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R v Lamella [2014] NSWCCA 122 | Case summary | Zoe

NSWNSWCCA

R v Lamella

[2014] NSWCCA 122

Court of Criminal Appeal (NSW)|2014-06-16|Before: Price J, Garling J, Bellew J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2014-06-16

Before

Price J, Garling J, Bellew J

Catchwords

Jones v R [2010] HCA 45
(2010) 242 CLR 520 Majid v R [2010] NSWCCA 121 SZ v R (2007) 168 A Crim R 249

Source

Original judgment source is linked above.

Catchwords

Jones v R [2010] HCA 45(2010) 242 CLR 520 Majid v R [2010] NSWCCA 121 SZ v R (2007) 168 A Crim R 249

Judgment (2 paragraphs)

[1]

Judgment 1PRICE J: The Commonwealth Director of Public Prosecutions ("the Director") appeals against the sentences imposed upon Adrian Paul Lamella, ("the respondent"), in the District Court at Sydney by Sweeney DCJ on 6 February 2014. 2The respondent pleaded guilty to two counts, the first being conspiracy to import the controlled precursor pseudoephedrine between about 1 January 2009 and about 31 December 2010 contrary to ss 11.5 and 307.11(1) Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 25 years and/or 5000 penalty units. 3The second count was an offence of being a Commonwealth public official, namely a Customs and Border Protection Officer, dishonestly agreeing to receive a benefit with the intention that it would influence the exercise of his duties as a Commonwealth public officer between about 1 January 2009 and about 31 December 2010 contrary to s 141.1(3) Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 10 years and/or 10000 penalty units. 4The respondent asked the Judge to take into account on sentence pursuant to s 16BA Crimes Act 1914 (Cth) the following offences: (i) Official abuse of Public Office to gain advantage contrary to s 142.2(1) Criminal Code (Cth); and (ii) Give corrupt benefit to a Commonwealth public official contrary to s 142.1(1) Criminal Code (Cth). Each of these offences carries with it a maximum penalty of imprisonment for 5 years. 5Her Honour took these offences into account in the sentence imposed for the first count which was a sentence of 8 years imprisonment to date from 17 December 2012. 6A sentence of 3 years imprisonment to date from 17 December 2012 was imposed for the second count. The Judge fixed a single non-parole period of 4 years imprisonment to date from 17 December 2012. The respondent will be eligible for release on parole on 16 December 2016. 7The amended Notice of Appeal identifies the following grounds:

The learned sentencing judge erred in failing to assess properly, or failing to give due weight to, the objective seriousness of the offences.
The learned sentencing judge failed properly to take into account, or failed to give due weight to, the two additional serious offences to which the Respondent admitted and requested be taken into account, pursuant to s 16BA of the Crimes Act 1914 (Cth) when imposing the sentence for Count 1.
The learned sentencing judge erred by imposing sentences that failed to reflect properly or give due weight to the need for general deterrence.
The learned sentencing judge erred in the application of sentence discounts for the Respondent's guilty plea and assistance to authorities by applying a single step combined discount of 50% which was applied to the notional head sentence, giving undue weight to those considerations, or otherwise resulting in sentences that were not of a severity appropriate in all the circumstances of the offences.
The learned sentencing judge erred by imposing a 50% non-parole period of 4 years as the minimum term required to be served, without regard or due regard to the matters in s 16A(2) of the Crimes Act 1914 and all other circumstances, including the substantial discount already given for the guilty pleas and assistance.
The sentences imposed are manifestly inadequate. Facts 8At the time of the offences, the respondent was employed by the Australian Customs and Border Protection Service as a Customs officer at Sydney Airport. His duties included screening and searching passengers from incoming flights for illicit and prohibited goods. Paul Katralis was also a Customs officer. A statement of agreed facts was tendered which the Judge recited in her remarks on sentence. Her Honour's remarks included the following (ROS 3-9): "There are three importations of cold and flu tablets which are involved in Mr Lamella's offence of conspiracy to import pseudoephedrine. The first occurred in June 2009 and involved two couriers named Kristal Hill and Manal Mizyed. These people became known to Mr Lamella in 2008. In early 2009 Mr Harb and Mr Lamella approached those two people in relation to importing cold and flu tablets from Thailand, for which they would be paid $10,000. At a meeting Mr Lamella told those two people of the method that would be used for the importation; that Mr Harb would travel to Thailand to purchase the tablets and would assist them in packing their bags, that he, Mr Lamella, worked at Customs and would ensure they passed through the airport without being searched; and he told them how they should dress and behave to avoid detection by investigating authorities at the airport. In May 2009 Mr Lamella provided Joseph Harb with dates and flight details which coincided with the dates that he and his team would be working at the airport. Mr Lamella and Mr Harb subsequently met with the two couriers and Mr Lamella gave them details for them to book their flights. Mr Harb gave each of the other three people pre-purchased mobile phones which had been registered in false details, so that they could communicate with each other during the return flight from Thailand to Sydney Airport. On 10 June 2009 Mr Joseph Harb flew to Thailand and purchased about 10 kilograms of cold and flu tablets from a pharmacy for about $6,000-$7,000. This comes from information provided by Mr Harb. On 13 June 2009 the two couriers, Mizyed and Hill flew to Thailand. On the date of their return flight to Australia Mr Harb went to their hotel and packed the cold and flu tablets into their suitcases among their luggage, dividing them roughly in half. Mr Harb then called Mr Lamella on the mobile phone he had given him for the purpose of the importation and Mr Lamella told Mr Harb that everything was good. Mr Harb in turn informed the couriers that everything was proceeding as planned. Mr Harb and Ms Hid and Ms Mizyed subsequently flew back from Thailand to Sydney. When the two couriers arrived in Sydney they passed through the airport without being detected and they called Mr Harb to tell him that everything was 'okay'. Mr Harb came back after them and he met with the two couriers to collect the cold and flu tablets and told them he would pay them $10,000 each after he sold the tablets. After he collected the tablets Mr Harb sold them for about $200,000. He then provided Mr Lamella with approximately $5,000-10,000 to pay other Customs officers who had participated in the importation, and he divided the remaining $190,000 in half with Mr Lamella. Mr Katralis told the police about the same importation, that towards the end of 2009 Mr Lamella approached him to assist with what he referred to as 'two chicks' coming through the airport with steroids from Thailand in their bags. He said that he agreed to assist Mr Lamella. He was working in the baggage hall and he had a high degree of discretion as to which passengers would be searched. Mr Lamella offered him $5,000 in cash and some human growth hormone as payment and there were communications between the two of them as a result of involvement in that importation. The second importation occurred in March 2010. It involved two couriers, Stephen Monaco and Alexander Riccio. According to Mr Halt's and Mr Katralis's information Mr Harb had a conversation with Mr Lamella in early 2010 about finding two more people who would be prepared to travel to Thailand and return to Australia with cold and flu tablets containing pseudoephedrine. It was agreed Mr Harb would speak with a friend of his, Stephen Monaco, and Mr Lamella stated he would approach Mr Katralis about becoming involved. Mr Harb spoke to Mr Monaco. He agreed to travel to Thailand and was offered $10,000 to go to Thailand and return with the cold and flu tablets. Mr Monaco eventually could not find a woman to travel with him and he approached his friend Mr Riccio who agreed. Mr Harb told Mr Lamella that Mr Monaco had organised for Mr Riccio to travel to Thailand with him. There was a meeting between Mr Harb, Mr Lamella, Mr Katralis, Mr Monaco and Mr Riccio in which they discussed how the importation would occur. The two couriers were told that Mr Lamella and Mr Katralis would ensure they got what is referred to as a 'free run' through the airport and would not be searched by officers there. Mr Lamella explained to the two couriers that they would be provided with blank incoming passenger cards that had been stamped with a green AQ'S stamp (and this is the subject of one of the charges on the s 16BA form). The purpose of that stamp was to indicate that the person travelling was not required to be searched by AQ'S, which is the quarantine service, and had nothing to declare. Mr Lamella told the couriers how they were to use their legitimate incoming passenger cards and their pre-stamped cards to avoid being searched on the return flight. That included that Mr Lamella would tell them by text message during their return flight of the letter being used by Customs officers on the day they were coming into the airport. That was so that the letter on their cards would match the letter that was being used by Customs officers and they would be allowed to pass through the airport without being inspected. Mr Katralis also explained how to pack the bags of the cold and flu tablets between layers of clothing to avoid the X ray machines. Mr Lamella told the couriers he would send them a text message indicating it was clear to proceed and if they did not receive that message they were to rip the name tags off the luggage containing the tablets and leave the suitcases on the luggage carousel. Mr Harb then gave Mr Monaco a phone, subscribed in a false name, and gave him the money to book the flights to Thailand for himself and Mr Riccio. Mr Harb also gave Mr Lamella a phone to communicate with Mr Monaco. Mr Harb then flew to Thailand. On 4 March 2010 he attended a pharmacy and bought approximately 10 kilograms of cold and flu tablets containing pseudoephedrine. On 8 March 2010 the two couriers left Australia and flew to Bangkok. Mr Harb took the tablets to the hotel room a few days later where the two couriers were staying in order to pack them into the bags they were to bring back. He told them that Mr Monaco should call from a pay phone prior to leaving Thailand to let him know they cleared Customs. On the return flight Mr Monaco turned on the phone he had been given by Mr Harb, he received a text message and told Mr Riccio to record on his passenger card a different flight number from the one they were travelling on. Mr Riccio did that but he decided at that point not to collect the suitcase containing the cold and flu tablets. When they arrived at the airport Mr Katralis has said that he and Mr Lamella agreed that Mr Katralis would put himself on what is called the 'green gate', which is the point where passengers with nothing to declare exit, and Mr Lamella would ensure that the two couriers were directed to that gate. After arriving at the airport Mr Riccio disposed of his pre-stamped incoming passenger card which he had been given by Mr Lamella, by dropping it on the ground somewhere, and he presented his genuine passport and passenger card for stamping. He then told Mr Monaco, and Mr Lamella who was nearby, that he had lost his pre-stamped card. Mr Riccio did not collect the suitcase with cold and flu tablets from the baggage carousel and he walked away with only his carry on luggage. Mr Lamella then pretended to search Mr Riccio's carry on luggage and he discussed with him where he had lost his pre-stamped card. Mr Monaco collected both the suitcases with the cold and flu tablets, left by the 'green gate' and joined Mr Riccio in the arrivals hall. Subsequently Mr Riccio was not paid for his part in the importation because he had not collected his suitcase from the carousel. Mr Harb sold the tablets for about $200,000. Mr Katralis received a payment from Mr Lamella of about $19,200. Mr Lamella himself received about $85,000, similar to the amount he received in respect of the first importation. The third importation occurred on 17 June 2010. According to the information provided by Mr Harb and Mr Katralis, Mr Harb and Mr Lamella met in March or April 2010 and discussed a further importation with the person Sean Hutchinson and his girlfriend Ms Talbot as couriers. Hutchinson had met Mr Harb and Mr Lamella sometime during high school and they had socialised together since. Mr Harb met with Mr Hutchinson. Mr Katralis was contacted by Mr Lamella and he agreed to assist. Mr Hutchinson agreed to be involved and said he would talk to Ms Talbot and ultimately she was involved. She agreed to be involved because she had some financial difficulties and she was to be paid. Mr Hutchinson and Ms Talbot then met with Mr Harb, Mr Katralis and Mr Lamella. Mr Katralis and Mr Lamella told them the flights they should use for the trip to ensure that they would be on shift at the airport when they came in with the importation. Mr Katralis told the couriers how to pack the bags with the pills concealed between layers of jeans to avoid the X ray machines. There was a discussion about Mr Lamella using a phone to inform Mr Hutchinson if all was good and if not he was to pull the tags off the bag on the baggage carousel, flush the tags down the toilet and leave the airport with only his carry on luggage. Mr Lamella, Mr Harb, Mr Hutchinson and Mr Katralis all met at Mr Harb's place to discuss the importation. Mr Hutchinson was told to conceal his tattoos as he looked too much like a bikie. Mr Katralis explained the smart gate procedures at the airport so that they could avoid Customs officers. Mr Lamella explained how Mr Hutchinson and Ms Talbot should use their pre-stamped passenger cards and the letter of the day that he would send them, to avoid them being selected for a search, and Mr Katralis and Mr Lamella discussed the airlines and flights that should be used for the trip. Ms Talbot and Mr Hutchinson then flew to Thailand as did Mr Harb. Mr Harb purchased about 10 kilograms of cold and flu tablets from a pharmacy. He met Ms Talbot and Mr Hutchinson in Thailand, and took the tablets to their hotel room for them to pack into their luggage. He retuned on 15 June and on 17 June Ms Talbot and Mr Hutchinson came to Sydney Airport on a British Airways flight. Mr Katralis was positioned with Mr Lamella near a baggage carousel. He saw Mr Lamella speak with Mr Hutchinson on the carousel. He saw Mr Hutchinson and Ms Talbot pick up their bags from the carousel and walk towards the exit. Mr Harb then met them and took the tablets away from them. It is said that the tablets were stolen, there was difficulty in selling them and Mr Hutchinson receiving money, which meant that Mr Lamella received only $5,000 for his part in that importation. Mr Katralis was also paid and after some delay Ms Talbot was paid because of her financial difficulties." The respondent's case 9The respondent did not give evidence during the proceedings on sentence but a report from Phil Gorrell, a psychologist, was tendered together with a letter written by the respondent to the Judge and various character testimonials. 10The respondent was born on 17 February 1984 and was 25 years old at the commencement of his offending. His prior criminal history disclosed that he had one offence of self-administration of a prohibited drug in June 2009 for which he was placed on a s 10 bond for 12 months. 11The Judge noted that the respondent had joined the Customs Service when he was 22 years old and was regarded as having a bright future. Her Honour recounted that the respondent had been involved in drug use during the period of the offences and beforehand. He had used amphetamines from the age of 18, and between the ages of 23 and 25 he was using cocaine "probably everyday". The respondent was also using cannabis and amphetamines together with heavily abusing alcohol. Her Honour observed (ROS 12); "So no doubt those substances affected his judgement and caused him to divert from what was a positive Christian life to commit these offences." 12Her Honour referred to the reports from Pastor Gary Ring, the Regional Chaplain in Long Bay and Mr Gorrell, noting that "Pastor Ring assesses [the respondent] as a committed Christian and says he is providing spiritual guidance to other inmates in prison and assesses him as truly remorseful and repentant, as does Mr Gorrell" (ROS 12). 13The Judge observed that the respondent had the love and support of his family and friends. Some findings by the Judge 14The Judge found that approximately 10 kilograms of cold and flu tablets were imported in each of the three importations conducted between June 2009 and June 2010. The amount of pure pseudoephedrine in the three importations was estimated at between 4.8 kilograms and 7.35 kilograms. Her Honour stated that "an experienced chemist can convert one kilogram of pseudoephedrine into approximately 0.9 kilograms of methylamphetamine which is worth, wholesale, $250,000" (ROS 10). Her Honour noted that there was no evidence the respondent "knew about that ratio or yield" but she took "that into account as part of the potential harm from the importations" (ROS 10). 15The Judge found that the respondent took an "active and equivalent role" with Harb in the conspiracy although they played different roles in the importations. Her Honour observed that Harb sourced the pseudoephedrine and recruited the couriers whereas "[the respondent's] role was to use his knowledge of Customs procedures at the airport to instruct the couriers how to subvert those procedures, and he subverted them himself in the way that he placed himself at the airport at the appropriate times to assist the couriers" (ROS 10-11). 16Her Honour noted that the respondent "received a substantial financial reward for the first two importations, $85,000 in each case and was offered the same amount for the third but only received $5,000 because it was said that pseudoephedrine was stolen and could not be sold" (ROS 11). Her Honour said that the respondent "used and abused his position and knowledge as a Customs officer to commit the conspiracy offence and put the conspiracy into effect but the second charge...involves receiving a bribe which was the financial reward he received for performing his role in the conspiracy" (ROS 11). Her Honour observed that the offences were intertwined to that extent. 17The Judge found that both offences were serious offences of their type. 18The Judge accepted that the respondent was genuinely remorseful and was unlikely to re-offend. 19Her Honour said that the respondent's pleas of guilty in the Local Court indicated his willingness to facilitate the course of justice, that they were early pleas and indicated more than recognition of the inevitable. Her Honour found that the pleas warranted a discount of 25 per cent. 20As to the respondent's assistance to the authorities, the Judge said that the assistance had been assessed by the Australian Federal Police "as full and frank and of high value." Her Honour concluded that the assistance was "very considerable" (ROS 13). Her Honour noted that because of the respondent's assistance and because of his former occupation as a Customs officer, he had been held in maximum security in the Special Purpose Centre in segregation and locked in regularly. The Judge said "they are hard and restrictive conditions to serve a sentence in..." (ROS 14) and he was likely to continue to serve his sentence in those conditions. 21The Judge considered whether the total discount for his pleas and assistance should be more than 50 per cent but concluded that although his assistance was very considerable and custodial conditions harsh and restrictive there were not "very exceptional circumstances" which permitted a total discount beyond 50 per cent. Her Honour assigned a 25 per cent discount to the respondent's pleas of guilty and a further 25 per cent for assistance divided equally between past and future assistance. The total discount was 50 per cent. 22I turn now to the grounds of appeal. Ground 1: The learned sentencing judge erred in failing to assess properly, or failing to give due weight to, the objective seriousness of the offences. Argument 23The Director submitted that in committing each of the offences, the respondent abused his position of trust as a Customs officer and as a law enforcement official. The Director pointed out that the respondent used confidential knowledge and information he had derived from his employment as a Customs officer at Sydney Airport to ensure the success of an organised, planned and sophisticated series of criminal acts committed over a significant period of time, pursuant to a shared criminal design he and others had implemented. The Director stated that the respondent's offending was objectively very serious and the Judge had failed to properly assess, or give proper weight to, the objective seriousness of the offences. 24It was further submitted that the Judge's reasons and sentences imposed supported the conclusion that when assessing the objective seriousness of the offences, the Judge had not properly taken into account, or given proper weight to the gravamen of the conspiracy offence (count 1) and the aggravating circumstances of the bribery offence (count 2), when taken into account as an aspect of the overall conspiracy offence, especially when imposing wholly concurrent sentences. 25In oral address, the Director referred to the sentences imposed on Harb and Katralis and contended that her Honour's assessment of the respondent's offending "vis-à-vis Harb and Katralis" was not reflected in the sentence that she imposed. The Director argued by way of illustration that the Judge had found that the respondent was a more serious offender than Harb but had ultimately sentenced him to the same head sentence but with a lower non-parole period. This was said to demonstrate that the Judge had been mistaken even if she had used the sentences imposed upon the other offenders as "yardsticks". 26The Director provided a schedule of the charges and sentences imposed upon the respondent, Harb and Katralis. It is important to note that Harb and Katralis were not charged with the same offences as the respondent. Harb was charged with three counts being: (a) One count of importing a commercial quantity of a border controlled precursor, namely, 14.69 kilograms of pseudoephedrine between 10 August 2012 and 19 August 2012 contrary to s 307.11 Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 25 years and/or 5000 penalty units. (b) One count of giving a bribe to a Commonwealth public official contrary to s 141.1(1) Criminal Code (Cth) between 1 June 2012 and 19 August 2012. The maximum penalty for this offence is 10 years imprisonment and/or 10000 penalty units. (c) One count of deemed supply of a prohibited drug, namely pseudoephedrine, contrary to ss 25(1) and 29 Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is 15 years imprisonment and/or 2000 penalty units. 27The Director referred to Harb being sentenced for one importation whereas the respondent's offending involved three importations. The total net weight of the pseudoephedrine in Harb's single importation was 14.379 kilograms with a pure weight of 3.186 kilograms. Harb was sentenced by Sorby DCJ on 31 May 2013. His Honour assessed a 50 per cent total discount on sentence. Harb was sentenced on the first count to 8 years imprisonment, on the second count to imprisonment for 3 years 6 months and 12 months on the third count. The sentences for counts 1 and 2 were imposed concurrently with the sentence for count 3 being partially accumulated. A single non-parole period of 5 years was set for the Federal offences. The total effective sentence was 8 years 6 months with a non-parole period of 5 years 6 months. 28Katralis had been sentenced by Sorby DCJ on 26 April 2013. He was charged with one count of aid, abet, counsel or procure the importation of a commercial quantity of a border controlled precursor, namely pseudoephedrine, between 1 June 2012 and 19 August 2012 contrary to ss 11.2 and 307.11 Criminal Code (Cth) and one count of receiving a bribe as a Commonwealth public official contrary to s 141.1(3) Criminal Code (Cth). An offence of abuse of a public office to cause detriment and gain advantage contrary to s 142.2(1) Criminal Code (Cth) was included on a s 16BA schedule. 29The first count concerned the assistance provided by Katralis for Harb's single importation of pseudoephedrine with a total net weight of 14.379 kilograms. His Honour assessed a 50 per cent total discount for his plea of guilty and assistance to authorities. For the offence of aid and abet, Katralis was sentenced to imprisonment for 7 years and for the bribery offence, 3 years imprisonment was imposed. Both sentences were ordered to be served concurrently with a single non-parole period of 4 years being set. The total effective sentence was 7 years with a non-parole period of 4 years. 30The respondent contended that no aspects of the sentencing remarks were identified by the Director to show that the Judge failed to properly assess or to give proper weight to the objective seriousness of the offences. The respondent submitted that the Judge made it clear that the conspiracy was significant and the respondent had participated by abusing his position and knowledge as a Customs officer. 31As to the sentences imposed on Harb and Katralis, the respondent argued that by failing to appeal the sentence imposed on Harb, in circumstances where his offending conduct was objectively serious, the Crown had accepted the range of sentences available for matters involving such criminal conduct. The respondent contended that allowing the Crown appeal would have the consequential disparity relative to the unchallenged sentence of Harb and any increase in the respondent's sentence would be relatively small and amount to "tinkering". Harb's conduct was said to be of a sufficiently serious and similar nature to warrant a degree of comparison which the respondent submitted was properly done by the Judge. Consideration 32The first ground of appeal complains that the Judge failed to "assess properly" or failed to give "due weight" to the objective seriousness of the offences. This ground does not in its terms complain that the Judge failed to properly apply the principle of parity. This was acknowledged by the Director when he said in oral address that he was "not running it as a parity argument so much" but was looking at what her Honour found and those findings not being reflected in the sentence. 33It is well established that a complaint that a judge failed to attribute sufficient weight to an issue on sentence will not generally be a material error. As Johnson J said in Majid v R [2010] NSWCCA 121 at [40]: "The second, third and fourth grounds of appeal complain that the sentencing Judge had given "insufficient weight" to different aspects of the Applicant's subjective case in passing sentence. In Stephens v R [2009] NSWCCA 240, Grove J (McClellan CJ at CL and RA Hulme J agreeing) observed at [16]-[18], that there are inherent problems in a ground expressed in that fashion succeeding, as the ground tacitly concedes that some weight had been placed upon the factor by the sentencing Judge. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]." 34It cannot be doubted that these are serious offences. There were three importations of pseudoephedrine. The respondent used his specialised knowledge and position as a Customs officer to assist the couriers through Sydney Airport whilst they were in possession of the pseudoephedrine. His offending included providing instructions and information to Harb, Katralis and the couriers to ensure that the arrival of the couriers would coincide with shifts that he and Katralis would be working at the airport. He provided the couriers with information about the code of the day being used by Customs to mark incoming passenger cards and provided Harb and the couriers with pre-stamped incoming cards to enable the couriers to pass through Quarantine without inspection. The respondent had been paid $175,000.00. 35The Judge was plainly conscious of the objective seriousness of the offences which is reflected not only in her Honour's finding that they were serious offences of their type, but also in the undiscounted starting points of 16 years for the conspiracy offence (count 1) and 6 years for the bribery offence (count 2). 36The Director's complaint that proper weight was not given to the gravamen of the conspiracy offence and the aggravating circumstances of the bribery offence, especially when concurrent sentences were imposed has, in my opinion, no substance. During the proceedings on sentence, the Crown submitted to the Judge that there was an overlap in the criminality involved in counts 1 and 2, and the abuse by the respondent of his position in return for financial reward was an aggravating feature of count 1. The Crown put to the Judge that taken into account in this way, the sentences to be imposed for counts 1 and 2 could be wholly concurrent. 37In her sentencing remarks, the Judge found that the respondent used and abused his position and knowledge as a Customs officer to commit the conspiracy offence and the offences were intertwined. Her Honour noted that both the Crown and counsel for the respondent agreed that concurrent sentences should be imposed "given the overlap of the conduct between the two offences" and that was "the appropriate course given the intertwining of the conduct which constitutes the elements of the two offences" (ROS 15). 38The undiscounted starting point of 16 years for the conspiracy offence (including the offences on the s 16BA schedule) does not support the Crown's contention that insufficient weight was given to this factor of aggravation by the imposition of concurrent sentences. 39Submissions were made to the Judge on the question of parity with the sentences imposed on Harb and Katralis. These offenders had not been charged with the same offences as the respondent, but with the single importation of pseudoephedrine and bribery in 2012. This did not make the parity principle irrelevant but made the Judge's sentencing task more difficult: Green v R; Quinn v R [2011] HCA 49 at [30]; (2011) 244 CLR 462. Furthermore, it is evident that there were differences in the subjective circumstances of the offenders. 40The Judge considered the issue of parity in her remarks on sentence which included her Honour noting that the respondent's offending "involved three importations and this was more sustained than the one importation for which Mr Harb and Mr Katralis were sentenced" (ROS 16). Her Honour observed that the respondent's financial reward was greater than that received by Katralis and his role in putting the conspiracy into effect was "effectively equivalent to that of Harb in their joint enterprise which was put before me (which exceeds the offence for which Mr Harb was sentenced)" (ROS 16). Her Honour observed that the respondent's role was greater than Katralis in the importation for which he was sentenced. Her Honour said that she had regard to the sentences imposed upon Harb and Katralis in deciding how to sentence the respondent. 41The undiscounted starting point for Harb's sentence of 16 years for the single importation was the same as the undiscounted starting point of the respondent's sentence for the conspiracy offence. However, a matter of significant difference in their subjective cases was that the Judge accepted the respondent was genuinely remorseful and was unlikely to re-offend whereas Sorby DCJ, merely noted that Harb had expressed remorse to a psychiatrist, his family and friends. His Honour did not make a specific finding as to the degree of Harb's remorse or as to the unlikelihood of Harb's re-offending. The undiscounted starting point for Katralis' sentence for aiding and abetting the single importation (including the offence on the s 16BA schedule) was 14 years - two years less than the respondent's sentence for conspiracy. In my opinion, the undiscounted starting point of 16 years (including the offences on the s 16BA schedule) was within an appropriate exercise of the Judge's sentencing discretion although towards the lower end of an appropriate range. 42I am not persuaded by the Director that the sentences imposed on the respondent when compared to the sentences imposed on Harb and Katralis demonstrate that the Judge failed to give due weight to the objective seriousness of the offences. 43Consideration of the single non-parole period of 4 years will be deferred until Grounds 3 and 5. Ground 5 specifically raises this issue. 44I would reject Ground 1 of the appeal. Ground 2: The learned sentencing judge failed properly to take into account, or failed to give due weight to, the two additional serious offences to which the Respondent admitted and requested be taken into account, pursuant to s 16BA of the Crimes Act 1914 (Cth) when imposing the sentence for Count 1. Argument 45The Director stated that the two additional offences that were to be taken into account pursuant to s 16BA Crimes Act (Cth) concerned the conduct of the respondent in obtaining and providing the pre-stamped incoming passenger cards for the couriers and in making payments to Karalis (and other Customs officers) for their involvement in the importations. The Director contended that these offences were serious in their own right and the sentence imposed for the conspiracy offence indicated that the Judge did not properly give effect to the two offences listed on the s 16BA schedule. 46The respondent submitted that these offences were properly taken into account by the Judge. It was pointed out that her Honour had noted specifically the respondent's conduct in relation to the blank incoming passenger cards and to corruptly involving Katralis. Consideration 47Once again, the Director's complaint is that the Judge "failed to give due weight" to the offences on the s 16BA schedule and the observations made at [33] above are apposite to this ground. 48Section 16BA Crimes Act (Cth) permits the court, with the consent of the prosecutor, to take into account other Federal offences to which an offender has pleaded guilty. There is, in my view, no reason to think that Spigelman CJ's approach in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 to New South Wales offences included on a Form 1 does not apply to Federal offences included on a schedule. Spigelman CJ considered at [42] that offences included on a Form 1 are to be taken into account to increase the penalty otherwise appropriate by giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution for serious offences. 49The Judge expressly referred to the respondent's conduct that constituted the two offences on the s 16BA schedule. Her Honour recognised that the offence, contrary to s 142.2(1) Criminal Code (Cth), involved the respondent affixing an official stamp to blank passenger cards to which she referred in her recitation of the facts and the offence contrary to s 142.1(1) Criminal Code (Cth) concerned the offer of payments to Katralis in the course of carrying out the conspiracy. As I have previously found, the undiscounted starting point of 16 years for the conspiracy offence, including the offences on the s 16BA schedule was within an appropriate exercise of her Honour's sentencing discretion. I am not persuaded that the Judge failed to give due weight to the offences on the s 16BA schedule. 50I would reject Ground 2 of the appeal. Ground 3: The learned sentencing judge erred by imposing sentences that failed to reflect properly or give due weight to the need for general deterrence. Ground 5: The learned sentencing judge erred by imposing a 50% non- parole period of 4 years as the minimum term required to be served, without regard or due regard to the matters in s 16A(2) of the Crimes Act 1914 and all other circumstances, including the substantial discount already given for the guilty pleas and assistance. 51It is convenient to deal with Grounds 3 and 5 together. The observations made at [33] above apply to Ground 3. 52The next complaint by the Director was that the ultimate sentence supported the conclusion that the Judge must have failed to give proper regard to the importance of general deterrence. The Director submitted that offences involving bribery or corruption of a Commonwealth public official, especially a law enforcement official, to facilitate the commission of such serious offences required the principle of general deterrence to be a paramount consideration in the exercise of the sentencing discretion in relation both to the conspiracy offence and the bribery offence. The Director argued that the non-parole period of 4 years imprisonment did not act as a sufficient deterrent to other like-minded offenders. 53The Director observed that it was difficult to determine why a minimum term of 4 years had been fixed as the Judge had not provided reasons for that conclusion. It was submitted that it was open to conclude that the Judge had double counted the respondent's subjective matters in determining the notional starting point of the sentence in arriving at the discount for the guilty pleas and assistance, and in determining the minimum period to be served. Given the grave offending involved, the final result of 4 years non-parole was low enough to "shock the public conscience". 54The respondent submitted that the undiscounted starting point of the sentence was 16 years and the focus should not be on the 4 year non-parole period as the actual sentence of imprisonment was 8 years which was a sufficient deterrent. 55The respondent referred to her Honour's findings on remorse and contrition, his likely rehabilitation and hardship in custody. Further reference was made to the timing of the plea and the assessment of the respondent's assistance to be "of high value". The respondent submitted that when considering the submissions made to the Judge that the sentences imposed were to be served concurrently, no error was apparent from the sentence ultimately imposed. Consideration 56Section 16A(1) Crimes Act (Cth) requires the court to ensure that the sentence "is of a severity appropriate in all the circumstances of the offence". In determining what will be an appropriate sentence, the court is obliged to take into account general deterrence: DPP (Cth) v El Karhani (1990) 21 NSWLR 370. An appropriate sentence embodies both the head sentence and the non-parole period. 57In the present case, general deterrence is a matter of fundamental importance in determining an appropriate sentence. The maintenance of Australia's border security is dependent upon the integrity of Customs officers who are the sentinels of the system. A Customs officer is in a position of authority and trust. Customs officers in the position of the respondent are entrusted with specialised knowledge of the detection and clearance processes of the Australian Customs and Border Protection Service. The abuse by a Customs officer of the trust reposed in him by misusing his knowledge to facilitate the importation into Australia of border-controlled precursors and prohibited drugs is a very serious crime, as is the bribery of a Customs officer. These offences undermine the very core of our Nation's border protection and other Customs officers must be deterred from engaging in similar conduct. 58The Judge was conscious that general deterrence was to be taken into account as she said (ROS 2): "In sentencing Mr Lamella I am required to take into account the matters in s 16A(2) of the Commonwealth Crimes Act and general deterrence, which is important in sentencing for offences such as these, and impose a sentence of severity appropriate in all the circumstances." 59In my opinion, the Judge did not fail to give due weight to the need for general deterrence when she fixed the undiscounted starting point of the conspiracy sentence. However, the non-parole period of 4 years is another matter. 60When sentencing for a Federal offence, there is no 'norm' or usual ratio between the head sentence and the non-parole period: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [44]. In Hili, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) considered the proper approach to the determination of the minimum term of a sentence imposed under the Crimes Act (Cth). Their Honours said at [40]-[41]: "The Court of Appeal in Ruha examined what considerations bear upon fixing the length of a pre-release period under a recognizance release order. As the Court of Appeal rightly said, ss 16A(1) and (2) 'make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment'. In determining what recognizance release order is to be made, s 16A(1) requires the sentencing court to 'make an order that is of a severity appropriate in all the circumstances of the offence'. What is the 'severity appropriate' is determined having regard to the general principles identified by this Court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen. In the present cases, one consideration critical to the making of recognizance release orders was the determination of what was the period of imprisonment that justice required that each offender must serve in custody. And as the Queensland Court of Appeal pointed out in Ruha, again correctly, 'the necessary deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and also in any provision for earlier release from custody.'" 61In her sentencing remarks, the Judge did not provide reasons for the non-parole period being 50 per cent of the head sentence. 62Her Honour was entitled to take into account the respondent's personal circumstances, including his prospects for rehabilitation in fixing the non-parole period. However, in my respectful opinion, her Honour overlooked the obligation to ensure that the minimum period of mandatory custody appropriately reflected the criminality involved in the respondent's offending and did not lose the important significant effect of general deterrence. 63In my view, a non-parole period of 4 years neither appropriately reflects the seriousness of the respondent's offending, nor does it ensure that the respondent is being adequately punished for his offences and does not take into account the fundamental importance of general deterrence. 64I propose to uphold Ground 3 (so far as it relates to the non-parole period) and Ground 5 of the appeal. Ground 4: The learned sentencing judge erred in the application of sentence discounts for the Respondent's guilty plea and assistance to authorities by applying a single step combined discount of 50% which was applied to the notional head sentence, giving undue weight to those considerations, or otherwise resulting in sentences that were not of a severity appropriate in all the circumstances of the offences. Argument 65The Director noted that the Judge had applied a "single step" discount of 50 per cent. The Director submitted that the end result was wrong because the approach taken of a single step discount, which is not itself prohibited, was not applied with the degree of care required and the overall sentence was not reasonably proportional with the grave criminality involved. It was further contended that the notional starting point of 16 years imprisonment was too low to enable a combined discount of 50 per cent to be applied. 66In oral address, the Director submitted that the end result of the sentence after the discount was grossly inadequate and an affront to community standards. 67The respondent argued that the 16 year starting point was a clear recognition of the seriousness of the criminal conduct and the ratio of 50 per cent was not unduly disproportionate. Consideration 68In written submissions before the Judge, counsel for the Crown stated that the respondent "has provided very significant co-operation and assistance to law enforcement agencies in the investigation of the importation of 15 March 2010 and other offences" (AB 109 par 36). The Crown submitted that "the discount to be given for the [respondent's] assistance should be of a "high order", but, unless the contrary is shown, the circumstances are not so exceptional that the combined discount for the guilty plea and assistance would exceed the 50% discount ..." (AB 109 par 38). 69In oral address, the Crown put to the Judge "that it would be appropriate that your Honour give a combined discount if your Honour was minded to do. The Crown's submission is it wouldn't be one that would exceed 50%" (AB 12). 70The Crown did not make a submission as to the method of calculation of the discount. It was not put to her Honour that a "single step" discount should not be applied. A statement of assistance was provided to the Judge which detailed the extent and value of the respondent's assistance to the law enforcement agencies. 71The Judge was required to take into account "the degree to which the [respondent] has shown contrition for the offence": s 16A(2)(f) Crimes Act (Cth) and "if the [respondent] has pleaded guilty to the charge in respect of the offence - that fact": s 16A(2)(g). Her Honour considered that the pleas entered in the Local Court warranted a discount of 25 per cent. The Director did not submit to this Court that a discount of that order was not open to the Judge. 72Section 16A(2)(h) obliged the Judge to take into account "the degree to which [the respondent] has co-operated with law enforcement agencies in the investigation of the offence or of other offences." 73The Judge was aware that a combined discount for a guilty plea and assistance should not normally exceed 50 per cent and a combined discount exceeding 50 per cent should be reserved for exceptional cases: SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19; AAT v R [2011] NSWCCA 17. Her Honour gave careful consideration to the level of the respondent's assistance and concluded that it was very considerable. Her Honour recognised that because of that assistance and the respondent's former occupation as a Customs officer, he had been held in maximum security in the Special Purpose Centre and his custodial conditions were hard and restrictive. However, her Honour concluded that this was not an exceptional case justifying a discount beyond 50 per cent. Her Honour assessed a discount of 25 per cent for the respondent's assistance, which was divided equally between past and future assistance. 74I do not detect any error in the Judge's approach to the combined discount. 75The Director did not argue that a discount assessed at 25 per cent for assistance was not open to the Judge. The Director's principal complaint was that the end result was grossly inadequate and an affront to the community. 76Having considered the application of a combined discount, a sentencing Judge is required to stand back and ask whether the resulting sentence is just and reasonable, not only to the offender but also to the community at large: SZ per Howie J at [5]. 77I am not persuaded by the Crown that the respondent's resulting head sentence of 8 years imprisonment after application of the 50 per cent discount was not just and reasonable to the community at large. 78The Director accepted that neither s 16A(2)(h) nor any other provision in the Crimes Act (Cth) mandated a two-stage approach to the application of a combined discount. No method or manner in which the discounting is to be achieved in Federal offences has been prescribed. In my view, as in sentencing for NSW offences, the approach to be taken to the application of a combined discount in Federal offences remains a matter of judicial discretion. 79I would reject Ground 4 of the appeal. Ground 6: The sentences imposed are manifestly inadequate. Argument 80The Director contended that the sentences imposed clearly fell outside the range of permissible sentence that could reasonably have been imposed by a sentencing judge in all the circumstances of the offence and of the respondent. 81The respondent argued that the Crown's obligation to prove that the sentence was not within the permissible range was undermined by the failure of the Crown to establish error in her Honour's reasoning or to prove that there is a range of sentences that show some degree of disparity with the respondent's sentence. It was further submitted that the ground of manifest inadequacy was undermined by the failure of the Crown to appeal Mr Harb's sentence on the basis of manifest inadequacy. Consideration 82The head sentence of 8 years was within an appropriate exercise of the Judge's sentencing discretion although towards the lower end of an appropriate range. I have found, in my respectful opinion, that her Honour erred in fixing a non-parole period of 4 years. The non-parole period was manifestly inadequate. In all the circumstances, a non-parole period of 6 years was called for. 83The question remains as to whether the Court should intervene and re-sentence the respondent. There is a residual discretion to decline to interfere even though the non-parole period is manifestly inadequate. 84In Green, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] 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." Their Honours at [36] described the primary purpose of laying down principles as a "limiting purpose" and said: "It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion." 85Their Honours observed at [43] that other circumstances may combine to produce injustice if a Crown Appeal is allowed. Their Honour's said at [43]: "They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." 86In an affidavit sworn 1 June 2014, the respondent refers to the great deal of stress and anxiety that he has suffered since being advised that the Director was considering an appeal. Nevertheless, the respondent has continued to provide assistance to the Australian Federal Police pursuant to his undertaking that has included attending the Australian Federal Police headquarters on a number of occasions to prepare a further statement and giving evidence in committal proceedings. He remains committed to giving evidence even though it will increase his levels of stress and anxiety. The respondent is currently held in the Special Purpose Centre at the Long Bay Correctional Centre. 87In a report dated 30 May 2014 (annex A to the affidavit of Stephen Tully), Mr Gorrell refers to the impact that the appeal has had on the respondent. Mr Gorrell recounts that when sentenced by the Judge, the respondent "recognised his life's errors and accepted that punishment was required" (annex A p 6). The respondent was going to make his time in custody a positive experience and was keen to assist the police. When Mr Gorrell assessed the respondent on 30 April 2014 he was suffering depression and anxiety. Mr Gorrell opines that the respondent is not coping and is in need of psychiatric treatment. Mr Gorrell states (annex A p 6): "The precipitant to Mr Lamella's current state of mental health relates to the stress of his sentence being appealed; the fact that he is located in a maximum security gaol with the restrictions thereof when he knows that he could be, due to his classification, in a far more comfortable minimum security gaol; and due to his concern that the police are betraying him whilst saying all will be okay." 88The material before the Judge referred to the positive steps that the respondent was taking towards rehabilitation. The Judge accepted that he was genuinely remorseful and was unlikely to re-offend. The continuation of his assistance to the authorities, notwithstanding the Director's appeal, supports a finding of substantial progress towards rehabilitation. His mental health has deteriorated as a consequence of the appeal. 89In my view, the Court should exercise its residual discretion not to intervene. Accordingly, I propose that the appeal be dismissed. 90GARLING J: I agree with Price J. 91BELLEW J: I agree with Price J.