//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1999] HCA 54
appellant. Appeal allowed. Set aside the order of the Court of Criminal Appeal of New South Wales entered on 6 July 1998. Remit the matter to the Court of Criminal Appeal of New South Wales to deal with the...
The High Court held that sentencing judges are not required to pinpoint exactly where a drug importer fits in a larger criminal scheme if the evidence does not allow it. Olbrich brought in over a kilogram of pure heroin and claimed in evidence that he was just a paid courier acting out of desperation, but the judge disbelieved him completely. The judge therefore refused to give a lighter sentence on the courier basis and sentenced on the known facts of the large-scale importation. The appeal court said the Crown had to prove beyond reasonable doubt that Olbrich was not a courier and that precise role identification was essential. The High Court disagreed, ruling that Olbrich had to prove the mitigating 'courier' claim on the balance of probabilities and that the judge had not erred by refusing to assume it. The Court emphasised that only facts known to the court matter, that offenders must prove matters in their favour, and that labels like courier or principal are useful shorthand at best but not mandatory. The Crown appeal was allowed and the case sent back to the appeal court.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
3,435 words · generated 24/04/2026
2 cited instruments linked from this judgment.
Reinhold Erhard Olbrich arrived at Sydney (Kingsford Smith) Airport on 16 August 1996 on a flight from Bangkok via Singapore. His luggage was searched by customs officers and found to contain white powder in bottles that tested positive for heroin, together with a plastic design board in his briefcase in which further heroin was secreted. The total quantity was more than 1.6 kg of powder containing 1.184 kg of pure heroin, well above the trafficable quantity threshold of 2 g and approaching the commercial quantity of 1.5 kg specified in Schedule VI to the Customs Act 1901 (Cth). When asked if he had more heroin, Olbrich replied that he had one more piece and that “someone pays me $15,000”. He named a man in Perth to whom he intended to deliver the drugs and indicated willingness to participate in a controlled delivery, although that did not proceed for operational reasons.
Olbrich pleaded guilty in the District Court of New South Wales to one count of importing a prohibited import to which s 233B of the Customs Act applied, namely heroin in not less than a trafficable quantity. A statement of facts was placed before the sentencing judge that was either agreed or not disputed. It recorded the above matters, the results of analysis, Olbrich’s personal circumstances (married with three children, German citizen residing in Singapore as an opal dealer, no prior Australian convictions), and his nomination of the Perth contact.
At the sentencing hearing Olbrich sought to adduce further material in mitigation. He tendered an affidavit asserting that he had previously refused drug courier work, that he had used heroin for the first time in Thailand after learning his son had been arrested and placed in a boys’ home in Singapore, that he agreed to import the drugs out of financial desperation, and that he had only later appreciated the harm heroin causes. He was extensively cross-examined. The primary judge (Howie DCJ) rejected the evidence in unequivocal terms at paragraph [9] of the High Court judgment: “I do not believe any of the evidence given by the [respondent] surrounding the circumstances of this offence by which he has sought to mitigate his involvement. His evidence was riddled with inconsistencies, prevarications, and assertions of fact which were themselves inherently unbelievable.” The judge gave examples concerning the delivery and packaging of the drugs and raised but then expressly put aside suspicions about Olbrich’s earlier trips to Australia.
Much of the plea was directed to persuading the judge that Olbrich was a “courier” rather than a “principal”. Counsel submitted that the Crown bore the onus of proving beyond reasonable doubt that Olbrich was not a courier and that there was no evidence he was importing on his own account. The primary judge rejected that approach, holding at paragraph [11] that “to the degree that a courier is given some mitigation by being less culpable … the [respondent] must prove that he is less culpable than the objective facts would otherwise indicate.” Not being satisfied on that score, the judge declined to mitigate on a courier basis and instead sentenced “as if he had told the police or this Court nothing about the circumstances of the event at all”, applying normal sentencing principles to the nature of the offence, the maximum penalty and the objective features. Olbrich received eight and a half years’ imprisonment with a six-year non-parole period.
Olbrich appealed to the Court of Criminal Appeal of New South Wales, which allowed the appeal, quashed the sentence and remitted the matter for resentencing. Spigelman CJ (with whom Newman and Sperling JJ agreed) held that the precise nature of an accused’s involvement in an importation is an essential aspect of sentencing, that a plea to the bare act of importation carries no implication as to degree of involvement in any overall scheme, that involvement prior to or subsequent to the act of importation is a matter the Crown must prove beyond reasonable doubt, and that in the absence of relevant evidence an accused is entitled to be sentenced on the basis most favourable to him. The Court of Criminal Appeal concluded the primary judge had failed to apply correct principles by reversing the onus.
The Crown sought and obtained special leave to appeal to the High Court. The coram comprised Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ. The joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ allowed the Crown appeal, set aside the Court of Criminal Appeal’s order and remitted the matter to that Court to be dealt with conformably with the High Court’s reasons. Kirby J dissented and would have dismissed the Crown appeal.
The majority began at paragraph [13] by rejecting the Court of Criminal Appeal’s central proposition that identification of the precise nature of an accused’s involvement in an act of importation is an essential aspect of the sentencing process. They acknowledged that appellate courts have sometimes categorised roles to promote consistency where the facts are known, and that judges dealing with co-offenders may find such categorisation useful. However, “the utility of such an exercise is necessarily limited by the extent to which the material facts are known” and “should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate” (paragraph [14]).
Three practical and legal reasons were given. First, prosecuting authorities and judges frequently have only “the most limited and imperfect information” about the genesis of overseas-sourced importations, especially after a guilty plea (paragraph [16]). Second, there is no statutory requirement to make such inquiries; s 16A(2)(a) of the Crimes Act 1914 (Cth) requires the court to take into account the nature and circumstances of the offence only “so far as … known to the court” (paragraph [17]). Third, inquiring into matters outside the elements of the importation offence risks sentencing for uncharged crimes, contrary to the principle in R v De Simoni (1981) 147 CLR 383 (paragraph [18]).
The majority then turned to the courier/principal distinction at paragraphs [19]-[22]. While the labels may serve as useful shorthand when multiple offenders are involved or when a hierarchical business venture is clearly established on the evidence, they “must not obscure the assessment of what the offender did”. In Olbrich’s case there was no evidence of any larger hierarchical organisation; all that was known was that he asserted he was to be paid $15,000. Whether others stood to gain did not affect the sentence to be passed on him. It would have been wrong to sentence him as the mastermind of a larger enterprise, but the primary judge had not done so. The judge had simply declined to mitigate on the unproven courier basis and had sentenced on the known objective facts.
On onus and standard of proof the majority, at paragraph [24], rejected the contention that a judge not satisfied of a matter urged in mitigation must nevertheless sentence on the basis that the contention is accurate unless the prosecution disproves it beyond reasonable doubt. Such an approach would produce the incongruity of requiring the judge who disbelieved Olbrich’s evidence to sentence him as a courier. The majority emphasised that there is no general joinder of issue between prosecution and offender in sentencing. Each party bears the burden of bringing to the judge’s attention the matters it wishes taken into account and, if necessary, calling evidence (paragraph [25]). Because the respondent sought mitigation on the courier basis, he bore the burden of proving it. The judge was not persuaded.
The standard of proof was taken from the majority in R v Storey [1998] 1 VR 359: facts adverse to the accused must be established beyond reasonable doubt; circumstances in favour of the accused need only be proved on the balance of probabilities (paragraph [27]). The primary judge had not taken any adverse fact into account beyond those established by the plea and statement of facts, and had not been persuaded of the mitigating circumstance asserted by Olbrich. Accordingly there was no error. The orders remitting the matter to the Court of Criminal Appeal followed.
Kirby J, in dissent, would have dismissed the appeal. He viewed the primary judge’s reasons as having treated “courier” and “principal” as a simple duality and as having effectively required Olbrich to disprove that he was a principal. Kirby J regarded the distinction as well established in New South Wales sentencing practice for differentiating levels of culpability and saw the Crown as bearing the onus of proving any aggravating role beyond reasonable doubt. He considered the primary judge’s reasoning at paragraphs [36]-[37] of the High Court judgment revealed error because rejection of Olbrich’s mitigating evidence did not logically or legally prove the aggravating opposite.
The majority’s reasoning prevailed. The Court therefore allowed the appeal on the basis that the Court of Criminal Appeal had misstated the sentencing judge’s obligations and had reversed the onus of proof.
Before Olbrich, New South Wales sentencing practice had developed a recurring distinction between “couriers” (or “mere couriers”) and “principals” or those more substantially involved in an organisational chain. Cases such as R v Ferrer-Esis (1991) 55 A Crim R 231 and R v Raz (unreported, Court of Criminal Appeal (NSW), 17 December 1992) treated the courier classification as attracting a recognised sentencing pattern for substantial quantities of heroin or cocaine, with the label used to differentiate culpability. The Court of Criminal Appeal in Olbrich’s own appeal had treated precise identification of involvement in the overall scheme as essential, placed the onus on the Crown to prove degree of involvement beyond reasonable doubt where the plea was only to the act of importation, and held that in the absence of evidence the offender was entitled to the most favourable basis (paragraph [12]).
The High Court’s decision altered that understanding in important respects. It made clear at paragraph [13] that precise role identification is not an essential aspect of every sentencing exercise. The utility of the courier/principal shorthand is limited by the facts known; it must not be elevated into a mandatory binary classification that obscures assessment of the actual offence and conduct (paragraphs [14], [19]). The statutory touchstone remains what is “known to the court” under s 16A(2)(a) of the Crimes Act. The majority endorsed the Storey formulation of onus and standard of proof, confirming that the offender bears the burden of proving mitigating circumstances on the balance of probabilities and that a judge is not obliged to sentence on an unproven mitigating basis merely because the Crown has not disproved it beyond reasonable doubt (paragraphs [25]-[28]).
After Olbrich, sentencing judges were freed from any obligation to resolve every importation into a courier/principal dichotomy where the evidence did not permit it. The decision reinforced that sentencing proceeds on the offence charged, not on uncharged conduct, and that practical limits on information about overseas-sourced offending must be respected. The remand to the Court of Criminal Appeal ensured that any remaining grounds of appeal against the original sentence could be considered conformably with these clarified principles. The law moved from a rule-like insistence on role classification and reversed onus to a more flexible, evidence-based approach grounded in the statutory “known to the court” criterion and the differentiated burdens of proof.
Paragraph [13]: “We do not accept that the identification of the precise nature of the accused’s involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.”
Plain-English translation: Judges do not have to work out exactly where the offender fitted in the drug chain in every single case. It is not a compulsory step.
Paragraph [16]: “Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country.”
Plain-English translation: Police and judges frequently know very little about the background of overseas drug importations once someone pleads guilty. That practical reality cannot be ignored.
Paragraph [17]: “Section 16A(2)(a) of that Act requires a sentencing judge to take into account, so far as ‘known to the court’, the nature and circumstances of the offence. The reference to what is ‘known to the court’ is very important and mirrors what would be the position in the absence of statutory provision.”
Plain-English translation: The law only lets the judge consider facts that are actually known. The statute deliberately limits the judge to evidence before the court; there is no roving commission to speculate.
Paragraph [19]: “Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did.”
Plain-English translation: The labels ‘courier’ and ‘principal’ are handy shortcuts at best. They must never replace careful assessment of the actual conduct and the offence the person has admitted or been convicted of.
Paragraph [24]: “To require the judge to sentence the respondent on the basis that he was a courier is incongruous.”
Plain-English translation: It would be absurd to force a judge who has rejected the offender’s evidence as unbelievable to sentence him as though the rejected story were true.
Paragraph [27]: “a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”
Plain-English translation: The Crown must prove anything that makes the sentence worse beyond reasonable doubt. The offender only needs to prove anything that makes the sentence better on the balance of probabilities. This is the governing rule.
Paragraph [28]: “As we have said, the primary judge did not take facts into account in a way that was adverse to the accused (other than those established by the plea and the statement of facts). He was not persuaded of circumstances which the respondent contends should have been taken into account in his favour.”
Plain-English translation: The judge stuck to the admitted facts, did not invent aggravating matters, and simply refused to give a discount for a mitigating story he did not believe. That was not legal error.
Olbrich is triggered whenever an offender pleads guilty to a federal drug importation offence under s 233B of the Customs Act and seeks to rely on a claimed role (commonly “courier”) as a mitigating factor but the sentencing judge is not persuaded by the evidence adduced. The precedent applies with particular force where the only evidence of role comes from the offender’s own account, that account is disbelieved after cross-examination, and the Crown has not sought to prove any specific aggravating role beyond the elements of the importation itself.
It is engaged when the sentencing judge is faced with an argument that the Crown must disprove a mitigating characterisation beyond reasonable doubt or that the offender is entitled to be sentenced on the “most favourable” basis in the absence of evidence. The decision is directly applicable where a Court of Criminal Appeal has treated precise identification of involvement in any “overall scheme” as essential or has reversed the onus. Fact patterns involving large commercial quantities of heroin or other narcotics imported by individuals travelling alone, with limited surrounding evidence of the upstream or downstream supply chain, engage the principle that a judge is not obliged to inquire into or assume unproven prior or subsequent events.
The precedent also applies whenever a judge is asked to use the courier/principal dichotomy. If the evidence does not clearly establish a hierarchical organisation, the labels are not to be treated as essential or as creating an automatic binary. Any case in which s 16A(2)(a) of the Crimes Act is invoked will engage the “known to the court” limitation. Gotcha: most practitioners still assume that once an offender asserts courier status the Crown must disprove it beyond reasonable doubt; Olbrich makes plain that the onus sits on the offender to prove the mitigating circumstance on the balance of probabilities, and disbelief of the offender’s evidence is fatal to that mitigation. Another gotcha: many counsel continue to treat “courier” as almost automatically attracting a fixed discount range; the High Court emphasised that the label must never obscure the actual conduct and objective seriousness of the particular importation.
The judgment itself shows how the High Court treated the authorities then existing. It followed the Storey majority’s formulation of onus and standard of proof at paragraph [27], citing it with approval as the correct statement. It cited R v De Simoni for the prohibition on sentencing for uncharged offences (paragraph [18]) and a long line of state decisions at paragraph [24] while rejecting the particular onus contention advanced in Olbrich’s case. The Court distinguished the Court of Criminal Appeal’s own earlier reasoning in Olbrich’s appeal, holding that the propositions at paragraphs [12] and [42] of the High Court judgment (drawn from Spigelman CJ) misstated the law.
The majority approved the use of role categorisation only where facts permit and only as shorthand, thereby confining the authority of earlier New South Wales decisions that had appeared to treat the courier/principal distinction as more prescriptive. Kirby J’s dissent, while not forming part of the ratio, recorded the pre-existing New South Wales practice of differentiating “mere courier” from those involved in an organisational chain, citing R v Ferrer-Esis, R v Raz and R v Poyner among others. The joint judgment did not overrule those authorities but confined their operation to cases where the evidence supports the distinction and emphasised that the labels must not obscure the actual offence.
The disposition remitting the matter to the Court of Criminal Appeal “conformably with the reasons of this Court” made clear that the earlier Court of Criminal Appeal decision in R v Olbrich (1998) 45 NSWLR 538 was not to be followed on the points of principle concerning essentiality of role identification and onus. The High Court therefore reversed the Court of Criminal Appeal on those issues while leaving undisturbed the underlying statutory framework in the Crimes Act and Customs Act.
The judgment leaves open when, if ever, a sentencing judge must make findings about role. While not essential in every case, the majority accepted at paragraph [19] that the distinction between courier and principal “may prove a useful shorthand description of different kinds of participation in a single enterprise” when several offenders are before the court or when the evidence clearly reveals a hierarchical business venture. The precise boundaries of when such findings become obligatory remain unsettled.
The interaction between the “known to the court” limitation in s 16A(2)(a) and material that emerges during a contested sentencing hearing is not exhaustively mapped. If an offender gives evidence that is disbelieved, does that disbelief itself become a “known” circumstance that can be taken into account adversely, or is the judge confined to the bare plea and undisputed statement of facts? The majority’s statement at paragraph [28] that the primary judge had not taken adverse facts into account beyond the plea and statement of facts suggests the latter, but the point is not fully developed.
Whether the principle extends unchanged to state drug offences that lack an equivalent to s 16A(2)(a) is not addressed. The decision is expressly grounded in the federal sentencing regime. The extent to which appellate courts may continue to publish guideline ranges or “recognised patterns” for couriers of particular quantities, as had occurred in Ferrer-Esis, is also left for future consideration; the majority noted such patterns but subordinated them to the requirement that labels not obscure individual assessment.
Finally, the judgment does not resolve how a sentencing judge should proceed when the Crown positively asserts an aggravating role but calls no evidence beyond the plea, or when the offender remains silent. Kirby J’s concern that rejection of a mitigating claim cannot automatically prove the aggravating opposite is accepted by the majority, yet the practical forensic consequences in borderline cases remain to be worked through in subsequent litigation. These open questions ensure that Olbrich continues to generate debate about the exact metes and bounds of fact-finding on sentence in drug importation matters.
High Court of Australia Gleeson CJ Gaudron, Kirby, Hayne and Callinan JJ R v Olbrich (S189/1998) [1999] HCA 54
Summary Criminal law - Sentencing - Fact finding for the purpose of sentencing - Onus and standard of proof - Importation of prohibited import - Whether trial judge obliged to determine precise role of accused - Distinction between "courier" and "principal". Words and phrases - "courier" - "principal". Crimes Act 1914 (Cth), s 16A(2)(a). Customs Act 1901 (Cth), s 233B. ORDER
7 October 1999 Gleeson CJ, Gaudron, Hayne and Callinan JJ.
In the District Court of New South Wales, the respondent was sentenced to eight and a half years imprisonment and a non-parole period of six years was fixed. He appealed to the Court of Criminal Appeal of New South Wales against that sentence, alleging, in effect, that the primary judge had erred in making findings of fact about the nature or degree of his involvement in the importation. The Court of Criminal Appeal allowed his appeal, quashed the sentence passed in the District Court, and remitted the matter to that Court for resentencing [2] . By special leave, the Crown now appeals to this Court.
By his plea of guilty the respondent admitted all of the elements of the offence with which he was charged. He admitted, therefore, that on 16 August 1996 at Mascot in New South Wales he imported into Australia prohibited imports to which s 233B of the Customs Act applied; he admitted that the prohibited imports were narcotic goods consisting of a quantity of heroin; and he admitted that the quantity imported was not less than the trafficable quantity applicable to heroin.
Some other facts were placed before the judge in the form of a statement of facts that either was agreed to by the respondent or, at the least, was not disputed by him. The following facts were set out in that statement. On arrival at Sydney (Kingsford Smith) Airport the respondent's luggage was searched by the Australian Customs Service. The luggage was found to include some bottles containing white powder. That powder reacted positively to a test for heroin. When asked whether he had any more heroin in his bag the respondent replied "Yes I have one more piece. I know there is some more because someone pays me $15,000". The respondent then removed a plastic design board from his briefcase and it was found that that board contained heroin secreted in it.
The statement of facts gave details of further conversations the respondent had with Customs officers and with members of the Australian Federal Police in which he named a man in Perth to whom he intended to deliver the drugs. It recorded that at the airport the respondent "indicated his willingness to participate in a controlled delivery of the bottles and design board". In fact, however, due to what were described in the statement of facts as "operational factors and considerations", a controlled delivery from Sydney to the intended destination of the drugs (Perth) was not permitted to proceed.
The statement of facts set out how much white powder was removed from the bottles and design board and the results of the analysis of that powder: that it contained 1.184 kg of pure heroin. The statement of facts concluded by recording that the respondent "is married with three children. He is a German citizen residing in Singapore with his family where, he claims, he is an opal dealer. The [respondent] has no previous convictions in Australia."
On the hearing of the plea, the respondent sought to put further facts before the primary judge. In particular, he tendered an affidavit in which he stated that he had been offered drug courier jobs previously but had refused because he disliked that activity and had no need for the money. According to the respondent's affidavit, he learned, in about August 1996, that his son had been arrested and sentenced to detention in a boys' home in Singapore. When in Thailand at about that time he used heroin for the first time because of the pressure and distress he was feeling. Being desperate for money he agreed to deliver the drug. But he said, in his affidavit, that at the time he agreed to do this he was not aware of the harm that using heroin would cause and that he had only realised its destructive nature after being imprisoned in Australia pending sentence.
Prosecuting counsel cross-examined the respondent. In his sentencing remarks the primary judge said of the respondent's evidence, "I do not believe any of the evidence given by the [respondent] surrounding the circumstances of this offence by which he has sought to mitigate his involvement. His evidence was riddled with inconsistencies, prevarications, and assertions of fact which were themselves inherently unbelievable."
Much of the argument advanced in the plea on the respondent's behalf was directed to persuading the judge that the respondent was a "courier" not a "principal" in the importation. It will be necessary to return to consider what was meant by these terms. For the moment, however, the intended meaning may appear sufficiently from the fact that it was submitted on the respondent's behalf that it was for the Crown to satisfy the primary judge beyond reasonable doubt that the respondent was not a "courier" and that there was no evidence to indicate that the respondent "was importing the drug as a principal, that is on his own account " (emphasis added).
The primary judge rejected these contentions, saying that "[t]o the degree that a courier is given some mitigation by being less culpable for that offence than if he were a principal, it seems to me that the [respondent] must prove that he is less culpable than the objective facts would otherwise indicate." Not being satisfied that the respondent was bringing the drug into Australia as a courier, the primary judge said that he was not prepared to mitigate his sentence on that basis. Accordingly, so the primary judge said, "[i]f I dismiss his account of the facts surrounding his importation then for the purposes of assessing his culpability for the offence I should treat him as if he had told the police or this Court nothing about the circumstances of the event at all. I should simply apply normal sentencing principles, taking into account the nature of the offence, the maximum penalty and such other matters which are relevant to an assessment of the objective features of a criminal offence."
As we have noted, the respondent contended, and the Court of Criminal Appeal accepted, that the trial judge had erred in dealing with the nature and degree of the respondent's involvement in the importation. The Court of Criminal Appeal held [3] that "[t]he identification of the precise nature of the involvement of an accused in an act of importation of drugs is an essential aspect of the sentencing process". What the Court meant by this is to be understood in light of its conclusions, first, that [4] :
In this case a plea of guilty to a charge involving only the act of importation carries no implication of any character with respect to the degree of involvement of the accused in any overall scheme for importing drugs into Australia. The authorities which indicate that the existence of a commercial purpose for offences expressed in terms of supply or production is a matter of aggravation are applicable to an offence expressed in terms of importation. The involvement of the importer in the course of events prior to, or subsequent to, the actual act of importation itself is a matter which the Crown must prove beyond reasonable doubt, and, second, that [5] : In the absence of relevant evidence, an accused is entitled to be sentenced on the basis most favourable to him. The Court of Criminal Appeal concluded that the primary judge had failed to apply correct principles by not accepting that the Crown bore the onus of proof beyond reasonable doubt on the issue of the applicant's degree of involvement in the importation [6] . It therefore made the orders we have mentioned above. 1. R v Olbrich (1998) 45 NSWLR 538 at 544, per Spigelman CJ (Newman and Sperling JJ concurring). 2. R v Olbrich (1998) 45 NSWLR 538 at 544, per Spigelman CJ. 3. R v Olbrich (1998) 45 NSWLR 538 at 545, per Spigelman CJ. 4. R v Olbrich (1998) 45 NSWLR 538 at 545, per Spigelman CJ.
The significance of the circumstances of the offence
We do not accept that the identification of the precise nature of the accused's involvement in an act of importation of prohibited imports is an essential aspect of the sentencing process.
It is understandable that, in order to promote consistency in sentencing, appellate courts, when expressing views about sentences for drug offences, have sometimes categorised the role of an offender, where that is known, in a scheme of importation or distribution. Similarly, sentencing judges who are dealing with several co-offenders may consider such categorisation relevant in differentiating between individuals. However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.
In the present case, the precise nature of the involvement of the respondent in the act of importation was known: at least in the sense that it was known that he had brought the drugs into Australia. He was the importer. But if, as the Court of Criminal Appeal said, the course of events prior to or subsequent to the actual act of importation is relevant and necessary information, it may be accepted that little was known to the primary judge of those matters apart from what the respondent said in evidence. Was the primary judge obliged to inquire about them? If there was no evidence about those events, was the primary judge bound to make some assumptions about them that were favourable to the accused?
There is a very practical reason for concluding that a sentencing judge is not obliged to inquire about the course of events before or after an importation of drugs. Very often prosecuting authorities (and a sentencing judge) will have only the most limited and imperfect information about how it was that the accused person came to commit an offence for which he or she stands for sentence. Especially is that so where the accused has pleaded guilty and where the offence which the offender admits is one which had its genesis outside this country. Very often then it will not be possible to say, with any certainty, what exactly was done or intended by a person apprehended in the act of importing narcotics into Australia.
Further, there is no statutory requirement that a trial judge make such inquiries. Because the offence to which the respondent pleaded guilty was a "federal offence" [7] , the primary judge was bound, in sentencing the respondent, to apply the relevant provisions of the Crimes Act 1914 Cth. Section 16A(2)(a) of that Act requires a sentencing judge to take into account, so far as "known to the court", the nature and circumstances of the offence. The reference to what is "known to the court" is very important and mirrors what would be the position in the absence of statutory provision.
The distinction between "couriers" and "principals"
There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender's criminality. But there was no evidence, one way or the other, to suggest that this was such a case. There was nothing before the primary judge which revealed that the respondent was part of any business venture of that kind. All that was known was that the respondent asserted that he was to be paid $15,000 for importing the heroin. That is, the respondent asserted that the importation of such a large quantity of heroin was for his financial gain rather than for some other purpose such as his own use.
Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful inquiry, it was one that could not be pursued in this matter because there was no evidence about it.
It would have been wrong for the primary judge to sentence the respondent on the basis that he was the mastermind (or even an important member) of some larger criminal enterprise. But the primary judge did not do so. He sentenced the respondent as if the respondent had told the police and the court nothing about the circumstances of the event at all.
In this Court it was submitted on behalf of the respondent that despite the primary judge's rejection of the evidence given by the respondent (and his disbelief of that evidence) the primary judge should nevertheless have sentenced the respondent as a "courier" because the Crown had not established beyond reasonable doubt that the respondent was not a courier. For the reasons we have given earlier, the distinction between courier and principal was not a distinction of assistance to the primary judge in determining what sentence should be passed on the respondent. It is, however, as well to say something about the onus and standard of proof in sentencing.
Courts of criminal appeal in Australia have considered the subject of fact finding for sentencing many times in the last thirty years [12] . Not all of the questions that have been examined in those decisions must be considered now. For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.
In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a fifty-eight year old first offender who pleaded guilty to importing more than 1.1 kg of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation "principal" could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was "a courier". The respondent bore the burden of proving this fact. The judge was not persuaded of it.
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [14] - that a sentencing judge
may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. 1. [1998] 1 VR 359 at 369, per Winneke P, Brooking and Hayne JJA and Southwell A-JA.
As we have said, the primary judge did not take facts into account in a way that was adverse to the accused (other than those established by the plea and the statement of facts). He was not persuaded of circumstances which the respondent contends should have been taken into account in his favour.
The appeal should be allowed. The appellant contended (and the respondent did not dispute) that it was appropriate to remit the matter to the Court of Criminal Appeal to deal with the appeal to that Court conformably with the reasons of this Court. We would therefore order:
In R v Storey [15] , the Court of Appeal of Victoria examined the process in which a judge is engaged, after conviction of the accused, in finding the facts upon which to base the sentence. In a footnote which closes discussion in that Court of the onus and burden of proof and the process of fact-finding appears a perceptive but unelaborated comment of Callaway JA [16] : "Lawyers", he says, "understandably tend to concentrate on words and reify the concepts they represent. A psychologist might tell us that the choice between the competing views discussed in this judgment is really between the height of the speed bumps designed to induce appropriate caution as the judge motors towards the sentence he or she thinks just."
The conviction, sentence and reasons of the primary judge
Judge Howie then reached the passages in his reasons critical to this appeal. It is necessary, in the view which I take, to set out in some detail his Honour's reasoning. He noted the submission for the respondent that "the onus is upon the Crown to satisfy me beyond reasonable doubt that he was not a courier and that there was no evidence to indicate that he was importing the drug as a principal, that is on his own account" [27] . Judge Howie rejected this submission, saying [28] :
I do not believe that that is the correct approach to take. The offence is one of importing narcotic goods. To the degree that a courier is given some mitigation by being less culpable for that offence than if he were a principal, it seems to me that the prisoner must prove that he is less culpable than the objective facts would otherwise indicate. Otherwise every importer of drugs would have to be treated as a courier by the Courts and by the Crown, unless the Crown could establish that he was not a courier. I do not think that that can be correct as a matter of legal principle or logic. 1. Sentence at 5. 2. Sentence at 5. The submission was made by reference to Anderson v The Queen (1993) 177 CLR 520. Emphasis added.
Having expressed this opinion, his Honour proceeded to the consequences [29] :
Therefore, I am not satisfied that he was bringing this drug into Australia as a courier and I am not prepared to mitigate his sentence on that basis. How do I then proceed to sentence him? [Counsel] submits that I cannot sentence him on the basis that he was a principle [sic]. But that seems to me to be the only alternative, having decided that I cannot treat him as a courier. If I dismiss his account of the facts surrounding his importation then for the purposes of assessing his culpability for the offence I should treat him as if he had told the police or this Court nothing about the circumstances of the event at all. 1. Sentence at 5-6. Emphasis added.
Judge Howie turned to what he described as the "objective facts of this case". He expressed the opinion that the importation was "a very professional attempt"; that the prisoner was an intelligent businessman; and that he knew how to try to avoid attention from customs officers. In his view, the importation was "a business venture by him for considerable profit commensurate with the risk involved and the professionalism of the operation. It is in my view a serious example of this type of offence and not simply because of the amount involved" [30] .
His Honour noted various other considerations, relevant both to the offence and to the offender. Most of these do not invite comment. In the course of describing the benefit which the respondent was entitled to receive for the assistance he had given to the authorities in naming his contact in Perth, Judge Howie added [31] :
Although I am not satisfied that the prisoner was merely a courier, I am prepared to accept that the person [in Perth] was to be the recipient of the drug in this country or at least was involved in its importation. 1. Sentence at 9. Emphasis added.
After indicating that he had taken into account "all the matters" contained in s 16A of the Crimes Act 1914 Cth and adjusted the sentence to recognise the unavailability of remissions [32] , Judge Howie sentenced the respondent to eight and a half years imprisonment to date from his original arrest and detention. He fixed a non-parole period of six years. Against this sentence, the respondent sought leave to appeal to the Court of Criminal Appeal.
That Court granted leave to appeal and made orders, allowing the appeal, quashing the sentence and remitting the matter to the District Court for resentencing. The opinion of the Court [33] was given by Spigelman CJ. After setting out the facts and a number of the foregoing extracts from Judge Howie's reasons for sentence, Spigelman CJ noted that the "simple duality" [34] , observed in the reasons of the sentencing judge between importation as a "courier" or as a "principal", found support in New South Wales sentencing practice in remarks made by Hunt CJ at CL in R v Raz [35] to which it will be necessary to return. After recording that the respondent's plea of guilty established only "the essential legal ingredients of the offence" and that nothing in that plea had established "anything about the degree of involvement of the [respondent] in the whole process from the acquisition of the heroin abroad to its supply to Australian users" [36] , Spigelman CJ stated that, as had apparently been the case at trial, the "submissions in this Court were put in terms of whether the alleged status of the applicant as a "principal" was a matter of aggravation, or whether the alleged status as a "courier" was a matter of mitigation" [37] . The Chief Justice accepted that the onus of proof of matters going to aggravation for the purpose of sentence was upon the Crown [38] to a standard of proof beyond reasonable doubt [39] . He also accepted that the burden of proof of contested matters going to mitigation for the purpose of sentencing was upon the accused, who had to establish such matters on the balance of probabilities [40] . Spigelman CJ concluded that the respondent's plea of guilty to a charge involving only the act of importation of the prohibited substance carried "no implication of any character with respect to the degree of involvement of the accused in any overall scheme for importing drugs into Australia" [41] . He went on [42] :
The authorities which indicate that the existence of a commercial purpose for offences expressed in terms of supply or production is a matter of aggravation are applicable to an offence expressed in terms of importation. The involvement of the importer in the course of events prior to, or subsequent to, the actual act of importation itself is a matter which the Crown must prove beyond reasonable doubt
The identification of the precise nature of the involvement of an accused in an act of importation of drugs is an essential aspect of the sentencing process. It is because acts of importation differ so much in their quality and nature that the legislature has given such a wide range of penalties
For the purposes of sentencing, it is the particular role of the person in the scheme by which drugs become available to users in Australia, which must be proven beyond reasonable doubt. It is convenient to describe this role by a general label such as "courier" or "principal". In the absence of relevant evidence, an accused is entitled to be sentenced on the basis most favourable to him.
The accused who stands for sentence once convicted following a plea, is certainly not obliged to disprove matters which would tend to aggravate the seriousness of the circumstances of his or her offence. He or she may seek (where the Crown contests an assertion) to adduce facts aimed at convincing the sentencing judge of circumstances relevant to the mitigation of the offence and thus to the diminution of punishment [66] . But such a prisoner is not required to disprove the opposite. Specifically, the prisoner is not required to disprove circumstances which the Crown asserts (or from which the Court might infer a conclusion) that the case is an aggravated one warranting more serious punishment than would be appropriate if nothing else were known about the offence of which the accused had been convicted except the fact of conviction and the legal ingredients of the offence.
In these proceedings, the respondent contended that he was a "courier" or "mere courier" within the authorities to which I have referred. Because the Crown was not willing to concede his entitlement to be so classified for sentencing purposes, it was necessary for the respondent to decide whether he could establish that classification within the agreed statement of facts or the material from the prosecution brief handed by consent to the sentencing judge. Not unsurprisingly, given the circumstances of his apprehension, his admissions, the skilful concealment of the drug and the address book, the respondent elected to proffer additional evidence of his own in an endeavour to prove to the satisfaction of the sentencing judge that he was a "courier" or "mere courier" for the purpose of the applicable authorities. He failed in that attempt. He does not now contest the entitlement of Judge Howie, for the reasons which he gave, to reject that endeavour. He was therefore not entitled to have his punishment mitigated for the offence to which he had pleaded upon the basis that he was a "mere courier".
However, the failure of the respondent to prove that he was a "courier" or "mere courier" did not warrant the conclusion by the sentencing judge that he was therefore a "principal". To so treat the appellant would be to treat, as proved, circumstances of serious aggravation of his offence. The onus of proving such circumstances of aggravation rested upon the Crown. The standard of proof which it bore was proof beyond reasonable doubt [67] .
That Judge Howie fell into this mistake appears clearly enough from the following passage which I repeat [68] :
How do I then proceed to sentence him? [Counsel] submits that I cannot sentence him on the basis that he was a principle [sic]. But that seems to me to be the only alternative, having decided that I cannot treat him as a courier. 1. Sentence at 6.
With respect to his Honour, it was not the only alternative. The onus of proof of each category rested upon a different party. Moreover, on the authorities, the burden of proof was different in respect of those matters which the respondent set out to prove and those which the Crown would have been obliged to prove.
In the context of the authorities in which the legal dichotomy of "courier" and "principal" are used, the latter classification has a definite connotation as a matter of aggravation in sentencing drug importers. It means a person involved in an organisation of drug importation and distribution with significant responsibilities within a drug supplying or importing chain. A courier, on the other hand, is one "involved in a one-off operation" who falls to be treated within a "recognised pattern" and punished accordingly [69] . This was the way in which Judge Howie was using the expressions which recurred throughout his reasons for sentence. The Court of Criminal Appeal was correct to discern that fact. It was right to identify the error and to require that the respondent be resentenced, his sentence being then freed from this error.
R
Olbrich
(1998) 45 NSWLR 538
(1981) 147 CLR 383
(1992) 28 NSWLR 593
(1997) 41 NSWLR 374
(1976) 14 SASR 240
(1994) 12 WAR 452
(1996) 17 WAR 346
(1994) 4 Tas R 216
(1993) 177 CLR 520
(1989) 17 NSWLR 243
(1984) 154 CLR 606
(1997) 189 CLR 295
(1977) 137 CLR 293
(1999) 199 CLR 295
(1988) 166 CLR 59
(1992) 66 ALJR 791
(1999) 73 ALJR 1319
(1995) 183 CLR 1
(1997) 140 FLR 342
(1998) 7 NTLR 192
Appeal allowed. Set aside the order of the Court of Criminal Appeal of New South Wales entered on 6 July 1998. Remit the matter to the Court of Criminal Appeal of New South Wales to deal with the appeal to that Court conformably with the reasons of this Court.