R v Robertson; R v Westwood

Date of orders: 23 December 2025

Decision date: 23 December 2025

Before: McHugh JA; Ierace J; Cavanagh J

Decision: (1) In respect of appeal number 2022/00069833, the appeal is dismissed.
(2) In respect of appeal number 2022/00069874, the appeal is dismissed.

Catchwords: SENTENCING — Crimes Act 1914 (Cth), s 16A(2)(g) — “any benefit to the community” resulting from plea of guilty — Whether s 16A(2)(g) limited to the immediate benefit to the community in avoiding trial in the particular matter — Whether primary judge’s approach involved double counting — Whether primary judge erred by taking into account in two different ways (one quantified and one unquantified) two distinct benefits to community resulting from guilty pleas
SENTENCING — Whether sentences manifestly inadequate — Whether Court should exercise discretion to decline to interfere where sentences are erroneously lenient

Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 16BA, 16AAA, 16AAB, 16AAC
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth).
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Code Act 1995 (Cth), ss 11.5, 307.1, 400.3
Surveillance Legislation (Confirmation of Application) Act 2024 (Cth)

Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
CD v The Commonwealth of Australia; CD v Director of Public Prosecutions (SA) [2025] HCA 37; (2025) 99 ALJR 1388
Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60
D’Agostino v R [2023] NSWCCA 212
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
Khorami v R; R v Khorami [2021] NSWCCA 228
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v AD [2020] NSWCCA 275
R v Jacobs Group (Australia) Pty Ltd (2022) 108 NSWLR 377; [2022] NSWCCA 152
R v Kassir [2020] NSWCCA 88
R v Liavaa; Liavaa v R [2025] NSWCCA 101
R v Robertson; R v Westwood [2024] NSWDC 528
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v White [2025] NSWCCA 111
Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75
Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Texts Cited: Australian Law Reform Commission, Sentencing (1988)
Commonwealth House of Representatives, Parliamentary Debates (Hansard), 11 September 2019
Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth)

Category: Principal judgment

Parties: 2022/69833
Rex (Appellant)
Michael Robertson (Respondent)
2022/69874
Rex (Appellant)
Kieron Ronald Westwood (Respondent)

Representation: Counsel:
S Callan SC; E McGinnes (Rex)
S Buchen SC; J Caldwell (Michael Robertson)
P Strickland SC; R McMahon (Kieron Ronald Westwood)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Gregory J Goold Solicitor (Respondents)

File Number(s): 2022/69833;
2022/69874

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondents, Mr Westwood and Mr Robertson, pleaded guilty to offences arising from their involvement in a conspiracy with others to import a commercial quantity of heroin and methamphetamine. On 8 November 2024, the sentencing judge, Newlinds SC DCJ, sentenced Mr Westwood to 8 years’ imprisonment with a non-parole period of four years (expiring 9 March 2026) for one count of conspiring to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) (Criminal Code) and Mr Robertson to 9 years’ imprisonment with a non-parole period of four years and six months (expiring 9 September 2026) for the same offence. Mr Robertson had also asked the Court to take into account on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) (Crimes Act) the offence of conspiracy to deal with proceeds of crime to the value of $1,000,000 or more contrary to ss 11.5(1) and 400.3(1) of the Criminal Code.

The sentencing judge assessed the objective seriousness of the offending as “significantly below the high range” and found that each respondent had an “extremely powerful” subjective case. His Honour also gave weight to the fact that the pleas were entered in circumstances where the case against each respondent was wholly dependent on evidence sourced from their communications using the encrypted communications network platform “AN0M” at a time when the admissibility of such evidence was under significant challenge in courts around Australia. His Honour took into account the benefits to the community resulting from the pleas of guilty in two ways. His Honour afforded “significant weight” to the fact that the pleas were entered in the circumstances of the AN0N litigation. He also gave a 25% discount for the “utilitarian value” of each plea.

The Crown appealed pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). The three questions on appeal were:

(1) Whether the sentencing judge erred in his approach to taking into account the pleas of guilty by each offender, namely in discounting the sentence on account of the utilitarian value of the offenders’ plea having been entered despite a challenge on foot to the admissibility of evidence obtained from the AN0M application? (Ground 1)

(2) Whether both the head sentences and non-parole periods imposed were manifestly inadequate? (Ground 2)

(3) Whether, if the answer to (1) or (2) is “yes”, the Court in the exercise of its residual discretion should nevertheless decline to intervene?

The Court (McHugh JA, Ierace and Cavanagh JJ) held, dismissing both appeals:

As to question (1)

(1) The Crown’s argument was that in sentencing for federal offences the objective benefit to the community for a plea of guilty may only be taken into account in accordance with s 16A(2)(g) of the Crimes Act. While the Crown accepted that the guilty pleas had provided a significant objective benefit to the administration of justice in encouraging accused persons to plead guilty in other AN0M related prosecutions, it submitted that s 16A(2)(g) extends only to the “utilitarian value” of the plea, in the limited sense of immediate benefit to the community in avoiding a trial on the charge to which the offender has pleaded guilty. However, on the proper construction of s 16A(2)(g) the limiting question is not whether the claimed benefit arises directly from avoiding a trial in the particular matter. It is whether the plea “resulted in” a particular benefit to the community, the victim or the witnesses: [47]-[48], [78]; [85]-[106].

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, discussed.

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, cited.

(2) In addition to taking the pleas of guilty into account as providing those benefits to the community, his Honour also took them into account as demonstrating a subjective willingness to facilitate the course of justice, as well as remorse. Those matters were conceptually distinct, and taking them into account did not necessarily involve double counting or otherwise constitute error. The Crown had not shown that the sentencing judge erred in taking some matters into account as part of the process of instinctive synthesis while also quantifying a discount to the sentence: [69], [107]-[121].

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4; Giles-Adams v R; Preca v R [2023] NSWCCA 122, cited.

As to question (2)

(3) The sentences for both Mr Westwood and Mr Robertson were manifestly inadequate. They were out of step with other sentences for offences of this type and did not reflect a just sentence having regard to the purposes of sentencing, particularly the need for general deterrence in sentencing for this type of offending: [123]-[149].

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Everett v The Queen (1994) 181 CLR 295 at 306; [1994] HCA 49; R v Liavaa*;* Liavaa v R [2025] NSWCCA 101; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA, cited.

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75, applied.

As to question (3)

(4) A finding that a sentence is manifestly inadequate does not mandate that the appeal be allowed and the respondents be resentenced. This Court has a discretion to decline to interfere with the sentence even if the sentence is erroneously lenient. Examining the individual cases of each respondent, the Court exercised the residual discretion to decline to intervene in both appeals: [150]-[172].

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; R v White [2025] NSWCCA 111, applied.

R v Jacobs Group (Australia) Pty Ltd (2022) 108 NSWLR 377; [2022] NSWCCA 152; Khorami v R; R v Khorami [2021] NSWCCA 228; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, cited.

JUDGMENT

1. THE COURT: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against sentences imposed on 8 November 2024 by Newlinds SC DCJ on the respondents, Keiron Westwood and Michael Robertson, for their involvement in a conspiracy with others to import a commercial quantity of heroin and methamphetamine: R v Robertson; R v Westwood [2024] NSWDC 528 (“ROS”).

2. Both respondents had entered pleas of guilty before the Local Court. The offences and sentences were as follows:

3. Mr Westwood:

(a) one count of conspiring to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Schedule to the Criminal Code Act 1995 (Cth) (“Criminal Code”); (b) 8 years’ imprisonment with a non-parole period of four years (expiring on 9 March 2026).

2. Mr Robertson:

(a) one count of conspiring to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1). Mr Robertson also asked the Court to take into account on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth) (“Crimes Act”) the offence of conspiracy to deal with proceeds of crime to the value of $1,000,000 or more contrary to ss 11.5(1) and 400.3(1) of the Criminal Code; (b) 9 years’ imprisonment with a non-parole period of four years and six months (expiring 9 September 2026).

3. The non-parole period was 50% of the head sentence in each case.

4. The respondents do not dispute that these were very lenient sentences. The offence of conspiracy to import a commercial quantity of border controlled drugs is punishable by life imprisonment and/or 7,500 penalty units (“the principal offence”). The additional offence that Mr Robertson asked the sentencing judge to take into account pursuant to s 16BA (dealing with proceeds of an indictable crime in excess of $1 million) is punishable by 25 years’ imprisonment and/or 1,500 penalty units (“the Schedule offence”).

5. Reading the remarks on sentence as a whole, the leniency was largely driven by the following three matters (but particularly the second and third).

6. The sentencing judge assessed the objective seriousness of the offending as “significantly below the high range”: ROS [56]. His Honour was not satisfied that the respondents were leading members of the syndicate or that they had a principal role in the operation: ROS [53]. His Honour drew an analogy between the respondents’ roles in the conspiracy and that of an investor investing money in a joint enterprise with a view to making profit, in circumstances where the extent of the respondents’ financial contributions was unknown: ROS [52], [54].

The fact that his Honour did not say how far below the high range the seriousness of the conduct lay gave rise to some debate on the appeal.

2. The sentencing judge found that each respondent had an “extremely powerful” subjective case: ROS [28], [68], [111].

The Crown did not challenge those findings on appeal.

3. The sentencing judge gave much weight to the fact that the pleas were entered (a) in circumstances where the case against each respondent was wholly dependent on evidence sourced from their communications using the encrypted communications network platform “AN0M”, and (b) at a time when the admissibility of such evidence was under significant challenge in courts around Australia. In addition to a quantified 25% discount for the guilty pleas, his Honour made “a significant further reduction for the other factors which I consider extremely relevant to that plea of guilty”: ROS [111].

The Crown’s challenge to his Honour’s approach to the pleas of guilty is central to the appeal.

6. The three main questions on the appeal are as follows.

7. Whether, as the Crown complains in Ground 1:

“The sentencing judge erred in his approach to taking into account the pleas of guilty by each offender, namely in discounting the sentence on account of the utilitarian value of the offenders’ plea having been entered despite a challenge on foot to the admissibility of evidence obtained from the AN0M application”.

2. Whether, as the Crown complains in Ground 2:

“Both the head sentences and non-parole periods imposed were manifestly inadequate.”

3. Whether, if either ground is made out, the Court in the exercise of its residual discretion should nevertheless decline to intervene.

4. For the reasons which follow, Ground 1 is not made out. Although Ground 2 is made out, in the circumstances of this case the Court should exercise its residual discretion to decline to interfere with the sentences.

Background

8. The proceedings on sentence were conducted on a statement of agreed facts. The respondents conspired with at least four others to import the drugs by way of air cargo consignment from Malaysia landing in Melbourne on 23 March 2021. The quantity of drugs imported was about 400 kg. Although the consignment was not intercepted and the purity of the heroin and methamphetamine was unknown, his Honour found that the consignment contained “a significant amount of heroin and methamphetamine, well beyond the commercial quantity threshold”: ROS [8]. That finding is not challenged. Encrypted messages to or from each respondent indicated that the expected sale price of heroin in Melbourne was $300,000 per kilogram.

9. As to the Schedule offence, his Honour found that AN0M messages between Mr Robertson and another conspirator (not Mr Westwood) demonstrated that Mr Robertson was trying to deal with about $5 million in cash, so as to “clean” it.

10. The importation on 23 March 2021 was the 14th of 15 consignments forming what his Honour found was a very significant importation stream. Although the respondents were not being sentenced for any involvement in any of the other consignments (indeed, on the appeal, it was not suggested that they had any such involvement), his Honour found that the respondents knew of the stream’s methodology and believed it to be successful. The methodology involved a means of bringing drugs into the country without detection, termed a “door”, for which those who operated the door received a fee calculated on a percentage basis.

11. It is convenient to address the sentencing judge’s findings under the following headings, which largely follow the scheme of the remarks on sentence, save that in what follows the discussion of the AN0M issues is deferred to Ground 1.

Objective seriousness

12. As to the objective seriousness of the offending, the sentencing judge referred to s 16A(2)(a) of the Crimes Act (“the nature and circumstances of the offence”). His Honour said it was not in dispute that each respondent’s involvement in the conspiracy was indistinguishable from the other’s. His Honour rejected the Crown’s submission that the offending was in the “high range” of objective seriousness. His Honour said at ROS [15]:

“For reasons I will come to, I accept in general terms the submissions made on behalf of each Offender that the objective seriousness of the offending is much less than contended for by the Crown. I reject the Crown’s characterisation that the Offenders were ‘leading members of a criminal syndicate’. I also do not consider what they did to be particularly sophisticated at all. How much money they stood to make is not clear.”

13. His Honour did not specify how “much less than” the “high range” the seriousness of the offending was.

14. However, his Honour returned to s 16A(2)(a) later in his remarks, paying particular attention to the role and position of the respondents in the conspiracy, citing Tyler v Regina; R**egina v Chalmers [2007] NSWCCA 247; (2007) 173 A Crim R 458 at [78]-[85]. It was not in dispute that the respondents had contributed funds for the purposes of carrying out the conspiracy. Having read the AN0M messages in order to form a view as to what the respondents were actually doing and where they stood in the hierarchy of the conspiracy, at ROS [52]-[56] his Honour likened the respondents to investors:

“[52] … investing money into a joint enterprise with a view to making profit. Unlike some investors who have no visibility as to how their investment is being managed, and little or no ability to give directions as to how it should be managed, it is clear that the Offenders here knew the venture involved the importation of large quantities of drugs into the country and had an ability to ask questions and receive information as to how the shipment of drugs was proceeding, what type of drugs were involved, and what the return on their investment might be. They certainly felt able to offer suggestions, although it is not clear whether anyone else in the syndicate took any notice of those suggestions. I also think that the Crown has not proved that they were a major investor. There is no evidence at all as to how significant their contribution of capital to the enterprise was in terms of amount or even relative to others involved.

[53] I am not satisfied that they were leading members of the syndicate or that they had a principal role in the operation.

[54] Rather, I think that they invested money into an illegal venture which they knew would involve the importation of a significant amount of illicit drugs into Australia with a view to making profit. It cannot be demonstrated, although the Crown has tried to do so by an arithmetical exercise linked to some statements in the communications, how much that financial reward might have been, however, I think it would be fair to say, and I do not think this is in issue and I am satisfied beyond reasonable doubt, that the anticipated return on investment was ‘significant’.

[55] As to the nature and quantity of the drugs imported, Mr Strickland SC [appearing for Mr Westwood] has emphasised that it would be quite wrong as a matter of law to accept the Crown submissions as to quantity of the drugs, which is not based on any analysis of the pure amount of drugs imported, but rather is based on a gross weight of drugs, presumably mixed with other material: see R v King (1978) 24 ALR 346 and paragraph 7.3.1 of Anderson, Commonwealth Criminal Law (3rd ed, 2022) at 235. I accept that submission. Nonetheless, the plea indicates that the amount of drugs was above the threshold, but more importantly on any view of the evidence, the amount of drugs involved was significantly above the statutory threshold. However, I can make no finding as to precisely by how much.

[56] For all those reasons, I reject the Crown's invitation to find that the level of offending is in the ‘high range’ and prefer the description that I have tried to set out above, which I think (again at the risk of being criticised for adopting ‘tags’) places the activities of the Offenders significantly below the high range, as an investor with some transparency into management of the investment, but little or no control.”

Other offences required to be taken into account: s 16A(2)(b)

15. As to the Schedule offence, the sentencing judge found that Mr Robertson gave considerable thought to the logistics and cost of laundering the money. However, his Honour was unable to determine whether the monies the subject of the money laundering offence were linked to the conspiracy to import, or the degree (if any) of overlap between the principal offence and the Schedule offence.

Specific deterrence, general deterrence, and adequate punishment: s 16A(2)(j)-(k)

16. The sentencing judge noted that it has been said many times that “general deterrence for drug-related offences is a leading consideration in the sentencing exercise: see for example Lazarus v The King [2023] NSWCCA 214 (‘Lazarus’) at [1]-[6] per Beech-Jones CJ at CL”: ROS [30]. Later in his remarks, his Honour said that general deterrence had significant work to do in this sentencing exercise, and that the community needed to receive a clear unequivocal and consistent message that offending of this kind will be met with extremely stern punishments. Referring to s 16A(2)(k) (“the need to ensure that the person is adequately punished for the offence”), his Honour said that whatever subjective features may present in any particular case, the Court must also strive to reconcile those with a sentence that is commensurate with the criminality involved and the need for general deterrence. However, his Honour did not specifically return to that subject later in his reasons, including in the Resolution section of the remarks.

17. As to specific deterrence, the sentencing judge was satisfied that neither respondent presented a significant risk of reoffending, and did not accord the question of specific deterrence significant weight.

The respondents’ subjective cases

18. The sentencing judge dealt with the subject of “contrition” under two headings. The first was in two paragraphs under the heading “Contrition and guilty plea: s 16A(2)(f)-(g)”. That material is discussed below in connection with the AN0M issue.

19. The second was under the heading “Contrition (s 16A(2)(f)), cooperation with law enforcement (s 16A(2)(h), s 23 CSPA), and prospects of rehabilitation (s 16A(2)(n))”, where his Honour dealt separately with Mr Westwood and Mr Robertson.

20. As to Mr Westwood, the sentencing judge referred to his having been sentenced to a term of two years’ imprisonment for a drug supply offence in 2000. His Honour said that in light of Mr Westwood’s personal circumstances, “the relevant factor to my mind is a lack of any significant criminal history for the last 24 years”: ROS [77].

21. With respect to Mr Westwood’s personal circumstances, the sentencing judge referred to the respondent’s experience of childhood and adolescent trauma, noting that he was a direct victim of significant family violence, that he had had early exposure to alcohol and other substance abuse and violence and crime within his extended family and communities, and that his parents separated and he had lost contact with his biological father. It was common ground that his experiences engaged the principles described in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), “as explained in cases like R v Irwin [2019] NSWCCA 133”. The sentencing judge also said that he was comfortably satisfied “that there is a direct link between Mr Westwood’s traumatic and disadvantaged upbringing and the offending and will give it full weight”: ROS [81].

22. Referring to Mr Westwood’s diagnoses of substance use disorder, personality disorder, substance induced mood disorder, generalised anxiety disorder, a reading disorder and bipolar disorder, the sentencing judge said “[t]he same can be said of his mental health issues, which I think are causally connected to the offending and are probably themselves in part a consequence of his traumatic childhood”: ROS [81]. His Honour accepted expert opinion explaining how these conditions had contributed to the offending, which occurred when Mr Westwood was under psychological stress, including financial stress and the stress of supporting a child with special needs. He found that the offending was motivated by financial stress in circumstances where his decision-making was affected by his personality disorder, which in turn arose out of his developmental history.

23. The sentencing judge found that Mr Westwood’s behaviour while in custody to date had been outstanding, that he had recognised the harm his offending had done to himself, his family and his community, that he had accepted responsibility for the offence and expressed significant and genuine remorse, and that he had a deep love and commitment to his children and a deep sense of responsibility in particular to his youngest son who requires significant support.

24. His Honour found that Mr Westwood had excellent prospects of being fully rehabilitated and a very low likelihood of reoffending.

25. As to Mr Robertson, the sentencing judge referred to a “largely historical and unrelated and relatively minor” criminal history, stating, “I again note that in light of his upbringing the surprising factor is the lack of any significant criminal history”: ROS [89].

26. His Honour accepted evidence, which was corroborated from a variety of sources and not challenged by the Crown, that Mr Robertson’s father was a heroin addict and his mother “dabbled in drugs”; that his earliest childhood memory was of his mother’s boyfriend entering his home and threatening to shoot his father with a gun; that people often came to the house looking for his father because he owed them money for drugs; that his father was constantly involved in criminal activity and was almost always on drugs, including shooting up heroin in Mr Robertson’s presence; that he had moved home regularly and went to many different schools; and that his stepfather was an extremely violent man who assaulted his mother at least once or twice a week.

27. His Honour found that Mr Robertson suffers from PTSD, major depressive disorder and a stimulant and sedative substance disorder. His Honour said that the medical practitioners who had examined Mr Robertson believed there was a direct causal relationship between his background and the offending, and “I accept that Mr Robertson is entitled to the full benefit of the Bugmy-type principle”: ROS [91]-[92], [95]. He found that Mr Robertson’s motive was a perceived desperate need to extract himself from poverty.

28. The sentencing judge said that Mr Robertson’s remorse and contrition were significant. He found that Mr Robertson was genuinely and deeply remorseful for his conduct and had insight into the consequences of his offending. He had also been an exemplary prisoner. Finally, his Honour found that Mr Robertson suffers from a significant spinal issue (lumbar spine degeneration and disc protrusion and annular fissuring) which made his time spent in custody more onerous than for other people.

29. It should be noted that, depending on the way in which the ROS are to be read, a further factor relevant to the respondents’ subjective cases was their willingness to facilitate the administration of justice by pleading guilty, at a time when the AN0M challenge was unresolved. That issue is discussed in the context of Ground 1 below.

The probable effect that any sentence or order would have on any of the persons’ family or dependants: s 16A(2)(p)

30. The sentencing judge accepted that both respondents have at least one child who is significantly developmentally impaired. He found that the respondents’ absence from family life would have an adverse consequence on their families and particularly their children, saying that the families would be significantly affected.

Parity

31. In an earlier section of the reasons, putting to one side the Schedule offence in relation to Mr Robertson, the sentencing judge had said that the respondents’ involvement in the principal offence was for all intents and purposes indistinguishable. After referring to their subjective cases, “which I must say are both extremely powerful even though there are some aspects of their positions which point in different directions”, his Honour had said that there was no other distinguishing factor. He said that if it were not for the matter on the Schedule, he would have concluded that it was appropriate for each respondent to receive the same penalty for the principal offence.

32. His Honour returned to the question of parity at the beginning of the “Resolution” section of his remarks. After repeating that the respondents “both have extremely powerful subjective cases”, his Honour said that both respondents were entitled to the full weight of “the Bugmy-type considerations”: ROS [105]-[106]. He repeated that, taking all matters other than the offence on the Schedule together, the appropriate outcome would be the same sentence for each respondent in relation to the principal offences.

Comparative cases

33. The Crown had provided the sentencing judge with a table of some 14 appellate cases involving offences relating to importing a commercial quantity of border controlled drugs. His Honour addressed this topic in two short paragraphs at ROS [109]-[110]. He said that “the so-called comparative cases … do not appear to be comparative at all, other than they are for the same offences” and that “the apparent ‘range’ is extremely broad”. His Honour did not otherwise engage with those cases.

34. It might be noted that the shortest sentences among the cases on the table were 10 years 6 months with a non-parole period of 6 years 3 months (D’Agostino v R [2023] NSWCCA 212, refusing leave to appeal from the sentence imposed at first instance as not manifestly excessive); and 10 years with a non-parole period of 6 years and 6 months (R v Kassir [2020] NSWCCA 88, allowing a Crown appeal against a sentence of 8 years with a non-parole period of 5 years and 6 months as manifestly inadequate). The sentences his Honour imposed on the respondents in this case were thus below the lower end of the “extremely broad” “range” identified in the Crown table.

35. It might also be noted that at the hearing of the appeal the Court was not taken to any decision involving the importation of a commercial quantity of border controlled drugs in which the sentence imposed was as lenient as the present sentences.

The sentences imposed

36. The sentencing judge’s final reasoning explaining the two sentences was as follows:

“Conclusions

[111] Taking everything I have mentioned into account and after deducting 25% for the guilty plea and a significant further reduction for the other factors which I consider extremely relevant to that plea of guilty, together with the extremely powerful subjective cases presented by each Offender, whilst trying not to lose sight of the objective seriousness of the offending itself, I have determined that, for Mr Westwood, an appropriate head sentence is 8 years imprisonment.

[112] As to Mr Robertson, taking into account the matter on the section 16BA offence, I consider an appropriate head sentence for him to be 9 years imprisonment. I have limited myself to increasing the appropriate penalty for the principal offence, giving some extra weight to the need for personal deterrence and the community’s right to expect some retribution.

[113] As to the time to be spent on parole, I consider it would benefit both Offenders and their family members immensely if a significantly longer period than might ordinarily be anticipated was spent on parole. I propose to allow a period of 50% as the non-parole period.”

37. Those conclusions focussed on the guilty plea, the respondents’ subjective cases, and the benefit to the respondents and their family members of a longer parole period. Although his Honour referred to “trying not to lose sight of the objective seriousness of the offending itself”, it is difficult to discern what weight he gave to that matter or to the significance of general deterrence.

Ground 1

38. As noted above, Ground 1 is:

“The sentencing judge erred in his approach to taking into account the pleas of guilty by each offender, namely in discounting the sentence on account of the utilitarian value of the offenders’ plea having been entered despite a challenge on foot to the admissibility of evidence obtained from the AN0M application”.

39. To describe a plea of guilty as having a “utilitarian” value draws attention to the fact that the plea is given a role in determining the sentence which is unconnected with the conventional purposes of criminal sentencing. For example, a plea of guilty will save the community the cost, and the victim and witnesses the anxiety, distress and delay, of a trial in the particular case. Those are objective benefits to the community which have nothing to do with the circumstances of the offence or the conduct of the offender, and which flow from an act of the offender that is not directly related to any of the objectives designed to be served by the sentencing process: deterrence, rehabilitation, punishment, etc.: see R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (“Thomson”) at [115] per Spigelman CJ, giving the judgment for a five-member bench of the Court. Those objective benefits are nevertheless given a value in the sentencing process (conventionally by way of quantified discount), whether or not the plea was motivated by remorse or a subjective willingness to facilitate the course of justice, and no matter how strong the Crown case may have been.

40. In this case, the pleas of guilty were said to have produced an additional objective benefit to the community: encouraging other accused in other matters to plead guilty, in circumstances in which there was a widespread unresolved challenge to the admissibility of evidence derived from a particular source (the AN0M app, discussed below). The effect of Ground 1 is to describe that additional objective benefit as having been given a “utilitarian value” in the sentencing process, in the sense used above, although that value was not quantified. There is nothing wrong with that description in principle. However, in order to avoid confusion, in these reasons the words “utilitarian value” will generally be used to refer to the conventional quantified discount for the immediate benefit to the community of avoiding a trial in the particular case, rather than to the unquantified value the sentencing judge gave to any additional objective benefit that the pleas of guilty provided by encouraging other accused to plead guilty.

41. His Honour explained the background to the AN0M challenge as follows.

“[19] It is a matter of public record that there is a significant issue before the Courts in this country, arising out of evidence obtained by various prosecuting authorities from what are described as ‘ANOM’ communications. ‘ANOM’ is some form of application (‘app’) used on computer type devices that allows for encrypted communication between participants: See Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82 (“the South Australian litigation”) and for example, Lee v R (Cth) [2024] NSWCCA 202 at [18]-[32].

[20] My understanding is that the investigating authorities developed the app, building into it for themselves secret access to the app’s content, which has allowed the authorities to ‘intercept’ what people thought was a means of communication that was encrypted in a way that could not ever be accessed by others. This has resulted in very many prosecutions against people for very serious criminal activity. In short, the prosecuting authorities developed the encrypted messaging application, but left for themselves a ‘backdoor’, where they could access ‘encrypted’ communications freely.

[21] The admissibility of that material is under challenge in various Courts throughout the country. In the South Australian litigation, the question has been decided both at first instance and before the Court of Appeal, where the objection to admissibility failed. Those matters are now the subject of an appeal to the High Court of Australia, special leave having been granted on 7 November 2024: CD & Anor v Director of Public Prosecutions (SA) & Anor [2024] HCASL 297.

[22] In New South Wales, there is another stream of litigation. I understand there has been considerable evidence heard before a Local Court on a committal hearing as to how the prosecuting authorities managed to effectively ‘crack’ the system and obtain the information. I am told that there are significant expert issues between competing experts and that the factual underpinning of any challenge to evidence from ANOM in New South Wales will be based on that evidence, which is different to the evidence that was before the Courts in South Australia. What this means is the outcome of the South Australian litigation in the High Court may well not be determinative of the admissibility of ANOM evidence in NSW or indeed anywhere.

[23] All of this has resulted in approximately 50 significant Commonwealth criminal prosecutions in this state, and many others throughout Australia, being effectively put on hold pending resolution of this issue.”

42. Since that time the issue has been put to rest only by a decision of the High Court of Australia which held that the confirmatory legislation (the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth)) was not constitutionally invalid: CD v The Commonwealth of Australia; CD v Director of Public Prosecutions (SA) [2025] HCA 37; (2025) 99 ALJR 1388.

The debate as to the way in which his Honour took the AN0M challenge into account

43. There was a debate in this Court about the effect of the remarks on sentence. In order to determine whether there was error, it is necessary to identify in what ways his Honour took into account the fact that the pleas of guilty were given in the context of the unresolved AN0M challenge.

44. Before turning to what his Honour said, it is convenient to state the issues in a summary way. It is also convenient to give some context to his Honour’s remarks by reference to the submissions that had been made at first instance about the significance of the AN0M challenge.

45. In this Court, it was submitted for Mr Westwood in writing at par 13 that his Honour “took into account the respondent’s plea of guilty in three or perhaps four ways”. The hearing was to some extent conducted by reference to those four ways, which were as follows.

46. His Honour gave “a quantified discount of 25% for the utilitarian value of the pleas”.

(That is, the conventional discount for the benefit to the community of an early plea of guilty by avoiding a contested trial in the particular case, unconnected with the AN0M challenge: see Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 at [269]-[274], [278] (“Xiao”). This was unrelated to the significance of the pleas for the respondents’ subjective cases.)

2. His Honour made “an additional (unquantified) reduction for the utilitarian impact of the pleas because the pleas ‘provided a significant benefit to the administration of justice’: ROS [71]”.

(ROS [71] stated that “there is a real significance to the guilty pleas in this case over and above what is provided for in [the 25%] discount. … [I]n the circumstances of the ANOM litigation, I consider that the guilty pleas have provided a significant benefit to the administration of justice in this country”. The additional “benefit” of the pleas was encouraging others to plead guilty rather than challenge the admissibility of AN0M-sourced evidence, thus avoiding trials in other matters. This was unrelated to the significance of the pleas for the respondents’ subjective cases.)

3. The pleas were “demonstrative of contrition and remorse”.

(That is, they were taken into account in the conventional way as part of the respondents’ subjective cases.)

4. The pleas were “demonstrative of a willingness to facilitate the course of justice”.

(That is, they were taken into account as a further and distinct aspect of the respondents’ subjective cases: see Giles-Adams v R; Preca v R [2023] NSWCCA 122 (“Giles-Adams”) at [79] per Yehia J (Wright and Chen JJ agreeing).)

46. The effect of the Crown submissions in this Court was as follows.

47. The sentencing judge took the pleas into account in at least the second way (additional objective benefit in light of AN0M challenge). This was impermissible, constituting error.

48. Alternatively or additionally, his Honour took the pleas into account in both the second way (additional objective benefit) and the fourth way (subjective willingness to facilitate the course of justice). That involved impermissible double counting, constituting error.

49. The Crown’s complaints of error both depended on his Honour’s having taken the pleas into account in the second way (additional objective benefit). However, it should be noted immediately that the Crown did not dispute that the guilty pleas had provided a significant benefit to the administration of justice in the circumstances of the AN0M challenge: Tcpt, 31 October 2025, 62.49-63.16. The Crown’s complaint instead concerns the way that his Honour took that acknowledged significant benefit into account.

50. The appeal should be determined on the basis of the Crown’s acceptance that the guilty pleas had provided such an additional benefit.

51. Further, (putting to one side a question of statutory construction and some uncertainty arising from the language used in the ROS), Ground 1 should be considered on the basis that the Crown’s substantive complaint is one of double counting involving that additional benefit. It will be seen that, in the absence of double counting of one kind or another, Ground 1 goes nowhere.

52. The effect of Mr Westwood’s submissions (which were largely adopted by Mr Robertson) was as follows.

53. The sentencing judge took the pleas into account either in all four ways, or else in all but the second (additional objective benefit) way.

54. The second (additional objective benefit) way was in any event not impermissible.

55. The second (additional objective benefit) and fourth (subjective willingness) ways were conceptually distinct, such that if his Honour took the pleas into account in both ways there was no double counting.

The submissions on the issue at first instance

51. The parties’ submissions relevant to the AN0M issue, both at first instance and in this Court, referred to s 16A(2)(f) and (g) of the Crimes Act. Those provisions are as follows:

In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

…

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

…

(g) if the person has pleaded guilty to the charge in respect of the offence:

(i) that fact; and

(ii) the timing of the plea; and

(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence; …

52. It will be necessary to say something more of those provisions, and particularly par (g), below.

53. Before the sentencing judge, the section of Mr Westwood’s written submissions under the heading “Plea of guilty (16A(2)(g))” included the submission at par 29: “The discount to be applied to this case should be 25% for the utilitarian value of the plea.” Mr Westwood’s plea of guilty was also said to establish two subjective factors: his “willingness to facilitate the course of justice”, and remorse: par 33.

54. In oral submissions to the sentencing judge, Senior Counsel for Mr Westwood went further:

“… Your Honour’s heard that there’s approximately 50 matters in this state alone on Commonwealth matters and other matters involving AN0M on a state matter.

The whole idea of taking into account, and we say giving full weight to, persons assisting in the administration of justice, it’s public policy. It’s kind of the antithesis of general deterrence. It’s giving a signal to the other people, ‘Look, if you do assist the authorities or the administration of justice, you are going to get a real - it’ll be fully taken into account. Not by way of a discrete discount, but you will see it’. …”

Tcpt, 1 November 2024, 61.45-62.4; emphasis supplied.

55. The sentencing judge appears to have understood that as a submission that the (objective) benefit of signalling to defendants in other AN0M-related matters that they should plead guilty had a distinct value that could also be taken into account in some way, separately from the discrete 25% discount for the utilitarian value of the guilty plea in this case. After Senior Counsel referred to a 25% discount, his Honour said, “Yes, but you want built into the balance, the sentence itself, something more”: Tcpt, 62.18-9. Senior Counsel responded “Exactly”, and a few lines later he repeated that “the AN0M issues are very important because it’s a signal to the hundred other cases”: Tcpt, 62.21-25. He also referred to “a great public interest, a real public interest, in a judgment that reflects and gives full weight to the significance of pleading guilty by ‘giving up’ the AN0M point”: Tcpt, 62.34-36.

56. In written submissions to the sentencing judge, the Crown said:

“Contrition and Guilty Plea: ss. 16A(2)(f) and (g)

58. Each Offender's plea of guilty may be taken into account in two ways:

58.1. In an ‘objective’ sense by assessing the pleas utilitarian value by reference to the factors listed in ss 16A(2)(g). It is preferable for any discount on this basis to be quantified; and

58.2. In a ‘subjective’ sense in that it evidences an offender's willingness to facilitate the course of justice and their remorse. The subjective assessment is unquantified but is part of the process of instinctive synthesis.

59. The Offenders' guilty pleas have utilitarian value (objectively) having been entered in the Local Court (after further evidence was led from experts in the Local Court regarding the AN0M communications) and before committal.

60. The utilitarian value of a plea of guilty (s. 16A(2)(g)) and contrition (s. 16A(2)(f)) are conceptually different. Justice Yehia in Giles-Adams v The Queen at [78] stated that, ‘[t]he former is an objective factor that should be quantified .... The latter is a subjective factor that does not require quantification but may operate to mitigate the sentence as part of the process of instinctive synthesis.’

61. The strength of the Crown case may be taken into account in assessing the subjective value of the plea but is not relevant to assessment of its objective value. For example, a plea of guilty may be actuated by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no mitigation would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which should attract a discount.

62. There may be overlap between subjective aspects of the plea in terms of it reflecting contrition and facilitating the course of justice. The Court must guard against double counting these aspects in a way that is overly favourable to the Offenders.

63. Regarding the subjective value of the pleas for facilitating the course of justice, the Crown case was strong, when the content of the messages are considered.

64. It is accepted the Offenders pleaded guilty before the High Court has granted Special Leave in respect of a legal challenge to the admissibility of the AN0M messages. However, the guilty pleas came after lengthy cross-examination of experts in the Local Court, prior to committal, and after the first instance decision had been delivered in South Australia which ruled that the AN0M communications were admissible (a decision then affirmed by the South Australian Court of Appeal: Criminal several months later).

65. The Crown accepts the guilty pleas have some subjective value indicative of facilitating the course of justice, which is tempered by the strength of the evidence. The Crown submits that the Court would not consider the plea demonstrates an additional willingness to facilitate the course of justice due to the existence of legal challenges to the AN0M evidence, which to date have been unsuccessful.”

Footnotes omitted.

57. In oral submissions, the Crown appeared to change its position as to the significance of the pleas of guilty. The following exchange took place:

“HIS HONOUR: But is ANOM just another thing like Telegram and WhatsApp, whatever they’re all called?

[CROWN]: Well, it was especially developed application for this reason and now we have 49, almost 50 people being prosecuted still in the system. So, it shows the work that ANOM did in exposing some of these syndicates.

HIS HONOUR: But Mr Strickland’s right. It would be helpful to the administration of justice if a message was sent to the people who were signing up to the queue to understand that they might get real benefit from pleading.

[CROWN]: The Crown accepts that and I did convey the same myself.

HIS HONOUR: Yes. Because it just strikes - okay, we all agree.

[CROWN]: There's a matter of - I embrace my learned friend's words – public policy, public interest, in encouraging pleas and—

HIS HONOUR: Because in due course, if the case - if the point is not decided against the Crown, at some stage, in the late 2020s, there's going to be a bit of a tidal wave of cases seeking to catch up which would put the system under pressure which is something to be avoided if it can be.

[CROWN]: In terms of the spectrum of that subjective value, I don't know of any numbers or any specific cases, but if some were - had pleaded before the court of appeal decision - a supreme court decision, for instance, in South Australia, that probably would have been afforded more weight. We have now one after the South Australian case, but arguably, as well, we're in the New South Wales jurisdiction and many counsels will be considering different issues, perhaps, that they'll try to enliven here. That said, I suspect that the High Court will put it to bed, but in this case, that your Honour is dealing with, yes, these pleas have a subjective value for facilitating the course of justice.”

Tcpt, 1 November 2024, 76.17-48; emphasis supplied.

58. The sentencing judge and counsel may have been at cross-purposes. However, the exchange appeared to convey that the Crown agreed that the pleas of guilty could be taken into account in the second way identified above. That is, that the pleas had an additional value by reason of the objective benefit of sending a signal to defendants in other AN0M-related cases to plead guilty, over and above the utilitarian value of avoiding a trial in the case before his Honour. The fact that the Crown referred to “that subjective value” of the pleas and to “a subjective value for facilitating the course of justice” did no more than endorse the legitimacy of taking the pleas into account in the fourth way identified above. Those submissions did not expressly repudiate or exclude taking the pleas into account in the second way identified above.

59. In the result, the sentencing judge appears to have understood:

60. that it was agreed that he could take into account pleas of guilty given in the context of the AN0M challenge as providing an additional objective benefit to the community by facilitating the administration of justice in other cases — the second way identified above; and

61. that the Crown accepted that the pleas also had “a subjective value for facilitating the course of justice” — the fourth way identified above.

62. Those matters are relevant both to understanding how his Honour took the pleas into account, and to the Court’s residual discretion to decline to intervene.

The remarks on sentence as to the significance of the AN0M challenge

61. Against that background, it will be seen that his Honour took the pleas of guilty into account in the second way identified above (additional objective benefit). The better view is that his Honour also took the pleas into account in the fourth (subjective willingness) way.

62. The remarks on sentence should not be read against a standard of perfection. The important thing is what the remarks, read as a whole, disclose about the findings and the reasoning process which resulted in the sentence. The relevant passages are as follows.

63. Paragraphs 16-18:

“The ‘ANOM’ issue in the context of the pleas of guilty

[16] The second matter of some significance is what is described as the ‘ANOM’ litigation.

[17] The topic arises in the context of how much weight, if any, over and above a specific identifiable discount for the utilitarian value of the plea of guilty itself, should be allowed for the benefit to the community and the administration of justice in Australia generally, by pleas of guilty in these sort of cases (i.e. Reliance by the Crown on ANOM material) in the current circumstances.

[18] The point is made on behalf of both Offenders that they have pleaded guilty in circumstances where there is a serious challenge on foot to the admissibility of what is, in effect, the entirety of the Crown case. The Crown accepts that in the peculiar circumstances of the unresolved issues concerning the admissibility of ANOM evidence, the pleas have a significance over and above the ordinary. How much weight should be given to that factor divides the parties.”

Italics supplied.

64. The words in [17], “for the benefit to the community and the administration of justice in Australia generally …” are most naturally read, particularly in the context of what precedes them, as accepting that in “the current circumstances” (i.e., the AN0M challenge), the pleas of guilty provided an additional objective benefit to the community, distinct from the significance of the pleas for the respondents’ subjective cases.

65. There followed the sentencing judge’s explanation of the AN0M challenge at [19]-[23], quoted above. His Honour then said at [24]-[26]:

“[24] It is in that context that I have been invited, on behalf of both Offenders, to give significant weight, over and above what might ordinarily be attracted by an early plea of guilty, when coming to a conclusion as to an appropriate sentence. It is submitted that the plea should be seen as powerful evidence of a willingness to facilitate the orderly administration of the course of justice in Australia: see for example Giles-Adams v The King [2023] NSWCCA 122 at [79]. There is another point made by the Offenders, which is that the pleas should not be seen to have been made in the face of a strong Crown case. Even though the Offenders entered their pleas after the first instance decision in South Australia, the fact is their pleas were entered against the background where it must be accepted that there was a serious challenge to the viability of the Crown case against them. It is clear that the Crown case against the Offenders is based entirely on the material obtained from the ANOM source. If that material is not admissible, the Crown case against each of the Offenders will collapse. On the other hand, it is equally clear that if that evidence is admissible, there is an overwhelmingly strong case against the Offenders. The submission is that I should not assess the plea of guilty against a starting point that it was in the face of a strong, or even inevitable, Crown case. Rather, it should be seen to have been given in circumstances where the Offenders were giving up a real chance of being acquitted.

[25] Secondly and perhaps more importantly, the submission is that the plea of guilty does not just represent significant evidence of contrition and remorse on behalf of the Offenders but it also has produced a significant benefit to the ongoing course of the administration of justice in this country and that there is real utility in there being seen to be a recognition of that and perhaps a message sent to others in similar positions to these Offenders that pleas of guilty entered in circumstances where the outcome of the admissibility of the ANOM communications remains unknown will likely be recognised as beneficial to the orderly operation of the justice system in this country and will have benefit to Offenders on sentence. What weight is given to that benefit will, of course, be dependent on all the factors present in any given case. Nonetheless, there is an obvious benefit to the justice system in providing encouragement to pleas of guilty in these cases in the current, highly unusual circumstances.

[26] I will come to this issue again in my reasons, but in short, I accept the submissions made on behalf of each Offender and propose to allow each Offender not just an expressed percentage to represent the utilitarian value of the plea, but in the overall process of sentencing will give significant weight to the pleas of guilty over and above any arithmetical discount. This is because of the reasons I have just given, but also because I do think that the pleas represent, when taken in context of all of the circumstances, objective evidence of real contrition and remorse.”

Emphasis supplied.

66. Paragraph 24 was directed to the respondents’ submissions about their subjective “willingness to facilitate the orderly administration of the course of justice”. That that is so is reinforced by the references to Giles-Adams and to the strength of the Crown case (a matter relevant to the subjective significance of the plea: see e.g., Chuang, Chih Wen v R; Chen, Chun Hung v R [2020] NSWCCA 60 at [16]-[18] per Basten JA (Rothman J agreeing)). His Honour said at [26] that he “accept[ed] the submissions made on behalf of each Offender”. That appears to have included the submissions at [24].

67. Paragraph 25, by contrast, was directed to a distinct, “and perhaps more important[]”, concept: that the pleas of guilty provided an unusual additional objective benefit to the community. The sentencing judge’s acceptance at [26] of the respondents’ submissions undoubtedly included the submissions referred to at [25]. That amounted to a finding “that the plea of guilty … also has produced a significant benefit to the ongoing course of the administration of justice in this country”, being the “obvious benefit to the justice system in providing encouragement to pleas of guilty in these cases in the current, highly unusual circumstances”. “These cases” were those “where the outcome of the admissibility of the ANOM communications remains unknown”.

68. Paragraph 26 then confirmed that in addition to the “expressed percentage to represent the utilitarian value of the plea”, as part of the process of instinctive synthesis his Honour would “give significant weight to the pleas of guilty over and above any arithmetical discount … because of the reasons I have just given”. Those reasons included, at least, the additional objective benefit of the pleas referred to in [25].

69. In the result, [26] suggests that his Honour was taking the pleas of guilty into account in all four ways identified above.

70. First, the pleas warranted a quantified discount for their utilitarian value in avoiding a trial of the present cases: at [26].

71. The pleas were also taken into account, “over and above any arithmetical discount”, and “in the overall process of sentencing”:

(a) secondly, as providing an additional objective benefit to the community, by encouraging pleas of guilty by others in other AN0M cases: at [25]; (b) thirdly, as showing “real contrition and remorse”: at [26]; (c) fourthly, as showing a subjective willingness to facilitate the administration of justice: at [24].

70. The sentencing judge next addressed the topic under the heading “Contrition and guilty plea: s 16A(2)(**f)-(**g)” at [70]-[71]:

“[70] I have already dealt with the utilitarian value of the plea of guilty, regardless of the fact that there is no statutory mandated percentage in the Commonwealth regime, as is found in the State regime. That being said, I can see no reason why the Offenders should not receive the full benefit of the 25% discount from what would otherwise be their sentences as a direct consequence of their pleas of guilty.

[71] Moreover, as I have already explained, I think there is a real significance to the guilty pleas in this case over and above what is provided for in that discount. The first is that I do consider, in the circumstances, the guilty pleas themselves are significant objective evidence of contrition and remorse. The second is, in the circumstances of the ANOM litigation, I consider that the guilty pleas have provided a significant benefit to the administration of justice in this country and for those two reasons will afford significant weight to the pleas to each Offender over and above that 25%.”

Emphasis supplied.

71. Paragraph 70 was concerned with the orthodox treatment of the utilitarian value of an early guilty plea: his Honour gave a 25% discount. The reference to the “direct consequence of their pleas of guilty” shows that the discount was in recognition of the fact that there would be no trial in the respondents’ matters. It had nothing to do with other cases. That was uncontroversial.

72. Paragraph 71 then addressed “two reasons” for according the guilty pleas significance “over and above” what was provided for in the 25% discount. One reason was subjective “contrition and remorse”. The other reason repeated his Honour’s finding that the guilty pleas had provided an (additional) significant benefit to the administration of justice in the circumstances of the AN0M litigation. That was the second way referred to above in which the pleas were taken into account (as providing an additional objective benefit).

73. In these two paragraphs, his Honour did not separately refer to the fourth way in which the pleas might be taken into account, that is, as evidence of a willingness to facilitate the administration of justice. However, the passage at ROS [24]-[26] quoted above suggests that his Honour did take the pleas into account as evidence of a willingness to facilitate the administration of justice.

74. Finally, the sentencing judge returned to the significance of the pleas at [111]. (It should be remembered that his Honour’s conclusions in that paragraph about the appropriate sentence for Mr Westwood applied equally to Mr Robertson, whose case he had found indistinguishable, save for the Schedule offence.)

“Conclusions

[111] Taking everything I have mentioned into account and after deducting 25% for the guilty plea and a significant further reduction for the other factors which I consider extremely relevant to that plea of guilty, together with the extremely powerful subjective cases presented by each Offender, whilst trying not to lose sight of the objective seriousness of the offending itself, I have determined that, for Mr Westwood, an appropriate head sentence is 8 years imprisonment.”

Emphasis supplied.

75. That paragraph confirmed his Honour’s approach of deducting 25% for the immediate utilitarian value the guilty pleas had in avoiding trials in the respondents’ own matters (the first way of taking the pleas into account identified above). His Honour also took into account “other factors which I consider extremely relevant to that plea of guilty”. Those were the “other factors” to which his Honour had referred earlier. That is, his Honour took into account that the pleas:

76. produced an unusual additional objective benefit for the community by encouraging defendants in other AN0M-related matters to plead guilty (the second way of taking the pleas into account identified above);

77. demonstrated subjective contrition and remorse (the third way identified above); and

78. demonstrated the respondents’ subjective willingness to facilitate the administration of justice (the fourth way identified above).

79. There was debate at the hearing in this Court about whether the remarks on sentence should be read as recording that his Honour took the pleas into account in the fourth way (subjective willingness) but not in the second way (additional objective benefit re other AN0M cases). In light of the analysis above, that reading is not available.

80. One further matter should be noted about [111]. The words “a significant further reduction” should not be read as indicating an impermissible staged approach in which his Honour first determined a notional sentence, then deducted 25% on account of the immediate utilitarian value of the guilty plea, then made further reductions on account of “the other factors”. Instead, the word “further” is fairly to be read as meaning only that the full significance of the pleas of guilty, including the additional objective benefit of encouraging accused in other AN0M matters to plead guilty, was not captured by the 25% discount for the usual utilitarian value of the pleas. On that reading, his Honour simply took into account the other reasons why the pleas were significant as part of the process of instinctive synthesis. Such an approach resulted in the sentencing judge taking into account two different objective benefits of the pleas in two different ways, one quantified, one not. As will be seen, while that approach should not be encouraged, it was not inherently erroneous.

The finding of a significant benefit was not challenged

78. As noted above, the Crown did not dispute that the pleas of guilty had “produced a significant benefit to the ongoing course of the administration of justice in this country”, being the “obvious benefit to the justice system in providing encouragement to pleas of guilty in these cases in the current, highly unusual circumstances” (i.e., the widespread challenge to AN0M-related evidence): at [25]. The Crown did not dispute that this was an additional benefit, beyond avoiding the cost and anxiety of a trial in the particular cases. The appeal should be determined on that basis.

79. Nevertheless, something should be said about the (agreed) finding that the pleas had “produced” such a benefit. Putting to one side anything agreed among the parties, if that finding lacked a proper basis, his Honour’s reasoning from the premise of that finding would not be available.

80. Section 16A(2)(g) refers to “the degree to which th[e] fact [of pleading guilty] and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence”. There was no direct evidence that the pleas in this case had “resulted in” any additional benefit to the community beyond the usual immediate benefit of avoiding a trial in the particular case (the utilitarian value of which was fully recognised in the 25% discount to the sentences). Nor was any such additional benefit readily inferred.

81. In one sense, whenever offender A pleads guilty, and thereby receives a quantified discount to the sentence that would otherwise have been imposed, that circumstance may be seen to “send a message” encouraging the accused X, Y and Z to plead guilty in other prosecutions. That may be seen as an indirect benefit to the community of offender A’s plea. But it is really the discount, and in particular the quantified size of the discount, that encourages X, Y and Z to plead guilty, rather than A’s plea itself. It is not suggested that in the ordinary case any indirect benefit of A’s plea (by encouraging X, Y or Z to plead guilty in other prosecutions) should be separately taken into account in the process of instinctive synthesis. The value of any such indirect benefit is ordinarily part and parcel of the quantified utilitarian discount to A’s sentence.

82. Yet the additional value of the guilty pleas asserted here was of that nature: the benefit to the community of encouraging accused persons to plead guilty in other AN0M-related prosecutions. It is not clear how, in principle (as opposed to in degree), the pleas in the present cases differed from any other in that respect. The extent to which the pleas were taken into account in the respondents’ sentences (other than through the 25% discount) was not quantified, and was therefore not transparent (cf. Xiao at [279]-[280]). It is thus not obvious how the respondents’ pleas could be said to have “resulted in any [additional] benefit to the community” by encouraging accused in other AN0M-related prosecutions to plead guilty, other than as a matter of degree.

83. However, neither the finding that the pleas had resulted in a distinct additional objective benefit to the community by encouraging persons accused in other AN0M-affected prosecutions to plead guilty, nor the sentencing judge’s evaluative assessment that the benefit was “significant”, was challenged on appeal. As explained above, the ROS should be read as recording that his Honour took that additional benefit into account in the process of instinctive synthesis.

84. Against that background, Ground 1 raises three questions. Was the sentencing judge entitled to take into account the significance of that (undisputed) additional objective benefit:

85. at all (which raises a question of construction of s 16A(2)(g))?

86. at the same time as taking the pleas into account in the three other ways he did (a question of double counting)?

87. in an unquantified way as part of the process of instinctive synthesis, separately from the quantified 25% discount for the immediate utilitarian value of the pleas in the particular cases (a question of permissible approach)?

First question: construction of s 16A(2)(g)

85. The Crown’s argument was that in sentencing for federal offences, (1) the objective benefit to the community of a plea of guilty may be taken into account only in accordance with s 16A(2)(g); and (2) that that provision relevantly extends only to the “utilitarian value” consisting in the immediate benefit to the community in avoiding a trial on the charge to which the offender has pleaded guilty, as opposed to any benefit relating to other proceedings.

86. The first proposition may be contestable. That is partly because of the opening words of the subsection: “In addition to any other matters, the court must take into account …”. It is also because of the authorities referred to in Xiao at [273], some of which suggested that even prior to the introduction of statutory authority in s 16A, a discount could be made to the sentence in recognition of a guilty plea, even where there was no evidence of remorse and in the face of a strong Crown case.

87. But it is unnecessary to decide that issue, because the second proposition should be rejected as a matter of statutory construction. As noted above, s 16A(2)(g) provides:

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

…

(g) if the person has pleaded guilty to the charge in respect of the offence:

(i) that fact; and

(ii) the timing of the plea; and

(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence; …

88. On the Crown’s construction, the words “any benefit to the community” are confined to the “utilitarian value” of the plea, understood as meaning only the saving to the community by avoiding a contested trial in the particular case.

89. The first difficulty with this argument as it was advanced is that it focussed on the scope of the words “utilitarian value”. But s 16A(2)(g) is not expressed in terms of “utilitarian value”. The words to be construed are “any benefit”.

90. Secondly, in Xiao a five-member bench of the Court concluded, after an exhaustive consideration of the authorities, that in federal sentencing the “utilitarian value” of a guilty plea was to be taken into account pursuant to s 16A(2)(g) as it then stood. As will be seen, the sense in which the term “utilitarian value” was used in Xiao was not confined to the benefit to the community of avoiding a contested trial in the particular case.

91. The form of par (g) considered in Xiao was narrower than the present formulation: “(g) if the person has pleaded guilty to the charge in respect of the offence — that fact”: see at [93]. Construing that provision, the Court held at [277]-[278]:

“[277] In providing for the fact of a plea to be taken into account, in our opinion, the legislature intended the encouragement of guilty pleas not only to provide evidence for remorse or contrition but to assist in the administration of justice. ...

[278] In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed.”

Citations omitted.

92. Although the Court did not separately define “utilitarian value”, it said at [226]:

“The essential question is whether there is an implied limitation in the provision which precludes taking into account what is generally described as the utilitarian value of the plea, as distinct from whether it demonstrates a subjective willingness on the part of the offender to facilitate the course of justice.”

93. Referring to the position at the time of the enactment of s 16A, which came into operation in 1990, the Court said at [228] that there had been uncertainty as to the manner in which a plea of guilty could be taken into account,

“and particularly whether its utilitarian or objective value could be considered. That is, there was uncertainty as to whether mitigation could be given with regard to the extent the plea saved time and cost to the community, and spared the victim the ordeal, and the community the expense, of a contested trial.”

94. The Court also quoted at [245] from the Report of the Australian Law Reform Commission, Sentencing (1988) which had preceded the enactment of s 16A:

“A guilty plea may indicate contrition or remorse, but it may simply be a recognition of the inevitable. … Allowing a ‘discount’ would have the advantages of

- encouraging shorter trials

- relieving delays and backlogs by lightening the court’s workload

- in many cases, saving the expense (often at the cost of legal aid) and inconvenience of a trial

- saving trauma to witnesses, especially victims.”

95. The sense in which “utilitarian value” was used in Xiao thus:

96. included the immediate saving of time and cost to the community, and sparing the victim and witnesses the ordeal, and the community the expense, of a contested trial in the particular prosecution;

97. extended beyond the particular prosecution in which the plea was given, encompassing broader benefits to the criminal justice system as a whole such as relieving delays and lightening the court’s workload; and

98. was to be distinguished from the subjective willingness on the part of the offender to facilitate the course of justice.

99. That the concept of “utilitarian value” as generally understood in sentencing discourse extends beyond the savings of time, money and distress in the particular case was made clear in Thomson. Spigelman CJ described a plea of guilty as having “a utilitarian value to the efficiency of the criminal justice system”: at [3]. His Honour explained the utilitarian value of a guilty plea at [115] and [131]:

“[115] … The benefits to the criminal justice system as a whole, which flows from a plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or to the conduct of the offender. Such benefits flow from an act by the offender that is not directly related to any of the multifarious objectives designed to be served by the sentencing process: deterrence, rehabilitation, punishment, etc. Rather, they are a collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole, which require acknowledgment of some character by way of an incentive, so that the benefits will in fact be derived by the system.

…

[131] The benefits include:

- Reduce congestion in court lists and permit courts to plan the use of limited resources without overlisting and avoiding the waste of trial court time.

- Reduce the waste of the limited resources available to the Director of Public Prosecutions, the Public Defender and legal aid, both by the direct saving of time spent on preparing cases that do not proceed and by the indirect saving of reducing the number of cases not reached due to overlisting.

- Reduce the waste of time of witnesses, amongst whom police constitute the largest single category, in preparing to give evidence and, in many cases, appearing on the day of trial.

- Reduce the waste of time of jurors who are needlessly assembled for trial.”

97. The notion of utilitarian value as used in Xiao should thus not be understood to be limited to the immediate saving to the community of avoiding a contested trial in the particular case.

98. Thirdly, and in any event, the language of s 16A(2)(g) has been expanded since Xiao. The significant words are “the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence”. The ordinary English meaning of the words “any benefit to the community” is broad. It is not confined to the immediate savings to the community of avoiding a contested trial in the particular case. The Crown submitted at the hearing of the appeal that the words “any benefit” should be confined by reference to the last words of the paragraph, “the offence”. But as a matter of syntax, those words operate to qualify the words, “any victim of, or witness to, the offence”, rather than the earlier words, “any benefit to the community”.

99. The amendment to s 16A(2)(g) was made after the decision in Xiao. There is no reason to give the words “any benefit” a narrower meaning than the effect that was given in Xiao to the earlier form of s 16A(2)(g), when the provision referred only to the fact of the plea. As noted above, part of the rationale in Xiao for giving a discount pursuant to par (g) on account of a plea was the utilitarian value of benefits to “the criminal justice system as a whole”, far beyond the particular case.

100. There is also nothing in the legislative history of the amendment that suggests that the words “any benefit to the community” should be given a restrictive meaning. Substantially the current form of s 16A(2)(g) was introduced by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). That Act also introduced minimum penalties for certain child sexual offences: ss 16AAA and 16AAB. However, the new s 16AAC(2)(a) provided that the court may impose a sentence of imprisonment of less than the minimum specified in those sections for those offences if the court considers it appropriate to reduce the sentence because “the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty”. By subs (3), the permissible reduction under s 16A(2)(g) on account of a guilty plea to those offences was “an amount that is up to 25% of the period specified” as the minimum penalty.

101. Plainly enough, in the context of the new minimum penalties for the child sexual offences, the amendments to s 16A(2)(g) were intended to provide an express statutory mechanism that preserved the court’s ability to take into account “any benefit to the community” resulting from a plea of guilty, which could then be picked up by s 16AAC in relation to the ss 16AAA and 16AAB offences. Thus, in the Second Reading Speech for the Bill in the House of Representatives, the Attorney-General, Mr Porter MP, said:

“Judges will also retain discretion to deviate from the minimum terms set statutorily by up to 25 per cent each, to allow for the recognition of early guilty pleas and cooperation with law enforcement. This is an important provision to ensure we do not disincentivise demonstrations of remorse by offenders that facilitate the administration of justice.”

Commonwealth House of Representatives, Parliamentary Debates (Hansard), 11 September 2019 at 2446.

102. The fact that s 16A(2)(g) was part of a mechanism designed to retain judicial discretion to ameliorate the effect of mandatory minimum sentences is inconsistent with giving the provision an interpretation narrower than the ordinary English meaning of the language used. To the extent that the Attorney referred to remorse, no one suggested that the operation of s 16A(2)(g) is limited to considerations of that kind. The Second Reading Speech did not otherwise address pleas of guilty.

103. Section 16A(2)(g) is of general operation. The Explanatory Memorandum for the Bill contained the following:

“251. These items introduce additional general sentencing factors to which the court must have regard when sentencing a federal offender. The existing paragraph 16A(2)(g) is expanded upon so that in addition to considering the fact that the person pleaded guilty to the charge in respect of the offence, regard is also to be had to the timing of that plea and the degree to which these factors resulted in any benefit to the community or to any victim of or witness to the offence.

252. The amendment to paragraph 16A(2)(g) is an acknowledgement that [it is] appropriate for offenders to be offered a reduction in their sentence for an early guilty plea, as early guilty pleas reduce the costs associated with prosecuting offenders and save victims and witnesses from the often harrowing experience of giving evidence and being cross-examined in open court.”

104. Again, particularly given that the amendment was made after Xiao, the words, “The existing paragraph 16A(2)(g) is expanded upon” do not support an interpretation of the words “any benefit to the community” which limits the operation of the provision to recognising the immediate benefit arising from avoiding a contested trial in the particular case. While the reasons for giving a reduction in the sentence identified in par 252 of the Memorandum are reasons that would apply in a particular case, nothing in that paragraph suggests that Parliament intended to give the operation of the words “any benefit” a narrow operation confined to the immediate benefit arising in the particular case.

105. On the proper construction of the provision, the limiting question is not whether the claimed benefit arises directly from avoiding a contested trial in the particular matter. It is whether the plea “resulted in” a particular benefit to the community, the victim or the witness. It may be that, beyond the matters going to utilitarian value identified in Xiao and Thomson, that question is not easily answered in the affirmative. But once a benefit that meets the s 16A(2)(g) test is “known to the court”, the court must take it into account.

106. In the result, the Crown’s argument based on s 16A(2)(g) must be rejected. The Crown has not shown that, as a matter of statutory construction, it was not open to the sentencing judge to take into account the special or additional value of the agreed additional objective benefit to the community of the pleas in encouraging accused persons to plead guilty in other AN0M-related prosecutions. To the contrary, on his Honour’s uncontested finding that the guilty pleas in these matters resulted in a significant additional benefit to the community, s 16A(2)(g) required his Honour to take that benefit into account.

Second question: no double counting

107. As noted above, the better view is that the sentencing judge took the pleas of guilty into account:

108. as providing objective benefits to the community in two different ways:

(a) the benefit of avoiding a contested trial in the particular case (the first way identified above); and (b) the benefit of encouraging others accused in AN0M-related matters to plead guilty (the second way identified above); and

2. for their subjective significance as demonstrating remorse and contrition (the third way identified above), and a willingness to facilitate the administration of justice (the fourth way identified above).

3. That approach did not necessarily involve double counting, because all four ways of taking the pleas into account were conceptually distinct.

4. The distinction between the utilitarian value of a plea and its significance for the subjective aspect of the sentencing exercise was explained in Giles-Adams at [73]-[78]:

“[73] However, the requirement, in the appropriate case, to take into account both the utilitarian value of the plea of guilty and the mitigatory effect of the offender’s willingness to facilitate the course of justice, is not simply a product of discrete statutory provisions. The utilitarian value of a plea of guilty is conceptually different from a willingness to facilitate the course of justice.

[74] In Baden v R [2020] NSWCCA 23 (‘Baden’) at [16], Bell P (as his Honour then was), made the following observation:

‘In Cameron [Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6], Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused’s “willingness to facilitate the course of justice” which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount.’

[75] Subsequently, the Court held in Chuang at [18]:

‘[A]lthough as a mitigating factor willingness to facilitate the course of justice should be established on the balance of probabilities, it should not be assumed that the existence of a strong prosecution case necessarily diminishes the factor to any particular extent. The court should state if it is satisfied that the plea was motivated partly or largely by the inevitability of conviction, or that no finding can be made.’

[76] In Bae v R [2020] NSWCCA 35 (‘Bae’), the Court was dealing with an appeal against sentence imposed for offences contrary to the Criminal Code Act 1995 (Cth). The appeal related to the sentencing judge’s purported error of failing to have regard to the utilitarian value of the plea of guilty in accordance with s 16A(2)(g) of the Crimes Act. Although the Court was dealing with the nature of a discount for the utilitarian value of the plea of guilty in the context of the Commonwealth Crimes Act, the Court was assisted by decisions of this Court explaining the concept of utilitarian value of a guilty plea concerning State offences: see R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1; R v Thomson; R v Houlten (2000) 49 NSWLR 383; [2000] NSWCCA 309.

[77] The Court held that the identification of the utilitarian value of a plea of guilty involved an objective assessment to be undertaken for the purpose of s 16A(2)(g) of the Crimes Act. If an offender has demonstrated contrition involving the facilitation of the course of justice, this may be taken into account in the offender’s favour on sentence in accordance with s 16A(2)(f). This aspect falls on the subjective side of factors which involves an enquiry as to the attitude of the offender and an assessment of contrition: see Bae at [55].

[78] It follows that whether an offender is being sentenced for a Commonwealth or a State offence, the utilitarian value of a plea of guilty and the willingness of an offender to facilitate the course of justice, are conceptually different. The former is an objective factor that should be quantified. The latter is a subjective factor that does not require quantification but may operate to mitigate the sentence as part of the process of instinctive synthesis.”

110. There was an obvious risk that taking the guilty pleas into account in all four ways described above would lead to double counting, or at least to giving excessive weight to the pleas. There was a particular risk in giving the offenders credit both for their subjective willingness to facilitate the administration of justice, and for the utilitarian value of the objective benefits to the community which resulted from that willingness. But the mere fact that the sentencing judge took the pleas into account in all four ways did not of itself constitute error. The different ways of taking the pleas into account were conceptually distinct, and it was thus possible to do so without double counting.

111. The Crown has not shown that his Honour erred in doing so.

Third question: both quantified and unquantified reductions for objective benefits

112. The sentencing judge’s approach involved distinguishing two sets of objective benefits to the community that resulted from the respondents’ pleas of guilty. Both sets of benefits may be described as having a “utilitarian value” in the sense explained above: the value of the benefits was not related to the conventional purposes of sentencing. His Honour took the two different sets of benefits into account in two different ways:

113. First, the benefit to the community of encouraging the accused in other AN0M-related prosecutions to plead guilty was taken into account as part of the process of instinctive synthesis.

114. Secondly, the utilitarian value of the immediate benefit to the community in saving the time, cost and distress of trials in the respondents’ particular matters was taken into account by way of a quantified discount of 25%.

115. Described in that way, the approach was fraught with risk. But it has not been shown that what the sentencing judge did involved error.

116. In Xiao, the Court said at [279]-[280]:

“[279] There remains the question of whether it is necessary or appropriate to specify the discount given for a plea. In R v Place, where the legislation in question was in similar terms to s 16A(2)(g), the plurality stated (at [81]-[83]) that courts should be encouraged to identify the specific reduction given. That is consistent with what was said by Kirby J in Cameron at [71] that it is desirable and certainly permissible to identify the measure of discount afforded for a plea of guilty. Further, McHugh J pointed out in Markarian at [74] that specification of such a discount is not inconsistent with the instinctive synthesis approach to sentencing.

[280] Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error.”

Citations omitted.

115. It was similarly said in Giles-Adams:

“[70] Although s 16A(2)(g) does not require the quantification of the discount for the plea of guilty, it is desirable in the interests of transparency, and it has become the preferred practice, that a discount is specified. That discount is usually expressed as a reflection of the reduction in sentence for the utilitarian value of the plea. In a case such as this, that is a reflection of the benefit to the community because of the time and cost of the trial that is saved by virtue of a plea of guilty and the benefit to witnesses of not being required to attend and give evidence.”

116. To the extent that his Honour reduced the sentence in an unquantified way to take into account an aspect of the utilitarian value of the plea, that tended to defeat the purpose (encouraging others to plead guilty) to which his Honour was seeking to give effect. But it follows from the Crown’s position in this Court (that (1) it was open to his Honour to quantify the discount, but (2) his Honour was not obliged to do so) that it was open to his Honour to quantify the discount in part.

117. That position was, of course, subject to the proviso that there be no double counting. As noted above, whenever an offender receives a quantified discount for pleading guilty, that “sends a message” encouraging other accused persons to plead guilty in other prosecutions. That is part and parcel of the general utilitarian value of a guilty plea which is recognised by the quantified percentage discount. But in this case, the appeal falls to be decided on the uncontested premise that the objective benefit to the community of encouraging guilty pleas in other AN0M-affected prosecutions had a special or additional value over and above that recognised by the quantified 25% discount.

118. In that situation, there was an obvious risk of double counting or giving excess weight to the pleas. When the sentencing judge took into account the special or additional AN0M-related value of the pleas (by way of an unquantified reduction to the sentences), it was necessary to bear in mind that the later 25% deduction would capture the general utilitarian value of the pleas. But it has not been shown that his Honour failed to bear that in mind.

119. The effect of the sentencing judge’s approach was thus to allow more than a 25% discount on account of the objective benefits to the community of the guilty pleas. The Crown acknowledged that although the usual discount for an early plea is up to 25% of the sentence that would otherwise be imposed, in rare cases the circumstances might justify a higher discount. It follows that if the sentencing judge had given a quantified discount of, say, 30% or 35% on account of the “utilitarian” value of all the benefits to the community resulting from the pleas, that would not necessarily be error. Indeed, the Crown conceded that a discount of 35% “is recognised as being something which can happen in what [are] described in rare and exceptional cases”: Tcpt, 31 October 2025, 8.21-23.

120. The Crown sought, however, to limit the circumstances in which such a discount could be given. The Crown pointed to Spigelman CJ’s statement in Thomson at [156] (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) about cases “involving exceptional complexity and trial duration”. Those circumstances might readily be seen to increase the “utilitarian” value of a guilty plea. But they are not the only circumstances that might be logically capable of increasing the “utilitarian” value of a plea, and should thus be understood as an example.

121. The Crown needs to show that the sentencing judge erred by taking into account in two different ways, one quantified and one unquantified, two distinct sets of objective benefits to the community resulting from the guilty pleas. The Crown has not done so, in circumstances where it accepted:

122. that it is not inherently erroneous to give a discount for the utilitarian value of a guilty plea which exceeds 25%;

123. that it was open to his Honour to quantify the discount for utilitarian value in part; and

124. that it was common ground before the sentencing judge that the guilty pleas provided a discrete additional benefit to the community (by encouraging guilty pleas in other AN0M-affected prosecutions), over and above the objective benefit of avoiding a trial in the particular case.

Conclusion on Ground 1

122. In the result, in light of the way in which the parties approached the sentencing exercise, Ground 1 is not made out.

Ground 2 – Manifest inadequacy

123. The primary purpose of a Crown appeal against sentence is to lay down principles for the guidance of sentencing courts (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green”) at [1] per French CJ, Crennan and Kiefel JJ). That includes the purpose of ensuring, so far as the subject matter permits, uniformity of sentencing (Everett v The Queen (1994) 181 CLR 295 at 306; [1994] HCA 49 (“Everett”) per McHugh J).

124. As was said most recently by this Court in both R v White [2025] NSWCCA 111 (“White”) at [34]-[35], [37] per Bell CJ and R v Liavaa*;* Liavaa v R [2025] NSWCCA 101 at [82] per Stern JA, an important purpose in the Crown pursuing an appeal may be to ensure uniformity of sentencing so as to retain public confidence in the administration of justice (see R v AD [2020] NSWCCA 275 at [94]).

125. Inadequate sentences give rise to a sense of injustice not only in those who are victims of the crimes in question, but also in the general public (Everett at 306 per McHugh J). Inadequate sentences undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.

126. The Crown maintains that the sentences imposed on Mr Westwood and Mr Robertson are so low as to be an afront to the administration of justice. They are said to be significantly less than any comparable cases. The respondents have not pointed to any other cases in which sentences in this range have been imposed for this type of offending.

127. The Crown submits that the appeals should be allowed so as to ensure uniformity of sentencing and so as to ensure that sentences are imposed which are adequate and just.

128. The finding of manifest inadequacy is a conclusion which is not dependent upon the identification of any specific error by the sentencing judge, although it must be that the sentencing process miscarried in some way (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] per Gleeson CJ and Hayne J).

129. The Crown must establish that the sentence was unreasonable or plainly unjust based on Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. This Court will not intervene merely because the sentences might be different from other sentences imposed for the same type of offences or because this Court might have imposed a different sentence (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]).

130. Leaving aside the issue raised by ground 1, the Crown does not point to specific error in the sentencing process undertaken by the sentencing judge.

131. Finally, it is important to acknowledge that whilst reference may be made to so called comparative cases, each case is different and reliance on other cases sometimes has limited utility (Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]). Caution must be exercised in relying too much on other sentences as some form of yardstick.

132. Mr Westwood and Mr Robertson cautioned the Court from placing too much reliance on the Crown’s schedule of comparative cases, particularly having regard to what was described as the extraordinary subjective cases of each respondent. We have already commented on the list of comparative cases. In most, the sentences imposed were significantly higher than the sentences imposed on Mr Westwood and Mr Robertson. None have non-parole periods approaching those of Mr Robertson and Mr Westwood.

133. Individualised justice requires the separate consideration of the sentences imposed on each respondent but, in saying that, there is a very significant similarity in the objective and the subjective features of their cases.

134. As we have already observed, the sentencing judge did not make any specific finding as to objective seriousness except to disagree with the Crown position. His Honour accepted that the objective seriousness of the offending was much less than contended for by the Crown.

135. His Honour rejected the Crown’s characterisation that the respondents were leading members of the criminal syndicate. His Honour described the role of the respondents as being akin to investors potentially keeping an eye on their investments.

136. Whilst some question might be raised as to the aptness of the term “investors”, there is no challenge to any finding of the sentencing judge in respect of objective seriousness or the subjective features relevant to each respondent. It is apparent that his Honour did not consider that the offending fell in the high range, but where precisely in the range his Honour considered the offending sat, was not known. His Honour was not required to so specify but it must be that the offending by the respondents was serious offending. It is not low range offending, and his Honour did not suggest it was.

137. Plainly, each respondent has a strong subjective case. As we have already set out, the sentencing judge accepted that both respondents had showed contrition and remorse. Both have good prospects of rehabilitation. However his Honour’s findings the subject of Ground 1 of the appeal might be construed, in light of the common ground at first instance, the early pleas of guilty must be taken to have provided a real benefit to the community in terms of the saving of a trial as well as other matters associated with the challenges to the admissibility of the AN0M evidence. Further, the conduct of both respondents since being incarcerated has been exemplary.

138. We will come to that issue further when considering the exercise of the residual discretion.

139. Both respondents (who were both 49 years old at the time of sentence) had previously risen above their very difficult and traumatic childhoods to lead meaningful and purposeful lives until such time as they became involved in the importation of drugs for which they find themselves in prison.

140. The Bugmy factors play an important role in the sentencing of offenders, but it must also be said that the existence of the so called Bugmy factors does not mandate a particular level of leniency. The Court must have regard to and take account of those factors in the exercise of the sentencing discretion, but the Court is not required to specify a level of leniency.

141. In our view, the existence of the so called Bugmy factors for each respondent do not justify the level of leniency in the actual sentences imposed.

142. The findings which his Honour made were well open to his Honour and again are not the subject of challenge in these appeals. However, the point remains that any sentences must be consistent with the purposes of sentencing and be just and appropriate having regard to the level of criminality involved. Both respondents were involved in the large scale importation of heroin and methamphetamine.

143. As “investors”, they were well and truly involved in the process and kept themselves abreast as to what was happening. They contributed financially to allow the importation to take place. They participated for financial gain, and not just a small gain. Whilst the precise amount which they might have gained (and the amount they contributed) was not the subject of evidence, there can be no doubt that they sought to gain large sums through the importation of 400kg of border-controlled drugs, namely heroin and methamphetamine contrary to ss 11.5(1) and 307.1(1) of the Criminal Code.

144. The offence with which they were both convicted has a maximum penalty of life imprisonment (or 7,500 penalty units, or both). An additional offence was taken into account in respect of Mr Robertson pursuant to s 16BA of the Crimes Act, being an offence of conspiring between 20 March 2021 and 15 April 2021 to deal with the proceeds of an indictable crime, those proceeds being over $1 million, contrary to ss 11.5(1) and 400.3(1) of the Criminal Code. This itself is an offence punishable by 25 years’ imprisonment.

145. Pursuant to s 16A(1) of the Crimes Act, and as was acknowledged by the sentencing judge, his Honour was required to sentence each Mr Westwood and Mr Robertson to a sentence that is “of a severity appropriate in all the circumstances of the offence” having regard to the factors set out in s 16A(2) so far as they are relevant and known to the Court.

146. As identified by the sentencing judge and this Court in Totaan v The Queen (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [83] per Bell CJ, there is no hierarchy of sentencing factors but general deterrence is of particular importance in offences involving drug importation as well as dealing with the proceeds of crime. “Investors” may be critical (in the sense that the operation cannot go ahead without them) to the success of sophisticated importation schemes. Whilst they may not be the linchpin or even particularly high up in the hierarchy (since there is no finding that Mr Robertson or Mr Westwood were), investors must be taken to be contributing for financial gain. Further, whilst again there is no evidence as to the amount “invested”, on the sentencing judge’s findings their “anticipated return on investment was ‘significant’”. On any view, the respondents’ role in the conspiracy was sufficiently significant that they were to be rewarded with a significant return.

147. It is difficult to accept that the sentence imposed involves significant weight being given to general deterrence.

148. Further, his Honour set a non-parole period of only 50%. He did so on the basis that a longer period on parole would be of benefit to the respondents and their families. It follows that Mr Westwood will be eligible for parole after serving 4 years of his sentence on 9 March 2026. Mr Robertson will be eligible for parole after serving 4 years and 6 months of his sentence on 9 September 2026.

149. It is only necessary to say that in our view the sentences for both Mr Westwood and Mr Robertson were not just lenient. They were excessively so. They are out of step with other sentences for offences of this type and do not reflect a just sentence having regard to the purposes of sentencing, particularly the need for general deterrence in sentencing for this type of offending. Both sentences were manifestly inadequate. Subject to the exercise of the residual discretion, the respondents should be resentenced.

Residual discretion

150. A finding that a sentence is manifestly inadequate does not mandate that the appeal be allowed and the respondents be resentenced. This Court has a discretion to decline to interfere with the sentence even if the sentence is erroneously lenient (Green at [1]; R v Jacobs Group (Australia) Pty Ltd (2022) 108 NSWLR 377; [2022] NSWCCA 152 at [104]; Khorami v R; R v Khorami [2021] NSWCCA 228 at [34]; Bugmy at [24]).

151. As most recently identified in White per Bell CJ at [41] (Payne JA and N Adams J agreeing), even in circumstances in which the Court concludes that the sentence is erroneously lenient, the appeal may be dismissed in the exercise of the residual discretion because the case is not one which advances the primary purpose of Crown appeals being to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [51]). Other factors bearing upon the residual discretion were identified by the Chief Justice in White (at [44]) as follows:

“(a) any delay by the Crown in lodging the appeal: Hernando at [30]; Green at [43], [131]; R v DKL [2013] NSWCCA 233 at [49] (DKL);

(b) any delay in the resolution of the appeal: R v Price [2004] NSWCCA 186 at [60];

(c) whether the Crown has conducted the case on a different basis from that pursued at first instance: see R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [92]; CMB at [65];

(d) whether a non-custodial sentence was imposed on the offender at first instance and its terms have been complied with for a significant period: DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [107] (Karazisis); R v Y [2002] NSWCCA 191 at [34]; (2002) 36 MVR 328; R v Tortell, R v Tsegay [2007] NSWCCA 313 at [63]; The King v Singar [2025] NTCCA 1 at [68] (Singar);

(e) whether the respondent’s release on parole is imminent or has already expired: Green at [43];

(f) the effect of re-sentencing on the respondent’s progress towards rehabilitation: Green at [43];

(g) whether resentencing would create a disparity with a sentence previously imposed upon a co-offender: Green at [37];

(h) whether the respondent’s health has deteriorated since sentence: R v Yang [2002] NSWCCA 464; (2002) 135 A Crim R 237 at [46]; R v Hansel [2004] NSWCCA 436 at [44]; DKL at [49], [53]; R v Reeves [2014] NSWCCA 154; (2014) 243 A Crim R 558 at [17]; Singar at [68];

(i) whether an increased sentence would constitute ‘tinkering’ with the sentence: Dinsdale at [64];

(j) where the ‘significant aspect[s] of the case’ are unlikely ever to arise again: CMB at [69].”

152. We have already concluded that the sentence was manifestly inadequate. The remaining question is whether the appeal should still be dismissed in the exercise of the residual discretion or whether this Court should resentence. Having regard to the principles which we have just outlined, the answer to this question necessarily involves an examination of the individual cases of each respondent.

Mr Robertson

153. Mr Robertson identified three principal reasons why this Court should decline to intervene being: (1) the conduct of the Crown in the Court below; (2) the impact a heavier sentence would have on his rehabilitation as well as the impact it may have on the meaningful contribution he is making to the community; and, (3) the significant distress and anxiety caused to him and his family by his exposure to a more severe sentence.

154. Mr Robertson submitted that these matters should be viewed in the context that he has served the preponderance of his non-parole period already. It is not necessary to say anything further about the first point. We have already referred to the role of the parties in the sentencing process. In that sense, we accept without criticism that at least to a certain extent the submissions of the Crown in the Court below may have led to the imposition of a sentence which was excessively lenient.

155. Mr Robertson submits that, contrary to the Crown’s submission, he is already contributing to the community outside the confines of the facility where he is being held through his participation in the Never Going Back Program and acting as a mentor in the Clean Slate Without Prejudice Program run by the Tribal Warrior Aboriginal Corporation.

156. This is a collaboration between Tribal Warrior and New South Wales Police, as well as Corrective Services NSW, the aim of which is to assist inmates to introduce them back into the community and not reoffend. Mr Robertson is one of a number of persons who are transported by Corrective Services to the National Centre of Indigenous Excellence to participate and assist in programs in the Redfern/Waterloo area all aimed at reducing crime, working with the police and reducing recidivism.

157. Mr Robertson has been offered a formal advisor role with Tribal Warrior and has already been nominated for a Premier’s Volunteer Award in respect of his participation in that program.

158. On resentence, should that be necessary, and on the exercise of the discretion, aside from those documents in the Appeal Book, Mr Robertson relied on:

159. a psychological report of Dan Sheptooha dated 1 October 2025;

160. two affidavits of Danelle Robertson, his wife, dated 16 October 2025;

161. an affidavit of his solicitor Gregory Goold dated 17 October 2025; and

162. an affidavit of Julie Nguyen, another solicitor, dated 17 October 2025.

163. Annexed to Ms Nguyen’s affidavit is a letter from Jacob Saunders, the Tribal Warrior Talent Program Manager dated 28 July 2025. Mr Saunders identifies the work done by Mr Robertson in the programs to which we have just referred. He speaks of Mr Robertson’s mentorship role and the hard work he has put into assisting others and changing his own attitude. As he said, Mr Robertson’s journey is one of hard work, reflection and genuine effort to change. He has demonstrated remorse, resilience and a strong work ethic. He gives without expectation and leads by example. He asked the Court to consider his progress and rehabilitation.

164. It is not necessary to detail at great length the content of the other documents relied upon by Mr Robertson. It is only necessary to say that the psychologist’s report confirms that two of Mr Robertson’s sons are suffering considerably as a result of his incarceration. The psychological wellbeing of one is described as “troubled”. The other is described as being “extremely defiant”. He suffers from a number of disorders which require ongoing treatment, monitoring and support. Both have been profoundly affected by the absence of their father.

165. It must be said that it is often the case that those left behind when a person is incarcerated suffer greatly and in that sense the feelings of Mr Robertson’s children are not unusual, but the point emphasised on his behalf is that both the children are suffering from particular difficulties at the present time which have been exacerbated and exaggerated by Mr Robertson’s continued incarceration. Those factors are relevant factors on sentence under s 16A(2) of the Crimes Act.

166. It is not being suggested that this somehow justifies an earlier release. These matters are raised as relevant to the exercise of the discretion because the factors which must be considered by the Court in determining whether to decline to intervene include the timing of the Crown appeal in relation to the length of the sentence and the impact that any increase in sentence might have on the offender and his family.

167. We agree with Mr Robertson’s submissions that any alteration in sentencing at this time would have a significant impact on the offender and in particular the progress and health of his children over and above what might be considered to be normal or usual in the circumstances of a father with young children being kept in prison.

168. Both points two and three raised by Mr Robertson have merit. As submitted, he presents with a powerful subjective case. His behaviour, attitude and conduct since being incarcerated has been exemplary. He has plainly made real progress towards his rehabilitation.

169. The risk to that progress is an important factor in considering whether to exercise the discretion. After all, one of the purposes of sentencing is to promote the rehabilitation of the offender. As identified in Green at [43] and White at [44], two factors which may bear upon the exercise of the discretion are whether the respondent’s release on parole is imminent or has already expired, and the effect of resentencing on the respondent’s progress towards rehabilitation.

170. For the reasons we have set out, these are matters which are of significance in determining the exercise of the discretion. We have identified that the sentence imposed on Mr Robertson was manifestly inadequate. It was excessively lenient. This will be sufficient to ensure that the sentence is not used as a guide in other cases or reflective of a range.

Mr Westwood

167. Mr Westwood makes similar submissions. Firstly, he adopts Mr Robertson’s submissions in respect of the role of the Crown in contributing to the error. Secondly, he submits that his excellent progress towards recovery would be severely impacted by an increased sentence. He says the sentencing judge accepted that even whilst on remand, Mr Westwood had been largely rehabilitated and that he had excellent prospects of rehabilitation.

168. Despite the anguish arising from this appeal, he continues to engage positively with life in custody by training, working and mentoring other inmates. He highlights that he has been asked by the Governor of the Correctional Centre to be a representative on a conference group which involves monthly meetings with the Governor, Deputy Governor and other senior staff to discuss issues arising in the gaol. He continues to work currently as a kitchen hand and has been promoted to leading hand. The case notes demonstrate his attitude and conduct are exemplary. Reference was made to a number of case notes to support that proposition.

169. Mr Westwood also highlights the effect on his family and his youngest son and the significant impacts any increase in his sentence would have on the mental health and wellbeing of his son. It is perhaps a coincidence that both Mr Robertson and Mr Westwood have sons who might be described as having special needs and requiring additional supervision and have suffered greatly as a result of the incarceration of their fathers.

170. Again, this is not to suggest that Mr Westwood is deserving of some lesser sentence because of this but these are factors relevant to the exercise of the discretion. Mr Westwood relies on an affidavit of his former wife, Megan Westwood dated 14 October 2025, an affidavit of his mother Kim Gale dated 15 October 2025 and a letter from Roman Te-Hira Brady dated 15 October 2025, an employer who speaks highly of Mr Westwood’s prior role in the business as well as Mr Westwood’s remorse and attitude. He also relies on several documents exhibited to the Appeal Book.

171. Like Mr Robertson, Mr Westwood has been involved in programs aimed to assist the community. Mr Westwood has been involved in a program concerned with rehoming dogs. Like Mr Robertson, Mr Westwood presents a powerful subjective case.

Conclusion and orders

172. For the reasons set out in this judgment, we consider that the Court should exercise the residual discretion to decline to intervene on both appeals.

173. In these circumstances, the appropriate order is:

174. In respect of appeal number 2022/00069833, the appeal is dismissed.

175. In respect of appeal number 2022/00069874, the appeal is dismissed.

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Amendments

30 January 2026

Coversheet - correction made to representation postnominal

04 June 2026

[2] - added "Schedule to the" Heading before [30] - "dependents" corrected to "dependants" [101] - page reference corrected from "2445" to "2446" [171] "involved in" replaced by "concerned with"