R v Holland

Judgment 1McCLELLAN CJ AT CL : I agree with the orders proposed by Schmidt J. 2Although the sentence imposed by the sentencing judge was at the lower limit of any appropriate sentence I am not persuaded that it was manifestly inadequate. 3Much of the argument in the appeal focused upon the "Categories of offence" which I developed in the course of my reasons in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 . Some of my remarks may have been misunderstood. When preparing my reasons in De La Rosa it became increasingly apparent that there were many significant decisions with respect to the sentence for individual offenders which had never been gathered together and analysed. The number is such that to merely list them without further classification was likely to be of modest assistance to practitioners and judges required to sentence future offenders. As I said in my reasons in De La Rosa , so as to assist others to readily access the information I grouped the decisions by reference to common characteristics, so far as they could be identified. However it would be wrong to sentence an offender by seeking out the "category" into which they fit and imposing a sentence which is thought to be appropriate for an offence which happens to have the characteristics found in that category. 4There are three previous decisions of particular significance to the present matter which were referred to in De La Rosa . In R v Labanon; ex parte Cth DPP [2006] QCA 529 the offender was convicted of recklessly importing 7.314kg of pure methylamphetamine. He was originally sentenced to 6 years imprisonment with a non-parole period of 3 years. The purity level was identified as 74.6%. The offender was a serving petty officer on the US warship USS Boxer. The vessel was not subject to the usual customs screening process as the vessel had arrived in Australia for "liberty" purposes. 5Labanon was seen to leave the vessel with his "liberty buddy", petty officer Jonathon Brust. Before leaving the vessel Labanon was observed packing a blue carry bag with his laundry and a number of packages. The offender and Brust left the vessel and travelled to the Seagulls Resort on The Esplanade at Townsville. On that day two co-offenders, Maio and Mohammadi, arrived at Townsville by plane and booked in at the Raintree Motel. Maio was the offender's "boss" on the Boxer. Labanon later delivered the carry bag to Maio. Labanon was paid $US10,000 for his efforts. 6Labanon had no criminal record. He had a good job history and a commendable service record with the US Navy. His conviction resulted in his being dishonourably discharged losing his retirement superannuation, medical and veteran's benefits. Following an appeal he was re-sentenced to 8 years with a non-parole period of 4 years. McMurdo P commented that Labanon's participation in the offence was "essential to its commission" (at [18]). 7In Diefenbach v R [1999] WASCA 4 ; (1999) 108 A Crim R 19 Diefenbach and three other co-offenders arrived at Perth International Airport on 30 March 1998 from Amsterdam. Each offender was stopped and searched by customs and were found to be wearing a female girdle which housed secreted socks containing a quantity of ecstasy tablets. Diefenbach was carrying 6967 tablets, weighing 2.083kg and containing 562.4 grams of pure ecstasy. She was originally sentenced to 12 years imprisonment with a non-parole period of 6 years for the importation of a commercial quantity of ecstasy. 8In passing sentence on all four offenders, the trial judge imposed a heavier sentence on Diefenbach due to her more active role in the operation. Although she was found to be a courier, the trial judge made it clear that she recruited the other co-offenders, obtained special clothing free of metal for the purpose of importing the drugs and not drawing the attention of metal detectors in the airport, acquired airline tickets and visas, paid the other co- offenders, collected the drugs for importation and generally organised the other co-offenders. The sentencing judge determined that Diefenbach was more than a mere courier, but rather "a courier at a higher level than the other three couriers" (Malcolm CJ at [20]). For her services Diefenbach received US$1000, accommodation in Australia for two weeks and a return business class airfare. 9Diefenbach pleaded guilty after the Crown brief had been prepared. She cooperated with the authorities and freely imparted information, although the information was of little assistance, as it was already known by the authorities. Following an appeal she was re-sentenced to 10 years imprisonment with a non-parole period of 5 years. Apart from her plea of guilty and assistance to authorities, there was no reference to the appellant's personal circumstances in the judgment. 10In NP v R [2008] NSWCCA 205 the offender pleaded guilty to conspiring to import MDMA (ecstasy) being not less than a commercial quantity. The maximum sentence for this offence was life imprisonment. The offender was one of six persons involved in the importation of around 170.927kg of ecstasy into Australia, of which 136.913kg was pure. He was originally sentenced to a non-parole period of 7 years with a balance term of 4 years. The origin of the ecstasy was Malaysia and was secreted in freezer units. The offender was convicted on the basis of his role as a middleman or intermediary who facilitated contact between the other five members of the conspiracy. 11The offender received a discount of 50% for his plea of guilty and assistance, both past and present. He had given evidence for the prosecution in committal proceedings against a co-offender and indicated his willingness to give evidence against other co-offenders in future proceedings. 12The offender had a good employment history and his company was a legitimate business. He was found to be suffering from mood disturbance requiring ongoing treatment. His criminal conduct was "atypical" and he had good prospects of rehabilitation. 13In the present case, the respondent was obviously not at the higher end of the enterprise although he was essential to the Australian operation. He was responsible for receiving the forklift and organising its delivery to a recently leased warehouse, verifying that the drugs were inside the forklift batteries, communicating to a more senior figure known as "Sunshine" that the forklift had arrived and was ready to be received, and sending the warehouse key to an undisclosed address in Canada. The respondent was arrested when trying to fly out of Sydney airport. He apparently received $30,000 in Canadian currency for his involvement. 14Consideration of these decisions does not indicate that error has occurred in this case requiring the intervention of the Court. The respondent's role in the criminal enterprise was similar to Diefenbach, NP and Labanon. When assessing the quantity of the drugs imported, the respondent and Labanon are comparable. Like Labanon and NP, the respondent had no criminal history. Both the offenders in Diefenbach and Labanon played an essential role in their respective criminal enterprises. The respondent was also essential to the overall operation, but like Labanon and NP, at the lower end of the hierarchy. NP's plea of guilty and considerable assistance are similar to the respondent, although the respondent did not provide future assistance. With the exception of NP, all the offenders were rewarded financially for their efforts. In NP's case however, he was given to understand that he could expect financial investment in his business by some of the co-offenders. NP was considered to have good prospects of rehabilitation while the respondent was considered to have a low risk of recidivism. 15BUDDIN J: I agree with Schmidt J. 16SCHMIDT J: On 30 July 2010, Flannery DCJ sentenced the respondent in relation to a charge brought under sections 307.1 and 11.2 of the Criminal Code 1995 (Cth) , to which he had previously entered a plea of guilty. The offence concerned the importation of a commercial quantity of a border controlled drug, cocaine, into Australia by aiding, abetting, counselling or procuring the commission of that offence by a person or persons unknown. The maximum penalty for the offence was life imprisonment and/or a fine of $825,000 (7,500 penalty units). 17The respondent received the benefit of a 45% reduction in his sentence for assistance and the plea of guilty. The result was that from a starting point of 12 years , a term of imprisonment of 6 years and 8 months commencing from 9 January 2009, with a non-parole period of 4 years was imposed . The non-parole period represented 60% of the overall term. 18The Crown appealed the sentence on two grounds: "1. The discount given for assistance was too high; and 2. The sentence was manifestly inadequate having regard to the seriousness of the offence and the role of the offender and comparable sentences."

The Facts 19There was a statement of facts tendered and a psychologist's report, supporting character material and other evidence. The respondent also gave evidence. 20The respondent is a Canadian national, resident in the Philippines. On 9 August 2008, he arrived in Australia on board a flight from Manilla. On 14 August, he met with a real estate agent at a warehouse at Moorebank and agreed to lease a unit. He was told that he would require a physical address in Australia in order to enter into the lease and that he should seek the services of an accountant. 21Between 14 August and 24 September 2008, the respondent engaged accountants to assist in the establishment of an apparently legitimate business. He registered a business name "JGH Equipment" and entered into a one year lease for the warehouse. On 19 August, he obtained possession of keys to the warehouse. Electricity was connected and rent was paid by cheques drawn from his bank account. On 24 September the respondent departed Australia for Manila. 22Between 20 August and 24 December 2008, $26,462 was transferred from JG Holland at a Canadian postal address to an HSBC bank account in the name of Jim Holland, with the same address as the business address for JGH Equipment. 23Between 29 October 2008 and 27 November 2008, the respondent maintained contact with his Canadian associates. During this time a person from Mexico emailed a customs brokerage firm in Australia in order to facilitate the importation of a new electric forklift inside a twenty foot shipping container and to assist with customs clearance and transportation of the forklift. The container was consigned to JGH Equipment. 24In December 2008 the respondent communicated with the customs brokerage firm about the landing and delivery of the container. On 22 December the vessel carrying the container arrived at Port Botany from Mexico. An examination of the forklift revealed that hidden inside its batteries were fourteen packages of white powder weighing in total 9984.1 grams. On examination the packets were found to contain cocaine. The cocaine was substituted with an inert material. 25On 23 December 2008, the respondent emailed the customs brokerage firm and advised that he would be arriving in Australia on 28 December. The respondent made arrangements for accommodation and a rental car prior to returning to Sydney. Upon his return he maintained contact with the customs brokerage firm about the clearance and delivery of the container. On 6 January 2009 the respondent was advised of its clearance. 26The respondent obtained various tools and engaged the services of a tow-truck company, which transported the forklift to the warehouse on 6 January 2009. He paid for this service and took photographs of the forklift. On 7 January, he attended the warehouse and was seen to lift the seat of the forklift several times and to visually inspect the batteries before departing. On 8 January, he spoke to "Sunshine" on the telephone, advising that the forklift had been delivered to the warehouse, referring to the batteries and advising that he was mailing a key to the warehouse, having 'his end done'. On 9 January, he posted a key to an address in Canada. He was arrested later that day, before his departure from Sydney. 27The respondent had been unemployed for the past two years and was in financial difficulty. He had been given a chance to make quick money, which he was almost guaranteed to be safe and 'nothing to worry about'. He was told that a new forklift would be shipped from China and that there would be something in the batteries. He was offered money to find a storage unit. He knew it would be illegal, understanding the substance would be liquid and undetectable and that all he had to do was get a storage unit, put it there and lock it. He was paid $30,000 Canadian, half to cover travel and the other half to go towards his $70,000 credit card debt. The money was put into his account. 28On analysis the total weight of pure cocaine was found to be 7244.4 grams, based on purity levels of between 69.3% and 74.2%. The street value of the drugs was found to be between $5,174,500 and $6,250,050, with a wholesale value of between $1,675,000 and $2 million odd. 29The respondent gave evidence as to his remorse for his offence and as to the conditions of his custody. His personal circumstances were that he was a Canadian citizen aged 57 years, the eldest of two brothers who had never been close. He knew no-one in Australia. He had left school at 17 and after 12 months had entered the logging industry where he worked for 25 years, operating his own timber assessing business for about 15 years, employing up to 14 employees. He was twice married and divorced, the second marriage lasting 25 years. He had one child from the first marriage and three from the second. He had good relationships with his children and maintained regular contact with them. He had been in a relationship with a Filipino woman for about 2 years. She had four children and he remained in contact with her. His circumstances had caused her and her children financial difficulties. 30He explained that he had committed the offence because of substantial debts which he had no way of repaying, having been out of work for some time. He had no prior history of offending and on psychiatric examination was found to have a low risk of recidivism.

The Sentencing remarks 31Flannery DCJ referred to the requirements of s 16A of the Crimes Act 1914 (Cth) and the need to impose a sentence of a severity appropriate to the circumstances of this offence. Her Honour outlined those circumstances by reference to the evidence, the quantity and value of the drug, the dimension of the importation, the respondent's knowledge and role in the importation, the steps taken to effect the importation, the duration of his involvement and what he hoped to gain from his participation. 32Her Honour noted the Crown's characterisation of the respondent's role as being that of a middleman, with extensive involvement in assisting the importation of the drugs and the respondent's characterisation that he was akin to a courier, at the lowest end of the hierarchy. She noted the observations in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 that there must be a focus on the respondent's culpability by reference to the acts he had performed. On that basis she concluded: "Conducting that analysis I am satisfied that the offender's acts were integral to the operation and involved a level of participation which was more sophisticated than the mere transporting of drugs, but I do accept that the offender was acting on instructions, was exposed to high risk, which people high up in an organisation usually avoid and was to receive comparatively little for his efforts. These matters do lead me to conclude that the offender's role was at the lower end of the hierarchy involved in this importation." 33Her Honour accepted the respondent's evidence that he had initially thought the import was a liquid, which would be undetectable, from which he concluded that it may be ephedrine and that when he agreed to be involved, he did not know or expect that it would be cocaine. He believed that his nephew would not go against his wishes and involve him in the importation of cocaine. There came a time, however, when he did know that cocaine was being imported from Mexico and he felt that he had to proceed, having already accepted money. Her Honour concluded that this showed that the respondent was prepared to engage in what he knew was serious criminal behaviour. 34Her Honour was also satisfied that the respondent was aware that a considerable amount of drug was being imported, given the organisation and expense involved in importing the forklift and its size. She was not satisfied beyond reasonable doubt that he knew that 7.244 grams of pure cocaine was being imported. It followed that by his plea the respondent was not taken to have accepted that he had aided and abetted the importation of the commercial quantity involved. Her Honour thus sentenced on the basis that there was a substantial amount of drug being imported and that the respondent was to receive $30,000 for his role, which included his expenses. 35Her Honour accepted that the respondent was contrite. She came to the view that his plea should result in a discount, the respondent seeking 25% and the Crown a lesser amount, because the plea was not entered at the first opportunity. No separate discount for the plea was specified. She also found there to have been immediate co-operation on arrest, with the result that another 9 kg of cocaine was seized in another investigation instigated. This led to the arrest of another person who had also entered a guilty plea. 36Her Honour noted that the authorities considered the respondent's information to have been truthful, accurate, timely, beneficial and having greatly enhanced their intelligence holdings. As the result of his assistance he was immediately placed into protective custody, where he remained. The adverse consequences of that form of custody were noted, as were other adverse consequences for him and his family. In the result a combined discount of 45% was given for plea and assistance, her Honour concluding that: " ... I am satisfied that the offender's assistance was significant, useful, complete and reliable. I am also satisfied that it was timely and extensive. Further, I accept the offender's evidence that his custody to date has been onerous and I find on the balance of probabilities that it will continue to be so. I also accept that there is a danger to the offender resulting from his assistance. Clearly these findings mean that the offender is entitled to a substantial reduction in the sentence I would otherwise impose." 37Her Honour was satisfied that this discount would not take the sentence below that proportionate to the criminality involved in the offence. General deterrence was regarded to be of particular importance. Account was also taken of the various subjective factors about which the respondent had given evidence. Good prospects of rehabilitation were found. Reference was made to the probable effect of the sentence on the respondent's family in Canada and his dependents in the Philippines. Reference was also made to the authorities and statistics relied on by the parties in their submissions.

Ground 2 - manifest inadequacy 38It is convenient to deal with both grounds of appeal together, the Crown conceding at the hearing that its complaint as to the 45% discount on sentence would not be separately pressed. It was accepted that its view that the discount should not have been more than 40%, of itself could not warrant interference with the sentence imposed. Rather, it was explained, the complaint pressed was that the result of the 45% discount was that the sentence imposed was manifestly inadequate, given her Honour's starting point of 12 years. 39The respondent's plea was entered just over a year after arrest, after negotiation over the form of the charge. To that point and indeed from the time of arrest, the respondent had provided significant assistance to the authorities, which they acknowledged. The respondent had argued for a discount for plea of 25% and for a combined discount of 50%. The Crown argued that a discount of 20% was warranted for the plea and that a combined discount of more than 40% was not warranted. 40In written submissions the Crown argued that the discount given was too high, because the assistance provided related entirely to past assistance. The respondent argued that this was not a case where any future assistance sought had been refused; that the considerable assistance which had been given was immediate and had not only led to the recovery of over 9kg of cocaine, but also another arrest, which resulted in the entry of a plea to the charge there laid. 41Her Honour did not specify what discount was given for the plea. The total discount reflected both the plea and the conclusions reached as to the nature and result of the respondent's significant co-operation, a view undoubtedly open on the respondent's unchallenged evidence. In R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, Howie J observed at [5]: "It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts! for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact." 42In SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249, Howie J expressed the view that in general, a combined discount should not exceed 50% (at [3]). In Sukkar a reduction in discount from 45% to 35% resulted because of the Court's view that the nature of the assistance there rendered could not properly be characterised as assistance of a high order (see at [55] per Latham J). This is not such a case. In R v LP [2010] NSWCCA 154 a 45% combined discount was reduced to 40% because of an erroneous conclusion that the respondent would be subject to harsher conditions on account of protective status (see at [21] per Buddin J). Again, there was no such error here. There was unchallenged evidence of real disadvantage in this case, which her Honour was entitled to accept. 43It seems to me that there was no error in the conclusion reached by her Honour as to the amount of the combined discount, although its impact on the sentence finally resulting from its application, must also be considered (see the discussion in SZ at [4] per Howie J). The question which must now be determined is whether the sentence finally imposed on the respondent was too low to properly reflect the gravity of this offence. 44The case advanced in written submissions for the Crown was that the sentence imposed failed: (a) to adequately reflect the criminality of the offending, the role of the respondent and the nature of the offending; and (b) to properly take into account the maximum penalty, resulting in 'unjustified disparity' between the sentence and sentences imposed in comparable matters. 45At the hearing it was confirmed that none of her Honour's conclusions on the facts were challenged and that it was not the Crown's case that her Honour had erred in the application of any binding principle. The ratio of the non-parole period was also not challenged Rather, it was contended that her Honour's starting point of 12 years led to the result that the sentence imposed was manifestly inadequate, given the impact of the discount. It was 'latent error, not any error of principle or fact finding' which was pressed. 46It was argued that this was revealed by her Honour's conclusion that the respondent's role was integral to the importation and more sophisticated than the mere transporting of drugs, even though still at the lower end of the hierarchy. The Crown's case was sought to be made good by reference to a number of what were submitted to be comparable cases: Regina v Danson [2005] NSWCCA 343, where an appeal against a sentence of 12 years, with a non-parole period of 7 years 3 months for a financier of the importation of 3.7131 kg was dismissed. The amount of discount of the plea was not apparent. Regina v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 525, where a sentence of 14 years with a non-parole period of 8-1/2 years for an importation of 3,025.5 grams of cocaine with a pure weight of 2,136.8 grams was reduced to 10 years and 6 months with a non-parole period of 7 years R v Anderson [2004] NSWCCA 317 where an appeal against a sentence of 14 years with a non-parole period of 8 years for cocaine of 9.868 grams gross weight, of which 7549.1 grams were pure was dismissed. 47These comparisons were challenged by the respondent, it being argued to be relevant that in Anderson there was no discount for plea or assistance and that the differences in starting points of 12 and 14 years, reflected unchallenged findings in Anderson relation to the applicant's role in the hierarchy, namely that of a financier; the nature of his record and the extent of his contrition. In Danson where other State offences were taken into account, there was no assistance and disputes as to utility of the plea and contrition. In Otto the Court could make no positive finding on appeal other than that the applicant who imported the drug was a principal. 48The Crown accepted in oral submissions that none of these authorities shed much light on the case which it sought to advance on appeal in this case. Before her Honour other cases were referred to, but they were not pressed on appeal. 49Rather, the Crown relied on De La Rosa [2010] NSWCCA 194; (2010) FLR 28. It argued that the inadequacy of the sentence here imposed was shown by the fact that this offence fell into category 2 or 3 of the cases there considered by McClellan CJ in CL. The respondent's role was integral, he had a degree of independence of action in what he had organised and he was the operation's mind in Australia. Even though he followed instructions, he had discretion and independence and a sophistication to go about his task in order to effect the importation of a large degree of narcotics. It followed that the starting point for this offence should have been a sentence of 15 to 18 years, in accordance with categories 2 or 3 in De La Rosa . 50Understandably this was not an argument advanced before the trial judge, given that the judgment in De La Rosa was only delivered after her Honour sentenced the respondent. For the respondent the characterisation of his role and the utility of the comparison sought to be made was challenged. It was also argued that even if valid, this offence fell into category 3, not category 2 of the categories McClellan CJ in CL had identified. 51In my view the reliance placed on De La Rosa did not reveal the inadequacy of the sentence imposed. De La Rosa was not a guideline decision. Rather, McClellan CJ in CL there undertook an analysis of numerous decided cases, in order to gather together information as to the outcome of past sentencing decisions, in relation to particular drug importation offences, by reference to features which they had in common. His Honour explained the purpose of that exercise: "200 After analysis, I have placed the sentences into relevant groupings. I have taken this approach for ease of understanding by others. Of course the appropriate sentence for a particular offence will depend on all the circumstances of the offence and the offender. The groupings are merely an attempt to facilitate an understanding of the available information by reference to the common features of offenders and offences and the sentence imposed. There will inevitably be anomalies and others exercising their own judgement may have placed one or other of the decisions into a different group. 201 Any cases considered before the repeal of s 16G (where that section had application) may only be considered with an appropriate upward adjustment: R v Studenikin [2004] NSWCCA 164; R v Kevenaar & Ors [2004] NSWCCA 210. For this reason I have included pre-repeal cases only where an undiscounted starting point is mentioned in or capable of being deduced from the remarks on sentence or judgment. 202 Recognising the concerns expressed by Gaudron, Gummow and Hayne JJ in Wong v R , I have endeavoured to take a principled rather than "results-driven" approach to the analysis. Although the Schedule orders the cases by reference to the length of the sentence, this approach was adopted as a sensible starting point to understanding the available information. The identified cases were then analysed by reference to their particular features. In the process of analysing the relevant decisions, I have recorded all relevant objective and subjective features of the offence, where they appear in the judgment or remarks on sentence. These include the offence with which the offender was charged; the applicable maximum penalty; the plea; the identity, pure weight and value of the drug; the role played by the offender; any reward expected or received; and the many subjective features including the offender's age, nationality, personal and financial circumstances, mental and physical health, moral culpability, criminal history, character and antecedents, cooperation with or assistance to the authorities, remorse, prospects of rehabilitation and anticipated isolation or hardship. 203 I have not written a guideline judgment. It is plain that only those decisions that are relevantly comparable to the facts of a particular case are of significance when sentencing an individual offender... " 52De La Rosa unquestionably provides a very useful tool for a sentencing judge dealing with a case of the kind here being considered, as a part of the instinctive synthesis undertaken when a sentence is determined, as discussed in Wong (see at [75]). Such a consideration will assist the trial judge in ensuring that a manifestly inadequate or excessive sentence does not result from the sentencing exercise. That the sentence imposed in a particular case falls outside the range identified as applying to one of the categories considered by McClellan CJ in CL, cannot however, of itself, be a basis upon which error in the exercise of the sentencing discretion may be identified. A conclusion that a particular sentence is manifestly inadequate or excessive must rest on a more particular identification of error than that. That must be all the more so in the case of a sentence imposed before De La Rosa was decided. 53On appeal, the Crown did not identify any particular cases considered in De La Rosa , which had facts which were said to be relevantly comparable to this case. Those which were referred to were accepted as not being of particular assistance. Further, it was accepted, as was argued for the respondent, that the features present in this case could be considered to put it into the third group of cases discussed by McClellan CJ in CL at [213], rather than the second. His Honour described the third group as: "213 In this group the head sentences range from 8 years to 15 years, and non-parole periods start at 4 years and end at 11 years. A number of the sentences in this group involved pleas of guilty. The range of sentences represents a noticeable "step down" from the sentences in the previous group. A number of factors appear to explain this. First, the pure quantity of drugs imported is generally below 7 kg. (Two obvious exceptions are Chalmers and Np v R : the former was a successful Crown appeal and the latter involved a very favourable subjective case for the offender.) Secondly, the offenders in this third group occupy mid-range roles between that of principal and courier. (The exception is Speer , which may have been placed within the fourth group had the offender's plea been entered at an early stage.) Finally, in this group, there are instances of assistance, sometimes significant, provided to the authorities (e.g. Vasquez-Felipe; Np; Speer; W ). These efforts attract discounts of up to 30%." 54In oral submissions the Crown also accepted that 'Category 3 delineates amounts below 7kg and this importation involved something over 7 kilos and perhaps nothing should turn on that in these circumstances'. That submission appears to overlook the amount of drugs dealt with in the category 4 cases. 55The Crown's concessions were, however, understandable, given that the second group of cases identified by McClellan CJ in De La Rosa contained cases very similar to the first group there dealt with, but with sentences after plea ranging from 18 to 24.5 years and non-parole periods of between 10 and 16 years, rather than the 25 years to life imprisonment and non-parole periods ranging from 8.5 to 30 years imposed on the first group (see at [209] and [211]). The first and second groups of cases both involved a high or very high commercial quantity of drugs, frequently numbering in the tens if not hundreds of kilograms; street value of the drugs frequently in the hundreds of millions of dollars; offenders tending to receive substantial monetary rewards for their participation in the importation, numbering in the tens if not hundreds of thousands of dollars; and offenders being either the "mastermind" of the operation or holding a very senior executive or organisational post with a very high level of responsibility. The differences in sentences reflected that in the second group there had been a plea. On any view, while the respondent was more than an operative at the lowest level of this organisation, his involvement was not of a kind dealt with in the second group of cases. 56The circumstances of this case were clearly akin to those described for the third group. It is also necessary, however, to refer to the fourth group of cases identified by McClellan CJ in CL. That group was described as: "215 In this group the head sentences range from 6.25 years through to 8 years, while the non-parole periods range from around 3 to 4.5 years. The cases are roughly split between those in which the offenders pleaded guilty and those in which they pleaded not guilty. Quantities of drugs range from 1 kg to 30 kg and offenders occupy roles variously described as instigators, overseers, collectors and couriers. Many offenders in this group had good antecedents and no prior convictions." 57This offence also shared some characteristics with the fourth group, namely the sentence, the quantity of the drugs here involved, of just over 7kg; the plea; arguably the respondent's role (especially if it is considered to be less than a 'mid-range' role), his antecedents and his record. 58The result of the starting point of the sentencing exercise in this case, 12 years, was a sentence of 6 years and 8 months with a non-parole period of 4 years, after a combined discount of 45% for plea and assistance. It follows that the sentence imposed fell outside the range identified in De La Rosa as having been imposed in the third group of cases in respect of the head sentence, but at the bottom of the range of non-parole periods for that group. The sentence clearly fell within the range of those imposed in the fourth group of cases. 59That being so, in my view, it is difficult to see from this analysis that the result of her Honour's conclusions was a sentence outside the available range for this particular offence. It is well settled that an appellate court should not lightly interfere with a sentencing judge's assessment of where a particular offence lies in the range of objective seriousness (see the authorities referred to in Boney v The Queen [2008] NSWCCA 165; (2008) 187 A Crim R 167 at [105], for example). There is never one correct sentence for a particular offence (see Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [27]). Even if an appeal court would have imposed a somewhat higher sentence, of itself that does not show that the sentence which was imposed was inadequate (see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672 [15]). It is also relevant that in this case her Honour did not have the benefit of the opportunity to consider what was decided in De La Rosa , now relied on by the Crown. 60The role played by an offender in the importation of narcotics has been regarded of being of great importance when assessing the objective criminality of an offence (see De La Rosa ; R v Laurentiu (1992) 63 A Crim R 402; R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355). As discussed in R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244 at [150], however, to allow a Crown appeal and increase a sentence involves a very serious step, not lightly taken. There is always a particular difficulty in that result being achieved where an argument is advanced on appeal, which was not put before the sentencing judge. 61The difficulty with the reliance sought to be placed on the De La Rosa categories was also underscored by what was recently discussed in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465: "48 Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results. 49 The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act . When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this Court held [(2001) 207 CLR 584 at 608 [65], 612-613 [78], 616 [87] per Gaudron, Gummow and Hayne JJ, 632 [131] per Kirby J] in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act . Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from the several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters "the court must take into account" in fixing a sentence, if those matters are relevant and known to the Court. 50 The first and paramount means of achieving consistency in federal sentencing is to apply the relevant statutory provisions. And that requires the application of those provisions without being distracted or influenced by other and different provisions that would be engaged if the offender concerned were not a federal offender." 62Consistency in the application of legal principles is aimed at achieving an appropriate sentence for the offence. Another important aim of that exercise is the result discussed by Gleeson CJ in Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [6]: "... All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency." 63An argument that the result of the application of binding principle to the circumstances of a particular case is inconsistency with sentences imposed in like cases, so as to reveal manifest inadequacy of the sentence, may certainly be advanced. As to such arguments it was observed in Hili that: "59 As was said in Dinsdale v The Queen [(2000) 202 CLR 321 at 325 [6]; [2000] HCA 54.], "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out [(2001) 207 CLR 584 at 605 [(2001) 207 CLR 584 at 605] in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say [(2001) 207 CLR 584 at 605] in Wong , "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said [(2010) 76 ATR 249 at [42].] that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error". 60 The Court of Criminal Appeal also said [(2010) 76 ATR 249 at [41].] that "manifest error is fundamentally intuitive". That is not right. No doubt, as the Court went on to say [(2010) 76 ATR 249 at [41].], manifest error "arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it". But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal. 61 The applicants' submissions criticising the sufficiency of the reasons given by the Court of Criminal Appeal pointed out that the Court of Criminal Appeal identified no specific error in the sentencing judge's findings of fact or reasons. That is right, but because the only ground advanced by the Director was the ground of manifest inadequacy, it had to be assumed that the Director alleged no specific error. That the Court of Criminal Appeal identified no specific error is, therefore, unsurprising. The absence of identification of such an error does not bespeak error on the part of the Court of Criminal Appeal. The reasons given by the Court of Criminal Appeal for concluding that the sentences passed were manifestly inadequate sufficiently revealed the bases for that conclusion." 64Here the Crown did not submit that there had been any misapplication of principle, rather that the exercise of the sentencing discretion had resulted in a manifestly inadequate sentence, revealed by the comparisons made with the categories established in De La Rosa . Of itself, that cannot be a basis for upholding this appeal. 65In Hili , the conclusion reached as to the comparisons there drawn with identified comparable cases was: "[67] The sentences passed on the applicants at first instance were very much lower than those passed in either of those cases. Allowing, as one must, for the different circumstances of each of the cases under consideration, the difference in sentences passed on the applicants at first instance, and those that were passed on the other offenders, is so large that the Court of Criminal Appeal was right to conclude that "there must have been some misapplication of principle [by the sentencing judge], even though where and how is not apparent from the statement of reasons" ( Wong (2001) 207 CLR 584 at 605 [58])" 66In my view a conclusion of that kind is not available in this case, notwithstanding the impact of the 45% discount on her Honour's starting point of 12 years. 67Not only was it here not the Crown's case that her Honour fell into error, by the misapplication of any principle by which she was bound, her factual findings and her approach to the sentencing of this offender, so far as the amount of the drug involved in the importation was concerned, were also not challenged. It was only the result of the starting point of 12 years and the impact of the 45% discount, which were identified as revealing error. For reasons which I have already explained, I cannot see error in the conclusion reached as to the amount of the discount. Nor can I see that its impact on the 12 year starting point, was a manifestly inadequate sentence. 68The real difficulty, it seems to me, with the arguments advanced for the Crown was that they could not overcome two critical conclusions on which her Honour's view as to the objective gravity of this offence rested. The first was the nature of the role which the respondent played in this importation, having in mind what he did and the second, his knowledge of what was being imported. The factual findings on which those views rested were not challenged. 69Her Honour accepted that the respondent played an important role in this drug operation over a period of some months in Australia, even though he was under the direction of others. That his role could properly be described in the way for which the Crown contended, or even a 'mid-range' role of the kind with which the cases in category 3 of De La Rosa were concerned, is not apparent, if proper attention is given to what the respondent actually did. As discussed in Olbrich at [19], a concentration on the characterisation of an offender's role 'must not obscure the assessment of what the offender did'. 70The respondent came twice to Australia in order to take steps necessary to receive the forklift in which the drugs were being imported. The importation was arranged by others. The respondent was himself directed by others. The steps which he took during his two visits included registering a business name; engaging an accountant; entering a lease; having electricity connected to the warehouse; communicating with the customs agents engaged by others in the organisation about the arrival of the forklift; engaging a tow truck operator to take the forklift to the warehouse; and, then advising others of its arrival. The respondent used his own name in his various transactions. He was due to leave the country as soon as the forklift had been received in the warehouse. 71What he was paid also shed light on the importance of the role which the respondent played in this operation. The cocaine imported proved to be worth between $5,174,500 and $6,250,050, with wholesale value of between $1,675,00 and $2 million odd . For his role the respondent was paid $30,000, half of which was for his expenses. 72Clearly the respondent was an important part of the Australian end of this operation, but as her Honour found, it is also apparent that the steps which he took exposed him to the risk of apprehension, while others higher up in the operation remained concealed and protected. He was not highly rewarded for what he undertook. 73It follows, it seems to me, that her Honour's conclusions that what the respondent did was integral, but that he was low in the hierarchy of this operation, were open on the respondent's unchallenged evidence. No error was shown in this regard. 74It is also well settled that the nature, quantity, purity, source and value of the drugs imported are highly relevant to the assessment of the objective seriousness of a drug offence (see Wong at [64]). In assessing the objective gravity of this offence her Honour concluded that while he was misled by his nephew, the respondent later became aware that he was involved in a substantial importation of cocaine, that being evident from the importation of the drug in the body of a forklift truck. Nevertheless, her Honour also came to the view that the respondent had no knowledge of the actual amount of the drugs involved, or that it was more than the commercial quantity. 75These conclusions were not challenged. Nor was there any challenge to her Honour's conclusion that she should accordingly approach the sentencing task on the basis that the respondent did not know that it was over 7kg of cocaine which was involved in the importation. I can see no error in these conclusions, given the evidence. 76The sentence also reflected the views which her Honour reached on matters such as the respondent's contrition and remorse and the consideration given to his subjective circumstances. They included his prior good character, his age and prospects of rehabilitation, which all operated to ameliorate the otherwise appropriate sentence. None of her Honour's conclusions on these matters were challenged. 77I am not satisfied that the sentence imposed, albeit at the lower end of the available range, was manifestly inadequate, even given the impact of the 45% discount. The conclusions reached as to the gravity of this offence, in the face of the relevant objective and subjective factors necessary to be weighed, appear to have been open on the unchallenged evidentiary findings. No error of principle is alleged. Nor has any disparity been shown in the sentence imposed on the respondent, when compared with that imposed on any other comparable offender. In my view, it follows that the appeal must be dismissed. 78Since writing my judgement I have had the benefit of reading McClelland CJ in CL's judgment and note that I agree with what his Honour observes at [3].

Orders 79I would order: (1)The appeal be dismissed.

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