Applicant's submissions
10 The applicant's sole ground of appeal is that the sentence is manifestly excessive. The primary submission was that his Honour's starting point of 15 years was too high in light of the criminality of the applicant.
11 Although his Honour made reference to a number of comparable cases including Bernier v R (1998) 102 A Crim R 44, R v Liu [2005] NSWCCA 378 and R v Tyler and Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458, the applicant submitted that the relevant starting point was assessed "with particular reference" to the decisions of Speer v R [2004] NSWCCA 118 and R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525. It was said that, in fixing the starting point at 15 years, his Honour overlooked similarities between the present case and Speer as well as differences between the present case and Otto.
12 The offender in Speer imported 2.5411 kg of heroin. He agreed to act as a courier in exchange for a payment of $3500. He was a young man with a supportive family. He exhibited genuine contrition, had good prospects of rehabilitation and was deemed unlikely to re-offend. He had no prior convictions. He made an offer of assistance to the authorities although this was ultimately of no benefit. The sentencing judge accepted that Speer was unaware of the precise nature and quantity of the drugs he was carrying. A starting point of 10 years was applied, and a 10% discount awarded to account for his late plea of guilty. The resultant head sentence was 9 years. The applicant submitted that Speer:
"provide[s] many salient features similar to the criminality involved in the applicant's offence and was within the sentencing range, however the starting point for the applicant was 50% higher."
13 The offender in Otto pleaded guilty to importing 2,136.8 g of cocaine. The cocaine had an estimated street value of more than $854,000. The sentencing judge was unable to positively identify Otto's precise role in the importation, but rejected his assertion that he was a "naïve courier." This was affirmed by Sully J on appeal, who noted that "on the given findings, Otto was in a real and substantial sense a serious and significant player in a serious and significant criminal enterprise having serious and significant adverse consequences for this country and its citizens" (at [21]). Otto's original sentence of 14 years with a non-parole period of 8.5 years was reduced on appeal to a term of 10.5 years with a non-parole period of 7 years. This incorporated a 25% discount for the plea of guilty. The notional starting point would have been 14 years. The applicant outlined what in its submission were a range of "dissimilar features" between Otto and the present case. The objective differences included the level of criminality involved (which Hall J in Otto described as "greater…than the naïve recruit" and "of a reasonably high order"), the impossibility of determining Otto's position in the hierarchy, and finally, the fact that the importation was "not…unsophisticated". The subjective differences included Otto's age (28 at the time of sentence), his clear prior record and his circumstances of impoverishment. The applicant submitted that:
"the discussion of Otto turned on the assessment of the role of the offender and then the discount applicable for the plea; neither of these issues were unresolved features in the Applicant's matter. In the applicant's matter his honour [sic] found the applicant a courier and assessed the discount as 25%. No contest is made with these findings."
14 The applicant emphasised two additional matters. First, that although the sentencing judge rejected the applicant's claim of ignorance as to the nature and quantity of the drugs, his Honour made no positive finding that the applicant "had full knowledge of the size and nature of the importation." Second, that the prior convictions disclosed by the applicant were not such as to aggravate the sentence, and moreover, that the absence of drug convictions was not taken adequately into account in the applicant's favour.