R (Cth) v Madgwick

Court of Criminal Appeal (NSW)|2018-10-24|Before: Hoeben CJ, Davies J, Button J

Solicitors: Commonwealth Director of Public Prosecutions - Appellant Crown One Group Legal - Respondent File Number(s): 2014/309022 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 February 2017 Before: Frearson SC DCJ File Number(s): 2014/309022

Offence and sentence The respondent pleaded guilty to one count of aid, abet, counsel or procure the importation of a commercial quantity of a border controlled precursor, namely pseudoephedrine, between 6 January 2014 and 21 October 2014, contrary to s 307.11 and 11.2(1) of the Criminal Code (Cth). The maximum penalty for that offence is imprisonment for 25 years and/or a very large fine.

His Honour Judge Frearson SC, who was the sentencing judge, referred to the date and effect of the plea of guilty as follows: "It was a committal for sentence on 15 September 2015 so the offender is entitled to a discount for the willingness to facilitate the administration of justice and there are other matters to be considered in conjunction with that ultimately." It was accepted by the Crown that the respondent entered his plea of guilty at the first reasonable opportunity.

Sentence proceedings

In September 2013 the Australian Federal Police (AFP) commenced an investigation into the activities of Clinton Ribbon, Craig Harker and Keith Weafer relating to the importation of border controlled precursors into Australia. As a result, the respondent came to the attention of the AFP.
Ribbon was based in Adelaide as a director of a Thailand based company Complete Chemical Manufacturing Limited (CCM). This company was located in Bangkok. Harker was a business partner who managed the Thailand operation. Ribbon and Harker were associates of the Thailand resident, Weafer. The respondent was also an associate of Weafer. CCM was involved in the production and manufacture of a variety of chemical products. The chemicals thus produced were made into cleaning products.
On 15 November 2013, the respondent left Sydney for Thailand and during this trip met with Weafer. In meetings, the respondent and Weafer discussed the possibility of the respondent becoming the Australian distributor of CCM products. Telephone intercepts in December 2013 revealed that Weafer had informed Ribbon and Harker that he had identified a person in Sydney who was interested in becoming an Australian distributor of the products and that this person was the respondent. Telephone intercepts revealed that the respondent had expressed an interest in becoming a distributor. He was subsequently provided with documentation which enabled him to set up a business.
On 25 January 2014, the respondent registered a company Complete Chemical Solutions Australia (CCSA). The respondent was the sole director. CCSA was involved in importing and distributing into Australia the products of CCM which were manufactured in Thailand. In April 2014 an import licence was obtained by CCSA to import industrial chemicals.
Between April and June 2014, seven shipping containers arrived at Port Botany consigned to CCSA. They were delivered to the respondent's warehouse. The consignments were declared as containing various CCM cleaning products and chemicals. The first three containers were subject to a customs examination. No prohibited items were located. The last four were not subject to any examination.
On 27 June 2014, the respondent confirmed to Weafer that he would be arriving in Thailand on 14 July 2014. On 30 June 2014, the respondent informed Ribbon that he would be travelling to Thailand on 14 July and Ribbon indicated that he would be there.
On 14 July 2014, the respondent departed from Sydney for Bangkok. On 24 July 2014, he returned to Sydney. On 25 July 2014, a particular shipping container was loaded onto a ship in Bangkok. The shipping container was one of two sent by CCM, with CCM as the consignor and CCSA as the consignee. The weigh bill for the container recorded the contents as 20 pallets and 884 other items including something called "Bactex SP 10%".
On 13 August 2014, the shipping container company emailed the respondent and advised that the two 20 foot containers were due to arrive in Sydney on 18 August. On 14 August 2014, Ribbon arrived at Sydney airport and was picked up by the respondent.
On 18 August 2014, an invoice for clearance fees indicated an arrival date for the containers of 18 August. On that date, two 20 foot containers arrived at the Sydney container facility at Port Botany and they were examined by customs. No prohibited imports were detected in the second container.
Pallets, containers and boxes within the first container were x-rayed which revealed anomalies with the consignment. Samples were taken and they were labelled "bactex". When they were tested, they returned positive readings for pseudoephedrine hydrochloride and ephedrine. The AFP took possession of ten five-litre bottles that were consigned to the respondent's business and they were found to contain the prohibited substance. The shipping container was repacked and a controlled operation was authorised. Three five-litre containers were examined and a substitution and reconstruction took place.
Subsequent forensic analysis revealed a total weight of 48,365g (or 48.365 kgs) of pseudoephedrine with a purity of 27.8 per cent. The calculated pure weight was 13.445kgs.
On 20 August 2014, a telephone call between the respondent and Ribbon was intercepted. The respondent informed Ribbon that he was waiting for the two containers because they were stuck on the wharf due to bad weather. On 21 August, the reconstructed container was delivered to the respondent's warehouse at Chipping Norton. On 23 August, the respondent and Ribbon spoke on the phone with the respondent confirming that the containers had been delivered and had been unpacked.
On 3 September 2014, a telephone conversation between Ribbon and Harker was intercepted. In it Ribbon told Harker that the respondent had a meeting tomorrow and "hopefully he gets rid of all the floor cleaner". In that conversation, there was reference to "floor polish" and "stripper".
On 6 September 2014, Harker contacted Ribbon by phone and during the conversation, Ribbon said to Harker something to the effect: "the turnover is there ... Kris got rid of his, there would be another eight containers ordered already to replace them, if you know what I mean".
On 23 September 2014, another telephone conversation between the respondent and Ribbon was intercepted. Ribbon asked the respondent how he was doing with the "other projects". The respondent replied "he's not having a lot of fun, I just can't make it work and I don't know why."
On 24 September 2014, a telephone conversation between Ribbon and Harker was intercepted. They were discussing the problem which the respondent had in not getting "it" to work.
On 3 October 2014, Ribbon and Harker spoke by telephone and during the conversation, Ribbon said that he hoped that the respondent could get rid of the floor polish.
On 21 October 2014 search warrants were executed at the Chipping Norton address and also at an apartment at Cronulla.
The respondent attended the Chipping Norton address during the execution of the search warrant. He declined a formal interview. During the search of the residential premises, police located and seized three containers of liquid in the garage and three containers labelled Bactex also in the laundry. These were the substituted containers.
Against that factual background, his Honour found that the respondent had unpacked the containers and inspected the bottles containing the pseudoephedrine. Between September and October, he had unsuccessfully attempted to convert what he thought was the pseudoephedrine from liquid into a dried substance.
The sentencing judge sought to assess the role of the respondent in the organisation. In doing so, his Honour focused on what the respondent actually did. His Honour accepted that the respondent had extensive dealings with the organisers and accepted that he played a critical role in the importation. His Honour was satisfied that he did all the things that the facts indicated, i.e., travelled to Thailand for ten days, left one day before the shipment of the container from Thailand to Australia, met with the organisers, used his business, was the consignee of the container and was the contact person for the shipping company. His Honour further noted that the respondent paid the customs clearance fees, was the ultimate recipient of the container and had accessed and retrieved what he believed was inside. His Honour noted that the respondent attempted to extract the pseudoephedrine, engaged in coded conversations and sought assistance to extract the precursor.
His Honour took into account the quantity of precursor which was involved. His Honour found that while the amount was not decisive of criminality, it remained one of the factors that was relevant to the seriousness of the offending. His Honour accepted that the respondent did not know the precise quantity but that he did realise that it was substantial.
Pre-sentence reports before his Honour set out the respondent's family and social circumstances. He did not have much by way of a criminal record and had been living with his de facto wife until the time of his arrest. He did, however, have quite a dysfunctional upbringing, being abandoned by his parents as a baby in Victoria. He resided in a boys' home until he was adopted at the age of three. His adoptive father and mother abused alcohol. His adoptive father was a gambler and from the age of eight, the respondent resided in a caravan at the back of the adoptive parents home.
The respondent reported that he suffered from mental anguish at the hands of his adoptive father. He married in 2003. The marriage broke down in about 2011. The relationship had deteriorated over a period of time. His ex-wife reported that he actually had a couple of breakdowns due to work stress and pressure. He formed a new relationship after the breakdown of his marriage and has had regular contact with his children. He had a good work history. He was employed in the motor trade for 16 years before commencing his cleaning products supply business in 2013. He had been employed in his present occupation since January 2016 and earned approximately $1,500 gross per week. He was aged 45 at the time of sentence.
The respondent had a history of substance abuse. He commenced using cocaine recreationally at the age of 39 and progressed to using it two or three times a week before the breakup of his marriage. He acknowledged the ongoing use of steroids. He had been involved in body building. The respondent acknowledged that he was in possession of the drugs found, as identified in the facts, and acknowledged his involvement in the importation. He said that this had occurred because of his interest in chemical manufacturing and distributing.
The respondent asserted that his role in the importation was minimal and that he was subject to a threat to his personal safety should he not be willing to assist. The presentence reports noted that he appeared to be naïve in that he seemed to have followed through with the offence with a view to putting the situation quickly behind him and he now regretted taking that approach.
His Honour was provided with material that suggested some duress, particularly in a statement by the respondent. It set out an association between those involved with the importation and a particular high ranking politician in Thailand and what happened in relation to that. There was an apprehension of some kind of threat. The respondent said that he was apprehensive and feared for his safety and indeed, his life.
His Honour was prepared to accept that there was an element of non-exculpatory duress involved in the offending. Nevertheless, his Honour was only prepared to take that into account as one of a number of circumstances relating to the offending, and did not consider that duress would provide any substantial amelioration of the sentence which was otherwise appropriate.
There were two reports from Associate Professor Woods, a psychologist. Professor Woods diagnosed a chronic and severe stress-related disorder, a major persistent depressive disorder, a recurrent major depressive episode and a poly-substance misuse disorder. The report also dealt with aspects of duress and asserted that the respondent was effectively coerced into becoming involved in the offending.
His Honour did not regard what the respondent told Dr Woods as entirely accurate. In particular, his Honour did not accept that the respondent had engaged in the importation without any expectation of a financial benefit. The reports confirmed the history otherwise given of substance abuse.
In conclusion, his Honour regarded much of the report from Professor Woods as "wishy washy". His Honour was not persuaded that the respondent did not have a very substantial appreciation that what he was doing was wrong and its consequences. His Honour did, however, accept that the respondent had made considerable progress in rehabilitation, despite his attendance at formal rehabilitation programs not being successful.
Without going into detail, his Honour took into account Exhibits D and E, which detailed past and present co-operation with law enforcement authorities. The assessment by police of the value of this co-operation was "high". His Honour also noted an undertaking for future co-operation. His Honour found that the assistance involved "a very, very substantial co-operation indeed". In particular, his Honour noted that there was one person from the syndicate at liberty which led to certain consequences in terms of the respondent's apprehension for his safety. His Honour regarded that concern as understandable.
His Honour concluded that the respondent was a person of otherwise good character, with many commendable qualities. Recent urine analysis results indicated that he was not taking any drugs at the time of sentence.
His Honour summarised his conclusions as follows: "I appreciate that I sentence in accordance with, and taking account of the matters in Pt 1B and the matters in 16A(2) particularly. I must impose a sentence appropriate to all the circumstances. I have to have regard to the nature and circumstances of the offence, the maximum penalty, the role of the offender which I have already articulated. I do accept that he was some type of trusted intermediary for the syndicate, though I acknowledge that it is a label which I should not be distracted by. I accept he had a critical role and I accept that this was quite a substantial quantity. I appreciate the quantity is not decisive. I conclude that he must have been in it for some financial reward, direct or indirect. But having said that financial reward is implicit in these type of offences, so I do not double count it. I am required to take into account deterrence, general and specific, the guilty plea, the level of co-operation. As I said, I repeat it is a very high level here and I accept that as has been submitted co-operation has an objective value and a subjective value. It has the consequence of making the offender's custody more onerous and I accept that. I must impose adequate punishment. I have to take into account the age, character, antecedents of the offender. I do take into account that whilst he has does not have a profoundly disadvantaged background, he has a background of substantial disadvantage, particularly because of the adoption issue. I do take into account hardship on his family. It is what would be expected ordinarily in this type of case. … It has been submitted which I accept that there is a very high level of cooperation here, past, present and future. I accept that custody will be more onerous. I accept his endeavour to turn his life around in relation to drug addiction. I accept that he did not initiate the venture, it is said he just did not withdraw from it, that is true in a way. I accept there is some element of coercion. I accept he has good prospects, he is unlikely to re-offend. I accept he is contrite. It is submitted that the ultimate discount here for the cooperation and the plea and the envelopes, it should be a very high one, an unusually high one. It is submitted I do not really have any constraints, and I should just look at it and assess it for what it is and it would be very high and indeed the figure of 65% was mentioned and even higher at one point in the submissions." (Sentence judgment, 11.2-12.7)
It was against that background that his Honour imposed the sentence previously referred to.

Events after the sentence proceedings

The respondent accepted that at the time that he gave an undertaking to provide future co-operation to the authorities he understood that he could have his sentence increased if he failed to comply with the undertaking (Appeal transcript, 9.39).
On 20 April 2017, in accordance with his undertaking, the respondent met with Mr Pirrie, barrister, and Ms Tanda, solicitor, who were representing the Commonwealth DPP in the prosecution of Mr Ribbon. At that meeting, the respondent: 1. Clarified and elaborated on parts of his statement; 2. Went through a number of intercepted telephone calls with Mr Pirrie and Ms Tanda and was asked by them to identify the persons speaking in those calls. 3. Provided his email address and password so that the AFP could access emails referred to by him in his statement.
On 28 April 2017 he was scheduled to appear via AVL in a "Basha enquiry" relating to the prosecution of Mr Ribbon but the AVL did not work. It was on that occasion after the malfunction of the AVL equipment that the respondent advised Agent Walther of the AFP that he was no longer prepared to give evidence against Mr Ribbon, or to provide any further assistance in relation to his prosecution.
Despite having provided Agent Walther with that information, he was told that on 16 February 2018 he was to be escorted from prison in New South Wales to appear in court in Adelaide. That duly occurred on 16 February. At Adelaide Airport he was escorted by South Australian Corrective Services and AFP officers to the Yatala Labour Prison where he was placed in a cell in the maximum security division.
On 23 February 2018 he was taken from his cell to meet Agent Walther and a female AFP officer. He again told Agent Walther that he was not going to co-operate any further in the matter. Mr Pirrie and Ms Tanda then entered the room and the respondent told them that he was not prepared to provide any further co-operation in the Ribbon prosecution. He was then returned to the Yatala Labour Prison. On 16 March 2018 an email was sent to the Commonwealth DPP by the respondent's solicitor advising that he "does not wish to give evidence".
On 20 and 21 March 2018 the respondent was taken to the Adelaide District Court where he was examined by Judge Stretton. On 20 March 2018, in the absence of the jury, the respondent refused to be affirmed and indicated his refusal to give evidence. On 21 March 2018, the respondent was examined by Judge Stretton before the jury. He again refused to give evidence and the trial was declared a mistrial with the jury being discharged.
The respondent gave evidence that while in the Yatala Labour Prison he was subjected to intimidation and received threatening messages. The respondent spent approximately 54 days at the Yatala Prison before he was returned to New South Wales. Although there was a dispute as to the conditions experienced by him while in the Yatala Prison, it does seem that those conditions were more onerous than he experienced in New South Wales.
In the course of the respondent's evidence on the appeal, it became apparent that while serving his sentence in New South Wales, the respondent had not been placed in protection but had been serving his sentence as part of the normal prison population.

Submissions and consideration

The form of the undertaking, signed by the respondent on 24 January 2017, was as follows: "SECTION 16AC CRIMES ACT 1914 UNDERTAKING TO CO-OPERATE BY KRISTIAN JAMES MADGWICK For use in sentencing proceedings in the District Court of New South Wales in respect to one charge, namely that: Between about 6 January 2014 and about 21 October 2014 Kristian James Madgwick did, aid, abet, counsel or procure the commission of an offence by Clinton George Ribbon, namely that Clinton George Ribbon imported a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity. I, Kristian James MADGWICK, do hereby undertake to co-operate with law enforcement agencies, pursuant to section 16AC Crimes Act 1914 (C'th), and in particular to do the following things: 1. To give full and frank evidence for the Crown in accordance with my statement dated 10 January 2017 which is attached and marked "A" and any other statement to be given in furtherance of this undertaking, in any court proceedings, including confiscation proceedings, that the Crown may nominate, in respect of any person including: Clinton George RIBBON 2. To provide to Federal Agent Thomas Holmes of the Australian Federal Police, or any other officer nominated by the Australian Federal Police, any further full and frank voluntary statement in writing regarding my knowledge of and participation in any matter relating to the charge for which I am being sentenced, reasonably required by the Australian Federal Police. 3. To confer with the Australian Federal Police, the Commonwealth Director of Public Prosecutions, and counsel briefed by the Director of Public Prosecutions, in relation to any court proceedings referred to above, and to provide upon request a supplementary voluntary statement(s) of any further evidence in relation to matters arising from any such conference. I acknowledge that my counsel/solicitor, …………………………………… has explained to me the provisions of section 16AC of the Crimes Act 1914. I acknowledge that I fully understand its effect and the consequences of any failure by me to honour the undertaking. ………………………………… …………………………………. Kristian James MADGWICK Counsel/Solicitor for Kristian James MADGWICK Dated: Dated: ."
Relevant sections of the Crimes Act (Cth) are: "16AC(3) The Director of Public Prosecutions may appeal against the inadequacy of the reduced sentence, reduced order or reduced non‑parole period if: (a) after the imposing of the sentence or the making of the order, the offender, without reasonable excuse, does not cooperate in accordance with the undertaking; and (b) the Director of Public Prosecutions is of the opinion that appealing is in the interests of the administration of justice. (4) The court hearing the appeal: (a) if it is satisfied that the person has failed entirely to cooperate in accordance with the undertaking - must substitute for the reduced sentence, reduced order or reduced non‑parole period the sentence, order or non‑parole period that would have been imposed, made or fixed but for that reduction; and (b) if it is satisfied that the person has failed in part to cooperate in accordance with the undertaking - may substitute: (i) for the reduced sentence or reduced order such a sentence or order, not exceeding in severity the sentence or order that could be imposed or made under paragraph (a), as the court thinks appropriate; or (ii) for the reduced non‑parole period such a non‑parole period, not exceeding the parole period that could be fixed under paragraph (a), as the court thinks appropriate."

Appellant's appeal

The appellant's primary position was that the respondent had failed entirely to co-operate in accordance with his undertaking and therefore the Court should resentence him in accordance with s 16AC(4)(a) to the sentence that would have been imposed but for the reduction allowed for his future promised co-operation.
Alternatively, the appellant submitted that the respondent failed in part to co-operate in accordance with his undertaking and therefore the Court should resentence him in accordance with s 16AC(4)(b) to such a sentence as the Court thinks appropriate.
The appellant submitted that the respondent's conduct amounted to a failure entirely to co-operate and that he should be sentenced to the notional "but for" sentence that would otherwise have been imposed. While the appellant accepted that the respondent agreed to and did meet with Crown representatives to discuss the evidence he could give at trial, and provided his email account details so police could access certain emails, the appellant submitted that nevertheless the respondent failed entirely to co-operate in accordance with his undertaking.
The appellant submitted that the things done by the respondent were ultimately of no benefit to the Crown and did not assist it in its case against Mr Ribbon. This was because: 1. The respondent ultimately refused to give any evidence at Mr Ribbon's trial and; 2. Although police obtained emails from the respondent's account, the respondent subsequently claimed client legal privilege in respect of them and they were not able to be used by the Crown.
In the alternative, the appellant submitted that by refusing to give evidence at the trial of Mr Ribbon, the respondent failed in part to co-operate in accordance with the undertaking.
The appellant submitted that if contrary to its primary argument, the further things done by the respondent are considered to be further assistance in accordance with his undertaking, nevertheless the respondent had failed in part to co-operate in accordance with his undertaking. This is because he had failed to do the main thing he undertook to do, namely to give evidence for the Crown in the trial of Mr Ribbon. His refusal to give evidence deprived the Crown of the main benefit upon which the initial sentence reduction was allowed. The appellant submitted that in the absence of giving evidence in accordance with his undertaking, the further things done by the respondent were marginal and of little significance as future assistance.
The appellant submitted that in those circumstances, the difference between a failure to entirely co-operate and a failure in part to co-operate was marginal and should be reflected in the extent to which the respondent is resentenced under s 16AC(4)(b).
The appellant submitted that if the Court is satisfied that the respondent has failed entirely to co-operate in accordance with his undertaking, then the Court did not have a discretion to decline to resentence the respondent. Alternatively, the appellant submitted that if the Court is satisfied that the respondent had failed to co-operate in part in accordance with his undertaking, then the Court is not permitted to reconsider the sentencing exercise afresh or to substitute the sentence that it would have imposed in all the circumstances as if sentencing at first instance. The appellant submitted that the respondent is not entitled to rely upon further or additional evidence that may have been relevant to the sentencing exercise at first instance, or to the question of resentence as might ordinarily be permitted in a case where the court exercises the sentencing discretion afresh because error in the sentencing exercise has been established.
The appellant submitted that the extent of the Court's power to resentence is expressly defined, and restricted, by the terms of s 16AC(4). The appellant submitted that if the Court is not satisfied that the respondent failed entirely to co-operate in accordance with his undertaking, but that he failed in part to do so, then pursuant to s 16AC(4)(b), the Court would resentence by: 1. commencing with the notional "but for" sentence nominated by Judge Frearson; 2. reducing that notional sentence by a small and notional amount to take into account the further assistance provided by the respondent. The appellant submitted that the resulting sentence should reflect the fact that the respondent failed to do most of what he had promised to do and that the further assistance he did provide, was marginal.
The respondent in his submissions accepted that he had failed "in part" to co-operate in accordance with his undertaking and that he did so without reasonable excuse. The respondent submitted that the question for the Court in this appeal is the degree to which his sentence ought to be increased (if at all) pursuant to s 16AC(4)(b) of the Crimes Act. The respondent submitted that when regard is had to each of the considerations relevant to the disposition of this appeal, the increase in the respondent's sentence (if any increase is determined to be appropriate) ought to be minimal.
The respondent submitted that the matters listed at points 1-3 of the undertaking gave content to his general undertaking to co-operate, but did not themselves represent independent undertakings given by him which can be characterised as having been complied with either "entirely" or "in part" for the purposes of s 16AC(4). The respondent submitted that the evidence relied upon by him, and other material which is before the Court on the appeal, demonstrate that he did comply with aspects of his undertaking. For example, the respondent's compliance with aspects of his undertaking emerges from the affidavit of Ms Tanda, dated 1 June 2018 (i.e. the meeting on 20 April 2017). The respondent submitted that against that background, it could not be said that there was a failure to "entirely" co-operate in accordance with the undertaking. The respondent submitted that in this context "entirely" can only mean totally, absolutely or completely.
The respondent submitted that in coming to a view as to the appropriate substituted sentence to be imposed, the Court's task does not involve any reconsideration of the appropriateness of the respondent's original sentence. Rather, the Court must determine what new sentence "properly reflects all relevant circumstances surrounding the respondent's failure to co-operate in accordance with the undertaking" (Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; 4 VR 285 at [14] per Tadgell JA (Callaway and Batt JJA agreeing).
The respondent also relied upon the inconvenience caused to him by the prosecuting authorities ignoring his clear statement that he did not intend to give evidence. This inconvenience involved him being taken to Adelaide and spending 7½ weeks in uncomfortable conditions in the Yatala Labour Prison.
The respondent accepted that the mere fact that a person in custody who undertakes to assist law enforcement agencies is subjected to pressure or threats of one kind or another will not generally constitute a basis for the court refusing to increase that sentence where the undertaking is not complied with (R v YZ [1999] NSWCCA 263; R v Hammond [2001] NSWCCA 34; 121 A Crim R 1). The respondent submitted that in his case some degree of danger had arisen from the inmates of the Yatala Labour Prison directed at him because of his apparent unusual treatment in being brought to that prison from New South Wales. The respondent submitted that in the circumstances he was entitled to expect greater assistance and protection than he in fact received from the South Australian prison authorities. The respondent submitted that he was entitled to expect that the South Australian Corrective Services personnel, charged with his supervision and protection, would take reasonable steps to mitigate any danger to which he might be exposed. The respondent submitted that this did not occur.
The respondent submitted that while there was considerable public importance in this Court increasing a sentence reduced because of an undertaking to assist law enforcement agencies, where that undertaking was not complied with, the facts of this matter take it outside the ordinary run of cases. This is because the present respondent had been subjected to conditions and conduct by reason of his undertaking that ought be given considerable weight in this Court's determination of an appropriately substituted sentence.

Respondent's appeal

The error identified in Xiao v R was conceded by the Crown. The respondent submitted that as a result, in accordance with the guidance of the High Court in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]-[43], the sentencing discretion had to be exercised afresh and the Court could consider evidence of events that had occurred since the sentence hearing. The respondent noted that due to his Honour's failure to quantify the discount, it was not clear what allowances were made for the respondent's plea of guilty and his substantial past assistance.

Respondent's submissions

The respondent submitted that in those circumstances, when regard was had to all of the features of this matter, the Court would conclude that a lesser head sentence and non-parole period than those imposed by the sentencing judge are appropriate even without any or any significant allowance being made for future assistance. In that regard, the respondent referred to the following matters: 1. That while objectively serious, the offence committed involved unusual degrees of coercion of the respondent by the principals of the importation; 2. An important feature of the respondent's subjective case was his background of substantial disadvantage. 3. The respondent's progress towards rehabilitation while in custody was good. 4. The respondent's treatment at the hands of a number of Corrective Services officers was poor. 5. The respondent's conditions of custody at Yatala Labour Prison in South Australia were more onerous than those he had experienced in New South Wales.
The respondent submitted that with respect to discounts, that ought be allowed on resentence, his plea of guilty should attract a discount at the highest end of the range. His past assistance should also be acknowledged by a further not insubstantial reduction. His past assistance provided valuable information and context in relation to the prosecution of Mr Ribbon.

The appellant's submissions on the respondent's appeal

The appellant submitted that in hearing these appeals, the Court should deal with the respondent's appeal first, and subject to the outcome of that appeal, the Court should then deal with the s 16AC(4) matter. In any event, the appellant submitted that the order in which the respective matters are considered should not determine the outcome, although a difficulty could potentially arise if the Court were to pronounce orders in respect of one matter before proceeding to deal with the other.
The appellant submitted that the presence of Xiao error does not require that an appeal against sentence be upheld (Sintat v R [2018] NSWCCA 165; Obiekwe v R [2018] NSWCCA 55; Naizmand v R [2018] NSWCCA 25). The appellant submitted that the identification of error does not create an entitlement to a new sentence, for example by merely adjusting the sentence actually passed to allow for the error identified (Kentwell v The Queen at [40], [42]). The appellant submitted that, if the Court concludes after taking into account all relevant matters, including the evidence of events which have occurred since the sentence hearing, a lesser sentence is not appropriate (because the same sentence or a greater sentence is appropriate) the appeal should be dismissed (Kentwell v The Queen at [43]). The appellant submitted that such a result should be reached in this case.
The appellant submitted that there is no suggestion that the sentencing judge did anything other than reward the respondent's plea of guilty with a substantial discount. The appellant submitted that the lenient sentence imposed upon the respondent gave support to the conclusion that he received a very substantial discount for his plea of guilty and co-operation.
The appellant submitted that the sentencing judge further mitigated the sentence on the basis that the respondent's "very very substantial" co-operation would make his time in custody "more onerous". This finding clearly anticipated that the respondent, who was expected to fulfil his undertaking to give evidence against Mr Ribbon, would serve his sentence in onerous circumstances. As already indicated, during the appeal hearing it was established that the respondent had not served any part of his sentence in protection or segregated custody. The appellant submitted that aspects of the respondent's evidence about his custodial conditions were exaggerated or open to doubt. The appellant submitted that the respondent gave unsatisfactory evidence in the South Australian District Court when called upon to explain his refusal to give evidence in the trial. The appellant submitted that the respondent's evidence about his unpleasant custodial conditions should generally be treated with circumspection and that his evidence concerning his experience of custody does not support a finding of significant mitigation.
The appellant submitted that the sentence passed upon the respondent was lenient. The maximum penalty was imprisonment for 25 years. The amount of pseudoephedrine seized was over eleven times the applicable commercial quantity. The respondent was found to have performed a "critical role in the importation". He was a "trusted intermediary" motivated by a desire for financial reward. The appellant submitted that these findings were well open to the sentencing judge and should not be disturbed. They had not been challenged in this appeal.
The appellant submitted that the Court must impose a sentence "that is of a severity appropriate in all the circumstances of the offence" (s 16A(1) Crimes Act). The Court is to have regard to the matters where relevant which are set out in s 16A(2). In view of the circumstances known to the Court, the appellant submitted that no lesser sentence was warranted in law in that a lesser sentence would not be "of a severity appropriate in all the circumstances of the offence".
By way of comparison, the appellant submitted that Mr Ribbon was sentenced after trial to 17 years imprisonment, with a non-parole period of 12 years, for his principal role in the importation: R v Clinton George Ribbon (District Court (SA), Stretton DCJ, 24 July 2018, unrep).

Consideration

There is a preliminary issue, which was identified by the appellant, as to the order in which these matters should be considered. I have concluded that the Crown appeal should be considered first, followed by the respondent's appeal.
My reasoning is that the Crown appeal by operation of the statute is a more restricted appeal than that relied upon by the respondent. It involves a comparatively narrow issue. By comparison, the discretion to resentence arising from the respondent's appeal, involves a re-exercise of the sentencing discretion afresh in the manner set out in Kentwell v The Queen. In particular, the Court may consider evidence of events which have occurred since the sentence hearing, including evidence of the respondent's non-compliance with his undertaking to co-operate and the conditions of his custody.
When considering the respondent's appeal, one has to look at the sentence under consideration when re-exercising the sentencing discretion. That means one has to look at the sentence as adjusted (if at all) as a result of the Crown appeal under s 16AC(4).
I am not satisfied that the Crown has established that the respondent has "entirely" failed to co-operate in accordance with his undertaking. In my opinion, full effect has to be given to the word "entirely" so that even modest assistance such as was provided here is sufficient to exclude the application of s 16AC(4)(a).
That, however, does not end the matter. Just because one is looking at s 16AC(4)(b) does not mean that as a matter of discretion, the entirety of the discount could not be put back onto the sentence. It merely means that it is not automatic. For example, if the partial failure to comply with the undertaking were a ten minute conference, then that would be reflected not by way of the mandatory automatic operation of s 16AC(4)(a) but by way of being taken into account in the exercise of the discretion given by s 16AC(4)(b).
Importantly, it needs to be remembered that the exercise of the s 16AC(3) and (4) jurisdiction is not punitive. Rather, it involves correcting a miscarriage in the sentencing process because the basis for the reduction of the sentence by reason of the expectation of future co-operation has not been realised. In R v KS [2005] NSWCCA 87 Wood CJ at CL (with whom Tobias JA and Buddin J agreed) said: "19 The ability of the Crown to invoke this section is a very important part of the criminal justice system. Persons who give undertakings and who receive the benefit of those undertakings by way of a discounted sentence can, subject to exceptional circumstances, expect to have their sentences increased if they renege on their undertaking to give evidence. The departure from an undertaking of that kind is not to be regarded lightly and it will normally justify appellate intervention."
Here the co-operation was attending a conference, explaining aspects of a statement and identifying voices in some intercepted telephone conversations. The conference lasted approximately one hour. When the respondent refused to give evidence, the value of that assistance was almost entirely lost. The contents of his statement, and the identification of voices, was of no use to the prosecuting authorities without his evidence. Nevertheless, it cannot be said that the failure to co-operate with the undertaking has been "entire".
That is in line with the observations of Button J (with whom Gleeson JA and R A Hulme J agreed) in R v MI [2018] NSWCCA 251 at [63] where his Honour said: "63 Turning to my determination of this second issue, in my opinion, as a matter of simple objective fact, the respondent partially complied with his undertaking when he provided the further statement, despite its brevity. Whilst it is true that, in light of his refusal to give evidence, that statement was ineffectual in assisting the prosecution, I think that one should adopt a position of abundant caution towards such a question. In other words, in considering whether the basis for mandatory intervention that admits of no amelioration regarding the quantum of increase in sentence has been established, I think that one should exercise restraint in affirmatively finding that failure to comply with an undertaking has been "entire"."
Despite that qualification, the reality of the circumstances in this case is that the assistance given was effectively worthless. In that regard, I also adopt the approach and conclusion of Button J in R v MI where his Honour said: "76 Nevertheless, seen in the context of the position adopted by the respondent in its totality, his partial compliance was completely worthless in a practical sense. There is nothing to suggest that the further information contained in the second, concise statement was of any intelligence or other value to the authorities. In my opinion, the provision of the concise statement provides no reason to refrain from removing the entirety of the discount afforded by the sentencing judge for future assistance."
It follows, therefore, that the contingent sentence provided for by the sentencing judge of imprisonment for 6 years and 10 months, with a non-parole period of 3 years and 5 months should be imposed, subject to the outcome of the respondent's appeal. When considering the respondent's appeal, however, the sentence under consideration is the contingent sentence not that actually imposed by the sentencing judge on 17 February 2017.
As was properly conceded by the Crown, the error identified in Xiao v R occurred here. That is not to be critical of the sentencing judge. He handed down his judgment well before the decision in Xiao, which overturned a long line of authority which the sentencing judge applied. Despite the decision in Xiao having only recently been delivered, there have already been a number of decisions of this Court to the effect that circumstances of this kind warrant a finding of error (Musa v R [2018] NSWCCA 192; Peters v R [2018] NSWCCA 126; Wagner v R [2018] NSWCCA 124; Jinde Huang aka Wei Liu v R [2018] NSWCCA 70; Huang v R [2018] NSWCCA 57; 331 FLR 377. Mention has already been made of Sintat v R, Obiekwe v R and Naizmand v R.) Accordingly, because specific error has been identified, the discretion to resentence is engaged and has to be exercised.
In re-exercising the sentencing discretion, it is significant that the only error identified is the failure to take into account the utilitarian value of the plea of guilty. There has been no challenge to any of the factual findings by his Honour, both as to the circumstances of the offending and the respondent's subjective case. Accordingly, even though the Court is re-exercising the sentencing discretion afresh, regard has to be had to those unchallenged findings by the sentencing judge.
As the Crown submitted, even after the imposition of the contingent sentence, the sentence remains a lenient one. Clearly, a very substantial discount must have been allowed for the plea of guilty and the past co-operation and assistance of the respondent. His Honour quite appropriately assessed the value of the past co-operation as "at a very high level". That conforms with my assessment of the confidential exhibits D and E.
When one has regard to the maximum penalty, the amount of the pseudoephedrine seized, the substantial role of the respondent in the importation, his trusted position in the syndicate and financial gain as the motivation, the sentence remains a lenient one even after the discount for future assistance has been removed. This is apparent when one has general regard to the sentence imposed on Mr Ribbon.
There is another consideration which the Crown raised and which should be taken into account. On two occasions, his Honour noted that the respondent's time in custody would be more onerous and that this was a matter which his Honour was taking into account by way of mitigation. We now know from the respondent's evidence on the appeal that except for a period of 54 days in South Australia, the respondent's time in custody has not been more onerous than that of the normal prison population.
Taking those matters into account, I am not persuaded that a lesser sentence is warranted in law. Accordingly, I would allow the Crown appeal but dismiss the respondent's appeal.
The orders which I propose are: 1. The Crown appeal against the sentence imposed by his Honour Judge Frearson SC on 17 February 2017 is allowed. 2. The sentence imposed by his Honour on 17 February 2017 is quashed. 3. In lieu thereof, the respondent is sentenced to imprisonment with a head sentence of 6 years and 10 months, commencing 17 February 2017, with a non-parole period of 3 years and 5 months, expiring 16 July 2020, with the balance of term expiring 16 December 2023.
In respect of the respondent's appeal against sentence. 1. Leave to appeal is granted but the appeal is dismissed.
DAVIES J: I agree with Hoeben CJ at CL.
BUTTON J: I agree with Hoeben CJ at CL.

Amendments 11 December 2018 - Spelling mistake in surname of counsel on cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2018

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