaol. The respondent would face a long sentence in Australia which his Honour said was likely to provide significant personal deterrence. His Honour was unable to form a view as to the respondent's prospects of rehabilitation. 161 His Honour outlined the relevant subjective circumstances. He remarked: "The offender is a citizen of Spain. He is one of four children. His mother is still alive however his father died some fourteen years ago. His father was employed on construction sites.

In evidence the offender described a stable upbringing. He said there was always food on the table and his family were reasonably well off.

He attended school up to grade six. He was aged twelve when he left school. He said he left school because he did not like studying and his grades suffered.

When the offender left school, he first worked as a waiter then with his father and eventually worked as a fruit packer for some five to six years before finding himself in gaol.

The offender said that he left gaol with no money and, as I have already referred, it was this indebtedness that led to his decision to bring the cocaine into Australia. Since his arrest he has been detained at Silverwater gaol. He attends classes in English and has been employed in electrical wiring. In recent weeks the offender has been transferred to Lithgow jail and will continue to be employed there.

Since entering custody, apart from a visit on two occasions by a consular official and visits from his lawyer, he has had no other visits. He has limited phone contact each week with his family in Spain.

Whilst the offender has been undertaking English classes, his language skills are still poor, and apart from two other Spanish inmates, he is unable to speak to anyone else.

The offender on his release intends to return to Spain to live with his family.

The offender will experience some hardship in custody as he is some distance from his family. That hardship is no doubt a natural consequence of his conscious decision to offend here. The hardship however is not exceptional and consequently the extent that it can be taken into account is strictly limited though it is relevant as part of the general mix of subjective factors."

The section 68A issue 162 I have had the benefit of reading the judgment of Allsop P in draft. But for one matter, i.e. the meaning of "mental condition" in s 16A(2)(m) of the Crimes Act, I agree with his Honour with respect to s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). 163 As Allsop P makes plain, the Federal Parliament did not intend that the Crimes Act 1914 (Cth) Part 1B would be the exclusive source of law when sentencing federal offenders and that State sentencing laws would be irrelevant: Putland v R [2004] HCA 8; (2004) 218 CLR 174 at 185 [22] - [24] and 193 [53] - [64]. However, if a particular State law is contrary to a Commonwealth law it must be disregarded when sentencing an offender for a breach of a Commonwealth law. 164 In the present case, the issue is whether s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) is contrary to s 16A of the Crimes Act 1914 (Cth). Allsop P has set out the relevant provisions. The question raised in the appeal is whether, because s 68A removes any consideration of "double jeopardy" in relation to a Crown appeal against sentence, s 68A is contrary to s 16A(2)(m) of the Commonwealth Act which requires the sentencing court to have regard to the "mental condition" of the offender who is being sentenced. 165 The words "mental condition" in s 16A(2)(m) are capable of different meanings. They could be understood to include a medically known and clinically identifiable mental illness, e.g. clinical depression, schizophrenia and the like. They could also describe a person's mental state: distressed or anxious although not suffering a clinically identifiable condition. The Macquarie Dictionary includes amongst the meanings of the word "condition", "state of health." If that meaning were adopted, "mental condition" would be understood as the state of a person's mental health. 166 Discerning the appropriate meaning is made complicated by later provisions of the Crimes Act 1914 (Cth). Section 16A is found in Division 2 of Part 1B of the Act and provides general sentencing principles. Later Divisions deal with particular issues, including recognizance release orders (Division 4) and release on parole or licence (Division 5). No doubt because of the need to make provision for their possible detention, Part 1B also contains provisions dealing with the fitness of an offender to be tried (Division 6), acquittal because of mental illness (Division 7), summary disposition of persons suffering from mental illness or intellectual disability (Division 8) and alternatives for such persons (Division 9). In some of these Divisions reference is made to "mental condition." Reference is also made to "mental illness" and "intellectual disability." In each case the reference is for the purpose of determining a person's fitness to be tried or prospective release. 167 Section 20B is concerned with the process by which a person's fitness to be tried may be determined. Section 20BA(2) is concerned with a person against whom a prima facie case has been established but who the court is of the opinion that, inter alia, having regard to their "character, antecedents, age, health or mental condition" it is inappropriate to inflict any punishment.

168 Section 20BB deals with the circumstance where a person has been found unfit to be tried. At the time that determination is made s 20BB(1)(a) requires the court to determine whether the person is suffering from "mental illness" or a "mental condition" for which treatment is available in a hospital. If such a finding is made, the section provides for the relevant consequences. Section 20BC(6) indicates that with respect to a person found unfit to be tried, that person may continue to be confined subject to a condition that the person be assessed as to their "mental illness, mental condition or intellectual disability" (s 20BC(6)(b)). Section 20BJ of the Act, found in Division 7 of Part 1B, provides for the circumstances where a person is acquitted "because of mental illness at the time of the offence". 169 The Australian Law Reform Commission Same Crime, Same Time Report discussed these apparent anomalies with respect to the sentencing of Federal offenders (Chapter 28). The Report noted that the Act does not define "mental condition" although courts have considered a number of conditions under this "factor" such as severe depression (Monahan v McLeod [2004] QDC 10), low level intellectual functioning (R v Thinh Tang, Unreported, Supreme Court of Victoria (Court of Appeal) 2 October 1997) and organic brain damage (R v Scott [2003] NSWCCA 28). The authors of the Report also drew attention to the definition of "mental condition" in the Mental Health (Criminal Procedure) Act 1990 (NSW) which specifically excludes both mental illness and development disability (the latter includes intellectual disability). 170 The Report appears to assume that "mental condition" in s 16A(2)(m) does not extend to "mental illness" or "intellectual disability" and contains a recommendation that accordingly the legislation should be amended (Recommendation 28-4). But for the later distinction which the Act appears to make between the expressions, I would have had no hesitation in concluding that "mental condition" in s 16A(2)(m) included the state of a person's mental health, including, if it be the case, mental illness. "Intellectual disability" may be a different concept although it could be a result of or associated with a mental illness.

171 Although an amendment which clarified the position would be advisable, the common law deals with the present situation. In DPP (Cth) v El Karhani (1990) 51 A Crim R 123, this Court determined (at 378) that the ss 16A and 16B catalogue of matters to which a court must have regard when sentencing a person for a federal offence is not comprehensive and further, that Part 1B is not exhaustive: see Putland at 181. The obvious example is the omission from s 16A(2) of any reference to general deterrence. The same reasoning would require the court to have regard to a person's mental health or mental capacity. Whether because they are within the meaning of "mental condition" in s 16A(2)(m) or because they are required to be considered by the common law, all aspects of an offender's mental health and mental capacity must be considered when sentencing that person. They form part of the relevant subjective circumstances. 172 "Double jeopardy" is a concept developed by the common law. Its origins and implications were discussed by Spigelman CJ in R v JW [2010] NSWCCA 49. That case was concerned with the effect of s 68A in the context of sentencing for a State offence. When the Crown appeals a sentence, the Court of Criminal Appeal will assume that the respondent is suffering distress and anxiety caused by the possibility of receiving a more severe sentence for the relevant offence: JW at [54], [14]. In part for that reason, when error in the original sentence has been identified, the Court will consider whether to exercise its discretion not to intervene. If it decides to intervene, it may reduce the sentence which it would otherwise have imposed. The "double jeopardy" principle operates whatever be the actual circumstances of the respondent and does not require any inquiry to be made into those circumstances. It is explicable as an attempt by appellate courts to alleviate the disappointment inherent in a respondent having his or her sentence challenged by the Crown and increased (see El Karhani referring to R v Hayes (1987) 29 A Crim R 452 at 471). 173 It may be that an offender who is being sentenced is experiencing actual anxiety and distress out of a concern that they may be sentenced to imprisonment. In JW, Spigelman CJ accepted that actual anxiety and distress is a subjective circumstance of the offender which may be relevant to the sentence which should be imposed at first instance. His Honour also acknowledged the submission on behalf of the appellant (in that case the State DPP) that there is a distinction between the distress and anxiety in facing sentence for the first time and the additional distress and anxiety caused by the possibility of a harsher sentence on appeal (at [51]). When a court is re-sentencing, the Chief Justice said that anxiety and distress "is capable of being a significant indication that considerations of personal deterrence are not to be given significant weight" (at [52]). That the Chief Justice was referring to actual anxiety and distress is plain from the fact that his Honour had regard to this consideration when discussing the appropriate sentence. His Honour said, "His mother gave evidence as to the stress and anxiety manifested by the respondent, which indicates that the objective of personal deterrence is already being served" (at [192]). 174 At [14] in JW, the Chief Justice provided a summary of the propositions which emerged from his analysis of the situation following the enactment of s 68A. His Honour said: "The following propositions emerge from the above analysis:

(i) The words "double jeopardy" in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.

(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.

(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.

(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.

(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise." 175 I have added my own emphasis to make plain my understanding of his Honour's reasoning. In short, s 68A has removed from consideration the element of anxiety and distress to which all respondents to a Crown appeal are presumed to be subject. However, it has not removed from consideration any actual anxiety or distress occasioned by the fact that the respondent may be re-sentenced. Notwithstanding s 68A, being a subjective consideration of that particular offender, it must be considered. The appropriate sentence must be informed by all of the relevant objective and subjective circumstances. It may be that, in the circumstances of a particular respondent, including his or her actual anxiety or distress, the appeal court should exercise its discretion and decline to intervene (at [95], [146]) or impose a lesser sentence. 176 The common law assumption that a person facing sentence for a second time would be distressed and anxious was the justification for the development of the principle of double jeopardy in relation to Crown appeals against sentence. Because it is based upon an assumption, the principle is not a consideration raised by s 16A(2)(m). Section 16A(2) requires that the catalogue of matters identified in the subsection be taken into account when relevant and "known to the court." This is not to be understood as requiring formal proof of any matter (Weininger v R (2003) 212 CLR 629 at [21]). However, when the issue is an offender's mental condition, there must be some material from which it can be known rather than merely assumed. 177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. 178 I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]. 179 It follows that s 68A is not in conflict with s 16A(2)(m). The "mental condition" of an offender must still be considered when re-sentencing as part of a Crown appeal. 180 I should add that I agree with the observations of Simpson J at [280] of her Honour's reasons.

The appellant's submissions 181 The appellant submitted that the sentence was manifestly inadequate in the following respects: first, it failed to adequately reflect the objective criminality of the offence; second, it failed to adequately reflect the principle of general deterrence for offences of this kind; and third, it attached excessive weight to favourable subjective features and insufficient weight to unfavourable subjective features. Accordingly, it was submitted, the sentence fell below the range open to his Honour. 182 The objective criminality of the offence was marked by the fact that the quantity of cocaine involved was high, and the respondent offended for the purposes of significant financial gain. The appellant accepted that his Honour found that the respondent was engaged as a courier. The appellant observed, correctly in my view, that "[t]here was little evidence adduced to enable his Honour to determine much about the nature and extent of any organisation or enterprise that may have been behind the importation, including the level or role that the Respondent may have held within any such enterprise." However, it was submitted that the presence or absence of a criminal syndicate "had little bearing on the assessment of the Respondent's culpability", particularly in circumstances where he played an essential role in the importation. Although not disputing his Honour's finding, the appellant submitted that his Honour accorded too much mitigatory weight to the finding that the respondent acted as a courier. 183 The appellant also submitted that the subjective features of the respondent "did not amount to a very compelling case for mitigation." The appellant pointed to the respondent's significant criminal record as evidencing a "continuing attitude of disobedience of the law". It was submitted that the fact that the offence may have been partly motivated by indebtedness was irrelevant. His Honour found little evidence apart from the plea of guilty to indicate remorse. His Honour observed that it was "difficult to make any meaningful assessment of the offender's prospects of rehabilitation" (at 10). These findings were said not to work in the respondent's favour. The appellant submitted that any hardship suffered by the respondent by virtue of his enforced separation from his family in Spain was of limited significance in the present case. 184 In relation to the appropriate sentencing range, the appellant relied on statistics published by the Judicial Commission of New South Wales with respect to sentences imposed for offences under s 307.2(1) of the Code between 17 January 2003 and 30 June 2009. These statistics, it was submitted, demonstrated that: "where an offender has pleaded guilty to importing a marketable quantity of a border controlled drug and the substance was cocaine, head sentences of up to 9 years have been imposed. The statistics show that where an offender has pleaded guilty to the same offence, but where the substance was heroin, head sentences of up to 12 years have been imposed. Given that [in] the Code serious drug offences are arranged according to a quantity based regime, and there should therefore be no differentiation between the two drugs according to whether one is more serious or harmful than the other, the Appellant submits that it should be accepted that the statistics indicate that a head sentence of 12 years, after a guilty plea, would also fall within the general range of sentence for importing a marketable quantity of cocaine." 185 The appellant also referred to statistics published by the Judicial Commission in relation to sentences imposed for the offence of importing a trafficable quantity of cocaine under s 233B of the Customs Act (now repealed). In the 60 cases where a plea of guilty was entered, the head sentence ranged from 1.5 years to 10 years and the non-parole period ranged from 1 year to 7 years. 186 The appellant discussed the sentencing ranges identified in R v Wong; R v Leung and R v SC. In Wong and Leung (which was ultimately significantly criticised by the High Court in Wong v R (2001) 207 CLR 584) this Court identified an appropriate range of sentence of 7 - 10 years imprisonment for importation of a high-range trafficable quantity (i.e. 1 - 2 kg of cocaine); 6 - 9 years for importation of a mid-level trafficable quantity (i.e. 200 g - 1 kg) and 5 - 7 years for importation of a low-level trafficable quantity. These ranges were said to apply where the offender acted as a courier or played some other low-level role. Upward adjustments would now be necessary given that, as the appellant noted, the ranges identified in Wong and Leung were based on sentences imposed subject to s 16G. The appellant submitted that in most of the decisions captured by Wong and Leung, the offender had entered a plea of guilty. In R v SC, Price J's statistical analysis led his Honour to observe that "an appropriate range of sentences involving low level trafficable quantities of cocaine and heroin after the repeal of s 16G is a head sentence of between six and nine years imprisonment" (emphasis added).

187 The appellant provided a schedule of comparative sentences which it submitted demonstrated that the sentence imposed by his Honour "would be more appropriate for a case involving a low-level or mid-level quantity of a marketable quantity" than a high-level quantity. The decisions referred to by the appellant were: R v Bartlett [2005] NSWCCA 103; R v Do [2005] NSWCCA 258; R v Pham [2005] NSWCCA 314; R v Paliwala (2005) 153 A Crim R 451; R v Okeke [2005] NSWCCA 444; De Campos v R [2006] NSWCCA 51; Anna Le v R [2006] NSWCCA 136; R v Okafor [2007] NSWCCA 147; Mirza v R [2007] NSWCCA 257; R v Springer (2007) 177 A Crim R 13; R v Springer [2009] NSWCCA 144; Seng v R [2007] NSWCCA 335; Danial v R [2008] NSWCCA 15; R v Huynh (2008) 180 A Crim R 517; R v SC [2008] NSWCCA 29; R v Chea and Ors [2008] NSWCCA 78; Milich v R [2008] NSWCCA 148; R v Riddell [2009] NSWCCA 96; Navasardian v R; Petrosyan v R [2009] NSWCCA 108; El-Ghourani v R [2009] NSWCCA 140 and Tyn v R [2009] NSWCCA 146. Okeke, Okafor, SC, Milich, Riddell, Navasardian and El-Ghourani were all possession offences. For this reason they do not appear in the Schedule prepared by this Court (discussed below). 188 In relation to offences involving mid-range quantities of drugs, the appellant referred to remarks made by this Court in Do at [17]; Pham at [50]; Paliwala at [46]; Milich at [27]; Tyn at [38] and Chea and Ors at [46]. The combined effect of these remarks, it was said, was to identify a "post-discount" sentencing range of 7 - 9 years for the importation of a mid-range quantity of drugs. 189 In the appellant's view, an appropriate sentencing range for a high-range marketable quantity was 10 - 13 years. It seems that these figures were intended to represent a "post-discount" sentencing range.

Respondent's submissions 190 The respondent submitted that the appellant's approach to the appropriate sentencing range was flawed. It was criticised as according undue attention to the quantity of drug involved. The appellant was said to have based its argument on an analysis of the results of other sentences without considering the various objective and subjective factors that led to the result. This results-based analysis was said to be contrary to the principles identified in Wong v R at [65]. 191 The appellant's approach was said to invite the Court to make the following errors: "(a) highlighting the weight of the cocaine as in effect the paramount factor affecting the sentence outcome;

(b) analysing the results of other sentences broken down into sub-categories of the offence based upon weight;

(c) it downplays the relevant factors which are required to be taken into account under section 16A of the Crimes Act;

(d) there is no warrant for the range of sentences advocated by the Crown in relation to low, mid and high range quantities." 192 The respondent submitted, citing Chea and Ors at [43], that the sentencing ranges identified in Wong and Leung did not include discounts for pleas of guilty. It is to be recalled that the appellant submitted, based on the observations of Hulme J in R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121 at [23], that the majority of the cases captured by Wong and Leung did involve a plea of guilty. For reasons that will emerge, it is not necessary for me to resolve this inconsistency.

The importance of consistency in sentencing 193 During the hearing of the appeal, this Court repeated a request which had previously been made in other matters involving the Commonwealth for assistance in identifying previous cases in which sentences had been imposed for relevant Commonwealth offences. These include, in the present case, the offences of importation of border controlled (or prohibited) drugs as well as allied "attempt", "aid, abet, counsel or procure" and "conspiracy" offences. The Court has made a number of similar requests over the course of various appeals. However, the decisions to which we are referred tend to be of limited value or, as in this case, largely confined to sentences imposed by New South Wales courts. It is a mistake to assume that this Court should confine its consideration to New South Wales decisions when considering Commonwealth offences. State courts must endeavour to achieve consistency in sentencing patterns. There should be consistency in the approach taken across all State courts when sentencing for Commonwealth offences (see, eg, R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [14]; Wong and Leung at [6]; R v Wright [2003] WASCA 56; (2003) 138 A Crim R 390 at [55]; R v Tran [2007] QCA 221; (2007) 172 A Crim R 436 at 443; R v Mokoena [2009] QCA 36; [2009] 2 Qd 351; (2009) 193 A Crim R 351 at [12]; Berlitone v R [2009] WASCA 149; (2009) 231 FLR 383 at [34]). 194 By letter dated 21 May 2010, the appellant responded to the Court's request by providing copies of three previous decisions from other States which in its opinion were comparable to the present case (Tsen v R [2010] WASCA 21, R v Le (Unreported, Victorian Court of Appeal, 19 February 2010) and Mokoena). 195 On 24 May 2010 the Court received from the respondent a document entitled "District Court Comparative Table" which enclosed transcripts of the remarks on sentence in 7 importation matters determined in the District Court of NSW. These were R v Ntsi (Unreported, District Court of NSW, 27 August 2004), R v Hovorka (Unreported, District Court of NSW, 17 December 2007), R v Trang (Unreported, District Court of NSW, 16 February 2007), R v Nhu Thi Hong Ho; R v Thanh Nhu Ho [2007] NSWDC 27, R v Robillard [2007] NSWDC 115, R v Toure [2008] NSWDC 335, R v Mattheyer (Unreported, District Court of NSW, 18 April 2008). The transcript of the remarks on sentence in R v Egbue (Unreported, District Court of NSW, 22 September 2003) was also provided. The charge involved in that case was attempted possession of prohibited imports (90.3 g of cocaine). 196 In the present case, apart from the decisions referred to by counsel, my own research has located another 78 decisions which relate to drug importation offences. Some of these decisions are of particular significance in the present matter. A Schedule of these decisions is annexed to this judgment. I have taken this course to ensure, in the interests of both the appellant and the respondent, that this judgment has a secure footing. The collection of previous decisions may also prove a useful resource for judges sentencing for drug importation offences. The parties were served with a copy of the Schedule and were invited to make further submissions in response to the cases identified therein. When the issue was raised by the Court, both parties accepted that it was appropriate for the Court to identify decisions beyond those referred to by the parties. The appellant said that the Court was required to have regard to all relevant cases, whether discovered by the parties or the Court. 197 The importance of a consistent approach by courts to sentencing for similar offences has been stressed by the High Court in Lowe v R (1984) 154 CLR 606 per Mason J at 610-611, Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; (1997) 98 A Crim R 134 per Kirby J at 411 and Wong v R per Kirby J at [89]. I have analysed the sentences imposed in each of the cases which have been identified to determine whether there exist consistent patterns when sentencing. In particular I have attempted to identify the circumstances of the offence and of the offender for sentences of varying degrees of severity. In undertaking this task, I have also looked at the sentences imposed for other Commonwealth drug offences where the maximum penalty is either 25 years or life imprisonment. Accordingly, I have looked at the sentencing patterns for all Commonwealth offences relating to the importation, possession, trafficking or manufacture of proscribed narcotics. Only the importation cases have been relied in the resolution of the present case. I have considered cases prosecuted under the Code as well as those which were prosecuted under the previous provisions found in s 233B of the Customs Act 1991 (Cth). The Code made some alterations to the physical and fault elements required for the relevant drug offences and so the offences are not identical. However, in circumstances where the prescribed maximum penalties and drug quantities survived legislative amendment, I have determined that I should not entirely disregard cases brought under the Customs Act provisions. 198 I should make plain that I have not attempted to capture every possible decision. This would be a difficult task, particularly when the lower courts only infrequently report their judgments. What I have attempted to do is to generate a broader picture than is typically provided through comparative case tables and sentencing statistics. 199 The patterns of sentencing which I have identified reflect the sentencing information presently available. Many sentences may have been imposed by trial courts which, given the limited research capacity, cannot now be retrieved. It is of course in the trial courts where sentencing patterns are most evident, although they will be subject to any authoritative statement by an appellate court. 200 After analysis, I have placed the sentences into relevant groupings. I have taken this approach for ease of understanding by others. Of course the appropriate sentence for a particular offence will depend on all the circumstances of the offence and the offender. The groupings are merely an attempt to facilitate an understanding of the available information by reference to the common features of offenders and offences and the sentence imposed. There will inevitably be anomalies and others exercising their own judgement may have placed one or other of the decisions into a different group. 201 Any cases considered before the repeal of s 16G (where that section had application) may only be considered with an appropriate upward adjustment: R v Studenikin [2004] NSWCCA 164; R v Kevenaar & Ors [2004] NSWCCA 210. For this reason I have included pre-repeal cases only where an undiscounted starting point is mentioned in or capable of being deduced from the remarks on sentence or judgment. 202 Recognising the concerns expressed by Gaudron, Gummow and Hayne JJ in Wong v R, I have endeavoured to take a principled rather than "results-driven" approach to the analysis. Although the Schedule orders the cases by reference to the length of the sentence, this approach was adopted as a sensible starting point to understanding the available information. The identified cases were then analysed by reference to their particular features. In the process of analysing the relevant decisions, I have recorded all relevant objective and subjective features of the offence, where they appear in the judgment or remarks on sentence. These include the offence with which the offender was charged; the applicable maximum penalty; the plea; the identity, pure weight and value of the drug; the role played by the offender; any reward expected or received; and the many subjective features including the offender's age, nationality, personal and financial circumstances, mental and physical health, moral culpability, criminal history, character and antecedents, cooperation with or assistance to the authorities, remorse, prospects of rehabilitation and anticipated isolation or hardship. 203 I have not written a guideline judgment. It is plain that only those decisions that are relevantly comparable to the facts of a particular case are of significance when sentencing an individual offender. Decisions of particular relevance to the present case are separately identified and discussed.

Appellant's further submissions 204 In its further submissions, the appellant cited the cases provided in the Schedule which in its view supported a finding of manifest inadequacy. These were Teehan v R [2006] NSWCCA 401, R v Vo [2006] NSWCCA 165, Paliwala, Mirza, Anna Le, Mohlasedi v R [2006] WASCA 267, Tsen, Tanadi v R [1999] WASCA 188, Parry v R [2003] WASCA 222, Thom v R [2001] WASCA 322; (2001) 126 A Crim R 196, Radebe v R [2001] WASCA 254; (2001) 162 FLR 313; R v Tun Thanh Tran, Mokoena, X v R [2000] WASCA 355, Pham, Tyn, Heryadi v R (1998) 19 WAR 383; (1998) 98 A Crim R 578, P v R [2003] WASCA 180 and De Campos.

Respondent's further submissions 205 In its further submissions, the respondent drew attention to the authorities which it said demonstrated that the respondent's sentence was not definitely manifestly inadequate. These were R v Ong [2007] VSCA 206; (2007) 176 A Crim R 366, R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525, Mohlasedi, Viera v R [2006] NSWCCA 401, Teehan, Tsen, Tanadi, Parry, Vo, White v R [2006] NSWCCA 340, Tran, Mirza, Mokoena, R v W [2002] NSWCCA 192; (2002) 129 A Crim R 400, R v Mirzaee [2004] NSWCCA 315, Thom, Do, Radebe, Anna Le, Robillard, Toure and R v Saputra [2009] NSWDC 239. 206 The respondent also referred the Court to the case of R v Jain [2004] VSCA 20 which it said was comparable. R v Tee (1994) 61 SASR 501; (1994) 71 A Crim R 181 and R v Acosta [1999] NSWCCA 334 were also discussed. The sentences in these latter cases were subject to s 16G and the notional starting point was not identified by the sentencing judges. For this reason, they were not incorporated into the Schedule. Having considered the matter carefully, I have determined that it would be inappropriate to regard the cases of Tee, R v W, Jain, Otto, Ong and White as comparable. The offenders in those cases faced a maximum penalty of life imprisonment.

Import commercial quantity: Customs Act s 233B and Criminal Code Act s 307.1 207 The first group of cases collated are those concerned with the importation of commercial quantities of narcotics. Allied offences such as conspiracy to import, as well as aid and abet and attempt offences, were also considered. All of these offences attract the same maximum penalty of life imprisonment.

208 The decisions which I have placed into the first group are R v Perrier [1991] 1 VR 717; (1990) 59 A Crim R 164; Vanit v R [1997] HCA 51; (1997) 190 CLR 378; Tansakun v R [1997] HCA 51; (1997) 190 CLR 378; R v Wangsaimas [1997] HCA 51; (1997) 190 CLR 378; R v Bateman [2000] NSWSC 915; R v Suarez-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577; Mazzitelli v R [2002] NSWCCA 436; (2002) 135 A Crim R 132; R v Diez [2003] NSWCCA 329; (2003) 181 FLR 1; R v Bartle [2003] NSWCCA 329; (2003) 181 FLR 1; R v Fry [2003] NSWCCA 329; (2003) 181 FLR 1; R v Roberti [2003] NSWCCA 329; (2003) 181 FLR 1; R v Reaves [2004] WASCA 106; (2004) 147 A Crim R 26; R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493; Law v R [2006] NSWCCA 100; De La Espriella-Velasco v R [2006] WASCA 31; (2006) 31 WAR 291; Sevilla v R [2007] WASCA 116; R v Lee [2007] NSWCCA 234; and R v To [2007] NSWCCA 200; (2007) 172 A Crim R 121. 209 These decisions represent the most serious cases, and head sentences ranging from 25 years to life imprisonment and non-parole periods ranging from 8.5 to 30 years were imposed. A common feature of these cases is a high or very high commercial quantity of drugs, frequently numbering in the tens if not hundreds of kilograms. (The clear exception is Perrier, which has features in common with other decisions in this group (e.g. not guilty plea, principal role) but involved only 1.636 kg of heroin.) The street value of the drugs is frequently (and unsurprisingly) in the hundreds of millions of dollars. In roughly half of these cases, the offenders pleaded not guilty and accordingly did not receive any "discount". Offenders in this group tend to receive substantial monetary rewards for their participation in the importation, numbering in the tens if not hundreds of thousands of dollars. The most striking feature of this group of decisions is the role of the offender in the importation. The offender is either the "mastermind" of the operation or holds a very senior executive or organisational post with a very high level of responsibility. Possible exceptions are the related cases of Roberti and Bartle, however the other features of those cases warrant their inclusion in this group. Those features are the quantity of drugs involved in the importation (383kg) and the pleas of not guilty.

210 The decisions within the second group are R v Salles (Unreported, Queensland Court of Appeal, 20 May 1997); Kwong v R (1997) 97 A Crim R 283; R v Mascaro-Varillas [2002] NSWCCA 524; R v Tsay [2006] QCA 423; Cao v R [2009] NSWCCA 273; Tan v R [2009] VSCA 148; (2009) 22 VR 706; Lam v R [2009] VSCA 148; Wong v R [2009] VSCA 148; Teng v R [2009] VSCA 148; (2009) 22 VR 706 and Phan v R [2009] NSWCCA 273. 211 The head sentences in these decisions range from 18 to 24.5 years and the non-parole periods are between 10 and 16 years. These decisions are very similar to those in Group 1, but for the fact that all of the offenders in this group pleaded guilty to the charge. In addition, the majority of offenders in this group played roles which, although described as "essential" or "vital", were not principal roles (Kwong third in hierarchy; Tan not principal but vital; Lam not principal but high degree of responsibility and authority; Wong not principal but played significant part; Tsay above co-offenders in hierarchy; Teng middleman; Salles actively involved crew member). Offenders in this group anticipate receiving rewards in the realm of tens of thousands of dollars for their participation in the offence. 212 The cases in the third group are Diefenbach v R [1999] WASCA 4; (1999) 108 A Crim R 19; Jain; Otto; Speer v R [2004] NSWCCA 118; [2005] NSWCCA 333; R v Mohammadi [2006] QCA 530; (2006) 175 A Crim R 384; Vasquez-Felipe v R [2006] NSWCCA 411; Ong; Thi Rot Nguyen v R [2009] NSWCCA 273; R v Carstein [2007] QCA 209; (2007) 174 A Crim R 491; R v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458; and NP v R [2008] NSWCCA 205. 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 7 kg. (Two obvious exceptions are Chalmers and Np v R: 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 (e.g. Vasquez-Felipe; Np; Speer; W). These efforts attract discounts of up to 30%. 214 The cases which I have included in the fourth group are Soewandi v R [2002] WASCA 315; R v B [2004] WASCA 1; R v Labanon [2006] QCA 529; Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458; R v Lake [2007] QCA 209; (2007) 174 A Crim R 491; R v Geerlings [2007] QCA 209; (2007) 174 A Crim R 491 and Davidson v R [2009] NSWCCA 150. 215 In this group the head sentences range from 6.25 years through to 8 years, while the non-parole periods range from around 3 to 4.5 years. The cases are roughly split between those in which the offenders pleaded guilty and those in which they pleaded not guilty. Quantities of drugs range from 1 kg to 30 kg and offenders occupy roles variously described as instigators, overseers, collectors and couriers. Many offenders in this group had good antecedents and no prior convictions.

Import trafficable or marketable quantity: Customs Act s 233B and Criminal Code Act s 307.2 216 This offence (including importation, conspiracy, aid and abet and attempt offences) attracts a maximum penalty of 25 years imprisonment. 217 The decisions which I have included in the first group are W; Mohlasedi; Teehan; Tsen; Tanadi; Parry; White; Vo; Tran; Paliwala; Hovorka; Mirza and Mokoena. 218 The sentences imposed in this group range from 9 to 18 years (head sentence) and 4 to 10 years (non-parole period). Mohlasedi attracted a particularly high head sentence of 18 years, which is explicable by reason of the high quantity of heroin involved (1.146 kg), the extraordinary purity level of the drug (100%), its street value (between $3.9m and $5.1m), the offender's plea of not guilty and the particular need for general deterrence given that the offender imported the drugs in his capacity as a member of airline cabin crew. Putting Mohlasedi to one side, the sentencing range is far more confined: 9 - 11 years (head sentence); 4 - 7.25 years (non-parole period). A number of the sentences incorporated discounts for guilty pleas. The highest undiscounted starting point (excluding Mohlasedi) is 18 years and 8 months, which would have been imposed in R v W but for the plea of guilty, substantial assistance and the operation of s 16G. 219 The anticipated financial reward for offenders in this group lies in the thousands of dollars. The role played by offenders tends to be greater than that of a "mere courier" (Parry, Vo and White involved principals). Offenders who are characterised as low-level couriers or labourers are generally found to have had an additional layer of responsibility or to have played some part in the planning of the importation. Examples include Mohlasedi (courier and importer), Hovorka (more than mere courier), Mirza (courier although high moral culpability due to premeditation) and R v W (intimately involved although played a subordinate role). Where the offender is found to have been a mere courier (Tsen, Tanadi, Tran, Mokoena), the quantity of drug involved tends to be well over the trafficable or marketable quantity threshold. Such was the case in Mokoena (497.5 g); Tsen (667.2 g) and Tran (1,473 g) although not Tanadi which, it should be noted, involved three counts of importation. In each of the former cases, the marketable range for the relevant drug, heroin, was 2 - 1500 g. 220 The cases which I have included in the second group are Heryadi; X; Thom; Radebe; P; Harris v R [2004] WASCA 292; (2004) 150 A Crim R 509; Mirzaee; R v Kaldor [2004] NSWCCA 425; Pham; Bartlett; Do; R v Tun Thanh Tran; Anna Le; De Campos; Viera; Trang; Robillard; Taylor v R [2007] WASCA 146; (2007) 172 A Crim R 430; Mattheyer; Toure; Saputra; R v Jimson [2009] QCA 183 and R v Nikolovska [2009] NSWDC 291. 221 The head sentences in this group range from 6 to 9 years. The non-parole periods range from 3 years to just over 5 years. The quantity of drug does not seem to be of particular significance. The significant factors which are common are the role played by the offender, the anticipated reward, the nature and timing of any plea, as well as the level of any assistance provided. The majority of the offenders in this group were mere couriers (Mirzaee, X, Do, Bartlett, Mattheyer, Radebe, Jimson, Heryadi, P, Anna Le, De Campos, Toure, Kaldor) although some had more senior roles (Pham low level importer; Saputra principal, Boyd significantly involved; Tran involved in management but not a principal; Nikolovska facilitator). Discounts were allowed in Mirzaee (plea 25%), X (plea and cooperation 35%), Thom (plea 10%, cooperation 25%), Radebe (plea 25%), Pham (plea 25%), P (plea and assistance 40%), Anna Le (plea, assumed discount 25%), De Campos (plea, assumed discount 20%, offer of assistance 5%), Toure (plea and cooperation 25%), Saputra (late plea 10%), Viera (plea 25%) and Taylor (plea and assistance 35%). In many other cases discounts were applied without being specified in numerical terms. The sentences in Kaldor and Tran were imposed following successful Crown appeals. 222 The cases falling into the third group are Barany v R [2000] WASCA 240; (2000) 114 A Crim R 426; R v Ngui and Tiong [2000] VSCA 78; (2000) 1 VR 579; (2000) 111 A Crim R 593; De Bonde v R [2002] WASCA 251; R v Salcedo [2004] NSWCCA 430; R v Ntsi (Unreported, District Court of NSW, 27 August 2004); R v PHA [2004] NSWCCA 445; R v Hoang [2006] NSWDC 185; R v Nhu Mai Huynh Nguyen [2006] NSWCCA 369; (2006) 205 FLR 79; Blay v R [2006] WASCA 248; (2006) 205 FLR 414; Seng; Nhu Thi Hong Ho; Thanh Nhu Ho; Fisher Huynh; Chea and Ors; Danial; Springer; R v Chong [2009] NSWDC 377; Berlitone; Tyn; Petrosyan and Le.

223 The sentencing range for cases in this group is 3.75 - 6 years (head sentence) and 2 - 4.25 years (non-parole period). The majority of the offenders were mere couriers. Many expected a financial reward, or were promised relief of a debt, measured in the thousands of dollars. Virtually all entered a plea of guilty at the earliest opportunity and received discounts of up to 25%. Many of the offenders in this group suffered adverse personal circumstances including drug use and dependency (Chong, Hoang, Tyn, Petrosyan, Blay, Salcedo, Le, Fisher, Berlitone), physical and mental health problems (Chong, Hoang, Danial, Petrosyan, Le, Seng, Ntsi) financial problems (Hoang, Huynh, Barany, Nhu Thi Ho, Thanh Nhu Ho, Chea & Ors, Le) and familial/relationship problems (Chong, Tyn, Blay, Chea & Ors, Le). The quantities of narcotics involved in the offences tend to lie at the more conservative end of the marketable (or trafficable, as it was known under the Customs Act) threshold. Petrosyan, which I have placed in this group, is something of an anomaly. It involved a high marketable quantity of cocaine and a role well above that of mere courier. On the other hand, it has features typical to this group, including a plea of guilty and adverse personal circumstances. Without the significant assistance provided by the offender in that case, I would have placed this decision into the second group of cases. 224 My analysis can accordingly be summarised in the following table: Import commercial quantity Customs Act s 233B and Criminal Code Act s 307.1 Group 1 High quantity (tens or hundreds of kilograms); high value (tens of millions of dollars); large reward (hundreds of thousands of dollars) although finding of reward not required; not guilty plea in half of cases; no assistance; no remorse; mastermind, principal or part of organising committee; high degree of responsibility Group 2 High quantity; high value; guilty plea; principal, member of upper management or "essential" role with moderate to very high level of responsibility; reward in tens of thousands of dollars although finding of reward not indicative Group 3 Quantity generally below 7 kg; mid-range role; discount for assistance, cooperation; plea not indicative Group 4 No prior convictions; good antecedents; quantity not indicative; plea not indicative although discount provided for early plea; role not indicative although generally part of syndicate Import trafficable/marketable quantity Customs Act s 233B and Criminal Code Act s 307.2 Group 1 Reward in the thousands of dollars; discount for assistance; subordinate role (where "mere courier", quantity high) Group 2 Reward in the thousands of dollars; discount for assistance; nature and timing of plea highly relevant; quantity not indicative; courier or low level importer; some successful Crown appeals Group 3 Lower quantity; monetary reward or relief of debt; discount for early guilty plea; mere courier role; adverse personal circumstances

The present case 225 For the purpose of the present case the following decisions were identified as relevant by one or both of the parties to this appeal and as such, warrant particular discussion. Where a decision identifies the appropriate starting point for the particular sentence, that is separately identified.

Heryadi v R (1998) 19 WAR 383; (1998) 98 A Crim R 578 226 The applicant pleaded guilty to three counts of 62 g of MDMA, 25.5 g of cocaine and an unspecified trafficable quantity of MDA. The sentence also took account of a further count of possession of cannabis. The value of the MDMA was between $118,000 and $206,000 and the value of the cocaine was between $15,000 and $30,000. The applicant was a well-respected businessman who had accumulated a gambling debt. He agreed to act as a courier in exchange for the equivalent of $16,000. The applicant was a 41 year-old devout Muslim from Indonesia. The Court accepted that his reputation and business would be ruined as a result of his involvement in the importation. The applicant was genuinely remorseful. He had entered a "fast track" plea of guilty and had cooperated with the authorities by agreeing to participate in a controlled delivery. The sentencing judge designated 10 years as the appropriate starting point for the aggregate sentence. The final sentence was 8 years imprisonment with a non-parole period of 4 years. Accordingly, a combined discount of 20% was applied for the applicant's plea and cooperation.

R v Acosta [1999] NSWCCA 334 227 The applicant pleaded not guilty to importing 1.879 kg of cocaine, which was secreted in a liquor bottle contained in his luggage. The applicant was found guilty, the jury rejecting his assertion that he was ignorant of the contents of the liquor bottle. He was sentenced to a period of 8 years imprisonment with a non-parole period of 6 years. That sentence was subject to s 16G although the relevant deduction was not specified. The appeal was limited to the length of the non-parole period. The applicant said that he was suffering financial difficulties and agreed to act as a courier at the request of a man whom he met in Buenos Aires a week before arriving in Sydney. He was to be paid for his participation. The Court on appeal was satisfied that the sentencing judge did not separately address his discretion to fix the non-parole period. Taking into account the applicant's age (55 at the time of the appeal), limited education, background of severe poverty in Colombia, lack of prior convictions, distance from his family in Argentina, genuine contrition, past treatment for depression and anxiety, and isolation in Australia, the Court reduced the non-parole period to 5 years.

Tanadi v R [1999] WASCA 188 228 The applicant pleaded guilty to three counts of importing a trafficable quantity, namely 263.4 g ecstasy, 16.4 g "ice" and 3.2 - 6.8 g heroin. He acted on the promise of $6000 plus expenses. The applicant was a 51 year-old Indonesian man who agreed to act as a courier of the drugs because he was heavily in debt in Indonesia. He had no prior convictions and exhibited genuine remorse. The sentence imposed was 10 years imprisonment with a non-parole period of 5 years.

X v R [2000] WASCA 355 229 The applicant pleaded guilty to a charge of importing 224.2 g of heroin valued at between $375,000 and $400,000. The applicant was to receive $10,000 for acting as a courier. After being caught "red handed" he genuinely cooperated with authorities, his cooperation leading to the apprehension of his co-offender. The assistance that the applicant provided to the authorities placed him at risk of harm. The applicant had no prior convictions and pleaded guilty at the first available opportunity. His business and family were in Thailand. The sentencing judge expressed the starting point as 12 years imprisonment. The applicant's plea and assistance entitled him to a 40% discount. The head sentence of 7 years 4 months was affirmed on appeal but the non-parole period was reduced to 4 years and 9 months.

R v Ngui and Tiong [2000] VSCA 78; (2000) 1 VR 579; (2000) 111 A Crim R 593 230 The applicants pleaded guilty to importing a 1.25 kg of heroin. They agreed to act as couriers in exchange for the promise of (low) rewards, a free trip to Australia, and the possibility of renewed employment in Australia. Ngui (24) and Tiong (42) were described as "bare couriers". They each provided very significant assistance to authorities, including taking part in a controlled delivery and undertaking to give evidence against persons charged as a result. It was accepted that the considerable assistance provided by the applicants left them vulnerable to retribution. The original sentences of 5 years imprisonment with a non-parole period 4.25 years (subject to s 16G) was reviewed and re-imposed on appeal. The relevant discounts were not specified.

Radebe v R [2001] WASCA 254; (2001) 162 FLR 313; (2001) 122 A Crim R 559 231 The applicant, a South African female, pleaded guilty to importing 229.7 g of heroin as a courier. She was caught "red handed" at Perth International Airport. The applicant came from an impoverished background. Her son and 63 year-old mother (who was in ill-health) were both in South Africa. The father of her son was no longer alive. A starting point of 12 years was specified by the sentencing judge and was not disturbed on appeal. However, the Western Australia Court of Criminal Appeal increased the discount for the applicant's plea to 25%. The initial sentence of 10 years imprisonment was reduced to 8 years imprisonment with a non-parole period of 4.75 years.

Thom v R [2001] WASCA 322; (2001) 126 A Crim R 196 232 The applicant had a record of prior convictions, including drug possession and supply convictions, dating back to 1969. He pleaded guilty to a charge of importing 225.2 g of heroin. The wholesale value of the drugs was between $70,000 and $80,000 and the street value between $2.2m and $3.6m. A starting point of 13 years was applied, and respective discounts of 10% and 35% given for the applicant's early plea and cooperation with authorities. The applicant was aged 49 at the time of the offence and, although an Australian citizen, was living with his family in Thailand. There was evidence that he was to receive $30,000 for his part in the importation, of which $20,000 was to be used to extinguish a debt owed by him to his supplier. The head sentence was not reduced on appeal, however the non-parole period was reduced from 5.5 years to 4.25 years in light of the hardship that the applicant faced in prison which was in turn a product of distance from his family and business, his financial situation, and the risks that he would face having assisted the authorities. P v R [2003] WASCA 180 233 The applicant imported 214.9 g of heroin as a courier. The street value of the drugs was some $600,000. The applicant, who pleaded guilty, had borrowed $13,000 to meet the costs of an operation required by his ill father and to set up a restaurant business. When he was unable to repay the loan, the lender pressured him to act as a drug courier on the promise that the debt would be discharged. The pressure took the form of threats to the applicant's family. The applicant entered an early guilty plea and provided assistance to the authorities (attracting a 40% discount from a starting point of 12.5 years). The applicant had no prior convictions and was not drug dependent. However he had gone to "considerable difficulties" to import a significant quantity of heroin. The appeal against the 5 year non-parole period (the head sentence of 7.5 years was not appealed) was dismissed.

Parry v R [2003] WASCA 222 234 The applicant pleaded not guilty to a charge of being knowingly concerned in the importation of 224.4 g of heroin. The drugs had a street value of between $375,000 and $400,000. The applicant, 38, was described as a courier who had played a "leading role" in the planning of the offence. The applicant was an English man who had led a "rather restless life". Although intelligent, well educated and qualified as a teacher, the applicant had troubled family relationships, extensive physical and mental health problems including hepatitis C and a longstanding heroin dependency. It was accepted that his motivation for offending was to feed his drug dependency. The applicant had no prior convictions and there was evidence of remorse and rehabilitation. The sentence affirmed on appeal was 10 years imprisonment with a non-parole period of 5.5 years.

R v Mirzaee [2004] NSWCCA 315 235 The applicant, a citizen of Iran, pleaded guilty to importing 578 g of heroin which was secreted in a false compartment in his suitcase. The applicant was classified as a courier. He was 57 years of age at the time of the appeal, unemployed and had three children. He had no prior convictions. His timely plea attracted a discount of 25%. He suffered from a heart condition requiring ongoing monitoring. It was accepted that he would have difficulty serving his sentence away from his family in Iran and would be isolated in prison due to his inability to speak English. By virtue of his age it was unlikely that he would re-offend. The applicant was originally sentenced to a period of 9 years imprisonment with a non-parole period of 6 years. On appeal the non-parole period was reduced to 4.5 years.

R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451 236 The applicant pleaded guilty to a charge of importing 384.9 g of cocaine with a street value of between $70,000 and $154,000. The drugs had been ingested and concealed in the applicant's luggage. The applicant, 29, was from the United Kingdom and was studying for his PhD in Sydney. The applicant gave no evidence as to his role in the importation, however the sentencing judge found that he was "not a prime mover" and that the operation was likely to have been funded and organised by another. Relevant objective circumstances included the amount and value of the drugs, their manner of concealment, the fact that the applicant travelled to the United States specifically to participate in the importation, that he remained involved for over two weeks, that when apprehended at Sydney Airport he told a number of lies to the authorities in an attempt to conceal the offence, and that he committed the offence to obtain a $20,000 profit. The sentencing judge accepted that the applicant suffered from depression and anxiety, which made him more vulnerable to accepting the financial inducement. An appeal against the sentence of 9 years imprisonment with a non-parole period of 5.5 years was dismissed.

R v Do [2005] NSWCCA 258 237 The applicant, a 49 year-old Australian resident of Vietnamese origin, pleaded not guilty to a charge of importing 478.4 g of heroin. The applicant agreed to act as a courier on the promise of waiver of her $10,000 gambling debt plus an additional $10,000. She had no prior convictions and exhibited genuine remorse. She had led what the sentencing judge described as a "tragic personal life" and had lost her entire family to a natural disaster in Vietnam. An appeal against sentence of 8 years imprisonment (non-parole period 5 years) was dismissed.

R v Pham [2005] NSWCCA 314 238 The applicant pleaded guilty to a charge of importing 244.6 g of heroin. His role in the importation was described as "low level drug importer". The applicant, 27, had arrived in Australia aged 8 as a refugee. He suffered from a serious mental condition. His criminal history included a prior drug conviction. He demonstrated contrition and had reasonable prospects of rehabilitation. His guilty plea entitled him to a discount of 25%. The starting point of 12 years was described by the Court on appeal as "high, even very high" (at [50]) and a starting point of 10 years 8 months was (it would appear) substituted. The final sentence was 8 years imprisonment with a non-parole period of 4.5 years.

R v Vo; R v Tun Thanh Tran [2006] NSWCCA 165 239 Vo imported 678 g of heroin at 75% purity. The wholesale value of the heroin was $750,000. Her role in the importation was described as principal. She had employed a number of other persons whose task it was to recruit drug couriers on their behalf. Although Vo pleaded guilty and provided assistance to the authorities, her promised future assistance was not forthcoming. Accordingly, a Crown appeal against Vo's sentence of 9 years imprisonment (6 years non-parole) was allowed and a sentence of 10 years imprisonment with a non-parole period of 6.5 years was imposed.

240 Tran, the respondent to a Crown appeal, pleaded guilty to a charge of conspiring to import 678.4 g of heroin. The heroin had a wholesale value of $750m. Tran was involved in the management of the importation but not as a principal. He provided assistance to the authorities but failed to honour his undertaking to provide future assistance. Accordingly, the Crown appeal was upheld and Tran was re-sentenced to a period of 6 years 8 months imprisonment (non-parole period of 2 years 10 months).

Anna Le v R [2006] NSWCCA 136 241 The applicant was a 40 year-old Australian citizen of Vietnamese origin. She had no prior convictions. Her childhood had been marked by extreme hardship. She had no formal education and possessed limited cognitive ability. Her 19 year-old daughter was responsible for caring for the applicant's 3 year-old son. She was recruited to act as a courier of 117.6 g of heroin by someone to whom she owed a gambling debt. Her motivation for offending was clearance of the debt. There was little evidence of real contrition beyond that inherent in her plea of guilty (which attracted a 25% discount). The sentence imposed at first instance and affirmed on appeal was 7.5 years with a non-parole period of 5 years. The starting point was 10 years.

Viera v R; Teehan v R [2006] NSWCCA 401 242 Viera pleaded guilty to a charge of conspiring to import 380.9 g of cocaine with an estimated street value of $152,360. He was characterised as a "middleman". He was not involved in the planning of the importation, although his involvement did extend to him travelling to Chile to oversee the proper dispatch of drugs. Viera was a 40 year-old Australian resident born in Chile. Following his arrest he signed an undertaking to assist the Crown in its case against his co-offenders. In 2005 he gave evidence in relation to disputed issues at Teehan's sentence hearing. Viera had a history of drug use which had ceased at the time of his arrest. He had good prospects of rehabilitation. He had two prior convictions for receiving stolen property, in relation to which bonds were imposed. These bonds were in effect, and breached, at the time of the drug offence. A notional starting point of 12.5 years imprisonment was applied. Viera's plea and assistance (and the risks to which this exposed him) resulted in a net discount of 45%, of which 25% accounted for the plea. The resultant sentence, confirmed on appeal, was 6 years 11 months imprisonment with a non-parole period of 4.5 years. 243 Teehan pleaded guilty (following Viera's cooperation) to a charge of conspiring to import a total of 601.6 g of cocaine with a street value of approximately $240,000. Unlike Viera, Teehan was involved in planning the offence. He was not a principal but his role was nonetheless important and significant. Teehan was aged 27 at the date of sentence. His drug use was found to have played a "significant part" in the commission of his importation (and related supply offence). His prior character was "unblemished". He demonstrated contrition, had good prospects of rehabilitation and was found unlikely to re-offend. From a starting point of approximately 13 years and 5 months, a 20% discount was applied for Teehan's plea of guilty. The final sentence of 10 years 9 months imprisonment with a non-parole period of 6.5 years was affirmed on appeal.

De Campos v R [2006] NSWCCA 51 244 The applicant pleaded guilty to a charge of importing 452 g of heroin. The applicant was a 44 year-old South African female who agreed to act as a courier on the promise of 20,000 Rand. Relevant subjective matters included the applicant's financial hardship, her plea (which entitled her to a 20% discount), an offer of assistance (5%) and the insight that she had demonstrated into the detrimental impact of the drug trade. She was the sole carer for her elderly mother. She had lost her son in a motorcycle accident. On appeal the original sentence of 8 years imprisonment with a non-parole period of 5 years was reduced to a period of 7.5 years imprisonment and a non-parole period of 4.5 years. The apparent starting point was 9 years and 8 months.

Mirza v R [2007] NSWCCA 257 245 The applicant, an Australian citizen of Pakistani origin, pleaded guilty to importing 313.7 g of heroin. The drugs had a wholesale value of approximately $150,000 and a retail value of between $750,000 and $1m. The sentencing judge was not prepared to positively characterise the applicant's role in the importation, although an aggravating feature of the offence was that that the applicant had "clearly left this country for the purposes of importing drugs on his return" (at [14]). In exchange for participating in the offence, the applicant was to receive $10,000. Mitigating factors included the applicant's financial difficulty, gambling problems, mental condition, plea (which attracted a 25% discount) and expressed shame and remorse. At first instance the applicant was sentenced to a period of 9 years imprisonment with a non-parole period of 5 years (the starting point was 12 years). On appeal this sentence was described as "heavy" in light of the subjective case, but within the range legitimately open to the sentencing judge. The appeal against sentence was dismissed.

R v Robillard [2007] NSWDC 115 246 The offender, a Canadian citizen from Montreal, pleaded guilty to a charge of importing 750 g of cocaine. The cocaine was discovered strapped to the offender's leg. The sentencing judge in the District Court of NSW was unable to characterise the offender's role in the importation as that of courier, but was satisfied that he was not a principal. The judge accepted that the offender would be spending his term of imprisonment far away from his friends and family, including his 14 year-old daughter. The offender had no criminal history and there was evidence of his prior good character. His early plea entitled him to a discount although the discount was not specified. His drug use was "no doubt… one of the significant factors which led to him committing the offence" (at [10]). The sentencing judge was unable to conclude that the offender was truly remorseful, but accepted that he had good prospects of rehabilitation. The offender was sentenced to a term of imprisonment of 7.5 years imprisonment with a non-parole period of 4.5 years.

R v Hovorka (Unreported, District Court of NSW, 17 December 2007) 247 The offender pleaded guilty to a charge of importing 1,469.1 kg of cocaine. The estimated street value of the drug was $1.18m. The offender, 42, was a US national living in Colombia at the time of the offence. His role was characterised as above that of mere courier; he had been instructed on the methods of extracting the cocaine from the polymer in which it was embedded. He was to be paid a fee of US$12,000 plus 10% of any profits from sales made in Australia. He was trusted by the principal. However, he was still relatively low in the hierarchy. He had no criminal history in Australia, the US or Colombia. He entered an early plea and had demonstrated remorse and contrition. Additional subjective matters included the offender's age, prior good character, antecedents, isolation from his family and prospects of rehabilitation (which were assessed as good). He also gave considerable assistance to the authorities which, with his plea, entitled him to a 30% discount. He was sentenced to a period of 9 years imprisonment with a non-parole period of 5.5 years. The notional starting point would have been approximately 12 years and 10 months.

R v Mattheyer (Unreported, District Court of NSW, 18 April 2008) 248 The offender pleaded guilty to importing 1,271.5 kg of cocaine, which was secreted in his luggage. The street value of the cocaine was approximately $1m. The offender, 47, was born in East Germany and lived in Bolivia with his wife and young child and was found to have led a "dislocated life" (at 3). He was sentenced on the basis that he was a "bald courier" (at 2). He did not cooperate with authorities in the investigation of the offence, however he did plead guilty at the first available opportunity. He suffered from a bipolar disorder which "would have had some effect on [his] involvement in the importation" (at 3). The condition also reduced the need for personal deterrence. He had some prior convictions, including drug convictions, and had served terms of imprisonment in Spain, France and Bolivia. These did not aggravate the offence but rendered the sentencing judge unable to conclude that he had any reasonable prospects of rehabilitation. It was accepted that the offender's term of imprisonment would be harsher for him than it would be for an English speaking person with family in Australia. The offender was sentenced to a term of 8 years imprisonment with a non-parole period of 5 years.

R v Toure [2008] NSWDC 335 249 The offender in this case agreed to act as a courier of 843.5 g of cocaine in exchange for €10,000. The cocaine had an estimated wholesale value of $368,000 and a street value of approximately $500,000. The offender was a French national with a troubled upbringing. She was in financial difficulty, although the sentencing judge was not satisfied that her motivation for committing the offence was to pay off her debts; rather, it was "committed simply for financial reward" (at 3). The offender had a diabetic daughter living in France. It was accepted that she would be isolated in gaol, where there were no other French speakers. The sentencing judge was unable to conclude that the offender was remorseful. She did, however, plead guilty, which, together with her willingness to assist the authorities, entitled her to a 25% discount. The term of imprisonment imposed by a single judge of the District Court of NSW was 7.5 years with a non-parole period of 4.5 years. The starting point would have been 10 years.

R v Saputra [2009] NSWDC 239 250 The offender pleaded guilty to a charge of importing 113.5 g of methamphetamine. The estimated street value of the drugs was between $28,375 and $90,800. The offender's role was one of principal or importer. He had planned on being "actively involved in the distribution of these drugs to others" (at [53]). His plea was entered just prior to the jury empanelment. For this reason it was described as being of limited utilitarian value (at [5]) and attracted a 10% discount. The sentencing judge found that there was a substantial profit motive notwithstanding the offender's assertion that the drugs were for personal use. The offender was aged 54 at the time of sentencing. He was an Australian citizen of Indonesian origin. He had a stable upbringing in Indonesia. He was well travelled, educated and possessed "considerable work skills" (at [15]). He was greatly affected by the death of his father, the dissolution of his marriage, and his separation from his 10 year-old son. In the wake of his personal difficulties, the offender resumed drug use and developed a methamphetamine dependency. He had a lengthy criminal history including a conviction for trafficking in methamphetamines. In considering the offender's criminal record, the sentencing judge remarked that the offender's antecedent offences and sentences had had no deterrent effect. The sentencing judge doubted whether the offender had any "real insight" into his conduct and was not satisfied that he was unlikely to re-offend. The offender's level of culpability was assessed as being mid-range. The sentencing judge noted that the drugs were concealed in a "clumsy and unsophisticated" manner. The offender was sentenced at the District Court of NSW where a starting point of 8 years and 4 months was designated. The final sentence was for 7 years and 4 months imprisonment with a non-parole period of 5 years 2 months.

R v Mokoena [2009] QCA 36; [2009] 2 Qd 351; (2009) 193 A Crim R 351 251 The applicant, a South African national, pleaded guilty to a charge of importing 497.5 g of heroin. The appellant accepted an offer of $10,000 to act as a courier. The drugs had an estimated street value of just under $1m. The applicant, 29, had no prior convictions, made full admissions, provided very substantial assistance to authorities, and entered an early plea of guilty. His motivation for committing the offence was to obtain money to meet his debts and support his family in South Africa. There was evidence of his prior good character and remorse. The applicant was HIV positive. His sentence, affirmed on appeal, was for 9 years imprisonment with a non-parole period of 4 years and 9 months. The discounts for the applicant's plea and assistance are not capable of being discerned from the judgment.

Tyn v R [2009] NSWCCA 146 252 The applicant (female, 42) pleaded guilty to the charge of importing 242.3 g of heroin. The estimated (presumably street) value of the drugs was between $81,765 and $692,160. The applicant agreed to act as a courier in order to repay a $20,000 drug debt. She pleaded guilty at the first available opportunity, which entitled her to a reduction of 25%. She had also undertaken to assist the authorities and did, in fact, provide "truthful and valuable" information, much of which was unknown to the police (at [18]). Her cooperation left her at some risk of retribution and for this reason the sentence was reduced by a further 33%. The applicant expressed genuine remorse and had reasonable prospects of rehabilitation, albeit she was afflicted by drug and alcohol dependency and had a history of unemployment. Applying the relevant discounts to a starting point of 12 years, the applicant was sentenced to a period of 6 years imprisonment with a non-parole period of 3 years and 9 months. The starting point was described by Simpson J on appeal as "towards or even at the top of the range" but within the range of the sentencing judge's discretion.

Tsen v R [2010] WASCA 21 253 The applicant pleaded not guilty to a charge of importing 667.2 g of heroin (which had a street value of between $2.3m and $6.6m). The applicant, a 38 year-old Taiwanese woman, agreed to act as a courier in exchange for a payment of $10,000. She was found to have been reckless as to whether she was importing heroin, although the Court noted that her degree of recklessness was so high as to be nearly indistinguishable from intent. She was motivated by profit and expected to become involved in a pattern of drug smuggling. She was emotionally vulnerable and had exhibited remorse. Although she made an offer of assistance, this offer was declined by police and no actual assistance was provided. The Court on appeal remarked that only "limited regard could be had to her offer". Accordingly, although a starting point was not provided in the judgment, it is most unlikely that there would be much difference between any notional starting point and the final sentence. The Court remarked that the initial sentence (11 years imprisonment with a non-parole period of 6.5 years) was severe but within range (at [37]).

Discussion 254 The appellant submitted that the sentence imposed by the primary judge was so low as to be manifestly inadequate. Although I am of the opinion that the sentence was low and would myself have imposed a sentence which may have been significantly longer, I have concluded that the sentence which was imposed was not so low as to require intervention by this Court. I would myself have given greater significance than the sentencing judge to the role of the respondent in the offence and would have placed greater emphasis on the respondent's prior offending when considering his prospects of rehabilitation. 255 Where it is capable of being discerned, the role played by an offender in a criminal enterprise, in particular one involving the importation of narcotics, is of great importance when assessing the objective criminality of the offence: R v Laurentiu (1992) 63 A Crim R 402; R v Bimahendali (1999) 109 A Crim R 355. In the present case, the sentencing judge concluded that the respondent "was engaged as a courier". 256 The appellant did not dispute this finding. However, whether the offender is characterised as a "courier" or "principal" must not obscure the assessment of what the offender did: Olbrich at [19]. It was submitted by the appellant that his Honour gave his finding too much mitigatory weight. It was submitted by the appellant and accepted by counsel for the respondent that the moral culpability of a "courier" will depend, in part, on the nature and extent of the responsibilities with which that person is entrusted. A "mere" or "bare" courier may be recruited to bring in border controlled drugs on the promise of a modest reward, commonly although not invariably a monetary sum. A mere courier, although being the importer and critical to the importation, is incidental to the entire enterprise and acts at the instigation and direction of others. He or she will normally have had his or her travel plans, including flights and accommodation, arranged or at least funded by superiors. The mere courier will have had little, if any, input into the travel plans and no input into the planning of the offence. The following cases involve offenders who could appropriately be characterised as "mere couriers": R v Muanchukingkan (1990) 52 A Crim R 354; Acosta; Ngui and Tiong; Barany; R v Klein [2001] NSWCCA 120; (2001) 121 A Crim R 90; Ntsi; Mirzaee; Do; Bartlett; De Campos; Nhu Thi Hong Ho; Thanh Nhu Ho; Toure; Jimson and Tyn. 257 On occasion, a person who is unaware that they are carrying border-controlled drugs has been categorised as an "innocent dupe" or "naïve courier" (see El Karhani at 385 where that distinction was discussed). 258 In many cases, a person described as a courier may have responsibilities in the enterprise that go beyond simply transporting drugs for a modest fee at the direction of others. Although described as couriers, they play a role above that of a mere courier and should be sentenced accordingly. It was for this reason that the High Court in Olbrich was concerned to emphasise that the label should not be allowed to obscure the reality. In Hovorka, the offender's role extended beyond simply smuggling the drugs into Australia; he was required to extract the cocaine from the polymer. The sentencing judge in that case found that the offender "should be regarded as somewhat more than a mere courier" (at 16). In Diefenbach, the offender, one of four couriers, assumed an organisational role within the group of couriers. As Malcolm CJ explained at [20]: "In my opinion, while it was not permissible to sentence the applicant for her contribution to the offences committed by others, it was possible to take into account her role as the person who recruited others to participate in the overall transaction, collected their airline tickets and visas, picked up the drugs and generally organised the others, as being matters which showed that she was more than a mere courier recruited for the purposes of importing the quantity of the drug she brought into Australia. In other words, she was as a courier at a higher level than the other three couriers. Consequently, it is her greater involvement in the organisation than that of a "mere" courier which is taken into account in relation to her own importation. Thus, she was the one who collected the drugs that were imported. … Having said that, there are factors tending to indicate that she was only little more than a courier and channel of communication. For example, she did not make or know about all the arrangements and she did not get paid any more than the others." 259 In the present case, the respondent had responsibilities beyond those which would be attributed to a mere courier. He was required to make his own travel and accommodation arrangements and importantly (upon further instructions) arrange for delivery of the drugs in Sydney. The respondent was clearly aware of the contents of the bottles and bag which he was carrying. He took many independent steps, including arranging travel plans and booking hotel reservations, to ensure the importation went ahead. Significantly, he was charged with the responsibility of delivering the drugs to their intended recipient. The transcript of the respondent's evidence in cross-examination reads, relevantly: "Q. … In Argentina when you were provided with the drugs, were the drugs already packaged?

A. INTERPRETER: Yeah they were already packed and they were already in the computer bag and as they were found here.

Q. And you said before that you expected to receive 30,000 Euros?

Q. And you were going to use some of that for personal requirements?

A. INTERPRETER: Yes to pay my debts and also my personal use.

A. INTERPRETER: Yes, well not extremely large amount, but it was a good amount and was the offer anyway.

Q. And you say that you just had to ring someone and someone would pick them up?

A. INTERPRETER: No I was to make a phone call to Spain and then from Spain I was going to be told who I was going to deliver the drugs to." 260 The authorities make plain that the nature, quantity, purity, source and value of the drugs imported are highly relevant to the assessment of the objective seriousness of a drug offence: Wong and Leung at [64]; R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531 at [102]; R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 at [34]. General deterrence is of particular significance when sentencing for drug offences: Wong and Leung at [60], [135]. In the present case, the drug imported was cocaine. The quantity involved was at the high end of the range of a marketable quantity, being some 130 g shy of the commercial quantity threshold. The quantity of drug involved was over 900 times the minimum marketable quantity. 261 Participation for financial reward may increase the objective gravity of the offending (Paliwala at [44]; R v Liu [2005] NSWCCA 378 at [53]). However, the converse is not true; mere indebtedness does not necessarily operate to mitigate the offence (Anna Le v R at [32]). In the present case the respondent was motivated by the prospect of a very significant profit. Even if the respondent's version is accepted, he stood to retain the equivalent of almost AU$22,000 after repaying his debts. The sentencing judge accepted that the respondent committed the offence for "significant financial reward". 262 In importation cases, the motivation of the offender at the point of initial departure may be relevant in assessing his or her culpability. A finding that the offender commenced his or her trip with the intention of importing prohibited drugs upon entry or re-entry militates against a finding of opportunism: Paliwala at [6]; Mirza at [14]. The respondent departed Spain for Argentina with the specific intention of collecting drugs to import into Australia. This was not an opportunistic or impulsive endeavour. 263 An early plea of guilty will normally attract a discount of 25%. It will attract a lesser discount where it comes later in the pre-trial or trial process: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 per Spigelman CJ at [152] - [159]. The respondent pleaded guilty in the Central Local Court and accordingly his plea was entered at an early stage. A discount of 25% was appropriate. 264 Of particular significance in the present case and relatively uncommon in relation to this type of offence is the fact that the respondent has an extensive criminal record. The respondent has a total of 21 prior convictions, 3 of which are drug-related. He spent 10.5 out of the 12 years preceding this offence in gaol in Spain. He committed the present offence within 12 months of his most recent release from custody. The extensive nature of his criminal history calls to mind the position of the offenders in Thom, Mattheyer and Saputra. The sentencing judge found that a lengthy sentence in Australia would serve as an effective personal deterrent. To my mind, given his criminal record, that finding was questionable. The respondent's record demonstrates that his earlier terms of incarceration have had no deterrent effect whatsoever. 265 I acknowledge that the respondent's imprisonment in Australia would be a greater burden than for some others given his limited English skills and distance from his family in Spain. However, I agree with the sentencing judge that this factor is of "strictly limited" significance (see also R v Ferrer-Esis (1991) 55 A Crim R 231 at 18). Many persons convicted of importing drugs will not be Australian residents and will have only limited, if any, capacity in the English language. 266 After giving careful consideration to the objective circumstances of the offence and the circumstances of the respondent, I would place the present case within the first group of cases I have identified involving importation of a marketable quantity of border-controlled drugs. 267 The features of the present case which lead me to conclude that the respondent should receive a sentence consistent with the sentences for the first group of cases involving a trafficable or marketable quantity of border-controlled drugs are:

Quantity. The amount of drug involved in the importation was 935.15 times the minimum trafficable quantity. This proportion is greater than that involved in all cases included in the first group: Mohlasedi (573 times), Tsen (333 times), Teehan (300 times), Tanadi (527 times, 8.2 times, 3.4 times), Parry (112.2 times), Vo (254.25 times), White v R (202.8 times), Tran (736.5 times), Paliwala (192.45 times), Hovorka (734.55 times), Mirza (156.85 times) and Mokoena (248.75 times). It is also well above the proportion involved in the cases of Heryadi (12.75 times trafficable quantity cocaine), X v R (112 times), Ngui and Tiong (625 times), Radebe (114.85 times), Thom (112.6 times), P v R (107.45 times), Mirzaee (289 times), Do (239.2 times), Pham (122.3 times), Tran (339.2 times), Anna Le (58.8 times), De Campos (226 times), Mirza (156.85 times), Robillard (375 times), Mattheyer (635.75 times), Toure (421.75 times), Saputra (56.75 times) and Tyn (121.15 times). The only relevant case involving a higher proportion of drugs is Acosta (939.5 times).

Role. I have previously described the respondent's role in the importation. Although each case is different, the respondent's circumstances reflect features found in some previous decisions. In Mohlasedi the offender was described as a courier and importer, in Parry as an organiser, collector and distributor, in Hovorka as more than courier and, in Teehan , as not a principal but as someone who had an important and significant role. While the offender in Tsen was described as a courier, it must be borne in mind that she had pleaded not guilty to the charge and so her sentence of 11 years (6.5 years non-parole) did not reflect the usual 25% discount.

Furthermore, of those cases, all those in which sentences of the same or lesser severity than I have determined should be imposed in the present case either involve subjective circumstances more favourable than those of the respondent, or alternatively, a degree of objective culpability lower than that attaching to the respondent: Pham (8 years NPP 4.5 years: serious mental condition, contrition, reasonable prospects of rehabilitation), Tran (6 years 8 months NPP 2 years 10 months: past assistance), Viera (6 years 11 months NPP 4.5 years: 20% discount for assistance, good prospects of rehabilitation), Robillard (7.5 years NPP 4.5 years: isolation in prison, good prospects of rehabilitation, no prior convictions, prior good character, drug use contributed to offending). The one possible exception is Saputra (7 years 4 months NPP 5 years 2 months) however the offender in that case was middle aged, had personal and family difficulties and a methamphetamine dependency.

Reward. The respondent stood to make a very significant financial gain, the equivalent of approximately AU$43,000. This is greater than that involved in all cases in the first group in which a finding of reward was made: Mohlasedi (approximately $3,000), Tsen ($10,000), Tanadi (expenses plus $6000), Paliwala ($20,000), Hovorka (approximately $13,000 plus 10% sales), Mirza ($10,000) and Mokoena . It also exceeds the reward involved in all relevant cases in which such a finding was made: Heryadi ($16,000), X v R ($10,000). Thom ($30,000), P v R ($13,000), R v Do ($10,000 plus waiver of $10,000 debt), De Campos (approximately $3000), Toure (approximately $14,000) and Tyn (waiver of $20,000 debt). Remuneration of the magnitude involved in the present case, no doubt a reflection of the quantity of cocaine involved in the importation, also tends to confirm that the respondent's role was above that of a mere courier.

Assistance. The respondent neither offered nor provided assistance to the authorities. Nor did he make any admissions to Customs officers upon his apprehension at Sydney Airport: cf Tsen , Vo , Hovorka and Mokoena ; cf also Heryadi, X v R, Ngui and Tiong, Thom, P v R, Tran, Viera, De Campos, Toure and Tyn . The respondent's failure to provide a full and frank account of how he was recruited and from whom he received instructions has led to particular difficulties in the present case. However, he must not be penalised for this. Rather, he is denied any discount that might otherwise be available if he had given assistance.

Criminal history. The respondent had a significant criminal history which included some drug convictions (cf Mohlasedi, Tsen, Teehan, Tanadi, Parry, Tran, Paliwala, Hovorka and Mokoena where the offender had no prior convictions and/or had good antecedents enabling a finding of good character to be made). The only other case in the first group in which the offender had a criminal history was White (where due to this fact the offender faced a maximum term of life imprisonment). As stated above, the cases of Thom, Mattheyer and Saputra also involved extensive criminal histories.

Prospects of rehabilitation. In light of the respondent's criminal history, and given the absence of any evidence to the contrary, the respondent's prospects of rehabilitation are at the least, poor ( Mattheyer cf Mohlasedi , Teehan, Parry, Tran and Hovorka ; see also Pham, Viera, Teehan, Robillard and Tyn , all of which involved a finding that the offender had reasonable or good prospects of rehabilitation). I would not have concluded that the respondent is unlikely to re-offend (cf Mirzaee ). The remarks of Knox SC DCJ in Saputra at [47] seem apposite: "Clearly these convictions and the (lenient) sentences imposed have had no effect in deterring him from involving himself in drug enterprises. I have little confidence that the offender has any real insight into his offending behaviour or that he is not likely to re-offend. The sentence imposed should carry with it a strong component of personal deterrence." 268 Although I would myself have imposed a greater sentence, I have reached the conclusion that, having regard to the range of sentences which I identified for matters in the first relevant group, I am not persuaded that the respondent's sentence was manifestly inadequate. The sentences for that group start with a term of 9 years. The respondent was sentenced to 8 years. The difference of one year is not such as would justify a finding of error which of itself justifies the intervention of this Court. 269 When considering an appeal under s 5D of the Criminal Appeal Act 1912, this Court "may in its discretion vary the sentence and impose such sentence as to [this Court] may seem proper." If I had decided that this Court should intervene and re-sentence, it would have been necessary to consider the respondent's evidence in his affidavit in which he said: "When I understood that the Crown wanted to increase my sentence I felt very depressed. I feel very isolated here. Except for one person who speaks some Spanish I have no one else. It's lonely. I was counting the weeks until I was to be released but now I don't know when that will be. I can't be certain anymore and it's making everything worse." 270 Although the respondent said that he was "depressed", there was no medical evidence to support any identifiable medical condition. Furthermore, there is nothing to suggest that once his sentence has been finally determined, he will not return to his previous state of apparent equilibrium. I would have given this evidence little weight. 271 However, for those the reasons in my judgment, I am not persuaded that the sentence imposed was manifestly inadequate and this Court should intervene. I would dismiss the appeal. 272 SIMPSON J: I have read in draft the judgments of Allsop P, Basten JA, and McClellan CJ at CL. 273 I agree, for the reasons given by the President, that there is, for the purposes of s 109 of the Constitution, no inconsistency between s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) and the Crimes Act 1914 (Cth). 274 I agree with the Chief Judge at Common Law, for the reasons given by him, that there is no inconsistency between s 68A and s 16A such as to exclude the former section from the operation of s 68, s 79 and/or s 80 of the Judiciary Act 1903 (Cth). 275 To the reasons given by the Chief Judge I would add only this. The simple and basic proposition is that, in any appeal by the Director of Public Prosecutions (Cth) ("CDPP") against the asserted manifest inadequacy of sentence, s 68A does not exclude from consideration any evidence of a respondent's mental condition, even if that mental condition involves or includes distress and anxiety occasioned by the institution of the Crown appeal and the risk of an increased sentence. 276 What s 68A precludes is reliance by the court upon the presumption that a respondent is suffering from that distress or anxiety. In my opinion, there is a significant distinction between a presumption of fact (even if drawn from common experience) and an inference available from evidence in the proceedings (see the judgment of Basten JA, para [106]). It is only the former that is excluded by s 68A. 277 The principle of double jeopardy evolved as a humanitarian consideration in circumstances where an offender, having been sentenced leniently - manifestly too leniently, on the Crown case - faces the prospect of losing the benefit of that leniency. Courts presumed that that prospect would be the source of distress and anxiety. 278 That may not invariably have been the case. Where it was, the principle that came to be called the principle of double jeopardy meant that it was unnecessary for evidence to be given to that effect. Where it was not, the offender benefited from a presumption of fact that was not, in reality, warranted. 279 Section 16A(2)(m) of the Crimes Act enables, and requires, the court to take into account the mental condition of a person standing for sentence - where evidence is given of that condition. That is the actual mental condition of that person - not his or her presumed condition. An appellate court, under s 68A, cannot take the mental condition of an offender into account in the absence of such evidence - that is, it cannot act upon any presumption of distress and anxiety. 280 There has never been, in respect of sentencing at first instance, any presumption of distress and anxiety caused by the prospect of a sentence - although it is not unreasonable to speculate that many offenders standing for sentence will experience distress and anxiety at the prospect that lies ahead. That does not mean that a sentencing court does not take into account anxiety and distress, where it has evidence of those conditions. In my experience, as a sentencing judge, and having observed sentencing practices from this Court, distress and anxiety, referable to the anticipated sentencing process, will be taken into account - where demonstrated. It will not be presumed. To fail to take it into account, where there is relevant accepted evidence, would, in the case of federal sentencing, be contrary to s 16A(2)(m). The weight to be accorded to such evidence will vary from case to case. 281 All that s 68A(b) does is to place a respondent to a Crown appeal, and the court dealing with the appeal, respectively, in the same positions as the offender being sentenced, and the court sentencing, at first instance. It would be very odd if a first instance sentencing judge were, as I consider is the position, able to take into account evidence of distress and anxiety, but this Court, sentencing after a successful Crown appeal, were not able to do so. In my opinion that is not the effect of s 68A. 282 In these circumstances, I see no inconsistency between s 68A and s 16A(2)(m). Accordingly, s 68A of the Crimes (Appeal and Review) Act applies when this Court deals with appeals by the CDPP against the asserted inadequacy of sentences imposed on federal offenders. 283 I find it necessary to comment upon the observations made by Basten JA in para [129] and following. I respectfully disagree with the approach there suggested - that is, to dismiss a Crown appeal where the Crown has failed to provide adequate material in relation to the appropriate range of sentences, that this Court would, without further inquiry, and in reliance on an onus of proof, dismiss the Crown appeal. 284 The task of this Court is to examine the sentence imposed, and, in the case of a Crown appeal, to determine whether it is manifestly inadequate, or in the case of a severity appeal, to determine whether it is manifestly excessive. In undertaking that task, the Court assumes a responsibility not only to the parties, but to the community as a whole. 285 In doing so, the Court may well be assisted by examination of previous decisions, sometimes additional to those cited by the parties. 286 Ordinarily, this Court can expect to receive, and does receive, assistance through the research and submissions of the legal representatives of the parties. Occasionally, it happens that the Court does not receive an adequate level of such assistance. In those circumstances, in order to discharge its function, it may be necessary that the Court undertake its own research and investigation. 287 A Crown appeal, in particular, ought not to be treated as party - party litigation, in which one party might fail if it fails to discharge an onus. The interests involved in determining these appeals are wider. Similarly, there may be (rare) occasions where an applicant in a severity appeal is ill-served by his or her legal representatives, requiring the Court, in the interests of justice, to undertake its own research. I am conscious, of course that it is not the function of the Court to assume the role of advocate (or researcher) for either party. 288 These circumstances, fortunately, arise only rarely. I am unable to accept that, where they do arise, this Court discharges its function by relying upon an onus of proof. 289 The additional research undertaken by the Court in this case was markedly more extensive than is usual, and more extensive than I have ever previously observed. That was because, the Court having convened a five-judge bench for the purpose of considering the application of s 68A, the opportunity presented itself of delivering a judgment of more than usual authority. For that to be achieved, it was desirable that it be based upon data more than usually comprehensive. 290 The extent of the additional research was such that the Court considered it appropriate to offer the parties the opportunity of commenting upon the results. That was done. This Court has benefited from the exercise, as will, in my opinion, sentencing courts in the future.

Inadequacy of sentence 291 I have carefully considered the conclusions of Allsop P, Basten JA and McClellan CJ at CL in respect of the disposition of this appeal. I have also carefully considered the previous decisions of this and other courts identified in the judgment of the Chief Judge. 292 I propose to confine my further observations on this matter to sentences imposed with respect to offences to which a maximum penalty of imprisonment for 25 years is applicable. 293 What can be drawn from the extensive and comprehensive survey of sentences contained in the judgment of the Chief Judge? On their face, they do not appear to establish a clear or coherent sentencing pattern. No doubt that is explicable, at least in part, by the wide variety of factors necessary to be taken into account in every sentencing decision (see, for example, Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584, and s 16A itself). Nor, however, do they establish inconsistency to a level that might be of concern. 294 In what follows I have endeavoured, in respect of individual cases, to pinpoint what was stated to be, or can be discerned to have been, the starting point of the sentencing process. By that I mean that, where a sentence has been reduced by reason of, for example, the operation of s 16G of the Crimes Act (before its repeal in 2002), a plea of guilty, or assistance to authorities, I have attempted, so far as the remarks on sentence or the report of the appellate judgment allow, to extrapolate the starting point: that is, the sentence that would have been imposed but for any reduction attributable to one or more of those circumstances. Where a reduction referable to a plea of guilty is not quantified, I have assumed a reduction of 25 percent; where a reduction attributable to the operation of s 16G is not quantified, I have assumed (in accordance with common practice) a reduction of 30 to 33⅓ percent. With respect to assistance, if a reduction has not been stated, given the wide variation in reductions allowed, and the absence of any "common practice", it has not been possible to make any assumption about the level of reduction allowed. 295 One thing that can be detected from the outlines of the cases is the existence of some regional variation. The pattern of sentencing in some States appears to be heavier than that in others. That raises the issue of consistency. 296 Plainly, consistency is desirable in sentencing. But consistency with what? The submissions of the CDPP focussed upon consistency in sentencing federal offenders under federal law. The consequence of acceptance of this approach, without more, is that a federal offender in, say, Western Australia, could expect to be sentenced, in respect of a comparable crime, similarly to a federal offender sentenced in NSW, Victoria, Queensland or any other State or Territory. 297 Conceivably, that might give rise to a further issue. Both state and federal governments have legislated in respect of drug offences, some of them very similar, even parallel. It may seem odd if, in respect of comparable crimes, an offender sentenced in, say, NSW, under federal law was treated markedly differently from an offender sentenced in NSW under State law. 298 I mention this only to indicate that, in my view, consistency, while a desirable goal, has more than one aspect. 299 I return to the sample of prior cases mentioned in the judgment of the Chief Judge at Common Law. Of those the subject of detailed examination in paras [226]-[253] the range of starting points of head sentences appears to be 7½ years (Tran (NSW)) to 13 years and 4 months (Tanadi (WA)). (The sentences imposed on Ngui and Tiong [2000] VSCA 78; 2 (2000) 1 VR 579) (Victoria) were of 5 years with a non-parole period of 3 years and 4 months, but it is not possible to identify the starting point. The court at first instance had said that, but for future cooperation pledged, the offenders would have been sentenced to 9 years with non-parole periods of 6 years. It did not quantify the reduction allowed in respect of past assistance, which was significant, or the pleas of guilty. On appeal, the Crown conceded that the starting point of 9 years was manifestly excessive. The Victorian Court of Appeal held that, but for promised future cooperation, the sentences would have been of 6 years with non-parole periods of 4 years. Again, the Court did not specify any reduction allowed in respect of past assistance or the pleas of guilty. In my opinion, these sentences ought to be left out of account in the analysis of whether the sentence imposed upon the present respondent was outside the available range to the extent that past sentencing practises are indicative.) 300 To state the range of sentences previously imposed does not throw any real light upon the circumstances in which the individual sentences were imposed. The quantity of drugs involved varies widely. When the starting points of sentences are measured against the quantity involved only, any appearance of consistency evaporates. 301 Few of the offenders in this sample were more than "mere couriers". Those that were are Viera (a "middle man") and Teehan (not a principal, but played an "important and significant" role) (Viera v R; Teehan v R [2006] NSWCCA 401; Hovorka (unreported, NSWDC, 17 December 2007) ("more than a courier" but "relatively low in the hierarchy"); Saputra (a "principal" or "importer"). Viera conspired to import a moderate quantity of cocaine (381 grams) and had prior convictions. The starting point of his sentence was 12½ years. Teehan conspired to import 601 grams of cocaine; he had no prior convictions. The starting point of his sentence was 13½ years. Hovorka imported almost 1.5 kilograms of cocaine. He had no prior record. The starting point was 12 years and 10 months. Saputra imported 113 grams of methamphetamine and had a lengthy criminal record. The starting point was 8 years and 4 months. 302 The remaining offenders performed a role not dissimilar to that performed by the respondent. 303 A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. 304 But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong and Leung, at [59]. 305 In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character and antecedents of the offender (s 16A(2)(m)). This last consideration bears upon the offender's prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character. 306 I turn then to the present case. The relevant circumstances in this sentencing decision were, in my opinion, generally those set out by McClellan CJ at CL at [267] - quantity, role, reward, and criminal history and prospects of rehabilitation. (I omit reference to offers of assistance, which is, in my opinion, in this case, irrelevant and neutral.) 307 The quantity of the drug has the usual significance - see Wong [67]-[78]. But it has this additional significance. The maximum penalty of 25 years is applicable to the importation of any quantity of drug from 2 grams to 2 kilograms. There must be a sliding scale of sentencing in recognition of where the quantity actually imported sits in the range specified as exposing the offender to that penalty. 308 If that were not so, then there would be no greater deterrent (general or specific) to the importation of 1.99 kilograms than there is to the importation of 2 grams. The greater the quantity, the nearer it is to the cut off point for a marketable quantity, and to the starting point of a commercial quantity, the closer to the maximum the penalty must be. Of course, quantity is not the only consideration, and must be tempered by other factors. To my mind, however, this is a case in which the quantity of the drug involved is a very significant factor. Against that must be balanced the respondent's low level role in the hierarchy. There is no occasion to question or disturb the assessment of the sentencing judge that the respondent was engaged as a courier. 309 Also of very considerable significance is the respondent's criminal record. Even accepting Zahra DCJ's (unchallenged) assessment that the penalty he imposed was likely "to provide significant deterrence", the respondent could make no claim to leniency. 310 The starting point of the sentence imposed (before reduction allowed for the plea of guilty) was 10 years and 8 months. That is well within - (indeed, about the mid-point) - of the range established historically. The question for this Court is whether the circumstances I have mentioned compelled a sentence at the upper end of that range. 311 I am not persuaded, in the circumstances of this case, that the sentence imposed was manifestly inadequate. 312 BARR AJ: I have read in draft the judgments of Allsop P, Basten JA, McClellan CJ at CL and Simpson J. 313 The facts are summarised in the judgment of the Chief Judge. On those facts, and bearing in mind the applicable maximum sentence and the sentencing results in other cases referred to by his Honour, I am not persuaded that the sentence here appealed against fell outside the sentencing judge's proper range of discretion. I would therefore dismiss the appeal. 314 I agree, for the reasons given by the President, that there is no inconsistency under s 109 of the Constitution between s 68A Crimes (Appeal and Review) Act and the Crimes Act (Cth). 315 I agree, for the reasons given by the Chief Judge, that there is no inconsistency between s 68A Crimes (Appeal and Review) Act and s 16A(2)(m) Crimes Act (Cth) such as would prevent any of ss 68, 79 and 80 of the Judiciary Act (Cth) picking up s 68A so as to apply it to a Commonwealth offence. In that respect I also agree with the additional observations of Simpson J at [275] - [281]. ********** Attachment: Import commercial quantity (includes conspiracy, attempt, and aid/abet/counsel/procure) >>>

23/09/2010 - Decisions of Bartle and Roberti belong in the second group of cases involving the importation of a commercial quantity not in the first group. References to Bartle and Roberti need to be removed from [208]. The last two sentences of [209] are no longer correct and have been deleted. Bartle and Roberti need to be inserted into [210]. "Most" of the offenders in the second group pleaded guilty not as stated in the judgment that "all" offenders in the second group pleaded guilty. Schedule has also been updated to reflect the above. - Paragraph(s) [208]; [209]; [210]; [211] 07/03/2011 - The reference for R v Henry in the first dot point should read [1999] NSWCCA 111; 46 NSWLR 346 - Paragraph(s) [177]

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