The Crown Appeal
98 I turn now to the Crown appeal. It must be considered in light of the conclusions at which I have arrived and not simply on the basis of his Honour's findings. It is convenient to consider the appeal in the first instance without regard to the sentences imposed on those who can be regarded as the Respondent's co-offenders.
99 The Respondent's offence was against s233(1)(cb) of the Customs Act and involved not less than a commercial quantity of heroin. The maximum penalties prescribed under that Act for offences relating to the importation of drugs such as heroin are expressed to be dependant on the quantity of drug involved. Subject to some qualifications not presently relevant, where the drug is heroin and
(i) The quantity is less than 2 grams, the maximum penalty is imprisonment for 2 years and a fine not exceeding $2000;
(ii) The quantity is a "trafficable quantity", i.e. not less than 2 grams but not as much as 1.5 kg, the maximum penalty is imprisonment for 25 years and a fine not exceeding $100,000; and
(iii) The quantity is a "commercial" quantity, i.e. not less than 1.5 kg, the maximum penalty is life imprisonment.
(iv) The quantity is not less than a "trafficable quantity" and the offender has previously been convicted of a similar offence involving not less than a "trafficable quantity" of a narcotic substance, the maximum penalty is life imprisonment.
100 In practical terms, in States such as New South Wales, at the time of the Respondent's offence s16G of the Crimes Act (Cth) had the effect of notionally reducing these maximum fixed periods of 2 and 25 years by about one-third - see El Karhani (1991) 51 A Crim R 123; R v Doan (unreported, CCA, 27 September 1996).
101 This pattern of graduated maxima in the legislation makes it clear that quantity is an important consideration in the sentencing exercise. Authorities such as R v Dodd (1991) 57 A Crim R 349 which emphasise the need to have regard to the gravity of an offence viewed objectively and R v Peel (1971) 1 NSWLR 247 where, at 262 it was said that "In determining the proper penalty… the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" also indicate the need to direct attention to the topic of quantity.
102 And although a majority of the High Court has said that weight is not the chief factor to be taken into account in fixing a sentence - see Wong v R (2001) 207 CLR 584 at [67], their Honours also made it clear that weight is material. Given the terms of the legislation and the fact that the extent of the illegal profit and the degree of harm arising from an importation is liable to be roughly proportional to weight, it could hardly be otherwise.
103 Nor is it inappropriate to reflect on the harm heroin, particularly a quantity such as that with which the Respondent was involved, is likely to do. Much, if not most of the work of the criminal courts is taken up with the consequences of the ravages heroin inflicts on those who take it and, by them, on society. One cannot be long in those courts without becoming very aware of the waste of life and degradation heroin inflicts on the lives of the tens of thousands of persons it comes to dominate and without having to deal with the violence to which many addicts resort to feed their habit.
104 And even in simple dollar terms, the cost to society is enormous. One kilogram of pure heroin provides over 5000 "caps" or street deals of 0.3 grams of 65% purity. At a price of $40 per deal, the users are paying over $200,000 a kilogram. Few users can support their habit except by crime and almost all the $200,000 will be obtained by theft, costing in itself and associated damage, a number of times that figure.
105 For example, the survey of imprisoned burglars reported in "The Stolen Goods Market in New South Wales" conducted by the New South Wales Bureau of Crime Statistics and Research indicated a median expenditure by heroin users of $1,500 per week and for many the need to steal goods, the replacement cost of which was 3 to 4 times that amount, to feed their habit. On average each such offender is thus costing the community through property losses and the like over $200,000 per year. And that says nothing about the damage done to cars or homes or the like often broken into to obtain the goods, or the cost to the community of police forces and courts having to deal with such offenders.
106 (The figures to which I have just referred were not the subject of evidence in the Respondent's sentencing proceedings. However, the topic of heroin usage, price and purity comes often before the Courts and has been dealt with sufficiently often in published research material for judicial notice to be taken of it - c.f. R v Henry (1999) 46 NSWLR346 at 360-366, 399-403. The figures I have used, other than those in the immediately preceding paragraph where I have stated the source, are more than supported by data contained in the 1998-99 Australian Illicit Drug Report published by the Australian Bureau of Criminal Intelligence. Support for various of them is also to be found in "Australian Drug Trends, 1999", published by the National Drug and Alcohol Research Centre, a Research Report by Darke, Topp, Kay and Hall entitled "Heroin use in New South Wales, Australia, 1996-2000" published by that Centre, and an Article "Heroin Purity and composition in Sydney, Australia" by Maher, Swift and Dawson in the 2001 Drug and Alcohol Review (though it should be said that the survey the subject of that article was performed on drugs seized in 1996 and 1997).)
107 In this area precision is neither possible nor required. The Respondent is not being sentenced for the harm the heroin he helped import did. The figures but provide some indication of some of the harm that the importation of heroin is liable to effect. Per kilogram it is liable to exceed, or at least be of the order of, $600,000 ($200,000 x 3). Of course, not all of any kilogram is likely to be paid for by stolen goods: But neither does the $600,000 take account of any other damage which might be caused.
108 The High Court has also made it clear that also relevant is the Respondent's state of knowledge as to the quantity involved. The Respondent's evidence was that he never asked how much heroin would be coming in the consignments. Subject to his claim that at some stage he tried to cease his involvement in the importations - a claim that was rejected - the only inference is that he did not care. He was content to assist, or if one confines attention to the agreement inherent in his conspiracy - and that is not necessary - Savvas v R (1995) 183 CLR 1- agree to assist in the importation of whatever quantity those organising the shipments chose to bring in to this country.
109 And as shipment followed shipment, as the weights of shipments increased from 3 or 5 kilograms as the first 2 shipments were, to 11 and later often 20 or more kilograms each, the Respondent must have come to know with absolute certainty that large quantities were involved. Yet he continued to assist. His agreement or his assistance pursuant to the conspiracy extended over a period of almost 2 years. His conduct amounted to conscious deliberate criminality, time after time, and at least up until the time of the Verticon shipment, for the rewards that conduct provided. It may be that, despite Judge Shadbolt's rejection of the Respondent's claim that he continued after that shipment due to fear, when regard is had to the onus of proof one should not conclude that reward was the motivation thereafter. However he continued to receive and enjoy those rewards. "The degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent's conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug" was gross.
110 The graduated scale of penalties means that it is appropriate to consider cases of importing commercial quantities against the benchmarks laid down for trafficable quantities - see Perrier v Richardson (No 2) (1991) VR 717 at 722 and 728; (1990) 59 A Crim R 164 at 168-9 and 174 and R v Markarian [2003] NSWCCA 8 at [38]. Whether one regards the quantity involved as simply "massive" or half of the 127 kilograms to which I have referred, the Respondent consciously agreed to assist in the bringing into Australia of many, many times the 1.5 kilogram upper limit for a trafficable quantity for the importation of which (or conspiracies in that connection) Parliament had seen fit to prescribe a maximum period of imprisonment of 25 years or, if one regards that figure as subject to reduction to reflect s16G of the Crimes Act, something of the order of 16½ or 17 years.
111 It is appropriate to recognise that there were others whose participation and reward would have been greater than the Respondent's but, as Wells J said in Le Cerf (1976) 8 ALR 349, at 351, in a passage that has received endorsement in this Court on numerous occasions:-
"It is only because persons like him are ready, able and willing to do such a thing that the entrepreneur is able to ply his nefarious trade on a large scale. If there were not middlemen and underlings, there would be no top men in an organisation. If an organisation is starved of recruits it must collapse. …
The simple truth, that a man who participates in such an organisation at any level - I repeat at any level - must expect, and will receive, a heavy penalty. I do not, in saying that, mean to imply that no distinction at all will be drawn between the upper and lower echelons of organised crime. But I wish it clearly to be understood that, given that a particular range of penalties is considered appropriate for those in the upper echelons, there is no inevitable correlation between the standing of an offender who is in the lower echelons and the severity of the punishment that he can expect and will receive."
112 The role of the Respondent in the shipping agency rather than as principal behind the importation did not lessen the damage suffered by the community as a result of the importations. The frequency with which such principals find others to assist them suggests that the need for general deterrence of willing helpers such as the Respondent is not significantly less than in the case of principals.
113 Where the offender's knowledge is, and the extent of participation is as great, as the Respondent's was in this case, there is much to be said for the view that a head sentence of life imprisonment should be the norm for those who provide important assistance in the importation of quantities of the order of that here. Such is the assault on society, so great is the harm that the importation is liable to inflict that considerations of general deterrence and retribution argue persuasively for such a sentence. And there is difficulty in reconciling any lesser sentence with the 16½ years provided by Parliament for the importation of but 1½ kilograms.
114 In this regard I would echo the words of Sully J, repeated by his Honour in R v Chun Hing Law [2002] NSWSC 952 at [24]:-
"1. The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well being of the Australian community. The same is to be said of any form of trafficking of heroin within this country.
2. The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.
3. In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, like the present prisoners, engage in drug-related crime when they are themselves not drug dependent."
115 I do not forget that the role of the offender in any importation is, traditionally, regarded as of significance. However, there are limits to the importance of that in a particular case - see R v Olbrich (1999) 199 CLR 270 at 280, and it seems to me that the difference between a major and minor, but still important, role when the quantity is of the order of that with which the Respondent was involved (and the other circumstances, including knowledge, are of the seriousness of those here), is so overshadowed by the criminality inherent in the quantity as to be of limited weight.
116 In R v Chun Hing Law (supra) where the offender was described as having been "at a senior level within the organisation when he was largely unsupervised and fulfilling a critical and central role in the overall conspiracy", Sully J also said (at [14-15]):-
It is useful to recall the following propositions, stated by Badgery-Parker J in R v Twala (NSW) CCA 4 November 1994:
"….. (I)n order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)."
Applying those principles to the given facts of the prisoner's case, I am well satisfied that the prisoner's case falls into the worst category. He took part knowingly and actively in an ongoing conspiracy to bring into Australia quantities of heroin amounting to, on the view most favourable to the prisoner, a total in the order of 30 times the statutory threshold for a commercial quantity. If that is not sufficient to constitute a worst case of the kind, then I find it difficult to envisage what would so suffice."
117 I am not sure that one needs to go as far as Badgery-Parker J did in describing a worst case but, be that as it may, I share the views of Sully J expressed in the last paragraph quoted. The Respondent here was not as active as was Law but his involvement was sufficiently great as, in the circumstances here, to make the difference immaterial. The fact that there were others whose involvement was greater and therefore their conduct worse than the Respondents does not mean that he was not in a "worst category". As the High Court said in Veen v R (1987-1988) 164 CLR 465 at 478:-
"… the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed. …. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."
118 I should acknowledge that some of the authorities take a more lenient approach. For convenience I have attached a summary of those involving large quantities of heroin or cocaine to which I have had regard and accordingly I can discuss them with more brevity here, and omit the citations.
119 Meggett, whose role was, for many months, to captain a vessel on which 171 kg of cocaine was brought from Panama, was thought by Wood CJ at CL to merit a head sentence of 20 years after a s16G adjustment. (The sentence imposed was in fact one of 10 years with a non-parole period of 6 years but reflected a discount of 50% for assistance.) His Honour referred to the role of the offender as indispensable, above that of a mere courier but short of a mid-level executive or organiser.
120 Other offenders who had a major role but whose sentences were less than life, were Kwong Yue Cheung - third or fourth rung down, consignee and assistant to consignor, 32.4 kg, 22.5/13 years, Lara Gomez - consignee and distributor, 77.275 kg, 18/13.5 years, Kuan - consignee, made arrangements, re-packaged and delivered, but subject to supervision, 40+ kg, 12/7 years, Savvas - not the head principal, 64 kg, 18/6 but possibly affected by parity, and Tamayo - local distributor but subject to supervision, 47.7 kg, 14/10 years. I would regard Ung, whose role was to facilitate delivery of some 54.5 kg as also in this category. Martinez, Tamayo's lieutenant, received a sentence of 10/7 years. With the exception of Savvas and Ung, all of these offenders pleaded guilty.
121 On the other hand, Wangsaimas was sentenced to imprisonment for life. His role was that of the captain of the vessel which carried an 89 kg shipment from the Gulf of Thailand to Australia. He also recruited the crew. But for considerations of parity, Mandagai (225 kilograms) who was also a captain of an importing vessel, would have received the same. Wangsaimas pleaded guilty. Mandagai pleaded not guilty.
122 In R v Campillo, R v Flavel, and R v Gonzales-Betes where the offenders were involved in the same importation as Meggett, life imprisonment was imposed on persons who seem to have been no higher in a hierarchy than active "mid-level executives". They had all pleaded not guilty. The quantity involved was 171 kg.
123 A number of the other cases to which I have referred involved offenders who were the principal or regarded as close to the principal in a hierarchy and sentences of life imprisonment were, or but for a mistaken - see Lee Vanit v R (1997) 190 CLR 378 - view that s16G precluded such a sentence, would have been imposed. Offenders in R v Cheung Yin Lun, R v Law, R v Mooseek, R v Ng, R v Tam and R v Yook fall into this category. Because the Respondent's role was appreciably less than that of the offenders in those cases, I regard them as throwing little light on what the sentence to be imposed on the Respondent should be.
124 Because of the extent to which, in sentencing those dealt with in R v Wah and Others, the Court relied on what had been said in R v Cheung Yin Lun and R v Ng it seems likely that the sentences in that case are also affected by the mistaken view of the effect of s16 G. Two of the offenders in Wangsaimas & Ors may also fall into the category of being close to the principal. Although at least 2 rungs down, they were entrusted with safe shipment of the drug and they were to arrange and facilitate delivery in Australia. The head sentence imposed on each of them was life imprisonment.
125 Although there are differences in quantity, I doubt if it is possible to reconcile the sentences imposed on most of Kwong Yue Cheung, Lara-Gomez, Kuan, Savvas, Tamayo, and Ung on the one hand with those imposed on Campillo, Flavel, Gonzales-Betes, Wangsaimas, and, but for considerations of parity, would have been imposed on Mandagai. Certainly those imposing the sentences have not sought to demonstrate such reconcilability. The two offenders last mentioned were but important hired help, as was the Respondent. See also the remarks of Greg James J in R v Gonzales Bates, quoted in the schedule. But whether reconciliation is possible or not, for the reasons I have indicated, and subject to what follows or other special situations, I regard a life sentence as the lowest head sentence which should be imposed on someone who knowingly plays an important role in the importation of quantities of the order of that with which the Respondent was concerned. Of course, as importation is a Commonwealth offence, it would remain necessary to consider the fixing of a non-parole period.
126 But although life imprisonment is the sentence I would impose had the Respondent not assisted authorities, that assistance leads me to the view that the head sentence should be less, both in order to reward the assistance and in recognition that his sentence is likely to be served on protection. His plea operates in the same direction but whether it would have been sufficient on its own, I need not decide. There are undoubtedly some cases where criminality is so high that no discount should be made for a plea - see R v Kalache [2000] NSWCCA 2 at [114-115] and [200].