Chen, Chun Hung v R [2020] NSWCCA 60
Clarke v R [2015] NSWCCA 232
(2015) 254 A Crim R 150
DH v R [2022] NSWCCA 200
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
DL v The Queen (2018) 265 CLR 215
[2018] HCA 32
Dorsett v R [2024] NSWCCA 192
DS v R
Source
Original judgment source is linked above.
Catchwords
Chen, Chun Hung v R [2020] NSWCCA 60
Clarke v R [2015] NSWCCA 232(2015) 254 A Crim R 150
DH v R [2022] NSWCCA 200
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
DL v The Queen (2018) 265 CLR 215[2018] HCA 32
Dorsett v R [2024] NSWCCA 192
DS v RDM v R (2022) 109 NSWLR 82[2022] NSWCCA 156
Fraser v The King [2023] SASCA 74
Gibson v Regina [2019] NSWCCA 221
Giles-Adams v RPreca v R [2023] NSWCCA 123
Hampton v R [2014] NSWCCA 131(2014) 243 A Crim R 193
Hordern v R [2019] NSWCCA 138
House v The King (1936) 55 CLR 499[1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Milsom v R [2014] NSWCCA 142
Muldrock v The Queen (2011) 244 CLR 120[1974] HCA 26
R v NguyenR v Pham [2010] NSWCCA 238
R v O'Donoghue (1988) 34 A Crim R 397
R v Pham [2005] NSWCCA 94
R v Thompson [2005] NSWCCA 340(2005) 156 A Crim R 467
R v Walker [2023] NSWCCA 219
Refaieh v R [2018] NSWCCA 72
The Queen v Olbrich (1999) 199 CLR 270
Judgment (29 paragraphs)
[1]
Solicitors:
Miers Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2021/00145297
Publication restriction: Nil.
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 15 March 2024
Before: O'Rourke SC DCJ
File Number(s): 2021/00145297
[2]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant was sentenced in the District Court by O'Rourke SC DCJ on 15 March 2024 to a term of imprisonment of 15 years to commence on 22 May 2021 and expire on 21 May 2036 with a non-parole period of 8 years and 6 months due to expire on 21 November 2029. The applicant pleaded guilty in the Local Court to one count of conspiracy to import a commercial quantity of a border controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). A further offence was included on a Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth), being dealing with money or other property and intending that it become an instrument of crime, in an amount not less than $100,000, contrary to s 400.4(1) of the Criminal Code. The offences occurred by way of the applicant's involvement in the importation of 394.04 kilograms of methamphetamine as part of an international criminal syndicate. This represented an approximate street value of $312.5 million.
The applicant raised three grounds of appeal:
1. There was a denial of procedural fairness in that the sentencing judge made a finding adverse to the applicant without affording him an opportunity to be heard.
2. The sentencing judge erred in finding that the applicant's role placed him somewhere between the mid and senior levels of the syndicate.
3. The sentencing judge erred (a) in failing to take into account the applicant's willingness to facilitate the course of justice, or (b) in failing to explain in the reasons for judgment how the matter had been taken into account.
The Crown conceded that the error relied upon in ground 3 had been established and that the applicant would need to be re-sentenced afresh.
The Court held (per Hamill, N Adams and Coleman JJ), granting leave to appeal, allowing the appeal, quashing the sentence imposed by the sentencing judge and resentencing the applicant:
As to ground 1
The sentencing judge indicated to the applicant's then counsel that the Crown did not cavil with the applicant's expert evidence that there was a causal connection between the applicant's ADHD and the offending and that it had "some role to play" and the dispute was as to the extent of the reduction in moral culpability. Following that indication, counsel made no further submissions. The sentencing judge went on to find that she did not accept there was any "material" causal connection. The applicant was denied the opportunity to be heard on that finding: N Adams J at [123]-[126], Hamill J at [1], Coleman J at [181].
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32; Baroudi v R [2007] NSWCCA 48; Milsom v R [2014] NSWCCA 142; Chong v R [2017] NSWCCA 185, applied.
As to ground 2
The sentencing judge found that the applicant's position in the hierarchy was above mid-level management. Although there was ample evidence of his considerable involvement, the agreed facts did not allow a finding as to his actual position in the hierarchy. On balance, this factual error had the capacity to influence the result. Although ground 2 was upheld, the same finding of objective seriousness was arrived at for the purposes of re-sentence: N Adams J at [151]-[154], Hamill J at [1], Coleman J at [181].
R v O'Donoghue (1988) 34 A Crim R 397; AB v R [2014] NSWCCA 339; Pham v The Queen [2012] VSCA 101; R v Nguyen; R v Pham [2010] NSWCCA, applied.
As to ground 3
The applicant made three distinct submissions to the sentencing judge as to the significance of his early plea of guilty: that he was entitled to a discount for its utilitarian value, that it was relevant to his finding of remorse, and that it demonstrated a willingness to facilitate the course of justice. Although the sentencing judge addressed the first two of these submissions favourably to the applicant, she made no reference to the third submission. The Crown accepted that the failure to do so was an error: N Adams J at [85], Hamill J at [1], Coleman J at [181].
Giles-Adams v R; Preca v R [2023] NSWCCA 123, applied.
The Court re-sentenced the applicant to a term of imprisonment of 12 years to commence on 22 May 2021 and expire on 21 May 2033 with a non-parole period of 7 years and 6 months due to expire on 21 November 2028.
[3]
Judgment
HAMILL J: I agree with the orders proposed by N Adams J and with her Honour's comprehensive reasons. With respect to the controversy that her Honour discusses at [142]-[144], I remain of the view that Basten JA and I expressed by in Clarke v R [2015] NSWCCA 2; (2015) 254 A Crim R 150 and Hordern v R [2019] NSWCCA 138. I place particular, but not exclusive, emphasis on the reason provided by Basten JA in Hordern v R in the second and third sentences of [20]. However, as N Adams J explains and consistent with most cases that have come before the Court, the result is the same in the present case whichever approach is adopted.
N ADAMS 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 him in the District Court by Judge O'Rourke SC on 15 March 2024.
The applicant pleaded guilty in the Local Court on 24 October 2023 to one count of conspiracy to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). That offence carries a maximum penalty of life imprisonment. A further offence of dealing with money or other property, intending that it become an instrument of crime, in an amount not less than $100,000 contrary to s 400.4(1) of the Criminal Code was included on a Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth). That offence carries maximum penalty of 20 years imprisonment.
The applicant was sentenced to a term of imprisonment of 15 years to commence on 22 May 2021 and expire on 21 May 2036. The non-parole period of 8 years and 6 months will expire on 21 November 2029.
By way of overview, the applicant became involved in a significant importation of methamphetamine from South Korea as part of an international criminal syndicate. The offending took place over a period of approximately 13 months and involved the importation of 394.04 kilograms of (pure weight) methamphetamine representing an approximate street value of $312.5 million. The applicant set up a sham company of which he was the sole director. He also set up a sham company website and signed the lease of warehouse premises near Newcastle for which he made the rental payments in his own name.
The applicant was named as the consignee for the seven consignments to the sham company. Of those seven consignments, the first three were "dummy runs", the next two contained methamphetamine and were delivered and the last two, which also contained methamphetamine, were seized by police. The applicant was arrested on 22 May 2021 and has remained in custody since that date.
[4]
Agreed Facts
A very detailed statement of agreed facts was tendered at the proceedings on sentence. The sentencing judge summarised them but even her summary is necessarily lengthy. Given that ground 2 is directed at one of her Honour's findings of fact based on those agreed facts, is necessary to extract the facts found by her Honour in full.
[5]
Remarks on sentence: Summary of facts
The following summary is taken almost verbatim from the remarks on sentence.
In April 2021, the Australian Federal Police, the Australian Criminal Intelligence Commission and the New South Wales Police Force commenced an investigation code named Operation Ironside Rega. This operation was set up to investigate the illegal activities of a transnational serious organised criminal syndicate involved in drug importation, drug trafficking and money laundering activities. (Thereafter it was referred to as the Rega criminal syndicate.)
Following the resolution of Operation Ironside in early 2021, members of the Rega criminal syndicate, including the applicant and eight other co-accused, were arrested by the Australian Federal Police. They were involved in the illegal importation of approximately 500 kilograms of methamphetamine from South Korea to Australia. The applicant and the other alleged members of the syndicate organised a drug importation venture known as The Orient; The Orient venture involved members of the Rega criminal syndicate importing approximately 500 kilograms of methamphetamine into Australia from South Korea in multiple consignments containing heavy machinery.
In February 2021, two consignments containing approximately 270 kilograms of methamphetamine was successfully imported by the syndicate. These consignments were stored by the members of the syndicate after their arrival in Australia, and authorities seized the methamphetamine following the resolution of the investigation. Additionally, in May 2021, two further consignments containing approximately 230 kilograms of methamphetamine were imported from South Korea to Australia by the same syndicate; these consignments were detected and seized by authorities before they were able to be delivered. Members of this syndicate organised and discussed The Orient importation and other criminal conduct using an encrypted communication platform entitled AN0M. AN0M devices were relied upon by authorities during Operation Ironside as a form of surveillance methodology. Specifically, law enforcement agencies proliferated the AN0M devices into the organised crime community, both domestically and abroad, to monitor the communications under a computer access warrant.
In relation specifically to sequence 1, which is the drug importation offence, on 14 April 2020, Australian Engineering Machinery & Parts, AEMP, was registered as a business and an ABN was obtained. Their principal place of business was recorded as unit 10/7 Pambalong Drive in Mayfield West. The applicant was recorded as the sole director. AEMP had a website and it stated certain things that are included in the facts. The website provided a range of gloves and face masks that were purportedly for sale. Accordingly, and with reference to an underlined statement which was, "it is a long established fact that a reader will be distracted by the readable content of a page when looking at its layout", the website was created by the applicant in an attempt to avoid detection from the authorities and to maintain a legitimate purpose for its creation.
[6]
Proceedings on sentence
The proceedings on sentence took place on 23 February 2024. The Crown tendered a number of documents including the s 16BA Schedule, agreed statement of facts, the applicant's criminal and custodial history and the sentence assessment report ("SAR") dated 2 February 2024.
The following material was tendered on behalf of the applicant:
1. The report of Alison Cullen, psychologist, dated 3 February 2024;
2. The report of Dr Brook Burchgart dated 27 June 2019;
3. Letter of Christine McLaughlin dated 24 January 2024;
4. Letter of Wesley McLaughlin dated 1 February 2024;
5. Letter of Kate Gorman dated 16 February 2024;
6. Letter of Jennifer Mole dated 20 February 2024;
7. Character reference of Nathan Wrobel dated 16 January 2024;
8. Character reference of Dr Marcus Rodrigs dated 8 February 2024;
9. An apology letter from the applicant (undated);
10. A letter of support from Chris Hughes dated 19 February 2024;
11. A letter from Reverend Gerard Peter McCarthy dated 21 February 2024; and
12. Documents from Hunter Correctional Centre confirming the applicant's engagement in programs whilst in custody including his performance report in relation to participation in the Peer Mentor Program, engagement in psychology intervention and certificates of achievements; and the applicant's OIMS case notes.
The applicant did not give evidence at the sentence hearing.
The submissions made on behalf of the applicant before the sentencing judge focussed on the applicant's role in the importation relevant to the finding of objective seriousness (ground 2), the value of his plea given that it included a willingness to facilitate the course of justice (relevant to ground 3) and the significance of the expert evidence that there was a causal connection between the applicant's diagnosis of attention deficit hyperactivity disorder ("ADHD") and the offending (relevant to ground 1). I will refer to these submissions in more detail when considering each of the three grounds.
[7]
Remarks on sentence
Her Honour commenced her sentencing remarks by describing the offences, setting out the applicable maximum penalties and providing an outline of general principles of sentencing for federal drug offences and conspiracy offences. She then summarised the agreed facts in relation to the offending, which I have already extracted above.
[8]
Finding of objective seriousness
Her Honour noted the following factors as being relevant to the finding of objective seriousness:
1. The border-controlled drug was methamphetamine.
2. The conspiracy covered 13 months.
3. The motivation was clearly financial, including clearing of the applicant's drug debts and credit card debts.
4. The importation involved "around" 500 kilograms in four consignments, with three prior consignments as dummy runs, the last two consignments being intercepted by law enforcement.
5. The pure weight of the methylamphetamine was a total weight from the four consignments was 394 kilograms with an estimated street value of $312.5 million.
6. The applicant set up a fake company and website in furtherance of the conspiracy to import. He leased a commercial warehouse as a place to receive or store the border-controlled drugs, and he himself installed internal and external security cameras without the permission of the owner, at a cost of $44,000. He engaged a legitimate freight forwarding company, was their sole point of contact, communicated directly with them, provided any relevant documentation and directed them to deliver consignments to his warehouse. He also arranged and paid in cash for consignments 4 and 5 to be on-delivered to a separate warehouse in Cardiff.
7. Payments were made by the applicant from the business account to the freight forwarding company in an amount of around $114,000.
8. From 24 March 2021 the applicant used AN0M devices to communicate with other members of the conspiracy. He agreed with the co-conspirators to continue with the importation, despite being aware of police arrests.
9. The applicant "had money in the company" and received wages of around $2,000 to $3,000 per week if not more. At one stage, he received $30,000 as wages. Her Honour was satisfied beyond reasonable doubt that he received "well more" than the $100,000 submitted by defence.
10. The applicant made plans with the other co-conspirators about what to do if arrested, such as concocting an alibi, getting rid of cypher phones and absconding from Australia.
After identifying these relevant factors, her Honour went on to conclude the following with respect to the applicant's role and the objective seriousness of the offence (relevant to ground 2):
"I am satisfied beyond reasonable doubt that the offender knew about the nature of the substance that he was importing; it could not legitimately or realistically be stated otherwise. It is clear on the material before me that the offender played a critical role in the enterprise. Whilst he was not at the higher end, he had direct contact with them, he was entrusted to do a good deal of the logistics and arrangements concerning the four, or indeed the seven, consignments. It was sophisticated, well-organised and complex. I also note, however, that he placed himself at the most risk by having the false company, warehouse, et cetera, directly linked to him, which of course feeds into the actual hierarchy of the syndicate.
Whilst it is very difficult to place a label on it, the offender clearly played a far more significant role than a courier. He was trusted, and he was, to my mind, somewhere between the mid and senior levels of the syndicate itself.
In considering the significant amount of pure methamphetamine imported, the sophistication and methodology of the syndicate, the profit to be realised, the use of encrypted devices, the role played and the acts actually performed by the offender himself, the objective seriousness of the offence is significantly serious and well above the mid-range of objective seriousness. The offence on the schedule attaching to the principal offence is also a serious offence."
(Emphasis added.)
[9]
Subjective factors
Her Honour then described the applicant's subjective case as follows.
The applicant was born and raised in Newcastle. He is the only child of his parents' union and has two older step-siblings, a brother and sister, with whom he had no contact as a child; he only found his sister on Facebook ten years ago.
The applicant described his father, who left his mother when he was only a baby, as someone who lived a transient lifestyle, was unfaithful to his mother, and was a "bad gambler". He did not have much contact with him as a child, due to his father "never making much of an effort". He saw his father sporadically from the age of 9 to 10 (about a week a year) until he was 16 years old. In his twenties, the applicant reconnected with his father briefly following the birth of his eldest son.
The applicant described often being looked after by babysitters in in Housing Commission estate as a child, or by his maternal grandparents; his mother, as a single mother, always worked two jobs during his childhood. His memories of babysitters involve him being taken to the garage dumps to look for copper wires, which they would sell for cash and often having his legs wrapped by the frypan cord while in their care which he thinks was because he was a naughty child and would often get punished.
The applicant's grandfather was the only "father figure" he had when growing up. He attended his soccer matches and took him fishing. When his grandfather passed away, the applicant, who was 13 years old at the time, took his feelings of grief and loss out on his mother.
The applicant had some feeling of resentment feelings towards his mother as a child; he felt that she was there for him financially but not emotionally. As he grew up, he understood and appreciated how hard she worked as a single parent in order to provide him with a better life and a roof over his head.
The applicant's mother remarried when he was 28 years old. When that marriage resulted in divorce due to domestic violence, she moved in with him temporarily due to her fears for her own safety. The applicant's current relationship with his mother is described as "very supportive and loving".
Her Honour noted that the applicant has three sons aged between 11 and 19 from two prior relationships. His contact with his eldest son is regular but the contact with his two younger sons is intermittent due to an undisclosed issue between him and the children's mother. The applicant has a current partner and a stepdaughter with whom he was living prior to his arrest. He reported having been unfaithful in all of his intimate relationships, except for the most recent one with his now fiancée.
[10]
GROUNDS OF APPEAL
Given that the Crown has conceded error in relation to ground 3, I propose to consider that ground first.
[11]
Ground 3: The sentencing judge erred (a) in failing to take into account the applicant's willingness to facilitate the course of justice, or (b) in failing to explain in the reasons for judgment how the matter has been taken into account
[12]
Applicant's submissions
The applicant's case was that significant mitigation should have been afforded to him because he pleaded guilty in circumstances where all of his co-accused maintained pleas of not guilty whilst they awaited resolution of legal argument as to the admissibility of the AN0M messages. This was a separate submission to that concerning the discount for the utilitarian value of the plea.
It was submitted that the applicant's plea represented his preparedness to facilitate the course of justice and his level of contrition (s 16A(f) of the Crimes Act) and his prospects of rehabilitation (s 16A(n) of the Crimes Act).
Although the applicant accepted before the sentencing judge that the case was strong, it was submitted that it would not have been so without the AN0M recordings.
The applicant's contention was that the sentencing judge did not deal with the separate submission regarding his willingness to facilitate the course of justice; there is no reference in the reasons for judgment to this "key plank" of his case, namely that his plea showed a preparedness to facilitate the course of justice and warranted significant mitigation in the circumstances of the case.
Reliance was placed on the decision of Giles-Adams v R; Preca v R [2023] NSWCCA 123, discussed further below. It was submitted that it was necessary for the sentencing judge to address each consideration separately. It was submitted that an offender's preparedness or willingness to facilitate the course of justice is a recognised mitigating factor which he or she must establish on the balance of probabilities, and it is distinct from the utilitarian or objective value of a plea of guilty.
Three submissions were made regarding the decision of Yehia J in Giles-Adams v R; Preca v R considered below at [88]-[89]. First, it was noted that the reasons were not delivered ex tempore; the sentencing judge gave reasons and imposed sentence on 15 March 2024, having reserved judgment after the hearing on 23 February 2024. Secondly, her Honour did not comprehensively refer to the evidence about the applicant's remorse such that it can be discerned that her Honour took into account his willingness to facilitate of the course of justice notwithstanding an absence of express reference to it. Thirdly, the applicant's counsel made a discrete submission on the issue of his client's willingness or preparedness to facilitate the course of justice which was not addressed in her Honour's reasons.
[13]
Crown submissions
It was accepted that the Crown did not challenge the assertion before the sentencing judge that the applicant was the only accused arrested in Operation Rega to plead guilty to charges relying upon AN0M evidence. The Crown also accepted that it had submitted to the sentencing judge that the utilitarian value of the applicant's guilty plea attracted a discount of 25% but that the case against him was "very strong, if not overwhelming" and that, accordingly, his guilty pleas provided little if any additional subjective benefit in his favour in the absence of other evidence of contrition, acceptance of responsibility or a willingness to facilitate the course of justice.
The Crown accepted that it follows from the mandatory terms of s 16A of the Crimes Act that it is an error not to have regard to a relevant factor. The Crown also accepted that the sentencing judge did not refer to the applicant's willingness to facilitate the course of justice contrary to the principles in Giles-Adams v R; Preca v R.
It was conceded that the absence of any reference in the sentencing remarks to the applicant's willingness to facilitate the course of justice was a material error. Despite this, it was submitted that the applicant's choice to forgo the AN0M challenge does not give rise to any special or additional factor moderating his sentence for a number of reasons. It was submitted that a defence of a criminal charge (by way of legal argument or otherwise) is what an offender always forgoes when deciding to plead guilty. One reason for this is that taking such a factor into account over and above a willingness to facilitate the course of justice would require a sentencing court to speculate about the legal merits of such a challenge and assess the overall implications for the prosecution case.
The Crown noted that in Fraser v The King [2023] SASCA 74 the court observed at [69] that police had obtained the AN0M messages in relation to the offence (arson) and gathered evidence linking the appellant to the relevant device and username, which was a sufficient basis to conclude that the prosecution had a strong case against the appellant. The court went on to observe at [70]-[71]:
"[70] The only potential qualification to this, and the other aspect of the appellant's complaint about the judge's reliance upon the strength of the prosecution case, is that the judge did not make any reference to the potential availability of a challenge to the admissibility of the AN0M messages. It is notorious that a number of defendants in unrelated criminal proceedings are pursuing a range of challenges to the legality and fairness of police access to, and reliance upon, information obtained from AN0M devices. The appellant contends that it was relevant both to the merits of the case against him, and to the utilitarian value of his guilty plea, that he decided not to take any equivalent challenge to the lawfulness or admissibility of the AN0M messages central to the case against him.
[71] We accept the general relevance of the appellant's preparedness to forego any challenge to the lawfulness or admissibility of the evidence against him. However, in circumstances where the legal merit of that challenge was unknown, and essentially speculative, we do not think it was a particularly significant matter. We do not think it provided a basis for impugning the judge's exercise of his discretion as to the appropriate reduction for his guilty plea."
[14]
Consideration: Ground 3
It was common ground that the applicant made three distinct submissions to the sentencing judge as to the significance of his early plea of guilty: that he was entitled to a discount for its utilitarian value, that it was relevant to his finding of remorse, and that it demonstrated a willingness to facilitate the course of justice. Although the sentencing judge addressed the first two of these submissions favourably to the applicant, she made no reference to the third submission. The Crown accepts that the failure to do so was an error.
Section 16A of the Crimes Act provides that in determining the sentence the court must take into account, in addition to any other relevant matters, the factors set out in subsection (2), insofar as they are relevant and known to the court. Relevantly, where there is a plea of guilty, s 16A(2)(g) mandates that the court must take into account the fact of the plea of guilty, the timing of the plea, and the degree to which the fact and the timing of the plea results in any benefits to the community, or any victim of, or witness to the offence. While s 16(A)(2)(g) does not require the quantification of the discount for the plea of guilty, it is desirable in the interests of transparency that a discount is specified.
The utilitarian value of a plea is conceptually different from a willingness to facilitate the course of justice. The former is an objective factor that should be quantified. The latter is a subjective factor that does not require quantification but may operate to mitigate the sentence as part of the process of instinctive synthesis overall.
The error identified under this ground was recently considered by this Court in Giles-Adams v R; Preca v R. It was held in that case that, given the submissions made on behalf of the offender, the absence of any reference in the sentencing judgment to the offenders' willingness to facilitate the course of justice was an error. In that decision, Yehia J (with whom Wright and Chen JJ agreed) stated the following at [79]:
"Although an offender's willingness to facilitate the course of justice is closely related to the concepts of remorse and contrition, there will be cases where it will be necessary for a sentencing judge to address each consideration. This is particularly so where discrete submissions have been made in support of separate findings with respect to the utilitarian value of the plea of guilty, remorse, and facilitation of the course of justice."
[15]
Grounds 1 and 2
Given that this Court is required to re-sentence the applicant, the question arises as to whether it is necessary to consider grounds 1 and 2. Given that they both challenge findings made by the sentencing judge which this Court will need to have take into account when resentencing the applicant, I am satisfied that it is necessary to consider them as well.
[16]
Ground 1: There was a denial of procedural fairness in that the sentencing judge made a finding adverse to the applicant without affording him an opportunity to be heard
In order to understand the complaint made under this ground it is necessary to first have regard to the evidence and submissions before the sentencing judge
[17]
Evidence of causal connection between ADHD and offending
Ms Cullen discussed the symptomatology of ADHD in general and particularly with respect to the applicant and noted that the applicant had been diagnosed with ADHD at the age of 16. Ms Cullen went on to observe the following:
"ADHD is a condition with executive functioning deficits. Executive function enables a person to control their thoughts, words, actions, and emotions. Executive function further enables a person to concentrate and pay attention, to recall and evaluate information and to consider the consequences that may result from implementing an idea. Moreover, individuals with ADHD have lower levels of dopamine receptors and transporters in the nucleus accumbens and midbrain, which are two (2) regions in the brain directly involved in processing motivation and rewards. Accordingly, key aspects of the reward systems are underactive in the ADHD brain, making it difficult to derive reward from ordinary activities. This assessment has revealed that Mr McLaughlin's offending behaviour/s were motivated through the reward of being offered a steady income of $2k for minimal/sporadic work, thereby enabling him to focus on other projects and repay his drug debt. His fixation (a hallmark characteristic of individuals with ADHD) on these tasks thereby hindered his consideration for the consequences of his (criminal) decision-making (which is a further common symptom observed in people with ADHD). Accordingly, this assessment has revealed a direct nexus between Mr McLaughlin's underlying mental health (ADHD) and his index offending."
(Emphasis added.)
In her report, Ms Cullen concluded the following in relation to the applicant:
"Based on the aforementioned, it is likely that, at the time of the commission of the offence and currently, Mr McLaughlin satisfies the DSM-5 criteria for:
314.01 (F90.2) Attention-Deficit Hyperactivity Disorder (ADHD) - Combined presentation
304.40 (F15.20) Severe Amphetamine-type Stimulant Use Disorder
303.90 (F10.21) Moderate Alcohol Use Disorder
304.1 (F13.1) Sedative, Hypnotic and Anxiolytic Use Disorder"
The applicant's case before the sentencing judge was that, based on the report of Ms Cullen, the expert evidence supported a direct nexus between his ADHD and his offending behaviour. It was submitted that his diagnosed ADHD had a "material impact" on his criminal conduct and should be taken into account in mitigation of the sentence including in reducing his moral culpability.
[18]
Applicant's submissions
It was submitted that there was a denial of procedural fairness because the sentencing judge made a finding that there was no direct nexus between the applicant's mental condition and the commission of the offence despite it being common ground at the hearing that the evidence supported a finding that there was some connection.
It was submitted that had her Honour not given the indication she did, senior counsel for the applicant could have made submissions seeking to persuade her Honour about the soundness of the opinion expressed by the psychologist, having regard to the evidence of her expertise and other matters. Instead, it was reasonable that he did not make further submissions on that subject matter.
The applicant's complaint is not about the weight that was given to particular evidence; it is that the sentencing judge unfairly rejected the evidence of the casual connection after indicating that it was not a matter of dispute.
[19]
Crown submissions
The Crown identified the relevant principles and submitted that the real question is whether there has been a practical injustice. It was submitted that error of principle will not normally be found from interchanges between the bench and counsel, since judicial views expressed during submissions do not necessarily reflect a considered decision. It was further submitted that it is necessary to read fairly the entirety of the sentencing transcript and the remarks on sentence, for the purpose of determining whether practical injustice has been demonstrated in a case.
It was submitted that is not sufficient for the applicant to demonstrate that he was deprived of a further opportunity to repeat what he had already said, or to advance the same argument(s) differently or more emphatically.
Reliance was placed on the fact that her Honour took the ADHD into account in the third of the ways identified by Simpson JA in Barbieri v R [2016] NSWCCA 295, namely, that a prison sentence will "weigh more heavily" on the applicant than it would on others.
It was submitted that the applicant's ADHD could not be said to have contributed to the offending in a material way. It was accepted there was "some connection" but in terms of the impact on the level of moral culpability to be ascribed to the offender, the Crown submitted that it was not of "great import" as a matter of weight.
It was further submitted that the sentencing judge did not deny the applicant an opportunity to be heard on whether there was a nexus between the applicant's ADHD and his offending conduct; the issue was ventilated at the hearing. Nor at any stage did the sentencing judge indicate that she was satisfied that there was a causal connection between the applicant's ADHD and the offending, such that it could have been understood by the parties to no longer be a live issue.
It was submitted that the finding by her Honour is consistent with how she expressed the position of the parties during argument. Her Honour noted factors, such as the motivation for the offending, and concluded that they did "not assist the submission of a causal connection, at least in any material way". Emphasis was placed on the use of the word "material" in this context.
Further, it was submitted that what Ms Cullen said about the nature of the causal connection (extracted at [96] above) was that the nature of the connection went to his motivation for the offending, which was financial. It was submitted that this finding was open, any bearing on moral culpability was not "material", and there was no denial of procedural unfairness.
[20]
Consideration: Ground 1
The determination of this ground turns to a significant extent on whether, as the applicant contends, her Honour's finding that the actual conduct of the applicant did not "assist the submission of a causal connection, at least in any material way" means that she was not satisfied of any causal connection between the applicant's ADHD and his offending or, as the Crown contends, her Honour did in fact found that there was some causal connection. If the applicant's contention is correct, then this ground has been established.
The significance of a finding that there is a causal link between the applicant's ADHD and his offending can be found in the first "dot point" at [177] of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 where this Court observed the following:
"Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence."
As to the relevant principles when an applicant asserts that he or she was denied procedural fairness in their sentence, they are well known. The High Court confirmed them in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32. In that decision, the court (Bell, Keane, Nettle, Gordon and Edelman JJ) allowed an appeal against a sentence imposed by this Court on the basis that it had, inter alia, departed from an unchallenged factual finding made by the sentencing judge without notice to the appellant. This was held to be procedurally unfair and has occasioned a miscarriage of justice: at [44].
A denial of procedural fairness may be established if counsel is led to understand that a certain course would be taken but ultimately it is not, to the detriment of the offender. For example, in Baroudi v R [2007] NSWCCA 48 it was held that procedural fairness was denied when the sentencing judge failed to warn counsel for the offender that he intended to impose a non-parole period of around 12 months longer than the concession that had been made by the Crown.
In Milsom v R [2014] NSWCCA 142, Garling J (with whom Macfarlan JA and Johnson J agreed) noted at [66]:
"The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37]."
[21]
Ground 2: The sentencing judge erred in finding that the applicant's role placed him somewhere between the mid and senior levels of the syndicate.
[22]
Applicant's submissions
The applicant's case before the sentencing judge was that his role in the offending was at a low level, that it exposed him to a high risk of detection by authorities and that he was regarded as expendable by those higher up the chain. He was a wage earner rather than an investor or shareholder or otherwise a person having a financial stake in the success of the enterprise. It was submitted that he should be sentenced as being the Australian contact who assisted in providing a clearing house in Australia, but not as principal. The facts show that "Coconut" organised for cash to be provided to him which included his wages.
Further, not only was the applicant the most exposed of any of the group, he was considered expendable as there was evidence that others in the group planned to have him killed once it became clear he had been identified by the authorities.
It is submitted that her Honour made a finding of objective seriousness that was not open on the evidence, namely, that: "he was … somewhere between the mid and senior levels of the syndicate". It is submitted that it was not open to her Honour to make this adverse finding beyond reasonable doubt, as required by The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
There was some evidence in the agreed facts of a hierarchy of offenders. For example, "Coconut" was described as being the "offshore principal" of the syndicate and "primary facilitator" of the importation venture. Plainly, the applicant was subordinate to "Coconut" and certain other members of the syndicate identified in the facts by their AN0M handles. There were numerous persons involved, but no evidence of a determined hierarchy which could support a finding that the applicant was "between the mid and senior levels".
It was noted that the agreed facts listed the AN0M handles of eight "members" of the syndicate. The references to some of these individuals are very limited or inadequate to shed light on what they did or what role they performed in the enterprise. The agreed facts do not describe where in the hierarchy these eight people sat but there was plenty of evidence in them about what the applicant did, reflecting his high level of exposure to a risk of detection.
It was submitted that the information available to the sentencing judge as to the roles and activities of other persons involved in the enterprise was incomplete and it was not open to her Honour to make the impugned finding. The only basis for it was assumption or speculation.
[23]
Crown submissions
The Crown submitted that the power of this Court to interfere with the findings of fact by a primary judge is limited. This Court is bound by such findings unless they were not open on the evidence, or the applicant demonstrates error in one or more of the respects identified in House v The King (1936) 55 CLR 499; [1936] HCA 40.
The question under this ground is whether the finding was open to her Honour. The Crown submitted that it was and relied on the undisputed evidence contained in the agreed facts.
As for the applicant's submission that there was no evidence of a determined hierarchy that could support the impugned finding, reliance was placed on the decision in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72] and Pham v The Queen [2012] VSCA 101 at [4]-[5] (discussed further below).
As for the role of the applicant, it was noted that the applicant registered the business, created the website, leased the premises and engaged a freight forwarder. It was submitted that the AN0M discussions provide further insight into the criminal enterprise and evidence of the applicant's role. These included that the syndicate's offshore principal, "Coconut", was in direct communication with the applicant and was senior to the applicant in the syndicate. "Coconut" organised the cash for the applicant and confirmed that the syndicate had two trusted insiders working inside the Sydney importation industry that would enable the syndicate to know if the authorities intercept the drugs in the impending assignment. There was further evidence of "Coconut's" role as described in the facts. Significantly, "Coconut" stated in early April 2021 that the applicant had "money in the company" and would "continue to receive Wages" demonstrating both the applicant's financial investment in the syndicate and the financial management operations of the hierarchy. It was submitted that the applicant had decision making power and was referred to as "the front", a "clean skin".
It was accepted that there was a balancing by her Honour where on the one hand the applicant was entrusted with a significant role regarding logistics but, as her Honour observed, that placed him at the most risk.
Ultimately, the Crown's submission was that even if the words that the applicant was "somewhere between the mid and senior levels of the syndicate" were removed from the assessment of objective seriousness, the nature of his role and the other relevant considerations would lead to the same conclusion of objective seriousness.
[24]
Consideration: Ground 2
The applicable test to be applied to a challenge to factual findings made by a sentencing judge is whether the findings were open on the evidence before the sentencing judge: R v O'Donoghue (1988) 34 A Crim R 397. In AB v R [2014] NSWCCA 339, Simpson J (as her Honour then was) with whom Meagher JA and Wilson J agreed, traced the early jurisprudence on this question and then concluded at [57] that, "[w]hat is essential is that error, properly so called, be demonstrated before this Court will interfere in a finding of fact."
There has been some doubt raised about the approach in R v O'Donoghue in the decisions of Clarke v R [2015] NSWCCA 232; (2015) 254 A Crim R 150, and Hordern v R [2019] NSWCCA 138. As I observed in Gibson v Regina [2019] NSWCCA 221 at [61]:
"In Hordern v R, Basten JA concluded at [20] that the 'constrained approach' in R v O'Donoghue is 'clearly wrong' and should not be followed. His Honour's reasons for coming to this conclusion are set out in Hordern v R at [5]-[19]. In effect, his Honour contends that to require applicants to establish that a finding was 'not open' to a sentencing judge goes beyond the error identified in House v The King of simply 'mistak[ing] the facts', the former test amounting, in effect, to an error of law."
The parties did not suggest that this Court would do other than apply the test in R v O'Donoghue in this matter and I propose to consider this ground on that basis. I took the same approach in Aiga v R [2024] NSWCCA 175, Ocek v R [2023] NSWCCA 308, Newman v R [2021] NSWCCA 101 and Gibson v Regina. In any event, I am satisfied that whether the appropriate test is mistaking the facts or whether it is that the factual finding was "not open" to the sentencing judge the result is the same on the facts in this matter.
The complaint under this ground is not that the sentencing judge erred in her finding of objective seriousness; it is more confined than that. The complaint is that her Honour erred in one discrete factual finding which made up the factors which ultimately led to the assessment of objective seriousness, namely, that the applicant's role placed him somewhere between the mid and senior levels of the syndicate.
It seems to me that given the wealth of evidence as to what this applicant actually did, it was not strictly necessary for her Honour to find where the applicant stood in a determined hierarchy of other offenders. The difficulties associated with making such assessments in drug cases are well known.
[25]
Re-sentence
Given that I would uphold all three grounds, it is necessary to revisit the associated findings the subject of those grounds for the purpose of re-sentencing the applicant.
First, as for the relevance of the applicant's ADHD. Given the evidence of Ms Cullen and the position of the Crown, I propose to re-sentence the applicant on the basis that there was a causal connection between his offending and his ADHD but in the context of his actions and motivation, addressed in detail above, I am not satisfied that his moral culpability is reduced to any significant degree.
Secondly, as for his willingness to facilitate the course of justice, I propose to ameliorate the sentence to some extent on this account, but I accept the Crown submission that it is not appropriate for a sentencing court to speculate about the legal merits of any legal challenge that an offender may have foregone in pleading guilty.
At the date of the sentence hearing on 23 February 2024, a challenge to the admissibility of evidence obtained using the AN0M platform had already been pursued unsuccessfully in South Australia. On 7 November 2024, special leave to appeal was granted by the High Court in respect of the AN0M challenge but legislation directed at overcoming any perceived breach of the Telecommunications (Interception and Access) Act 1979 (Cth) was foreshadowed at the time of the hearing of this appeal. The extent of the amelioration of the applicant's sentence on account of his early plea on this discrete ground cannot turn on the success of the AN0M challenge he forewent.
Further, as Basten JA (with whom Rothman J agreed) observed in Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60 at [16], the existence of a strong Crown case may diminish the weight given to an offender's willingness to facilitate the administration of justice, because it may reveal little more than acceptance of the inevitable. Despite this, his Honour went on to observe the following at [17]:
"… [A]lthough as a mitigating factor willingness to facilitate the course of justice should be established on the balance of probabilities, it should not be assumed that the existence of a strong prosecution case necessarily diminishes the factor to any particular extent. The court should state if it is satisfied that the plea was motivated partly or largely by the inevitability of conviction, or that no finding can be made."
[26]
New material on re-sentence
The material tendered by the applicant on re-sentence includes the affidavits of the applicant sworn on 13 November 2024 (outlining his efforts at rehabilitation education, employment and behaviour whilst in custody), the applicant's solicitor, Chayana Miers, sworn on 14 November 2024 (annexing a document from Corrective Service setting out the programs the applicant has participated in custody and the applicant's case notes), the applicant's mother, Christine McLaughlin, sworn on 13 November 2024 (outlining her health issues and struggle in managing her daily life and medical needs without the applicant's support), and the applicant's fiancé, Jennifer Mole, sworn on 13 November 2024 (outlining issues with her health and reliance on the applicant's support both in relation to the issues with her health, work and single parenting).
This evidence confirms the positive findings made by the sentencing judge.
[27]
Remaining factors
I have had regard to the relevant principles when sentencing federal offenders and s 16A of the Crimes Act. For the purposes of resentencing, I adopt all of the sentencing judge's findings as to mitigating factors, including his genuine remorse, his lack of relevant prior convictions, his low risk of reoffending and his good prospects of rehabilitation. The new material shows that he has utilised his time whilst in custody in a productive way and has no custodial infractions. I am also satisfied that his time in custody will be more onerous due to his ADHD and that in the past he spent a lengthy period on remand at a time when COVID restrictions included substantial lock-in periods during a lengthy period on remand. I have also had regard to the fact that the impact of his incarceration has impacted on his family, particularly his eldest son.
I have applied a discount of 25% and taken into account the offence on the s 16BA Schedule.
I have considered the Crown submissions that no lesser sentence is warranted in law. In resentencing the applicant afresh on the findings I have made and further evidence on re-sentence, I have arrived at a sentence which is lower than that imposed at first instance.
In fixing the non-parole period, I have not allowed for the same ratio between the non-parole period and the head sentence as her Honour did due to the fact that the head sentence I would impose is lower. The non-parole period must reflect all of the purposes of sentencing: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26. As the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) observed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [57], "[f]ull-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody". Were I to apply the same ratio as her Honour did, I am not satisfied that these principles would have been adhered to.
[28]
Orders
I would propose the following orders:
1. Leave to appeal granted.
2. Appeal allowed.
3. The sentence imposed by Judge O'Rourke SC on 15 March 2024 is quashed.
4. In lieu thereof the applicant is sentenced to a term of imprisonment of 12 years to commence on 22 May 2021 and expire on 21 May 2033. The non-parole period of 7 years and 6 months will expire on 21 November 2028.
COLEMAN J: I have had the considerable advantage of reading the reasons of N Adams J in draft. I agree with her Honour's reasons and the orders she proposes.
[29]
Amendments
20 February 2025 - [127] line 5 - words "fairness" and "judge" added
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Decision last updated: 20 February 2025
The applicant relies on the following three grounds of appeal:
Ground 1: There was a denial of procedural fairness in that the sentencing judge made a finding adverse to the applicant without affording him an opportunity to be heard.
Ground 2: The sentencing judge erred in finding that the applicant's role placed him somewhere between the mid and senior levels of the syndicate.
Ground 3: The sentencing judge erred (a) in failing to take into account the applicant's willingness to facilitate the course of justice, or (b) in failing to explain in the reasons for judgment how the matter had been taken into account.
The Crown conceded the error relied upon in ground 3 and accepted that the error had the capacity to infect the sentence: Benn v R [2023] NSWCCA 24. For reasons provided below, the Crown was correct to the concede the error. Error having been established the court is required to re-sentence the applicant afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The Crown's position was that no lesser sentence was warranted in law.
Between July 2020 and May 2021, AEMP imported seven consignments from a company called "Rapidgear" in South Korea. In order to facilitate these consignments, it utilised the services of Hunter Cargo & Customs, a legitimate freight forwarding business. In June 2020, the applicant made initial contact with Hunter Cargo and sought their services to import "mining machinery" from South Korea. He provided Hunter Cargo with the requisite documentation, including invoices, airwaybills and confirmation of the supplier's export by email. The first two consignments imported were completed by air freight. After the second consignment had arrived in Sydney, the applicant contacted Hunter Cargo and advised them that he wanted the next consignments to be imported by sea freight. The applicant told Hunter Cargo that there was less urgency from the mine to have these as they would only be used for stock.
In relation to all of the consignments, once they arrived in Sydney from South Korea, as directed by the applicant, Hunter Cargo arranged for the consignments to be delivered to AEMP at Unit 10/7 Pambalong Drive in Mayfield West. In relation to all of the consignments, Hunter Cargo did not deal with anyone else besides the applicant. The applicant communicated with Hunter Cargo via phone or email on numerous occasions, and in relation to all of the consignments he provided the requisite documentation to ensure that the consignments would be imported correctly and processed through customs. Between June 2020 and May 2021, he paid Hunter Cargo over $114,000 for facilitating the seven consignments; it was paid to Hunter Cargo's bank account from AEMP's bank account.
Consignments 1, 2 and 3 did not contain border controlled drugs; these were imported by the syndicate as dummy runs to establish a seemingly legitimate business of importing heavy machinery and an attempt to avoid detection from authorities. Consignments 4, 5, 6 and 7 each contained significant amounts of methamphetamine concealed within the item of heavy machinery imported from South Korea. Consignments 4 and 5 were imported without being detected, and they were delivered to Pambalong Drive; these, once located by the AFP, were intact, and there is no evidence that they had been opened. Consignments 6 and 7 were intercepted by law enforcement before they were delivered to the AEMP warehouse.
On 8 May 2020, the applicant signed a lease to rent a commercial warehouse located at unit 10/7 Pambalong Drive in Mayfield West for a year. The annual rent was $44,000; initially he paid over $14,000 as a deposit for renting the warehouse and two months' rent, totalling about $9,500. Between May 2020 and June 2021, the applicant continued to pay rent totalling about $4,500 a month to lease the warehouse. In January 2021, he entered into an arrangement to sublease part of the warehouse to a legitimate company called 'Think and Grow Fitness'. During the tenancy of the warehouse by AEMP, the applicant erected and installed a number of internal and external security cameras at the warehouse; this security system was installed without the permission or knowledge of the owner of the actual warehouse. The leasing of the warehouse was completed by the applicant and the Rega criminal syndicate for the sole purpose of receiving significant quantities of border-controlled drugs.
In relation to the aspect of AN0M, in 2017 Operation Ironside commenced a joint-agency investigation and, as indicated, it relied on an encrypted surveillance methodology service. The secure communication platform, which was entitled AN0M, was designed to service the organised crime market in much the same way as other encrypted services. Since its inception, or integration into the community in 2018, the platform was accepted by organised criminal groups, and thousands of these devices worldwide were being used for illegal activities. Between March 2021 and June 2021, the members of the Rega criminal syndicate each possessed an encrypted AN0M device to discuss the importation of significant quantities of methamphetamine into Australia, the Orient venture and other illegal activities. The messages sent and received by the members of the Rega criminal syndicate were monitored by the law authorities. The AN0M devices utilised in Operation Ironside each had individual and specific passwords that were created by the specific users of the devices. Additionally, only one AN0M device could access the AN0M platform as a particular user ID or handle. During the offending period, the applicant used an AN0M device with the handle "Sleptmore". Additionally, it was alleged that other members of the syndicate used other handles to discuss criminal activities. These individuals exchanged messages AN0M with a person using another handle called "Coconut", and it alleged that this person was the offshore principal of the syndicate and the primary facilitator of the Orient venture.
Specifically in relation to consignments 4 and 5, on 16 January 2021, consignment 4 departed Busan in South Korea. The consignor was listed as "Rapidgear", and the consignee AEMP. The applicant's email address and contact number were provided as the signee details. On 26 February 2021, consignment 4 arrived in Sydney, and following instructions from the applicant, it was delivered to unit 10/7 Pambalong Drive. On 30 January 2021, consignment 5 departed Busan, the same place in South Korea. Again, the consignor was listed as "Rapidgear'", and the consignee AEMP. The applicant's email address and contact number were provided as the consignee details. On 28 February 2021, consignment 5 arrived in Sydney, and following instructions from the applicant, it was again delivered to unit 10/7 Pambalong Drive. Some time after the arrival of the consignments at his warehouse, members of the Rega criminal syndicate transported consignments 4 and 5 to a warehouse in Aruma Place in Cardiff, New South Wales. Some members, it is alleged, from the Rega criminal syndicate were storing the methamphetamine and waiting for an optimum time to distribute the drugs into the community so to maximise their profits.
The Rega criminal syndicate began discussing The Orient venture on their AN0M devices on 24 March 2021. Prior to this date, the syndicate used cypher devices, or other encrypted devices, to communicate with each other about their illegal activities. On 24 March 2021, for example, the applicant and another person with a handle "Wrightcopper Rambo", "Syd82", "Oda Coal", "Sledgehammer" and "Coconut" exchanged messages about how the drugs would be loaded in South Korea and sent to Australia, with the applicant advising "them have to come back on two different ships". Later, on 6 April 2021, "Coconut" forwarded advice about the invitation from "the eyes and ears" based in South Korea to the other members of the group chat. The applicant and another handle agreed that they should purchase an other item of heavy machinery in furtherance of the importation, and they also confirmed that the next quantity of methamphetamine would be split into multiple consignments.
For example, in early April 2021, in other discussions on AN0M it was alleged that "Coconut" and one called "Begunsure" should be based with "Coconut" overseas so he could learn how to direct the syndicate and organise the business. In another discussion, after one handler was arrested, the person with the handle of "Syd82" confirmed to the person with the handle "Coconut" that he will manage and support the applicant so that the importation stream is not compromised. "Coconut" reiterated that the applicant has money in the company and will continue to receive wages. Additionally, they confirmed that the handle "Begunsure" was the person who accepted consignments 4 and 5 when they were delivered to AEMP in February 2021, and that the only other people that should know about the location of consignments 4 and 5 are the applicant and three others.
The applicant and "Coconut" confirmed that even though the person had been arrested, the next consignments of methamphetamine would still be imported. Additionally, "Coconut" advised the applicant that he would receive his payment shortly, stating that he will provide the applicant with a "small tiny amount, like 100K AUD soon", and then receive the rest of his payment after the consignments arrived. "Coconut" also confirmed that the applicant "can speak to me direct, no need to go through anyone", and that "you have money in the company". Further, the applicant confirmed that he knew the location of consignments 4 and 5.
Between 30 April 2021 and 5 May 2021, the applicant and others were involved in discussing the impending arrivals of consignments 6 and 7. In particular, they discussed the applicant confirmed he had spoken to the freight forwarding service, and that "all is on track". He also sent the group photographs of the documentation sent from the freight forwarding service and the suppliers of the consignment in South Korea. They reinforced that they would need to, "stay under the radar to stay out of cops eyes", otherwise they would be, "spending a lot of time in gaol".
"Coconut" organised for $40,000 in cash to be delivered to the applicant, $10,000 of which was to pay for the shipping costs associated with the importations, and the remaining $30,000 was the offender's wages. The applicant provided the group with photographs of the bill of lading and container numbers of the consignments containing methamphetamine. He also advised that he had spoken to the suppliers in South Korea and confirmed that the consignments had been successfully despatched to Australia and that they were due to arrive in Sydney in May 2021. He noted that there was a gym above AEMP warehouse, which made the warehouse look busy and legitimate, and the handle "Coconut" confirmed that the syndicate had two trusted insiders working inside the Sydney importation industry that would enable the syndicate to know if the authorities intercept the drugs in the impending consignments.
In relation to consignment 6, on 14 April 2021 it departed Busan, South Korea; the consignor was listed as "Rapidgear" and the consignee AEMP. Again, the applicant's email address and contact number were provided as the consignee details, and it was due to be delivered to unit 10/7 Pambalong Drive, Mayfield West. On 5 May 2021, the arrived at Port Botany, New South Wales, and it consisted of three machine components in wooden crates, and was declared as "gear helial straight motor drive". On 7 May 2021, consignment 6 was transported to the Australian Border Force container examination, and following an X-ray, anomalies were detected within the machine components and it was referred to the AFP for further investigation. On 14 May, it was deconstructed by the AFP, and each of the three machine components within consignment 6 were found to be hollow and filled with vacuum-sealed packages of white crystalline material. Forensic analysis determined that the material was methamphetamine; the total gross weight of consignment 6 was 136.88 kilograms with a purity of 80.2%, with a pure weight then of 109.87 kilograms.
Consignment 7, also on 22 April 2021, departed Busan, South Korea; the consignor was listed as "Rapidgear", and the consignee as AEMP. Again, the applicant's email address and contact number were provided as the consignee details, and it was due to be delivered to the same address at Pambalong Drive. On 15 May 2021, the consignment arrived at Port Botany, New South Wales; it consisted of two machine components in wooden crates, and was declared again as "gear hellial straight". On 16 May 2021, consignment 7 was transported to the Australian Border Force container examination facility, and following an X-ray examination, AN0Malies (sic) were detected within the machine components, and again it was referred to AFP for further investigation. On 17 May 2021, consignment 7 was deconstructed by the AFP, and each of the two machine components within consignment 7 were found to be hollow and filled with vacuum-sealed packages of a white crystalline substance. Forensic analysis determined the material was methamphetamine; the total weight was 88.76 kilograms with a purity of 80.1%, with a pure weight of 71.13 kilograms.
On 18 May 2021, an AFP officer contacted the applicant on the recorded contact number for all the consignments and the contact number listed on the AEMP company website. The call was not answered, and the AFP left a voicemail message requesting that the applicant call him back. Two days later, on 20 May 2021, at around 2.30pm the AFP attended the AEMP's business premises at Pambalong Drive in order to execute a search warrant. The AFP contacted the applicant and requested his attendance. Just after 3.00pm the applicant arrived, he was cautioned but not arrested; his personal mobile phone was seized, and he advised the AFP that this was the only phone that he used. During the search of the unit 10/7 Pambalong Drive, Mayfield West, the AFP located three wooden crates containing machine components; these crates were consignments 1, 2 and 3 that were sent in 2020. It was determined that the machine components within consignments 1, 2 and 3 were legitimate items and did not contain border-controlled drugs. They were sent by the Rega criminal syndicate, as stated earlier, as dummy runs to establish a seemingly legitimate business.
Under caution, and after being advised that two consignments addressed to AEMP had been intercepted and found to contain methamphetamine, the applicant stated the following to the police; he was the user of a number, 0428 745 000, which was a contact number for all the consignments, and the contact number listed on the AEMP company website; he was the sole director of AEMP, and no other persons were involved in the company; he designed and paid for the company website; he falsified the image of the helical gear drive on the AEMP website; he installed an elaborate security system at the warehouse; he had previously ordered heavy machinery items from the same overseas supplier who sent the consignments that had been intercepted; he told them to check consignments 1 to 3 for drugs because they were the same machinery he ordered from the overseas supplier. When asked further questions about the whereabouts of previous consignments, he declined to comment. At the conclusion of the search warrant, he was released without arrest or charge pending further investigation.
On 21 May 2021 at around 9.30pm, the AFP attended the unit at Aruma Place in Cardiff, New South Wales in order to execute another search warrant; no-one was at the premises while the search warrant was executed. During that search warrant, the AFP located an active hydroponic cannabis "grow house" within a locked shipping container which consisted of six mature cannabis plants with an approximate diameter of 1.5 metres each; they were seized. Additionally, the AFP located consignments 4 and 5; they were seized and transported to Sydney. Consignment 4 consisted of three machine components in wooden crates; it was deconstructed, and each of the three components were found to be hollow and filled with vacuum-sealed packages of white crystalline material, and the forensic analysis determined the material was methamphetamine. Consignment 5 again consisted of three machine components in wooden crates; it was deconstructed. Each of the three components were found to be hollow and filled with vacuum-sealed packages of white crystalline material, and it was deemed by forensic analysis to be methamphetamine. The total gross weight of the methamphetamine in consignments 4 and 5 was 272.37 kilograms, purity of around 78%, with a pure weight of 213.04 kilograms.
Between 12 May 2021 and 21 May 2021, the applicant and others, as part of the syndicate, discussed the arrival of consignments 6 and 7 in Australia, and they discussed various aspects, which have been set out in the statement of facts, which includes a concoction if he was to be arrested and what he would do, for example, to "get rid" of his cypher device, preparing a defence lawyer for the applicant when he got arrested, and other aspects, as set out in the facts from A to M.
Between 18 May 2021 and 20 May 2021, the applicant and another co-conspirator discussed the police interest in consignments 6 and 7 and tried to fabricate an alibi to protect him. Further, they intended to meet each other to discuss the importation, but after carrying out counter-surveillance to see if the police were tracking, they decided not to meet up. (Her Honour noted that there were other discussions in the agreed facts, which her Honour did not go to which are referred to at paragraph 61 of the statement of facts, in mid to late May 2021 which was discussed on the AN0M devices about dealing with the applicant.)
Ultimately, the total amount of methamphetamine imported in consignments 4, 5, 6 and 7 was 498.01 kilograms with a pure weight of 394 kilograms. The estimated street value of that methamphetamine in those four consignments was approximately $312.5 million.
In relation to sequence 2, the s 16BA offence, there was information at paragraph 64 which was obtained from a website of Coffey Testing Pty Limited. Dawn Watt is the chief executive officer and director and shareholder of Coffey Testing; Adam Drumgold was employed by Coffey Testing as the national projects support manager; and Luke Diggins was employed between April 2007 and October 2021 as the general manager. The applicant r and Diggins have known each other since primary school, and the applicant has previously sold Diggins cocaine. In early 2020, the applicant attended the Newcastle office of Coffey Testing in Warrabrook and spoke with Ms Watt and Mr Diggins advising them he was starting a new company to import goods from overseas. A few months later, he met with Drumgold and Diggins, and the applicant discussed purchasing equipment from overseas that would be cheaper than the testing the company was currently paying. He said he would be cutting out the middle man so that Coffey Testing could save money.
In June 2020, the applicant asked Diggins how much was in his savings account and inquired if he could borrow money to pay invoices so his importations could continue. Between 15 and 16 June 2020, Diggins transferred $10,000 into the applicant's AEMP business bank account, and the applicant told Diggins to describe the transactions as equipment. On 16 June, the applicant repaid Diggins the $10,000 in cash. In August 2020, the applicant wanted to provide Diggins with additional money to deposit into his AEMP business bank account. The applicant stated that he needed the money in the account by the end of the month and that money has been provided by "the boys". In September 2020, the applicant and Diggins discussed how they could launder money into the AEMP business bank account. The applicant and Diggins agreed that the applicant would purchase items from Coffey Testing suppliers, pay the suppliers in cash and use AEMP to invoice Coffey Testing for the items; Coffey Testing would then pay the invoice by transferring money into the AEMP business bank account. This process would enable the applicant to make the deposits look legitimate, and the applicant agreed to pay Diggins a commission of 10% for the deal.
Between June 2020 and 15 March 2021, AEMP's Westpac business account received payments into the account, which are set out in paragraph 74 of the facts; the total amount received was nearly $188,000. AEMP is not a supplier or contractor for Coffey Testing, and should not have been approved for capital expenditure. Coffey Testing do not pay cash to their suppliers from paying invoices.
The applicant's mobile phone has an email account, admin@aemp.com.au; within the email account, there is correspondence with Diggins, emails with Coffey Testing employees, quotes from suppliers and invoices. During the search warrant at AEMP business premises, police seized an invoice from Sydney Tools for drills; the applicant had purchased drills from Sydney Tools, invoiced Coffey Testing and had received payment for the drills.
In early 2021, Diggins attended AEMP business premises for a barbecue where he observed two large wooden crates in the warehouse, and the applicant advised him that he imported some gears from overseas. He was unable to provide Diggins with any information about the gears and their use. During the barbecue, they had a conversation. On multiple occasions Diggins asked the applicant what he was doing with AEMP and what it involved; he told Diggins that he was importing different items on consignment and had to make the business look legitimate. He also told Diggins that it was best if he did not know what he was doing with AEMP.
In March 2021, Diggins questioned the applicant about his involvement with AEMP and the 'boys' he associates with; he told him that the 'boys' paid him a salary of $2,000 to $3,000 per week to manage AEMP and import gears, and stated he needed to transfer at least $50,000 into the AEMP business account monthly in order to pay for the importations. Additionally, the applicant advised that the 'boys' would conceal stuff inside the gears, and he was not involved in that side of things.
On 22 May 2021 at around 4.30pm, the applicant was arrested by the Australian Federal Police following an agreement to meet with them at his home, and he was conveyed uncuffed to Newcastle Police Station. He declined to participate in a recorded interview with police. During the offending period, he was the sole owner of AEMP; he was otherwise unemployed.
With respect to schooling, her Honour noted that the applicant went to St Joseph's and Coal Point Primary Schools, Toronto High School and Hunter School of Performing Arts. He was asked to leave St Joseph's School to avoid expulsion in Year 4 following an "incident". He was part of the "naughty group" of children that would "make bombs and blow up people's letterboxes" at Toronto High School. He "jigged" school to go to the beach while at Hunter School. During that time, he lived with a friend to avoid the long journey to and from school. He completed high school despite being truant most of the time.
Her Honour noted the applicant's employment history as including working in sales from the age of 16 and continuing with it full-time from the age of 18, when he worked as a door-to-door salesman.
The applicant reported that he first began drinking alcohol socially on weekends when he was 16 years old. He began experimenting with limited drugs at around the age of 18, specifically cannabis which he said increased his anxiety tenfold to the extent that he would experience mild panic attacks. Despite this, he would smoke cannabis on a nightly basis, before quitting after a year.
By the age of 30, the applicant was drinking three to four glasses of wine a night and took three to four Valium every couple of days to help with his anxiety and insomnia. At the time of the preparation of the psychiatrist's report in 2019, he was drinking three nights a week, which included 16 heavy-strength beers and wine. On the Friday before the appointment, he consumed a carton of beer and five bottles of wine, in combination with cocaine. He denied any issue with withdrawal symptoms or cravings. He was taking around 5 to 10 milligrams of Valium, or one "brick" of Xanax every second night.
When he was 32, the applicant lost his long-term job and began using cocaine. Although, at first, he would only use it on weekends, his use increased to four to five times a week until he was snorting a gram of cocaine daily during his relationship with his former partner, who was also a user. As a result of his cocaine use, he accumulated a debt of around $30,000 that resulted in repossession of his car due to his inability to pay and afford his repayments.
Her Honour noted that the applicant's gambling began at the age of 19. He gambled each time he went to the pub and drank alcohol. He gambled but never spent more than $2,000. His gambling behaviours increased when he lived in New Zealand due to living next door to a casino.
The applicant earned around $250,000 a year while working at Combined Insurance, but his earnings were spent living a lavish lifestyle. Upon losing his job, he continued that lifestyle accruing somewhere between $100,000 and $200,000 in credit card debt, in addition to his drug debt.
At the time of the offending, the applicant had been abusing alcohol and cocaine. He told the SAR author that he has remained abstinent in custody and intends to continue to do so once released.
Her Honour noted that the applicant's physical health is unremarkable.
With respect to his mental health, the applicant's mother noted the applicant's diagnosis of ADHD as a child. It has remained unmedicated since he was a teenager. He has been learning to manage his symptoms through reading and engaging with a Corrective Services New South Wales psychologist whilst in custody.
The applicant reported having several symptoms consistent with ADHD, including a constant feeling of being on the go, moving from one activity to the next without completing the task, fidgeting or squirming a lot. His scores are consistent with a diagnosis of adult ADHD. His classification for depression, anxiety and stress were all classed as moderate. His personality assessment inquiry clinical profile suggested that he is impulsive which may be part of a pattern of self-destructive behaviour.
As for his offending behaviour, he told his psychologist that he accepted a role in the syndicate so that he could clear his debts. He denied knowing that he was getting involved with a drug importation syndicate, only realising the gravity of his situation when one member was arrested. By that time, he was in too deep and fearful of the repercussions should he have backed out. Her Honour found these statements difficult to accept.
Her Honour noted the absence of relevant prior convictions and the evidence concerning his mental health. She noted the evidence of his diagnosis of ADHD and made findings relevant to that which I have extracted below at [101].
After summarising the applicant's personal circumstances, her Honour stated the following relevant to ground 3:
"As stated earlier, s 16A of the Crimes Act sets out a non-exhaustive list of factors. Now, in relation to those factors, relevantly here, I have discussed the assessment of the nature and circumstances of the offence. In relation to the showing of contrition, the offender has pleaded guilty and he is entitled to a 25% discount for the utilitarian value of the plea; the material is replete with his statements of remorse and regret; and I am satisfied that there is sufficient evidence to provide genuine remorse. I also note the chronology prepared by the defence. The principles of general deterrence and denunciation are a primary consideration in sentencing for drug offences; deterrence sentences are necessary to demonstrate the significance of engaging in such a nefarious trade, and the great harm that such offences cause to our community in general. The specific deterrence also has a role to play for this offender to sheet home the serious criminality of his offending. However, it does appear to me that he has gained some understanding during the last few years."
(Emphasis added.)
Her Honour found that the applicant had good prospects of rehabilitation and took into account the impact which his incarceration "will have, and has had … on his family, particularly his eldest son". Her Honour also took into account that the applicant had been held on remand during the high points of the COVID pandemic and that there were "substantial lock-in periods" for inmates during that period.
The applicant also relied upon an alternative argument alleging inadequacy of reasons but given the Crown concession on the principal argument it is not necessary to consider that aspect of the argument.
The Crown accepted that in assessing the applicant's willingness to facilitate the course of justice regard could be had to his decision not to pursue a challenge to the admissibility of the AN0M evidence platform. Such an approach may operate to mitigate the sentence as part of the overall synthesis, but it does not elevate this aspect of the sentencing synthesis materially.
Overall, the Crown's position in this Court was that error is disclosed in not addressing the relevant submission. Further, in resentencing the applicant this Court would place some subjective value on the guilty plea indicative of facilitating the course of justice albeit tempered by the strength of the Crown case.
Yehia J went on to observe the following at [83]:
"Clearly, the concepts of remorse and the facilitation of the course of justice are often overlapping. I recognise all too well that sentencing judges are often called upon to consider and digest voluminous material, including submissions, in providing ex tempore reasons or in producing remarks on sentence over very short periods of time. The observations of Adamson J in Baker v R [2022] NSWCCA 195 … are apt. The sentencing discretion requires more than a 'tick a box' process or a mechanistic approach. For instance, in a given case, a sentencing judge might comprehensively refer to the evidence about an offender's remorse, such that it can be discerned that the sentencing judge took into account his/her facilitation of justice, notwithstanding an absence of express reference to it. However, in this case, the absence of any reference to the applicants' facilitation of the course of justice, in circumstances where that factor was discreetly [sic] addressed and conceded by the Crown at first instance, and where the same sentencing judge alluded to it in sentencing Mr Chan, constitutes error."
As for the utilitarian value of the plea, Yehia J stated this at [70]:
"[T]hat discount is usually expressed as a reflection of the reduction in sentence for the utilitarian value of the plea. In a case such as this, that is a reflection of the benefit to the community because of the time and cost of the trial that is saved by virtue of a plea of guilty and the benefit of witnesses of not being required to attend to give evidence."
Having regard to these principles, I am satisfied that the Crown concession should be accepted.
I would uphold ground 3.
As for the extent to which the sentence should be ameliorated for the applicant's willingness to facilitate the course of justice, I will consider the submissions relevant to that issue in resentencing the applicant.
The Crown submitted that:
"[T]here's a diagnosis made of ADHD, in effect. In the Crown's submission, that would not be said to have contributed to the offending in a material way. There is some evidence in the report of the psychologist setting out the connection in that person's opinion between those symptoms and the development of impulsive behaviours like gambling and drinking and cocaine use and the like. So in that way, your Honour, certainly there is some connection between those issues and where he's ended up, in terms of the offending conduct, but in terms of the impact on the level of moral culpability to be ascribed to the offender, the Crown would submit it isn't of great import in terms of the ultimate disposition when your Honour's coming to determine the weight to be given to that matter."
(Emphasis added.)
The sentencing judge noted to the applicant's then senior counsel that, as she understood the Crown argument, the evidence of Ms Cullen was accepted by the Crown; the dispute was as to the weight which should be afforded to his ADHD on the facts in this case. In that regard, her Honour observed:
"I don't think they'd cavil with it, from the submissions of Mr Crown just before, as just saying they probably don't put it as high as you might want further reduction in moral culpability, but I don't think there's - there's been some concession that it's there and that has some role to play, just not as high as you would like it to play."
(Emphasis added.)
In her remarks on sentence, her Honour's ultimate finding was as follows:
"It has been submitted by Mr Dalton that this [the applicant's ADHD] reduces his moral culpability as it is causally connected to his criminality. Whilst I have considered that, I find it difficult to accept in light of the offending's duration and overt acts, and what they involved, the sophistication, the calculation and the attempts to avoid detection performed by the offender during those 13 months, together with the state of motivation, being money to pay off credit cards and drug debts of between $100,000 and $200,000, and to profit generally, does not assist the submission of a causal connection, at least in any material way. I do accept, however, that the offender suffers from such a condition, and it will make a custodial setting clearly more onerous for him that the average inmate, and I have taken that into account in the fixing of my non-parole period."
(Emphasis added.)
It was not conceded that the applicant was denied the opportunity to address her Honour's finding because it was ultimately a matter of weight. It was accepted that the finding that there was no causal connection "in a material way" was not foreshadowed to counsel in those terms, implicit in that finding is that it had some connection but it was not of much weight or "material".
As for the nature of the connection between the ADHD and the offending behaviour, it was submitted at the hearing of this appeal that the applicant's ADHD "says nothing" about the individual's appreciation for the criminality of their conduct and their desire to pursue it over an extended period of time. It was submitted that a person can fixate on conduct but the motivation here was financial. Although the evidence is that the applicant's ADHD affected his ability to appreciate the risks of engaging in that conduct, it did not affect his understanding of the illegality of it.
Similarly, in Chong v R [2017] NSWCCA 185, the offender contended that he had been denied procedural fairness concerning the finding as to his role in the relevant drug supply. Harrison J (as his Honour than was) (with whom Basten JA and Schmidt J agreed) observed the following at [38]:
"It seems to me …. to be very important for sentencing purposes that any concession by the Crown that an accused person falls within a particular category of criminal responsibility, and upon which an accused person would appear to have relied, should not lightly be departed from and not, as it were, without notice. Notice in that context incorporates the notion that the accused person will be given the opportunity to address the prospect that the assumption will be disregarded by the sentencing judge if that is proposed."
Thus, it can be seen that in order for an applicant to establish a denial of procedural fairness, he or she needs to identify the proposed finding from which the judge departed without notice to the applicant. In the present case, that finding was said to be that her Honour accepted that there was a causal connection as alleged, and the only issue was the extent to which the applicant's moral culpability should be reduced on that basis.
As stated above, the Crown did not object to any aspect of Ms Cullen's report nor require its author for cross-examination. The Crown's position was that there was "some connection between those issues and where he's ended up, in terms of the offending conduct". The Crown also submitted that it was not of "great import in terms of the ultimate disposition when your Honour's coming to determine the weight to be given to that matter".
I am satisfied that the sentencing judge indicated to the applicant's then senior counsel that she proposed to make a finding that there was such a causal connection, but it would ultimately be a matter of weight. As for whether her Honour's ultimate finding departed from this indication, it is to be accepted that in order for the applicant's moral culpability to be reduced on account of his ADHD it had to have contributed to the commission of the offence in a "material way". In that context, her Honour found that the applicant's offending did not "assist the submission of a causal connection, at least in any material way". In other words, her Honour was not satisfied of any relevant or material connection.
I am satisfied that her Honour's finding was that she was not satisfied that there was any relevant or material connection and, thus, no basis for making any reduction in moral culpability. It is to be accepted that her Honour did find that the applicant's time in custody would be more onerous because of his ADHD but that was in response to a separate submission.
I am fortified in the conclusion that her Honour ultimately was not satisfied that there was any causal connection by the fact that she did not go on to state that she was only reducing the applicant's moral culpability in a limited way. I cannot accept the Crown submission to the contrary. Nor can I accept the Crown submission that the ultimate finding that there was no connection was something that the applicant had been afforded the opportunity to address.
I accept the Crown submission that the applicant was afforded the opportunity before the sentencing judge to address on the causal connection. So much is apparent. But that submission does not address the complaint made. The complaint is not that the applicant was denied the opportunity before the sentencing judge to address on the causal connection; it is that he was denied the opportunity to persuade her Honour that she would in fact find that there was some connection. Once she indicated to the applicant's then senior counsel that the Crown accepted such a connection, there was no basis for any further submissions to be made on that subject: See Nair v R [2013] NSWCCA 79 at [47]-[50] (Simpson J) and [70]-[72] (Blanch J).
I also accept the Crown submission that, as a matter of principle, her Honour was not required to make a finding that there was such a connection. It is always open to a sentencing judge to reject evidence if there is a proper basis for doing so. But again, that submission does not address the complaint made. If her Honour was going to reject the expert evidence, in the face of acceptance of it by the Crown, principles of procedural fairness required that she give the applicant the opportunity to address on that potential finding.
As for the Crown submission that the applicant ought not be permitted to rely on the transcript of argument to establish error, it is to be accepted that this Court has been critical of reliance on transcript (rather than the reasons) to establish error (see R v Pham [2005] NSWCCA 94 at [11] and R v Thompson [2005] NSWCCA 340; (2005) 156 A Crim R 467 both cited in Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193; at [23]). The exception to that general rule is where complaint is made of the nature the subject of this ground. It is difficult to see how a denial of procedural fairness could be established without recourse to what the sentencing judge indicated (or otherwise) to counsel during the proceedings on sentence: Refaieh v R [2018] NSWCCA 72 at [16].
I would uphold ground 1. I shall consider the question of the extent to which the applicant's ADHD reduced his moral culpability in re-sentencing.
At the hearing, it was submitted that the applicant's position within the enterprise was "relatively lowly" not only in the regard he was held but also in relation to his role. It was submitted that the agreed facts do not describe anyone who is materially lower than the applicant, either by name, designation, role or conduct and that "the capacity to speak with the boss, directly or indirectly, cannot be regarded as meaning hierarchically you are close to the boss".
In Pham v The Queen [2012] VSCA 101 at [4], Redlich JA observed that the "characterisation of an offender's position may not always illuminate and may sometimes obscure the actual level of criminality of the offender assessed by reference to his conduct". Redlich JA went on to observe that where, as in the present case, the evidence establishes the acts performed by the offender and their position within the criminal organisation, the offender's criminality is to be assessed by a consideration of both the actions of the offender and the role he occupies within the organisation. His Honour went on to observe the following at [5]:
"It will often be difficult to categorise the role of the offender within the criminal enterprise or to determine his role relative to others. The focus must then be upon the degree of criminality of the acts performed and their importance in accomplishing the organisation's criminal purpose. When dealing with a number of offenders whose positions within the enterprise are difficult to identify or are closely aligned, the need will arise to identify the features of each offender's conduct that justify the imposition of the sentences, whether they are the same or different, which have been imposed on each co-offender."
(Emphasis added.)
Similarly, in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72], Johnson J (with whom MacFarlan JA and R A Hulme J agreed) distilled a number of relevant principles when sentencing drug importation offenders. The first three relevant factors were as follows:
"(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27];
(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];
(c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26]." (emphasis in original)
It is clear from the agreed facts that the applicant held a trusted role in the syndicate, which was above that of a courier. It involved management and decision-making functions. The AN0M messages also suggest there were individuals above and below the applicant in the syndicate, that he held a financial stake in the success of the syndicate, that he was in direct contact with a more senior individual and that he was entrusted with high level information about the syndicate's operation and methodology.
The question is whether, even if it was accepted that there was insufficient evidence before her Honour to find beyond reasonable doubt that he was above mid-level management, it would make any difference to the finding of objective seriousness given the principles I have referred to above and all of the evidence of the specific acts that the applicant did in furtherance of the importation. To put this another way, even if the discrete error was established does it have the capacity to impact on the result?
It is pertinent to have regard to the context in which her Honour made the impugned observation as to the applicant's role in the hierarchy (see extracted above at [47]). Her Honour found that his role was critical but "not at the higher end", he had contact with those at the higher end, and he was trusted to deal with the logistics and arrangements for all seven consignments. The enterprise was "sophisticated, well-organised and complex". He placed himself at the most risk. Her Honour then observed that, "[w]hilst it is very difficult to place a label on it, the offender clearly played a far more significant role than a courier. He was trusted".
I pause to note that the applicant did not make any complaint about any of these findings. The complaint is solely directed at the next few words which follow the undoubtedly correct finding that the applicant's role was far more significant than a courier which were "he was, to my mind, somewhere between the mid and senior levels of the syndicate itself". It seems to me that had her Honour simply observed that he was trusted and played a more significant role than a courier that would have been sufficient. The difficulty is that her Honour made a finding that the applicant was "somewhere between the mid and senior levels of the syndicate itself". Unfortunately, the agreed facts were largely silent as to what role the others in the syndicate played besides "Coconut" which made the finding of where the applicant stood in the actual hierarchy very difficult if not impossible to ascertain.
I accept the Crown submissions as to the significant role the applicant played in the importations. But the difficulty is that the paucity of material about the role played by the others in the syndicate (the result of the fact that none of the other alleged co-offenders have pleaded guilty on agreed facts) means that, regrettably, it was not possible to find beyond reasonable doubt who was below the applicant and whether he was in fact above mid-level in the syndicate.
Although the matter is finally balanced, I also accept that this error had the capacity to influence the result.
I would uphold ground 2. I will address the question of whether upholding this ground leads me to make a different finding of objective seriousness in re-sentencing the applicant.
The case against the applicant did not depend on the AN0M evidence, although it clearly strengthened it.
Ultimately, I have taken the applicant's willingness to facilitate the administration of justice into account as part of my instinctive synthesis separately to the utilitarian value of the plea and as evidence of remorse.
Thirdly, as for the finding of objective seriousness, the applicant contended that the court should make a different finding to the sentencing judge, although it was noted it is neither necessary nor desirable to fix objective seriousness on a scale in sentencing for an offence that does not have a standard non-parole period.
It was submitted that in re-assessing the objective seriousness of the offence, the court would take into account the direct nexus between the applicant's diagnosed ADHD and his offending behaviour; and to disregard the sentencing judge's erroneous finding that his role placed him somewhere between the mid and senior levels of the syndicate.
It was further submitted on behalf of the applicant that an available interpretation of the agreed facts is that the applicant was subordinate to most (if not all) of the members of the syndicate identified by their AN0M handles and that none of those referred to in the facts were below the applicant in a hierarchy of offenders.
It is to be accepted that it is now well established that it is not an error to decline to assess objective seriousness by reference to a notional range. In DH v R [2022] NSWCCA 200, Harrison J (as his Honour then was) (Fagan and Yehia JJ agreeing) considered a ground of appeal in which although the applicant conceded that the sentencing judge had made findings relevant to objective seriousness, he complained that her Honour did not indicate where on the scale of seriousness each of the offences fell. In that context, his Honour confirmed yet again at [33] that a sentencing judge is not required to:
"… recite some mantra invoking comparisons about where the sentence being considered falls on some hypothetical arithmetical or geometrical continuum of seriousness. Whereas it would not be an error for a judge to adopt such an approach, a failure to do so does not indicate error."
(Emphasis added.)
Yehia J agreed with Harrison J and went on to observe the following at [60]:
"A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as 'low end of the middle of the range', 'upper end of the middle of the range' or, 'just below or above the midpoint' add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence."
On the other hand, in R v Walker [2023] NSWCCA 219, Leeming JA observed that it may sometimes be helpful to define objective seriousness by reference to a range, notwithstanding that the putative scale from "low range" through "mid-range" to "high range" is a vague one: at [2]-[3]. See also Dorsett v R [2024] NSWCCA 192 at [150]-[153].
Given that the sentencing judge placed the objective seriousness on a range, I propose to adopt the same approach. It seems to me that it can be helpful where there are a number of alleged co offenders.
As for the fact that I have found that the applicant's moral culpability is reduced to some extent, that is not relevant to the assessment of objective seriousness in this case for the reasons stated in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156.
The sentencing judge enumerated the factors relevant to the assessment of objective seriousness (extracted above at [46]). With the exception of the impugned words regarding where this applicant fit into the hierarchy, her Honour's findings were all apposite. This was very serious offending.
I do not consider it possible on the material before me to specify where in the hierarchy this applicant was. As her Honour found, he was clearly much higher than a courier given the roles he performed. Beyond that, it is not possible to make any clear finding. Having regard to the relevant principles, I am satisfied it is not necessary for me to make any finding beyond that.
Even having regard to the error established under ground 1, I would arrive at the same finding of objective seriousness as did the sentencing judge for the same reasons provided by her Honour, albeit without reference to any finding as to what level of "management" he sat at.