So, in this case we really have a situation where we have a person who performed a very limited role, but an important role, and he's pleaded on that basis that he was the safekeeper of the phone which itself had an important part to play in the importation. That's his role, no more, no less, and for a period of time, I might add, given the between dates alleged in the indictment. It's not just on a single (indistinct) for some time. So that could be seen to be a limited, I would not say a minor role, it's an important role, but a limited role, and a role which does not involve any great agency in the sense that he's not organising anything, he's not giving anyone directions or anything like that. It might be thought that in fact he's receiving direction from someone else higher up in the organisation.

At the other end of the spectrum is the weight of the drugs which, far from being limited or at the lesser end of the spectrum, is very high, 266.25 kilograms, 532.5 times the applicable commercial quantity. So, we have those two factors. ...

1. The judge described the applicant's offending as follows:[9]

Your offending was a serious example of a serious offence because you assisted in the importation of over 530 times the commercial quantity of MDMA. This is a huge amount. In pleading guilty you admitted to being aware that there was a substantial risk that a border-controlled drug was to be imported, and whilst there is no evidence that you knew the quantity involved, you must have realised it was a commercial enterprise. You were not naïve to drug offending and the significance of quantities as you were on bail at the time for trafficking what was in fact over a commercial quantity of methylamphetamine, albeit you ultimately pleaded guilty to a trafficking simpliciter charge. In safekeeping the phone you played an important, if limited, role in diverting attention away from your associates and allowing them to distance themselves from the importation. You were clearly a trusted member of the team.

1. Citing Nguyen and Phommalysack,[10] the judge observed that, as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.
2. Understandably, the respondent and the judge in this case largely focused on the 'huge amount' of MDMA that was imported. In our view, however, the weight of the drugs imported should not be regarded as the chief factor informing the exercise of the sentencing discretion in the present case.
3. Wong[11] involved the importation of not less than a commercial quantity of heroin. The NSW Court of Criminal Appeal, in setting 'guidelines' for sentencing those knowingly involved in the importation of illicit drugs, attributed chief importance in fixing sentence to the weight of the drugs. So much was held by the High Court to be a departure from fundamental sentencing principle. Gaudron, Gummow and Hayne JJ observed:[12]

In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted.

The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle.

First and foremost, as the Court of Criminal Appeal recognised in its reasons, a judge sentencing an offender for being knowingly concerned in the importation of narcotics must give effect to Pt 1B of the Commonwealth Crimes Act [1914]. The sentencer must, therefore, 'impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence': s 16A(1). Standing alone, the reference to imposing 'a sentence ... of a severity appropriate in all the circumstances of the offence' might be read as directing the sentencing judge to determine a sentence proportionate to the wrongdoing without regard to considerations of rehabilitation or incapacitation of the offender or the offender's prior criminal history. But s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only 'the nature and circumstances of the offence' but also matters such as the degree to which the offender has shown contrition (s 16A(2)(f)), the offender's 'character, antecedents, cultural background, age, means and physical or mental condition' (s 16A(2)(m)) and 'the need to ensure that the person is adequately punished for the offence' (s 16A(2)(k)). What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. There is no statement of the kind found, for example, in the Sentencing Act 1991 (Vict) (s 5 ) of the purposes for which sentences may be imposed, and there is no statutory requirement which obliges a sentencer to give particular weight to one or other of those purposes in sentencing certain kinds of offender. Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command.

1. The applicant, now aged 28, was aged 25 years at the time of the offending. He grew up in inner suburban Melbourne. His parents, both Lebanese, separated when he was aged 13 years. He completed the Year 12 Victorian Certificate of Applied Learning, but has a limited work history. His wife of some ten years recently miscarried in the early stages of pregnancy as a result of the stress caused by the applicant's arrest.
2. In her sentencing remarks, the judge noted that prison has 'not been easy' for the applicant because he was 'moved between different correctional facilities and [has] spent time in protection', which the applicant assumes was to do with his co-offenders. Recently, the applicant has been working as a meal billet, and has completed a number of courses in custody relating to cleaning, warehousing, civil construction, traffic control, construction safety and baking. We accept that the applicant's time in custody has been more burdensome because, as his counsel in this Court put it, he has been kept in 'management' and 'lock-up' units. We also accept that, by doing courses and having a job, the applicant has spent his time in custody productively.
3. The applicant's criminal history began in 2017. At the time of the present offending he had no previous convictions for drug offences. On 23 March 2023, however, he was convicted of trafficking amphetamine, obtaining property by deception and attempting to obtain property by deception, being sentenced to a total effective sentence of 18 months' imprisonment. These offences were committed between September and November 2019 (that is, prior to the present offending between August and October 2022). Whilst it is, of course, an aggravating feature that the applicant was on bail when he committed the instant offence,[14] it is also important when fixing sentence - in recognition of the principle of totality - to take into account in a broad and practical way that while remanded in custody for the present offending he was also in custody for State offences of trafficking amphetamine and obtaining (and attempting to obtain) property by deception.
4. As we have indicated, the applicant offered to plead guilty at an early stage. By doing so he facilitated the course of justice and avoided the need for a trial. Given its timing, he was entitled an additional 'discount' because it alleviated some of the strain on criminal court lists arising from the pandemic. There was also evidence that the applicant had at least some degree of remorse.
5. Further, the applicant's role, as the respondent acknowledged, was very limited. It consisted of him holding a telephone, and releasing it on a single occasion for use by an unidentified co-offender. Precisely what he gained (financially or otherwise) from his participation is uncertain,[15] although he told an assessing psychologist that in return for holding the phone 'he was being supplied with drugs for his own use'. The judge rejected that explanation as implausible and was correct in doing so. In the circumstances the inference is irresistible that the applicant sought to gain in some material way from his offending. His willingness to hold, and make available, the phone was of material assistance to others engaged in the criminal activity.
6. Bearing in mind that sentences imposed in other cases are not binding precedents;[16] and that sentencing statistics and 'comparable' cases (so-called) do not define the range of available sentences, nor place a cap on the upper or lower ranges of a possible sentence,[17] one of the sentencing cases provided by the respondent to the judge as 'comparable', Kassir,[18] possesses some parallels to the applicant's case.
7. Kassir was a Crown appeal against sentence. The respondent had pleaded guilty in the NSW District Court to aiding, abetting, counselling or procuring the commission of the offence of importing of a commercial quantity of a border controlled drug, methamphetamine. When an employee of DHL Global Forwarding Limited (Australia) Pty Ltd ('DHL'), the respondent had provided 'an insider's knowledge of the operations within DHL, supplemented by liaising with staff as required', to assist unknown others to import from Taiwan an air cargo consignment containing approximately 166 kilograms of pure methamphetamine (that is, 221 times the commercial quantity, 750 grams). The sentencing judge described the respondent as 'a facilitator', who 'was aware that there was a significant amount involved. Finding that the offence fell within the mid-range of objective seriousness, the sentencing judge imposed a sentence of eight years' imprisonment, with a non-parole period of five years and six months. The NSW Court of Criminal appeal found the sentence imposed at first instance to be manifestly inadequate. Despite the respondent's good character and prospects of rehabilitation, considerations of general and specific deterrence demanded that a more substantial sentence be imposed. Allowing the appeal, the Court substituted a sentence of 10 years' imprisonment, with a non-parole period of six years and six months.
8. Factually, Kassir may be distinguished from the present case in that the sentencing judge in that case considered that the respondent had 'excellent prospects of rehabilitation' and was 'unlikely to reoffend'. Further, the quantity of drugs imported was 221 times the commercial quantity, as opposed to 532.5 times in the present case. Unlike the present applicant, however, who had a 'very limited role', the respondent in Kassir was found by the sentencing judge to be 'a facilitator', who 'had a direct role' in facilitating the consignment. Notwithstanding the differences in facts between the two cases, however, one is able to gain a general impression from Kassir as to the level of sentences that previously have been thought to be appropriate for the offence of aiding, abetting, counselling or procuring the commission of the offence of importing of a commercial quantity of a border controlled drug.
9. Axiomatically, every sentence must be the product of the individual features of the particular case. The sentencing Court must intuitively synthesise the circumstances of the offence and of the offender, including those features that aggravate the commission of the offence and those that mitigate, in order to arrive at a sentence that is just and proportionate. Balancing the various factors bearing on the exercise of the sentencing discretion discussed above, a number of which pull in different directions, we would impose a sentence of 11 years' imprisonment on the applicant, and fix a non-parole period of seven years.

1. The application for leave to appeal against sentence should be granted; the appeal should be allowed; the sentence imposed by the sentencing judge should be set aside; and, in lieu, the appellant should be sentenced to 11 years' imprisonment, with a non-parole period of seven years.

[1] Criminal Code (Cth), ss 11.2(1) and 307.1(1). The maximum penalty is life imprisonment.

[2] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344 ('Worboyes').

1 The Learned Sentencing Judge erred in proceeding on the basis that 'little if any concurrency' would have been warranted if the Applicant had been sentenced for the present offence and the previous 'fraud and drug' offending at the same time.

3 The sentencing discretion has miscarried as a result of the Learned Sentencing Judge's approach to the Applicant's subsequent convictions and/or prior offending.

4 The Learned Sentencing Judge erred in finding that:

(a) this was a serious example of a serious offence; and

(b) the Applicant's moral culpability was very high.

5 The sentencing discretion miscarried as a result of:

(a) the provision by the Prosecution of a table of sentences in cases which bore no resemblance to the Applicant's case; and

(b) the Learned Sentencing Judge's regard to that table of cases.

[4] Criminal Procedure Act 2009, s 280(1).

[5] Criminal Code (Cth), s 301.10; Criminal Code Regulations 2019 (Cth), reg 5D, sch 4, item 128.

[6] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344.

[7] O'Neal v The King [2024] VSCA 129.

[10] Nguyen and Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673, 682 [34](6) (Maxwell P).

[11] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 ('Wong').

[12] Ibid, 607-08 [64] (footnotes omitted).

[13] Ibid, 609-10 [70]-[71] (footnotes omitted). See also Pham v The Queen [2015] HCA 39; (2015) 256 CLR 550, 563 [37] (French CJ, Keane and Nettle JJ), 564 [45] (Gageler and Bell JJ) ('Pham').

[14] See Tseros v The King [2023] VSCA 179 [30], fn 20, and the case there cited (Priest and Macaulay JJA).

[15] See R v Olbrich (1999) 199 CLR 270, 277-8 [14] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

[16] Wong, 605 [57] (Gaudron, Gummow and Hayne JJ); Pham, 560 [29] (French CJ, Keane and Nettle JJ); see also 564-5 [46]-[47] (Bell and Gageler JJ).

[17] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428, 445 [51]-[53] (Kiefel CJ, Bell and Keane JJ).

[18] R v Kassir [2020] NSWCCA 88 ('Kassir').