DPP (Cth) v Wang; Wang v The Queen [2019] VSCA 250

CRIMINAL LAW - Sentence - Whether specific error - Accurate description of offending and offender - Inaccurate reference to offending being 'group one category' attempted importation - Whether statements by judge under s 16AC(2) Crimes Act 1914 (Cth) and s 6AAA Sentencing Act 1991 revealed that offender sentenced for 'group 1 category' attempted importation - DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 and Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673 - De La Rosa 'categories' - Caution necessary in using De La Rosa 'categories' in sentencing - R v Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429; DPP v Masange (2017) 325 FLR 363 - Sentencing involves instinctive synthesis of all relevant circumstances - misdescription of no consequence - No specific error.

CRIMINAL LAW - Sentence - Manifest excess - Large attempted drug importation - offender's important role - Guilty plea - Promised cooperation - Sentence within range.

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 On 21 May 2018, Li Ye Wang ('Wang') pleaded guilty in the County Court to a charge of attempting to import a commercial quantity of a border controlled drug. The maximum penalty for the offence[1] is life imprisonment. On 12 June 2018, a County Court judge sentenced him to be imprisoned for a period of 13 years and 10 months. His Honour fixed a non-parole period of nine years' imprisonment. He made an appropriate declaration with respect to pre-sentence detention.

2 In addition to the sentence just mentioned, the judge made two statements. Each was required by statute.[2] They addressed distinct matters. The first was pursuant to s 16AC of the Crimes Act 1914 (Cth). Sub-sections (1) and (2) of that section provide as follows:

(1) This section applies if a court imposing a sentence, or making an order, for a federal offence:

(a) reduces the severity of the sentence or order; or

(b) reduces the non-parole period in relation to the sentence (if applicable);

because the offender has undertaken to cooperate with law enforcement agencies in proceedings (including confiscation proceedings) relating to any offence.

(2) The court must:

(a) state that the sentence, order or non-parole period is being reduced for that reason; and

(b) specify the sentence that would have been imposed, the order that would have been made or the non-parole period that would have been fixed but for that reduction.

3 Wang had given a written undertaking, dated 21 May 2018, to assist the Crown in the prosecution of ten named persons each of whom, the prosecution alleged, was a party to the alleged attempted importation. As will be explained, two of those persons, most pertinently, a man named Jing He, had been aboard a ship of which Wang had been the master. The prosecution case was that the ship was used to transport 186 blocks of pure cocaine, weighing 123.84 kgs, from China to a point south of the Victorian coastline. The intention of the principal(s) in the operation had been that a shore party would travel by small boat to the vicinity of the ship, and there take possession of the cocaine. But on three occasions the shore party was unsuccessful in meeting the ship. A little later, the ship was seized by the authorities. On the prosecution case, the shore party comprised eight men.

4 The judge was provided with a copy of Wang's undertaking, and also a letter of assistance prepared by a member of the AFP. The latter stated that the value of Wang's assistance to 24 May 2018 was low, and that the potential future value of his assistance was medium to high.

5 It was in those circumstances that the judge stated that, but for Wang's undertaking to cooperate, he would have imposed a sentence of 23 years' imprisonment with a non-parole period of 17 years.

6 The second statement made by the judge pertained to s 6AAA of the Sentencing Act 1991. The judge stated that, had Wang not pleaded guilty, he would have imposed a sentence of 28 years' imprisonment with a 21 year non-parole period.

7 Over a three day period in July 2018, Wang gave evidence at the trial of a number of alleged co-offenders - Jing He and eight members of the alleged shore party. Arising out of that evidence, on 29 August 2018 the Commonwealth Director of Public Prosecutions ('the Director') instituted an appeal pursuant to s 16AC(3) of the Crimes Act 1914 (Cth), which provides that:

(3) The Director of Public Prosecutions may appeal against the inadequacy of the reduced sentence, reduced order or reduced non-parole period if:

(a) after the imposing of the sentence or the making of the order, the offender, without reasonable excuse, does not cooperate in accordance with the undertaking; and

(b) the Director of Public Prosecutions is of the opinion that appealing is in the interests of the administration of justice.

8 It is the Director's contention that, without reasonable excuse, Wang failed in part to cooperate in accordance with his undertaking. Wang concedes that there was such a partial failure. The consequence of partial failure is set out in s 16AC(4)(b), which provides that:

(4) The court hearing the appeal:

...

(b) if it is satisfied that the person has failed in part to cooperate in accordance with the undertaking--may substitute:

(i) for the reduced sentence or reduced order such a sentence or order, not exceeding in severity the sentence or order that could be imposed or made under paragraph (a), as the court thinks appropriate; or

(ii) for the reduced non-parole period such a non-parole period, not exceeding the parole period that could be fixed under paragraph (a), as the court thinks appropriate.

9 The Director pressed for an increase in sentence. For reasons which we will later describe, counsel for the Director submitted that a 'modest' increase would be appropriate. Wang submitted, through counsel, that the extent of his partial failure to cooperate was small, and that a very modest increase in sentence would suffice.[3]

10 The matter is complicated to an extent by the fact that, on 28 November 2018, well out of time, Wang lodged an application for leave to appeal against sentence.[4] He seeks to rely upon two grounds: first, that the judge erred by sentencing him on the basis that he had committed 'a group 1 category attempted importation'; and second, that the head sentence and non-parole period are manifestly excessive.

11 Both the Director's appeal and Wang's application for leave to appeal focus upon the sentence actually imposed. In such a case, a live question might arise as to which matter should be considered first. But, as will be explained, that is not so in this instance

12 The question which could arise can be illustrated by reference to the circumstances of this case. The Director's appeal was commenced first, and Wang's concession means that this appeal must succeed, the sentence actually imposed being increased to some extent to reflect the events which occurred. These circumstances might suggest that the Director's appeal should be first considered and disposed of. At least, then, the Court would have decided that the sentence passed by the judge should be increased to reflect circumstances contemplated by the legislature but arising after sentence was imposed. So, it might be said, Wang's application for leave to appeal against sentence could then be considered in its true factual setting. Any complaint of specific error, or, indeed, manifest excess could equally operate upon the sentence imposed in consequence of the Director's successful appeal.

13 On the other hand, such an order of disposition would mean that Wang's application would no longer be able to attach to the sentence actually imposed; and it is that sentence which is attacked. If there was a good point to the application - say, clear specific error - it would not be satisfactory that Wang should lose the opportunity of relying upon it. Further, it might be argued that it is implicit in the provisions creating the Director's right of appeal that the sentence actually imposed will be unimpeachable.

14 But if a prisoner's application was dealt with first, and some fault was detected, the question would arise whether a different sentence should be imposed. The court might consider, so as to reflect the circumstance of non-cooperation, and notwithstanding the demonstrated fault, that the sentence ought actually be increased. Under s282(1)(a) of the Criminal Procedure Act 2009, this Court has power to increase sentence. But by s 281(3), the Court must warn an appellant, as early as possible during the hearing of the appeal, that there is a possibility of it imposing an increased sentence. In such a case, an appellant would be likely to abandon the appeal. It might be said that a Director's appeal could then proceed; but it would be unsatisfactory that it should do so against a background of error - that is, unrelated to the later occurring circumstance of non-cooperation - in the sentence passed below.

15 We have wondered whether the solution might be to give a person such as Wang the right to rely upon an application for leave to appeal already filed to attack the sentence to be imposed in consequence of a successful appeal by the Director. But that would not be straightforward, because this Court would then be asked, in effect, to entertain a challenge to a sentence which it itself was to impose; and impose, despite the statutory language of appeal, in substance acting as a court of first instance.[5]

16 In the present case, the potentially difficult problems discussed in the preceding paragraphs do not arise. The Director's appeal is bound to succeed, and Wang's application, an application attacking the sentence actually passed, for reasons later discussed fails. In the event, we will begin with the Director's appeal.

17 Over a period of days in January 2017, Wang was interviewed by officers of the AFP. What he told them was eventually reduced to writing in a statement of 131 paragraphs dated 9 January 2017, and signed by Wang on each page.

18 The statement detailed Wang's experience as a Chinese mariner over some 20 years, and his past association with a man named Wen Shan Zhang ('Zhang').

19 Wang explained that he had been engaged by Zhang, who worked for unknown principals, to command a ship travelling from the port of Ningde in China's Fujian Province on a voyage which was to take some months and the final destination of which was to be in South America. He explained that the ship, some 50 metres in length, was modified so that it could take large quantities of fuel.

20 He was given a note by Zhang, he said, which told him where the ship had to go from time to time.

21 For commanding the ship, he was to receive a down-payment of 150,000 yuan. A further 150,000 yuan to be paid at the conclusion of the voyage, which was to take three to four months. We interpolate that in the period 2014-2016, Wang stated that he had earned 30-40,000 yuan per month in various positions. So this was to be an extremely well-paid engagement, though not involving a share of anticipated profits.

22 The statement identified other members of the ship's crew. Amongst the 11 or so men were Jing He and a man named Barry Chongde Zheng, who Wang called 'Little Singapore'.

23 The statement described the movements of the ship after the time it left China in early November 2016 until its seizure by Australian authorities on 12 December 2016. In essence, the ship travelled from China to Indonesia and then down the west coast of Australia. It crossed the Great Australian Bight, staying outside Australian territorial waters. In the course of the voyage it flew false flags and changed its purported identity. It came to an area about 300 nautical miles south of Port Fairy on 1 December 2016. It loitered in this area for several days, waiting for the shore party to collect the 'goods'. Three separate attempts to rendezvous with a small vessel sent out by the shore party failed. After the third attempt, on Zhang's instructions the ship set sail for South America. But it was soon seized.

24 Wang described how he was frequently contacted by Zhang with instructions as to where to go and what to do. In particular, he was given information with respect to the intended rendezvous with a small vessel sent by the shore party; and he was updated about various attempts to get such a vessel into the vicinity of his ship.

25 It is apparent from his statement that Wang had no direct contact with any member of the shore party. The utility of his statement, so far as it concerned the shore party, lay in showing that the vessel had been in a particular location at particular times which could be shown to match the intended activity of the shore party.

26 The statement implicated Jing He in a number of ways. First, according to the statement, Jing He was one of two men who brought the cocaine aboard. Second, during the voyage, only the applicant, Jing He and another man had keys to the storage room where the cocaine was kept. Third, it was apparently proposed that satellite transponders, with nets attached, were to be lowered into the water with the cocaine in waterproof packages inside the nets. According to the statement, it was Jing He who gave Wang details of how the transponders were to be used, and it was Jing He who said that the goods could not be exposed. Fourth, Jing He had a role in discussions about repackaging the cocaine before it was consigned to the water, and in the repackaging.

27 The statement also implicated Little Singapore - that is, Barry Zheng. According to Wang, 'He appeared to be there for administrative purposes'. His role was to have the drugs suspended under the satellite transponders.

28 Thus, with respect to men on the ship, the statement implicated Jing He and Little Singapore as co-offenders. In the end result, that was of no consequence in the case of Little Singapore, because he admitted his offending and undertook to give evidence for the prosecution in the trial of the alleged co-offenders. Wang's statement, however, was important in the case of the charge laid against Jing He.

29 Giving evidence at a Basha inquiry on 30 May 2018,[6] Wang adopted his statement as being true and correct. The statement was compiled in English, and was signed by Wang expressing his name in alphabetical letters.[7] It was, however, recorded that the statement had been provided with the assistance of five Mandarin interpreters, and that it had been read aloud to Wang in a manner which he could understand. The statement continued that Wang was happy that the statement was correct before he signed it.

30 When it came to giving evidence at the trial of Jing He and seven other persons, Wang prevaricated a good deal, and denied that he had told police officers matters recorded in the statement. In the end, the judge acceded to an application by the prosecutor that Wang be treated as an unfavourable witness;[8] and his Honour eventually reached the point where he described Wang as not merely an unfavourable witness, but 'generally hostile'.

31 What the prosecutor then did was to have read to Wang various paragraphs of his statement, and ask him - (1) whether their contents corresponded with what he had told police officers; and (2) were the truth. In a number of instances, Wang denied saying things which were incorporated into his statement. The relevant paragraphs of the statement were then tendered in evidence by the prosecution, not as going adversely to Wang's credit, but in proof of the truth of the matters there stated.

1. He had been given a piece of paper by Jing He, detailing how the satellite transponders were to be used, and that the goods were to be suspended under the transponders in nets or bags.[9]

2. Jing He and another man brought on board a lot of packages which were placed amongst the groceries.[10]

3. The store room where the goods were stored had three keys to access it. He had one, Jing He another, and a man named Ma, the third.[11]

4. After an Australian military helicopter had approached the vessel, this being to the north-west of Australia, he instructed crew members to erect a canvas over a door at the rear of the ship, thereby covering a rear access door, and permitting implementation of a safety plan to dispose of the packages from the store room if the need arose.[12]

5. On one occasion, he thought that he saw a ship heading in the direction of the vessel. Little Singapore was then with him. He asked Little Singapore to wake the crew and go to the back of the ship for the disposal safety plan.[13]

6. At some point during conversations with Jing He, he asked how many blocks there were in the rear store room and was told by Jing He that there were 186 or 187 blocks, 'that's what he had been given'.[14]

7. He was advised by Zhang, over the satellite phone, that the goods were to be placed off the Australian coast.[15]

8. Zhang told him the size of each bag and asked whether re-bagging would be needed. They were to be repackaged for easier handling by the people in the small boat who were coming to collect the goods.[16]

9. Jing He re-bagged the packages with other crew members.[17]

10. Zhang provided him with a location near the west coast of Tasmania, and to wait at this point for a few days.[18]

11. He received these instructions as the vessel sailed around the south-west coast of Australia. He wrote down the GPS coordinates on a piece of paper which had a stocktake of the parcels on it together with other instructions.[19]

12. Zhang [asked him] 'whether we had to repackage the "goods" or not'. He replied that he would have to check with Jing He.

13. Zhang advised him to sail east, closer to Tasmania, and that the smaller boat would meet his vessel there. This was the first time the small boat was going to attempt to collect the goods.[20]

14. Having sailed the ship east for some hours, Zhang called on the satellite phone and said that due to the high winds and waves, the small boat was having trouble. Zhang wanted him to sail towards the border of Australian waters and meet the small vessel closer to the coast.[21]

33 As we have said already, Wang concedes that, without reasonable excuse, he failed in part to cooperate in accordance with his written undertaking. The Director submits that whilst Wang did give evidence in accordance with his statement in many areas, he denied telling police about matters which concerned, broadly, the criminality of Jing He, who went to trial, or which implicated Zhang in the offending.

34 The Director's submission mirrors remarks made by the judge at the conclusion of Wang's evidence. There was this interchange with the prosecutor:

PROSECUTOR: Mr Wang failed gloriously to live up to his undertaking ... in relation to [Jing] He. He lived up to his statement in relation to the relevance [sic] evidence he gave in relation to the other accused ... because the only relevant evidence he gave was the synchronicity of the boat movement and he didn't demur from that. And as far as the value of his undertaking is concerned, as far as that portion is concerned, he gave what it was he promised to give. However, as against Mr He, you're going to have rely upon the truth of bits of his statement that he wouldn't accept.

COUNSEL: [Yes] and we accept that ...

35 Counsel for the Director informed the Court on the hearing of the appeal that Jing He was acquitted at trial, but that this was for a reason unrelated to Wang's evidence. Rather, some time after that evidence had been given, Jing He's counsel successfully submitted that there was a fatal flaw in the prosecution case. There was an absence of evidence that Jing He knew that the cocaine was to be imported into Australia, as distinct from it being imported into some other country. Reliance had been placed on the decision in the people smuggling case of PJ v The Queen.[22]

36 Counsel for the Director then submitted that, in the circumstances, a 'modest' increase in sentence would be appropriate.

37 Understandably, at the outset of his oral submissions, senior counsel for Wang accepted the submission just mentioned, though adding 'very' before 'modest'.

(1) Accepted that this Court's role does not extend to reconsidering the appropriateness of the original sentence on an appeal such as this.[23] Rather, the Court must substitute a sentence that properly reflects all relevant circumstances surrounding the failure to cooperate in accordance with the undertaking.

(2) Contended, correctly, that the Court's discretion is to restore to the appropriate degree the sentence which would have been imposed had the offer of cooperation not been made,[24] and not to punish an offender for failing to cooperate.[25]

(3) Argued that, of the two persons identified in the Director's submission, only Jing He was on trial; and that, so far as the statement implicated Zhang, Wang did in fact adopt several paragraphs of his written statement implicating that man.

(4) Identified various passages in Wang's evidence in which, it was contended, he had given significant evidence in accordance with paragraphs in his statement.

39 So far as we can see, the various passages cited by counsel contained only two references to Jing He. One of them was that Wang had told the police that he had been told by Jing He that there were 186 blocks.[26] The second was a qualified acceptance that Jing He had given him a piece of paper which had graphics of the satellite transponders on it which he was told to hand to Little Singapore.[27]

40 It cannot be said that, when giving evidence, Wang obliterated all incriminatory references to Jing He. But he may be said to have done his best. He denied the content of the paragraphs in his statement relevant to Jing He noted at [32 (1), (2), (3), (6) and (9)] above.

41 As we have noted at [25] and [26] above, there was a considerable difference between the importance of Wang's statement so far as it pertained to Jing He on the one hand, and to the shore party on the other. As to the latter, his statement as to movements of the ship was part of a circumstantial case with respect to people whom he did not know. On the other hand, Jing He was a crew mate, and Wang's statement (subject only to the intrusion of an apparently unanticipated problem for the prosecution) must have been of great importance to the prosecution case that Jing He was a co-offender.

42 Accepting as we do that, as this Court has said, the exercise of its jurisdiction in the present connection 'requires the making of a value judgment, and the striking of a balance, in order to determine what sentence ... is appropriate in the light of the relevant events that have happened since the imposition of the original sentence',[28] we consider that Wang's partial failure to abide his undertaking was significant rather than modest. The Court's function, it was common ground, is not to punish but to assess the extent of non-cooperation in the context provided by s 16AC(4)(b). The extent of Wang's failure to cooperate, by reference to his written statement concerning Jing He's involvement, is patent and capable of rational re-assessment of sentence. We consider that whether Jing He was convicted or acquitted is beside the point, just as was the actual reason for his acquittal. The public policy reason why a sentencing discount should be allowed to an offender who promises to give evidence implicating a co-offender or offenders does not lose force because, as it turns out, the promise was not adhered to but an alleged co-offender was acquitted for some unrelated reason.

43 Nonetheless, despite our reservations, we will act upon the Director's submission that a 'modest' increase in sentence would suffice.[29] We reject the submission for Wang that a 'very modest' increase would be enough. Subject to consideration of Wang's application, we propose to allow the Director's appeal and, in lieu of the sentence imposed, substitute a sentence of 16 years and 6 months' imprisonment and fix a non-parole period of 10 years and 9 months.

44 The submissions for Wang focused first upon the contention raised by ground 1 - that is, that the judge erred by sentencing him on the basis that he had committed a 'group 1 category attempted importation'.[30] It was submitted, and we consider it to be clear, that the reference to a 'group 1 category attempted importation' was a reference to a categorisation of offending by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa,[31] which was reproduced by Maxwell P in Nguyen v The Queen.[32]

45 In this table, which Maxwell P said in Nguyen that McClellan CJ at CL 'was not purporting to lay down quantitative sentencing guidelines', 'group one offending', pertaining to importation of a commercial quantity of a border controlled drug was described as follows:[33]

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

46 The range of head sentences imposed, as at 2010, was stated in the table to be 25 years to life imprisonment.

47 It is a useful comparator to describe group two as identified in De La Rosa:[34]

High quantity; high value; guilty plea; principal, member of upper management or "essential" role with moderate to very high level of responsibility; reward in terms of thousands of dollars although finding of reward not indicative

48 The range of head sentences imposed, as at 2010, was said to be 18 years to 24 years and 6 months' imprisonment.

Quantity generally below 7 kg; mid-range role; discount for assistance, cooperation; plea not indicative

50 There, the range of head sentences imposed was said to be 8 to 15 years' imprisonment.

52 His Honour accurately set out the facts of the applicant's offending. He referred to the undertakings which the applicant and Barry Zheng (Little Singapore) had given to the authorities.

53 The judge described Wang's personal circumstances: he was then 42 years of age, married with two children, a mariner for over 20 years, who had been unemployed for about a year before being offered the command of the vessel engaged in the drug running.

54 Wang had pleaded guilty, and the judge treated it as a relatively early plea. His plea had significant utilitarian value for which he would receive a significant reduction in sentence.

55 His Honour stated that took into account Wang's cooperation with the authorities, both past and in the future. He regarded Wang's proposed evidence as being of 'significant value against all of [the] remaining co-defendants',[36] providing 'specific evidence of [Jing] He's involvement, and evidence as to instructions received and movement of the land-based co-accused together with the purpose of the voyage being highly relevant in the case against the land-based accused'.[37]

56 As to Wang's role in the attempted importation, the judge said that he controlled the attempted delivery of the cocaine. He was an essential part of the attempted importation. He disguised the identity of the vessel and guided it to the proposed meeting point with the Australian conspirators. He was more than a mere courier.

57 Then, having described Barry Zheng's role, the judge said this:[38]

Ultimately I am of the view that there is nothing to distinguish between you as to your roles in the offending. You were both paid to perform significant and high level functions in the attempted importation. You both cooperated with the authorities in the past, making extensive statements. You have both undertaken to give evidence in the future.

58 The judge described the attempted importation as 'a high level example of the offence'.[39] He said that each of Wang and Barry Zheng 'knew the enormous quantity of cocaine you were transporting'.[40]

59 His Honour said that although there had been larger attempted importations or actual importations, and that neither Wang nor Barry Zheng were the principal suppliers or backers of the attempt, there came a time when the quantity of the drugs becomes so large that 'there becomes little point in the fact that the quantity could have been greater'.[41]

60 The judge stated that the quantity of cocaine was such that, in his opinion, 'top principal offenders or top level offenders would attract the maximum life penalty. However, neither of you are in that category'.[42]

61 The judge accepted that both Wang and Barry Zheng would be isolated from family and friends. But as both of them had come to Australia solely to commit a very serious crime, little weight could be attributed to that hardship.

62 The judge differentiated between the overall situation of Wang and Zheng because, in his opinion, Wang was providing the prosecution with assistance of greater value than that provided by Zheng. Moreover, Zheng had a prior criminal history and Wang did not.

63 Having set out this entire range of circumstances, his Honour referred again to the propositions set out in De La Rosa, subsequently reproduced both in New South Wales and by this Court in Nguyen,[43] and to the range of sentences for various categories of importations set out in those authorities.

64 Then he stated, in the passage relied upon by Wang:[44]

This was a group 1 category attempted importation.

65 His Honour added, immediately after that statement:

Your roles[45] were significant and as I outlined previously.

66 Having observed that general deterrence was clearly the paramount sentencing consideration but that proper allowance must be made for circumstances of mitigation, the judge then imposed the sentence and made the statements which we have earlier identified. For completeness, we note that he sentenced Barry Zheng to imprisonment for 15 years and 6 months, with a 10 years and 9 months non-parole period.

67 In oral argument, senior counsel for Wang accepted that the judge had accurately stated the factual circumstances of his client's offending, and the matters relied upon in mitigation. But he submitted that the judge had then gone wrong by fitting the circumstances into the De La Rosa 'group one category' 'box' of attempted importation That was wrong for two reasons. First, because the circumstances of the offending and the offender did not fit the description in the box. Second, because placing the circumstances in a box meant that the instinctive synthesis method of arriving at a sentence was subverted.

68 As to the second of those matters, counsel referred the Court to R v Holland[46] and DPP v Masange.[47] In those decisions, counsel submitted, the New South Wales Court of Criminal Appeal and this Court cautioned against the use of De La Rosa categories as a short route to the appropriate sentence in a particular case.

69 The point which Wang makes by proposed ground 1 applies as much to the sentence which we would substitute by reason of the Director's appeal succeeding as it would with respect to the sentence which the judge imposed.

70 We accept that in the single sentence of his sentencing remarks upon which Wang relies, the judge misdescribed the applicant's role in the hierarchy of offending described in De La Rosa, and later reproduced in Nguyen. Whilst, in our opinion, the applicant's moral culpability was high, because he was involved in what he must have realised was a very large importation of drugs, his motive being a financial one,[48] and his role being of critical importance in bringing the large consignment of cocaine from China to the Australian coastal area, he was not a principal in the attempted importation, he did plead guilty, and to some extent he lived up to his undertaking to assist in the prosecution of the other offenders. On the other hand, his compliance with that undertaking was far from complete.

71 We accept also that counsel for Wang was correct in submitting that authorities subsequent to De La Rosa and Nguyen have cautioned against placing the circumstances of offending and offenders into 'boxes' so as to determine the appropriate sentence range. It is the entirety of the circumstances of the offending and the offender in the particular case which fall for synthesis.

72 In Holland, McClellan CJ at CL explained what he had intended in De La Rosa:

Much of the argument in the appeal focused upon the 'Categories of offence' which I developed in the course of my reasons in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1. Some of my remarks may have been misunderstood. When preparing my reasons in De La Rosa it became increasingly apparent that there were many significant decisions with respect to the sentence for individual offenders which had never been gathered together and analysed. The number is such that to merely list them without further classification was likely to be of modest assistance to practitioners and judges required to sentence future offenders. As I said in my reasons in De La Rosa, so as to assist others to readily access the information I grouped the decisions by reference to common characteristics, so far as they could be identified. However it would be wrong to sentence an offender by seeking out the 'category' into which they fit and imposing a sentence which is thought to be appropriate for an offence which happens to have the characteristics found in that category.[49]

73 Schmidt J pointed out the problem of over-reliance upon categorisation by referring to what the Chief Judge himself had said in De La Rosa:

De La Rosa was not a guideline decision. Rather, McClellan CJ at CL there undertook an analysis of numerous decided cases, in order to gather together information as to the outcome of past sentencing decisions, in relation to particular drug importation offences, by reference to features which they had in common. His Honour explained the purpose of that exercise:

1. 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.[50]

74 The need for caution in the use of De La Rosa categories has been persistently stated in New South Wales. See, for instance_, Bae v The Queen_,[51] where Hall J (Hoeben CJ at CL and Wilson J agreeing) cited the judgment of Davies J (with whom Allsop P and Latham J agreed) in Thuong Nguyen v The Queen.[52] Davies J referred to a number of decisions to that effect.

75 In Masange, defence counsel had submitted on the plea that 'this looks like a Group 4 offence'. The prosecutor had not demurred. On a Director's appeal against sentence, counsel for Masange submitted, inter alia, that the prosecutor had failed to assist the primary judge to avoid error. This Court rejected that submission. But in the course of their reasons, Maxwell P and Redlich JA stated that the offender's reliance upon a De La Rosa category had been misconceived. They cited what McClellan CJ at CL had said in Holland, which disapproved use of the De La Rosa categories for deciding what sentence should be thought to be appropriate.[53] Beale AJA, who dissented in the result, but not in the present connection, dealt with the issue in somewhat greater detail, and to the same effect.[54]

76 The question arises, however, whether the judge's one line mischaracterisation of Wang's role was operative in the sentence which his Honour imposed; or, on the footing that there was error, whether nonetheless Wang has established that a different sentence should be imposed. We are not at all persuaded of either proposition.

77 On its face, the judge did not impose a sentence of the kind which would be imposed in the case of a group one category offender. Wang's counsel, in written submissions, conceded that this was so. But, counsel submitted, the sentence which was imposed was in truth a sentence in the range reserved for group one category offenders, as could be seen from his Honour's s 16AC(2) and s 6AAA statements. We do not accept either aspect of that contention.

78 First, focussing upon the s 16AC(2) statement, the sentence actually imposed was a sentence which took into account all relevant considerations. They included both Wang's undertaking to cooperate and his guilty plea

79 The s 16AC(2) statement, directed to the first of those matters, had two purposes. First, to identify, explicitly and discretely, the discount on sentence which the judge was allowing by reason of Wang's undertaking to cooperate. Second, to set the parameters within which, if the promised cooperation did not eventuate, sentence must or might be adjusted on appeal. Subsection (2) required the judge to ignore all other sentencing considerations which had played a part in the instinctive synthesis - to be crystal clear, including the guilty plea.

80 The task which s 16AC(2) required the judge to undertake did not convert the sentence actually passed into 23 year sentence. Further, to the extent that the consequence of the Director's appeal is that Wang's sentence ought be increased as we propose, that sentence would still not fall into the supposed range of sentences for a group one offender.

81 Second, we turn to s 6AAA of the Sentencing Act 1991.[55] It requires a judge to discretely identify and put a figure to the discount allowed for an offender's guilty plea. It does so by requiring the judge to state what sentence he or she would have imposed 'but for the plea of guilty'. All other sentencing considerations are to be ignored - including, in the present case, the promise of cooperation.

82 There are multiple problems with this provision, as has been remarked upon in the past. It requires a judge to separate out, from a sentence arrived at by the instinctive synthesis of all sentencing considerations, a single circumstance. Moreover, although the section does not say so, it must be assumed that on a 'not guilty' plea the offender was convicted. Of course, the judge cannot know what evidence would have been adduced in the imaginary trial. Who can say what might actually have emerged as bearing upon sentence? Rather, however, the judge must assume that in the imaginary trial the evidence would have conformed with the prosecution's summary on the plea, and that the submissions for the offender on the plea after conviction would have been the same was were actually made (except for reliance on the plea of guilty). The artificiality of the exercise is patent. Nonetheless, parliament has said that the statement as described must be made. It is a statement which necessarily attaches to the sentence actually passed.

83 In the event, the judge was required to make two statements, which separately addressed specified circumstances. One of them involved a very artificial exercise. Only one of them had any potential future relevance.

84 The judge did make the two discrete statements. What he then did, in substance, was this: for the purposes of the s6AAA statement, he added on to the actual sentence which he imposed the cooperation discount of about nine years. He then used the notional sentence of 23 years' imprisonment as the starting point for stating the sentence which he would have imposed but for the guilty plea. Thus was arrived at the 28 year notional sentence upon which Wang's counsel relied to show that the sentence passed was apt for a group 1 category offender.

85 In doing what he did, it appears that the judge departed from the statutory requirement of s 6AAA that the impact of the guilty plea is to be separated out from all other sentencing considerations, which are to stand. That is, the figure of 28 years proceeded not from the actual sentence imposed, but involved adding back another mitigatory sentencing circumstance - promised cooperation.

86 But whether or not that is so, it is clear enough, in the event, isolating the significance of the plea of guilty, that the judge intended to say that he would have imposed a sentence five years greater than the sentence which he imposed - that is, a sentence of 18 years and 10 months' imprisonment. But what he did was to state a 'but for' sentence which was more than twice the sentence actually imposed - that is, 28 years' imprisonment compared with the sentence of 13 years and 10 months' imprisonment. An apparent discount of more than 50% for the utilitarian value of the plea in circumstances where, as the judge said, Wang's statement meant that a plea of guilty was 'inevitable', with respect to his Honour, made little sense

87 It may well be that the judge felt compelled to deal with the two statutory requirements as he did because of the reasons for judgment of Tate JA, agreed to by Harper JA and Williams AJA in Director of Public Prosecutions (Cth) v Couper.[56] Whether what his Honour did was in fact compatible with her Honour's reasons is another matter. It does not bear upon the resolution of Wang's ground 1.

88 It might be thought that Tate JA's resolution of the problem in Couper did not sit altogether comfortably with the approach of Ross AJA, with whom Nettle and Hansen JJA agreed, in Director of Public Prosecutions (Cth) v Bui.[57] This is a question which may arise on another day. What is clear, in our opinion, is that the way in which the judge dealt with the two statements[58] created an impression of the 'but for' sentence in the case of s 6AAA which was detached from the sentence actually imposed, and which was for that reason quite unrealistic. Even if a s 6AAA statement could be employed in the way advanced by counsel for Wang, which we consider to be very doubtful, we would not be prepared to act upon the basis that but for the plea of guilty a sentence of 28 years' imprisonment would have been imposed.

89 Further, and contrary to the submission for Wang, the judge did not fall into the error of not going beyond categorising the offending and of failing consider all the circumstances of the offending and the offender. His Honour clearly addressed those circumstances. So much of his Honour's sentencing remarks as we have summarised above shows that the supposed error was not made. The fact that his Honour did not err in this way favours our conclusion that the 'group one' misdescription was no consequence. That said, the misdescription was a needless distraction, the like of which should be avoided by sentencing judges.

90 We would grant Wang leave to appeal on proposed ground 1, but would dismiss the appeal. We turn to proposed ground 2.

91 It was submitted for Wang that, whilst this was serious offending, there were important mitigating features. (1) He was not a principal supplier or backer of the attempted importation. (2) He stood to make a fixed sum for his work, rather than a share of proceeds of the importation. (3) He would be isolated from his family and friends while in custody. (4) He had no prior convictions. (5) He had pleaded guilty at a relatively early stage and his plea had significant utilitarian value. (6) He had made a lengthy statement in which he admitted his guilt. (7) He had undertaken to assist in the prosecution of co-offenders, and had given assistance with respect to the shore party. (8) By reference to Director of Public Prosecutions (Cth) v Brown,[59] the sentence imposed was out of step with current sentencing practices.

92 In our opinion, this proposed ground is not reasonably arguable: (1) Though not a principal, the applicant's role, as a skilled mariner, was critical to the intended importation. He was no mere courier. (2) His misconduct occurred over a lengthy period, and was attended by subterfuge. (3) His motive was financial. True it is that he was not to receive a share of the proceeds of sale, but he was being paid considerably more than his usual remuneration for this journey. (4) The quantity of the intended importation was more than 60 times the applicable commercial quantity of two kilograms. The potential wholesale value of the cocaine was said to be between $33,120,000 and $44,880,000; whilst its potential street value was estimated at between $82,449,801 and $123,674,715. (5) True he made admissions, and for this he was entitled to credit. So also, he pleaded guilty. But the reality is that he was the master of a ship which had engaged in subterfuge whilst it made its way to Australia, that it had been specially fitted out for long-distance travel, and that its only cargo was the cocaine.[60] Protestations of innocence were unlikely to have got far. (6) It was not due to any lack of attention to detail on his part that the importation remained an attempt only. The importation failed because of the complete ineptitude of the shore party. A first boat, the 'Lucky Strike', broke loose of its trailer whilst being towed and suffered damage. It appears that fibreglass tape was used in an attempt to make vessel seaworthy, but that an attempt to launch it was unsuccessful. A second vessel was then acquired. A first attempt by that vessel to reach the ship failed and on a second attempt the vessel failed to negotiate its way out of Port Fairy harbour. It struck rocks and its crew had to abandon ship. (7) The undertaking to assist was only partly honoured, and in respect of persons about whose involvement Wang could give no direct evidence. Contrast Jing He. (8) We do not accept that Brown, or the cases there referred to, demonstrate that the sentence here imposed was, or the sentence which we would impose in consequence of the Director's appeal would be, outside the range reasonably available in the sound exercise of the sentencing discretion.

93 We would refuse Wang leave to appeal on proposed ground 2.

94 We will make orders in accordance with [43], [90] and [93] above.

95 In the Director's appeal, we state that, for the purposes of s 6AAA of the Sentencing Act 1991, had Wang not pleaded guilty, we would have imposed a sentence of twenty-years' imprisonment with a non-parole period of fifteen years.

[1] See sub-ss 307.1(1) and 11.1(1) of the Criminal Code (Cth).

[2] This assumes that a statement under s6AAA of the Sentencing Act 1991 is required in the case of a federal offence.

[3] Section 16AC(4)(a), referred to in s 16AC(4)(b)(i), applies where the person 'has failed entirely to cooperate in accordance with the undertaking', upon which the court 'must substitute for the reduced sentence, reduced order or non-parole period the sentence, order or non-parole period that would have been imposed, made or fixed but for that reduction.'

[4] An extension of time to institute an application for leave to appeal not being opposed by the Director, an extension was granted on 18 December 2018. The Director reserved the right to argue that the substantive application lacks merit.

[5] The appeal provided for by s 16AC of the Crimes Act 2014 (Cth), with its precise and limited parameters, can be compared with the situation which would arise where, in a State sentencing matter, there was a Director's appeal on the ground of non-cooperation and an application for leave to appeal by the prisoner (see ss 291-294, Criminal Procedure Act 2009). It would seem that the two proceedings could comfortably be heard and determined together.

[6] For completeness, we note that, effective from 3 March 2019, Basha inquiries were abolished by s 198C of the Criminal Procedure Act 2009.

[8] Evidence Act 2008 s 38.

[9] Statement of Li Ye Wang dated 9 January 2017, [25].

[22] [2012] VSCA 146; (2012) 36 VR 402. There, the question was whether the offence of facilitating the 'bringing or coming to Australia of a group of at least five persons' required the prosecution to establish that the accused was aware that the destination of the journey which he was alleged to have facilitated was Australia. This Court answered that question 'yes'. See 414-415,[48]-[52] and 432 [85].

[23] See Director of Public Prosecutions v Haunga [2001] VSCA 73; (2001) 4 VR 285, 291 [14] ('Haunga') and Director of Public Prosecutions v Johnson [2012] VSCA 38, [23] ('Johnson').

[24] Citing Johnson [2012] VSCA 38, [24].

[28] Haunga [2001] VSCA 73; (2001) 4 VR 285, 291 [14].

[29] 'Modest' is, of course, a word which lacks precision. But the same can be said of 'significant', the characterisation which we prefer.

[30] CDPP v Wang & C Z (Unreported, County Court of Victoria, Judge Chettle, 12 June 2018) [39] ('Sentencing Remarks').

[31] [2010] NSWCCA 194; (2010) 79 NSWLR 1, 49-53 [207]-[224] ('De La Rosa')

[32] [2011] VSCA 32; (2011) 31 VR 673, 683-4 [36] ('Nguyen')

[33] De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 53 [224].

[43] [2011] VSCA 32; (2011) 31 VR 673.

[45] That is, the roles of Wang and Barry Zheng.

[46] [2011] NSWCCA 65; (2011) 205 A Crim R 429 ('Holland')

[47] (2017) 325 FLR 363, [35]-[36] ('Masange').

[48] In the sense of generating well in excess of his ordinary income.

[49] Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429, 431 [3].

[51] [2015] NSWCCA 133

[52] [2012] NSWCCA 184 [38].

[53] DPP v Masange (2017) 325 FLR 376-377 [35]-[36].

[55] Assuming, as the judge did, that this section applies in the case of sentence for a federal offence.

[56] [2013] VSCA 72; (2013) 41 VR 128, 152-156, [132]-[148]. What is now s 16AC was then s 21E of the Crimes Act 1914.

[57] (2011) 32 VR 166-167, [97], [99].

[58] Putting to one side, for present purposes, what we have said at [85] above.

[59] [2017] VSCA 162 ('Brown').

[60] As to the significance of the role of master of a ship, see Frost v Warner [2002] HCA 1; (2002) 209 CLR 509, 519 [29].