R v Kassir

Court of Criminal Appeal (NSW)|2019-10-25|Before: Bathurst CJ, Fullerton J, Hulme J

[This headnote is not to be read as part of the judgment] The respondent, Hassan Kassir, pleaded guilty to aiding and abetting the commission of an offence by another person contrary to subsection 307(1) of the Criminal Code, namely that another person imported a commercial quantity of a border controlled drug, namely methamphetamine. The respondent was sentenced to a term of imprisonment of 8 years with a non-parole period of 5 years and 6 months. The offence involved aiding and abetting unknown others to import an air cargo consignment on 16 June 2016 containing approximately 166 kilograms of pure methamphetamine from Taiwan. Before the June consignment arrived into Australia, six previous air cargo consignments were imported from Taiwan. The contents of each of those consignments are unknown. For each of the consignments, fraudulent consignee details were used and DHL Global Forwarding Limited (Australia) Pty Ltd (DHL) was the customs broker acting on behalf of the purported consignee. The respondent was an employee of DHL in the exports department until mid-February 2016. The sentencing judge summarised the role of the respondent as providing "an insider's knowledge of the operations within DHL, supplemented by liaising with staff as required". The sentencing judge described the respondent as "a facilitator". The sentencing judge was satisfied that the respondent "was aware that there was a significant amount involved" and found that the offence fell within the mid-range of objective seriousness The Crown appealed against the sentence imposed on the respondent. The sole ground of appeal was that the sentence was manifestly inadequate. There were two main issues on the appeal. The first issue was whether the sentence was manifestly inadequate, and the second issue, whether the Crown had negated any reason why the residual discretion not to interfere should be exercised. Manifest inadequacy (i) The sentence imposed on the respondent was manifestly inadequate. The offence which carried a maximum term of life imprisonment was said to be within the mid-range of seriousness. It involved setting up a process which enabled a very significant quantity of drugs to be imported into the country, the release of which into the community would have serious consequences. Notwithstanding the respondent's good character and prospects of rehabilitation, considerations of general and specific deterrence demand that a more substantial sentence be imposed: [98]-[120] (Bathurst CJ); [136] (Fullerton J); [137] (R A Hulme J). Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; R v Pham (2015) 256 CLR 550; [2015] HCA 39; Chen v R [2018] NSWCCA 157; Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39 referred to. Residual discretion (ii) The Crown has established that notwithstanding the residual discretion not to interfere the Court should resentence the applicant. The sentence was manifestly inadequate for a very serious crime and the need for correction to maintain public confidence in the administration of justice in this case outweighs other consideration: [121]-[132] (Bathurst CJ); [136] (Fullerton J); [137] (R A Hulme J). CMB v Attorney‑General (NSW) (2015) 256 CLR 346; [2015] HCA 9; R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 referred to. It was therefore necessary to resentence the respondent. After making allowance for a 15% discount for his plea, the Court resentenced the respondent to a term of imprisonment of 10 years with a non-parole period of 6 years and 6 months.

Judgment

BATHURST CJ: The respondent, Hassan Kassir (the respondent), was charged with and pleaded guilty to the following offence: "1. Between about 7 January 2016 and about 21 June 2016, at Sydney in New South Wales, aided, abetted, counselled or procured the commission of an offence by another person against subsection 307.1(1) of the Criminal Code, namely that another person imported a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity. Contrary to section 307.1(1) of the Criminal Code (Cth) (Law Part Code: 58454) with subsection 11.2(1) of the Criminal Code (Cth) (Law Part Code: 41446)."
The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units.
On 17 May 2019, the respondent was sentenced to a term of imprisonment of 8 years with a non-parole period of 5 years and 6 months.
The Crown has appealed against the sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). The sole ground of appeal is that the sentence is manifestly inadequate.

The factual background

An agreed statement of facts was tendered at the sentencing hearing. The summary below is taken from those agreed facts.

(i) The offence

The offence involved aiding and abetting unknown others to import on 16 June 2016 an air cargo consignment containing approximately 166 kilograms of pure methamphetamine from Taiwan. The consignment was addressed to Holly Bouveng at Masinissa Clothing, 175 Avenue Road, Mosman, and was declared as "ladies jeans". The consignee details had been acquired and utilised without the permission of Holly Bouveng.
The consignment consisted of 15 boxes, 12 of which contained multiple plastic bags of methamphetamine as well as a few pair of jeans. There were 210 plastic bags of methamphetamine within the consignment, the gross weight of the drugs was 209 kilograms and average purity was 79%.

(ii) The events leading up to the commission of the offence

Before the June consignment arrived into Australia, six previous air cargo consignments with the same fraudulent consignee details were imported from Taiwan. The contents of each of those consignments are unknown.
For each consignment, the customs broker acting on behalf of the purported consignee was DHL Global Forwarding Limited (Australia) Pty Ltd (DHL).
The respondent was an employee of DHL until mid-February 2016. His role was in the exports department and he normally did not interact with the imports department. On about 5 January 2016, before any consignment arrived, the respondent introduced Masinissa Clothing to the import department as a new customer.
There was in fact a business called Masinissa Clothing that was owned and operated by a Holly Bouveng from commercial premises at 175 Avenue Road, Mosman. The business ceased operation in November 2013. Ms Bouveng had never met the respondent. She had never imported goods from Taiwan and never had any dealings with DHL. By January 2016, she was trading under a different name, Sofo Clothing, from different premises.
The respondent spoke to Andreas Stefas in DHL's customer relations team about the process of importing freight, saying he was asking on behalf of a friend. He was told that in order to have freight imported and cleared for collection, a Letter of Authority ('LOA') from the customer was required and a customer account would need to be established. Mr Stefas sent the respondent a template LOA.
On 7 January 2016, the respondent sent Mr Stefas an email which said "I gave them your email address". On the same day, an email purporting to come from Masinissa Clothing was sent to Mr Stefas asking for rates and charges. Mr Stefas replied, attaching a document with that information. On the same day, the respondent emailed Mr Stefas attaching an edited version of the template LOA, which included Masinissa Clothing's details including the name Holly Bouveng and giving a street address, ABN, mobile number and email address. The version was created by the respondent on a DHL computer.
This version of the LOA was forwarded by Mr Stefas via email to the Masinissa Clothing email address. It was to be signed and sent back to Mr Stefas in order to clear any consignment arriving in Sydney. The respondent sent Mr Stefas an email including a logo for Masinissa Clothing and Mr Stefas inserted that logo into the LOA. At some point, Ms Madeleine Pawley, a DHL Imports Operations Specialist, forwarded a copy of the LOA purported to be signed by "Holly" to Mr Stefas.
During the period 16 January to 11 May 2016, six consignments for Masinissa Clothing were received by DHL. The respondent was employed by DHL at the time of the first two consignments.

a The first consignment

On 15 January 2016, the respondent and Mr Stefas approached a Mr Nick Nehme, one of DHL's Licensed Customs Brokers, with documents relating to the first of the consignments. The respondent told Mr Nehme the consignment was for "a friend… Holly". On 16 January 2016, the respondent received an email from 'Holly' using the Masinissa Clothing email address indicating a shipment was due that week and authorising DHL to collect the shipment.
On 18 and 19 January, someone representing themselves as 'Holly' emailed DHL from the Masinissa Clothing email address and asked about the progress of the consignment. The respondent was copied into the correspondence. On 19 January, an email was sent from the Masinissa Clothing email address to the respondent complaining about the delay in response time from DHL staff and indicating the urgency of receiving the order which contained "overdue stock". The respondent replied the following morning to 'Holly' and copied Pinar Kaya, DHL's Customer Service Manager, into the emailed correspondence.
The next day, Ms Pawley emailed the respondent and 'Holly' to advise that the freight was "checked in just waiting on acc# to come through". The respondent replied to Ms Pawley five minutes later, copying 'Holly' and Mr Stefas, to arrange for the payment of outstanding customs duties to clear the consignment. An hour later, he emailed DHL's bank details to 'Holly' and an hour thereafter, emailed several DHL staff members instructing them to get the goods to 'Holly' as soon as possible. The goods were collected by a man named Gurpreet Singh using a hired van from DHL's warehouse at Matraville.

b The second consignment

On 2 February 2016, 'Holly' emailed DHL about a second consignment due to arrive in Sydney that day. She indicated "please note it is urgent freight so if I could get it today would be great". Mr Nehme replied indicating "I will advise clearance once customs clear". Later in the morning, Mr Nehme emailed 'Holly' copying in the respondent, Mr Stefas and Ms Pawley and certain others, advising that the consignment had been cleared and he would let her know when it was checked into the DHL warehouse at Matraville. The respondent emailed Alex Tang, a DHL staff member in billing directing him to "complete invoice ASAP - shoot through to Holly and she will pay immediately for collection to be made today".
The consignment was again collected by Mr Singh from DHL's warehouse using a hired van.
In mid-February 2016, the respondent ceased working at DHL and took up a new position with another freight company, CT Freight. Before his DHL employment ended, the respondent's Sent, Deleted, Junk, Outbox and Draft Items were deleted from his email account and most emails in his Inbox were also deleted.
On 16 February 2016, the respondent sent Mr Nehme an email from his new CT Freight email account asking whether 'Holly' had been in contact with him. Mr Nehme suggested CT Freight might clear future consignments for her. The respondent told Mr Nehme, "she likes DHL".

c The third consignment

The third consignment was also cleared through DHL. Mr Nehme advised the respondent that it had been collected on 3 March 2016 by Mr Singh using a hired van.

d The fourth consignment

The fourth consignment arrived in Sydney on 24 March 2016. Mr Singh, this time using a false identity, used a hired van to collect it.

e The fifth consignment

On 20 April 2016, a fifth consignment was imported and the same day Mr Nehme sent the respondent an SMS, "just cleared your friend's jeans, Holly". Mr Singh sought to collect the consignment at 7.11am that day but was unsuccessful. At 9.15am, Ms Pawley emailed 'Holly' advising that the consignment was ready for collection and within an hour Mr Singh, again using a false name, collected the consignment.

f The sixth consignment

The sixth consignment was cleared on 11 May 2016 and collected by Mr Singh in a hired van and using a false identity.

g The June consignment - the consignment the subject of the charge

The June consignment arrived on 16 June 2016. It was intercepted by the Australian Border Force and never sent to the DHL warehouse. On 17 June, Mr Singh, in a hired van using a false identity, attended DHL's warehouse and tried to collect the consignment. Mr Nehme spoke to him and told him that the consignment was not ready for collection.
About an hour later the respondent called Mr Tang. Mr Tang could not recall the conversation.
On 19 June 2016, the respondent tried to call Mr Nehme. On 20 June 2016, the respondent sent a text to Mr Nehme but Mr Nehme did not reply.
On 21 June 2016, the respondent again tried to call Mr Tang but the call did not connect. On 24 June 2016, Mr Nehme emailed 'Holly' advising the June consignment had been surrendered to police.
On 2 July 2016, the respondent disconnected his personal mobile telephone service which he had used to contact DHL staff members about the consignments. The handset to which his mobile telephone service was connected was never recovered by police.
There was no evidence to prove the respondent was aware of the actual quantity of methamphetamine contained within the consignment. The respondent was the subject of surveillance, telephone intercepts and other investigative inquiries after 16 June 2016 and no evidence was acquired that he had any further involvement in the importation or with people who carried out the importation.
On 18 August 2016, the respondent was arrested.

The sentencing judgment

The sentencing judge noted the general sentencing principles which she must apply were contained in Pt 1B of the Crimes Act 1914 (Cth). She noted that the plea of guilty in the District Court had been entered the week prior to the commencement of the trial. She stated that there was a utilitarian benefit that flowed from the plea and that its circumstances reflected "remorse and not a mere willingness to facilitate the course of justice". She stated that she intended to reduce the sentence by 15% to recognise the plea.
The sentencing judge stated that she accepted that the respondent "must have been aware of the quantity" contained in the June consignment "in general, if not in specific terms". She said that "[h]e must have been well aware that it was not an insignificant amount".
The sentencing judge set out the facts as I have outlined them above. She stated that the respondent took "a keen interest and involvement in facilitating the imports", utilising "his familiarity with staff to liaise with them on behalf of the 'customer'". She found that he "took advantage of his knowledge of the industry" and when he required assistance, he knew which DHL staff to contact.
Her Honour stated that she accepted beyond reasonable doubt that the respondent "knew from the first of the acts attributed to him that border control drugs were to be involved". She summarised his role as providing "an insider's knowledge of the operations within DHL, supplemented by liaising with staff as required". She described him as "a facilitator", stating that "he had a direct role" in facilitating the consignment.
She stated that the respondent used his contacts and was therefore easily identifiable and able to be connected with the consignment". She said that this spoke of "limited sophistication of those involved or at least the lesser role of the offender". She stated that the nature of the inquiries made by the respondent suggested that it was "not a skilled or sophisticated operation".
The sentencing judge stated that "[t]o accept his acts and the extent of his involvement is to recognise the importance of his role, but also to recognise that it is not demonstrative of a higher status within the syndicate".
The sentencing judge stated that the gross amount of the drug was 209 kilograms with about 166 kilograms pure. She noted that the threshold for commercial quantity was 750 grams of pure methamphetamine and the amount involved was approximately 221 times the commercial quantity. She stated that the average purity was 79.35% which she said is referred to as the "typical purity for high quality ice". She noted that the wholesale value of the drugs was about $24,958,500 based on $150,000 per kilogram. She said that if sold per gram, the street value was about $600 per gram and the overall value would be about $99,937,840.
Her Honour noted that it was accepted by the prosecution that the respondent did not have a precise knowledge of the quantity of the drug. She noted that the respondent invited a finding that his knowledge "would not be of a quantity much greater than the commercial quantity". However, she said that the fact that there were six prior imports, although not necessarily of drugs, and the period of time engaged in preparation for the import, suggested "knowledge of a significantly greater quantity". She stated that she was satisfied beyond reasonable doubt that the respondent was aware the quantity was "more than the threshold". She said that "without precision", she was satisfied that "he was aware that there was a significant amount involved".
The sentencing judge rejected the submission that the respondent became involved innocently and gradually developed a suspicion that culminated in a reckless state of mind. She stated that she was "well satisfied" that the respondent "became involved for some benefit and inferentially that the likely benefit would be a financial gain". She said that the gain was not quantifiable.
Her Honour stated that having regard to the respondent's role, the duration of his involvement and the type, quantity and purity of the drug, she assessed the offence as "serious and midrange for accessory offences of this type".
Her Honour stated that she was satisfied that the respondent was "remorseful and mostly accepting of his responsibility".
In dealing with the respondent's subjective circumstances, her Honour noted that he had the support of his family. She noted that the respondent was the youngest of five children and experienced a supportive childhood. She said that she took evidence of his mother's health into account as part of the respondent's subjective case. She noted the "evidence of considerable support in the community" and the "numerous references from family, friends and associates", who she said provided "considerable support for a determination that his offending was aberrant". She said that both the tendered and oral evidence "failed to provide a full understanding" of how such a well-regarded person could "deviate into such serious offending in his late twenties".
The sentencing judge referred to a report of Dr Paul Pusey, a clinical and forensic psychologist, which referred to the significance of the offender's marital issues and his avoidance of stresses and untreated psychopathology as providing "a reasonable explanation for the offending". She noted that Dr Pusey stated that the contributing factors could be an adjustment disorder with mixed anxiety and depressed mood, but a further assessment was necessary to clarify the reasonableness of those diagnoses. Her Honour stated that whilst noting the issues raised by Dr Pusey, she did "not fully comprehend" how the respondent became involved in the offence given his background and worth ethic. She also stated that she did not accept the respondent's version as to how he became involved, which she noted was the version relied on by Dr Pusey. In that context, her Honour accepted that personal issues and stressors may have caused the respondent to engage in uncharacteristic activities but she did not regard this as "more than minimally lessening moral culpability".
The sentencing judge noted that the applicant was "evidently intelligent", is "described as honest and well-regarded" and presenting as "industrious with a strong work ethic". She noted that he had adjusted to his incarceration and his skills were recognised through being appointed sweeper and head sweeper. She noted that he had been on remand since his arrest on 18 August 2016, a period just short of three years. Her Honour noted that the respondent was of prior good character with no prior convictions. She accepted that his arrest and remand had provided "a salutary lesson". She accepted that consistent with the view of Dr Pusey, "long term custody may not be beneficial" to the respondent but stated that "there are many sentencing considerations and principles that need to be addressed". She said that she accepted the respondent had "excellent prospects of rehabilitation" and was "unlikely to reoffend". She stated that in those circumstances, personal deterrence was of lesser significance.
Her Honour stated that she particularly noted "the importance of general deterrence and denunciation and the importance of reducing the level of access to illicit drugs due to the enormous damage inflicted by them upon society". However, she noted that the "drugs were not disseminated into the community".
In those circumstances, the sentencing judge imposed the sentence to which I have referred above.

The appeal

As I indicated, the sole ground of appeal was that the sentence was manifestly inadequate. The submissions made by the parties may be summarised as follows.

a The Crown

The Crown submitted that the critical findings made by the sentencing judge which required the imposition of a significantly greater term of imprisonment and non-parole period were those that related to the respondent's role, the quantity and value of the drugs imported and the extent of the respondent's knowledge of the latter matter.
The Crown noted the finding by the sentencing judge that the respondent "had a direct role" in facilitating the consignment. He noted that the respondent acknowledged that he completed the LOA and the fact that the sentencing judge found beyond reasonable doubt that there was no real person called 'Holly' involved. He submitted that it followed that the respondent knew that it was the same false consignee in respect of the preceding importations which were not intercepted but formed part of the process in respect of which he was engaged as a facilitator. He noted that after the respondent left DHL, he continued to play a role in facilitating the consignment by using his knowledge of the DHL processes and personnel to ensure there was an expeditious clearance of the consignments as they came through.
The Crown submitted that what was not referred to in the respondent's submission was that the respondent presented the partially completed LOA to Andrew Stefas which included an email address in the knowledge and expectation that Mr Stefas would forward the partially completed LOA to that email address thus setting in train the sequence that would culminate in the completed LOA being provided to Mr Nehme.
The Crown referred to the finding by the sentencing judge beyond reasonable doubt that from the first of the acts attributed to the respondent, he knew that border controlled drugs were to be involved.
The Crown pointed out that the respondent used his familiarity with the staff of DHL to liaise with them on behalf of a customer he knew to be fictitious.
The Crown noted that the quantity of drugs was of particular significance being in pure terms 166 kilograms of methamphetamine, 221 times the commercial threshold. He pointed out that the purity was typical purity for high quality ice, having a wholesale value of $24,958,500, referring to the evidence given in the sentence proceedings by Detective Sergeant Jenner.
The Crown submitted that even where the offender was not aware of the amount of the drugs involved, the weight remains a relevant factor, particularly where the weight exceeds the commercial quantity by a substantial degree as in the present case. He submitted the rejection by the sentencing judge of the submission made on behalf of the respondent that she should find that the extent of his knowledge was that the quantity of the drugs was not much greater than the commercial quantity and the comment "I am satisfied he [the respondent] was aware that there was a significant amount involved" was referring to a significant amount above the commercial quantity.
The Crown did not contest the sentencing judge's conclusion that the offence was an offence of the mid-range of seriousness for an aiding and abetting offence.
The Crown accepted that it was not appropriate to compare the respondent to a baggage handler as he was not himself in the import section of DHL.
The Crown in written submissions placed reliance on the four cases said to be comparable in the Court below. The sentencing judge did not specifically refer to any of the cases provided to her as comparable cases merely noting that they provided her some general assistance but were not directly comparable. The Crown submitted that the criticism by the sentencing judge of the Crown that they did not provide any assistance in respect of comparable cases was misplaced. He referred to the comment of the Crown in the Court below that: "… all that the Crown has attempted to do in providing some comparables is to provide a couple that reflect some principles that may apply to the sentencing of an insider ..."
The Crown pointed out that in addition, the sentencing judge had before her a schedule of comparable cases that had been provided on behalf of the respondent. He also pointed out that this was not a case where the Crown made a concession below from which it was sought to resile.
The first of the cases relied on by the Crown in their written submissions, R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 ('Stanbouli'), involved an employee of a licensed customs broker and freight forwarding agency who provided assistance to facilitate the importation of 375 kilograms of heroin for which he was paid $200,000. As in the present case, the maximum sentence for the offence was life imprisonment.
The heroin was imported in about 46 shipments, although some of them may have been 'dummy runs'. The offender was able to provide assistance by virtue of the fact that his position entitled him to oversee receipt and clearance to facilitate delivery of the shipments. On one occasion when he was aware a shipment would be subject to scrutiny he informed customs that it had not arrived, thus avoiding scrutiny. The case was described by the sentencing judge as "one of that band of most serious offences of its type". The offender was sentenced to a term of imprisonment of 13 years and 6 months with a non-parole period of 10 years after a total discount of 50% for his guilty plea, assistance to the authorities and s 16G of the Crimes Act. On appeal, the offender was resentenced to a term of imprisonment of 19 years with a non-parole period of 12 years. There was a starting point of 40 years with a deduction of approximately one-third for s 16G, and from the result, a further 30% for the offender's plea and assistance (see (2003) 141 A Crim R 531; [2003] NSWCCA 355 at [139]).
The Crown submitted that whilst the respondent's conduct may be less in terms of objective seriousness, it was not so substantially less to warrant the difference in the term of imprisonment.
The second case was R v Nikolovska (2010) 209 A Crim R 218; [2010] NSWCCA 169 ('Nikolovska'). The respondent pleaded guilty to importing a marketable quantity of cocaine contrary to the Criminal Code (Cth), s 307.2(1). The sentence carried a maximum penalty of 25 years or 5,000 penalty units or both. The respondent was a Qantas employee who had a security clearance which gave her access to imported goods held within a secure area. She became involved in the importation offence after a co-offender sought her assistance. The offender was in contact regularly concerning the whereabouts of the parcel containing the drugs, its movement in the Sydney Distribution Centre and the method of payment. The importation was in respect of 1.4 kilograms of cocaine. The respondent was sentenced to a term of imprisonment of 6 years with a non-parole period of 3 years and 9 months after an unquantified discount was given (on appeal, the Court stated that the sentencing judge "provided a description of the timing of the plea… such that you would expect a 20% discount). The Crown appealed on the basis the sentence was manifestly inadequate.
On appeal the role of the respondent was described as being a facilitator whose role was significant and strategic and involved a fundamental breach of trust. The respondent was resentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 9 months which it was said was "less than should have been imposed at first instance". In reaching this conclusion, the Court took into account at [102] that as a consequence of the Crown appeal, the offender "returned to the status of a remand prisoner" and "lost her job, the increased remuneration and the right to a single cell". The Court also stated at [104] that "there was actual disadvantage occasioning anxiety and distress to the respondent by reason of the appeal, that should be taken into account on resentencing".
The Crown submitted that the present respondent's sentence is "largely on par" with the sentence imposed in Nikolovska, notwithstanding the vastly different quantity of the drugs.
The third case Pham v R; Tang v R [2012] VSCA 101 ('Tang') relevantly concerned a plea of guilty by Mr Tang to three counts of importing a commercial quantity of a border controlled substance, namely 71.564 kilograms of cocaine, 9.757 kilograms of ecstasy and 29.285 kilograms of methamphetamine. The maximum penalty was life imprisonment. Mr Tang was involved in attempting to extract the drug from furniture which in fact contained an inert substance, the original drugs having earlier been intercepted and seized by the authorities. He was sentenced to a term of imprisonment of 15 years on each count and after considerations of accumulation and totality, an effective sentence of 19 years with a non-parole period of 14 years. An appeal by Mr Tang was dismissed, Redlich JA expressing the view at [7] that the sentences were "towards the bottom of the range of sentences open to the sentencing judge".
The Crown submitted that although the role and conduct of the offenders in Tang was "markedly different", the respondent "aided and abetted the importation of almost double the total quantity of drugs involved in that case". Notwithstanding, the respondent received a head sentence that was 11 years less and a non-parole period that was 9 years and 6 months less than that imposed on Mr Tang.
The final case referred to by the Crown was Tsang v Director of Public Prosecutions (Cth) (2011) 35 VR 240; [2011] VSCA 336 ('Tsang'). The applicant was convicted by a jury of importing a commercial quantity of MDMA having a total pure weight of 74.1 kilograms with an estimated retail value of between $38.4 million and over $90.5 million. He was also charged with attempting to traffic a commercial quantity of that drug. Each offence carried a maximum sentence of life imprisonment. The applicant was sentenced to imprisonment for life on both counts to be served concurrently. A non-parole period of 27 years was fixed.
The applicant's role included taking responsibility for dealing with local customs agents to facilitate customs clearance of the shipping container and arranging the storage and transportation of the drugs. The applicant came to Australia for the sole purpose of committing the offences.
On appeal, the Court of Appeal of Victoria upheld the appeal against the sentence imposed for attempted trafficking MDMA on parity grounds. In resentencing, the Court noted the profit if the drugs had not been detected was likely to yield between $34.8 million and $90.5 million in the retail market and between $25.8 million and $32.3 million in the wholesale market. The Court stated at [179] that "[i]n these circumstances, the principles of denunciation and general and specific deterrence must be given great weight in re-sentencing the applicant".
The Court concluded at [180] that "[a]lthough the applicant was at the higher end of the syndicate, he was not at the very top". In the circumstances, the Court imposed a term of imprisonment of 28 years on the importation charge and 24 years on the attempted trafficking charge. The Court imposed a total sentence of 29 years with a non-parole period of 19 years.
The Crown accepted that whilst the facts in this case were distinguishable having regard to the sheer quantity of methamphetamine the subject of the importation in the present case, the sentence imposed on the respondent was "comparatively so manifestly inadequate that to allow the sentence to stand would shake public confidence in the administration of justice".

B The respondent

Counsel for the respondent emphasised that the sentencing judge was not satisfied beyond reasonable doubt that any of the previous imports contained prohibited drugs. He contrasted that with Stanbouli which involved 46 importations in respect of which the sentencing judge was satisfied beyond reasonable doubt that 23 contained drugs. He described this as a "marked contrast", emphasising that the charge against the respondent was "not a representative count".
Counsel for the respondent did not dispute the finding by the sentencing judge that the offence fell within the mid-range of objective seriousness. He submitted however that the impact of the weight of the drugs on the sentencing discretion varies according to the knowledge of the offender and the role played by him or her in the importation.
Counsel for the respondent referred to the findings by the sentencing judge to which I have referred at [36]-[39] above. He submitted that there was no evidence the respondent corrupted any of the DHL systems in facilitating the importation. He accepted however that the respondent set up the mechanism by which the importation of a very large quantity of drugs took place, although he said the actions which the respondent undertook were "not sophisticated" and did not change the normal importation process. He accepted, however, that the respondent knew that the process in which he was actually involved was a process which would result in the importation of border controlled drugs. Counsel for the respondent submitted that what the respondent did in ascertaining the need for a LOA and asking whether a particular consignment had been looked at and, if not, whether it could be expeditiously facilitated, all occurred in the normal process. He pointed out that the respondent was not linked to the IP address which was the source of the emails from 'Holly'. He pointed out that although the respondent sent a template LOA, he did not return the signed LOA to Mr Nehme. Counsel for the respondent submitted that the role of the Qantas employee in Nikolovska (see [65] above) was far more significant involving a significant breach of trust.
In relation to the question of financial reward, counsel for the respondent emphasised that the respondent was under surveillance, his telephone was intercepted and his bank deposits were inspected and there was no indication of any cash deposit or any other injection of funds.
He submitted having regard to the extent of the applicant's involvement, the limited evidence of financial reward and the respondent's "powerful subjective case", the sentence was not manifestly inadequate.
In his written submissions, the respondent sought to deal with the comparable cases relied on by the Crown and referred to cases which, it was submitted, provided a more appropriate comparison. So far as Stanbouli was concerned, it was pointed out that the financial gain was about $200,000 in contrast with the present case where the finding was only that there was likely to be a financial gain which was not quantifiable. It was also pointed out that there were at least 23 shipments involving drugs and that Mr Stanbouli was aware from the outset that the proposal was to import heroin and he used his position to oversee the receipt, clearance and delivery of the drug.
In relation to Nikolovska, the written submissions pointed out that her sentence was arrived at after a discount of 20% for her plea: (2010) 209 A Crim R 218; [2010] NSWCCA 169 at [73]. It was submitted that there were significant differences in the role and knowledge of Ms Nikolovska compared to that of the applicant. It was pointed out Ms Nikolovska had security clearance, was able to access goods in a secure area, was passing information and monitoring the likely arrival of the contraband.
It was submitted that when all the circumstances of Nikolovska were properly scrutinised, her "involvement and role was substantially greater" than that of the respondent.
So far as Tang was concerned the respondent in his written submissions noted the concession made by the Crown that "the role and conduct of the present respondent was markedly different" to that of Tang and that the circumstances of the case strongly suggested that Tang was aware of the quantity involved.
So far as Tsang was concerned, the respondent pointed to the fact that the sentencing judge found in that case that the appellant acted without instructions and his "role was critical to the potential success" of the importation and that his activities continued after he left Australia: (2011) 35 VR 240; [2011] VSCA 336 at [139]. It was also submitted that Mr Tsang had "responsibility for dealing with local customs agents to facilitate customs clearance" and organised the transport and storage of the MDMA the subject of the charge. It was submitted that these findings were entirely different from the findings against the applicant.
The respondent in his written submissions also referred to a number of cases which he said were more appropriate comparators than those referred to by the Crown.
The first of these cases was R v Aaron Tran; R v Peter Tran; R v Hoang Nguyen (2013) 233 A Crim R 167; [2013] NSWCCA 136 ('Tran'). The respondent placed particular reliance on the sentence imposed on Mr Peter Tran.
Mr Peter Tran pleaded guilty to importing a commercial quantity of a border controlled drug, namely heroin. Mr Peter Tran and his co-offenders imported 6.25 kilograms of pure heroin, the commercial quantity being 1.5 kilograms. The estimated wholesale value was $2.5 million and the street value was between $6.25 million and $7.21 million. The maximum penalty was life imprisonment. After a discount of 25% for an early plea of guilty, Mr Peter Tran was sentenced to a term of 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.
The offence related to heroin concealed in four wooden crates imported from Vietnam. Customs officials detected drugs in these four crates and a controlled delivery took place. The consignment was delivered to Mr Peter Tran, who with his co-offenders unloaded the consignment. Mr Peter Tran had arranged for the payment of freight and customs duties. It was found that he was not aware of the quantity of the drug and that his part "was not to exercise decision making functions". It was also stated that his activities were "not at a high level" and were "somewhat lacking in sophistication" which led the sentencing judge to conclude that he had a "lower level of involvement".
Mr Peter Tran was 20 years of age at the time and was found to have family support and good prospects of rehabilitation.
A Crown appeal contending manifest inadequacy was dismissed, the Court commenting that the starting point of the sentence "whilst lenient, perhaps even very lenient, was nonetheless within the range of sentences involving the importation of commercial quantities of border controlled drugs": (2013) 233 A Crim R 167; [2013] NSWCCA 136 at [50].
The second case was R v Schwartz [2018] NSWDC 118 ('Schwartz'). The offender was charged with two offences pertaining to the importation of a commercial quantity of a border controlled drug, namely cocaine. The sentencing judge noted that each importation was four times the commercial quantity, each carrying a maximum sentence of life imprisonment. The drugs were sent into Australia by air cargo transport. The offender's role was to track the shipments and pass on the information he obtained to others. He did this by repeatedly accessing the DHL website and in relation to the first shipment also making a telephone call to DHL in which he made an inquiry over the phone using a false name. The statement of agreed facts recorded that Mr Schwartz "expected to receive a substantial cash amount for his role in the importations". The sentencing judge stated that Mr Schwartz "must also have known that these importations were of significant size". The offender came from a good family background and was studying at the time of the offence. The offender had two previous convictions for drug offences and the judge was unable to make a positive finding of rehabilitation. The sentencing judge after allowing a 40% discount for his plea and other matters, imposed a sentence of 4 years imprisonment for each count. The sentencing judge imposed a total effective sentence of 6 years and a non-parole period of 3 years and 6 months.
The third case relied upon was Dmitri Shakhanov v The Queen [2019] VSCA 38 ('Shakhanov'). The proceedings involved the attempted importation of 209.79 kilograms of pure methamphetamine. The Court stated that if the importation had been successful, the drugs had an estimated street value of between $31.1 million to $107 million. The offender's role was to collect the drugs and then deliver them to a residential property. He was found to have participated with an intent to make money. He had a powerful subjective case and good prospects of rehabilitation. He was sentenced to 9 years imprisonment with a non-parole period of 6 years. On appeal the sentence was reduced on parity grounds to a sentence of 8 years imprisonment with a non-parole period of 5 years. Hargrave JA who delivered the judgment of the Court stated that had the offender not pleaded guilty to the offence, the sentence would have been 11 years imprisonment with a non-parole period of 8 years.
The final case relied on was R v Yeo [2012] SASCFC 60 ('Yeo'). Mr Yeo was found guilty of attempting to import a commercial quantity of border controlled drugs, namely 80 kilograms of dimethylamphetamine having a value between $3 million and $32 million depending on how the drug was packaged and sold. The offender came from Singapore a day or two before the consignment was due to arrive in Sydney and was involved in the movement and unpacking of the shipping container. He was 52 years of age. The sentencing judge accepted that he was not the person who organised the shipment but suggested he had greater knowledge than he in fact claimed and that his role was not simply to unload the shipment but a more significant role. He was sentenced after trial to a term of imprisonment of 10 years with a non-parole period of 6 years and 6 months. Leave to appeal was refused.
The respondent submitted that Mr Yeo had "a much higher level of moral culpability" than the respondent. He submitted that whilst the quantity of drugs was lower, this was more than offset by the findings about Mr Yeo's involvement.

a Principles relating to Crown appeals

In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green & Quinn), the plurality stated at [1] and [36] that the primary purpose of Crown appeals was "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". It was described as "a limiting purpose" that "does not extend to the general correction of error made by sentencing judges": see also CMB v Attorney‑General (NSW) (2015) 256 CLR 346; [2015] HCA 9 ('CMB') at [35], [55]; R v Robert Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [70].
In CMB French CJ and Gageler J cited with approval at [35] the statement by Barwick CJ in Griffiths v R (1977) 137 CLR 293 at 310; [1977] HCA 44 that an appeal under s 5D of the Criminal Appeal Act should be "brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". They stated at [35] that the reference to "matters of principle" by Barwick CJ "must be understood as encompassing what is necessary to avoid … manifest inadequacy or inconsistency in sentencing standards": see also Everett v The Queen (1994) 181 CLR 295 at 300; [1994] HCA 49.
The Crown in the present case contended that the sentence was manifestly inadequate.

B Is the sentence manifestly inadequate?

The principles concerning the question of whether a sentence is manifestly excessive were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (Bathurst CJ, Leeming JA, Hamill J and N Adams J agreeing). His Honour made the following remarks which are equally applicable to an appeal on the ground that a sentence is manifestly inadequate: "[443] When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Both parties agreed that the appropriate approach to be taken in sentencing for drug offences of this nature was that set out by Johnson J in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 ('Nguyen') at [72] (Macfarlan JA and R A Hulme J agreeing), where his Honour referring in particular to Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 distilled the following propositions of relevance in the present case: "[72] The following general propositions emerge from the authorities: (a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27]; (b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25]; (c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26]; (d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24]; (e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46]; (f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32]; (g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v the Queen; Leung v The Queen at 607-608 [64]; (h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114]; (i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6]; (j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]-[25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49]."
To this statement I would only add what was said by Bell and Gageler JJ in R v Pham (2015) 256 CLR 550; [2015] HCA 39 ('Pham') at [45] that "the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness" but will usually be a relevant and in some cases, the most significant consideration.
It does not seem to me of great significance that the respondent was charged with aiding and abetting the importation, rather than the importation itself. In Chen v R [2018] NSWCCA 157 ('Chen'), an appeal against the severity of a sentence on a charge of aiding and abetting the importation of a border controlled substance, Button J pointed out at [49] (Meagher JA and Schmidt J agreeing) that "[t]here is an obvious need to impose upon persons who involve themselves in the importation of very significant quantities of prohibited drugs sentences that will serve the purposes of denunciation, specific deterrence, and, perhaps most importantly, general deterrence".
The parties did not dispute the fact that the offence fell within the mid-range of objective seriousness of an offence of this nature. Although it is true that the respondent did not use his position to either directly interfere with, or be involved in the clearance or delivery of the importation, he was instrumental in setting up the structure by which the importation was to take place. He did so in the knowledge that the structure was going to be used to facilitate the importation of a substantial quantity of border controlled drugs. His activities included obtaining the template LOA, completing it with the false information concerning Holly Bouveng and her business and giving an email address to which the LOA was sent and from which it was subsequently returned. He directly involved himself in the first two consignments, rejected the suggestion that after he left DHL another company might clear future consignments and took steps, albeit unsuccessful, to contact DHL in respect of the June consignment.
It may be as counsel for the respondent submitted that a person without any internal knowledge of DHL's processes and personnel could have done what the respondent did in the present case. Nevertheless, the fact remains that the respondent used his position with and knowledge of DHL to facilitate the shipment.
Further, the quantity was extremely large. With the greatest respect to the sentencing judge her finding of the extent of the applicant's knowledge of the quantity imported is not entirely clear. Her Honour rejected the submission that she should find that the extent of the respondent's knowledge was that the quantity was not much more than the commercial quantity and she was satisfied that he knew there was more than the threshold.
Although the sentencing judge stated that she was satisfied the respondent was aware there was "a significant amount involved", the extent of that finding goes no further in my view than the respondent was aware the quantity to be imported was significantly more than the threshold for a commercial quantity. It would be wrong to proceed on the basis that he knew anything like the full extent of the importation.
Nevertheless, as was pointed out by Johnson J in Nguyen and Bell and Gageler JJ in Pham, the extremely large quantity of the drug imported remains a relevant factor. Principles of general deterrence loom large in such circumstances.
It is true as counsel for the respondent pointed out the respondent was otherwise of good character. However, as Johnson J pointed out in Nguyen that is something which is generally given less weight as a mitigating factor in drug importation cases.
So far as the comparable cases relied on by the parties are concerned, it is important to bear in mind the limitation on the use that can be made of those cases and the purpose for which they can be used. As was pointed out in Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 ('Hili') at [54] citing Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304], comparable cases can be used to establish a range of sentences which have been imposed but it does not necessarily mean that the range is the correct range. Rather, the cases provide a yardstick by which to examine a proposed sentence. Further, what is sought is consistency in the application of legal principle not numerical equivalence: Hili at [48]-[49]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]; Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39 at [26]-[28].
I have reviewed the cases relied on by the Crown and the respondent. So far as Stanbouli was concerned, there can be no doubt that the offence was more serious than that of the respondent in the present case. The offender was involved to a far greater extent in the importation than the respondent, there was a far greater quantity of drugs involved and a far greater number of shipments. The sentence of 19 years imposed after a deduction of one-third, and from the result, a further 30%, with a non-parole period of 12 years provides little guidance in the present case but it does demonstrate that persons who facilitate the importation will receive severe punishment.
Tsang falls into a somewhat similar category. Although the quantity of drugs was significantly less than in the present case, Mr Tsang came to Australia to commit the offences and his role included taking responsibility for dealing with local customs agents to facilitate customs clearance and organising the transportation and storage of the drugs. His sentence of 29 years with a non-parole period of 19 years again does little more than demonstrate that facilitating the importation of drugs is an offence that warrants severe punishment.
Ms Nikolovska was convicted of an offence carrying a lesser maximum penalty. It is true that she was in a greater position of trust than the present respondent but that seems to me to be more than offset by the quantity of drugs involved in the present case and by the fact that the offence for which Ms Nikolovska was convicted was an isolated incident. Her sentence before taking into account a discount for her plea was approximately 9 years and 4 months.
Mr Tang was found guilty of three counts of importing a commercial quantity of border controlled drugs. The individual sentence in respect of each count was 15 years. The offence involved an actual attempt to obtain the drugs, although there was nothing to suggest that Tang played any role in the importation other than seeking to remove them from the furniture in which they were imported. Once again, the quantity of the drugs the subject of each count and the total quantity was significantly less than in the present case.
Of the cases referred to by the respondent, Tran bears some similarity to the present case. Like the applicant, Mr Peter Tran was not aware of the quantity of the drugs. Although he paid for freight and customs duties and unloaded the drugs, it was not suggested that he facilitated the importation in the same way as the respondent. The quantity of the drugs in that case was substantially less than in the present case. His sentence prior to a 25% discount was 10 years.
Schwartz may be contrasted with the present case. The difference between Mr Schwartz's role and that of the present respondent was that Mr Schwartz did not facilitate the use of DHL in the importation as distinct from making inquiries of the progress of the shipment. His sentence before discount on each of the 2 counts was 6 years and 8 months.
Shakhanov bears some similarity to the present case to the extent that the proceedings involved a very large amount of methamphetamine. Shakhanov's role was the collection and delivery of the drugs. He did not facilitate the shipment.
In Yeo the offender was involved in the movement and unpacking of the shipping container. It was found that he was not the person who organised the shipment.
I have also considered the cases contained in the schedule of cases referred to by the sentencing judge. Apart from Chen to which I have referred above, none of them provide any further assistance in determining the appropriate sentence and no reliance was placed on them by the parties in their submissions. However, Chen which was an aiding and abetting offence, does provide some limited guidance.
Chen was charged and convicted after trial of aiding and abetting the supply of a commercial quantity of a border controlled drug, namely 14.14 kilograms of methamphetamine. He facilitated the delivery and collection of the shipment by renting premises under a false name in which a co-offender resided and to which a consignment in the name of the co-offender carrying the drugs was to be delivered. He also took steps to ensure that he was available to take delivery and arrange for another co-offender to collect the drugs. The objective seriousness of the offence was described as mid-range, the sentencing judge considering that the prospects of rehabilitation were "above average". On appeal, Button J stated at [69] that "it may be accepted that it was not proven that the applicant was aware of the precise quantity of the drug that was being imported. But as a matter of common sense, he certainly must have appreciated that it was a significant quantity". He also concluded at [70] that "the only financial gain that could be proven beyond reasonable doubt were the reasonably limited payments that he received". The payments appeared to have amounted to $1200: see [2018] NSWCCA 157 at [10]. The offender was described by Button J at [49] as a "middle man". An appeal against the sentence of 12 years with a non-parole period of 7 years and 2 months was dismissed.
The case bears some similarity to the present case. Like the respondent, Chen did not know the actual quantity of the drugs. Further, the proven financial gain was extremely limited. Although his involvement in the importation was somewhat greater than that of the respondent, the amount of the drug the subject of the importation was considerably less.
Taking all the factors I have referred to above into account, in my opinion the sentence was manifestly inadequate. The offence which carried a maximum term of life imprisonment was said to be within the mid-range of seriousness. It involved setting up a process which enabled a very significant quantity of drugs to be imported into the country, the release of which into the community would have serious consequences. Notwithstanding the respondent's good character and prospects of rehabilitation, considerations of general and specific deterrence demand that a more substantial sentence be imposed.

c The residual discretion

It is also necessary for the Crown to negate any reason why the residual discretion not to interfere should be exercised: CMB at [33]-[34]; R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 at [12].
The respondent referred to the "limiting purpose" of Crown appeals and raised five matters which he submitted showed that the residual discretion not to resentence should be exercised. The first was that his non-parole period was due to expire on 17 February 2022 and in those circumstances, extending the length of imprisonment "would be unjust".
The second was that the respondent had made "substantial progress towards rehabilitation". Presumably that submission was made in reliance on the affidavit of the respondent's solicitor, Aisha Lopez, sworn on 23 October 2019 notwithstanding the fact that counsel for the respondent at the hearing stated that it was only sought to be used on resentence not on the question of the exercise of the residual discretion.
The third matter relied upon was that any increase in sentence may have a deleterious effect on the respondent's mother. No evidence was presented on the appeal in support of that proposition. However, the respondent's father in affidavit evidence at the sentencing hearing stated that his wife, who suffered from a number of health issues, had been struggling with the incarceration of her son and had been diagnosed with depression.
The fourth matter is that any resentence would involve "mere tinkering with the sentence" as it would result in an increase of no more than 6 to 18 months.
The fifth was that any error was "due in large part to the conduct of the Crown" in only providing four comparable cases.
In my opinion, the Crown has established that notwithstanding the residual discretion not to interfere the Court should resentence the applicant. The sentence was, in my view, manifestly inadequate for a very serious crime and the need for correction to maintain public confidence in the administration of justice in this case outweighs other considerations: Green & Quinn at [69]. It is important that the Court lays down principles for sentencing offenders convicted of offences of this nature to ensure consistency in the application of sentencing principles.
So far as the matters raised by the respondent are concerned, it is true that a significant portion of his non-parole period has expired. However, that is not due to any delay by the Crown in prosecuting the appeal but rather due to the fact that the respondent had been on remand for a period of a little over 3 years awaiting trial, prior to being sentenced. In this regard, it must be remembered that the respondent's plea was only entered a week before the trial. In those circumstances, the fact that a significant portion of the non-parole period had expired does not lead to the conclusion that the Crown has failed to meet the requisite onus.
So far as the submission that the respondent has made significant progress with his rehabilitation, the affidavit of Ms Lopez demonstrates that the applicant has an excellent prison record, has been classified as a minimum security prisoner and notwithstanding the pending Crown appeal, has been permitted to engage in offsite education and employment subject to a proviso that he is escorted to and from his cell. Although these matters are of importance on resentencing, they do not lead to the conclusion that the Crown has failed to negate any reason that the residual discretion not to resentence should be exercised.
Similarly, the deleterious effect on the health of the respondent's mother, whilst relevant in resentencing, does not mean the Crown has failed to discharge the requisite onus.
The other matters relied on by the respondent, namely, that any reduction would involve "mere tinkering with the sentence" and that any error was the responsibility of the Crown may be dealt with shortly. So far as the first matter is concerned, the sentence I propose does not involve "mere tinkering". Second, there is no basis for the proposition that the Crown led the sentencing judge into error. The sentencing judge had cases supplied to him by the Crown and the respondent. Any error was not due to the cases referred to by the Crown pointing to an incorrect result.
It follows that it is necessary to resentence the respondent.

Resentencing

The respondent is required to be resentenced in accordance with Pt 1B of the Crimes Act, in particular the provisions of s 16A. It was not suggested that the sentencing judge failed to take into account all relevant matters required by that section to be taken into account, nor were her findings on those issues in dispute. In resentencing, I have also taken them into account. I have also taken into account the progress made by the respondent in rehabilitation.
In all the circumstances, after making allowance for a 15% discount for his plea, the respondent should be sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years and 6 months. As with the prior sentence, the sentence should be backdated to commence on 18 August 2016.

Conclusion

In the result, I would make the following order: 1. Appeal allowed. 2. Quash the sentence imposed on the respondent and in lieu thereof order the respondent be sentenced to a term of imprisonment of 10 years commencing on 18 August 2016 and expiring on 17 August 2026 with a non-parole period of 6 years and 6 months expiring on 17 February 2023.
FULLERTON J: I agree with the Chief Justice.
R A HULME J: I agree with Bathurst CJ.

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