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Category: Principal judgment

Parties: Keyin Ma (Applicant)
Rex (Respondent)

Representation: Counsel:
T Jackson (Applicant)
A McGrath (Respondent)
Solicitors:
Duchan Legal (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00202643

Publication restriction: Nil.

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Mr Keyin Ma, sought leave to appeal against a sentence of imprisonment for 6 years, with a non-parole period of 3 years and 6 months. The applicant pleaded guilty to one count of importation of a border-controlled drug, namely 5,621.5g of methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth).

The proposed grounds of appeal were: (1) The sentencing judge erred in not giving a discrete and identifiable discount for his assistance to authorities; and (2) the sentencing judge erred in the instinctive synthesis process.

The Court (R A Hulme AJ, Stern JA and Dhanji J agreeing) held, dismissing leave to appeal:

There is no requirement to provide a discrete and quantified discount for prior assistance to authorities pursuant to s 16A(2)(h) Crimes Act 1914 (Cth). It was sufficient that the sentencing judge stated he would take the applicant’s assistance into account.

The sentencing judge’s remarks are entirely consistent with adoption of the instinctive synthesis approach. There is no indication that the sentencing judge adopted a “two-tiered” or staged approach.

JUDGMENT

1. STERN J: I agree with R A Hulme AJ.

2. DHANJI J: I agree with R A Hulme AJ.

3. R A HULME AJ: Keyin Ma applies for leave to appeal against a sentence of imprisonment for 6 years, with a non-parole period of 3 years and 6 months imposed by his Honour Judge McHugh SC in the District Court at Sydney on 14 March 2025.

4. The applicant pleaded guilty to importing a commercial quantity of a border controlled drug at Mascot on or about 24 June 2023. The offence is contrary to s 307.1(1) of the Criminal Code (Cth) and the maximum penalty is life imprisonment. The applicant imported a total pure weight of 5,621.5g of methamphetamine which is about 7.5 times the commercial quantity prescribed for that drug (750g).

5. The proposed grounds of appeal are:

6. His Honour erred in not giving a discrete and identifiable discount for assistance to authorities.

7. His Honour erred in the instinctive synthesis process.

8. A third ground of appeal alleging the sentence was manifestly excessive was abandoned at the hearing.

The offence

7. The applicant departed Sydney on 15 June 2023 and flew to Johannesburg with carry-on baggage but no checked luggage. When he arrived back in Sydney on 24 June 2023, he had in his possession two checked-in suitcases. He told an Australian Border Force officer that the suitcases were not his but were for a friend, “David”. He told the officer he did not pack them and did not know what was in them. He said David had asked him to pick them up from a hotel in South Africa and that David had booked the hotel and flights for him.

8. He agreed to a request to provide the PIN code for his mobile device. When it was unlocked by the officer, there was an active call with a contact named, “David Sydney”. The officer terminated the call.

9. The suitcases were secured with combination locks and the applicant said he did not know the combination. After the suitcases were forced open, they were found to contain seven black hippopotamus statues. When told that testing of the statues’ contents had returned a presumptive positive result for methamphetamine, the applicant mumbled the words, “I was getting diamonds.”

10. The applicant’s case was to the effect that he had been duped by “David” into agreeing to smuggle diamonds. He was told that when he was in Johannesburg, he would be taken to visit a diamond mine, or that someone would bring rough diamonds to the hotel for his inspection. However, these plans were cancelled after he arrived, and he was told to stay in his hotel for his safety due to deteriorating security concerns in Johannesburg at the time. The applicant began to feel suspicious, and more so when two men came to the hotel with the suitcases. They refused to allow him to see inside them. They took him to the airport and watched him until he had checked-in the luggage and walked through security.

11. Counsel for the applicant submitted the offending fell at the lower end of the scale of objective seriousness. The sentencing judge accepted this, finding that the objective seriousness was “significantly below the midrange”. In this regard, he took into account various matters, including that the applicant was reckless in that he was aware there was a substantial risk the suitcases contained border-controlled drugs. His Honour accepted there was no evidence the applicant was involved in concealing the drugs in the suitcases, or that he was aware of the nature or quantity of the drugs.

The applicant’s personal circumstances

12. The applicant was aged 50 at the time of sentencing. He was married with two teenage daughters. There was nothing about his background, upbringing, or mental state that reduced his moral culpability.

13. He had no prior convictions and the sentencing judge accepted he was otherwise a person of good character. A 25% discount was allowed for the utilitarian value of his early plea of guilty. His plea also contributed to a finding that he was remorseful.

14. The judge acknowledged the importance of general deterrence in drug importation cases but said the need for specific deterrence was tempered because of the applicant’s low risk of reoffending. His Honour was satisfied there were good prospects of rehabilitation.

15. The adverse effect incarceration of the applicant had upon his family, was also taken into account with his Honour remarking, “he is not there to give his family the support, with the young family, that they would otherwise need”.

Ground 1 – error in not giving a discrete and identifiable discount for assistance to authorities

16. Counsel for the applicant referred to the following passage in the remarks on sentence relating to the need to take into account pursuant to s 16A(2)(h) of the Crimes Act 1914 (Cth), “the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences”: [1]

I must also take into account under (h), the degree of cooperation, in effect, assistance for this offence or other offences. Before me is a confidential exhibit, which I have had regard to, a letter of assistance from the Australian Federal Police. I will not go into the matters that are set out there, but it does seem to me that Mr Ma immediately participated in matters seeking to assist this investigation. Ultimately, that was not successful, but it is noted that he has placed himself at some risk by providing the information, and ultimately his assistance was rated as low as it did not result in the initiation of new investigations. Nevertheless, it does have some intelligence which corroborates existing AFP intelligence holdings and so on and so forth. In those circumstances, it does have some assistance.

I was referred to a decision of Wigney J in the DPP (Cth) v Kawasaki Kisen Kaisha Ltd where a number of matters are set out that I have had regard to. In particular, I note that this early willingness to assist also denotes contrition, which the Crown accepts, and also that it is to be encouraged as it facilitates public interest, or, indeed, a public purpose, which the Crown also agrees with. It is also noted that there he has been exposed to some risk, and, ultimately, the fact that it was not of great utility as he did not know, because of his low position, I am not sure that that was necessarily a matter that I would downgrade that assistance.

The real factor here is that he was willing to assist, and in that sense his degree of cooperation could be assessed as high. Notwithstanding that the ultimate outcome was considered by the AFP to be low. That willingness was timely and pertinent, as characterized by Mr Johnston. It started the moment he was first asked by the AFP, and, indeed, is set out in this letter. In those circumstances, I will take into account that level of assistance.

17. Counsel for the applicant observed that nowhere in the remarks on sentence was there any mention of “how” the sentencing judge took the assistance into account. It was submitted that “the fact that the sentencing judge accorded it some weight, means there has to be an explanation as to how”, citing Weber v R [2020] NSWCCA 103 per Bellew J at [64]-[66].

18. It was also submitted that because the applicant had placed himself at some risk, a quantifiable discount was warranted, citing R v Sukkar [2005] NSWCCA 55 at [53] and Isaac v R [2012] NSWCCA 195 at [46].

19. In oral submissions it was accepted that the sentencing judge had in fact taken the applicant’s co-operation into account and had done so in the applicant’s favour. [2] Nevertheless, if a quantified discount was not provided, it was incumbent for the judge to indicate some alternative way in which it was taken into account, and an example was suggested of it being taken into account in setting the minimum period of imprisonment to be served by the offender. [3] Counsel frankly conceded that there was no authority for this submission. [4]

Consideration

20. There is nothing in the passage of the judgment of Bellew J in Weber v R that supports the applicant’s contention, even though in the paragraphs immediately following ([67]-[69]), it is at least implicit that his Honour was proceeding on the basis that co-operation with authorities would in the circumstances of the case before the court, be met with a discount on sentence. His Honour could not be taken to have been laying down any principle of broader application.

21. In R v Sukkar and Isaac v R, discounts were allowed for co-operation with authorities, but the applicant in this Court did not identify any statement of principle from those cases as pertinent to his complaint under this ground.

22. Section 16A(2)(h) requires a sentencing court to take into account the degree to which an offender has co-operated with law enforcement authorities in the investigation of the offence, or of other offences. It does not mandate that a discount be provided for such co-operation.

23. It has been observed in this Court that there is no binding requirement to provide a discrete and quantified discount for past assistance to authorities: Wei v R [2025] NSWCCA 150 at [39] (Free JA, Leeming JA and N Adams J agreeing); Lee v R [2020] NSWCCA 307 at [104]-[105] (Johnson J, Wright and Wilson JJ agreeing), both of which were concerned with sentencing for Commonwealth offences.

24. There is a need to provide a cautionary note. Both Wei v R and Lee v R cited R v Gallagher (1991) 23 NSWLR 220 at 226-230 as the authority for the proposition stated. That case concerned sentencing for both Commonwealth and State offences solely based upon common law principles. The proposition sourced from R v Gallagher should not be taken as applying to sentencing for State offences after the insertion in 2010 of sub-s (4) in s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW). Section 23(4) thereafter required quantification of discounts for both past and future assistance to authorities. The legislative provisions that apply for Commonwealth offences only require quantification of a discount where there is an undertaking to give evidence in the future: s 16AC, Crimes Act*.*

25. Counsel for the Crown also referred to DGF v The Queen [2021] WASCA 4, which concerned a sentence appeal for a Commonwealth drug importation offence. The Court (Buss P, Mitchell and Vaughan JJA) said at [55]:

The sentencing judge is not required to quantify a specific discount for past co-operation and may simply take the extent of past co-operation into account as part of the instinctive synthesis of all relevant matters.

26. Given the applicant accepted that his co-operation with law enforcement had been taken into account in his favour and that there was no statutory or general law requirement that the sentencing judge needed to say more, this ground has no merit.

27. Ground 1 is rejected.

Ground 2 – error in “the instinctive synthesis process”

28. The term “instinctive synthesis” in sentencing was first used in the High Court of Australia by McHugh J in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 in explaining why a “two-tiered” approach to sentencing was erroneous. His Honour said (at [13]):

In R v Raggett [(1990) 101 FLR 323 at 334-335; 50 A Crim R 41 at 52], Kearney J took the view that the correct approach to sentencing is to determine the sentence that is objectively appropriate for the offence and then discount it for mitigating factors. However, such an approach attempts to give the process of sentencing a degree of exactness which the subject matter can rarely bear. The better view of the sentencing process is that expounded in R v Williscroft [[1975] VR 292 at 300 where the Full Court of the Supreme Court of Victoria declared that "ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless ... to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination." (Emphasis added)

29. McHugh J is frequently quoted for his explanation in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (at [51]) of what “instinctive synthesis” means:

By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

Submissions

30. The error in relation to this ground was said to arise in the following passage of the remarks on sentence which were delivered ex tempore (which, with respect, may explain some infelicity of expression):

I have had regard to those other cases, but, nevertheless, each case will turn on its own facts. I have also had regard to the sentencing statistics. Clearly, the types of offending under this offence are of very wide circumstances and objective, and no doubt these were a blunt instrument as one does not necessarily know the objective or subjective circumstances, but they range from two and a half years, a very small percentage, as a term of sentence following a guilty plea for principal offences only, up to above 20 years. The great bulk appear to be between six and perhaps 12 or 14 years. The matters of five years or less fall down quite dramatically in terms of overall percentages. There is some 13% at six years and then they drop down to below 5% each for those matters underneath them. As I say, these were a blunt instrument.

31. The applicant’s submission concerning that paragraph was as follows:

It is submitted that in that passage his Honour was trying to fit it into the range as elucidated from the JIRS statistics. This is contrary to law. As was said in Zreika v R [2012] NSWCCA 44 at [46]:

The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to [what] is the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999.

Here, the sentencing judge has not engaged in the process of ‘instinctive synthesis’, rather [he] has assessed where the offending lay within the offending spectrum, and placed into a sentence accordingly.

Consideration

32. The applicant did not contend there was any error in the sentencing judge having regard to sentences imposed in other cases. The purpose and constraints involved in such an exercise have been explained in cases such as Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2; and Queen v Pham (2015) 256 CLR 550; [2015] HCA 39, each of which were cited by the sentencing judge.

33. The applicant’s submission takes a passage of the remarks on sentence out of context and makes a criticism of the sentencing judge that has no merit.

34. The remarks on sentence were in the following sequence:

Introductory matters. [5]

Summary of the agreed facts concerning the offence. [6]

Quotation from R v Eaton [2023] NSWCCA 125 at [60] concerning the determination of sentence being dependent upon an instinctive synthesis of various considerations. [7]

Discussion of submissions and aspects relevant to objective seriousness, culminating in announcement of the finding of “significantly below the midrange”. [8]

Discussion of various subjective matters, interspersed with findings made (see above summary under “Personal circumstances of the offender”), reference to matters required to be considered pursuant to s 16A(2) of the Crimes Act 1914 (Cth), and matters relevant to sentencing generally. [9]

35. It was at this point that his Honour said (as transcribed): [10]

The proper way to approach sentencing in Commonwealth offenders in the use of a previously decided cases to form the sentencing of a particular offender has been comprehensively addressed by the High Court in Hili v The Queen, Barbaro v The Queen, and R v Pham. I have taken those approaches into account and considered a number of cases, including those set out in annexure A to the helpful submissions of Mr Jordan [the prosecutor]. Ultimately, though, those matters were not of particular assistance, given that here this was reckless, that did not have knowledge and some of those cases certainly were people who were found to have had knowledge, and involve late guilty pleas.

36. His Honour then referred in some detail to one particular case (Abbas v R [2024] NSWCCA 228) but distinguished it by saying: [11]

So that is a case where the applicant had in effect said that they had purchased the bottles [in which the drug was concealed], unlike here where it was recklessness, as I have found.

37. His Honour then said what appears in the passage impugned by the applicant (see [31]).

38. That passage indicates two things as to his Honour’s approach:

(a) He referred to previously decided cases but said, “nevertheless, each case will turn on its own facts.” It appears from this that the cases were not found to be of much assistance to his Honour. (b) He had looked at some sentencing statistics but for this offence they “are of very wide circumstances and objective [sic]” and so they were a “blunt instrument” because nothing is known of the “objective or subjective circumstances” of the cases. Again, it appears they were not found to be of much assistance.

39. There is nothing in this passage that supports the applicant’s assertion that the sentencing judge was trying to fit the sentence “into the range as elucidated from the JIRS statistics.” Quite the contrary; it indicates his Honour had considered other cases to which he had been referred and looked at statistics but found them of little or no assistance.

40. More generally, the sequence and content of his Honour’s sentencing remarks are entirely consistent with adoption of the instinctive synthesis approach. There is no indication of a “two-tiered” or staged approach. It is patently clear that, adapting the words of McHugh J in Markarian v The Queen at [51], the judge identified all the factors relevant to sentence, discussed their significance and then made a value judgment as to the appropriate sentence.

41. His Honour even made specific reference to the instinctive synthesis approach. At an early state of his sentencing remarks he quoted from R v Eaton and at the end he referred to having taken into account various subjective matters in the applicant’s favour when “coming to a final synthesis view” in respect of the overall sentence and the non-parole period.

42. This proposed ground is misconceived.

Orders

43. Neither of the proposed grounds of appeal have merit.

44. I propose the following order:

45. Leave to appeal refused.

**********

Endnotes

ROS 11-12.

CCA T5.37.

CCA T5.25.

CCA T6.20.

Remarks on sentence (ROS) 1-2.

ROS 2-4.

ROS 5.

ROS 5-8.

ROS 9-14.

ROS 14.

ROS 14.