JUDGMENT OF: Shanahan CJ, Estcourt J, Marshall AJ

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Crown appeal against sentence of two years and three months' imprisonment with a one year and six month non parole period imposed for a single count of trafficking in a controlled substance - Single appeal ground of manifest inadequacy - Respondent's role in trafficking was low level and motivated by dire financial position - No error by sentencing judge identified - Appeal dismissed.

Bresnehan v The Queen [1992] TASSC 55

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1

Director of Public Prosecutions v Swan [2016] TASCCA 1

Hili v The Queen [2010] HCA 45, 242 CLR 520

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

Upston v Tasmania [2018] TASCCA 4

DIRECTOR OF PUBLIC PROSECUTIONS v ONECK WALTER FRANCIS

DIRECTOR OF PUBLIC PROSECUTIONS v ONECK WALTER FRANCIS

1. On 28 November 2024 the respondent pleaded guilty to an indictment alleging one count of trafficking in a controlled substance contrary to s 12(1) of the Misuse of Drugs Act 2001 ("MD Act").
2. The respondent was convicted and sentenced to two years and three months imprisonment to commence on 3 November 2023. The respondent was made eligible for parole but the learned sentencing judge ordered that he was not to be released on parole until he had served one year and six months of the sentence of imprisonment (refer to s 17(2)(b) of the Sentencing Act 1997). A forfeiture order was made under s 38 of the MD Act for various property identified in the miscellaneous property sheet dated 3 November 2023, and a victims of crime levy of $50 was imposed pursuant to the Victims of Crime Compensation Act 1994.
3. The appellant, the Director of Public Prosecutions, now appeals that sentence on the ground that it was manifestly inadequate in all the circumstances of the case. The respondent has been in custody on this matter since his arrest on 3 November 2023. He is shortly to attend a parole hearing scheduled for Friday, 11 April 2025 and his counsel submitted during the hearing of the appeal that if successful at that hearing he could be released within 21 days thereafter. It was for that reason that the Court pronounced its judgment immediately following the hearing with its reasons to be published. These are my reasons for joining in that decision.

1. On Friday 3 November 2023, Tasmania Police were conducting screening of passengers and vehicles disembarking the Spirit of Tasmania in East Devonport when the respondent, the sole occupant of a white MG registered in Victoria, drove through a police inspection point and was spoken to by police, cautioned, and his vehicle was screened by a drug detection dog with the subsequent police search locating two sports bags in the boot, one a black bag and the other a grey "Culture Kings" bag containing cryovacced packages.
2. Altogether there were six cryovacced packages, four were black and two were black and white. In the four black cryovacced packages was a total of 4,044.78 grams of methylamphetamine and in the two black and white cryovacced packages was 2,039.58 grams of cocaine. In total there was 6,084.36 grams of methylamphetamine and cocaine respectively. More than two hundred and forty three times the trafficable quantity.
3. The respondent was arrested and participated in a record of interview with police. He initially denied knowing anything about what was in the sports bags and how they came to be in the vehicle he was driving. Later in the interview the respondent made the following admissions:

(a) He was approached by someone to do a job and was told that the job was risky but he would make "quick money" and be able to have a holiday;

(b) He was $20,000 in debt at the time and was also financially supporting his family in Africa;

(c) He flew from Hobart to Melbourne and then collected a hire car from the airport which he paid for;

(d) He was then instructed to download the encrypted app "Threema" on to his phone so that he could communicate with the people he was working for;

(e) He then drove to Sydney and collected the two sports bags;

(f) He looked inside both bags and saw the packages and thought it was drugs and panicked. He could not do anything about it as it was too close to the departing time of the boat;

(g) After that he just wanted to focus on delivering the bags; and

(h) He was to be paid $5000 for the job but never received any money as it was cash on delivery.

1. The respondent was charged and detained.
2. On 4 November 2023 the respondent was brought before a Justice of the Peace in the Devonport Magistrates Court and was refused bail. As noted above the respondent has been in custody since that date.
3. On 28 November 2024 the respondent was convicted upon his guilty plea for one count of drug trafficking contrary to s 12 of the MD Act.
4. Depending on how the drugs were sold, the potential combined value of the drugs was $2,634,264 and $5,064,570.
5. The respondent was 26 years of age at the time of the offending. When sentenced he was 27 years of age, had no prior convictions for drug related offending and had only very minor convictions for driving offences.
6. The respondent entered Australia as a teenager and was granted refugee status, he is now an Australian citizen. Prior to being sentenced, and since 2008, the respondent had predominantly spent his time in Tasmania. He was educated in Tasmania and attended Guilford Young High School. Between 2021 and 2023 the respondent spent time in Queensland visiting his sister who had also moved from South Sudan to Australia. One of the main reasons for visiting his sister was because the respondent was experiencing mental health issues, which were aggravated by his financial position and being rejected from numerous jobs. His counsel submitted that if paroled the respondent would live in Victoria with his partner who is a resident of that State.
7. The respondent returned to Tasmania around April 2023 and moved in with a friend from high school which allowed him to live rent free and alleviate his financial position.
8. The respondent stated, in mitigation, that he was approached by a friend who said he needed him to do him a favour, as he was travelling interstate, and he would get paid money for it. He said that he had no idea of what the job was going to be at the time he accepted it.
9. Further, the respondent said that he had no knowledge of who was offering him the job, all he knew was that the housemate or the friend was going to give his name to a third party and a third party would be in contact with the respondent once the job was lined up and instructed the respondent to download the app "Threema".
10. The respondent said he subsequently flew to Melbourne on an airline ticket provided by his housemate, picked up a hire car and drove to Sydney where he picked up the sports bags before driving to Melbourne and crossing to Tasmania on the Spirit of Tasmania. He stated that he only looked inside the bags when on the ferry after clearing a security screening area in Melbourne.
11. The sentencing judge did not accept the respondent's account on two matters. First, that the respondent did not know that the job would involve anything illegal, and second, that he did not look inside the bags until he was cleared from Melbourne and on the ferry. There was no finding as to exactly when the respondent discovered that he was carrying drugs.
12. It was accepted at sentencing that the respondent's plea of guilty had some utilitarian benefit.
13. It was put in mitigation that a lengthy term of imprisonment would be onerous for the respondent as it would be served in Tasmania and the respondent had no family in the State, and that his friends or acquaintances had cut connections with him. The sentencing judge was urged, if he was to impose a lengthy term of imprisonment, to make the non-parole period as "short as it can be".

1. The sentencing judge having recited the facts, and rejected the respondent's account that he did not know the job was to involve anything illegal and having observed that he could not know when the respondent looked in the two sports bags, described the amount of the drugs and acknowledged their potential street value.
2. The sentencing judge identified a number of propositions in aggravation, including that such drugs cause enormous harm throughout our community, and the reliance placed on people like the respondent being prepared to take a risk and become involved in the transporting of drugs.
3. The sentencing judge also acknowledged that the respondent suffered over the years from depression and had mental health issues, that he had accepted responsibility through his plea of guilty, albeit that he faced an exceptionally strong prosecution case, and that he had been in custody since his arrest. The respondent was not a drug user and had no relevant prior convictions.
4. The sentence imposed is set out above at [2]. This Court needs to consider the whole of the sentencing disposition when asked to consider the adequacy of the sentencing judge's disposition, it would be artificial to focus solely on individual aspects of that disposition, such as the head term of imprisonment.
5. It is noted that the statutory provisions dealing with parole provide for a minimum statutory non-parole period of "a period equal to one half of the period of the operative sentence": s 68(1) of the Corrections Act 1997. In this instance the head term of imprisonment was two years and three months imprisonment to commence on 3 November 2023. However, the sentencing judge did not apply the minimum statutory parole period but rather made an order under s 17(2)(b) of the Sentencing Act, setting a longer non-parole period of one year and six months of the sentence of imprisonment. The respondent argues that the longer non-parole period effectively increases the severity of the sentence in that it equates to a period of imprisonment of three years were the minimum statutory non-parole period applied. Counsel for the appellant noted that parole is not guaranteed and a longer head term put the respondent at risk of a longer term of imprisonment.

1. The legal principles in respect of appeals against sentence are well settled.
2. The primary purpose of a Crown appeal against sentence is to identify principles for the governance and guiding of sentencing courts and to maintain public confidence in the administration of justice by intervening in the case of a manifestly inadequate sentence: (Director of Public Prosecutions v Swan [2016] TASCCA 9 per Pearce J at [30]).
3. Justice Pearce (Blow CJ and Porter J agreeing) observed (Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]- [9]) that an appellant must demonstrate that the sentence imposed "is unreasonable or plainly unjust". It is not to the point that some may regard the sentence as too lenient or too harsh. Ultimately, it must be established that "the sentence is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion": (Bresnehan v The Queen [1992] TASSC 55, 1 Tas R 234 at 242).
4. A sentencing judge and, by extrapolation, an appellate court, have to take care in the use of comparative sentences drawn from other cases in the process of, or for evaluating, sentencing. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, in Hili v The Queen [2010] HCA 45, 242 CLR 520 at [53], acknowledged that a sentencing judge "must have regard to what has been done in other cases". However, the Court then went on (at [54]) to cite Simpson J's decision in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]- [305] as an accurate account of "the proper use of information about sentences that have been passed in other cases":

"As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: '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.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences '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' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'." (Footnotes omitted. Emphasis added.)

1. A yardstick is a standard used for comparison. As Simpson J points out, comparative sentences are constantly changing and evolving, and do not necessarily identify appropriate sentencing outcomes they are not "outer markers". The gravamen of these observations is that comparative sentences do not dictate the outcome in a particular sentencing by requiring that particular set of circumstances be "shoe horned" into a range of past sentences revealed by comparative analysis, but rather that the sentencing judge use that information as a yardstick against which to consider an appropriate sentence.
2. An important consideration for this Court is to ensure the consistency of sentencing for like offences. However, the particular circumstances of each case need to be considered. In doing so, the role of an appellate court in considering appeals on sentence is not to sentence anew but to remedy error.
3. The first task for any appellant is to identify error. When dealing with an appeal of the type described in Bresnehan v The Queen, as in this appeal, where an appellant asserts that a sentence is "manifestly wrong" because of an "undefinable error in the exercise of the judicial discretion" the identification of error is necessarily diffuse and the process unwieldy.
4. In such a case the use of comparative sentences can be useful but rarely determinative because whilst sentencing is concerned with, inter alia, public confidence, the administration of justice and the need for consistency, it addresses an offender's conduct and personal circumstances with particularity. That requires deeper consideration than the metrics proffered by a comparative sentencing table.
5. The adequacy of sentencing requires consideration of, inter alia, the objective circumstances of the offences, the requirement of general deterrence and denunciation, the subjective circumstances of the respondent, and the proper application of principles concerning accumulation, concurrency and totality, these are all factors that need to be considered in the context of the sentencing disposition as a whole.
6. In this Court if an appellant identifies error, the appellant must then negate any reason why the residual discretion of the Court not to interfere in the respondent's sentencing should be exercised: (Director of Public Prosecutions v JSP [2020] TASCCA 3 per Wood J at [19]). Such factors include, but are not limited to, delay in the appeal process, fault on the part of the Crown, imminent or past release on parole of the respondent, and the effect of re-sentencing on progress towards the respondent's rehabilitation. Given this Court's determination this issue does not arise in this appeal.

1. The sole ground of appeal is that the respondent's sentence was "manifestly inadequate in all the circumstances of the case".
2. It is to be readily accepted that the crime of trafficking in a controlled substance, in breach of the MD Act, is one that would ordinarily attract severe, or harsh, punishment, and that conclusion is driven by the need for "general deterrence and denunciation". Further, that such matters become more acute when the substance involved is methylamphetamine because of its "pernicious nature, the prevalence of its use and the great harm it causes the community": (Upston v Tasmania [2018] TASCCA 4 per Porter AJ at [15]).
3. Reliance was placed by the appellant on par [21] of Pearce J's judgment in DPP v Swan [2016] TASCCA 9 for the proposition that, "although the circumstances of the offender and the prospect of rehabilitation remain relevant sentencing considerations, they are of lesser importance in drug trafficking matters" (Appellant's Written Submissions [13]).
4. The passage at [21] in DPP v Swan addresses the principles engaged in sentencing for trafficking offences, they are to be considered in context and in their entirety:

"Sentences for trafficking have been the subject of two relatively recent appeals to this Court: Director of Public Prosecutions v Williamson [2013] TASCCA 6 and Stebbins v Tasmania [2016] TASCCA 6. In the latter appeal I stated some matters of principle which, in my view, should be applied to consideration of the sentence in this case:

• Because there are so many ways in which a person may be guilty of trafficking there is a great diversity of circumstances in which the crime is committed, and it is difficult to identify a sentencing range or tariff.
• The criminal culpability of a person guilty of trafficking is to be assessed by focussing on the nature and level of the offender's involvement in the commercial distribution.
• Traffickers encourage and foster the abuse of illicit drugs, which cause misery to individuals and the people around them, and immeasurable harm to the community. The great social evil which results from trafficking points to stern punishment in almost every case.
• Persons who may be inclined to engage in trafficking illicit drugs for profit, must balance the chance of high returns with knowledge that apprehension and conviction will result in a harsh sentence.
• Trafficking motivated by commercial gain involves greater criminality.
• General deterrence and punishment are the predominant sentencing considerations.
• Although the circumstances of the offender and the prospect of rehabilitation remain relevant sentencing considerations, they are of lesser importance."

1. The observations in the first dot point above identify the difficulties emerging in sentencing for trafficking where there are so many ways in which a person may be guilty of that offence, and the great diversity of circumstances in which the crime is committed. In seeking to identify the tools of comparative analysis it is said that it is "difficult to identify a sentencing range or tariff". These are matters that an appellate court needs to carefully consider when being asked to intervene on the basis that a sentence for trafficking is manifestly inadequate.
2. These observations highlight the importance of determining as a matter of fact the way in which a person convicted of trafficking has participated in that conduct, by focussing on the "nature and level of the offender's involvement in the commercial distribution". In this instance the appellant accepted that the respondent was a "courier" and "was not involved in the higher chain of distribution of the drugs" (Appellant's Written Submissions [18]).
3. The respondent participated in the commercial distribution of drugs for the promised payment of $5000, albeit he had no previous convictions and was not a drug user. His motivation was not addiction but his "dire" financial position. He suffered from depression and mental health issues attributed to by his financial position. Whilst it appears clear that the respondent's motivation was financial, the payment of $5000 that he expected bore no obvious relationship to the street value of the drugs he was asked to transport.
4. The appellant accepts that the respondent's conduct was limited to a single day (Appellant's Written Submissions [20]), albeit his conduct on that day was a course of conduct rather than a single occurrence.
5. In the course of submissions the appellant sought to develop a point that revolved around the circumstances of the offending by characterising the trafficking to Tasmania as special, in the sense that it is an island and such drugs, as were transported, were likely to be consumed here.
6. Whilst there may be circumstances thrown up by such offending that are particular to Tasmania, there is nothing about the conduct in this matter that suggests an extra circumstance of aggravation because the drugs were trafficked across the Bass Strait.
7. The observations at dot points three to six set out above identify the public's interest in deterring trafficking, and the social evil that trafficking causes, which point "to stern punishment in almost every case", and that those convicted of trafficking for profit must "balance the chance of high returns with knowledge that apprehension and conviction will result in a harsh sentence". It is because trafficking motivated by "commercial gain" involves greater criminality that, in such cases, "general deterrence and punishment are the predominant sentencing considerations" and "although the circumstances of the offender and the prospect of rehabilitation remain relevant sentencing considerations, they are of lesser importance".
8. The appellant accepts that the respondent's motivation "arose due to the dire financial position in which he found himself" (Appellant's Written Submissions [19]).
9. The respondent's motivation was financial, but can it be said it was for "commercial gain"?
10. Commercial gain implies a business. There was no evidence, and no finding, that the respondent had participated in the criminal activity for more than a day, and whilst there were clearly commercial aspects evident in the planning of the transportation of the drugs, and the amounts and packaging of the drugs, the sentencing judge was unable to make a finding as to precisely when the respondent became aware of the drugs in his car, ie the amounts and packaging of the drugs, but it could only be after the respondent collected the sports bags in Sydney.
11. The respondent was sentenced on the basis that the sentencing judge could not make any specific findings as to his knowledge, and that it was unclear who was responsible for choosing the drugs for transport, packaging them or placing them in the two bags found in the respondent's car.
12. The respondent was sentenced on the basis that at some point in his journey, he discovered and looked inside the bags and located the drugs but continued the journey despite that discovery. If that conduct is examined through the prism of operating a business then, on any account, the respondent's role was at a low level.
13. In oral submissions the Court was taken to the decision in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [19]- [23] which considers the utility of describing offenders in terms of roles such as "principal" or "courier". The majority of the High Court (Gleeson CJ, Gaudron, Hayne and Callinan JJ) considered that in some cases, levels of culpability may be identified by adopting those terms, but not in that case (at [19]). Their Honours stressed that the significant matter is to focus on what the offender had done and who the offender was, not what others may have hoped to have gained from the offender's activity.
14. With the principles associated with deterrence and denunciation, these were all matters that the sentencing judge took into account.
15. The sentence has to be understood in its entirety.
16. The sentencing judge specifically eschewed the minimum statutory non-parole period and set it at one year and six months. If the respondent was paroled after that period, then that would be analogous (in terms of time served) to the time served by an offender sentenced to a head term of three years who obtained parole at the earliest opportunity.
17. The appellant's submissions focussed on the deterrent and denunciatory effect of a head sentence.
18. Whilst it may readily be accepted that some might focus more upon the head sentence when a term of imprisonment is imposed, this Court is obliged to consider the sentencing disposition as a whole. When one does that, the sentence does not reveal error.
19. Turning to the comparative table helpfully provided by the appellant (Appellant's Written Submissions at Annexure A), the disposition of the sentencing Judge does not sit outside the parameters of similar offending. Whilst there are differences in age, amounts of drugs trafficked and the personal antecedents and circumstances of offenders in the comparators provided, the effective term of imprisonment does not sit outside the comparable range.

1. The single ground of appeal having failed, the appeal is dismissed.

DIRECTOR OF PUBLIC PROSECUTIONS v ONECK WALTER FRANCIS

1. We agree with the reasons for judgment of the Chief Justice. It was for those reasons that we joined in the order dismissing the appeal.