Consideration of relevant principles
23 The High Court has given guidance on the sentencing of drug offenders: see Wong v The Queen (2001) 207 CLR 584; The Queen v Olbrich (1999) 199 CLR 270. Wong was an appeal in which a guideline provided by this Court was set aside. (see R v Wong & Leung (1999) 48 NSWLR 340). The High Court was concerned to emphasise that the weight of the narcotic imported was not the most important factor to be considered when fixing a sentence. The Court was apparently influenced by the consideration that an offender who is caught up in the illegal activity may not, in many cases, be aware of the amount of drug proposed to be imported. However, the size of the importation is a relevant factor to which the sentencing court must have regard. It will have increased significance when the offender is aware of the amount of drugs to be imported. The majority said in Wong at 607-608:
" In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation R v Olbrich (1999) 199 CLR 270, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act , which should be taken into account in formulating applicable principles."
24 See also R v MacDonnell (2002) 128 A Crim R 44 at [33] discussed in Vinh Hai Truong (2006) NSWCCA 318; R v Nguyen; R v Pham; R v Vu. In R v To NSWCCA 362; 157 A Crim R 80 where Howie J said at [110]:
"There is nothing in the passage from Wong v The Queen (2001) 207 CLR 584 quoted by Grove J at [45] that suggests that in an appropriate case the amount of the drug involved in the 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."
25 Just as inappropriate emphasis on the amount of the drug imported may lead a sentencing court into error so may problems emerge when a sentencing court attempts to categorise the role of the offender in the criminal enterprise. The problem is that in most cases the full nature and extent of the enterprise is unlikely to be known to the sentencing court. This difficulty is apparent in the present case where the nature of the enterprise in Hong Kong and the respondent's role in that enterprise is little understood. The application of labels or classification of offenders eg "courier" or "principal" may obscure the assessment of what the offender did leading to an erroneous sentencing process: see Olbrich [19].
26 It seems to me important to bear in mind that the offence for which an offender is being sentenced is a breach of Australian law by the importation into Australia of the relevant drugs. Whatever be the international arrangements and the complexities of the chain which makes the drugs available for importation it is the criminality involved in that importation which must be identified. There may be a "Mr Big" who is the mastermind of the complete enterprise. But this may not mean that the role of another who is subordinate to "Mr Big", but who has the primary responsibility for effecting the importation, is reduced to that of a "middleman" who must be sentenced at a middle level of responsibility for the offence. The nature and extent of the criminal networks which exist and are capable of accumulating tens of kilograms of drugs for importation may be known or, at least, partially understood by those involved in the criminal investigation process. However, for want of admissible evidence they are unlikely to be known to a sentencing judge in a particular case. But in my view it is not against this hypothesised mastermind - which the criminality of the person who effects the importation into Australia must be measured. The fact that another may be the mastermind does not mean that the person responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
27 It must be remembered that the offence is "importing" and the criminality of the offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. The fact that an enterprise, even a large scale enterprise, must be created overseas before the drugs are available for importation is of marginal relevance to an understanding of the criminality of those who actually effect the importation.
28 In the present case the amount of drug imported was of a high order, 76.3 kilograms of pure heroin. Although the respondent reported to Ah Keung and was apparently subject to his direction he was responsible for making the administrative arrangements to allow the importation. The respondent made all the physical arrangements, including the formation of the importing company, leasing of warehouses, effected a trial run and made arrangements for the movement and storage of the drugs in Australia.
29 The central finding by her Honour which is attacked by the Crown is the identification of the respondent as being at the "middle level of importance." This finding was apparently based on two matters. Firstly, that after the containers had been brought to Sydney, but before any attempt to release the drugs had been made, the respondent went to New Zealand "to test the waters." As I understand the position the sentencing judge accepted that the trip to New Zealand was made to see if the respondent was a person of interest to the authorities and in the contemplation that if he was, he may be arrested. No doubt this step was considered to be prudent before attempting to retrieve the drugs which, if the authorities had been alerted, might be lost. The second reason which influenced the trial judge's decision was the fact that the respondent returned to Hong Kong before any attempt had been made to release the drugs from the containers.
30 Although I accept that the respondent was not the exclusive mind or even a controlling mind of the entire criminal enterprise I am satisfied that he played a critical role in the importation. I have previously described his role. In so doing he accepted a risk of discovery by the authorities which, it may be assumed, a person in ultimate control of the enterprise may not have willingly accepted. However, this does not to my mind diminish the significance of his role in the commission of the importation offence.
31 Furthermore, I do not believe that the fact that he left Australia before the drugs were retrieved from the container diminishes his role in the enterprise. No doubt a decision was made that the respondent should not be further exposed to the risk of detection. To my mind this fact is consistent with him having a more significant role in the enterprise than middle management. It indicates that, although it was necessary to expose him to some of the risks, once arrangements for the retrieval and, presumably, the distribution of the drugs had been made, he left Australia, rather than be further exposed to the risk of detection.
32 It is true, as the respondent emphasised, that there is no evidence of the remuneration which the respondent was to receive for his part in the enterprise. However, it is inconceivable that he was not to receive a substantial reward, even if not a share of the "profit" (see R v Kaldor 150 A Crim R 271 [103]).
33 In these circumstances I am satisfied that it was not open to her Honour to describe the respondent as having a "middle level" of responsibility for the importation. Although I accept that others were responsible for masterminding the operation his own role was essential, extended over a significant period of time and involved the management of complex transactions culminating in the deposition of the containers with the drugs in a warehouse in Sydney. On any view of the matter he carried out a senior management role of critical significance to the success of the enterprise.