R v Harrington [2016] ACTCA 10

Authorised report: 11 ACTLR 215

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: The Queen v Harrington

Citation: [2016] ACTCA 10

Hearing Date: 10 August 2015

Decision Date: 22 April 2016

Before: Murrell CJ, Refshauge ACJ and Gilmour J

Decision: 1) The appeal is upheld.

2. The sentences imposed on 13 November 2014 are set aside.

3. John Phillip Harrington be re-sentenced as follows:

a. for the offence of attempting to possess a marketable quantity of cocaine, to imprisonment for 7 years, to commence on 13 February 2014.

b. for the offence of trafficking in cocaine, to imprisonment for 1 year and 6 months, to commence on 13 August 2020, that is to be concurrent as to 6 months with the sentence in respect of the conviction for attempting to possess a marketable quantity of cocaine.

4. The total sentence is of 8 years imprisonment, to commence on 13 February 2014 and expire on 12 February 2022.

5. A non parole period of 4 years and 6 months is set, to commence on 13 February 2014 and expire on 12 August 2018.

Catchwords: APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – wholly concurrent sentences – totality – distinct acts of criminality

APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – manifestly inadequate – objective seriousness – principal of criminal operation – discount for prior good character – no ‘first time offender’ discount – sentencing range – offending not uncharacteristic

APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – manifestly inadequate – sentencing principles following guilty plea – discount for ‘utilitarian value’ – Cameron v The Queen (2002) 209 CLR 339 – no demonstration of willingness to facilitate course of justice – Commonwealth sentencing practices – application of state sentencing principles in Commonwealth proceedings – general sentencing principles applicable to Commonwealth sentences –

APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – manifestly inadequate – sentence did not reflect seriousness of conduct – consistency in sentencing – current sentencing practices – comparable cases – disparity between sentence imposed and relevant sentences

APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – court retains residual discretion – discretion not exercised

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trafficking controlled drugs – possessing marketable quantities of unlawfully imported border controlled drugs

Legislation Cited: Commonwealth Places (Application of Laws) Act 1970 (Cth) Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 16(2)(a), 16A(2)(m), 16B, Pt 1B Crimes Act 1900 (NSW) s 302 Crimes (Sentencing) Act 2005 (ACT) s 35 Criminal Code Act 1995 (Cth) ss 11.1, 302.4, 307.2, 307.6, 307.6(1), 400.4(1) Customs Act 1901 (Cth) s 233B(1)(b) Judiciary Act 1903 (Cth) s 68 Misuse of Drugs Act 1981 (WA) Supreme Court Act 1933 (ACT) s 37O

Cases Cited: Adegoke v R (2013) 234 A Crim R 280 Atanackovic v The Queen (2015) 45 VR 179 Barbaro v The Queen (2014) 253 CLR 58 Beqiri v The Queen [2013] VSCA 39 Bugmy v The Queen 249 CLR 571 Cahyadi v The Queen (2007) 168 A Crim R 41 Cameron v The Queen (2002) 209 CLR 339 CMB v Attorney-General (NSW) (2015) 317 ALR 308 Cobiac v Liddy (1969) 119 CLR 257 Director of Public Prosecutions (Cth) v Gow (2015) 298 FLR 397 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 El-Ghourani v R (2009) 195 A Crim R 208 Franklin v The Queen [2013] NSWCCA 122 Green v The Queen (2011) 244 CLR 462 Griffiths v The Queen (1977) 137 CLR 293 Hawkins v Hawkins (2009) 3 ACTLR 210 Hili v The Queen (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Johnson v The Queen (2004) 205 ALR 346 Kentwell v the Queen (2014) 252 CLR 601 Manyathela v The Queen [2015] ACTCA 13 Matthews v The Queen [2014] VSCA 291 Monfries v The Queen (2014) 68 MVR 385 Nell v The Queen [2014] WASCA 193 Nguyen v The Queen (2012) 272 FLR 58 Ojielumhen v The Queen [2014] ACTCA 28 Okeke v R [2005] NSWCCA 444 Olbrich v The Queen (1999) 199 CLR 270 Pearce v The Queen (1998) 194 CLR 610 Quinn v The Queen (2011) 244 CLR 462 R v Bimahendali (1999) 109 A Crim R 355 R v DH; R v AH [2014] NSWCCA 326 R v Duffy [2014] ACTCA 53 R v Eisenach [2011] ACTCA 2 R v Harrington [2015] ACTCA 2 R v Harrington [2014] ACTSC 321 R v Karan [2013] NSWCCA 53 R v Laurentiu (1992) 63 A Crim R 402 R v MMK (2006) 164 A Crim R 481 R v Pham (2015) 325 ALR 400 R v Poynder (2007) 171 A Crim R 544 R v Sharma (2002) 54 NSWLR 300 R v Sutton [2013] QCA 151 R v Thomson (2000) 49 NSWLR 383 R v TW [2011] ACTCA 25 R v Wheeler [2000] NSWCCA 34 Thammavongsa v The Queen [2015] NSWCCA 107 Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458 Veen v The Queen [No 2] (1988) 164 CLR 465 Wong v The Queen (2001) 207 CLR 584 Zandi v The Queen [2015] VSCA 24

Texts cited: Judicial Commission of New South Wales, ‘Special Bulletin 10’ (December 2015)

Parties: The Queen (Appellant) John Phillip Harrington (Respondent)

Representation: Counsel Mr R Bromwich SC with Mr T Shepherd (Appellant) Mr K Archer (Respondent)

Solicitors Commonwealth Director of Public Prosecutions (Appellant) Kamy Saeedi Law (Respondent)

File Number: ACTCA 64 of 2014

Decision under appeal: Court: ACT Supreme Court Before: Burns J Date of Decision: 13 November 2014 Case Title: R v Harrington Citation: [2014] ACTSC 321

Murrell CJ:

1. The prosecution appealed against the sentences that were imposed by Burns J (the sentencing judge) on 13 November 2014 for offences of attempting to possess the marketable quantity of cocaine and trafficking in cocaine: R v Harrington [2014] ACTSC 321 (Harrington).

2. The starting points for the sentences were five years’ imprisonment (for the offence of trafficking in cocaine) and 12 months’ imprisonment (for the offence of attempting to possess a marketable quantity of cocaine). After deducting 10% for pleas of guilty, the sentencing judge imposed the following sentences:

Attempt to possess 4 years 6 Maximum 25 s 307.6(1) Criminal marketable quantity of months years Code 1995 (Cth) cocaine (258.5 g) Trafficking in cocaine 10 months Maximum 10 s 302.4 Criminal Code (24.91 g) years 1995 (Cth)

3. The sentences were made wholly concurrent; in each case, the sentence was to run from 13 February 2014. A non-parole period of two years and three months’ imprisonment (50%) was imposed (from 13 February 2014 to 12 May 2016).

4. The marketable quantity for cocaine is 2 g and the commercial quantity is 2 kg. The maximum available penalty for the offence of possessing (or attempting to possess) the commercial quantity of cocaine is life imprisonment.

5. The appellant identified the following grounds of appeal:

(a) In breach of the totality principle and Pearce v The Queen (1998) 194 CLR 610 (Pearce), the sentences were made wholly concurrent.

(b) Contrary to Cameron v The Queen (2002) 209 CLR 339 (Cameron), the sentences were discounted for utilitarian reasons.

(c) The sentences are manifestly inadequate having regard to the objective seriousness of the offence of attempted possession, the fact that the offender was not a “first time offender” and the appropriate range of sentences. In part, the manifest inadequacy of the sentences is a result of the specific errors.

Nature of a Crown sentence appeal

6. On an appeal against sentence, the appellant needs to show a specific error of fact or law, or an implied error, which may be that the sentence is manifestly excessive or inadequate in the sense that it is unreasonable or, in the case of an offender appeal, it is plainly unjust: House v The King (1936) 55 CLR 499 at 504–505.

7. Appellate intervention on the ground of manifest excess or inadequacy is not warranted unless, having regard to all relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been a misapplication of principle: R v Pham (2015) 325 ALR 400 (Pham) at [28] per French CJ, Keane and Nettle JJ, restating principles laid down in Wong v The Queen (2001) 207 CLR 584 at [58] (Wong) and Barbaro v The Queen (2014) 253 CLR 58 at [61]. See also the observations of Bell and Gageler JJ in Pham at [56].

8. The principles governing Crown sentence appeals are well established: see Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ; Green v The Queen (2011) 244 CLR 462; and CMB v Attorney-General (NSW) (2015) 317 ALR 308 at [55]–[57]. In this jurisdiction, the principles were discussed recently in R v Duffy [2014] ACTCA 53 at [52]–[60] and [103]–[113]. Whereas an offender appeal is designed to correct error in the particular case, the purpose of a prosecution appeal is to lay down principles for the governance and guidance of sentencing courts.

Nature and circumstances of the offences

Attempt to possess cocaine

9. On 21 May 2011, the respondent travelled to the United States carrying $22,000 in cash. He arranged for a work colleague to carry an additional $20,000 in cash. The money was used by the respondent to purchase cocaine. As the sentencing judge found, the respondent himself was the source of most of the money. The respondent arranged for the cocaine to be concealed in one bottle of a shipment of auto wax.

10. The shipment of auto wax was delivered to Australia. In Sydney, the bottle containing cocaine was intercepted and deconstructed by the Australian Federal Police (AFP).

11. On 4 July 2011, the “cocaine” was delivered to a Mr Williams in Canberra. He telephoned the respondent and arranged for him to collect the parcel containing the drug.

12. The respondent and another man collected the parcel. They transported it to Fyshwick, where the respondent used a key to enter commercial premises. Moments after the respondent had emptied the cocaine into a baking dish, he was arrested.

13. The bottle of wax weighed 539.8 g, of which 258.5 g was pure cocaine. The substance had an estimated street value of $114,000.

Trafficking in cocaine

14. On 7 July 2011, police searched the respondent’s home and car. They located 24.91 g of pure cocaine and drug supply paraphernalia, including three sets of electronic scales, numerous zip lock bags and a drug test kit. Forensic evidence (DNA and fingerprints) linked the drugs and paraphernalia to the respondent.

Offender’s subjective circumstances

15. The respondent was a 62-year-old man with solid family and community ties, a strong employment record as a restauranteur and no significant criminal history.

16. From 1998, he was an infrequent user of cocaine. In 2011, he became a daily user, expending substantial sums to purchase cocaine. The respondent had asserted that he was in considerable financial debt. In general, the respondent was a person of good character who was reputable and reliable. He was remorseful. His risk of reoffending was low.

17. The respondent had been diagnosed with cancer. He had a 40% to 60% chance of surviving for five years. The sentencing judge was satisfied that the respondent would receive appropriate treatment in custody and that the respondent’s illness did not mean that imprisonment would be a greater burden. At [29] the sentencing judge said:

Whilst I will take into account the fact that you have an illness which is likely to affect your longevity, in the present case I do not accept that this calls for a significant reduction in the appropriate sentence ...

18. In this and other contexts, the sentencing judge emphasised “the dominant sentencing consideration” of general deterrence.

Concurrent sentences

19. The Crown submitted that the sentencing judge erred in failing to partially accumulate the sentences. The Crown relied upon this ground both independently and in support of the argument that the overall sentence was manifestly inadequate.

20. There is no general rule about whether sentences should be served concurrently or consecutively. The question is whether the overall sentence reflects the total criminality of the offences, having regard to considerations such as whether the offences are part of a single episode of criminality and the extent to which the offending behaviours share common factors. Ordinarily, where significant and distinct criminality attaches to different offences, the sentences should be partially accumulated: Franklin v The Queen [2013] NSWCCA 122 at [44] per Hoeben CJ at CL (with whom Hall and Davies JJ agreed), citing with approval Cahyadi v The Queen (2007) 168 A Crim R 41 at [27] per Howie J. The sentencing court should fix an appropriate sentence for each offence and then consider questions of accumulation and concurrence, and totality: Pearce at [45].

21. In this case, the offences involved separate and distinct criminality; they concerned different, albeit somewhat related, drug items and conduct. Each matter involved significant criminality.

22. The sentencing judge did not explain why there was no partial accumulation. There was no obvious reason for failing to partially accumulate the sentences and the sentencing judge did not explain the lack of partial accumulation. This indicates error.

Discount for plea of guilty

23. Section 16A(2)(g) of the Crimes Act 1914 (Cth) (Crimes Act) requires a court that is sentencing a person for a federal offence to take into account the fact that the person has pleaded guilty to the charge.

24. The Crown submitted that, in allowing a discount for the “utilitarian value” of the pleas of guilty, the sentencing judge failed to apply the plea discount principles stated in Cameron and argued that, had those principles been applied, there would have been no discount.

25. In April 2012, the respondent was committed to the Supreme Court for trial. In March 2013, the trial was fixed for three weeks to commence in March 2014. On the day when the trial was due to commence and just before the jury was empanelled, the respondent pleaded guilty. As the trial would have occupied several weeks, the pleas had a utilitarian value; there was a saving of time and expense to the criminal justice system.

26. The sentencing judge allowed a 10% discount for the utilitarian value of the pleas. His Honour said that the respondent’s pleas of guilty:

do not demonstrate significant remorse although I accept that they have a utilitarian value, albeit limited because of the late timing of the pleas.

27. A discount for “utilitarian value” (often referred to as a Thomson discount because of the New South Wales Court of Criminal Appeal’s decision of R v Thomson (2000) 49 NSWLR 383) is associated with the objective fact of a plea of guilty, which usually results in a saving of time and money to the criminal justice system. Some States and Territories have legislated to render such an approach permissible where a sentencing court is exercising State/Territory jurisdiction. The ACT has legislated in relation to the manner in which a sentencing court should approach a plea of guilty, although whether and how an ACT sentencing court may take the utilitarian value of a plea into account is not entirely clear: see Monfries v The Queen (2014) 68 MVR 385 where s 35 of the Crimes (Sentencing) Act 2005 (ACT) was discussed. In any event, where a plea of guilty to an ACT offence has been entered just before the trial commences, it is common for ACT courts to allow a discount of 10%.

28. In Cameron, the High Court considered the way in which a plea of guilty could be taken into account when sentencing for a State offence committed at a Commonwealth place. The Court discussed the relevant requirement of equal justice; that a person cannot be penalised for pleading not guilty. Generally, the decision in Cameron has been interpreted as supporting the principle that, in relation to sentencing for any matter prosecuted by the Commonwealth, the sentencing court should not allow a discount for the utilitarian value of a plea of guilty.

29. However, in Director of Public Prosecutions (Cth) v Gow (2015) 298 FLR 397 (Gow), Basten JA questioned that interpretation, suggesting that Cameron stood for a narrower proposition and that, in relation to sentencing for “federal offences” (where s 16A of the Crimes Act applied) as opposed to State offences committed in a Commonwealth place (as was the case in Cameron), a relevant consideration is whether the plea of guilty has spared the community the expense of the contested trial: at [26].

30. In the context of the present appeal, several points should be made about Basten JA’s observations in Gow.

31. First, his Honour’s observations were uncontroversial in so far as his Honour pointed out that Cameron is not authority for the principle that, in the case of a federal offence, any plea discount is limited to an assessment of the extent to which the plea demonstrates a “willingness to facilitate the course of justice”. The plea of guilty may also be relevant to other subjective considerations such as remorse and the acceptance of responsibility: at [28] In Gow, Hamill J agreed with Basten JA on this point: at [72].

32. Second, in Gow, Basten JA noted that, in cases to which s 16A of the Crimes Act applies, “local” sentencing principles are not picked up. Consequently, local practices with respect to the appropriate level of plea discount do not operate in relation to sentencing for federal offences. In comparative cases involving federal offences, the setting of 25% as the starting point for a plea discount may involve the erroneous application of local practice: at [35]. With reference to this appeal, this means that the local practice of applying a 10% discount for a late plea should not be automatically picked up in relation to sentencing for a federal offence.

The Crown case against the Offender was strong, containing physical and electronic surveillance of the Offender’s actions. The Crown submits that the Offender’s late pleas were simply his “recognition of the inevitable”. Any discount given should be at the lower end of the scale. This was not a concession that there should be a discount for the pleas of guilty; it was merely a submission that, if there was to be any discount, it should be at the lower end of the scale.

38. The sentencing judge erred by approaching the question of a plea discount by applying local practice in the ACT, rather than applying the Cameron principles.

39. Applying Cameron, in this case there was no clear evidentiary basis for allowing a discount for the pleas of guilty. The sentencing judge found that the pleas did not evidence significant remorse (although his Honour also accepted that, by the time that he gave evidence on sentence, the respondent was remorseful). There was no evidence indicating that the respondent had entered pleas of guilty because of an acceptance of responsibility or willingness to facilitate the course of justice. Overall manifest inadequacy

40. The Crown submitted that the errors concerning accumulation and discount for the guilty plea had contributed to the manifest inadequacy of the overall sentence. Further, in relation to the offence of attempt to possess cocaine, the objective seriousness of the offence, the fact that the offender was not a “first time offender” and reference to comparative sentences compelled the conclusion that the sentence imposed by the sentencing judge was manifestly inadequate.

41. The Crown did not submit that the starting point for the sentence imposed for the trafficking offence (12 months) failed to reflect the objective seriousness of that offence.

42. As stated above, I accept that the sentencing judge erred in discounting the sentences for the utilitarian value of the pleas of guilty and erred in failing to partially accumulate the sentences (or explain why there was no partial accumulation). For these reasons, there should be some adjustment to the sentences and the overall sentence.

43. I do not accept the remainder of the Crown’s submissions about the adequacy of the sentences.

Objective seriousness of attempt to possess marketable quantity of cocaine offence

44. There was no error in the manner in which the sentencing judge assessed the objective seriousness of the offence of attempting to possess cocaine.

45. Section 16A(2)(a) of the Crimes Act requires a court that is sentencing a person for a federal offence to consider the nature and circumstances (objective seriousness) of the offending behaviour.

46. In this case, the sentencing judge correctly referred to the principles that are relevant to assessing the objective seriousness of drug importation offences, which are set out in R v Karan [2013] NSWCCA 53. His Honour was well aware of the need to consider an offender’s role in the importation exercise, or what the offender did: Wong at [64]; Olbrich v The Queen (1999) 199 CLR 270 at 279. The sentencing judge discussed this matter at length. His Honour also considered the motive for the offending behaviour, concluding that, although the respondent would have used some of the cocaine himself, he also sought to profit by selling some of the imported cocaine: Harrington at [18]. His Honour undertook a rough assessment of the street value of the cocaine and concluded that, in total, it was worth $114,000. His Honour had regard to the quantity of pure cocaine, 258.5 g, i.e. much more than the marketable quantity of 2 g and much less than the commercial quantity of 2 kg. The sentencing judge observed that the respondent was not a mere courier, finding that he “clearly had a very significant role in this importation”: Harrington at [14]. Such an approach is consistent with well-established practice and was recently approved by the High Court in Pham: at [34]–[36] per French CJ, Keane and Nettle JJ, at [45] per Bell and Gageler JJ.

The “first time offender discount”

47. There was no error in the manner in which the sentencing judge treated the respondent’s prior criminal history and character.

48. Section 16A(2)(m) of the Crimes Act provides that, to the extent that such matters are relevant and known to a court that is sentencing an offender for a federal offence, the court must take into account: (m) the character, antecedents, age, means and physical or mental condition of the person

49. The sentencing judge took into account the fact that the respondent did not have a significant criminal history: Harrington at [20].

50. The sentencing judge took into account the fact that the respondent was a person of otherwise good character. His Honour referred to the respondent’s age, family circumstances, history of employment and general good character (he was reputable and reliable).

51. The sentencing judge noted that the respondent had begun to use cocaine in 1998, and was a frequent user from 2011. At the time of the offences, he was spending significant sums on the purchase of cocaine: Harrington at [25].

52. The Crown submitted that the sentencing judge erred in allowing a “first time offender discount”. The Crown contended that “the purpose of examining an offender’s criminal history is one of character”. The Crown argued that, as the respondent was a long-standing user of illicit substances who committed the trafficking offence prior to the attempted possession offence, when it came to sentencing for the attempted possession offence, “the principle expressed in Veen [No 2] was directly relevant to the sentencing judge’s consideration of the respondent’s prior character”. This was a reference to Veen v The Queen [No 2] (1988) 164 CLR 465 (Veen [No 2]).

53. I do not accept the Crown’s submissions.

54. The exercise of sentencing a federal offender does not involve the consideration of a “first time offender discount” and, in this case, the sentencing judge did not apply a “first time offender discount”.

55. While the considerations of prior criminal history and character are related, prior criminal history may be relevant for reasons other than illuminating character. Section 16A(m) recognises the distinction; it refers to both character and antecedents.

56. A person of prior good character deserves credit for living a generally positive lifestyle. In the context of past good character, it is usually possible to characterise an offence as being out of character. Past good character often suggests that an offender has good prospects of rehabilitation. While a long-standing drug addict cannot claim to be a person of prior good character in every respect, such a person may nevertheless be of good character in some respects. A person’s drug addiction may serve to explain how someone of otherwise good character has come to commit offences: for example, that it is not just a case of desire to make a commercial profit.

Sentencing range that is legitimately available

60. The maximum available penalty is a critical sentencing parameter. In this case, the maximum available penalty for the offence of attempting to possess the marketable quantity of cocaine (between 2 g and 2 kg) was 25 years’ imprisonment, which can (with some practical difficulty) be contrasted with the maximum available penalty of life imprisonment for the offence of attempting to possess (or possessing) the commercial quantity of cocaine (at least 2 kg of cocaine).

61. There will inevitably be some inconsistency in sentencing, but equal justice demands reasonable consistency. However, consistency is not demonstrated by numerical equivalence. Relevant consistency is consistency in the application of legal principle. As was explained in Hili v The Queen (2010) 242 CLR 520 (Hili) at [50], the first and paramount means of achieving consistency in federal sentencing is to apply the relevant statutory provisions. The sentencing court may have regard to what has been done in other cases, treating those sentences as a yardstick against which to examine the proposed sentence. However, the sentencing pattern or range of sentences imposed in other cases does not, of itself, establish the correct range for an offence of the type in question: Hili at [53]–[55]. In Pham, a case involving possession of the commercial quantity of an illicit drug, following Hili the High Court affirmed that federal offenders are to be sentenced having regard to sentencing patterns throughout the Commonwealth: French CJ, Keane and Nettle JJ at [23], Bell and Gageler JJ at [53].

62. The comparative cases to which reference was made on this appeal provide little support for the Crown’s argument that the sentences imposed by the sentencing judge were outside the available sentencing range. In Ojielumhen v The Queen [2014] ACTCA 28 and Manyathela v The Queen [2015] ACTCA 13, the offenders were merely couriers, although the quantities involved were similar to the quantity involved in the subject case. The starting point for each sentence was about seven years’ imprisonment. In Gow, the majority declined to disturb a sentence of eight years’ imprisonment, with a non-parole period of five years’ imprisonment, that had been imposed for the offence of importing a commercial quantity of cocaine (2.3 kg pure, just above the commercial quantity of 2 kg). In Gow, the sentencing judge had not been satisfied that the offender had organised the importation, but he had been satisfied that the offender had travelled from Canada to Australia for the sole purpose of engaging in the importation. In Atanackovic v The Queen (2015) 45 VR 179 at [153], the Victorian Court of Appeal decided that a sentence of three years and six months’ imprisonment for possession by a “trusted minder” of 1.194 g of cocaine was by no means inappropriately heavy. In that case, following a late plea of guilty, the total sentence that was imposed for the offences of possessing a marketable quantity of cocaine to facilitate trafficking by others and trafficking in cocaine was four years’ imprisonment, with a non-parole period of two years and six months’ imprisonment.

Residual discretion

65. Although the Notice of Appeal was filed out of time, the slight delay in lodging the Notice should not affect the Court’s exercise of its residual discretion. Prior to the expiry of the limitation period, the respondent was notified of the Crown’s intention to appeal and the small delay in lodging the Notice of Appeal has caused no relevant prejudice.

Resentencing

66. The sentences imposed by the sentencing judge are not to be taken as a starting point for the resentencing exercise. When resentencing on appeal under s 37O(7) of the Supreme Court Act 1933 (ACT), the Court should make an independent assessment of the appropriate sentence: Kentwell v the Queen (2014) 252 CLR 601; Thammavongsa v The Queen [2015] NSWCCA 107.

67. The relevant objective and subjective factors and the significant sentencing considerations are referred to above, and I will not repeat them. There should be no discount for the pleas of guilty, but the respondent’s belated remorse should be taken into account. In relation to the fixing of a non-parole period, local practice does not apply. However, having regard to the respondent’s age and lack of significant criminal history, I would impose a relatively low non-parole period. In relation to the non-parole period, the respondent’s life-threatening medical condition is also relevant; it is appropriate that he have some hope that he will survive to be released.

68. I would impose the following sentences:

(a) Attempt to possess the marketable quantity of cocaine: five years’ imprisonment.

(b) Trafficking in cocaine: 12 months’ imprisonment.

69. I would accumulate the sentences by six months, resulting in an effective sentence of five years and six months’ imprisonment, and I would fix a non-parole period of two years and nine months’ imprisonment.

I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: 22 April 2016

Refshauge ACJ and Gilmour J:

70. The Crown appeals from sentences imposed by a judge of the Court on 13 November 2013.

71. The generally applicable principles in respect to Crown appeals against sentence were summarised by Refshauge J in R v TW [2011] ACTCA 25 at [3]-[6]. Relevantly, they may lie in order to establish a point of principle, or, where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error, in principle or to articulate uniformity in sentencing.

72. These principles were adopted by this Court in R v Eisenach [2011] ACTCA 2 (at [8]- [10]).

73. The respondent, on 13 November 2014, received the following sentences from a judge of the Court, backdated to when he went into custody upon his guilty pleas:

Section(s) Offence Plea Sentence Imposed Max. Penalty

11.1 & Attempt to possess Guilty 4 years and 6 months 25 years 307.6(1), a border controlled imprisonment imprisonment drug (namely 258.5g (13.02.14 to 12.08.18) Criminal Code pure of cocaine) (Cth) Section(s) Offence Plea Sentence Imposed Max. Penalty 302.4, Trafficking in a Guilty 10 months imprisonment 10 years Criminal Code controlled drug wholly concurrent imprisonment (Cth) (24.91g pure of (13.02.14 to 12.12.14) cocaine)

Single non- parole period of 2 years 3 months (13.02.14 to 12.05.16)

74. The Director advances two grounds. First, that the sentences should not have been made wholly concurrent. Second, that the overall sentence is manifestly inadequate. The first ground is a matter which is relevant also to the second ground.

75. We should dispose, at the outset, of an argument put by the respondent that certain of the grounds of appeal, properly characterised, are not in fact grounds of appeal. He calls in aid authorities such as Eisenach v The Queen at [44], which identified the vice of putting forward particulars of grounds of appeal as grounds in themselves. This has not occurred here. There are but two grounds, which we have set out. The second ground, of manifest inadequacy, has been amplified by particulars, in the same vein as described by the plurality in Bugmy v The Queen 249 CLR 571 at 578-8; [22]. They are not particulars of errors in themselves, but rather of matters relevant in the sentencing decision which, arguably, point to the sentence imposed being below a just range of sentences, thereby demonstrating that the sentencing discretion miscarried.

76. As Refshauge J said in Hawkins v Hawkins (2009) 3 ACTLR 210 at [46]- [47]:

77. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion. See also R v Thorn [2010] ACTCA 10 (at [33]).

78. The Director’s case, in combination, is that, as a result of wholly concurrent sentences, despite two separate and distinct instances of offending and a failure to impose a sentence for the attempt to possess offence that properly reflected the respondent’s level of criminality, the overall sentence imposed was manifestly inadequate both as to the head sentence and as to the non-parole period. Further, the Director contends that the sentencing judge erred in giving a discount for prior good character and misapplied the principles applicable to a guilty plea.

The facts

78. The nature of the offences and the circumstances in which they were committed are set out in the Crown’s Statement of Facts and the sentencing judgement: R v Harrington [2014] ACTSC 321 at [4]- [19] (Sentence). The following is a summary of the key facts largely drawn from the Director’s written submissions. They are not contentious.

Attempt to possess cocaine

79. On 21 May 2011, about six weeks before a parcel containing cocaine arrived in Australia, the respondent left Australia for Chicago, Illinois, carrying $22,000 in cash. On 22 May 2011, a work colleague of the respondent, Marcus Fox, left Australia, also to travel to Chicago, carrying $20,000 in cash, at the respondent’s request. His Honour accepted that this money was used by the respondent to purchase the cocaine that was imported into Australia in a bottle of Barrier Reef Carnauba Auto Wax: Sentence at [11].

80. His Honour also expressed the belief that it was likely that the respondent was the source of the bulk of the money, if not all of it, as he was the person intimately involved in taking the money out of Australia and, by inference, arranging for the shipment. He was later responsible for collecting the shipment. The respondent was therefore the person taking the risk in this importation: Sentence at [12].

81. On 30 June 2011, a FedEx parcel addressed to “Capital Stainless Steel, 6 McEwan Avenue, Oaks Estate, ACT, Australia, 2620” arrived in Sydney.

82. On 1 July 2011, the FedEx parcel was intercepted by members of Australian Customs and Border Protection Service and subsequently deconstructed by the Australian Federal Police (AFP). The parcel contained six bottles purporting to be Barrier Reef Carnauba Auto Wax. The contents of one of the six bottles, being a white liquid paste, was tested and found to contain cocaine; the other five bottles contained a light blue liquid. The AFP removed the white paste and substituted an inert white paste into the bottle for the purposes of a controlled delivery.

83. On 4 July 2011, at about 1.00 pm, a member of the AFP, posing as a FedEx employee, delivered the FedEx parcel to Mr Geoffrey Williams at Capital Stainless Steel in Oaks Estate, Canberra. About three quarters of an hour later Mr Williams rang the respondent to advise him that “those brackets” were ready. The respondent then drove out to Oaks Estate and collected the FedEx package from Capital Stainless Steel: Sentence at [6].

84. On the evening of 6 July 2011, the respondent, in company with another man, drove to commercial premises at 70 Barrier Street Fyshwick, ACT. The respondent had a key to those premises. Once inside, the respondent opened the one bottle of Barrier Reef Carnauba Auto Wax that contained the white paste. He then emptied the contents into a baking dish, moments before being arrested by police and a search warrant being executed. At the time the police entered the room, the ceramic baking dish was found in the corner of the room, overturned, with white paste under it. The same white paste was found on the respondent’s clothing.

85. In sentencing, his Honour did not accept the respondent’s evidence that his role at the premises of 70 Barrier Street was simply to divide up the cocaine. His Honour found that there was evidence that the respondent had intended to use items at those premises to prepare the cocaine: Sentence at [14]. His Honour also noted that the respondent was found to be in possession of the keys to the premises at 70 Barrier Street and that the respondent was taking steps to start the process of extracting the cocaine from the white paste. Consequentially, his Honour concluded that the respondent “clearly had a very significant role in this importation”: Sentence at [14].

Net weight: 539.8 grams % purity of cocaine: 47.9% Cocaine purity : 258.5 grams

Trafficking in cocaine

88. In the early hours of 7 July 2011, the day after the arrest of the respondent, the AFP executed search warrants on the respondent’s home unit and on his car. A number of zip lock bags containing white powder were located in various places in the respondent’s unit, together with a line of white powder on the kitchen bench. The total amount of white powder in the unit, when analysed, contained 24.91 grams of pure cocaine. Also found in the respondent’s unit and in his car were paraphernalia commonly used in the sale of drugs, including three sets of electronic scales, numerous zip lock bags and a drug test kit.

89. A number of items seized from 70 Barrier Street on the day of the respondent’s arrest, when subsequently tested, were found to contain traces of cocaine. Because of the substitution of the cocaine that had been in the imported parcel, the traces of cocaine had to be due to prior dealings in cocaine.

90. In addition, some items at 70 Barrier Street were found to contain the fingerprints of the respondent or a DNA profile that that provided strong support that the DNA located on it was that of the respondent.

Summary of court proceedings

91. On 5 April 2012, the matter was committed for trial in the ACT Supreme Court and docketed on 18 September 2012 to a judge of the Court. Trial dates were adjourned due to witness availability. A trial date was fixed on 4 March 2013 for a three week hearing running from 24 February 2014 to 14 March 2014. The same day, 4 March 2013, Mr Harrington’s counsel indicated that no concessions would be made and the Crown prepared for trial. On this basis, the trial was listed for the ACT Supreme Court sittings in February and March of 2014.

92. One year later, on 4 March 2014, the trial commenced. However, the respondent changed his plea that morning, just prior to empanelment, to one of guilty in respect of both counts.

Ground 1: Imposition of wholly concurrent sentences

93. The Director submits that the trafficking offence reflected the respondent’s prior commercial drug dealing activities, which were committed in the context of cocaine use and supply over a number of years, and that this offence, therefore, reflected what he had done in the past. By contrast, he submitted that the attempt to possess offence, being a thwarted attempt to continue dealing in cocaine, reflected the future.

94. Generally, in principle, when sentencing for multiple offences, a court should fix an appropriate sentence for each offence before considering accumulation, concurrency and then totality, in order to arrive at the appropriate total sentence to reflect the criminality before the court: Pearce v The Queen (1998) 194 CLR 610.

95. As was stated by the Court of Criminal Appeal of New South Wales in R v MMK (2006) 164 A Crim R 481 at [13]: In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending...

96. Sully J (with whom Carruthers AJ agreed) in R v Wheeler [2000] NSWCCA 34 at [37] stated that:

… a person who commits a deliberate series of discrete offences … must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follows successively one upon another.

97. The sentencing judge, on the charge of trafficking in a controlled drug, namely cocaine, recorded a conviction and sentenced the respondent to ten months imprisonment, concurrent with the sentence imposed on the attempt to possess charge. Sentence at [33]. He gave no reasons for making this a concurrent sentence. There was no distillation of the discrete offences or the facts establishing each of them, including any mitigatory factors, so as to reason toward a conclusion that the aggregate of the two sentences looked wrong or was too much.

98. The maximum penalty for the attempt to possess charge is 25 years imprisonment, and for the trafficking charge 10 years imprisonment: s 307.6 of the Criminal Code 1995.

99. A sentence of 4 years 6 months imprisonment for the former and 10 months imprisonment for the later, viewed discretely, are, in each case, well toward the lower end of the available range.

100. For this reason alone, apart from his contention that the sentence for the offence of attempting to possess cocaine is manifestly inadequate, the Director submits that making the sentences wholly concurrent failed to reflect the overall criminality involved in an appropriate total sentence and thereby erred in the application of the totality principle articulated in Pearce.

101. We agree. These offences were, in the sense we have described them, distinct acts of criminality. They do not overlap in any factual or legal sense. That this is so is not altered by submitting, as the respondent does, that they were part of the same course of conduct of concurrency. Making the sentences wholly concurrent was an error in the application of the principle of totality. The head sentence for the trafficking offence may reasonably be described as lenient. The objective seriousness of the trafficking offence was moderately high, a matter which is not property reflected in the sentence by being made wholly concurrent. The result, in our view, is that there has been no effective punishment in respect of the trafficking offence: see e.g. R v Wheeler per Sully J, with whom Carruthers AJ agreed, at [37].

Ground 2: The sentences overall were manifestly inadequate

102. The Director rightly acknowledged that, being a Crown appeal on sentence, the primary purpose of the appeal is not the correction of error in the particular case but, rather, with the laying down of principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 per French CJ, Crennan and Kiefel JJ at 466; [1] and 477;[36]; per Bell J at 500; [112]; R v DH; R v AH [2014] NSWCCA 326 per Simpson J at [17]- [20].

103. This objective may be satisfied if it can be demonstrated that the sentence imposed fell outside the range of sentences legitimately available: Green v The Queen; Quinn v The Queen per Bell J at 500; [112]; R v DH; R v AH per Simpson J at [20].

104. Both offences were federal offences. As such, the sentence to be imposed fell to be determined in accordance with Pt 1B of the Crimes Act 1914 (Cth). Section 16A(1) of that Act required the imposition of a sentence that was of a severity appropriate in all the circumstances of the offence, having regard to, amongst other things, such of the matters specified in s 16A(2) as were relevant and known to the Court.

105. Section 16A(2)(a) required an assessment of the objective seriousness of the offending, an important indicator of which is the maximum penalty prescribed for the offence as it provides a yardstick for the appropriate sentence, although it must be balanced against all other relevant factors: R v Poynder (2007) 171 A Crim R 544 at 553; [52].

106. There is no single correct sentence or range of correct sentences. However, sentencing judges must have regard to what has been done in other cases: Hili v The Queen (2010) 242 CLR 520 at 535-536; [48]-[50], 536-538; [53]-[56]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at 70;[303] and 71; [305].

107. The appellant submits that the sentences overall were manifestly inadequate, having regard to the following matters:

(c) the sentences did not reflect the objective seriousness of the offending including, in particular, the respondent’s substantial role in a commercial enterprise for the attempt to possess a border controlled drug;

(d) the first time offender discount granted to the respondent was not properly available for the sentence on the attempt to possess count due to the respondent’s prior involvement with cocaine, as evidenced by his cocaine trafficking;

(e) a discount for utilitarian reasons for the respondent’s plea was not open to the Court;

(f) imposing a sentence below that which was reasonably available, including having regard to the authorities in relation to comparative sentences as yardsticks; and

(g) the wholly concurrent sentences were in breach of totality principle as expressed by the High Court in Pearce (repeating the arguments for ground 1 as a particular of ground 2).

Objective seriousness of the offending

108. The appellant submits, correctly in our view, that the evidence before the Court at sentence placed the respondent as a principal in the commercial enterprise for which he was attempting to possess the cocaine.

109. At [10] of the Sentence, his Honour made reference to the principles found in R v Karan [2013] NSWCCA 53, including the requirement that the criminality of the respondent be assessed by reference to his involvement in the steps taken to effect the importation;

110. That he was a principal was established both in the Statement of Facts and from the evidence given by the respondent at the sentencing hearing. He was a principal in the importation of a marketable quantity of cocaine: see R v Laurentiu (1992) 63 A Crim R 402; R v Bimahendali (1999) 109 A Crim R 355.

111. His Honour was also satisfied that the respondent’s objective was to profit by the sale of a proportion of the cocaine: Sentence at [18].

112. We are persuaded that the sentence of 4 years 6 months imprisonment with eligibility for parole after 2 years 3 months reflected neither the sentencing judge’s assessment of the criminality involved nor that in other decisions of this and other Courts, wherein similar, significantly higher, sentences have been imposed. We will deal further with this last aspect later.

The “first time offender” discount

113. The Appellant referred to a “first time offender” discount but there is no such discount in sentencing law. Section 16A(2)(m) of the Crimes Act requires a court to take into account what is known and relevant to an offender’s “character [and] antecedents”, which includes the number and nature of any prior offences but, as Windeyer J pointed out in Cobiac v Liddy (1969) 119 CLR 257 at 277, antecedents refers to an offender’s past history and record.

114. The sentencing judge took into account, as a factor in the respondent’s favour, that he did not have a significant criminal history: Sentence at [20]. The appellant submits that this constituted an error of principle.

115. In Veen v The Queen [No 2] (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ relevantly stated at 477:

The antecedent criminal history is relevant, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter circumstance retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is therefore legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.

116. In the Sentence at [25], his Honour noted that the respondent reported commencing the use of cocaine in 1998, and continued infrequent use until 2011 when his use escalated to daily. The respondent claimed that he would spend between $600 and $1,200 a day on cocaine.

117. The respondent’s personal cocaine use, taken together with the offence of trafficking in cocaine, as the Director submits, demonstrates that the offence of attempting to possess cocaine was not an uncharacteristic aberration. The respondent was addicted to cocaine and was prepared to bring cocaine into the country illegally for his own use and to profit by further trafficking.

118. Accordingly, the respondent, in these circumstances, should not have attracted a significant discount for prior good character upon either of the sentences.

119. Rather, the principle set out in Veen [No 2] was apt to the proper consideration of the respondent’s prior character. Utilitarian reasons for a discount on plea

120. In the Sentence at [21], his Honour remarked:

I take into account your pleas of guilty to these charges, although they were very late pleas. You originally entered pleas of not guilty to these charges and they were listed for a three week trial…You entered pleas of guilty on 3 March after all necessary preparations and arrangements for the trial had been completed.

121. At sentence [22] and [31], his Honour took into account the fact that the respondent’s pleas of guilty did

[22] … not demonstrate significant remorse although I accept that they have a utilitarian value, albeit limited because of the late timing of the pleas. ... [33]…I will reduce the terms of imprisonment that would otherwise be appropriate by 10 percent to reflect your pleas of guilty.

122. In Cameron v The Queen (2002) 209 CLR 339 Gaudron, Gummow and Callinan JJ said at 343; [14]:

Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

123. Then their Honours, at 346; [22], said:

Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity.

124. Counsel for the respondent conceded that his Honour was correct to find that the plea of guilty was not entered as at the earliest opportunity. Indeed, as counsel put it emphatically – “Clearly it was not”. There was a submission put on behalf of the respondent that the Crown, on sentence, conceded that some discount, based in utility, for the plea, albeit a late plea, could be given. We do not think that the submissions made to the sentencing judge on behalf of the Crown go that far. In any event, such a discount is not available in light of Cameron. The sentencing judge rejected the respondent’s evidence seeking to explain away the lateness of the plea of guilty. His Honour, in Sentence at [22], stated that he was “satisfied that [the appellant] hoped that [his] legal representatives could defeat the charges and have [the appellant] acquitted”.

125. Counsel for the respondent ultimately conceded, correctly in our view, that the application of a utilitarian discount by the sentencing judge was contrary to the principles found in Cameron concerning the discount for a plea of guilty.

126. As Simpson J, with whom Spigelman CJ and Harrison J agreed, stated in Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458 at 476-7; [114] “Cameron … specifically excludes reference to the utilitarian value of the plea.”

127. The sentencing judge, as the respondent’s counsel correctly conceded, failed to apply Cameron. Whilst no additional punishment may be imposed for not pleading guilty earlier, conversely, his guilty plea only just before his trial began, in circumstances which did not establish his willingness to facilitate the course of justice, could not attract any discount. Moreover, the appellant’s evidence sought to minimise his involvement in the offences, for example that he had no profit motive. This too was rejected by the sentencing judge. Such, on the appellant’s part, was also antithetical to any conclusion that he was willing to facilitate the course of justice.

128. The Director brought to the Court’s attention the recent decision of the New South Wales Court of Appeal in Director of Public Prosecutions (Cth) v Gow (2015) 298 FLR 397. There Basten JA, Hamill J concurring, concluded, at [28] that Cameron has nothing to say about the operation of Commonwealth Law with respect to sentencing.

129. Whilst the Director made lengthy submissions on this question, the respondent made none and, as we have mentioned, conceded that Cameron had not been followed, and, by implication, should have been followed.

130. The majority’s conclusion in Gow was reached although no submissions had been put by the parties as to Cameron during the hearing of that appeal. Basten JA, at 404; [27], reasoned that Cameron did not involve a “federal offence”, as the sentence was imposed for an offence against the Misuse of Drugs Act 1981 (WA), picked up and applied as federal law by the Commonwealth Places (Application of Laws) Act 1970 (Cth). His Honour drew the distinction between the Western Australian court exercising federal jurisdiction, which it was, and a federal offence, which the offence in question was not. So much may be accepted. However, it does not lead to the conclusion arrived at by his Honour.

Imposing a sentence below that which was reasonably available

133. We accept the Director’s submission that the objectively serious features of the offending conduct are not adequately reflected in the sentence. The sentencing judge correctly characterised the respondent as not having had a minor role in the attempt to possess the cocaine, such as a mere recipient of the drugs. Nor was he merely a courier. Rather he was correctly characterised as a principal. Whilst his Honour correctly described the offending, we accept the submission that this was not reflected in the sentence “of a severity appropriate in all the circumstances of the offence” as required by s 16A(1) of the Crimes Act 1914.

134. The Director, in this respect, submits that the sentences imposed are inconsistent with those imposed for such offences throughout Australia. The High Court has pointed out the need for consistency of decision throughout Australia: Hili v The Queen at 538; [57]. See too Wong v The Queen (2001) 207 CLR 584 per Gleeson CJ at 591; [6].

135. The High Court has very recently reaffirmed this in R v Pham (2015) 325 ALR 400 where, at 404; [18], French CJ, Keane and Nettle JJ said:

As Hili v The Queen made clear, where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong.

136. There is, in this case, no relevant legislation of the Australian Capital Territory required to be picked up and applied to the federal offences in question by s 68 of the Judiciary Act 1903 (Cth). Accordingly, the obligation of the sentencing judge to take current sentencing practices into account when sentencing the respondent arose as a matter of common law: Pham at 404-405; [20]-[23].

137. It is implicit in Pt 1B of the Crimes Act that a sentencing judge must have regard to current sentencing practices throughout the Commonwealth: Pham at 405; [23]. As to this obligation, their Honours, at 18-19; [26], reaffirmed the bi-fold purpose of a consideration of comparable cases:

[F]irst it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.

138. It is consistency in the application of the relevant legal principles which is required. This is not demonstrated by, and does not require, numerical equivalence but rather that like cases are treated alike and different cases differently: Hili at 535-534; [48]- [49]. The history of other sentencing cases stands as a yardstick against which to examine a proposed sentence and it is the unifying principles which those sentences both reveal and reflect which is important: Barbaro v The Queen (2014) 258 CLR 58 at 74; [41] per French CJ, Kiefel and Bell JJ. See also Hili at 536-7; [53]-[54]; De La Rosa at 31-32; [124]-[126]. This consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts: Hili at 537-8; [56]; Pham at 406; [28].

139. Their Honours emphasised in Pham at 406; [28] that:

(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

140. The Crown, to this end, provided a list of sentences from other cases which we have attached to these reasons. These disclose a range of penalties imposed for offences of attempting to possess, or of importation, of a marketable quantity of border controlled drugs, carrying a maximum penalty of 25 years imprisonment. We have had regard, particularly, to the cases of Okeke v R [2005] NSWCCA 444; El-Ghourani v R (2009) 195 A Crim R 208; Nell v The Queen [2014] WASCA 193; Adegoke v R (2013) 234 A Crim R 280; Nguyen v The Queen (2012) 272 FLR 58; Zandi v The Queen [2015] VSCA 24 and R v Sutton [2013] QCA 151. They represent cases from New South Wales, Victoria, Queensland and Western Australia. The similarities, more or less, between these cases and the present case are evidenced from the column headed “Similarities to Harrington” in the attached list. They are, in themselves, indicative of the manifest inadequacy of the sentence imposed in respect of the attempt to possess conviction.

141. We have set out, for illustrative purposes, in somewhat more detail, the facts in each of Okeke, El Ghourani and Adegoke.

142. In Okeke the applicant pleaded guilty to two counts of attempting to possess 195.8 grams and 190.3 grams of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The applicant arranged for another person to collect two packages sent from Brazil. He had no prior criminal convictions but was found not to be of good character. Any discount for his plea of guilty was not specified. The plea of guilty was entered after the trial was listed to commence. His sentence for each offence, confirmed on appeal, was 9 years imprisonment with a non-parole period of 6 years, to be served concurrently.

143. In El-Ghourani, the applicant pleaded guilty to attempting to possess 181.5 grams of heroin, contrary to s 307.6 of the Criminal Code Act 1995. The drugs were concealed within wooden frames that he arranged to be collected on his behalf. The sentencing judge assessed his role as more than a mere cog and found that he was acting as a principal in Australia, but was not satisfied he was the sole organiser. He had a prior criminal record, significant drug habit and a reluctance to admit to his involvement. It was difficult to determine his prospects of rehabilitation. He was given a 15 per cent discount for his guilty plea. His sentence, confirmed on appeal, was 9 years imprisonment with a non-parole period of 6 years.

144. In Adegoke, the applicant pleaded guilty to attempting to possess a marketable quantity of cocaine, namely 86.2 grams, contrary to s 307.6(1) of the Code, dealing with the proceeds of crime in the amount of $387,241.00, contrary to s 400.4(1) of the Code, and custody of a false instrument contrary to s 302 of the Crimes Act 1900 (NSW). A mail package from Brazil was intercepted by the Australian Federal Police and found to contain a thermal flask in which the cocaine was hidden. The address on the package was a house under construction. The applicant was observed in the vicinity of that house. When a search warrant was executed on the applicant's home, various items, including the Australia Post collection slip for the package, were located. The applicant’s plea of guilty was entered in the Local Court. The applicant was sentenced to 7 years imprisonment for the drug offence, 5 years imprisonment for the proceeds of crime offence, to be partially cumulative, and 12 months imprisonment for the false instrument offence, to be served wholly concurrently with the proceeds of crime offence. A total sentence of ten years imprisonment with a single non-parole period of six years was imposed for the Code offences. The discounted sentence of 7 years for the attempt to possess offence, from a starting point of 8 years and 9 months, whilst towards the top of the range, was confirmed on appeal and was not "unreasonable or plainly unjust".

Residual discretion

160. In determining a Crown appeal against sentence, this Court retains a residual discretion to decline to interfere with the sentence, even where it is found to be manifestly inadequate: Green v The Queen; Quinn v The Queen per French CJ, Crennan and Kiefel JJ at 465-466; [1]-[2]. The Crown, when asserting manifest inadequacy is required to “negate any reason why the residual discretion of [the Court] not to interfere should be exercised”: CMB v Attorney-General (NSW) (2015) 317 ALR 308.

161. The appeal proceedings have proceeded expeditiously. The respondent was notified that a Crown appeal was under consideration in a letter dated 27 November 2014, two weeks prior to the expiry of the appeal period. Although the appeal itself was lodged a single day late due to a mistake in relation to the expiry period, in R v Harrington [2015] ACTCA 2, her Honour the Chief Justice upheld the Crown application for leave to appeal out of time and noted that there was no relevant prejudice flowing from the minimal delay.

162. There has been no change of position on the part of the Crown between the sentence and appeal. No conduct on the part of the Crown has contributed to the errors of the sentencing judge.

163. We see no reason for exercising the residual discretion so as not to interfere with the sentence imposed.

Conclusion

164. We concluded, for these reasons, that the sentence imposed was manifestly inadequate.

165. We would resentence the respondent as follows:

Attempt to possess: 7 years imprisonment

Trafficking: 1 year 6 months imprisonment, to be served concurrently as to 6 months with the sentence in respect to the conviction for attempt to possess.

166. This produces an effective combined head sentence of 8 years, to commence from 13 February 2014 and expiring on 12 February 2022.

167. We would set a non parole period of 4 years 6 months commencing on 13 February 2014 and expiring on 12 August 2018.

I certify that the preceding ninety-seven paragraphs numbered [70]-[167] are a true copy of the Reasons for Judgment of their Honours Justice Refshauge and Justice Gilmour.

Associate:

Date: 22 April 2016 Crown’s list of cases in head sentence order

Name Plea Drug quantity Priors Similarities to Harrington Role Head NPP R v Mokbel Not Guilty [43] 1,933.4g cocaine [10] Extensive criminal Financial motive [48], high Principal 12 years 9 years (2010) 249 996.7 times the minimum history [34] degree of planning [3]-[6], [50] FLR 169; quantity contempt for the law, no [2010] VSCA prospects of rehabilitation [57] . 11 Iyoha v The Late plea two 533.3 g Yes, prior drug import High culpability, knew the Importer, 11 years 7 years (not Queen [2011] weeks prior to trial methylamphetamine [1] [15] quantity and quality of the drug an articulated WASCA 46 – Unspecified 266.65 times the minimum as importer [7], late plea close to important in the CA discount [13] quantity trial [13], some remorse [13] and judgment) substantial link in the chain of distribution [7] Okeke v R Plea of guilty at 385.83g cocaine [3] No criminal history, Role [6]-[11], drug amount [3] , A role of 9 years 6 years [2005] latest possible 193 times the minimum good character lack of good character [14], lack substance NSWCCA 444 stage - day after quantity submissions of contrition [14], financial involving trial was to begin rejected[14] motive [14] some [11] – Unspecified degree of discount organisatio n [7]-[8] El-Ghourani v Guilty but disputed 181.5g heroin [14] Yes, one drug related. Financial motive [10], degree of Acting as 9 years 6 years R [2009] facts on sentence - 90.75 times the minimum Criminal history not planning [9], prior drug use [10] principal in NSWCCA 140; 15% discount [13] quantity considered relevant to difficult to determine prospects Australia [9] (2009) 195 A present charge, but of rehabilitation [13], high moral Crim R 208 not entitled to be culpability [40]-[44] treated as first time offender [10] Name Plea Drug quantity Priors Similarities to Harrington Role Head NPP R v Verrall Guilty [24], 435.7g cocaine [39] Yes, [50], considerable Limited prospects of Principal 9 years 5 years [2015] QCA 72 unspecified times the minimum quantity criminal record with rehabilitation [50], lack of [39] discount, not an significant remorse [51]-[53], ran operation indication of imprisonment for drug to import cocaine from overseas genuine remorse offences [61] via mail for wholesale profit [39], [51] and limited degree of planning [61], some value after prior drug use suggested [64]-unsuccessful [66] challenge to the pleas entered [50] Nell v The Very late plea of 169g methylamphetamine Prior drug use and 3 Caught in the process of Principal 8 years 6 years Queen [2014] guilty – approx.5% [7] prior convictions for crystallising methylamphetamine [9], [19] WASCA 193 [10] times the minimum quantity drug offences [11] from its liquid form after import [8], knowledge and means to extract the drug, likely mid-level dealer [9], commercial motive [9], prior drug use [11], totality with trafficking charge [19] Adegoke v R Guilty at earliest 86.2g cocaine [3] Yes, dishonesty Degree of planning [8]-[14], Akin to 7 years 6 years (2013) 234 A opportunity– 43.1 times the minimum related [15] financial motive [22], prior drug principal in Crim R 280 Unspecified quantity use [18] role and discount [2] purpose [21], drugs to be supplied for reward. [22] Lam v The Plea of not guilty [1] 233.7g heroin [5] No criminal history [13] Financial motive [15] Principal 7 years 6 years Queen [2014] 116.85 times the minimum [12] WASCA 114 quantity (Van Tong LAM) Name Plea Drug quantity Priors Similarities to Harrington Role Head NPP Nguyen v The Plead guilty [4] & 474.3g heroin [31] A “lack of prior Prospects of rehabilitation not Principal 7 years, 5 years Queen (2012) [31] 183.75 times the minimum convictions” submitted “particularly bright” [31], prior [43] amongst 212 FLR 58; quantity by applicant [29] involvement with drug other (2012) 226 A substantive [43], moral offences Crim R 405; culpability more significant than [30-31] [2012] VSCA that of co-offenders [43], no [47-48] 297 agreement to assist unlike co-offenders who agreed to assist in his prosecution [45] Alavy v Earliest opportunity 397.8g meth-amphetamine No prior convictions [9] Financial motive [26], good Principal 7 years 5 years Director of – 22.2% [1], [19] [3] rehabilitation prospects [9] [3]-[6], [19] Public 198.9 times the minimum Prosecutions quantity [2014] VSCA 25 Zandi v The Plea of guilty after 2 kg cocaine [3] No criminal history for Prior drug use [9], remorseful Likely 7 years 4 years Queen [2015] committal [5]-[6] times the minimum quantity drug offences [7], and contrite [11] plain principal VSCA 24 Unspecified conviction for commercial motive [17], despite [13] discount [11] intentionally causing purchase of fake cocaine there injury [7], by and large remained high moral culpability of good character [11], [18], provided $65,000 to fund [13] import [13], good prospects of rehabilitation [14] Cappis v R Earliest reasonable 679.7g meth-amphetamine No criminal history [22] Prior drug use [29]-[31], degree Not a mere 6 years, 9 4 years [2015] opportunity– 15% [5] of planning [45] courier, a months NSWCCA 138 [49] times the minimum quantity significant role, an active participant [45] Lam v The Plea of not guilty [1] 233.7g heroin [5] No criminal history [14] Financial motive [15] Principal 6 years, 6 5 years Queen [2014] 116.85 times the minimum [12] months WASCA 114 quantity (Thi Nhanh LE) Name Plea Drug quantity Priors Similarities to Harrington Role Head NPP Haidari v Early guilty plea 505.4g methamphetamine No relevant criminal Financial motive [9] & [24], some Principal 6 years N/A as Director of [31], -27% [1] at [13] of the sentence history [28] degree of remorse [31] [12], [30] sentence Public judgment concurrent Prosecutions 252.7 times the minimum on [2014] VSCA quantity unrelated 91 offending Alpha v R Early plea of guilty 684g cocaine [11] Yes, including Financial motive [22], prior drug Effective 6 years 3 years 8 [2015] and assistance to previous drug supply use [23], remorseful [25], finding of (starting months NSWCCA 225 authorities, 45% resulting in a sentence committed to rehabilitation [25] principal point of discount [28] of 2 years 6 months [54] 12 years) periodic detention[20]

R v Sutton Plea of guilty “very 127.2g cocaine (p2) Extensive criminal Partly for financial gain but partly Principal (p 5 years 2 years, 6 [2013] QCA timely” (p 2), 63.6 times the minimum history (p2) for personal use (p 2), 2) months 151 unspecified quantity discount. Matthews v Plea at earliest 135.4g MDMA No criminal history, Good prospects of rehabilitation Principal 4 years 2 years, 6 The Queen opportunity [44] 271 times the minimum prior good character [52], profit motive [50], past [35]-[36] & months [2014] VSCA Approximately 33% quantity [52] regular drug use [47] Genuine [73] 291 discount [32] 6.4g amphetamine remorse [51]. 3 times the minimum quantity Distinguishing features in 3.9g Cocaine relation to sentence imposed: 2 times the minimum Sentence mitigated due to quantity dysthymia and possibility that a [36] major depressive illness might in future develop [57] & [63]. Genuine remorse [51]. Sentence would be “especially burdensome” due to the impact it would have on his two young daughters and wife [7] Name Plea Drug quantity Priors Similarities to Harrington Role Head NPP Ludwig v The Plea of guilty at Import (charge 2) Not specified, but Good prospects of rehabilitation Principal Charge 2- 2 years 6 Queen [2015] committal [23]-[26] -58.7g methamphetamine, offending continued [33], purpose of imports was [4]-[5] of 15 months VSCA 35 Approximate 28.9 times the minimum whilst on bail [35] personal enrichment [35]. sentencing months discount of 35% [2] quantity remarks. -16.5g amphetamine Distinguishing features in Charge 5- 8.25 times the minimum relation to sentence imposed: 6 months quantity Admissions (original sentence -81.9g MDMA. [15]), youth 23 years at the time Total 163.8 times the minimum of the offences [34]-[38], effective quantity significant discount on plea [2], sentence prior convictions for offending = Import (charge 5) relating to weapons, persistent 3 years -4.6g MDMA depressive disorder dysthymia. 11 9.2 times the minimum months quantity Breakdow Total of 7 charges n of Source: internal CDPP sentences documents found at [2]. Respondents list of cases Case Plea Charges/Drug quantity Prior Subjective factors Role Head NPP convictions 1. Bequiri v Early pleas of Charge 1 – s307.6, possess No prior Limited admissions to police, The judge found that 5 years 6 3 years 4 The Queen guilty [63] marketable quantity of an convictions absence of prior convictions, good the appellant’s role in months months [2013] unlawfully imported controlled [62]. work history, family support (married the offending was VSCA 39 drug, 1.692 kg pure cocaine with 2 young children), and family significant and that Charge 2 – s305.1, hardship. Existence of psychological he expected to profit manufacture of a marketable condition (anxiety, depression and more considerably quantity of a controlled drug. panic attacks) causally connected to than the sums Charge 2 set aside as offending, leading to reduced submitted by prosecution unable to prove culpability and a concomitant counsel.[61] manufacture [36]. moderation of general deterrence. Found that imprisonment would be more onerous due to psychological condition. [63] Agoraphobia significantly worsened following incarceration, psychological condition worsened since being imprisoned [64] 2. Matthews v Plea at earliest 135.4g MDMA 271 times the No criminal Good prospects of rehabilitation [52], Principal [35]-[36] & 4 years 2 years, The Queen opportunity minimum quantity, 6.4 history, prior profit motive [50], past regular drug [73] 67 months [2014] [44] amphetamine 3 times good use [47] genuine remorse [51]. VSCA 291 Approximately minimum quantity, 3.9 grams character Sentence mitigated due to dysthymia 33% discount cocaine 2 times minimum [52]. and possibility that a major [32] quantity [36] depressive illness might in future develop [57] and [63]. Genuine remorse [51]. Sentence would be “especially burdensome” due to the impact it would have on his two young daughters and wife. 3. Ludwig v Plea of guilty Import (charge 2) Principal [4]-[5] of Charge 2 2 years 6 The Queen at committal -58.7g methamphetamine, Good prospects of rehabilitation sentencing remarks. – 15 months [2015] [23]-[26] 28.9 times the minimum [33], purpose of imports was months. VSCA 35 Approximate quantity personal enrichment [35]. Charge 5 discount of -16.5g amphetamine Admissions (original sentence – 6 35% 8.25 times the minimum [15]), youth 23 years at the time months quantity of the offences [34]-[38], -81.9g MDMA. significant discount on plea [2], Total 163.8 times the minimum prior convictions for similar effective quantity offending relating to weapons, sentence Import (charge 5) persistent depressive disorder = 3 years - 4.6g MDMA dysthymia. 11 9.2 times the minimum months. quantity Total of 7 charges Breakdow Source: internal CDPP n of documents sentences found at [2] 4. entered plea 2 Count 1. Possess quantity of No relevant Culpability in respect of charge 1 was “Trusted minder” of 4 years 2 years 6 Atankovic v weeks before pure weight cocaine 1,194.3 prior high. While not involved in trafficking, the cocaine. months R [2015] trial [125] grams [136] convictions He understood it was to be Knowledge it would VSCA 136 Count 2. Trafficking in a [139] commercially trafficked by others. He be trafficked by controlled facilitated its safe storage for that somebody (not drug [cocaine] purpose. [135] Had breast cancer, necessarily the successfully treated prior to sentence appellant) in the resulting in mental illness [127] – future for commercial [130] and more particularly [154]. purpose. [135] Genuine remorse and good prospects of rehabilitation [154].