Jackson v R

Remarks on Sentence

1. Much of the Remarks on Sentence were taken up, as would be expected, with a summary of the circumstances of the offending and the subjective circumstances of the offender. Those matters have been dealt with sufficiently already.
2. The sentencing judge assessed the importation offence to be "a serious example of a very serious offence". [19] His Honour made clear that the above description was informed by a number of factors, including, amongst other things, the applicant's role; the quantity of drugs imported (547.71 kg of pure cocaine); the duration of the offending; and the applicant's motivation. Ground 1 of the appeal, as stated, challenges the sentencing judge's characterisation of the applicant's role.
3. The sentencing judge characterised the applicant's role as follows: "[13] The roles of the 2 offenders appearing for sentence today were not identical, Mr Jackson was more heavily involved, having a higher level of responsibility in the drug importation organisation which was responsible for this shipment. His role included co-ordination and logistics as well as recruitment of Mr Bath and Mr Lembke. He collected money to be used in this criminal endeavour and gave some of it to Mr Bath. He gave instructions to Mr Bath and Mr Lembke. It appears that he was the person within the organisation responsible for removing the drugs and getting them onto dry land for delivery to others. He provided encrypted mobile phones to Mr Bath and Mr Lembke and directed Mr Bath as to how the cocaine should be removed. [31] On the other hand Mr Jackson's role could be described as one which approached that of a middle manager in the operation. He did not do only what he was directed to do. He was able to exercise independent judgment as to who he would recruit to assist him. These were Mr Bath, Mr Lembke and a man named Leon. He was going to be paid the $3,000,000 and it was his job to divide up that payment. He was the person who supplied Mr Bath and Mr Lembke with their encrypted phones so that they could communicate securely with him, and also with other members of the syndicate, albeit in Mr Bath's case this was not terribly successful. [32] It is clear also that Mr Jackson held a position of some trust within the organisation. He was trusted to receive payment from whoever it was in Hornsby who was to receive 450 kilograms of cocaine, the sum of $15,000,000. And he was also trusted to hold onto the remaining 300 kilograms."
4. From the foregoing there are a number of aspects that should be stressed. First, the applicant's role included coordination and logistics as well as recruitment; he collected the money; he gave instructions to the co-offenders; he was responsible for removing the drugs and getting them onto dry land for delivery; and he provided encrypted mobile phones to each of his co-offenders.
5. Further, as is stated by the sentencing judge at [32] extracted above, the applicant held a position of trust within the organisation as a whole. Further again, his Honour described the applicant's role as one that "approached that of a middle manager in the operation" who was "able to exercise independent judgement".
6. There are a number of other relevant findings of the sentencing judge to which there is no challenge. These included some significant mitigating factors. The applicant pleaded guilty at the earliest opportunity and was entitled to a discount of 25% on that basis. [20] The applicant provided assistance for which a combined discount of 40% was provided, being a discount for the plea of guilty and the other matters to which the provisions of s 16AC of the Commonwealth Crimes Act apply.
7. The sentencing judge also held that the applicant had good prospects of rehabilitation; [21] the applicant accepted responsibility for his actions; [22] the applicant was, otherwise, of good character prior to the commission of the offences; [23] and concluded, on the principles of totality, that the extent of accumulation between the two sentences that were imposed upon the applicant should be modest and should involve a significant degree of concurrence, given the relationship between the two offences. [24]

Applicant's Submissions

1. In relation to Ground 1, much of the criticism of the sentencing judge focused on his categorisation of the applicant as "middle management". The applicant stressed that references to engaging in coordination, logistics and recruitment by the sentencing judge grossly exaggerated his actual role. Nor, according to the applicant's submissions, did the applicant give instructions to Bath and Lembke; they received instructions directly from the principals.
2. As to the retrieval of the drugs from the boat, the applicant submitted that he simply read out a message from the principals as to where the drugs were located and how they should be retrieved. The applicant had no involvement in sourcing the drugs or the boat and had no role in packing the drugs onto the boat or getting it to Tahiti.
3. The applicant's role was, according to his submissions, largely limited to the retrieving of the boat and its contents in Australia. His role was to cease on retrieving and delivering the shipment to a person nominated by his handlers in the syndicate. Further, the applicant acted on instructions in finding a skipper for the trip from Tahiti to Sydney and in retrieving the drugs from the boat on arrival for delivery to a third unknown party. The applicant stressed that he and his two co-offenders were expected to receive equal payments, of $1 million each, for their respective roles.
4. In relation to Ground 2 of the appeal, manifest excess, the applicant's submissions drew attention to the applicant's actual role; the contribution of non-exculpatory duress; the applicant's previous good character; his age (65) and his health. The applicant submitted that the sentence imposed was, in those circumstances, unreasonable and plainly unjust.
5. Further, the applicant submitted that the sentence imposed was "a crushing sentence" in all the circumstances particularly given that the applicant will be 76 years' of age when first eligible for parole and will have served his sentence in protection.

Consideration

1. As correctly identified by the sentencing judge, this is an extremely serious example of a serious crime. The legislature has determined the seriousness of the crime by fixing the maximum sentence as life imprisonment. As a consequence, a worst-case offence of this kind involves the most dramatic and serious sentence that courts can impose.
2. In determining an appropriate sentence, a sentencing court is required to synthesise the objective circumstances of the commission of the offence with the subjective circumstances of the offender and derive a sentence to be imposed that, in the discretion of the sentencing judge, best achieves the objects of sentencing.
3. The purposes of sentencing are well known. They were summarised by the High Court in Veen v R (No 2). [25] Those objectives are the protection of society; the deterrence of the offender and of others who might be tempted to offend; retribution; and reform. They include the desirability of rehabilitation and, most appropriately, the need to ensure that appropriate punishment is meted out as a reflection of the condemnation of the conduct in question.
4. No submission is made that the learned sentencing judge failed to have regard to all of the criteria necessary in fixing the sentence. [26] Nor is any submission put to the Court that the learned sentencing judge considered matters that were irrelevant to the exercise of discretion being undertaken. As indicated, two issues are raised: the characterisation of the applicant's role in the importation; and manifest excess.
5. At one stage, during the course of submissions to the Court, it was suggested that the characterisation by the learned sentencing judge did not reflect the characterisation by the Crown and was, in some sense, a characterisation of the applicant's position as one higher in the hierarchy of the offending than the Crown, itself, suggested.
6. There are some fundamental aspects to the exercise of the sentencing discretion of which parties should never lose sight. First, it is for the prosecutor, and the prosecutor alone, to determine the charge or charges to be preferred. Secondly, it is for the accused and the accused alone to determine the plea to be entered to the charges that have been preferred. Lastly, and most importantly for present purposes, it is for the sentencing judge, alone, to determine the sentence that should be imposed in order to achieve the purposes of sentencing, to which reference has already been made. [27]
7. In the exercise of the discretion to determine an appropriate sentence, a sentencing judge is required to determine facts and to characterise, in many instances, the role played by an offender in a criminal enterprise. In so doing, the sentencing judge is entitled to receive assistance from the Crown and Counsel for an accused/offender.
8. However, in appropriately characterising the role of an offender, a sentencing judge is not bound by the label ascribed to the offender's role by counsel. Nor, subject to procedural fairness, is a sentencing judge bound by a range of characterisations the ambit of which is determined by the submissions of the Crown on the one hand and the offender on the other. [28]
9. In fact, the Crown described the role of the applicant as the "principal in Australia". [29] This description is an accurate one.
10. The applicant chose the persons who were to work on the importation and, in doing so, chose them on the basis of their trustworthiness to him, their robust characters and, in the case of the skipper, and Lembke, their sailing skills. The applicant dealt with the principals overseas; took possession of the drugs; handled the money on behalf of the syndicate; determined the amount that would be paid to his co-offenders in Australia; and was responsible for holding $12 million for his principals, in relation to the first amount of drugs and holding the 300 kg of drugs for what would become a second sale.
11. There can be little doubt, in my mind, that the characterisation by the learned sentencing judge was open to him and correct, if not understated. Whether that characterisation is given the label the principal in Australia or middle management of the entire syndicate is of little consequence in determining the actual role played by the applicant in this importation.
12. In my view, Ground 1 of the appeal is without merit and must fail.
13. In relation to Ground 2, the applicant submits that the sentence imposed is manifestly excessive. The maximum sentence for an offence of this kind is life imprisonment.
14. Because of the level of discount, the starting point for the more serious offence in question was 32 years and 6 months and the overall effective sentence imposed for both offences was 19 years and 6 months head sentence, with a non-parole period of 12 years and 6 months. This is a significant sentence. It relates to two offences one, as stated, with a maximum sentence of life imprisonment, and the other with a maximum penalty of 15 years' imprisonment. Each can also carry a fine.
15. Having dealt with the submissions in relation to Ground 1 of the appeal, the applicant is unable to point to any identifiable error in the Reasons provided by the sentencing judge. Identifiable error arises where the sentencing judge acts on a wrong principle; has made a mistake of fact; a mistake of law; failed to take into account relevant consideration; or taken into account irrelevant considerations. [30]
16. As a consequence, the applicant relies upon manifest excess. Manifest excess is a subset of manifest error, which, in sentencing, exists when the result is unreasonable or plainly unjust. [31] It arises when, because the sentence imposed is plainly unjust or unreasonable, an appellate court comes to the view that there must have been error, even though the error is not identifiable. [32]
17. The sentencing judge evaluated the objective seriousness of this offence in a manner that was not only open to him, but was correct. It was a serious example of an offence of this kind. Further, the applicant's role in the offence was significant. Whatever label is placed upon that role does not obscure the assessment of the actual role played by the applicant. [33]
18. As stated in relation to the issues associated with Ground 1, the applicant's role was that of middle manager of the enterprise, or principal in Australia. The applicant's submission as to the proper characterisation of his role grossly understates his position in the enterprise and in Australia.
19. The applicant exercised independent judgement as to whom he would recruit; he coordinated the execution of the offence and organised the logistics; he recruited his co-offenders, and attempted to recruit another; he determined the amount to be paid to them; he collected the money to be used in carrying out the criminal enterprise; he gave instructions to his co-offenders; he was the person within the organisation responsible for removing the drugs and getting them onto dry land for delivery to others; he provided the encrypted mobile phones to the co-offenders; he directed the co-offender Bath as to how the cocaine should be removed; he was involved in the enterprise over a considerable period of time, commencing at the start of 2017; he had knowledge of the details and size of the importation, how it was to be distributed and the money involved; he was the repository of a significant degree of trust by those higher up in the syndicate in relation both to the possession of 700 kg of the drug and of $15 million in cash; and he exercised a degree of autonomy in fulfilling the role that he was given.
20. Over and above all of that, his motive was financial. He was provided with $3 million for his part in the organisation (20% of the amount received), which he divided amongst himself and his co-offenders as he decided.
21. Against that it is said there was a degree of non-exculpatory duress. I can imagine that such would be the case but the sentencing judge found that the threats were not a significant feature of his motivation. [34] His motivation was financial, but given that he was holding 700 kg of cocaine and $15 million in cash, at various stages, there can be little doubt that there would be some threat associated with ensuring his loyalty to the principals above him.
22. He is otherwise, or was otherwise, a person of good character. The sentencing judge found so and found him to be a caring person who does not otherwise have any of the characteristics of a person who would commit these sorts of crimes. This finding informed the sentencing judge's conclusion that the applicant had good prospects of rehabilitation, which the sentencing judge took into account. It also informed the sentencing judge's conclusion as to the effect of the threats. However, as has been noted on a number of occasions, prior good character is not an uncommon characteristic of persons involved in drug importation. [35] Prior good character may not always be given full weight in cases such as importation of drugs. [36]
23. The sentencing judge expressly applied principles associated with totality in sentencing. The learned sentencing judge imposed a sentence with a significant degree of concurrency and with what the sentencing judge described as "some small or modest accumulation". The six months accumulation, referable to the offence of the proceeds of crime, is both appropriate and available. It reflects the application of principle.
24. In relation to the applicant's health, it was taken into account by the sentencing judge and does not render the sentence imposed either plainly unjust or unreasonable. The factor relating to the health of the applicant, his age and what has been described by the applicant as a "crushing sentence" are matters that are appropriate to be dealt with as particulars of the one issue.
25. The applicant was, as has been stated, 63 years' of age at the time of the offence and 64 at the time that he was sentenced. The non-parole period will conclude on 14 May 2030, when the applicant will be 76 years' of age.
26. Nevertheless, it was the applicant's choice to commit an offence of such seriousness at a time in his life when any sentence that would be imposed would be lengthy. There was no delay between offending, charging and sentencing.
27. There is not an automatic discount on an appropriate sentence simply because a person may be relatively old when the person is first eligible for parole. However, the age of the applicant is a relevant factor, which the sentencing judge considered.
28. The advanced or more advanced age of an offender is relevant to sentencing in a number of ways. I refer to two only. First, it may render imprisonment more onerous than for someone younger.
29. Secondly, it may be relevant, in fixing an appropriate sentence, that the offender should have an opportunity for rehabilitation in the community at the conclusion of the sentence. Where the effect of a sentence is that it is unlikely that an offender will have any meaningful life after its conclusion, this may be an important consideration in the sentence to be imposed. [37] There are other bases for consideration of the elderly nature of an offender, but it is unnecessary to list them.
30. The age of the applicant was considered by the learned sentencing judge. Ultimately, it is necessary for the sentencing judge to impose an appropriate sentence. The serious nature of the offending conduct requires significant general deterrence.
31. At 76, when the applicant is first eligible for parole, he will, nowadays, likely have many years ahead of him in which to establish his rehabilitation. Fundamentally, the applicant must show that the sentence is unfair or plainly unjust. The fact, if it were the fact, that this Court may have exercised the sentencing discretion differently is an insufficient basis for interfering with the sentence imposed in the absence of the applicant showing a plainly unjust or unfair sentence.
32. This extremely serious offence involves more than 273 times the commercial threshold necessary for an offence of this kind. There are reasons why general deterrence and the need for punishment loom large. [38]
33. The applicant, at 63 years' of age, took the decision to become involved in an extremely serious offence. The fact that the imposition of an appropriate sentence has the result that the applicant will be 76 years' of age, when he is first eligible for parole, does not render the sentence imposed as other than appropriate.
34. The fact, if it were the fact, that any one of the members of this Court might have imposed a sentence that is different from that imposed by the sentencing judge, does not render the sentencing judge's exercise of discretion one that calls for intervention. There is more than one correct sentence.
35. The sentence imposed by the learned sentencing judge is neither plainly unjust nor unreasonable. It is not the sentence that is crushing; it is a sentence of some seriousness that was required to be imposed and any "crushing effect" is a result of the applicant deciding that, at his age and in his health, he would undertake criminal activity that required a sentence of that kind.
36. The second Ground of Appeal must also be dismissed. I would propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal be dismissed.

Endnotes

1. Appeal Book, pp 206-220.
2. Remarks on Sentence, at [3]-[12].
3. Agreed Facts, at [7(b)].
4. Appeal Book, pp 104-105; Tcpt, 11 December 2018, pp 35-36.
5. Tcpt, 11 December 2018, pp 44-47.
6. Tcpt, 11 December 2018, pp 25, 28, 53 and 56.
7. Tcpt, 11 December 2018, p 15.
8. Tcpt, 11 December 2018, p 59.
9. Tcpt, 11 December 2018, p 57(10-15).
10. Tcpt, 11 December 2018, p 17.
11. Tcpt, 11 December 2018, p 19.
12. Tcpt, 11 December 2018, pp 17, 20 and 21.
13. Tcpt, 11 December 2018, p 35.
14. Tcpt, 11 December 2018, pp 31, 35 and 55.
15. Tcpt, 11 December 2018, p 35.
16. Remarks on Sentence, at [18]-[19]; [33]-[36]; [45]-[51] and [54]-[55].
17. Remarks on Sentence, at [19].
18. Remarks on Sentence, at [47].
19. Remarks on Sentence, at [2], Appeal Book, p 192.
20. Remarks on Sentence, at [16].
21. Remarks on Sentence, at [51].
22. Remarks on Sentence, at [55].
23. Remarks on Sentence, at [51], this finding made despite the evidence provided as to an earlier attempt at similar offending.
24. Remarks on Sentence, at [43].
25. (1988) 164 CLR 465; [1988] HCA 14.
26. See, inter alia, s 16A of the Commonwealth Crimes Act.
27. GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22.
28. See, by analogy, Barbaro v the Queen; Zirilli v the Queen (2014) 253 CLR 58; [2014] HCA 2 at [7], per French CJ, Hayne, Kiefel and Bell JJ and, in particular therein, the reference to "bounds".
29. Tcpt, 11 December 2018, p 107, Appeal Book, p 176; Tcpt, 11 December 2018, p 102, Appeal Book, p 171.
30. House v The King (1936) 55 CLR 499; [1936] HCA 40.
31. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; House v The King, supra.
32. House v The King, supra.
33. The Queen v Olbrich (1999) 199 CLR 270 at 279; [1999] HCA 54.
34. Remarks on Sentence, at [40].
35. R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72], per Johnson J (with whom Macfarlan JA and RA Hulme J agreed).
36. R v Kassir [2020] NSWCCA 88 at [99].
37. R v Holyoak (1995) 82 A Crim R 502; Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18.
38. Wong v R (2001) 207 CLR 584 at 607-608; [2001] HCA 64.

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