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[2025] NSWCCA 65
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-05-01
Payne JA at [1]Fagan J at [2]Coleman J at [5]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Ozgen v R (Cth) [2025] NSWCCA 65
Hearing dates: 5 February 2025
Date of orders: 1 May 2025
Decision date: 01 May 2025
Before: Payne JA at [1]
Fagan J at [2]
Coleman J at [5]
Decision: (1) Grant leave to the applicant to proceed on his application filed out of time.
(2) Grant leave to appeal against sentence.
(3) Allow the appeal.
(4) Quash the sentence imposed by the District Court on 20 March 2020 and in lieu thereof impose for each of counts 1 and 2 a sentence of 16 years’ imprisonment. The sentences are to be served wholly concurrently. I specify a non-parole period of 10 years. The sentences will commence on 18 July 2019 and expire on 17 July 2035. The first date the offender will be eligible for release to parole will be 17 July 2029.
Catchwords: CRIME – SENTENCE – appeal against sentence – attempt to import commercial quantity of border-controlled drug – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” - where resentence process undertaken, but no lesser sentence warranted in law – where structure of sentence did not comply with s 19AB of the Crimes Act – where sentence is to be served concurrently for each count
Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1995 (Cth)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)
Cases Cited: AKB v R [2024] NSWCCA 169
Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Ozgen v R (2021) 291 A Crim R 308; [2021] NSWCCA 252
R v Hinton (2002) NSWCCA 405; [2002] NSWCCA 405
R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
Taha v The Queen [2022] NSWCCA 46
Totaan v the Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75
Category: Principal judgment
Parties: Mehmet Ozgen (Applicant)
Rex (Respondent)
Representation: Counsel:
S Talbert (Applicant)
P McEniery (Respondent)
Solicitors:
Mitchell & Co (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2014/351853
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 7 August 2019 after a trial by jury, the applicant Mehmet Ozgen was found guilty of two offences of attempting to possess a commercial quantity of a border-controlled drug contrary to ss 11.1(1), 11.2A(1) and 307.5(1) of the Criminal Code 1995 (Cth).
The offences involved the applicant assisting, as part of a joint criminal enterprise, in the importation of 655 kilograms of methamphetamine and 1.3 tonnes of ecstasy. On 20 March 2020, Pickering SC DCJ sentenced the applicant for the offences to 16 years imprisonment with a non-parole period of 10 years.
Hardship to the applicant’s family was raised during sentencing proceedings, however, it was held to be relevant only to the extent that it rendered the applicant’s time in custody more onerous, rather than as hardship to the applicant’s family. That was because no submissions were made that the hardship to the applicant’s family was exceptional as was required at the time.
On 11 April 2022, in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, a bench of five judges held that hardship to a family member of dependent need not be ‘exceptional’ in order for it to be taken into account in sentencing under s 16A(2)(p) of the Crimes Act 1914 (Cth).
The applicant sought leave to appeal under, s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence.
The application for leave was out of time. The applicant submitted the court should exercise its discretion and grant the extension of time given the prospects of success and evidence submitted which went to explaining the delay.
Although the crown conceded that the sentencing judge erred, it submitted the extension of time should not be granted as parts of applicant’s delay remained unexplained and the appeal lacked merits given its submission that no lesser sentence was warranted.
The sole ground of appeal was whether the sentencing judge, although acting upon an understanding of the law which was then conventional, erred in failing to take into account hardship to the applicant’s family or alternatively in applying a wrong principle to consideration of the matter.
The applicant submitted that hardship caused by his incarceration on his younger brother, mother (who requires care) and partner alongside subjective factors and his period in custody during COVID-19 warranted a lesser sentence. The Crown submitted that the hardship faced by the applicant’s family was, but one factor to be considered in the sentencing synthesis, and as such it should be given limited weight due to, amongst other things, the seriousness of the offending, the need for general deterrence and the role of the applicant in the joint criminal enterprise.
The C****ourt held (Coleman J, Payne JA and Fagan J agreeing), granting the extension of time, granting leave to appeal and allowing the appeal:
PAYNE JA: I agree with Coleman J and with the additional remarks of Fagan J.
FAGAN J: I agree with Coleman J. It is not apparent why the Commonwealth Director of Public Prosecutions saw fit to charge the applicant with two offences for his part in attempting to obtain possession of the border-controlled drugs that were imported into Australia in a single shipping container. Others who were arrested in relation to that enterprise were charged with only one count, comprehending both the 655 kg of methyl amphetamine and the 1.3 tonnes of MDMA that were packed in 113 boxes within the container, all comprising a single consolidated shipment landed at the one time.
The only reason why this Court now needs to quash the sentence imposed in the District Court and make different sentencing orders is the technical consideration that there is no provision in the Crimes Act 1914 (Cth) for a single head sentence to be fixed in respect of two offences. The learned judge did not purport to apply the aggregate sentencing provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour did not say that he was invoking s 53A of that Act and he did not nominate indicative sentences as required by s 53A(2)(a).
To correct this error, the most appropriate orders are those proposed by Coleman J. In circumstances where the High Court has granted special leave to appeal from the decision of this Court in McGregor v R [2024] NSWCCA 200, it would seem imprudent to try to resolve the problem by fixing an aggregate sentence under the Crimes (Sentencing Procedure) Act.
COLEMAN J: On 7 August 2019 after a trial by jury, the applicant Mehmet Ozgen was found guilty of two offences of attempting to possess a commercial quantity of a border-controlled drug contrary to ss 11.1(1), 11.2A(1) and 307.5(1) of the Criminal Code 1995 (Cth). Each of the offences carried a maximum penalty of life imprisonment.
On 20 March 2020 the applicant was sentenced by Pickering SC DCJ to 16 years’ imprisonment with a non-parole period of 10 years. The applicant is eligible for release to parole on 17 July 2029.
The applicant seeks leave to appeal, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on him. The sole ground of appeal asserts an error by the sentencing judge following the change to the law brought about by the decision of this Court in Totaan v the Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75, which was handed down after the sentence was imposed on the applicant.
The application for leave to appeal is out of time. The applicant seeks an extension of time within which the notice of appeal can be filed pursuant to s 10(1)(b) Criminal Appeal Act and Rule 3.5(5) and the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
For the reasons which follow, I would grant the extension of time, grant leave to appeal, allow the appeal and re-sentence the applicant. As I explain at [75] below, the re-sentence is required because of an error of the sentencing judge not referred to by either of the parties. The sentence I would impose is the same in terms of length and non-parole period as that imposed by the sentencing judge.
The Court has a discretion to extend the time for the filing of a notice to appeal. Whether an extension is granted is to be determined by the interests of justice in the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]. In exercising the discretion, the Court should have regard to the prospects of success of the appeal and the explanation for why the appeal was not brought in time, particularly if the delay is considerable: Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304 at [92]; Kentwell at [32]-[33]. Reference to the merits of the appeal in an appeal against sentence should be addressed by reference to s 6(3) of the Criminal Appeal Act: Kentwell at [34].
The applicant submits that his prospects of success on the application of leave to appeal warrant the exercise of the discretion to extend time. That is because the Crown concedes that the sentencing judge, although sentencing in accordance with principles relevant at the time, erred in failing to take into account the hardship of incarceration to the applicant’s family in accordance with Totaan.
The applicant relied on affidavits sworn by him and by his solicitor, Mr Ian Westrip, to explain why there had been a delay. The applicant was sentenced on 20 March 2020. He filed a conviction appeal which was heard in September 2021. By judgment handed down on 3 November 2021, the appeal was dismissed: Ozgen v R (2021) 291 A Crim R 308; [2021] NSWCCA 252.
The decision in Totaan was handed down on 11 April 2022. The applicant says that he heard about this decision from other inmates in late 2022. He said he was then awaiting the outcome of one of his co-offender’s sentence appeal.
In late 2023, after the finalisation of the co-offender’s sentence appeal, the applicant says he approached his solicitors to discuss the possible impact of the COVID-19 pandemic and associated lockdowns, and the decision in Totaan on his sentence. An application was made for a grant of legal aid. That grant was made in March 2024 for advice on prospects of appeal. Counsel was briefed for that advice at the end of March 2024. After conferring and obtaining further material, noting counsel was engaged in other matters, the advice was informally received in August 2024. The appeal documents were lodged on 15 October 2024.
The Crown opposes the extension of time. It submitted that any notice of intention to appeal the sentence should have been filed by 19 April 2020 and any notice of appeal by 20 June 2020 (being 3 months after the date the sentence was handed down). The Crown listed the other steps summarised above, concluding that the appeal documents were not lodged until:
(i) 4 years, 6 months and 25 days after sentence; (ii) 4 years, 3 months and 25 days after the notice of appeal ought to have been filed; and (iii) 2 years, 6 months and 4 days after the decision in Totaan.
The Crown submitted that there is unexplained delay. It also submitted that having regard to the merits of the appeal, where no other sentence is warranted, no extension of time should be granted.
I consider that an extension of time should be granted. Whilst there are some periods of time in the chronology where the applicant (or his lawyers) could have acted more swiftly, I do not regard any delays as being unexplained or such that would of themselves disentitle the applicant to an extension of time. Further, as the Crown has conceded error, unless the Court considers that no other sentence is warranted at law, it must re-sentence the applicant. I consider that this factor strongly favours the grant of an extension of time. In my opinion, the interests of justice in this case favour the grant of the extension.
The sentencing judge, Pickering SC DCJ, found that the offences arose from the applicant’s participation in a joint criminal enterprise which unlawfully imported 655 kilograms of pure methamphetamine and 1.3 tonnes of pure ecstasy.
The drugs arrived in Australia from Germany in shipping container on 19 November 2014. The drugs were packed in 113 large cardboard boxes. When detected by Customs authorities the drugs were seized and replaced with substitute materials before being released under Customs bond to the Freight Logistics company.
On the evening of 28 and 29 November 2014 the applicant and five co- offenders accessed the container at the Blacktown premises of the Freight Logistics company. They removed the cardboard boxes and the substituted contents which they transferred into a rental truck. They took the boxes to an industrial unit in Smithfield. The applicant and his co-offenders were arrested at the Smithfield unit in the early hours of the 29 November 2014, whilst unpacking the substitute packages.
Pickering SC DCJ observed that although in many ways the facts which formed the basis of the jury’s verdict were not difficult to find, the more complex matter was determining the specific role of the applicant in the joint criminal enterprise. His Honour described the applicant’s involvement in the following ways:
(a) Being entrusted with the key to the Smithfield industrial unit; (b) Conducting enquiries and then obtaining cardboard boxes to backfill the container with dummy boxes of clothing; (c) Conducting internet searches for alternative means of access to the container in which the drugs were held. For example by hiring a transport crane; (d) Being prepared to provide at least $5,000 that was to be used to further the operation; (e) Being part of the group who attempted and failed to access the container on the 27 November 2014; (f) Being part of the group of six which unpacked and conveyed the 113 boxes from the container to the Smithfield unit; (g) Corresponding with other co-offenders by encrypted BlackBerry messages; (h) Repacking the container with 120 ‘dummy boxes’ filled with clothes and other items; and (i) Conveying his four co-offenders back to the Smithfield unit, unpacking and re-sorting the contents of the 113 boxes (which he assumed to be drugs but were materials substituted by police) for redistribution.
The applicant’s role was characterised by the sentencing judge as “a limited one but nevertheless an important one”. His Honour found the applicant had knowledge of what was taking place and what would occur with regards to the contents of the boxes, expected and intended to be drugs. His Honour did not conclude that the applicant knew the precise weight or purity of the drugs. His Honour did find that the applicant knew the task required the significant muscle power of various men, involved many boxes, possibly a crane and the payment of people. His Honour found that being trusted with that sort of information, the applicant was involved with the planning of the operation for a period of at least 24-48 hours, although he may not have known every detail.
His Honour found that his conclusions about the applicant’s knowledge of, and involvement in, the operation and what was going to occur were supported by messages on a BlackBerry device. Whilst the applicant disputed possession of the BlackBerry, the verdict of the jury was only consistent with his possession of the BlackBerry. His Honour said the BlackBerry messages provided a very strong case against him.
His Honour said that the applicant was fundamentally a “packer and unpacker” but that he had to know he was involving himself in access to a significant amount of prohibited drugs. His Honour found that the applicant was not involved in the importation, nor any plans for eventual distribution and profit from the drugs.
In terms of the objective seriousness of the offending, Pickering SC DCJ determined that the applicant was involved with “a very substantial amount of drugs.” His Honour stated:
“It is such a shame though that he involved himself in something that carries life, and because of the sheer weight of the drug that he must receive a substantial sentence.” [1]
With respect to his co-offenders, his Honour found the applicant’s offending was objectively below that of Mr Bisasa and Mr Arancibia, and on a similar level to that of Mr Drollet. Pickering SC DCJ had already sentenced the mentioned co-offenders in relation to the same offence. Mr Bisasa and Mr Hamlin were sentenced to 16 years and 8 months with a non-parole period (“NPP”) of 11 years and 6 months, with a 25% discount for guilty pleas. Mr Arancibia was sentenced to 11 years and 3 months with an NPP of 7 years and 3 months, with a 25% discount for a guilty plea. Mr Drollet was sentenced to 20 years with an NPP of 13 years. There is no issue with respect to parity on the appeal.
In terms of the applicant’s subjective case, his Honour took into account the applicant’s good character, and his youth (particularly compared to his co-offenders), being 23 at the time of offending. The applicant had an unremarkable upbringing. He was a keen soccer player. There were issues with his home life where drugs were in the house as his father had a long-term drug problem.
The applicant turned to drugs himself at an early age. His drug usage escalated when he lost his best friend in 2012 and he “self-healed” by using. His Honour stated, however, that the applicant’s drug use was not a factor in his offending.
The sentencing judge also took into account the “extraordinary delay of essentially more than 5 years” in having the matter brought to trial. His Honour found that the delay and the stress of the matter had an impact on the applicant’s mental health.
In terms of the impact on the applicant’s family, his Honour said the applicant:
“...outlined how it has been devastating for his family and I totally understand that, to see such a young man go to gaol and probably go through the stress he has been under for the last five years, undoubtedly would have been hard for his family…
Other material showed issues in his family, in particular how they will miss his ability to assist the family, whilst in custody. Ultimately, it was not sought to outline that these are special circumstances that could be taken into account, hardship to third parties but they are still relevant to how stressful it will be for him in custody, unable to help his family in relation to this matter…” [2]
His Honour observed that while waiting for trial the applicant was on strict bail for an extended period and did not breach it. His Honour stated the applicant demonstrated that he actually may have learnt his lesson from this matter in many ways by his good behaviour on strict bail.
His Honour found the applicant demonstrated good prospects of rehabilitation.
In light of his good character, positive prospects of rehabilitation and low chances of re-offending, his Honour found no requirement of specific deterrence. He acknowledged that there was a need for general deterrence given the large quantity of drugs involved.
In arriving at the sentence imposed, his Honour took into account the nature of the offending, the large amount of drugs involved, the matters that he must consider pursuant to s 16A of the Crimes Act 1914 (Cth) and the other sentences that had already been handed down to the applicant’s co-offenders. He stated that he was limited as to what leniency in sentencing he could show the applicant.
As stated above, the applicant was sentenced to a non-parole period of 10 years, with an additional parole period of 6 years, with the 16-year head sentence to commence on 18 July 2019 and expire on 17 July 2035.
The sole appeal ground is that the sentencing judge, although acting on an understanding of the law which was then conventional, erred in failing to take into account hardship to the applicant’s family or alternatively in applying a wrong consideration of the matter.
In Totaan, which was handed down on 11 April 2022, a bench of five judges of this Court held that a judge imposing a sentence for a Commonwealth offence, when taking into account s 16A(2)(p) of the Crimes Act, was not required to be satisfied that the circumstances of hardship to a family member or a dependant were ‘exceptional’: Totaan at [77], [82], [92]-[93] (Bell CJ with Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing).
The sentencing judge’s remarks dealing with the hardship on the applicant’s family have been set out at [30] above. It is accepted by the Crown that those remarks indicate his Honour proceeded on the basis that the hardship to the applicant’s family as a result of his incarceration did not amount to “special circumstances” that could be taken into account as “hardship to third parties” pursuant to s 16A(2)(p) of the Crimes Act. By doing so, his Honour was seeking to give effect to authorities concerning that section, including R v Hinton (2002) NSWCCA 405; [2002] NSWCCA 405 at [31]. Following Totaan, those authorities do not represent the law as to the proper application of s 16A(2)(p).
It is apparent that the sentencing judge did have regard to the stress experienced by the applicant in not being able to help his family by reason of his incarceration. However, because the sentence hearing proceeded on the basis of the previously understood principle of exceptional hardship, it was not submitted that this amounted to “special circumstances” such that the hardship to his family of his incarceration could be taken into account. It is plain the reference to “special circumstances” and “hardship to third parties” reflects his Honour’s application of the law as it was then understood, namely, that because the circumstances were not exceptional, the impact upon his family or dependants could not be taken into account pursuant to s 16A(2)(p).
The Crown concedes his Honour thus fell into error as asserted in the ground of appeal.
Error having been established, this Court must set aside the sentence under challenge and re-sentence the applicant, unless in the separate and independent exercise of its discretion it concludes that no different sentence should have been passed: Kentwell at [35].
The applicant submits that, error having been established and in the exercise of the sentencing discretion, this Court would conclude that a lesser sentence was warranted. The applicant relies on the following material, in addition to that which was before the sentencing judge:
Affidavit of his brother Ahmet Ozgen of 13 January 2025;
Affidavit of his mother Tennure Ozgen of 13 January 2025;
Affidavit of Olivia Kelly of 14 January 2025;
Affidavit of the applicant Mehmet Ozgen of 16 January 2025;
Affidavit of Ian Westrip of 20 January 2025; and
Affidavit of Ian Westrip of 29 January 2025. This affidavit annexes a psychologist’s report relating to the applicant’s mother.
This evidence illustrates the impact the incarceration of the applicant has had on his family. His brother, Ahmet, deposes to the additional responsibility that has fallen on him to look after his mother following the death of his father and the gaoling of the applicant. His brother previously provided significant care for their mother, and as he now has to provide this care, he says there has been a detrimental impact on his personal and social life. These are compounded by medical conditions suffered by him which make the responsibility to look after his mother more onerous.
The applicant’s mother deposed that following the sentence of the applicant she started attending a psychologist much more (there being evidence she had attended a psychologist prior to this). She suffers from several medical conditions which will require surgery. She now relies on her other son Ahmet to help her.
There is a report from Bestegul Tungandame, a psychologist who has been treating the applicant’s mother since December 2014. She details her increased psychological symptoms including depressed mood, diminished interest and pleasure, sleep disturbances and feelings of worthlessness since her son was gaoled. She said that the applicant’s mother also has strong feelings of guilt and is socially isolated, matters which both contribute to her symptomatic level. She noted that the applicant had previously provided his mother day to day support with her household tasks as well as having an emotional connection with and support for her which has been lost.
The applicant deposes to the steps he has taken since being in custody to better prepare himself for reintegration into society. He has been employed in the corrections centre’s furniture shop and café. He is now a supervisor at the café having completed certificates in hospitality. He has undertaken other educational courses in business, accounts and administration, and building and construction. He is completing a certificate in fitness. He has had no disciplinary matters in gaol.
The applicant spent approximately 160 days in lockdown during the COVID-19 pandemic. This meant his custodial conditions were more onerous as face-to-face visits were prohibited.
The applicant also deposed to his father being diagnosed with late-stage cancer whilst he was in gaol. He only saw his father once following his diagnosis and before his death.
The applicant also spoke of the impact of his being in custody on his relationships with his partner Olivia Kelly and his family. He has concerns for his brother being the sole carer for their mother. He is concerned about his brother’s mental health and that of his mother. He was a father figure to his younger brother as their father was a drug addict. He is worried about the impact of his imprisonment on them both.
The applicant submits that this material, together with the material that was before the sentencing judge going to his subjective case, warrants a lesser sentence. It was submitted that the imprisonment of the applicant has had a significant impact on his family. It has had a distressing impact on the applicant’s mother and a personal and financial impact on his brother.
It was also submitted that his good behaviour in gaol and the steps he has taken towards rehabilitation would mean a reduction in the sentence.
The applicant did not challenge any of the factual findings of the sentencing judge as to the nature and circumstances of the offending or the applicant’s role, nor his conclusions as to the objective seriousness of the offending.
The Crown submits that no lesser sentence is warranted. The applicant participated in the joint criminal enterprise in an attempt to possess a substantial quantity of illicit drugs. Count 1 involved 655 kilograms of pure methylamphetamine. Count 2 concerned 1.3 tonnes of pure ecstasy (MDMA).
The Crown submitted that this Court should make similar findings to those of the sentencing judge on the nature and circumstances of the offending, including as to the role of the applicant and objective seriousness. Whilst accepting that the additional material relied on in the appeal demonstrates the applicant has positive prospects of rehabilitation and his prospects of re-offending are low, the Crown said this Court should make similar findings as those of the sentencing judge as to the applicant’s subjective case.
With respect to the issue of hardship to the applicant’s family and dependants, the Crown submitted that the nature and extent of such hardship is but one factor to be given weight in the sentencing synthesis. In cases such as this, that factor may be given limited weight due to other factors including the need for adequate punishment, denunciation and general and specific deterrence. It submitted that, whilst it can be accepted that the applicant’s incarceration had an impact on his mother, she had suffered depression throughout her life and had been seeing a psychologist prior to the applicant’s sentence. The Crown submitted that the applicant’s brother has provided care for his mother since 2020. He does not live with her but provides support. Whilst the impact of the applicant’s incarceration on the brother is stressful, the Crown submitted that it is not significant.
The Crown accepts that the applicant’s hardship in custody can also be taken into account on re-sentence, however, it was submitted that together with the hardship to his family, a number of other factors would lead to a conclusion that no lesser sentence is warranted. Those factors are:
(a) The serious nature of the offending, including the volume and value of the drugs attempted to be possessed; (b) The knowledge of the applicant that drugs were involved in a substantial amount; (c) General deterrence; (d) Protection of the community, noting the harm if the drugs had been disseminated; and (e) The leniency already afforded the applicant by the sentencing judge in regard to his subjective case, including for his remorse.
When sentencing an offender for a Commonwealth offence, s 16A of the Crimes Act 1914 (Cth) provides that the court must impose a sentence that is of a severity appropriate in the circumstances. Section 16A(2) provides a non-exhaustive list of matters that a sentencing judge must take into account as relevant and known to the Court.
As has been observed, there is no challenge to the factual findings of the sentencing judge, nor to his findings as to objective seriousness or the applicant’s role in the attempt to import the drugs. On re-sentencing this Court should have regard to the material that was before the sentencing judge, the sentencing judge’s unchallenged accurate findings and any relevant evidence of the applicant’s post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9] (Bell, Keane, Gordon and Edelman JJ). I would make the same findings of fact as the sentencing judge.
General propositions relevant to the sentencing of offenders for drug importation and attempted possession offences were summarised by Johnson J in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72]:
“(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];
(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24];
(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];
(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];
(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64];
(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];
(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];
(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];
(k) where offenders are not young (Mr Nguyen was 42 years’ old and Ms Pham was 32 years’ old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];
(l) where an offender (such as Ms Pham) is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise: El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]-[37];
(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs: R v Ferrer-Esis (1991) 55 A Crim R 231 at 230;
…”
The applicant was a participant in a joint criminal enterprise involving four co-offenders in an attempt to possess a substantial quantity of methamphetamine and MDMA imported from Germany. As stated above, the quantities of drugs involved were, for count 1, 655 kilograms of pure methamphetamine and for count 2, 1.3 tonnes of pure ecstasy. The drugs were concealed within 113 large cardboard boxes inside a shipping container which arrived in Australia from Germany on 19 November 2014.
Following detection of the drugs, they were seized and replaced with substitute materials before being released under customs bonds to freight logistics companies operating from a premises in Blacktown. The participants in the joint criminal enterprise attended that premises on the nights of 28 and 29 of November 2014, accessed the container and removed the large cardboard boxes containing the substituted contents. They transferred them to the rear of a rented truck and conveyed them to an industrial unit in Smithfield. They were arrested there early on 29 November 2014 in the process of unpacking and re-sorting the substitute packages for further distribution.
As to the applicant’s role, it can be accepted that he was not involved in any aspect of the importation of the drugs from Germany to Australia. Nor was there evidence that he was to participate in the distribution of the drugs. As the sentencing judge found, his role was limited but nevertheless important. He was involved for several days in the lead up to the detection of the drugs.
I would otherwise adopt the findings of the sentencing judge with respect to the role of the applicant. He was a participant in the planning and logistics of the aborted attempts to access the container on the evening of 27 November 2014, and the successful attempt to access the container the next evening. He corresponded with other co-offenders by an encrypted BlackBerry device which he possessed. He was trusted with information, which shows he was more than just someone who went along as “muscle” to move the large boxes from the shipping container. He was engaged in unpacking the boxes and moving the substituted substances into the rented truck to be conveyed to Smithfield.
Whilst he did not know the precise weight or purity of the drugs, he did know that he was involving himself in accessing a substantial amount of drugs that had been imported into Australia. He did it for financial reward. Whilst his main role was to pack and unpack the boxes, he was also involved in other respects.
The weight and purity of the drugs, whilst not the only important feature in such cases, is also relevant. The applicant was involved in an attempt to access a very substantial amount of drugs. Objectively, offending of this nature is very serious.
General deterrence is a significant sentencing factor to deter others considering involvement in any aspect of the importation of illegal drugs, particularly in such large amounts, into the country. Such persons must be aware that involvement in any level of the drug importation offence would be met with the sternest punishments.
The applicant has, by his conduct since he has been in gaol, applied himself in obtaining the various certificates and completing the courses described above. I accept that he has shown insight into his offending conduct. In these circumstances where the applicant has, as the sentencing Judge found, good prospects of rehabilitation and low risk of reoffending, specific deterrence does not play any significant role in the sentencing synthesis.
The applicant was only 23 years old at the time of the commission of the offences. I accept he was a person otherwise of good character. The sentencing judge dealt with his subjective case. Although the applicant had some difficulties in his home life, with his father having been a long-term drug addict which in turn impacted on the applicant’s own drug abuse, there was no finding that his drug use was a factor in his offending. I will not otherwise repeat the sentencing judge’s findings on the applicant’s subjective case. There was nothing which would warrant a finding that his moral culpability should be reduced.
I accept that the evidence also establishes that the COVID-19 pandemic has had an impact on the burden of custody on the applicant. The applicant has spent a significant number of days in lockdown, and there has been a curtailment of contact visits. Such matters can be taken into account in re-sentencing: Taha v The Queen [2022] NSWCCA 46.
I have set out the evidence at [39]-[45] above which indicates the impact of the incarceration of the offender on his family. I accept there will be an impact on his mother and his brother. The evidence establishes that he played a significant role in the care of his mother and was a father figure to his younger brother. I accept the custodial sentence to be imposed on the applicant will impose additional stress upon each of those relatives.
As the Crown submits, the applicant’s mother has suffered from depression and other psychological issues for some time, certainly for a period prior to the incarceration of the applicant. Whilst accepting, as I have, the impact the sentence will have on the applicant’s mother, it should not be thought that his being in custody is the cause of all of his mother’s psychological issues.
Some of the evidence now relied upon by the applicant also refers to the stress and anxiety caused to his mother and brother on the arrest of the applicant. I do not consider that falls within the concept of hardship to his family within the meaning of s 16A(2)(p) which deals with the probable effect of the sentence to be imposed on the applicant on his family.
I will take into account the probable effect of the sentence to be imposed on the applicant in the instinctive synthesis of the sentencing process. In doing so, I will give this factor appropriate weight having regard to the other matters relevant to the sentence to be imposed, including the primary obligation of imposing a sentence of appropriate severity in all the circumstances.
Taking into account all of the matters insofar as are relevant and known to the Court in the circumstances of this case, a sentence of a severity appropriate in all the circumstances of the offending warrants a significant full-time custodial sentence. The offending was objectively serious, involving two offences concerning an attempt to possess a very substantial amount of methamphetamine and ecstasy. The applicant’s role was significant. General deterrence is an important factor in sentences of this kind. There is nothing in his subjective case which warrants a finding of a reduction in his moral culpability. The impact of the sentence on his family is not such as to significantly impact on the severity of the penalty required.
The sentencing judge approached the consideration of the impact of the sentence on the applicant’s family in a thorough and, at the time, orthodox manner. The change in the law by reason of the decision of this Court in Totaan nevertheless means that there was an error in his Honour’s approach to the sentencing exercise. This enlivens this Court’s obligation to re-sentence, but this is a case where, in my opinion, no lesser sentence than that imposed by the sentencing judge is warranted at law.
There is, however, another issue with his Honour’s sentence. He has imposed a single sentence for the two counts on which the applicant was convicted. He has not specified a sentence for each count. His Honour said:
“Consistent with the Code, even though there were two counts on the indictment, I am to set just one sentence. Upon reflection, the indictment could have simply been one count, namely multiple drugs, not much is to really be made of the fact that there were two different charges except, from that point of view, and taking into account both drugs in determining one sentence, one non-parole period.” [3]
Section 19AB(1) of the Crimes Act 1914 (Cth) provides that where a person is convicted of two federal offences at the same sitting, and the sentences in the aggregate exceed 3 years, the Court must fix a single non-parole period. The section does not permit a single sentence for two or more federal offences, rather it requires that a single non-parole period must be determined.
This issue was not raised by either party in their submissions or in argument at the hearing of the appeal. Although I have formed the view that no lesser sentence than that imposed by the sentencing judge is warranted at law, the structure of his Honour’s sentence does not comply with s 19AB. His Honour has fallen into error in approaching the sentence of the applicant in this way. This Court must therefore re-sentence the applicant by reason of this error. This means the appeal must be allowed, but the sentence I propose will be the same length, with the same non-parole period as that set by his Honour.
A sentence must be imposed on the applicant for each of the counts for which he was convicted. If the aggregate of those sentences exceeds 3 years, then one non-parole period must be imposed. In accordance with usual sentencing practice, in determining the appropriate sentence, the Court must have regard to the principles of totality, cumulation and concurrency.
Because of the imposition of a single sentence, his Honour did not expressly address those principles. It is apparent from the passage extracted at [78] above that his Honour regarded, in practical terms, there being but one act of criminality in the applicant’s attempt to possess the drugs in the 113 boxes from the container. I accept that this is the case. There is no evidence that the applicant knew that there were two types of drugs in the container. As his Honour said, there could have been one count particularising the two types of narcotics.
If the Court was to impose sentences of different lengths for each count, it would necessarily have to undertake an assessment of all of the relevant sentencing principles for each count. The only difference between the counts is the amount of the drugs involved. Count 1 was 655 kilograms of methamphetamine and count 2 was 1.3 tonnes of MDMA. Each is a very significant amount of the respective narcotic. Each count carries with it a maximum sentence of life imprisonment reflecting the gravity of the offending irrespective of the narcotic. There is no evidence of any other factor, for example the value of the methamphetamine as opposed to the value of the MDMA, which may warrant the imposition of sentences of different lengths for each count. In the circumstances of this case, I do not consider the different amounts of the drugs is, of itself, a sufficient reason to do so.
As has been stated, there is no evidence that the applicant knew that the 113 boxes contained two types of narcotics, let alone of different amounts. He did know he was attempting to possess a significant amount of illicit drugs. I consider that in these circumstances, having regard to the principle of totality, the sentence for the first count can wholly comprehend and reflect the criminality of the second count: Cayhadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] per Howie J*.*
Consequently, the sentences I propose for the two counts will be wholly concurrent. I consider the length of the sentence imposed by his Honour, and the non-parole period he specified, appropriately reflects the totality of the applicant’s criminality and otherwise is a penalty of appropriate severity in the circumstances of this case.
I would propose a sentence of 16 years for each of the counts in the indictment. Those sentences should be served wholly concurrently. A single non-parole period of 10 years should be specified. The sentences should commence on 18 July 2019 and expire on 17 July 2035. The first date the offender would be eligible for release to parole will be 17 July 2029.
The orders I propose are:
Grant leave to the applicant to proceed on his application filed out of time;
Grant leave to appeal against sentence;
Allow the appeal.
Quash the sentence imposed by the District Court on 20 March 2020 and in lieu thereof impose for each of counts 1 and 2 a sentence of 16 years’ imprisonment. The sentences are to be served wholly concurrently. I specify a non-parole period of 10 years. The sentences will commence on 18 July 2019 and expire on 17 July 2035. The first date the offender will be eligible for release to parole will be 17 July 2029.
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Tcpt, Remarks on Sentence 20 March 2020, p 11.
Tcpt, Remarks on Sentence 20 March 2020, p 14.
Tcpt, Remarks on Sentence 20 March 2020, p 17.
Ozgen
R
(2018) 341 FLR 162
(2018) 265 CLR 215
(2014) 252 CLR 601
(2022) 108 NSWLR 17