Criminal law - Appeal against sentence - Appellant convicted of entering into an agreement with other persons to commit an offence, namely the importation into Australia of a border controlled drug, and in the course of carrying out the agreement attempting to import a commercial quantity of a border controlled drug, namely methamphetamine - Early plea of guilty - Sentence of 12 years' imprisonment with a non­parole period of 8 years 4 months - Discount for early plea - Whether s 9AA of the Sentencing Act 1995 (WA) applies to federal offences - Parity principle - Manifest excess

Crimes Act 1914 (Cth), pt IB

Criminal Appeals Act 2004 (WA), s 31(3), s 31(4)(a)

Judiciary Act 1903 (Cth), s 68

Sentencing Act 1995 (WA), s 8(2) (repealed), s 9AA

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Billing v The State of Western Australia [No 2] [2008] WASCA 11

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Jardim v The State of Western Australia [2011] WASCA 83

John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Ng v The Queen [2010] NSWCCA 232

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174

R v Banker [2016] QCA 74

R v Calis [2013] QCA 165

R v Ferrer-Esis (1991) 55 A Crim R 231

R v Gee [2003] HCA 12; (2003) 212 CLR 230

R v Host [2015] WASCA 23; (2015) 248 A Crim R 352

R v Ng [2012] WASCA 180

R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106

R v Taudevin [1996] VICSC 7; [1996] 2 VR 402

R v Thathiah [2012] QCA 195

1 BUSS P: The appellant has applied for leave to appeal against sentence.

2 He was convicted, on his plea of guilty in the Supreme Court before Fiannaca J, of one count in an indictment.

3 The count alleged that between 9 October 2014 and 13 January 2015, at Perth and elsewhere, the appellant entered into an agreement with other persons, namely Ngoo Chan, Dam Ta Lam, Yoh Wah Khew and Choon Keong Yong, to commit an offence, namely the importation into Australia of a border controlled drug, and in the course of carrying out the agreement the appellant, Chan, Lam, Khew and Yong attempted to import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity attempted to be imported was a commercial quantity, contrary to s 11.2A(1), s 11.1 and s 307.1 of the Criminal Code (Cth) (the Code).

4 On 14 January 2016, the sentencing judge sentenced the appellant to 12 years' imprisonment. His Honour imposed a non-parole period of 8 years 4 months. The sentence was backdated to 13 January 2015, being the date on which the appellant was taken into custody for the offence.

5 The appellant was represented by counsel at the hearing before the sentencing judge. He was self-represented before this court.

6 I would refuse leave to appeal and dismiss the appeal. My reasons are as follows.

The facts and circumstances of the offending

7 The facts and circumstances of the offending, as stated by the prosecutor before the sentencing judge, were not disputed by the appellant's counsel at the sentencing hearing.

8 Those facts and circumstances, as recounted by his Honour in his sentencing remarks, are as follows:

You were an associate of a man named Chan. Chan has been in prison in Western Australia since March 2006, serving a term of imprisonment for importing drugs into Australia. Since October 2014 he had been communicating with a man using overseas telecommunication services. The Australian Federal Police believe that man is a foreign national who was in Malaysia and whose name is Yong. Chan and Yong spoke in code**.** They discussed the importation of drugs into Australia and Yong sending an associate to Australia, where Chan's associate would meet him and look after him. You were that associate.

On 9 December 2014, Yong informed Chan that his associate would arrive in Perth on Thursday, 11 December 2014 at 5.35 am. Chan gave Yong a mobile telephone number to give to his associate. During the call, Chan used an alias and he also referred to you by an alias.

At 5.35 am on 11 December 2014, Yong's associate arrived in Perth on board an AirAsia flight. His name is Yoh Wah Khew. After leaving the arrivals area, he used a mobile telephone. He then purchased another mobile phone and SIM card at a store at the airport. He then made several telephone calls.

That morning, between 6.51 am and 7.14 am, you spoke to Yong in Malaysia. He told you that his friend had arrived at the airport. You said that you would give Khew an address and that he could take a taxi there. Yong gave you a mobile phone number on which to contact Khew. You were then told that Khew was at the airport and that he had just purchased a new phone. You were given the number and Yong asked you to call Khew.

After that, between 7.17 am and 8.34 am, you spoke with Khew by telephone on several occasions. In the first conversation, Khew introduced himself as the guy from Malaysia, told you he was at the airport and asked you when you would pick him up. You said you may be another half an hour.

About 20 minutes later, in another conversation, you told Khew that you would give him the address and he could take a taxi there which you would pay for. At some stage after that you sent him the address by text message.

At approximately 8.00 am, Khew left Perth Airport in a taxi. A couple of minutes after that, you called Khew and asked if he had received the address. Khew confirmed that he had and that he was on his way. At 8.15 am you called Khew and told him the number in the message was incorrect. You gave him the correct number.

At approximately 8.30 am, Khew arrived at the address you had given him in Osprey Circle in Ballajura. He called you and said that he was at the address. You said that you would be there in two minutes.

Approximately five minutes later, Khew met another person outside the premises. That person, Lam, lived at the address in Ballajura. The two went inside.

Just before 10.00 am that day, Chan spoke with Yong, who told him that Khew was at his destination and was waiting for you to arrive.

At approximately 10.00 am, Khew left the Ballajura address with Lam in a vehicle. At approximately 10.30 am, they arrived at an address in Arkana Road in Westminster where there was a delicatessen and a flat above the deli. Khew went to the flat. Lam left in the vehicle.

You later told Police that the flat in Westminster was where you lived. I have been told that that was, in fact, confirmed by the police.

At approximately 11.50 am on 11 December 2014, Chan spoke with Yong. He asked Yong if the 'safe house' could be changed. Yong told Chan that he had until the following day to provide a new address, as a third party was waiting for the address. The call indicates that the address in Ballajura, to which Khew had gone initially, was to be the 'safe house' where Khew was to stay and receive the imported drugs. Chan said he would provide a new address by the following day.

You were at the flat in Westminster. At approximately 2.40 pm that day, you left the flat and went to the deli. You then went back to the flat with a bottle of liquid.

At approximately 8.50 the following morning, 12 December 2014, Khew spoke to Yong. He gave Yong the address he was at in Westminster. Yong told Khew, in code, that the drugs would be sent on Monday, 15 December 2014. The call indicates that the address to which the drugs were to be sent had been changed from the address in Ballajura to the address in Westminster.

On 15 December 2014, Chan had several conversations with Yong about arrangements for the delivery of the drugs. During those calls, Yong complained that you were supposed to have given Khew $3,000, but that you had given him $2,500 and then taken back $1,500. He also indicated that Khew was not happy about the house in Westminster, because there were too many people coming and going. However, he said it was too late to change the address because he had already passed it on to his associate.

On 18 December 2014, Yong's son was arrested in Taiwan in possession of a parcel addressed to the United Kingdom.

On 19 December 2014, Chan received a text message from Yong asking Chan to call him urgently.

On 21 December 2014, Khew telephoned Yong and asked how he, Khew, would know the arrival date of the drugs. It seems he spoke at some stage with Yong's associate, who told Khew that he was tracking the shipment on his computer. Yong then asked Khew to rent different accommodation.

On 22 December 2014, Chan telephoned Yong. Yong said that his son was in trouble and that the address in Westminster could no longer be used because it was recorded in his son's phone. The plan was to continue, but a new address was to be found for Khew and you were to be told to give Khew two to three thousand dollars for that purpose.

Chan spoke with you two days later, on 24 December 2014. He told you to give Khew $3,000 and to find him a new place to stay.

On 26 December 2014 Chan telephoned Khew and introduced himself.

Sometime between 24 December and 31 December 2014, you gave Khew $3,000, because on 31 December 2014 Khew informed Yong that that had happened. Khew was told that he now had enough money to do the work.

On 2 January 2015, Khew had telephone conversations with Yong and received text communications from him giving him an address in Millom Street in Butler and some details that he would need when signing for the parcel containing drugs. These consisted of a name and telephone number.

On 7 January 2015, Khew spoke to another person in Malaysia who told him when the package would arrive and that he would need tools after taking delivery.

On 9 January 2015 Taiwan police saw a man in Taipei deliver to the United Postal Service a package addressed to a person in Australia at the address in Butler that Khew had been provided with in the text messages that he received on 2 January 2015. The Taiwan police seized the package and examined it. Hidden inside the package were three bags, each of which contained approximately 1 kg of methamphetamine. Taiwan police removed the bags of drugs and returned the package to United Postal Service. The package arrived in Perth on 11 January 2015. Australian Federal Police seized it the next day. They placed a substitute substance inside the package to replicate the appearance of the methamphetamine that had been seized in Taiwan.

In the meantime, Yong had told Khew on 11 January that he would talk to Chan the following day and arrange for money to be given to Khew.

On 12 January 2015, Yong asked Chan to give Khew $1,000, as Khew had run out of money. He told Chan that the drugs were in transit. Yong later told Khew that Chan had agreed to give him $1,000.

That same day, Chan asked you if you had $1,000 to $2,000 to give to Khew.

Soon after, Chan told Yong to tell Khew not to call out on both mobile telephones. Soon after that, Yong told Khew that you would give him $1,000. He also told Khew to take only one mobile phone with him. Khew said he would throw the other one away after the drugs arrived.

The next morning, on 13 January 2015, you arrived at the Millom Street address in Butler at 8.24 am in a red Mazda vehicle, which was reversed into the garage at those premises. At the time, Khew was at the rear of the premises. After several minutes, you left in the red Mazda and the vehicle was seen to return to the Osprey Circle address in Ballajura about an hour later.

At approximately 10.30 am on 13 January 2015, the package was delivered to Khew at the address in Ballajura.

At approximately 11.00 am, Department of Corrective Services staff detained Chan. Australian Federal Police arrested him and seized a mobile phone from him.

At 12.14 pm that day, you arrived at the Butler address in the red Mazda vehicle with Lam. You entered the house through the front door, carrying a bag, while Lam left in the car. He went to a hardware store where he bought scales and a pick hammer. He then returned to the house in Butler and went inside with a shopping bag containing the items he had purchased.

At approximately 1.30 pm, police officers executed a search warrant at the address in Butler. They found Khew, Lam and you with the package that had been sent from Taiwan. It had been opened and the substitute substance had been removed. One of the bags of the substitute substance had been opened. Police officers also found digital scales, a pick hammer, clip-seal bags, approximately $1,000 in cash and three mobile telephones.

At the same time the search warrant was executed at the Butler address, other police were executing the search warrant at your flat in Arkana Road in Westminster, the one above the deli. They found a large number of mobile telephones and boxes for mobile telephones.

You were interviewed by federal agents and police at the Butler address and later at your flat in Westminster. You admitted breaking open the container in which the bags that had the substituted substance had been secreted, saying you had asked Lam to bring a hammer for that purpose. You also admitted handling the substance, saying that you had broken open one of the bags and had tasted the substance to see what it was. However, you lied about the circumstances in which you came to do so, claiming that Khew, whose name you said you did not know, had called you to say that a weird parcel had arrived, and you were there to help find out what it was.

You were charged on 13 January 2015, and have been in custody for this offence since then.

It has been accepted on your behalf that you have not provided any cooperation to the authorities, although by your plea of guilty you have now admitted that you entered into an agreement with others to import a border controlled drug and that, with those others, you attempted to import a commercial quantity of methamphetamine into Australia. The Crown accepts that there is a degree of cooperation in what you have done to date.

The total weight of the methamphetamine that was taken from the package seized in Taiwan was 2,829.49 g of 95% purity. So as the Crown has said, a little over 2½ kg of pure methamphetamine [3] - [42].

10 Ground 1 alleges, in essence, that the sentencing judge made an error in failing to reduce the appellant's sentence by 25% for his plea of guilty at the earliest opportunity.

11 Ground 2 alleges, in essence, that the sentence imposed by his Honour on the appellant, when compared to the sentences imposed on his co-offenders Chan and Khew, infringed the parity principle.

12 Ground 3 alleges, in essence, that the sentence imposed by his Honour on the appellant was manifestly excessive.

Ground 1: the sentencing judge's remarks as to the appellant's plea of guilty

13 The sentencing judge made these remarks concerning the appellant's plea of guilty:

You pleaded guilty at an early stage in the Magistrates Court and you were committed to this court for sentence. Your early plea of guilty demonstrates willingness to facilitate the course of justice and acceptance of responsibility for your offending behaviour, which is to your credit. That has resulted in a reduction in your sentence. In making the reduction for your plea of guilty, however, I have taken into account the fact that the case against you was a strong one. In that regard, I note that your telephone communications had been lawfully intercepted by Australian Federal Police, you were observed to be at premises where Khew attended and, of course, you were caught at the Butler premises involved in the opening of the parcel and testing of the contents. So, to some extent, the plea is recognition of the inevitable [59].

14 His Honour did not state the period or percentage by which he had reduced the sentence he would otherwise have imposed on the appellant on account of the plea of guilty.

15 The appellant appears to assert, in effect, that:

(a) the appellant pleaded guilty at the earliest opportunity;

(b) the sentencing judge was bound, in the circumstances, to reduce the sentence he would otherwise have imposed on the appellant by 25% on account of the guilty plea;

(c) his Honour failed to reduce the sentence he would otherwise have imposed on the appellant by 25% on account of the guilty plea; and

(d) his Honour's failure in that respect was an error of law.

16 The appellant's assertion appears to assume that s 9AA of the Sentencing Act 1995 (WA) applied to the sentencing of the appellant for the offence in question.

17 The sentencing of offenders for federal offences is, in general, governed by pt IB of the Crimes Act 1914 (Cth). See Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [23] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

18 By s 68 of the Judiciary Act 1903 (Cth), some State or Territory laws in relation to the sentencing of federal offenders are 'picked up' and applied as federal laws when a State or Territory court, exercising federal jurisdiction conferred by s 68, sentences a federal offender.

19 When s 68 of the Judiciary Act 'picks up' and applies a State law as a federal law, the State law applies with its meaning unchanged, subject to the qualification that the State law is applied upon the hypothesis that it operates as a federal law. See John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21; (1973) 129 CLR 65, 88 (Gibbs J), 95 (Mason J); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 [134] - [137] (McHugh J).

20 By virtue of the express qualification 'so far as they are applicable' in s 68(1) of the Judiciary Act, the State laws, to which s 68(1) refers, apply except as otherwise provided from time to time by the laws of the Commonwealth. See Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174 [7] (Gleeson CJ), [41] (Gummow & Heydon JJ), [121] (Callinan J); Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [11] (French CJ, Gummow, Hayne, Kiefel & Bell JJ). A State law, to which s 68(1) refers, will not be 'picked up' and applied by s 68 if a Commonwealth law expressly or impliedly makes contrary provision or if there is a Commonwealth legislative scheme dealing with the subject matter of the State law which is 'complete upon its face' and has 'left no room' for the operation of the State law. See R v Gee [2003] HCA 12; (2003) 212 CLR 230 [62] (McHugh & Gummow JJ); Putland [7] (Gleeson CJ); Bui [25] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).

21 Accordingly, to the extent that pt IB of the Crimes Act makes other provision, State and Territory laws relating to the sentencing of federal offenders are not 'picked up' and applied by s 68 of the Judiciary Act as federal laws. See Hili [21].

22 Section 16A(1) of the Crimes Act provides that, in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a sentencing court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

23 By s 16A(2), in addition to any other matters, the court must take into account such of the matters listed in s 16A(2) as are relevant and known to the court.

24 The matters listed in s 16A(2) include:

(g) if the person has pleaded to the charge in respect of the offence - that fact.

25 Section 16A applies of its own force to the sentencing of federal offenders. The provision accommodates the application of some common law sentencing principles; for example, general deterrence, proportionality and totality. It does not, however, accommodate, for example, the principle of double jeopardy. See Bui [18] - [19].

26 Section 8(2) of the Sentencing Act was repealed and s 9AA of that Act was introduced by the Sentencing Amendment Act 2012 (WA).

A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

29 In Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1, I made the following observations (McLure P agreeing) in relation to the proper construction and application of s 9AA:

Section 9AA applies where a person has pleaded guilty to a charge for an offence and the person is to be sentenced for that offence.

Any discount under s 9AA for a plea of guilty is to the 'head sentence', as defined in s 9AA(1). The head sentence, as defined, must be discounted for the plea before any other discount is allowed for any other mitigating factor.

If the 'head sentence' for an offence is or includes a 'fixed term' (as defined in s 85(1) of the Sentencing Act), any discount under s 9AA for a plea of guilty must not exceed 25%. Further, a discount of 25% must not be allowed unless the offender pleaded guilty, or indicated that he or she would plead guilty, at 'the first reasonable opportunity'.

The purpose of allowing a discount under s 9AA is 'to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea': s 9AA(2).

Section 9AA does not prevent a sentencing judge from reducing the 'head sentence', as defined, for any offence because of any mitigating factor other than a plea of guilty: s 9AA(6).

The apparent purpose or object underlying the repeal of s 8(2) and the introduction of s 9AA is readily discernible from the text of the provisions. It was:

(a) to impose a maximum limit on the discount available for a plea of guilty, namely 25% of the head sentence;

(b) to ensure the maximum discount of 25% may only be given where an offender pleads guilty, or indicates that he or she will plead guilty, at the first reasonable opportunity;

(c) to confine the availability of the discount under s 9AA for a plea of guilty to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea'; and

(d) to increase the transparency of the sentencing process by requiring the sentencing judge to state in open court the fact and the extent of any discount under s 9AA for a plea of guilty.

Section 9AA(2) exhaustively states the factors or criteria which may be taken into account in determining whether a discount should be given under s 9AA for a guilty plea and, if so, the extent of the discount. See Beins [No 2] [54].

Section 9AA(2), in confining the availability of the discount under s 9AA for a guilty plea to the recognition of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea' enunciates factors or criteria that emanate from the fact of the guilty plea. Subjective factors or criteria relating to the offender are not relevant in determining any discount to be given under s 9AA.

However, subjective matters relating to the offender remain relevant in considering whether the seriousness of the offence has been mitigated by, for example, any genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice. Section 9AA(6) states that s 9AA does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty. Parliament has not imposed a maximum limit on the discount available for mitigating factors, subjective to the offender, of the kind I have identified [45] - [53].

30 In my opinion, s 9AA of the Sentencing Act did not apply to the sentencing of the appellant for the offence in question.

31 Section 9AA makes detailed and exhaustive provision as to the factors or criteria which may be taken into account by a sentencing court in determining whether a discount should be given for a plea of guilty in sentencing an offender and, if so, the extent of the discount. By contrast, s 16A(2)(g) of the Crimes Act makes general and unqualified provision to the effect that, if an offender has pleaded guilty, the sentencing court must take the guilty plea into account in determining the sentence to be passed.

32 Section 16A(2)(g) makes contrary provision to s 9AA. The general and unqualified provision in s 16A(2)(g), read in the context of s 16A as a whole, is inconsistent with the detailed and exhaustive provision in s 9AA. There is no room in the Commonwealth legislative scheme embodied in pt IB of the Crimes Act for the operation of s 9AA.

33 In the present case, the sentencing judge was not bound, in the circumstances, to reduce the sentence he would otherwise have imposed on the appellant by 25% on account of the plea of guilty. Also, his Honour was not bound to state the period or percentage by which he had reduced the sentence he would otherwise have imposed on the appellant on account of the guilty plea. His Honour's failure to state the amount or extent of the discount for the guilty plea was not an error of law.

34 In any event, I am satisfied, generally for the reasons I give in relation to grounds 2 and 3, that no different sentence should have been imposed. See s 31(3) read with s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

36 The object of the parity principle is to ensure appropriate consistency in the sentencing of co-offenders. The critical question is whether disparity or lack of disparity in the sentencing outcome is capable of giving rise to a legitimate or justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 609 - 610 (Gibbs CJ), 613 (Mason J), 623 - 624 (Dawson J); Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 - 302 (Dawson & Gaudron JJ); R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404 (Callaway JA, Winneke P agreeing). The applicable test is objective not subjective. The application and effect of relevant sentencing principles must be taken into account in determining whether there is a legitimate or justifiable sense of grievance. See Jardim v The State of Western Australia [2011] WASCA 83 [12] - [13] (McLure P, Pullin JA agreeing).

37 An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and justifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. But parity of sentencing does not require a sentencing judge to be so lenient as to 'shock the public conscience' by imposing a sentence entirely disproportionate to the offence in question. See Billing v The State of Western Australia [No 2] [2008] WASCA 11 [11] - [12] (Steytler P, McLure JA agreeing).

38 In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan and Kiefel JJ said:

(a) the parity principle is based upon the norm of 'equality before the law' [28];

(b) equal justice according to law requires, so far as the law permits, that 'like cases be treated alike' [28]; and

(c) equal justice also requires, where the law permits, 'differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law' [28].

39 Their Honours also said that an appellate court will refuse to intervene, on the basis of the parity principle, where disparity is justified by differences between co-offenders; for example, differences in relation to age, background, criminal history, general character and the part each co-offender has played in the relevant criminal conduct or enterprise [31].

40 It has often been said that it is desirable for co-offenders to be sentenced by the same sentencing judge. Alternatively, if that is not practicable, the second sentencing judge should be fully informed about the sentence imposed by the first sentencing judge. See Lowe (617, 622); Postiglione (320).

Ground 2: the sentencing of the appellant's co-offenders Chan and Khew

41 On 24 September 2015, the appellant's co-offenders, Mr Chan and Mr Khew, were sentenced by Martino J.

42 His Honour made the following findings and observations in relation to Mr Chan's role in the offending, his personal circumstances and the sentence to be imposed on him:

You, Mr Chan, were aged 64 at the time that you committed the offence. You have a wife and four children.

By your offending, you were organising at a high level the attempt to import drugs into Australia. You did not know the precise amount or purity of the drugs. In fact, it was a very large quantity of the drug methamphetamine with a very high percentage of purity. You went to quite a lot of effort to organise the drugs. You must have known that a significant amount of drugs were to be imported into Australia. You communicated with a foreign national from a mobile phone that you had obtained while you were in prison and you arranged for associates here in Perth to participate in the collection of the drug. Your role in the criminal agreement was at a higher level of organisation than the role of Mr Khew. For that reason, I conclude that your culpability was greater than Mr Khew's culpability.

You pleaded guilty at an early stage in the Magistrates Court and you were committed to this court for sentence. Your early plea of guilty demonstrates willingness to facilitate the course of justice and acceptance of responsibility for your offending behaviour, which is to your credit, and that has resulted in a reduction in your sentence. In making the reduction for your plea of guilty, I have regard to the fact that the case against you was a strong one, primarily because your telephone communications had been lawfully intercepted by Australian Federal Police.

The offence you committed was serious. The drug methamphetamine causes great damage to the lives of people who use the drug, their families and to victims of crimes committed by people who use the drug. It is necessary for me to impose a sentence which is of a severity appropriate in all the circumstances of the offence, and to consider all the relevant matters concerning you and the offending which are set out in s 16A of the Crimes Act 1914 (Cth). I have also considered the need to impose a sentence that takes into account the need for general deterrence.

Personal and general deterrence are important factors in this case because methamphetamine is a dangerous drug and the protection of the community requires that you and other people tempted to import the drug into Australia know that, if they do so or attempt to do so, they are committing a serious crime and that appropriate punishment will follow.

You have provided information and a statement to authorities and you have signed an undertaking to cooperate and give evidence against others accused of being party to this criminal enterprise. The assistance that you have provided to authorities has resulted in a reduction of sentence. In addition, by reason of that undertaking, I have further reduced the sentence that would otherwise have been imposed.

You have a prior record of offending that is relevant. You were convicted in Sydney on 6 October 2000 of being knowingly concerned in the importation of a commercial quantity of heroin. You were sentenced to 20 years' imprisonment with a non-parole period of 15 years. You were serving that sentence when you committed this offence. You became eligible to be considered for parole but parole was refused.

That offence and the sentence imposed for it are relevant for two distinct reasons. First, that offending behaviour is relevant under s 16A of the Crimes Act as it is relevant to the need for personal deterrence and an assessment of your character and antecedents. Second, I am required to take that sentence into account under s 16B of the Crimes Act and the totality principle to ensure that the total of the sentence I impose and the sentence that was imposed in 2000 is a just and appropriate measure of the total criminality involved in your conduct on the two occasions.

I have reduced the sentence I would have imposed by reason of the application of the totality principle.

A sentence of imprisonment is not to be imposed unless, having considered all the other available sentencing options, I am satisfied that no other sentence is appropriate. I have decided that, by reason of the seriousness of the offence and the need to deter you and others tempted to import drugs into Australia, the only appropriate sentence is a term of imprisonment.

The amount of the drug that you attempted to import is of importance, but it is not the only factor in determining the sentence. Other matters are relevant. It is relevant that you arranged for the drugs to be imported into Australia in the ways that I have found and expressed in these sentencing remarks.

The fact that your attempt to import the drug into Australia was not successful does not reduce the seriousness of your offending. The attempt was not successful by reasons of matters outside of your control. The failure was not the result of you withdrawing from the plan to import the drug into Australia.

As I have said, I have reduced your sentence by reason of the application of the totality principle. The sentence I would have imposed, if you were not serving the sentence of imprisonment that was imposed in 2000, would have been 14 years' imprisonment. The application of the totality principle warrants a reduction to 12 years' imprisonment. I have also reduced the sentence by reason of your undertaking to co-operate with law enforcement authorities and to give evidence against other accused being party to this criminal enterprise. I have reduced that sentence to 9 years' imprisonment.

That sentence of imprisonment commences being served today.

Section 19AB(2) of the Crimes Act provides for a court to fix a single non-parole period or make a recognisance release order when sentencing an offender who is already serving a sentence for a federal offence when at the time the further sentence is imposed the offender is not already subject to a non-parole period or recognisance release order. It is my view that s 19AB(2) applies in your case because the sentence imposed in 2000 had a non-parole period of 15 years. That period has expired. Therefore, today, which is when I am imposing the further federal sentence, you are not subject to a non-parole period.

I have decided that I should impose a single non-parole period, which commences today.

If it had not been for your undertaking to co-operate with law enforcement authorities by giving evidence against other accused being party to this criminal enterprise, I would have fixed a non-parole period of 8 years. I have reduced that non-parole period to 6 years. That means that you will be eligible to be considered for release on parole 6 years from today's date. It also means that, if you fail to comply with your undertaking to co-operate with law enforcement authorities, the Crown can appeal against the reductions in sentence and non-parole period that I have made by reason of your undertaking [25] - [41].

43 Martino J made the following findings and observations in relation to Mr Khew's role in the offending, his personal circumstances and the sentence to be imposed on him:

You, Mr Khew, were aged 56 at the time that you committed the offence. You are a Malaysian citizen. You worked as a car salesman in Malaysia for over 20 years. You lost that employment and there were limited other employment options. You became desperate to obtain money for your family. An acquaintance offered you $7,000 to fly to Western Australia and to make yourself available to collect at least one parcel.

You are remorseful and ashamed of your conduct. You have a family in Malaysia. You have no support network in Australia and imprisonment in this country is difficult for you.

You played an important role in the attempt to import a very large quantity of the drug methamphetamine with a very high percentage of purity into Australia. You came to Australia to take possession of the drug. You were the person who received the package which was intended under the criminal agreement to contain the drug. You met with people in Australia who intended to participate in the collection of the drug.

You pleaded guilty at an early stage in the Magistrates Court and you were committed to this court for sentence. Your early plea of guilty demonstrates willingness to facilitate the course of justice and acceptance of responsibility for your offending behaviour, which is to your credit and that has resulted in a reduction in your sentence.

In making the reduction for your plea of guilty, I have regard to the fact that the case against you was a strong one, because not only had your telephone conversations been lawfully intercepted by Australian Federal Police, but police officers found you with the package sent from Taiwan in the circumstances that I have already described.

The offence you committed was serious. The drug methamphetamine causes great damage to the lives of people who use the drug, their families and to victims of crimes committed by people who use the drug.

It is necessary for me to impose a sentence which is of a severity appropriate in all the circumstances of the offence, and to consider all the relevant matters concerning you and the offending which are set out in s 16A of the Crimes Act. I have also considered the need to impose a sentence that takes into account the need for general deterrence.

Personal and general deterrence are important factors in this case because methamphetamine is a dangerous drug and the protection of the community requires that you and other people tempted to import the drug into Australia know that, if they do so or attempt to do so, they are committing a serious crime and that appropriate punishment will follow.

You have provided information and statements to authorities and you have signed an undertaking to cooperate and give evidence against other accused of being party to this criminal enterprise. The assistance that you have provided to authorities has resulted in a reduction of sentence. In addition, by reason of that undertaking, I have further reduced the sentence that would otherwise have been imposed.

You have no known prior record of offending. A sentence of imprisonment is not to be imposed unless, having considered all the other available sentencing options, I am satisfied that no other sentence is appropriate. I have decided that, by reason of the seriousness of the offence and the need to deter you and others tempted to import drugs into Australia, the only appropriate sentence is a term of imprisonment.

The amount of the drug that you attempted to import is of importance, but it is not the only factor in determining the sentence. Other matters are relevant. It is relevant that you participated in the attempted importation of drugs into Australia in the way that I have found and expressed in these sentencing remarks.

The fact that your attempt to import the drug into Australia was not successful does not reduce the seriousness of your offending. The attempt was not successful by reasons of matters outside of your control. The failure was not the result of you withdrawing from the plan to import the drug into Australia.

There are three reasons why your sentence is different to that of Mr Chan. The first reason is that your role in the criminal enterprise was at a lower level than that of Mr Chan. The second reason is that your character and antecedents are better than Mr Chan. The third reason is that Mr Chan's sentence has been reduced by reason of the application of the totality principle. That does not apply in your case.

I have reduced your sentence by reason of your undertaking to co-operate with law enforcement authorities and to give evidence against other accused being party to this criminal enterprise. If you had not given that undertaking, I would have sentenced you to 10 years' imprisonment. I have reduced that sentence to 7 years and 6 months' imprisonment.

That sentence of imprisonment is deemed to have commenced being served when you went into custody on 13 January 2015.

I can impose a non-parole period or a recognisance release order. I have decided that I should impose a non-parole period. If it had not been for your undertaking to co-operate with law enforcement authorities by giving evidence against other accused being party to this criminal enterprise, I would have fixed a non-parole period of 6 years and 8 months. I have reduced that non-parole period to 5 years. That means that you will be eligible to be considered for release on parole 5 years from 13 January 2015. It also means that if you fail to comply with your undertaking to co-operate with law enforcement authorities, the Crown can appeal against the reductions in sentence and non-parole period that I have made by reason of your undertaking [42] - [57].

Ground 2: the sentencing judge's findings and observations in relation to the appellant's role in the offending

44 As I have mentioned, Mr Chan and Mr Khew were sentenced by Martino J on 24 September 2015 and the appellant was sentenced by the sentencing judge on 14 January 2016.

45 The sentencing judge was fully informed about the sentences imposed by Martino J on Mr Chan and Mr Khew.

46 The sentencing judge made the following findings and observations in relation to the role of the appellant in the offending compared to the roles of Mr Chan and Mr Khew:

Your role in this offending was very significant. You worked closely with a key organiser of the importation, Chan, and you were a vital link in the intended distribution of the drugs within Australia, especially as Chan was in prison at the time. You were the organiser on the outside. You provided accommodation and money to Khew, who had travelled to Australia for the sole purpose of receiving the parcel which was to contain the methamphetamine. You enlisted Lam to assist in the criminal enterprise.

Following the delivery of the parcel, you assisted Khew to open the container which you believed contained the illicit drugs. You had Lam buy a pick hammer for that purpose. Lam also bought scales which were obviously going to be used to weigh the drugs. On your own admission, you were involved in testing the contents of one of the bags. The only reasonable inference is that you wanted to ensure the substance was the drug you were expecting to receive.

On the basis of the circumstances I have just outlined, I am satisfied that your role in the criminal enterprise was at a slightly lower level than that of Chan, but at a higher level than that of Khew, as was submitted by the Crown. The difference between you and Khew is, to some extent, illustrated by what Yong said to Khew on 21 December 2014 when Khew was querying the change of address. I appreciate that you were not a party to that call, and you cannot comment on what other people might have been saying, however, it is instructive that Yong told Khew that it was not his responsibility to worry about that matter. He told Khew that there were layers of safety to enable this criminal enterprise to succeed. You were one of those layers.

In assessing your criminality, relative to Khew, I have also had regard to the difference in your antecedents. Khew had no known prior record of offending. You, on the other hand, came into this enterprise with a history of serious drug offending and as a declared drug-trafficker. You had relevant experience [60] - [63].

47 Later in his sentencing remarks, his Honour made the following analysis of the seriousness of the appellant's offending and his culpability compared to the seriousness of Mr Chan's and Mr Khew's offending and their culpability:

What is of particular significance in the present case is the application of the parity principle which, in general terms, requires that cases that are the same should be treated in the same manner in sentencing. Here, of course, there are two offenders who have already been sentenced for the same offence for which you are being sentenced. Chan was ultimately sentenced to 9 years' imprisonment with a non-parole period fixed of 6 years. Khew was ultimately sentenced to 7 years and 6 months' imprisonment with a non-parole period fixed of 5 years. However, while it is necessary for me to have regard to the sentences imposed on them, their cases are not the same as yours.

I have had the considerable benefit of the sentencing remarks of Martino J who sentenced both Chan and Khew (R v Chan and Khew [2015] WASCR 197). It is immediately apparent that there is a significant distinction between each of their cases and your case. Each of them provided information and a statement to authorities and signed an undertaking to cooperate and give evidence against others accused of being a party to this criminal enterprise. The sentence imposed on each of them was reduced significantly from the sentence that would otherwise have been imposed because of the undertaking. The reduction was both to the head sentence and the non-parole period. You are not entitled to any such reduction as you have not provided any comparable assistance or given an undertaking of the kind given by them.

Another difference between you and Chan is that the sentencing judge also reduced the sentence he would otherwise have imposed on him because of the need to take into account the totality principle, as Chan was still serving a sentence imposed on him in 2000. This resulted in a reduction of the starting point from 14 years to 12 years' imprisonment. That consideration does not apply in your case.

The significant reductions in sentence in Chan's case have resulted in a final sentence that can provide no guidance to what is an appropriate sentence in your case. I have found that your culpability is slightly less than Chan's. All other matters being equal, you would ordinarily expect to receive a sentence that was less than Chan's. However, all other matters are not equal in this case. As you are not entitled to the same significant reductions as Chan, the inevitable result will be that your sentence will be heavier. That is a reflection of the value that the court places on the kind of assistance and undertaking Chan has given. It is to be encouraged and properly acknowledged in the interests of justice. It can provide no basis for a sense of grievance on your part.

In my opinion, the appropriate sentence to which I should have regard in endeavouring to achieve consistency in the application of the sentencing principles is the sentence that Martino J would have imposed on each of Chan and Khew, were it not for the reduction resulting from their undertaking to provide future cooperation and from the application of the totality principle in Chan's case. As I understand his Honour's remarks, that starting point was arrived at in each case after making a reduction for the offender's plea of guilty, moderated by the fact that the prosecution case against each of them was strong.

From discussion with counsel for the Crown today it would appear that his Honour also took into account prior assistance that had been provided by Mr Chan and Mr Khew. However, that assistance, it seems to me, was linked almost inextricably to the undertaking that they gave to provide future cooperation, including the giving of evidence against other offenders. For instance, the statement that has been provided by each of them would appear to me to have little value if they had not agreed to provide that undertaking to give future cooperation.

So, I will approach the matter on the basis that the starting point that his Honour arrived at in each case reflected mainly a reduction for the plea of guilty that was entered by each of Chan and Khew; in that sense, you are not in any significantly different position to them.

Accordingly, the sentence that would have been imposed on Chan, reduced for his plea of guilty, was 14 years. The sentence that would have been imposed on Khew, reduced for his plea of guilty, was 10 years. That said, I am required to exercise my own discretion in arriving at a sentence that is of appropriate severity, having regard to your circumstances. In particular, if I thought that using the starting points arrived at by Martino J as a yardstick would result in a sentence that was unduly severe in your case, after making allowance for your personal circumstances, I would not have regard to them. I am of the view, however, that they do provide an appropriate yardstick in this case.

It is necessary then to take into account the differences between you and your co-offenders. I have discussed the relative culpability between you and Chan. In terms of personal circumstances, I do not consider there is any matter of significance that would differentiate you. In both your cases there is no mitigation in your antecedents, both of you having been involved in the drug trade previously. The comparison with Khew is a different matter. Apart from Khew's assistance and undertaking, there are at least four other differences between his circumstances and yours.

I have already referred to the first two: the difference in your level of culpability and the difference in your character and antecedents. The third difference is that Khew was found to be remorseful and ashamed of his conduct. You expressed frustration and regret to the author of the pre-sentence report, but it seems to me to fall well short of remorse and shame. I was provided during the hearing with a letter from you in which you purport to express remorse, at least to the extent of apologising for your offending. I accept that, at this point in time, you continue to regret your involvement in the offence and perhaps appreciate a little more the harm that your offending can do in the community. I still consider, however, that your position falls short of that of Khew in terms of the remorse and shame that he expressed.

Finally, Khew had no support network in Australia and imprisonment in this country was considered to be difficult for him. In your letter you have indicated your intention eventually to move to New South Wales and be with your partner and your son, and that you intend to avoid drugs in the future and avoid committing offences of this kind. That, of course, is commendable. However, it does seem to me that your circumstances are still not the same as those of Mr Khew, in terms of the fact that he is, essentially, alone in this country without a support network, and that imprisonment will be a more difficult prospect for him.

So, those are differences that I take into account between your circumstances and those of Khew in determining the appropriate sentence that I should impose upon you [74] - [85].

48 The appellant was sentenced to 12 years' imprisonment with a non-parole period of 8 years 4 months. The sentence was backdated to 13 January 2015. Mr Chan was sentenced to 9 years' imprisonment with a non-parole period of 6 years. The sentence took effect on 24 September 2015. Mr Khew was sentenced to 7 years 6 months' imprisonment with a non-parole period of 5 years. The sentence was backdated to 13 January 2015.

49 There were material differences, for sentencing purposes, between the appellant, on the one hand, and Mr Chan, on the other. As the sentencing judge rightly observed, the appellant's role in the criminal enterprise was at a slightly lower level than Mr Chan's. However, it was necessary that Mr Chan's sentence be reduced on account of the totality principle. See also s 16B of the Crimes Act. Mr Chan was convicted on 6 October 2000 of being knowingly concerned in the importation of a commercial quantity of heroin. He was sentenced to 20 years' imprisonment with a non-parole period of 15 years. Mr Chan was in prison, serving that sentence, when he committed the offence in question. He was not released on parole before he was sentenced by Martino J. The totality principle was not relevant in the sentencing of the appellant. Further, it was necessary for Mr Chan's sentence to be reduced on account of the information and a statement he had provided to the law enforcement authorities in relation to the offending and, also, on account of a signed undertaking he had given to the authorities to cooperate and give evidence against other accused who were allegedly involved in the criminal enterprise. That sentencing consideration did not apply to the appellant. It is true that Mr Chan had a serious prior criminal record. However, the appellant also had previous criminal convictions including, notably, a conviction in 2002 for possession of a prohibited drug with intent to sell or supply (for which he was sentenced to 2 years' imprisonment suspended for 2 years) and convictions in 2005 for breach of the suspended sentence, possession of cocaine with intent to sell or supply it to another and possession of morphine with intent to sell or supply it to another (for which he was sentenced to a total effective sentence of 8 years 2 months' imprisonment and declared to be a drug trafficker).

50 There were also material differences, for sentencing purposes, between the appellant, on the one hand, and Mr Khew, on the other. As the sentencing judge rightly observed, the appellant's role in the criminal enterprise was at a higher level than Mr Khew's. Further, it was necessary for Mr Khew's sentence to be reduced on account of his undertaking to cooperate with the law enforcement authorities and to give evidence against other accused who were allegedly involved in the criminal enterprise. Also, Mr Khew's personal circumstances and antecedents were materially better than the appellant's. Mr Khew did not have a prior criminal record. By contrast, as I have mentioned, the appellant had a history of serious drug offending and was a declared drug trafficker. In addition, Mr Khew was found to be remorseful and ashamed of his criminal conduct. By contrast, his Honour found that the appellant's expression of frustration and regret to the author of the pre-sentence report fell 'well short of remorse and shame' [83]. Finally, Mr Khew had no support network in Australia and imprisonment in this country would consequently be more difficult for him. His Honour found that the appellant's circumstances in that respect were 'not the same as those of Mr Khew' [84].

51 In my opinion, the sentencing judge did not make any material errors of fact in his findings concerning the seriousness of the appellant's offending, and his culpability, compared to the seriousness of the offending of Mr Chan and Mr Khew, and their culpability.

52 I am satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors concerning the appellant, Mr Chan and Mr Khew, that the disparity between the appellant's sentence, on the one hand, and the sentence of each of Mr Chan and Mr Khew, on the other, did not infringe the parity principle or the principle of equal justice. The disparity (from the appellant's perspective) in the sentencing outcomes was not marked and unjustified. The disparity was not such as to give rise to a legitimate or justifiable sense of grievance on the appellant's part, or to give the appearance in the mind of an objective observer that justice was not done as between the appellant, on the one hand, and each of Mr Chan and Mr Khew, on the other, or generally. The appellant was not deserving of a materially lesser sentence relative to Mr Chan or Mr Khew.

54 It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the applicable statutory sentencing framework, the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.

55 In Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an 'available range' of sentences and the notions of 'manifest excess' and 'manifest inadequacy':

Reference to an 'available range' of sentences derives from the well-known principles in House v The King ((1936) [1936] HCA 40; 55 CLR 499). The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.

The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' (House at 505) in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall [26] - [28]. (original emphasis)

56 The principles relating to the fixing of a non-parole period for a federal offence are referred to in my reasons in R v Host [2015] WASCA 23; (2015) 248 A Crim R 352 [172] - [177].

57 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

58 When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

59 The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

60 At the material time, the maximum penalty for the offence committed by the appellant was life imprisonment or a fine of $1,275,000 or both.

61 The range of sentences which have been imposed for the offence of importing a commercial quantity of a border control drug is apparent from Ng v The Queen [2010] NSWCCA 232; R v Thathiah [2012] QCA 195; R v Calis [2013] QCA 165; R v Banker [2016] QCA 74; and the cases referred to in those decisions. I have examined each of them. It is unnecessary to set out the relevant facts and circumstances or the sentencing outcomes in the prior cases.

62 Offences of attempting to import border control drugs are not, of their nature, in a less serious category than offences of importing such drugs. See, in analogous circumstances, R v Ferrer-Esis (1991) 55 A Crim R 231, 239 (Hunt J, Gleeson CJ & Lee CJ at CL agreeing); R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106 [72(m)] (Johnson J, Macfarlan JA & RA Hulme J agreeing); and R v Ng [2012] WASCA 180 [39] (Buss JA, Newnes & Mazza JJA agreeing). An offence against s 11.2A(1), s 11.1 and s 307.1 of the Code carries the same maximum penalty as an offence against s 307.1. See s 11.1(1).

(a) As to s 16A(2)(a) of the Crimes Act, I have already recounted or referred to the nature and circumstances of the offence including the appellant's role in the criminal enterprise. The amount of the drug seized in Taiwan was more than three and a half times the commercial quantity of methylamphetamine for the purposes of the Code. The sentencing judge said the only reasonable inference was that the parties to the criminal enterprise planned to dilute the drug and distribute it in Australia for significant profit [66]. The fact that the appellant's attempt to import the drug was not successful did not reduce the seriousness of his offending. The attempt failed because of matters outside his control. His Honour found that the appellant was 'in [the criminal enterprise] to the very last' [68]. His Honour also found that the appellant's 'sole motive' in committing the offence was 'financial gain' [51], [54].

(b) As to s 16A(2)(b), there are no other offences that are required or permitted to be taken into account.

(c) As to s 16A(2)(c), the offence occurred between 9 October 2014 and 13 January 2015. The appellant's criminality was not isolated or opportunistic. It involved planning and premeditation.

(d) As to s 16A(2)(d), the 'victim' of the offence was the Australian community generally. The illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.

(e) As to s 16A(2)(e), commercial trafficking in illicit drugs results in injury, loss or damage of the kind I have referred to in relation to s 16A(2)(d).

(f) Section 16A(2)(ea) is not relevant.

(g) As to s 16A(2)(f) and (g), the appellant entered an early plea of guilty. His Honour accepted that the early guilty plea demonstrated a willingness to facilitate the course of justice and an acceptance of responsibility for the offending behaviour [59]. However, the author of the pre-sentence report suggested that the appellant continued to demonstrate a lack of insight into his offending, although he expressed regret and indicated some appreciation that illicit drugs are a scourge.

(h) Section 16A(2)(fa) is not relevant.

(i) As to s 16A(2)(h), his Honour found, in effect, that, having regard to the appellant's history and his lack of cooperation with the law enforcement authorities, at least in relation to making any admissions concerning his involvement in the criminal enterprise at the time he was interviewed by police, there was little or no mitigation apart from the guilty plea [58].

(j) As to s 16A(2)(j), personal deterrence was a relevant sentencing factor, especially in the context of the appellant's previous drug offences. His Honour noted that the appellant became involved in the criminal enterprise 'a little more than 18 months after serving [the sentence for an earlier drug offence]' [70].

(k) As to s 16A(2)(k), the matters I have referred to, in the context of s 16A(2)(a), (c), (e) and (j), demonstrate the seriousness of the offence and the need to ensure that the appellant was adequately punished for his offending.

(l) As to s 16A(2)(m) and (n), the appellant was aged 40 at the time he committed the offence. I have already referred to his prior criminal record. His Honour said the appellant did not have the benefit of good antecedents [71]. Also, as I have mentioned, his Honour found that although the appellant had expressed frustration and regret to the author of the pre-sentence report, those expressions fell well short of remorse and shame [83]. The appellant did not commit the offence because he needed money to support a drug addiction. His sole motive was financial gain. There was no evidence that the appellant suffered from any relevant physical or mental impairment.

(m) As to s 16A(2)(n), the prospect of the appellant being rehabilitated was very difficult to assess in view of his criminal history and the absence of remorse and shame.

(n) As to s 16A(2)(p), when the appellant was sentenced he was in a relationship. The relationship had produced a 4-year-old son. The appellant also had two teenage sons from a previous relationship.

The appellant's imprisonment will, no doubt, seriously affect his partner and his children. However, that is not unusual in the case of an offender who must be imprisoned for a lengthy period because he or she has committed a very serious offence.

64 In my opinion, the sentence of 12 years' imprisonment, with a non-parole period of 8 years 4 months, was within the range open to the sentencing judge on a sound exercise of his discretion.

65 I am satisfied, after evaluating and weighing all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court) in the context of:

(d) the importance of appropriate punishment and personal and general deterrence as sentencing factors;

(e) the general standards of sentencing applicable to the offence; and

(f) the appellant's early guilty plea and any other matters of mitigation,

that the sentence was not unreasonable or plainly unjust.

66 The existence of error in relation to the head sentence or the non-parole period is unable to be inferred from the sentencing outcome.

68 None of the grounds of appeal has a reasonable prospect of success. I would refuse leave to appeal. The appeal must be dismissed.