Hawchar v R [2020] NSWCCA 191
Chuang, Chih Wen v R
Chen, Chun Hung v R [2020] NSWCCA 60
Director of Public Prosecutions (Cth) v Thomas (2016) 262 A Crim R 198
[2016] VSCA 237
Green v The Queen
Source
Original judgment source is linked above.
Catchwords
Ghazaoui v RHawchar v R [2020] NSWCCA 191
Chuang, Chih Wen v RChen, Chun Hung v R [2020] NSWCCA 60
Director of Public Prosecutions (Cth) v Thomas (2016) 262 A Crim R 198[2016] VSCA 237
Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 49
Hili v The Queen (2010) 204 CLR 520[HCA] 45
House v The King (1936) 55 CLR 499[1936] HCA 40
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70(2018) 272 A Crim R 266
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Lowe v The Queen (1984) 154 CLR 606[1974] HCA 26
R v Bimahendali [1999] NSWCCA 409(1999) 109 A Crim R 355
R v Borkowski [2009] NSWCCA 102(2009) 195 A Crim R 1
R v Lee [2007] NSWCCA 234
R v Olbrich (1999) 199 CLR 270[1999] HCA 54
R v ThomsonR v Houlten (2000) 49 NSWLR 383[2000] NSWCCA 309
Rees v R [2012] NSWCCA 47
Tyler v The Queen [2007] NSWCCA 247(2007) 173 A Crim R 458
Xiao v R (2018) NSWLR 1
Judgment (17 paragraphs)
[1]
Solicitors:
One Group Legal (First Applicant)
One Group Legal (Second Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2020/00238896; 2020/00238897
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 29 October 2021
Before: Hock DCJ
File Number(s): 2020/00238896; 2020/00238897
[2]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicants, Jackson Ross Giles-Adams and Christopher John Preca pleaded guilty in the Local Court to the following offence:
One count of attempting to import a commercial quantity of a border-controlled drug, namely cocaine, contrary to ss 11.1(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) ("Criminal Code") (sequence 4).
Hock DCJ sentenced each applicant to a term of 17 years imprisonment, commencing on 15 August 2020 and expiring on 14 August 2037, with a non-parole period of 10 years imprisonment, expiring on 14 August 2030. The sentencing judge imposed a 25% discount on the sentence.
A further co-offender, Man Wah Chan, was sentenced separately from the applicants. The same sentencing judge sentenced Mr Chan following the application of a 20% discount on his sentence. Mr Chan was sentenced to a term of imprisonment of 12 years, with a non-parole period of 7 years imprisonment.
A seagoing vessel named the "Coralynne", was intercepted on the water approximately 150 nautical miles off the east coast of New South Wales. Three men were located on the vessel, namely, Mr Giles-Adams, Mr Preca and Mr Chan. A subsequent search of the Coralynne revealed that located in the hull of the vessel was between approximately 1,521.66 and 1,552.6 kilograms of pure cocaine.
Mr Giles-Adams and Mr Preca relied on three grounds of appeal:
(1) the sentencing judge erred in failing to take into account the applicants' willingness to facilitate the course of justice;
(2) the sentencing judge erred in the assessment of the objective seriousness of the offence; and
(3) the applicants have a justifiable sense of grievance in light of the sentence imposed upon the co-offender, Man Wah Chan.
The Court held (per Yehia J, Wright and Chen JJ agreeing) granting leave to appeal against the sentence, allowing the appeal and re-sentencing the applicants.
As to ground 1, per Yehia J at [83]-[84] (Wright J at [1] and Chen J at [149] agreeing):
(1) The absence of any reference to the applicants' willingness to facilitate the course of justice, in circumstances where the factor was discreetly addressed and conceded by the Crown at first instance, and where the same sentencing judge alluded to it in sentencing the co-offender, Mr Chan, constituted error. Ground 1 of the appeal was made out.
Xiao v R (2018) NSWLR 1; [2018] NSWCCA 4; Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458; Director of Public Prosecutions (Cth) v Thomas (2016) 262 A Crim R 198; [2016] VSCA 237; Baden v R [2020] NSWCCA 23; Bae v R [2020] NSWCCA 35; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1; R v Thomson; R v Houlten (2000) 49 NSWLR 383; [2000] NSWCCA 309, considered.
Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60; Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266, cited.
As to ground 2, per Yehia J at [114]-[117] (Wright J at [1] and Chen J at [149] agreeing):
(2) The characterisation of the applicants' roles as falling at "an intermediate level in this enterprise" was not a finding open to the sentencing judge, insofar as that characterisation was referring to the applicants' specific roles in a determined hierarchy. Without knowing the role of those who sat at the higher and lower level of the criminal enterprise, it was not open to the sentencing judge to find that the applicants fulfilled "intermediate" roles. The applicants ought to have been sentenced based on what each applicant precisely did in the commission of the offence. Ground 2 of the appeal was made out.
R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355; R v Olbrich (1999) 199 CLR 270; [1999] HCA 54; R v Lee [2007] NSWCCA 234, considered.
Mulato v R [2006] NSWCCA 282; Magro v R [2020] NSWCCA 25; House v The King (1936) 55 CLR 499; [1936] HCA 40, cited.
As to ground 3, per Yehia J at [128], [131] (Wright J at [1] and Chen J at [149] agreeing):
(3) There was a marked disparity in sentences, such as to result in a justifiable sense of grievance on the part of the applicants. The marked disparity was a result of the sentencing judge's finding that the applicants' roles fell at the intermediary level of the criminal enterprise. Having determined that it was not open to find that the applicants occupied roles as intermediates in the criminal enterprise, the marked disparity between the sentences was not reasonably explained by the degree of difference between the co-offenders. Ground 3 of the appeal was upheld.
Ooi v R [2023] NSWCCA 97; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered.
[3]
JUDGMENT
WRIGHT J: I have had the benefit of reading a draft of the judgment of Yehia J. I agree with the orders proposed by her Honour and with the reasons for those orders. In relation to ground 1, I would also make some additional comments.
It is appropriate, when a sentencing court is considering the application of s 16A(2)(g) of the Crimes Act 1914 (Cth), to bear in mind observations of Basten JA in Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60 at [15]-[19] (Rothman J agreeing):
"15. The distinction accepted in Xiao between the state of mind of the offender revealed by a plea, and the objective benefits to the administration of justice, gives rise to a number of consequential considerations.
16. First, the existence of a strong prosecution case may diminish the weight given to the willingness to facilitate the administration of justice, because it may reveal little less than acceptance of the inevitable. A strong prosecution case will generally not diminish the utilitarian value of the plea.
17. Secondly, whilst the subjective willingness to facilitate the administration of justice may be seen as a mitigating factor, it will not give rise to an arithmetical discount. In fact, it is apt to lead to confusion to describe such a subjective consideration, which may be closely related to factors such as contrition and remorse, as involving a 'discount'. …
18. Thirdly, although as a mitigating factor willingness to facilitate the course of justice should be established on the balance of probabilities, it should not be assumed that the existence of a strong prosecution case necessarily diminishes the factor to any particular extent. The court should state if it is satisfied that the plea was motivated partly or largely by the inevitability of conviction, or that no finding can be made.
19. Fourthly, subjective elements such as contrition and remorse may provide a basis for a finding that prospects of rehabilitation are good. That itself is a mitigating factor. Remorse may be demonstrated by a willingness to save the victim of the offence of the need to relive the events of the offending by giving evidence in court. However, such an attitude may also be described as willingness to facilitate the administration of justice. There is a danger that a multiplication of labels for what are essentially similar considerations may lead to double counting. That should be avoided. In particular, it suggests the need to avoid discounting for such factors, an exercise which implies a starting point reached without consideration of a particular factor, followed by a staged reduction. That may be the correct approach to adopt with respect to the utilitarian value of a plea; it is not appropriate with respect to most other mitigating factors, absent statutory authority." (footnote omitted)
[4]
Circumstances of the Offence
Between 13 and 14 August 2020, a prawn trawler named the "Coralynne" travelled approximately 190 nautical miles east of Newcastle. The Coralynne was observed to meet with another larger vessel, then began to return to Newcastle.
The Coralynne was intercepted on the water by police. Three men were located on the vessel, namely the applicants and Mr Chan. A subsequent search of the Coralynne revealed that located in the hull of the vessel was between approximately 1,521.66 and 1,552.6 kilograms of pure cocaine.
The Coralynne was a seagoing fishing vessel that was 15.8 meters long, with a hull of steel. It was docked in Tweed Heads when it was sold on 22 May 2019, for a total price of approximately $140,000, to an associate of Mr Giles-Adams.
On approximately 13 May 2019, the vendor attended the Gold Coast City Marina. While at the marina, he met with two men, one of whom was a person who identified himself as "Jackson". The Crown accepted that the man identified as "Jackson" was not the applicant, Mr Giles-Adams. The description of "Jackson" was inconsistent with the appearance of Mr Giles-Adams.
Between 22 and 24 May 2019, the vendor sailed the vessel to the Commercial Fisherman's Co-Op in Wickham, Newcastle. The person, "Jackson", was at the Co-Op with another man who met with the vendor. The Fisherman's Co-Op provided mooring facilities in Newcastle to prawn and fishing trawlers. From 24 May 2019 until 7 May 2020, there was an agreement for the Coralynne to be moored at the Co-Op.
In July 2019, email communication to the Co-Op regarding the Coralynne was taken over by a person who was a known associate of Mr Giles-Adams.
In about July 2020, Mr Deacon, the Co-Op Depot Manager, met the person who identified himself as "Jackson". "Jackson" told Mr Deacon that he was taking over the Coralynne.
On 31 July 2020, closed-circuit television ("CCTV") footage of the Co-Op showed Mr Giles-Adams purchasing $388.47 worth of fuel for the Coralynne.
On 7 August 2020, Mr Deacon assisted "Jackson" to obtain 24-hour access to the Co-Op wharf which involved purchasing a key. "Jackson" was captured on CCTV footage purchasing the key for $110.
On 13 August 2020, a large fishing vessel, the "Zhi Vu Yun", was sighted within the Australian Exclusive Economic Zone off the east coast of New South Wales. The ship was registered under a Chinese flag and had no fishing permits to conduct fishing activities within Australian waters.
[5]
Interception of the Coralynne
At approximately 9:48pm on 15 August 2020, New South Wales Police Force vessel the "Nemesis" intercepted the Coralynne approximately 150 nautical miles off the east coast of New South Wales. As police officers approached the Coralynne, they observed a person throw a black sports bag overboard. That bag was not recovered.
On boarding the Coralynne, police directed Mr Preca to "sit down". Mr Preca did not comply stating words to the effect, "[n]o, there is a fire", while gesturing towards the hull of the vessel. At that point, police officers identified a fire in the hull. Flames became visible and the fire was observed to be increasing in intensity. Police also observed a large amount of fuel pooling in the water at the side of the Coralynne.
Police officers used a fire extinguisher to extinguish the fire. A brief inspection of the Coralynne identified a large number of packages in the hull. One of those packages was inspected and identified to contain a white substance. Many of the packages had been damaged and split open due to the fire.
[6]
Search of the Coralynne
Between 16 and 19 August 2020, a search warrant was executed on the Coralynne. A total of 77 hessian-wrapped packages were located on board, 76 packages were located in the hull storage compartment, and one was found on the deck near the entrance to the storage compartment. The packages were affixed with thick red or green rope, and each weighed approximately 25 kilograms.
Within each hessian package were approximately 25 smaller packages, affixed with brown tape, weighing approximately one kilogram each. Each package contained compressed white powder. Some of the blocks of powder had been pressed with a logo stating either, "Baron", "TNT" or "Uno". A total of 1,890 individual brown-taped packages were located.
The white powder subsequently tested positive for cocaine. A minimum of 1,886.55 kilograms was identified. 55 packages were randomly selected for purity testing. Those examinations revealed the selected cocaine had a purity range of between 79.5% to 82.3%, with the total amount of pure cocaine seized estimated to be between 1,521.66 and 1,552.6 kilograms.
[7]
Grounds of Appeal
Although the grounds of appeal filed on behalf of Mr Preca identified only two grounds, the hearing of the application for leave to appeal proceeded on the basis that each of the applicants relied on the same three grounds, namely:
1. the sentencing judge erred in failing to take into account the applicants' willingness to facilitate the course of justice;
2. the sentencing judge erred in the assessment of the objective seriousness of the offence; and
3. the applicants have a justifiable sense of grievance in light of the sentence imposed upon the co-offender, Man Wah Chan.
[8]
Remarks on Sentence
The sentencing judge set out the facts of the offending on pages 1-11 of the remarks on sentence ("ROS"). In assessing the objective gravity of the offence, her Honour had regard to the maximum penalty of life imprisonment. In addition, her Honour took into account the quantity of the drugs, observing that the threshold for a commercial quantity is two kilograms of pure cocaine. In this case, the quantity of pure cocaine was between 760 and 766 times that threshold.
The sentencing judge accepted that there was no evidence the applicants knew the exact quantity of the drug, but they "must have known that it was a very substantial amount because each of the packages weighed approximately 25 kilograms, and they almost filled the hull of the Coralynne". [2]
Her Honour rejected the contention that neither applicant was involved in the criminal enterprise prior to the activation of their Blackberry phones on 9 and 10 August 2020. Instead, the sentencing judge found that each applicant was involved in preparatory acts "probably" from at least mid-May 2020.
In arriving at that conclusion, and in assessing each applicant's role, the sentencing judge set out the factors which her Honour took into account as follows:
1. On 9 and 17 May 2020, both of the applicants' mobile phones were in the same location, namely Calga and Mount White. While the evidence established that the applicants had a shared interest in motorcycle riding, which they engaged in on that day, the location of their mobile phones, in combination with other facts, was relevant to a finding as to when they became involved in preparing for the offence.
2. Mr Preca had paid for a long-range VHF marine radio course on 13 May 2020, which he completed on 26 May 2020.
3. The VHF radio channel information card was located on the Coralynne in a bag used by Mr Preca.
4. On 15 May 2020, the Garmin GPS found on the Coralynne first recorded a location date at Crows Nest which coincided with a time when Mr Giles-Adams' mobile phone was being used in Crows Nest. The only other times that the GPS was used was on journeys out to sea from Newcastle on 29 May and 14 August 2020.
5. On 29 May 2020, both applicants were in the Newcastle area.
6. On 11 July 2020, Mr Giles-Adams made a payment of $1,500 with the description "the Coralynne".
7. Between 24 and 28 July 2020, Mr Preca used his personal mobile phone to make enquiries about binocular and night vision equipment stores.
8. The personal mobile phones of the applicants were in the Newcastle area on 31 July 2020, and on that day Mr Giles-Adams purchased $388.47 worth of fuel for the Coralynne. He also paid $1,195.30 to the Co-Op.
9. On 7 August 2020, both applicants' personal mobile phones were again recorded as being in the Newcastle area. It was on that day that Mr Giles-Adams arranged for 24-hour access to the Coralynne.
10. In August 2020, each applicant activated the encrypted phones.
[9]
The Applicants' Subjective Cases
The sentencing judge summarised the applicants' subjective cases. The applicants did not give evidence in their sentencing proceedings. Mr Giles-Adams relied on the following: the psychological report of Stephen Woods; his letter to the Court; the affidavit of Sandra Marie Giles (Mr Giles-Adams' mother); the affidavit of Jordan Giles (Mr Giles-Adams' sister); the affidavit of Jackson Adam-Giles (Mr Giles-Adams' father); the affidavit of Ms Somerville (Mr Giles-Adams' then-girlfriend); a reference prepared by Christopher Vanstone; and Corrective Services Records.
At the time of the offence, Mr Giles-Adams was 27 years old. His criminal history was noted to be limited to a conviction for driving with a mid-range prescribed concentration of alcohol in 2011, and supply of a prohibited drug in 2012. Her Honour concluded that the supply offence "must have been relatively minor" [4] as it was dealt with in the Local Court and a fine was imposed. Her Honour accepted Mr Giles-Adams was a person of prior good character which entitled him to some leniency.
Mr Giles-Adams is the younger of two children of his parents' marriage. The applicant spent the first two years of his life in Christchurch, New Zealand. When his parents separated, he moved with his mother and older sister to Auckland. Contact with his father was less frequent, which Mr Giles-Adams found "upsetting". [5] When his mother remarried, the family moved to Sydney where he had less contact with his father.
Mr Giles-Adams comes from a pro-social and supportive background. From the age of 13, he began binge drinking and smoking cannabis at least four times a week. This led to him associating with other "troubled" [6] teenagers and truanting. The family decided to return to New Zealand when Mr Giles-Adams was approximately 15 or 16 years of age after he had been asked to leave school. However, he did not settle, and at 16 years of age, he returned to Sydney without his parent's knowledge.
In Sydney, Mr Giles-Adams stayed with a friend whose mother was addicted to drugs and alcohol. She encouraged Mr Giles-Adams and her son to use those substances. Mr Giles-Adams commenced binge drinking on "most days" [7] and using illicit drugs on a daily basis.
After leaving school, he completed a Certificate III in light fabrication, which enabled him to work as a welder. At 21 years of age, he moved to the Gold Coast where he worked in boat building and restoration. He told Mr Stephen Woods, psychologist, that for a two-year period, he was drug-affected to some extent every day, and this continued on his return to Sydney. [8]
[10]
Ground 1: The Sentencing Judge Erred in Failing to Take into Account the Applicants' Willingness to Facilitate the Course of Justice
In stating the discount being applied to reflect the utilitarian value of the pleas of guilty, the sentencing judge remarked:
"I have taken into account the pleas of guilty which were entered in the Local Court. While I recognise that this was a strong Crown case, I have reduced the otherwise appropriate sentence by 25% for the utilitarian value of the plea to the criminal justice system. There has been some slight rounding down." [18]
Apart from this passage, there is no other reference to the impact of the plea of guilty. The applicants submitted that, by failing to take the applicants' willingness to facilitate the course of justice into account, the sentencing judge fell into error.
Having regard to the fact that the pleas of guilty were entered at the first reasonable opportunity, the applicants submitted that they were entitled to mitigation of sentence in light of their willingness to facilitate the course of justice and that this factor ought to have been taken into account, in addition to other factors such as remorse, and the utility of the plea.
At first instance, the Crown, in written submissions, conceded that "the very early timing of the pleas may be some indication on behalf of the offenders to facilitate the course of justice and to accept responsibility for their actions". [19]
In light of the Crown's concession and the reliance placed on the applicants' willingness to facilitate the course of justice, it was submitted that the sentencing judge's failure to address the issue constitutes error.
The respondent submitted that this ground was not made out. In support of that contention, the respondent in this Court made submissions, that were referred to in the course of oral argument by Mr Lange, on behalf of Mr Giles-Adams, as a "bit of a legal each way bet". The respondent submitted that it was open to her Honour to find there was an insufficient evidential basis to support the assertion of a willingness to facilitate the course of justice, such that no mitigation on this basis was warranted.
In the alternative, the respondent submitted that the 25% discount allowed by the sentencing judge for the plea may have been intended to reflect both the objective benefit of the plea and the subjective motivations of the applicants to facilitate the course of justice. In support of that contention, the respondent pointed to the sentencing judge's reference to reducing "the otherwise appropriate sentence by 25% for the utilitarian value of the plea to the criminal justice system" (emphasis added).
[11]
Consideration
Prior to this Court's decision in Xiao v R (2018) NSWLR 1; [2018] NSWCCA 4 ("Xiao"), there was some divergence in view as to whether in sentencing for a Commonwealth offence, the utilitarian value of the plea could be taken into account pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth) ("Crimes Act"), as distinct from purely a subjective willingness on the part of an offender to facilitate the course of justice: see Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458 ("Tyler"); cf Director of Public Prosecutions (Cth) v Thomas (2016) 262 A Crim R 198; [2016] VSCA 237.
What was expressed in Xiao, as a power or entitlement to take into account the utilitarian value of the plea, has become a requirement or duty to do so: see Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60 at [14] ("Chuang"), citing Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; (2018) 272 A Crim R 266 at [9] (Bathurst CJ).
Section 16A of the Crimes Act provides that in determining the sentence to be passed or the order to be made, in respect of any person for a federal offence, the Court must take into account, in addition to any other relevant matters, the factors set out in subsection (2), insofar as they are relevant and known to the Court. Section 16A(2)(g) relates to the plea of guilty, mandating that the Court must take into account the fact of the plea of guilty; the timing of the plea; and the degree to which that fact and the timing of the plea resulted in any benefits to the community, or any victim of, or witness to the offence.
Although s 16A(2)(g) does not require the quantification of the discount for the plea of guilty, it is desirable in the interests of transparency, and it has become the preferred practice, that a discount is specified. That discount is usually expressed as a reflection of the reduction in sentence for the utilitarian value of the plea. In a case such as this, that is a reflection of the benefit to the community because of the time and cost of the trial that is saved by virtue of a plea of guilty and the benefit to witnesses of not being required to attend and give evidence.
The respondent pointed to the differences in position between sentencing an offender for a Commonwealth offence as opposed to a State offence, as supporting the contention that under the State legislation, treating considerations such as utilitarian value, remorse and willingness to facilitate the course of justice in a "rolled up way", is impermissible. By contrast, when sentencing an offender for a Commonwealth offence, the Crimes Act does not require separate treatment of those factors.
[12]
Ground 2: The Sentencing Judge Erred in her Assessment of the Objective Seriousness of the Offence
The sentencing judge rejected the submission that the applicants were low level participants, becoming involved in the enterprise no earlier than 9 and 10 August 2020. Her Honour assessed their roles as falling "at an intermediate level in this enterprise".
The applicants accepted that the assessment of the objective seriousness of an offence is part of the role of the sentencing judge, exercising broad discretion, such that this Court may be slow to set aside the judgment made by a judge at first instance: see Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ).
As stated in Magro v R [2020] NSWCCA 25 at [31] (Gleeson JA):
"The question is whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to the judge: Mulato v R at [37], [46]-[47]. In order for this Court to interfere with the assessment made by the sentencing judge, error must be demonstrated in accordance with the principles in House v The King: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; see also Mulato v R at [46]; Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 at [67]."
The applicants submitted that the sentencing judge's assessment of the objective seriousness of the offence was not reasonably open to her Honour and was infected by an error of a kind contemplated by House v The King (1936) 55 CLR 499; [1936] HCA 40. The applicants contended that the error lay in the sentencing judge's approach to the role of the applicants in the criminal hierarchy pertaining to the importation venture. In that regard, the applicants relied upon a number of constituents, or sub-grounds, that are said to have led to error in the assessment of objective seriousness.
Firstly, the applicants relied upon the fact that they were sentenced for a single offence which particularised the period of offending to the discrete period between 13 and 15 August 2020.
When assessing the "objective gravity" of the offence, the sentencing judge found:
"The only reasonable conclusion for that combination of circumstances, in my view, is that both offenders were involved before 9 or 10 August 2020, probably from at least mid-May that year."
[13]
Consideration
In R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355, it was said that in order to determine the culpability of the offender and the appropriate sentence, the Court may, if possible, ascertain the position that the offender held in the criminal enterprise.
However, it is not uncommon for a sentencing judge to have little information about the source of the drugs imported, the wider structure of the criminal enterprise, the arrangements that were put in place before the cargo entered Australian waters, and the arrangements for distribution.
These limitations were acknowledged by the Court in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 ("Olbrich") at [15]-[17]:
"In the present case, the precise nature of the involvement of the respondent in the act of importation was known: at least in the sense that it was known that he had brought the drugs into Australia. He was the importer. But if, as the Court of Criminal Appeal said, the course of events prior to or subsequent to the actual act of importation is relevant and necessary information, it may be accepted that little was known to the primary judge of those matters apart from what the respondent said in evidence…
There is a very practical reason for concluding that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs. Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia.
Further, there is no statutory requirement that a trial judge make such inquiries. Because the offence to which the respondent pleaded guilty was a 'federal offence', the primary judge was bound, in sentencing the respondent, to apply the relevant provisions of the Crimes Act 1914 (Cth). S16A(2)(a) of that Act requires a sentencing judge to take into account, so far as 'known to the court', the nature and circumstances of the offence. The reference to what is 'known to the court' is very important and mirrors what would be the position in the absence of statutory provision (footnotes omitted)."
[14]
Ground 3: The Applicants Have a Justifiable Sense of Grievance in Light of the Sentence Imposed upon the Co-offender, Man Wah Chan
In respect of each applicant, the sentencing judge adopted a starting point of approximately 22 years and 8 months imprisonment, to which her Honour then applied a 25% discount for the pleas of guilty, and ultimately imposed a sentence of 17 years imprisonment, with a non-parole period of 10 years imprisonment. In respect of Mr Chan, her Honour adopted a starting point of 15 years imprisonment, to which she then applied a 20% discount encompassing the utilitarian value of the plea of guilty and acceptance of responsibility and willingness to facilitate the course of justice. Mr Chan was ultimately sentenced to 12 years imprisonment, with a non-parole period of 7 years imprisonment.
The applicants submitted that the disparity between the sentences imposed upon them, and the sentence imposed upon Mr Chan, give rise to a justifiable sense of grievance. Having regard to the nature of the basis of criminal liability of each offender and their roles, the applicants submitted that there ought not to have been such a great disparity between the sentences. A comparison of the head sentences, pre-discount, revealed that the disparity is 52%, with a disparity of 42% post-discount.
In response to this complaint, the respondent, during oral submissions, accepted that the disparity was "not insignificant" but ultimately warranted, given the applicants' lengthier involvement in the preparatory acts for a period of three months leading up to the offence.
[15]
Consideration
The applicants invoke the parity principle. The parity principle holds that there should not be a disparity, or a "marked disparity" between sentences imposed on co-offenders such as to give rise to "a justifiable sense of grievance" in one of them: see Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (per Gibbs CJ, with whom Wilson J agreed at 616, Mason J at 612-613 and Dawson J at 632) ("Lowe").
The sense of grievance necessary to attract appellate intervention with respect to sentences is to be assessed by objective criteria. The Court will refuse to intervene where the disparity is justified by differences between co-offenders' subjective cases or the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green") at [31].
The principles applicable to a parity ground are well-established and were recently summarised in Ooi v R [2023] NSWCCA 97 at [22]-[27] as follows:
"Firstly, the parity principle is an aspect of equal justice which requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301-302; [1997] HCA 26 (Postiglione) (Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [28]-[29].
Secondly, the parity principle holds that there should not be a disparity, or "marked disparity", between the sentences imposed on co-offenders such as to give rise to "a justifiable sense of grievance in one of them": Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (per Gibbs CJ, Wilson J agreeing at 616, Mason J at 612-613 and Dawson J at 623).
Thirdly, the sense of grievance complained of when the sentence for one offender is compared relative to that of the co-offender or co-offenders, is to be assessed objectively and governed by considerations of substance rather than form: DS v R [2014] NSWCCA 267 (DS) at [39]. It is an aspect of the parity principle that it is not just concerned with identical outcomes in cases that "are relevantly identical". It also seeks "different outcomes in cases that are different in some relevant respect": Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (Gaudron, Gummow and Hayne JJ); Dawson (a pseudonym) v R [2021] NSWCCA 33 at [79]-[80].
Fourthly, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed at first instance: Moran v R [2022] NSWCCA 217 at [29] (per Beech-Jones CJ at CL, Price and Yehia JJ agreeing at [41]-[42]). An appeal on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary Judge in drawing distinctions between co-offenders: see Green at [31]-[32].
Fifthly, this Court has previously noted that "considerable obstacles" are placed before an applicant contending error, on the basis of parity, where a sentencing Judge is fully aware of the sentences imposed upon co-offenders and provides reasons for departing from those sentences: see Chamon v R [2020] NSWCCA 112 at [35]-[37] (per RA Hulme J, Hamill and Wilson JJ agreeing); Tatana v R [2006] NSWCCA 398 at [28] (per Howie J, Sully and Latham JJ agreeing).
Sixthly, where the same Judge hears the sentence proceedings of two (or more) co-offenders, he/she is "in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way": see Huckstadt v R [2016] NSWCCA 22 at [90]."
[16]
Re-sentence
Error having been established, this Court is to re-sentence the applicants: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35], [42].
In re-sentencing the applicants, the assessment of the objective seriousness of the offence is informed by their participation in the sea voyage to meet the Zhi Vu Yun for the purpose of taking possession of a substantial quantity of a border-controlled drug, motivated, as they were, by an offer of substantial reward. In addition, each applicant engaged in preparatory acts over a period of three months prior to the commission of the offence. Although it is not open to find that they played an intermediate role, their criminality sits above that of Mr Chan who, on the statements of agreed facts, became involved on 7-8 August 2020.
The subjective cases have been summarised above. In addition, Mr Adam-Giles relied upon two affidavits which were read in the event of re-sentence. In his affidavit sworn on 12 April 2023, Mr Adam-Giles confirmed that he has maintained employment since his incarceration, using his skills to work in maintenance and light engineering. He is currently employed in a café at Macquarie Correctional Centre as a general hand. Mr Adam-Giles has undertaken studies in Animal Care and completed a Certificate II in hospitality. He intends to continue his studies and complete the Certificate III in hospitality. He has also been learning to speak Portuguese.
Mr Giles-Adams has remained abstinent and participated in remand addiction courses. He appreciates the impact of his offending, and in particular, the destructive impact of drug use on the wider community. He expressed his shame and remorse for his offending.
New South Wales Department of Corrective Services Case Notes, annexed to the affidavit of Mohammed Chahine, solicitor, confirm a number of matters including the applicant's demonstrated history of improvement in pro-social thinking and future goals. In November 2021, he was employed as a maintenance sweeper, a trusted position, at Long Bay Correctional Facility. His educational attainments and employment in other prisons, including Macquarie Correctional Centre, are also confirmed in the case note reports.
The material establishes that the applicant has good family support. He has remained abstinent whilst in custody; is engaging in education and employment; and responding well to case management.
[17]
Endnotes
Remarks on Sentence, R v Man Wah Chan, 22/04/2022 (ROS (Chan)) at 16.
Ibid at 13.
Remarks on Sentence (Giles-Adams and Preca) (ROS (Giles-Adams and Preca)) at 15.
Ibid.
Ibid at 16.
Ibid.
Ibid.
Ibid.
Ibid at 17.
Ibid at 17.
Ibid.
Ibid.
Ibid at 18.
Ibid.
Ibid at 19.
Ibid.
Ibid at 20.
Ibid.
Applicant's Written Submissions (AWS (Giles-Adams)) at [10].
Tcpt, 24 April 2023, p 15(8).
ROS (Chan) at 11, 12, 16.
Ibid at 15.
AWS (Giles-Adams) at [20].
ROS (Chan) at 14.
Ibid at 16.
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Decision last updated: 07 June 2023
In addition, in this context it is also worthwhile to note the comments of Fullerton J (Wilson and Ierace JJ agreeing) in Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191 at [62] to the following effect:
1. While in practical terms the factors which inform the sentencing considerations in ss 16A(2)(f) and (g) of the Commonwealth Crimes Act might overlap, what must be borne in mind is that it is only in respect of the objective or utilitarian value of a plea of guilty that the court will apply an arithmetical discount when sentencing for a Commonwealth offence, a discount which is largely, although not exclusively, informed by the timing of the plea.
2. Where a sentencing court is persuaded that the timing of the plea itself reflects a willingness on the part of the offender to facilitate the course of justice, that finding should find expression in the reasons for sentence as one of the factors which informs the value of the plea without it attracting any additional or arithmetical sentencing discount.
3. Where, however, the court does not make that finding, or where the court is not otherwise satisfied that the evidence relied upon by an offender allows for a finding of a subjective willingness to facilitate the course of justice as a mitigating factor on the balance of probabilities, the objective or utilitarian value of the plea should not be diminished.
Whether a sentencing court has failed to take into account, as a relevant mitigating factor, a willingness on the part of an offender to facilitate the course of justice so as to fall into error will depend on the facts of each individual case and, in particular, the bases on which the sentencing proceedings were conducted. Where facilitation of the course of justice was not raised as a discrete mitigating factor during the sentence hearing, it should not be readily concluded that such a matter was relevant or known to the court so as to be required to be taken into account under s 16A(2) of the Commonwealth Crimes Act.
YEHIA J: Jackson Ross Giles-Adams and Christopher John Preca (together the "applicants") seek leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence of imprisonment imposed upon them by Hock DCJ (the sentencing judge) on 29 October 2021.
The applicants entered pleas of guilty in the Local Court and were committed for sentence to the New South Wales District Court. In sentencing each applicant, the sentencing judge applied a 25% discount to reflect the utilitarian value of the pleas in relation to the following subject offence:
One count of attempting to import a commercial quantity of a border-controlled drug, namely cocaine, contrary to ss 11.1(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) ("Criminal Code") (sequence 4).
Each applicant was sentenced to a term of 17 years imprisonment, commencing on 15 August 2020 and expiring on 14 August 2037, with a non-parole period of 10 years imprisonment, expiring on 14 August 2030, the date each applicant is eligible for release on parole. The maximum penalty is imprisonment for life.
Having regard to the application of a 25% discount for the utilitarian value of the plea, the starting point in each case was approximately 22 years and 8 months imprisonment, her Honour having engaged in "some slight rounding down" in imposing the sentences.
A further co-offender, Man Wah Chan, was sentenced separately from the applicants. On 22 April 2022, the same sentencing judge sentenced Mr Chan, following the application of a 20% discount for the "utilitarian value of the plea to the criminal justice system and as indicating an acceptance of responsibility and a willingness to facilitate the course of justice". [1] Mr Chan was sentenced to a term of imprisonment of 12 years, with a non-parole period of 7 years imprisonment. The starting point of the term of imprisonment, in his case, was 15 years.
At approximately 1:06pm on that day, the Coralynne departed its mooring at the Co-Op and tracked an easterly course directly towards the Zhi Vu Yun.
On 14 August 2020, the Coralynne was identified by authorities as tracking an easterly course directly towards the Zhi Vu Yun.
At 6:01pm, Royal Australian Air Force ("RAAF") officers observed, via radar and infrared technology, a third, small high-speed vessel tracking west directly from the Zhi Vu Yun to the Coralynne. From their observations, RAAF officers formed the view that the third vessel was working in concert with the Zhi Vu Yun and the Coralynne.
At 10:50pm, the vessels separated. The Coralynne travelled in a westerly direction tracking directly to the Australian mainland.
The sentencing judge concluded that the applicants' roles could not be described as "low level". They participated for approximately three months in preparations for the meeting with the Zhi Vu Yun and engaged in a two-day voyage. Had the Coralynne not been intercepted, the cocaine would have been brought back to Australia. The items found on the Coralynne pointed to significant planning to avoid detection. The sentencing judge accepted that there was little to distinguish between the applicants' roles, each falling within an "intermediate level in this enterprise".
Both applicants asserted that they had acquired significant drug debt, being $30,000 and $60,000, for Mr Giles-Adams and Mr Preca respectively. Their addiction to cocaine at least contributed to their engagement in the offending. The sentencing judge found that the clear motivation was for financial gain. The sum they were to receive was unknown, however, the sentencing judge accepted that there "must have been a very substantial reward on offer given the size of the importation and its value". [3]
In a six-month period from December 2017, both his girlfriend and a close friend committed suicide, whereupon Mr Giles-Adams' drug use, which was already "heavy", [9] escalated. He was using various substances but primarily cocaine. Mr Giles-Adams' partner confirmed that in the year leading up to his arrest, he had a serious drug problem, using cocaine four to five times per week.
Mr Giles-Adams reported that he became involved in the subject offence because of a drug debt and following threats made to him when he could not repay the debt. However, there was no evidence of duress, and it specifically was not relied upon by counsel at first instance. The sentencing judge found a link between Mr Giles-Adams' addiction and his offending which "provides some explanation for his conduct without excusing it".
In a letter prepared by Mr Giles-Adams dated 8 September 2021, he said that since his remand in custody, he had "not touched any substance and is clear-minded for the first time in a long time". [10] The sentencing judge stated that this "augers well" [11] for Mr Giles-Adams' rehabilitation, as does the fact that he has already participated in a remand addiction program. The sentencing judge also had regard to Mr Giles-Adams' supportive family network.
The sentencing judge noted that in Mr Giles-Adams' letter to the Court, he accepted full responsibility for his offending conduct and expressed remorse. In particular, Mr Giles-Adams wrote, "I don't want a life using drugs and coming back to prison. I want to repay the faith my family and friends have shown by sticking by me, by spending time giving back to them and to the community". [12]
The sentencing judge concluded that on the whole of the material, Mr Giles-Adams was unlikely to re-offend and has good prospects for rehabilitation.
Mr Preca relied on the psychological report of Dr Katie Seidler; the affidavit of Patricia Preca (Mr Preca's mother); the affidavit of Tamika Boyce-Bacon (Mr Preca's girlfriend); references prepared by Dennis and Sue Dring, Robert Bossini, and Daniel McCarthy; and Corrective Services records.
At the time he committed the offence, Mr Preca was 32 years old. He had no criminal convictions apart from two minor traffic matters over 10 years previously. He was, therefore, entitled to leniency.
Mr Preca had the benefit of a stable and loving family. He is the elder of two boys. He was educated to Year 11 at school and gained a qualification as a plumber and worked in that occupation for approximately five years. He then worked as a concreter for approximately three years.
For seven years before his incarceration, Mr Preca was employed as a crane operator. His supervisor, who provided a testimonial, described him as "hard-working and reliable as any employee I have managed in my managerial career". Mr Preca was made redundant in April 2020.
Mr Preca has an extensive history of using illicit drugs, commencing with cannabis and ecstasy at 16 years of age. He commenced using ecstasy recreationally, but his use rapidly increased to the extent that he was taking up to 20 tablets over the course of a weekend. Mr Preca commenced using cocaine at approximately the age of 24, which became his "drug of choice". [13]
In 2020, Mr Preca also used methylamphetamine on 10-15 occasions, in a "binge fashion". [14] He told Dr Seidler that he developed a heavy dependence on cocaine, such that he would abuse Valium at times to help him sleep. On one occasion when he was at work, he had suicidal thoughts about jumping from a crane.
Mr Preca had periods of abstinence and attended meetings of Narcotics Anonymous in 2020. Despite occasional relapses, by July 2020, he had reached 70 days of sobriety which his partner described as "the longest he had ever been sober". [15] On one occasion when he relapsed, his drug use became "worse than ever", [16] and he stopped attending Narcotics Anonymous. He acquired a drug debt of $60,000.
Dr Seidler opined that Mr Preca's reported history was consistent with symptoms of attention deficit disorder, general anxiety disorder, and substance use disorder, the latter being contributed to, at least in part, by the two former conditions. The sentencing judge found that Mr Preca's addiction to cocaine provided some explanation for his involvement in the offence, although did not excuse his conduct.
Mr Preca told Dr Seidler that he had not used drugs while in custody and that he was attending Narcotics Anonymous meetings. When speaking with Dr Seidler, Mr Preca displayed insight into his offending and expressed remorse. Dr Seidler opined that Mr Preca appeared genuine.
The material relied upon by Mr Preca, including the testimonials, his employment whilst in custody, and the positive reports contained in the case notes of Corrective Services, supported the opinion expressed by Dr Seidler. Her Honour was satisfied that Mr Preca had good prospects of rehabilitation and was unlikely to re-offend.
With respect to each applicant, the sentencing judge acknowledged the continuing restrictions in custody, as a result of the COVID-19 pandemic. The applicants have been in custody since August 2020, at a time when personal visits were suspended. Personal visits had not recommenced at the time of sentencing. With respect to Mr Giles-Adams, the sentencing judge noted that he has a medical condition that renders him at an increased risk of developing blood clots. For a period before he was vaccinated, his medical condition caused him anxiety.
In sentencing each applicant, the sentencing judge took into account the difficulty of detecting offences of this type and the devastating effect that drugs have on the health and well-being of members of the community. General deterrence was given "substantial weight". [17] Ultimately, her Honour concluded that there was little to distinguish between the applicants in terms of their roles, their subjective cases, and prospects of rehabilitation.
Section 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act NSW") mandates the application of the sentencing discount for guilty pleas for offences dealt with on indictment in accordance with the discounts prescribed in that section. Section 22A of the Sentencing Act NSW permits a Court to impose a lesser penalty having regard to the degree to which the administration of justice has been facilitated by an offender. Clearly, they are two separate provisions requiring, where relevant, discrete application.
However, the requirement, in the appropriate case, to take into account both the utilitarian value of the plea of guilty and the mitigatory effect of the offender's willingness to facilitate the course of justice, is not simply a product of discrete statutory provisions. The utilitarian value of a plea of guilty is conceptually different from a willingness to facilitate the course of justice.
In Baden v R [2020] NSWCCA 23 ("Baden") at [16], Bell P (as his Honour then was), made the following observation:
"In Cameron, Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused's "willingness to facilitate the course of justice" which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount."
Subsequently, the Court held in Chuang at [18]:
"[A]lthough as a mitigating factor willingness to facilitate the course of justice should be established on the balance of probabilities, it should not be assumed that the existence of a strong prosecution case necessarily diminishes the factor to any particular extent. The court should state if it is satisfied that the plea was motivated partly or largely by the inevitability of conviction, or that no finding can be made."
In Bae v R [2020] NSWCCA 35 ("Bae"), the Court was dealing with an appeal against sentence imposed for offences contrary to the Criminal Code Act 1995 (Cth). The appeal related to the sentencing judge's purported error of failing to have regard to the utilitarian value of the plea of guilty in accordance with s 16A(2)(g) of the Crimes Act. Although the Court was dealing with the nature of a discount for the utilitarian value of the plea of guilty in the context of the Commonwealth Crimes Act, the Court was assisted by decisions of this Court explaining the concept of utilitarian value of a guilty plea concerning State offences: see R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1; R v Thomson; R v Houlten (2000) 49 NSWLR 383; [2000] NSWCCA 309.
The Court held that the identification of the utilitarian value of a plea of guilty involved an objective assessment to be undertaken for the purpose of s 16A(2)(g) of the Crimes Act. If an offender has demonstrated contrition involving the facilitation of the course of justice, this may be taken into account in the offender's favour on sentence in accordance with s 16A(2)(f). This aspect falls on the subjective side of factors which involves an enquiry as to the attitude of the offender and an assessment of contrition: see Bae at [55].
It follows that whether an offender is being sentenced for a Commonwealth or a State offence, the utilitarian value of a plea of guilty and the willingness of an offender to facilitate the course of justice, are conceptually different. The former is an objective factor that should be quantified. The latter is a subjective factor that does not require quantification but may operate to mitigate the sentence as part of the process of instinctive synthesis.
Although an offender's willingness to facilitate the course of justice is closely related to the concepts of remorse and contrition, there will be cases where it will be necessary for a sentencing judge to address each consideration. This is particularly so where discrete submissions have been made in support of separate findings with respect to the utilitarian value of the plea of guilty, remorse, and facilitation of the course of justice.
In the present case, notwithstanding that the pleas of guilty were entered in the face of a very strong Crown case, it was accepted by the Crown, at first instance, that the "timing of the pleas may be some indication on behalf of the offenders to facilitate the course of justice and to accept responsibility for their actions".
The sentencing judge was alive to the conceptual differences between the utilitarian value of a plea of guilty and facilitation of the course of justice, as reflected in her Honour's remarks on sentence when sentencing Mr Chan. Mr Chan's plea of guilty was entered at a late stage in the proceedings, after he was committed to the District Court but before the matter was listed for trial. In sentencing Mr Chan, her Honour said: "[w]hile I recognise this was a strong Crown case, I have reduced the otherwise appropriate sentence by 20% for the utilitarian value of the plea to the criminal justice system and as indicating an acceptance of responsibility and a willingness to facilitate the course of justice" (emphasis added). In Mr Chan's case, notwithstanding the late plea of guilty, a significant discount was applied to take into account the separate concepts of remorse and willingness to facilitate the course of justice.
I do not accept the respondent's submission that it was open to her Honour to find that there was an insufficient evidential basis to support the assertion of a willingness to facilitate the course of justice, such that no mitigation on this basis was warranted. In the context of this case, where submissions were made in support of such a finding, and the Crown's concession that the timing of the pleas "may be some indication on behalf of the offenders to facilitate the course of justice", had the sentencing judge rejected the submission, it would have been necessary to state so expressly. So much was conceded by the respondent during the hearing of the appeal. [20]
Clearly, the concepts of remorse and the facilitation of the course of justice are often overlapping. I recognise all too well that sentencing judges are often called upon to consider and digest voluminous material, including submissions, in providing ex tempore reasons or in producing remarks on sentence over very short periods of time. The observations of Adamson J in Baker v R [2022] NSWCCA 195 ("Baker") at [73] are apt. The sentencing discretion requires more than a "tick a box" process or a mechanistic approach. For instance, in a given case, a sentencing judge might comprehensively refer to the evidence about an offender's remorse, such that it can be discerned that the sentencing judge took into account his/her facilitation of justice, notwithstanding an absence of express reference to it. However, in this case, the absence of any reference to the applicants' facilitation of the course of justice, in circumstances where that factor was discreetly addressed and conceded by the Crown at first instance, and where the same sentencing judge alluded to it in sentencing Mr Chan, constitutes error.
I am satisfied that ground 1 of the appeal has been made out.
The applicants pointed to the absence of any agreement in the agreed facts (Exhibit B), or otherwise between the parties, as to what acts were undertaken as part of the "attempt" offence, or, with the requisite fault element to establish the offence.
The applicants submitted that it was not open to the sentencing judge to find that the applicants became involved from mid-May, a finding that was "instrumental" in assessing the applicants' roles at the "intermediate level" within the enterprise.
Secondly, the sentencing judge is said to have erroneously taken into account, in a global fashion, the acts perpetrated by both applicants in assessing the objective seriousness of the offence.
Thirdly, in circumstances where almost nothing was known about the enterprise, it was submitted that it was not open to the sentencing judge to make a finding as to where the applicants' roles fell within the enterprise.
Fourthly, the finding that the applicants were motivated by an offer of "a very substantial reward" was said to be speculative.
The respondent submitted that there was no error in relation to the assessment of objective seriousness. The respondent contended that, in light of the relevant agreed facts, the only reasonably available inference is that the applicants undertook acts connected to their ultimate offending from at least mid-May 2020.
The respondent submitted that the sentencing judge did not take into account factors only attributable to Mr Giles-Adams when assessing the role of Mr Preca, and vice versa, when assessing the objective gravity of the offending. Rather, the sentencing judge identified each of the acts undertaken by each applicant in determining that each played a role falling into the intermediate level in the enterprise.
The plurality in Olbrich at [19], [22], considered the distinction between "couriers" and "principals", in the context of a case where more than one person connected with the importation of drugs is charged:
"If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did.
…
It would have been wrong for the primary judge to sentence the respondent on the basis that he was the mastermind (or even an important member) of some larger criminal enterprise. But the primary judge did not do so. He sentenced the respondent as if the respondent had told the police and the court nothing about the circumstances of the event at all."
Relying on Olbrich, the Court in R v Lee [2007] NSWCCA 234 (McClellan CJ at CL with whom Howie and Hall JJ agreed) said at [25]:
"Just as inappropriate emphasis on the amount of the drug imported may lead a sentencing court into error so may problems emerge when a sentencing court attempts to categorise the role of the offender in the criminal enterprise. The problem is that in most cases the full nature and extent of the enterprise is unlikely to be known to the sentencing court. This difficulty is apparent in the present case where the nature of the enterprise in Hong Kong and the respondent's role in that enterprise is little understood. The application of labels or classification of offenders eg "courier" or "principal" may obscure the assessment of what the offender did leading to an erroneous sentencing process: see Olbrich [19]."
Consideration of the roles of the applicants, and thereby the objective seriousness of the offence, involves an assessment of the involvement of the applicants in the steps taken by each to effect the importation.
It is necessary to address each of the four constituents of this ground in turn. The dates particularised on the Court Attendance Notice identify the period of offending to the discrete period between 13 and 15 August 2020. The statement of agreed facts set out various acts undertaken by each applicant outside of the relevant date period. Although there was no agreement in that document, or, it would appear, between the parties at first instance, as to what acts were undertaken as part of the offence, the assessment of each applicant's responsibility was not, in this case, limited to the two dates particularised. As Mr Game SC, on behalf of Mr Preca, accepted during oral argument, "working out responsibility is a broader question than that".
It is unfortunate that her Honour's findings that each applicant was involved in the preparation for the offence from at least mid-May was couched in terms of probability. Any finding of fact relied upon to aggravate the objective seriousness of an offence must be made to the requisite standard of beyond reasonable doubt. I take her Honour's use of the term "probably" as simply indicating that whilst satisfied to the requisite standard that each applicant was involved for about three months in the preparations, she was not satisfied beyond reasonable doubt as to the precise date each became involved.
It was open to her Honour to find beyond reasonable doubt that each applicant was involved in the preparation for the offence over a period of about three months prior to the commission of the offence. Mr Preca registered and paid for a long-range VHF marine radio course on 13 May 2020, which he completed on 26 May 2020. He made enquiries between 24 and 28 July 2020, using his personal mobile phone, with respect to binocular and night vision equipment stores.
The first recorded location of the Garmin GPS, found on the Coralynne, was on 15 May 2020 at Crows Nest, at a time when Mr Giles-Adams' mobile phone was being used at Crows Nest. On 11 July 2020, Mr Giles-Adams paid $1500 with the description "the Coralynne". On 31 July 2020, he purchased $388.47 worth of fuel for the vessel and paid $1195.30 to the Co-Op. On 7 August, he arranged for 24-hour access to the Coralynne.
On 9 May, 17 May, 29 May, 31 July and 7 August, both applicants' mobile phones were in the Newcastle area. Although the applicants shared an interest in motorcycle riding, it was open to her Honour to find, in light of the other circumstances that were established, that both of the applicants' presence in the Newcastle area on these dates was to facilitate preparations for the journey.
It was open in these circumstances for her Honour to find that each applicant became involved in preparatory acts in relation to the voyage to meet the Zhi Vu Yun for the purpose of taking possession of the drugs, from about mid-May 2020.
I do not accept the contention that in making this finding, her Honour somehow conflated the acts committed by each applicant or assessed the question by reference to a combination of their individual acts. Her Honour clearly identified the specific preparatory acts engaged in by each applicant. In addition, her Honour had regard to inferences legitimately drawn as to the occasions when the applicants were together in the Newcastle area. It was reasonably open to her Honour, having identified the acts committed by each applicant and taking into account the circumstances relevant to both, namely their mutual presence in the Newcastle area on occasion, to find that they were each involved in preparatory acts over a period of three months prior to the particularised dates.
I also reject the contention that it was not open to find that each applicant was motivated by an offer of a "very substantial reward". While the applicants were not aware of the precise quantity of the border-controlled drug, they were aware that the importation involved a substantial quantity of drugs. Each was motivated to participate in the offending because they had acquired significant drug debts. In these circumstances, it was entirely open to find that each applicant was motivated by a very substantial financial reward.
There was, however, very little, if anything, known about the criminal enterprise or the individuals responsible for the importation. There was no evidence of the identity of those who arranged the importation; the source of the drugs; any overseas counterparts who supplied the drugs; the identity of the principal or principals; the identity of those who recruited the applicants and Mr Chan; or the method by which the applicants received their instructions.
The respondent conceded that little was known about the overall enterprise, namely, how the Zhi Vu Yun ultimately came to meet the Coralynne in the Australian Exclusive Economic Zone off the east coast of New South Wales and the transfer of over 1.5 tonnes of cocaine, or precisely what was intended to be done with the drugs upon docking at Newcastle.
While it was open to her Honour to find that the applicants were not at the lowest levels or the highest levels of whatever enterprise or organisation was involved, it was not open to find that the applicants' roles fell within "an intermediate level in this enterprise", insofar as that characterisation was referring to specific roles in a determined hierarchy. In light of the marked disparity between the pre-discount terms of imprisonment of the applicants compared to Mr Chan, it seems to me, that in characterising the applicants' roles as being at an intermediate level, her Honour was making a finding about where the roles of the applicants fell in a determined hierarchy. This was not a finding that was open on the limited information available.
The applicants ought to have been sentenced on the basis of what each actually did in the commission of the offence. Each applicant undertook acts to prepare for the voyage and engaged in a two-day voyage to meet with the Zhi Vu Yun in an attempt to import a substantial quantity of a border-controlled drug. Although Mr Adam-Giles arranged for 24-hour access to the Coralynne on 7 August 2020, he did not purchase the vessel. The evidence did not establish that either applicant was a conduit between those who may have been low level participants and the principals or managers of the enterprise.
It was open to her Honour to reject the submission that the applicants fulfilled low level roles in the enterprise. Having regard to the acts each undertook over a period of about three months, it was open to find that the applicants' criminality sat above that of Mr Chan, who was sentenced on the basis that he became involved in the enterprise on 7 or 8 August 2020. However, without knowing the role of those who sat at the higher and lower levels of the enterprise, it was not open to find that the applicants fulfilled "intermediate" roles.
I am satisfied that ground 2 is made out.
In sentencing Mr Chan, the sentencing judge assessed his role vis-à-vis that of the applicants as follows:
"A significant aspect of the sentencing exercise is an assessment of this offender's role and a comparison between what he did and what his co-offender did.
The facts identify that the Galaxy A11 mobile phone associated with the offender was first being used on 7 August and from 8 August 2020 recorded date usage in locations which mirrored the location data of the offender's personal mobile.
…
As the facts make clear, but it has not been necessary to include the extensive details in these remarks, the co-offenders were involved over a lengthier period of time, both probably from at least mid-May 2020 and performed tasks in preparation for the voyage over the ensuing months.
Overall, this offender's role was at a significantly lower level than the co-offenders.
…
Because of this offender's lesser role as previously outlined and the greater involvement in the preparation by the co-offenders, including the more lengthy period of time of their participation, namely months rather than days, a significantly lower sentence must be imposed." [21]
It may be accepted that the subjective cases of each offender were relevantly identical. While the sentencing judge found that Mr Chan would be isolated because of his lack of contacts and the fact that he is not a native English speaker, [22] the sentencing judge also accepted that restrictions on visitors, as a result of the COVID-19 pandemic, would not have the same impact on him as they would on Mr Giles-Adams and Mr Preca. [23] Furthermore, unlike Mr Giles-Adams and Mr Preca, Mr Chan did not previously suffer from drug addiction. [24]
It follows that any disparity must be justified by reference to differences in the objective cases. The statement of facts tendered in Mr Chan's proceedings was relevantly identical to that tendered in the applicants' sentencing proceedings. [25]
Having regard to the analysis conducted above, the applicants engaged in preparatory acts over a period of three months prior to the particularised offence. There was, however, nothing to distinguish between the roles that each offender played during the two-day voyage. Even accepting that the applicants' criminality sat above that of Mr Chan, the differences in roles did not justify such a marked disparity in the sentences.
The marked disparity appears to have been a result of her Honour's finding that the applicants' roles fell at the intermediate level of the criminal enterprise, that finding having been based on their longer involvement by way of preparatory acts. Having determined that it was not open to find that the applicants occupied roles as intermediates in the criminal enterprise, the marked disparity between the sentences is not reasonably explained by the degree of difference between the co-offenders. Put another way, the differences in sentences imposed on the applicants, compared to Mr Chan, are disproportionate to the relevant distinctions in the role played by each offender in the commission of the offence, such as to warrant appellate intervention.
For completeness, it is necessary to address the respondent's contention that intervening in these circumstances would reduce the applicants' sentences below a level where those sentences would be wholly inadequate. Having regard to the offence, namely, the attempted import into Australia of cocaine valued at approximately $300 million to half a billion dollars, and the criminality of the offenders, with the result being an affront to the proper administration of justice: see Rees v R [2012] NSWCCA 47 at [50]; Green at [33].
This Court is not bound to intervene in the sentence imposed upon a co-offender if the sentence is manifestly inadequate and intervention would "produce a sentence [for the offender] that is disproportionate to the objective and subjective criminality involved": see Youkhana, Jerome v R [2011] NSWCCA 37 at [49] (R A Hulme J with whom Beazley JA and Hidden J agreed).
There has, however, been no Crown appeal against the inadequacy of the sentence imposed on Mr Chan. His markedly lower sentence has not been challenged. Having determined that there is a marked disparity in sentences, such to result in a justifiable sense of grievance on the part of the applicants, I am satisfied that the appeal must be upheld and the applicants re-sentenced.
The applicant has demonstrated remorse, has good prospects of rehabilitation, and is unlikely to re-offend.
Mr Preca relied upon three affidavits, in the event of re-sentence. In his affidavit sworn on 12 April 2023, Mr Preca stated that he has remained abstinent since his incarceration and has focused on improving himself. He has completed a Certificate II and Certificate III in hospitality and is currently completing a Certificate II in Business Studies. Mr Preca hopes that this course will allow him to enrol in a Bachelor of Business and Accounting at a university.
Mr Preca has worked as a sweeper at Parklea Correctional Centre. He commenced employment at the café when he was transferred to Macquarie Correctional Centre. These are trusted positions of employment within the correctional setting.
In his affidavit sworn on 11 April 2023, Mohammed Chahine, solicitor, summarised the contents of the Corrective Services documents which include case notes, certificates of achievement and academic transcripts, and records of Mr Preca's participation in accredited programs whilst in custody. The material confirms that Mr Preca has demonstrated a "great work ethic and willingness to learn new skills" and that "he is polite and respectful and follows workshop routine".
The applicant's mother confirmed that in the period between the applicant's arrest and 2022, the family was not able to have in-person visits with the applicant due to the restrictions in place as a result of the COVID-19 pandemic. In her conversations with the applicant, he expressed remorse; a commitment to his employment in custody; and a resolve to improve his skills through education.
The material establishes that Mr Preca has family support. He has remained abstinent whilst in custody and has successfully engaged in study and employment. The applicant has demonstrated remorse, has good prospects of rehabilitation and is unlikely to re-offend.
Ultimately, the objective and subjective cases are relevantly similar and do not warrant different sentences as between these two applicants. In light of their greater culpability, the starting point of the terms of imprisonment to be imposed will be higher than the starting point of the term of imprisonment imposed on Mr Chan. In each case, I am of the view that a starting point of 18 years imprisonment properly reflects the objective and subjective cases, including each applicant's willingness to facilitate the course of justice. It also has regard to the various purposes of sentencing, including, but not limited to, general and specific deterrence, denunciation and punishment.
When sentencing a federal offender to a term of imprisonment, there is no judicially determined norm or percentage for fixing the non-parole period. The non-parole period reflects the minimum period of actual incarceration that an offender must spend in full-time custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and an offender's subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 627-629; [1974] HCA 26; Hili v The Queen (2010) 204 CLR 520; [HCA] 45 at [44]; Bertilone v R (2009) 197 A Crim R 78 at [55]-[66].
The non-parole period fixed by the sentencing judge represented 58.8% of the total sentence. The non-parole period proposed following re-sentencing of the applicants will represent a similar, although not identical, ratio.
The starting point of 18 years imprisonment will be discounted by 25% to reflect the utilitarian value of the plea of guilty. The proposed sentences are lenient given the nature and circumstances of the offence and the substantial quantity of the border-controlled drug which was involved. However, the terms of imprisonment to be imposed on re-sentence are justified having regard to the application of the parity principle. The new sentences are appropriate in the particular circumstances of this appeal, having regard to the sentence that was imposed on the co-offender, Mr Chan.
I propose the following orders:
1. Grant leave to appeal to each applicant.
2. Allow the appeal in each case.
3. Quash each of the sentences imposed on 29 October 2021, and in lieu thereof each applicant is sentenced to a non-parole period of 8 years commencing on 15 August 2020 and expiring on 14 August 2028, with a balance of term of 5 years and 6 months, expiring on 14 February 2034.
4. Each applicant will be eligible for release to parole at the expiration of the non-parole period.