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Parties: Ashley McLain (Applicant)
Rex (Respondent)

Representation: Counsel:
Mr E James (Applicant)
Mr A Chhabra (Respondent)
Solicitors:
Australian Criminal Law Group (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2024/00020453

Publication restriction: Nil

HEADNOTE

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

The applicant imported border-controlled drugs into Australia on 17 January 2024. She pleaded guilty to an offence contrary to ss 307.1(1) and 311.1(f) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of life imprisonment. In March 2025, she was sentenced in the District Court of New South Wales to a term of imprisonment of 6 years and 6 months with a non-parole period of 3 years and 6 months.

The applicant sought leave to appeal on four grounds:

Ground 1: The sentencing judge erred in assessing the objective seriousness of the offending;

Ground 2: The sentencing judge erred in finding that the applicant was not in a position in the drug importation organisation below the middle level;

Ground 3: The sentencing judge erred in the process of instinctive synthesis by affording excessive weight to considerations of general deterrence; and

Ground 4: the sentence imposed was manifestly excessive.

The Court (Boulten J, Payne JA and Rigg J agreeing) held, granting leave to appeal but dismissing the appeal:

As to Ground 1:

(1) The characterisation of the objective seriousness of an offence is not strictly a factual finding. It derives from factual findings which are all able to be assessed to determine if they are “reasonably open” or not. The sentencing judge’s characterisation of the offending, as being a “serious example”, was based on a combination of reasonably open facts: at [39]-[42] (Boulten J); [1] (Payne JA); [2] (Rigg J).

Hancock v R [2025] NSWCCA 213; Fisher v R [2026] NSWCCA 27, cited.

As to Ground 2:

(2) The impugned sentencing remark was not a positive finding at all. Rather, the sentencing judge was simply rejecting a submission advanced by the applicant. The sentencing judge properly refrained from making positive findings as to the applicant’s position in the organisational hierarchy as the evidence did not allow for it: at [48]-[50] (Boulten J); [1] (Payne JA); [2] (Rigg J).

Giles-Adams v R; Preca v R [2023] NSWCCA 122; (2023) 377 FLR 426, cited.

As to Ground 3:

(3) Considerations of general deterrence invariably play a prominent role in drug importation cases. It was entirely conventional that the sentencing judge recognised the importance of general deterrence and, at the same time, moderated its weight in light of the applicant’s reduced moral culpability. In all the circumstances, general deterrence did not dominate the sentence outcome: at [57]-[59]; [1] (Payne JA); [2] (Rigg J).

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, considered.

As to Ground 4:

(4) The principles relating to manifest excess are well established. In this case, the applicant’s head sentence and non-parole period are within the sentencing judge’s discretionary range of available sentences: at [67]; [1] (Payne JA); [2] (Rigg J).

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, cited.

JUDGMENT

1. PAYNE JA: I agree with Boulten J.

2. RIGG J: I agree with Boulten J.

3. BOULTEN J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on her by Judge Gallagher in the District Court on 28 March 2025 after having pleaded guilty in the Local Court to one count of importing a commercial quantity of a border-controlled drug into Australia on 17 January 2024 contrary to ss 307.1(1) and 311.1(f) of the Criminal Code Act 1995 (Cth). That offence carries a maximum penalty of life imprisonment.

4. After applying a 25% discount for the utilitarian value of the applicant’s early guilty plea, the sentencing judge imposed a sentence of 6 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months to date from her arrest on 17 January 2024. The applicant has been in custody since her arrest.

5. The applicant seeks leave to appeal against the sentence on four grounds, namely:

6. the sentencing judge erred in assessing the objective seriousness of the offending;

7. the sentencing judge erred in finding that the applicant was not in a position in the drug importation organisation below the middle level;

8. the sentencing judge erred in the process of instinctive synthesis by affording excessive weight to considerations of general deterrence; and

9. the sentence imposed was manifestly excessive.

The agreed facts

6. The applicant, a US national who normally resided in Prague, was 30 years old at the time of the offending. In late 2023 she spent some time in Mexico. On 15 January 2024, she departed Mexico City and flew to Sydney via Vancouver, Canada.

7. On 17 January 2024, at approximately 9:45am, the applicant arrived in Sydney, collected two bags from the baggage carousel and produced her US passport and incoming passenger card to Australian Border Force officers. From there, the officers escorted her to “barrier 25” in the Secondary Examination Area for a bag examination.

8. During the examination, the applicant told the officers she packed her own luggage. After inspecting her bags, the officers discovered that one of the bags, a duffel bag, had a false bottom containing five bags of powder. The applicant told the officers she had purchased the bag from a corner shop in Mexico, but she denied knowledge of the powder.

9. When the powder was analysed, it was found to contain 991.7 grams of methamphetamine, with a purity of 80.3%. The pure weight totalled 796.3 grams of methamphetamine. There were also 51 grams of pure ketamine, as well as 4.7 grams of pure MDA.

10. The applicant was arrested and conveyed to the Australian Federal Police Station at Sydney Airport where she participated in a recorded interview. Relevantly she told police she did not know how the drugs came into her possession. She explained that a man named “Caeser” paid for her return airfare to Australia without asking for anything in return. She also told police that her duffel bag went missing from about 7:00am until 1:00pm on 15 January 2024, while she was stopping over at Vancouver International Airport on her way to Australia.

Proceedings on sentence

11. On 28 February 2025 the sentence hearing took place. The Crown tendered a bundle of material comprising, inter alia, the Agreed Facts and the applicant’s criminal and custodial history, neither of which disclosed any previous convictions.

12. The applicant tendered a psychologist’s report from Mr Chafic Awit dated 19 February 2026 and letters to the Court prepared by herself, her grandmother and a childhood friend.

13. The applicant gave evidence at the sentence hearing. She described custody as a “living nightmare” and, aside from experiencing violence from other inmates, she gave evidence about the significant challenges associated with communicating with her family and friends; all of whom live overseas. For example, the applicant said during her examination-in-chief:

“… When I do speak to my family it’s quite expensive and my daughter is with her father and he will not allow me to speak to her because of where I’m at especially…

It was $5 a phone call at least to call my grandmother and if I tried to call anyone to arrange my matters in prog, like my storage or anything it was $9 a call. My closest friend, I called her, and it was $23 for just one call because her phone number is one that’s not quite used. My grandparents send me letters with pictures but it takes eight or nine weeks to get them, so it’s not really the easiest for us. Like, we can’t communicate that way regularly”.

14. Separately, the applicant confirmed she had undertaken courses in custody, such as the “Growth or Grief program”, the “Young Entrepreneurial program” as well as other basic and advanced digital literacy courses. However, she noted that some courses were unavailable to her because of her status as a non-resident and non-citizen of Australia.

15. Before the applicant was arrested and went into custody, she lived in Prague in the Czech Republic with her partner and his young daughter. Both she and her partner are single parents with daughters two years apart. Her own daughter also lived in the Czech Republic with the applicant’s ex-partner, who is the child’s father.

16. In cross-examination, the prosecutor questioned the applicant about the circumstances in which she travelled to Australia. Her evidence about how she became involved in the enterprise was not convincing. The applicant said, for example, that Caeser paid about $2,000 USD for the return airfare. The cross-examination that unfolded with respect to that evidence is pertinent, as follows:

“Q. Do you recall how much you paid towards the ticket?

A. I don’t. No, ma’am. I know that it was whatever cash I had on me at that moment but I don’t know the amount.

Q. And, what arrangement had you made for you to pay him back? Do you recall?

A. I don’t. No, ma’am. I just know that I paid part of it and I never leave debts with anybody so - but he wasn’t really in a big rush to get any money back from me at all which I did find a little bit weird but I just took it as [he’s] being nice and he doesn’t need the money, like – so—

Q. US$2,000 is more than being a bit nice, isn’t it?

A. Well, looking back, yes, ma’am, I agree but at the time I wasn’t thinking of this”.

17. Also in cross-examination, the prosecutor tendered the applicant’s record of interview with Australian Federal Police from 17 January 2024. That interview, as it turned out, revealed a number of inconsistencies with her sworn evidence in Court. For example, the applicant claimed to police that she purchased the duffel bag from a “little corner shop in Mexico City”. But in re-examination, after the applicant had been cross-examined about the circumstances of her trip, she said Caeser had given her the duffel bag. This is clear from the following re-examination:

“Q. You were asked in cross-examination about the bag, the circumstances surrounding the bag and then the trip to Australia. What can you tell the Court about the bag when it was provided to you in Mexico?

A. I may not have been fully honest with the police because as I said I thought that they had put – they had put me in handcuffs over the fact that there was a personal amount of drugs in my possession at the time, but I realise now, like, that was relevant to be honest, so I was given the bag by Caesar. I thought it was just one that he had laying around when he gave it to me and I just used it to put all my souvenirs and snacks that I brought from Mexico with me here so that I could take them back to my home. I didn’t purchase the bag”. (Emphasis added.)

18. She also told police in the recorded interview that, prior to being arrested, she was planning to meet another man named Luke Spencer inside the arrival hall at Sydney Airport. Apparently, they had been dating for about 6 months. But, again, the applicant acknowledged in her evidence that she had not been entirely honest with police in that recorded interview (as illustrated by the following cross-examination):

“Q. If you go to page 5 of [the transcript of the recorded interview with Australian Federal Police] and you’ll see on the left [there’s questions and then numbers…], and the question of interest is question 45 and the answer in response to that question.

A. Yes. I see I said, ‘Girlfriend’. I didn’t mean it as, like, a dating, dating. I should say – I should say – yes, I did say, ‘Girlfriend’ and, ‘Dating’, there.

Q. Then if you go to page 12 of that document, question 116, you were asked, ‘And, you’ve currently got a boyfriend? That’s correct?’ and your response was, ‘Yes. I was coming here to (indistinct) solidify this now, a really weird relationship’ and that was a reference to Mr Spencer, wasn’t it?

A. Yes, ma’am.

Q. So, the account that you’ve given in relation to your current partner, you accept that’s inconsistent with what you told police when you arrived at the time, isn’t it?

A. Yes, ma’am. I do. I didn’t see—

…

A. Miss, to answer your question, I wasn’t entirely truthful with the police on the nature of my relationship because I didn’t really want to tell them I was being a cheater, I guess, in a normal relationship with someone else…”.

(Emphasis added.)

19. The prosecutor continued to ask the applicant about her willingness to disclose details of her personal life to police, which is apparent from the cross-examination below:

“Q. Just returning to an answer you gave previously in response to some questions about your interview with the AFP, you gave a response that you didn’t want to give details about your personal life, that’s right isn’t it?

A. About my relationship with Chris. Yes. Like, I didn’t want them to see me as someone who’s cheating on my partner because that wasn’t the case.

Q. It’s the case that you did provide them with quite expansive details about your personal life in other respects, though, didn’t you?

A. Yes, ma’am.”

20. She did, though, remain steadfast about not knowing that drugs had been secreted in her duffel bag. But, as was eventually conceded in re-examination, she did have a “gut feeling” about her trip to Australia. The applicant’s evidence was relevantly:

“ … As I write in my letter to the Judge I am appalled that I didn’t recognise that there should’ve been red flags waving and I even had a gut feeling that I shouldn’t do this trip, I should just go home and I didn’t listen to that but looking back it all makes sense that there would’ve been drugs in my bag”. (Emphasis added.)

21. It was on the basis of this evidence that her Honour found that the applicant was reckless about the drugs’ presence in her duffel bag.

Remarks on sentence

Objective seriousness

22. In assessing the objective seriousness of the offence, her Honour noted the quantity of imported methamphetamine and that the applicant had also imported a quantity of both ketamine and MDA each of which exceeded the marketable quantity.

23. In what was a quite favourable finding for the applicant, her Honour did not consider the offending to be more serious in circumstances where three different types of drugs had been imported.

24. While the sentencing judge found that the applicant carried the drugs from Mexico to Australia, her Honour refrained from making any positive findings as to her precise role, or the roles of others, in the hierarchy of the importation enterprise. It is clear enough that her Honour did not regard the applicant’s evidence about her dealings with Ceaser in Mexico as reliable. Similarly, her Honour had problems accepting the applicant’s evidence about her relationship with the man who was meeting her in Sydney. Likewise, the applicant’s version about how she came to be in possession of the duffel bag and how she, as a resident of Prague, happened to be involved in a return journey from Mexico to Sydney via Vancouver, was unlikely to give her Honour confidence that the applicant’s account of her offending was reliable. In this regard, her Honour remarked:

“[t]he offender physically carried the drugs into Australia, hidden in a false bottom of her duffel bag. Nothing more is known about her role or about the role of others in the importation. Nothing further is known about her role – either whether she had any organisational role in arranging for the importation or what she was to do with the bag if it was undetected. I accept that her role to physically carry the bag exposed her to the risk of being detected. However, in the absence of other evidence I am unable to find that she had no real level of trust, knowledge or responsibility and was in a position in the organisation below the middle level. There is insufficient evidence before me as to the nature of the organisation or what role the offender played in it. (Emphasis added.)

25. After considering the evidence and the parties’ competing submissions, the sentencing judge was not satisfied to the requisite standard that the applicant knew she was importing drugs. Rather, and as foreshadowed earlier, her Honour made a finding of recklessness. This is apparent from the following sentencing remarks:

“Given the inconsistencies in the offender’s account of how she came to get the bag that had the drugs hidden in it in her interview with the police and her evidence in Court, I am not satisfied that she is being frank about how she came to get the bag and what she believed was the purpose of her trip to Australia. However, the evidence does not satisfy me beyond reasonable doubt that she knew that she was [importing] prohibited drugs. I am not satisfied that the fact is established by inference from the fact she carried drugs hidden in the lining of her bag and had in late 2023 been involved relatively small domestic supplies of drugs. In her evidence and by her plea, she accepts she was reckless to that fact. I accept that she was to receive some financial gain.

The evidence suggests that the offender participated in the importation from 13 January 2024 when she booked her flight, until she landed on 17 January 2024”.

26. The final observation her Honour made as to the objective seriousness of the offending was that it constituted “a serious example of an offence of this type”; a characterisation which is now challenged.

Subjective circumstances

27. As to the applicant’s subjective circumstances, the sentencing judge had regard to Mr Awit’s report which relevantly stated:

“ … [the applicant’s] mother would use anything she could find to beat her with. She was kicked out of the home multiple times from the age of ten (10). She recalls an incident where her mother broke a lamp over her head when [the applicant] was approximately eleven (11). By this stage, and calls she would make to the Police would be met with comments, such as, ‘we are not coming by unless someone has been murdered’. This was due to the frequent reports of abuse at home. By the stage [the applicant] was thirteen (13), her mother would regularly threaten to kill herself. This only further left many of the responsibilities of the home on her shoulders to handle. She reports attempting suicide on a number of occasions (two requiring hospitalisation) in her early developmental years, as well as being held at gun point on an occasion by her stepfather’s cousin.”

28. The sentencing judge seemingly accepted that the applicant may have been sexually abused as a child and that she had attempted suicide on a number of occasions. Her Honour factored in the applicant’s challenging upbringing and different mental health diagnoses, finding that the applicant had, at the time of offending, Post Traumatic Stress Disorder, Major Depressive Disorder and Substance Use Disorder, as well as having experienced a deprived childhood.

29. Relatedly, her Honour observed the important role of general deterrence in this case, but equally acknowledged the lesser role it had to play in light of the applicant’s subjective factors, observing:

“ ... [the applicant] has, and had at the time of the offence, a number of mental health conditions, PTSD, Major Depressive Disorder and Substance Use Disorder. In addition, she had a deprived childhood. The combination of those factors somewhat reduces her moral culpability and make her a somewhat less suitable example for general deterrence.” (Emphasis added.)

30. Her Honour then reinforced this finding by separately observing:

“ … the [applicant’s] moral culpability for the offence is reduced because she suffers from a number of mental health conditions, and she had a deprived childhood. As her moral culpability is reduced, she is a somewhat less suitable example for general deterrence.”

Remorse and prospects of rehabilitation

31. On remorse, her Honour observed:

“[the applicant] gave evidence before me. While her evidence about how she came to have the bag is somewhat unclear, I accept that she is genuinely sorry for having committed the offence and will take this into account. Her contrition is also evidence from her early plea of guilty, and that fact bodes well for her prospects of rehabilitation.”

32. The applicant’s early guilty plea resulted in a 25% discount in sentence to reflect the utilitarian benefit of the plea. Her Honour also factored into the sentencing exercise the applicant’s remorse and her facilitation of the course of justice.

33. Her Honour also made a separate finding that the “[applicant] has good prospects of rehabilitation” and that “[t]hose prospects will be further improved if she seeks treatment and attends programs to address her mental health conditions”.

34. Her Honour also found:

“ … the continuation of the separation between the [applicant] and her daughter is likely to have some detrimental effect on the [applicant’s] daughter’s emotional wellbeing, although the extent of that detriment cannot be determined by me in the absence of evidence.”

The ultimate sentence

35. The respondent submitted that no sentence other than imprisonment with a non-parole period was appropriate. The applicant acknowledged that imprisonment was inevitable but urged her Honour to impose the shortest period of custody that is required so as to enable her to return to the country of residence where her family and friends reside.

The Grounds of Appeal

Ground 1 – the sentencing judge erred in assessing objective seriousness

Submissions

36. The applicant’s complaint concerned the sentencing judge’s characterisation of the offending being “a serious example of an offence of this type”. The applicant submitted that the following facts and circumstances do not sit well with that characterisation:

37. that her Honour was not satisfied that the applicant knew that she was importing prohibited drugs but rather was reckless to the fact;

38. the quantities of ketamine and MDA fell well below the commercial quantity range;

39. the quantity of methamphetamine was in the commercial quantity range and was “substantial”;

40. the fact that there were three different types of border-controlled drugs did not make the offence more serious;

41. the applicant’s role exposed her to a risk of detention for some financial gain;

42. the period of involvement was confined to 5 days between 13 and 17 January 2024;

43. the importation was an isolated offence;

44. the applicant’s moral culpability was reduced by reason of her mental health conditions and deprived childhood; and

45. there were no statutory aggravating factors.

46. The respondent, on the other hand, submitted that her Honour’s characterisation was open and properly anchored in a series of proved facts, namely:

47. the applicant imported a commercial quantity of a border-controlled drug – a commercial quantity of pure methamphetamine in its own right, together with substantial further quantities of ketamine and MDA;

48. the drugs were concealed in the false bottom of a duffel bag, which the applicant personally carried from Mexico, via Canada, to Sydney;

49. the applicant gave inconsistent accounts about how she came to have the bag, ultimately giving evidence that it had been given to her in Mexico and that she thought it was a bag her associate “Caeser” had lying around (being an account her Honour was not satisfied was frank);

50. the applicant’s travel had been funded by another; and

51. the importation was motivated by financial gain.

52. Additionally, the respondent argued that the recklessness finding must be viewed in context and as a matter of degree. While this finding was of a less culpable fault element than was actual knowledge, the respondent contended that the features of the offending, as found by her Honour, placed the applicant’s degree of recklessness towards the higher end of the recklessness spectrum.

Consideration

39. This ground calls for an analysis of her Honour’s evaluative judgment about the seriousness of the offence. Although this is not strictly a factual finding, it derives from factual findings which are all able to be assessed to determine if they are reasonably open or not. [1] If so and provided there are sufficient reasonably open foundational facts to allow for a proper characterisation of the offence’s seriousness, the sentencing judge’s characterisation should not be lightly overturned. [2]

40. In considering this ground, it must be firmly borne in mind that the assessment of objective seriousness is “quintessentially for the sentencing judge”. [3] As Spigelman J observed in Mulato (at [37]):

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion”.

41. Justice Simpson (also in Mulato) provided (at [46]):

“The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding of the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."

42. Her Honour’s use of the “serious example” characterisation cannot be said to be erroneous per se, even though similar expressions of objective seriousness being on a scale have been criticised for vagueness or imprecision. [4] In this instance though, overall, her Honour’s characterisation of the offending was based on reasonably open facts. By analysing the sentencing remarks, it becomes apparent that a combination of factors (or, as the respondent put it, a series of “proved facts”) underpinned her Honour’s characterisation. The quantity of drugs imported, the fact that the applicant carried the drugs in a false-bottomed bag all the way from Mexico to Australia via Canada and the applicant’s motivation of financial gain, all suggested that it was open to characterise the offending as her Honour did.

43. While, some mitigating features lessened the objective seriousness of the offending, the more significant mitigating features bore upon the applicant’s moral culpability rather than the objective seriousness of the offending. Ultimately, nothing precluded her Honour from characterising the offending as being a “serious example”.

44. Accordingly, this ground is not established.

Ground 2 – the sentencing judge erred in finding that the applicant was not in a position in the drug importation organisation below the middle level

Submissions

45. By this ground of appeal, the applicant challenged the sentencing judge’s following remark:

“However, in the absence of other evidence I am unable to find that she had no real level of trust, knowledge or responsibility and was in a position in the organisation below the middle level. There is insufficient evidence before me as to the nature of the organisation or what role the offender played in it.” (Emphasis added.)

46. According to the applicant, this finding was not reasonably open given that no evidence was adduced about the structure of the drug importation enterprise or the applicant’s precise role within it. The applicant contended that the state of the evidence, or lack thereof, constrained the findings that her Honour was properly able to make.

47. Whereas the respondent submitted that the impugned statement was not a positive finding about the applicant’s role within the hierarchy of the enterprise but rather, her Honour was simply rejecting a “mitigating” submission the applicant made for want of evidence.

Consideration

48. The respondent’s submissions on this issue should be accepted. The impugned statement was not a positive finding at all. The sentencing judge simply rejected the applicant’s submission, made in written submissions, that the applicant had no “real level of trust, knowledge or responsibility … [and] was not at the top, upper or even mid-level of the hierarchy of the organisation”. Her Honour, quite rightly, did not adopt that position because the evidence did not allow for it.

49. Consistently with Yehia J’s observations in Giles-Adams v R; Preca v R [2023] NSWCCA 122; (2023) 377 FLR 426 (“Giles*-Adams*”) at [116] (with whom Wright and Chen JJ agreed), it would not have been open to the sentencing judge to find that the applicant fulfilled a position below the middle level of the hierarchy without evidence as to the role of those who sat at higher and lower levels of the enterprise. Yehia J specifically observed in Giles-Adams:

“[i]t 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’”. (Emphasis added.)

50. Accordingly, her Honour’s approach was entirely orthodox. Without other evidence concerning the structure of the drug importation enterprise and given the applicant’s unreliable evidence about her connections with the man in Mexico, the man in Sydney, and the circumstances that led her into the scheme, her Honour properly refrained from making positive findings as to the applicant’s precise role or responsibilities. Other findings, such as the applicant having “physically carried the drugs into Australia”, were not findings as to the applicant’s position in some hierarchy; rather, they simply described the applicant’s conduct. This ground also has not been established and it should be dismissed.

Ground 3 – the sentencing judge erred in the process of instinctive synthesis by affording excessive weight to considerations of general deterrence

Submissions

51. This ground rests on a supposed contradiction in the sentencing judge’s reasoning. The applicant asserted that her Honour declared that general deterrence played an “important role” in this case yet simultaneously found that the applicant was a less suitable vehicle for general deterrence in light of her subjective factors. These two propositions were said to be pulling in opposite directions.

52. It followed, in the applicant’s submission, that excessive weight was given to general deterrence. Or, looked at in reverse, insufficient weight was given to the applicant’s causative mental health diagnoses and her abusive childhood experiences.

53. The respondent argued to the contrary, submitting that her Honour’s approach was conventional and precisely in line with what the authorities require. The respondent considered that her Honour simply applied the necessary considerations of general deterrence and then, in the very next passage of the sentencing remarks, calibrated its weight downwards by having regard to the applicant’s reduced moral culpability.

Consideration

54. This ground of appeal raises a “threshold difficulty” concerning contended grounds that plead that a sentencing judge gave too much weight or too little weight to a sentencing factor. In Harkin v The Queen [2020] NSWCCA 242 (“Harkin”), Hoeben CJ at CL (with whom Button and N Adams JJ agreed) observed (at [44]-[46]):

“[44] There is a threshold difficulty in not only this ground of appeal but in the other grounds of appeal in that they all refer in varying degrees to ‘not adequately taking a matter into account’, ‘not giving adequate weight to a factor’ and ‘failure to further apply the principle of totality in favour of the applicant’. Implicit in all of those grounds of appeal is an acceptance of the fact that the relevant principle was applied by the sentencing judge and that the complaint made is that insufficient weight was given to it.

[45] The effect of pleading grounds of appeal in that way was to convert the appeal to one raising manifest excess and to require the establishment of House v R (1936) 55 CLR 499; [1936] HCA 40 error before the particular ground or grounds could be made out.

[46] It follows from the above observation that the principles applicable to a claim for manifest excess apply to these grounds of appeal…”.

55. The problems arising from this ground of appeal have been recognised for some time. Chief Justice Spigelman observed as much in R v Baker [2000] NSWCCA 85 (“Baker”) when his Honour provided (at [11]):

“The use of terminology such as ‘sufficient weight’ highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of ‘weight’ will justify intervention by an appellate court are narrowly confined.”

56. The applicant in this case has invited the Court to find a legal error on the basis that the sentencing judge afforded excessive weight to considerations of general deterrence, giving rise to the same issues identified in Harkin and Baker. In these circumstances, the principles that apply to appeals of manifest excess apply. So, it is convenient to return to the oft-cited summary of principles laid out by RA Hulme J in Obeid at [443] (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed), as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

· Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

· Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

· It is not to the point that this Court might have exercised the sentencing discretion differently.

· There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

· It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

57. In drug importation cases like this one, considerations of general deterrence invariably play a prominent role because of the “great social consequences that follow from its commission”. [5] In that context, it was unremarkable that her Honour found that general deterrence played an important role in sentencing the applicant, notwithstanding the relevant subjective factors that needed to be considered as well. It was entirely conventional to recognise the importance of general deterrence and at the same time moderate its weight in light of the applicant’s reduced moral culpability.

58. The applicant, though, asserted that general deterrence dominated the sentencing outcome, despite her Honour acknowledging the reduced need for it. This was said to have been reflected by her Honour expressly characterising the objective seriousness of the offending as a “serious example”. So, it was argued that her Honour’s approach was inconsistent with Bell CJ’s remarks in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (“Totaan”) at [75] (Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing), where his Honour provided:

“ … The need for general deterrence in any given case, however, must always be assessed by reference to the personal circumstances of the offending and which may have operated on the offender. Here there was domestic abuse, no doubt contributed to by the gambling addition of the Applicant’s partner.”

59. Her Honour’s sentencing approach was entirely consistent with Bell CJ’s remarks in Totaan which ought not be understood as standing for the principle that general deterrence ought not be afforded significant weight when there is evidence that an offender’s personal circumstances mitigate the ultimate penalty to be imposed. Anyway, in no way could it be concluded that general deterrence “dominated” this sentence outcome. While her Honour recognised that general deterrence was important, she also made it clear that the applicant’s mental health conditions and her deprived childhood operated to reduce her moral culpability and, therefore, to reduce the need somewhat for emphasis on general deterrence.

60. This is evidenced not only from her Honour’s express sentencing remarks, but also through the ultimate sentence itself. The sentence imposed was within the range of available sentences and the non-parole period was quite favourable to the applicant. This third ground of appeal should be rejected.

Ground 4 – the sentence imposed was manifestly excessive

Submissions

61. The applicant contended, by this fourth and final ground, that the applicant’s sentence was manifestly excessive because of the following factors:

62. the seriousness of the offending conduct and what the applicant actually did in the importation did not represent a serious example of an offence of this kind (ground 1);

63. the applicant had no prior convictions before the offending and generally had favourable prospects of rehabilitation;

64. general deterrence was of some relevance but not to the extent that her Honour had regard; and

65. there were Bugmy and De La Rosa findings. [6]

66. The respondent disagreed and pointed to the “very heavy practical burden” placed on applicants who assert such a ground of appeal. [7] The respondent argued the existence of the following matters meant that the applicant had not overcome its heavy burden:

67. the offence carries a maximum penalty of life imprisonment;

68. the applicant imported 796.3 grams of pure methamphetamine, being 46.3 grams above the commercial quantity, together with 51 grams of pure ketamine and 4.7 grams of pure MDA;

69. the applicant physically carried those drugs from Mexico to Sydney via Canada in a false-bottomed duffel bag;

70. the applicant was to receive some financial gain; and

71. the applicant’s level of recklessness was high.

Consideration

63. The complaint of manifest excess does not raise a question of what the appellate court thinks is the correct sentence. Nor does it raise a question of how the appellate court might have exercised the sentencing discretion. It is instead for the applicant to satisfy the appellate court that the sentence imposed was unreasonable or plainly unjust. Absent misapplication of principle, which was asserted but rejected in the first three grounds, the applicant must establish that the sentence was so far outside the range of available sentences that there must have been some error.

64. The applicant pointed to the JIRS statistics in an endeavour to make good this ground but for well-articulated reasons often previously cited, the statistics are a blunt instrument with very little capacity to demonstrate the applicable range of available sentences. [8]

65. The respondent pointed to six “instructive decisions” which were said to be “illustrative”. Even from among such a limited pool of cases it is clear that there is a significant range of available sentences within which sentences for offences of this type are imposed. One of these illustrative cases, R v Onyebuchi [2016] QCA 143, involved a 29-year-old first offender who was involved in the importation of 791.9 grams of pure methamphetamine who expected to be rewarded with a $10,000 loan to assist his business. He was regarded as someone operating at a level higher than a courier. Like the applicant, Mr Onyebuchi travelled overseas to take steps to organise the importation which arrived in Australia from China secreted in a foot massager. At first instance he received seven years imprisonment with a non-parole period of three and a half years. That sentence was increased after a Crown appeal to one of nine years with a non-parole period of four and a half years.

66. That case does not provide the applicant with any comfort. Indeed, nor do the New South Wales’ decisions that the respondent relied upon, although most of them involved greater quantities of drugs than this case.

67. The applicant’s head sentence and the non-parole period are within the sentencing judge’s discretionary range of available sentences. The non-parole period, especially, gives effect to a number of her Honour’s favourable findings. This fourth ground of appeal should be dismissed.

Conclusion and orders

68. The orders that I would make are:

69. Leave to appeal is granted.

70. Appeal dismissed.

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Endnotes

Hancock v R [2025] NSWCCA 213 at [72]-[74]; Fisher v R [2026] NSWCCA 27 (“Fisher”) at [69]-[82]; see also Edwards v R [2026] NSWCCA 15 (“Edwards”) at [73].

See Kirk JA (Fagan and Yehia JJ agreeing) in Fisher at [76].

Mulato v R [2006] NSWCCA 282 (“Mulato”) at [46] (per Simpson J); see also Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [446].

Sharma v R [2017] NSWCCA 85 at [64]; Daher v R [2026] NSWCCA 26 at [4]-[14].

Tak Fat Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [64] (per Gaudron, Gummow and Hayne JJ).

These are references to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)]; TH v R [2025] NSWCCA 121 at [5]; LK v R [2025] NSWCCA 143 at [82].

See Edwards at [119].